No. 05-05-01005-CR
Opinion issued July 19, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause No. F04-19394-PJ. Affirmed.
Before Chief Justice THOMAS and Justices MORRIS and LAGARDE.
The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Opinion By Justice LAGARDE.
Eric Charles Hurt pleaded not guilty before a jury to the murder of another juvenile, Pierre Malone. See Tex. Pen. Code Ann. § 19.02 (b)(1), (2) (Vernon 2003). The jury found appellant guilty and assessed his punishment at thirty-five years' imprisonment in the penitentiary. In two points of error, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm.
Appellant, who was a juvenile at the time of the offense, was certified to be tried as an adult.
Facts
On May 22, 2004, there was a college fraternity party at Eddie Dean's Ranch (EDR) in Dallas. Many young people, including juveniles, joined in the party, both inside and outside of the establishment. Drugs, drinking, and guns were involved. Carlos Thomas drove his friends, Mark Omere and Pierre Malone to EDR. The parking lot was full, so Thomas parked his car in the parking lot of a liquor store across the highway. There they encountered Cedric Lane, Phillip Farrish, Jeremy Staten, and Jason Carroll, who had driven there in Carroll's car. Lane, Farrish, Staten, and Carroll walked to EDR together. Thomas, Omere, and Malone followed a few minutes later. Due to a large crowd, they could not get in, so they waited in the parking lot. A short time later, a fight broke out, and a group of people began to chase Lane, Farrish, Staten, and Carroll. Thomas, Omere, and Malone ran back to Thomas's car, but it was blocked in. Carroll's car, a blue Sable, was not blocked in, so Thomas, Omere, and Malone got into the car with Lane, Farrish, Staten, and Carroll. Malone was the last person in and had to lie across the laps of four people in the back seat. As the group was leaving, several gunshots hit the car. Two shots hit Malone. He yelled that he had been hit. Neither Thomas nor Omere saw the shooter, but Thomas later gave the police a description of someone. The description did not match appellant. Carroll saw a police car and stopped for help. An ambulance was called. Malone was taken out of the car and placed on the ground. An ambulance arrived about forty-five minutes later. Malone later died from the gunshot wounds. Dr. Joni McClain, who conducted the autopsy, testified there were two gunshot wounds to Malone's body, and she recovered two bullets from the left side of his neck. The cause of death was multiple gunshot wounds. Dallas police detective Kenneth Penrod was the lead police investigator on the case. The investigation led the police to two main witnesses: Michael Jones and Justin Elliott. Jones and Elliott initially told the police they had seen appellant, with a gun in his hand, shooting several times as he chased a blue car that was leaving the liquor store parking lot. Before appellant fired at the blue car, Elliott heard appellant say, "There goes all those niggers!" Approximately one month after the shooting, Jones and Elliott identified appellant as the shooter from a photographic lineup. Neither Jones nor Elliott told Penrod they had taken drugs the night of the shooting. Penrod also interviewed appellant's friend Rashuard Lollar. Lollar gave a sworn affidavit in which he stated he had seen appellant with a gun at Lakeside Park in Duncanville on May 22, 2004. He also saw appellant shooting the gun into the air that evening in a celebration at the park. Penrod did not put the information in the affidavit that Lollar had said he saw appellant with a gun. Penrod explained that Lollar was frightened of what appellant might do to him after the trial. Lollar did not go to EDR after leaving Lakeside Park, but he later heard rumors about the shooting at EDR, and that appellant was the shooter. One day at school, Lollar asked if appellant had heard the rumors that appellant had shot Malone. Appellant responded, "he didn't know nobody got hurt." Penrod was cross-examined about many other leads and names he was given and what, if anything, he had done to locate other witnesses. Detective Rucker, who was on medical leave at the time of trial, was the officer who had originally responded to the scene of the victim in the early morning hours of May 23. Dallas police officer Gary O'Pry testified that he collected evidence from the crime scene on the morning after the shooting. O'Pry photographed the scene and found five .40-caliber shell casings in the street. All five casings were later determined to be from the same gun. Based on the spacing of the casings, it was O'Pry's opinion that the shooter was moving-either walking or maybe running-while he was shooting. Handwipings were taken from Malone and his six friends. Following the investigation, Dallas police detective Terry Cornelius was assigned to arrest appellant. Cornelius first made a covert call to the apartment where appellant lived. Someone answered and "kind of sounded like he was in bed." At that point, Cornelius hung up. When the officers arrived and knocked, there was no answer. They continued to knock and announce themselves as police for about forty-five minutes. The officers finally contacted the apartment manager, who called appellant's mother and asked her to come to the location. Appellant's mother was "completely cooperative." She called and asked appellant to open the door, but he would not. After ten to fifteen minutes of trying to get appellant to open the door, appellant's mother signed a written consent to search form and gave the officers permission to forcibly enter the apartment. The officers kicked in the door and, upon entry, initially found no one. The officers went into the attic and found the sixteen-year-old appellant, nude, lying between the joists and covered with insulation. The officers arrested appellant, but never told him why he was being arrested. As the officers were putting him into the squad car, appellant spontaneously said, "Mamma, call Little E, get me a lawyer. This is that deal at Eddie Dean's Ranch. He told me all about it. This-because a girl was lying on me and spreading rumors." Mark Omere testified he was a friend of Malone's. Omere was with Thomas from about 9:00 p.m. on May 22, 2004. They went to a party in Plano, then to the UA Theatres, and then to EDR. At EDR, Omere, Thomas, and Malone were talking to some girls. Lane got into a fight with a "dude," and everybody started running "toward the group he was in." They had earlier heard shots and thought they had better leave. When they got to the liquor store, Omere heard a second round of gunshots. Omere, Thomas, and Malone ran toward the liquor store. They first tried to get into Thomas's car, but it was blocked in. Carroll's car was facing toward the front of the building. They all piled into Carroll's car to "get out of there" because there were other guys coming at them with a gun. To get out, they had to back up and go around the liquor store. Omere heard three or four bullets hit the car as they turned left. He ducked down, so he did not see the shooter. After they had gone three or four blocks, Omere heard Malone say he had been shot. They got Malone out of the car and put him on the concrete. Malone did not say anything after that. Rovetta Malone, Malone's mother, identified a picture of her son and testified he was born in 1988. On May 22, 2004, Malone was a student at North Garland High School, where he played football and basketball. At about 10:13 that evening, Malone kissed Rovetta goodbye and told her he was going downtown to EDR. Rovetta first talked to the police at the hospital after Malone died and specifically remembered speaking to Penrod at that time. She told Penrod that earlier that day, Malone had been at home with some of his friends. He got a telephone call and, in response, went to Plano. When she learned Malone had been shot, Rovetta told the police she thought Malone was still in Plano. Rovetta denied telling Penrod anything about a birthday party for her daughter's friend at EDR, and did not remember telling Penrod she was surprised her son was at EDR. Michael Jones testified he was from Dallas, was twenty-one years old, and had a lot of family here. He was employed as an automotive technician. Jones identified appellant in court as the person he knew as "14." Jones and appellant were acquaintances and went places together. Jones remembered May 22, 2004, the date Malone was shot. Everybody was having fun at a party in Lakeside Park in Duncanville when a riot broke out. Jones had gone to Lakeside with Elliott and they met some girls there. Jones saw appellant at that party, but did not see any guns. At some point, Jones and Elliott went to EDR to get into a college party. They drove Elliott's mother's car, a silver "tractor Chevy." Jones and Elliott were "doing drugs" that night-marijuana and ecstacy. They first went from Lakeside Park in Duncanville to a Wendy's on Wheatland. They took the drugs at Wendy's at about 8:00 that night. Elliott parked near a liquor store on the opposite side of Interstate 30 from EDR. They walked to EDR and got into the party. It was crowded and there was a riot inside. People were fighting and "what not." The fire marshal "pretty much shut it down," and they had to leave. Jones and Elliott left EDR about four hours after they had taken the drugs-probably close to midnight. The drugs had worn off a little bit by that time. Outside, it seemed that the people who had been rioting inside EDR were trying to get the advantage on the outside. People scattered everywhere. The police were trying to get everyone to go home. People walked out different ways. Elliott's car was closer to Lamar, and Jones and Elliott walked back to where the car was parked. When they arrived at the car, Elliott got shot in the leg. Jones could see blood and Elliott told him he had been shot in the leg. Jones looked for a police officer to call an ambulance. Jones was sitting on the passenger side of the car. Right after he realized Elliott was shot, Jones saw appellant in the parking lot. Jones was about ten feet from appellant and there was sufficient light, from both the parking lot and the Interstate, to see. Jones was positive he saw appellant, who Jones could see from the head to the waist. Appellant was about seven to eight feet behind a blue car, chasing it with a gun in his hand, shooting. This was the first time Jones had noticed the blue car, and seeing this stuck in his memory. Appellant shot more than once, but Jones did not know how many times. The car was driving away from both appellant and Jones. A lot of cars were in the parking lot and a lot of gunshots were being fired by more than one person. However, Jones never saw anyone in the blue car firing a gun. He only saw the people in that car trying to get out of the parking lot. Jones did not keep watching appellant because the ambulance came. Using a map and photographs, Jones showed where they parked on the back side of the liquor store. The blue car came out of the back drive and drove toward Lamar. At that time, appellant was closer to the liquor store, but had already started running toward the blue car. Appellant was on the back right side of the liquor store when he started firing. About a month after the incident, Jones told Penrod the things he told the jury. Penrod showed Jones a photograph spread, and Jones picked appellant's picture. Penrod told Jones to identify someone only if he were sure. Jones felt no pressure to identify anyone; he felt like the detective was patient and wanted Jones to be sure. Before testifying at trial, Jones had given two statements. Jones testified that he did not tell the truth in his statement when he said they had parked underneath a bridge and not near the liquor store. He testified that he was telling the jury the truth. Jones also testified that about a week before trial, he told the prosecutor he was at the scene, but did not actually see the shooting. Jones was concerned for the safety of his family. Jones, however, later told the prosecutor he wanted to do the right thing and tell what happened. Rashuard Lollar testified he saw appellant at the Lakeside Park in Duncanville. Although he was not positive, Lollar "thought" he saw appellant shooting a gun into the air during a celebration there. Lollar "chilled out" with his girlfriend and did not go to EDR. Later at school, however, Lollar heard rumors that Malone had been shot and that appellant was the shooter. Lollar asked if appellant had heard the rumors and if he had shot Malone. Appellant responded that he "didn't know nobody got hurt." Lollar told Penrod in 2004 that Lollar had interpreted appellant's comment to mean appellant shot Malone, but was expressing sympathy. Lollar later recanted, saying he did not tell Penrod he interpreted appellant's comment to mean that appellant shot Malone. Justin Elliott testified he was nineteen years old and a friend of Mike Jones. He and Jones stayed together on May 22, 2004 and planned to go to a college party at EDR. They left the house at about 9:30 p.m. Elliott was standing outside his car in the parking lot when he was shot. The gunshot had come from inside another vehicle. An ambulance came and transported Elliott to Parkland Memorial Hospital. Elliott saw a person he knew as "14" in the parking lot outside EDR on May 22, 2004. Elliott realized "14" had a gun in his hand and that he was shooting at a car as it was pulling away from him. There were a lot of people outside and a lot of shots were being fired. Elliott could not pinpoint "14" as the shooter. Elliott picked appellant from a photo lineup. Elliott later backed off his original testimony because he was afraid for his family. The day before the trial, Elliott told the prosecutor he did not want to testify. The prosecutor told him it was up to Elliott whether to testify. Elliott left the courthouse. The next day, when the prosecutor came into the district attorney's workroom, Elliott was waiting for him, smiling. Elliott shook hands with the prosecutor, told him everything in his affidavit was the "God's honest truth," and began to cry. Elliott testified he cried because his mother had called him a coward because he would not testify. Elliott told the jury he was testifying because he was not a coward. Elliott said he was concerned about testifying, not for himself, but for the safety of his mother and sister. Elliott testified that he and Jones were smoking marijuana on the date of the murder. They were smoking "lots of blunts." They also "popped an X." Elliott did not, however, tell Penrod he was under the influence of drugs on the date of the offense. Elliott further testified that he is currently on probation for some misdemeanor offenses, including criminal mischief, evading arrest, and two unlawfully carrying a weapon (UCW) offenses, one in Dallas County and one in Tarrant County. Elliott knew appellant had a gun. Elliott agreed with the prosecutor that he heard appellant saying something like, "there goes those niggers I got into it with" right before appellant started shooting at them. Elliott was clear about who the shooter was, both when talking to Penrod and in his statement. Elliott did not have a gun that night. Elliott and Jones did not park close to the liquor store. They had to walk under a bridge. Charleston Trailor was with them. Elliott gave a statement, but called the police the next day to change his statement. Appellant is not 5'7" or a dark-skinned African-American. Penrod was recalled and testified that at first he had no problems talking to Jones. He gave Jones no facts. The second time he talked to him, Jones was very, very worried and very scared. Penrod received many anonymous calls about the case. Everyone wanted to tell him who did it, but did not want to be involved because they were afraid. But Penrod never got a call that he had the wrong guy. When Penrod talked to Elliott, Elliott was scared to death and wanted to talk to his mother. Elliott said he was going to testify, but then backed off again and went home. Elliott's description of the evidence matched what Penrod already knew. Neither Jones nor Elliott told Penrod he was under the influence of drugs on the date in question. Thomas described the shooter as 5'7", dark-skinned, and with a thin build. Appellant is 6'1" and 175 pounds. Jason Lowery told someone he was with the shooter when it happened. Penrod never talked to Lowery. Charles Clow, a forensics expert, testified about the ballistics report that had been prepared by Lonnie Emanuel. Five casings from the same gun were found. Confusion in Clow's testimony about whether the report said the casings were consistent with a .38- or a .40-caliber bullet was cleared up by Emanuel's later testimony. Emanuel clarified that the ". 38" mentioned in the report referred to 380/1000 of an inch and not to a .38-caliber. Emanuel testified the casings could not have come from a .38-caliber, but were more consistent with a .40-caliber bullet. Jeffrey Gardner testified for the defense. Gardner has been a licensed private investigator for almost twenty years. He got in touch with Elliott at Elliott's home. Elliott told Gardner he had not seen appellant out there on the date in question. Gardner also contacted Dallas County Sheriff's deputy sergeant Braggs, who gave Gardner information about a female, Carmen Ivey, but would not give him any information on Jason Lowery. On cross-examination, it was brought out that Elliott and Braggs knew Gardner was working for appellant. Applicable Law
The standards of review for legal and factual sufficiency of the evidence are well established. When deciding whether evidence is legally sufficient to support a conviction, we must assess all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Prible v. State, 175 S.W.3d 724, 729-30 (Tex.Crim.App.), cert. denied, 126 S. Ct. 481 (2005). When deciding whether the evidence is factually sufficient, we must examine all the evidence without the prism of the light most favorable to the verdict and determine whether the fact finder was rationally justified in finding guilt beyond a reasonable doubt. See Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). Under either standard, the fact finder is the sole judge of the credibility of the witnesses and the weight to be given their testimony. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000) (legal sufficiency review); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000) (factual sufficiency review). We must give deference to the fact finder's decisions about the weight and credibility of evidence. See Johnson, 23 S.W.3d at 9. The State had to show appellant: (1) intentionally or knowingly caused the death of Malone; or (2) intended to cause serious bodily injury and committed an act clearly dangerous to human life that resulted in Malone's death. See Tex. Pen. Code Ann. § 19.02(b)(1), (2). Analysis
Although sworn statements were given, and later recanted in whole or in part, and the trial testimony was conflicting and sometimes confusing and contradictory, the credibility choices were for the fact finder to resolve. The testimony of Jones and Elliott, if believed, is sufficient both legally and factually to prove appellant chased the car in which Malone was riding, firing as he ran; that bullets from the gun he was shooting hit Malone; and that Malone later died from multiple gunshot wounds. Giving deference to the fact finder's decisions about the weight and credibility of the evidence, and applying the law of murder and the respective standards of review to the evidence presented, we conclude the evidence is legally and factually sufficient to support the conviction. We resolve appellant's two issues against him. We affirm the trial court's judgment.