No. 05-04-01182-CR
Opinion Filed April 12, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-56601-RS. Affirm.
Before Justices WHITTINGTON, FITZGERALD, and RICHTER.
RICHTER, Justice.
A jury convicted Lesley Demale Knight of murder. See Tex. Pen. Code Ann. § 19.02(b) (Vernon 2003). During the punishment phase, appellant pleaded true tone enhancement paragraph. The jury found the enhancement paragraph true, assessed punishment at seventy-five years' confinement and a $10,000 fine, and made an affirmative finding that appellant used or exhibited a deadly weapon, a firearm, during the commission of the offense. In two points of error, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm the trial court's judgment.
Background
At approximately 6:00 p.m. on October 14, 2003, Willie James Venson was shot and killed at the Chapel Brook Apartment complex. The medical examiner testified Venson died as a result of multiple gunshot wounds in the front of the neck, right shoulder, right side of the chest, and lower left side of the abdomen. Toxicology tests showed that at the time of his death, Venson had alcohol and cocaine in his system. Juan Salazar, who lived in a second-floor apartment at Chapel Brook, testified that on October 14, 2003, he had returned from a park with his wife and two children at about 6:00 p.m. As he walked through the parking lot, Salazar passed by a man he later identified as Venson. A minute after Salazar entered his apartment, Salazar heard three gunshots. Salazar looked out a window and saw Venson running through the complex and being chased by another man. The other man had a gun and was shooting at Venson. When the two men were close to the corner of the complex that was separated from a cemetery by a chain link fence, the man with the gun shot Venson one last time. Salazar had never seen Venson or the man with the gun before that day. Salazar testified he did not get a good look at the man with the gun. But, he did see the man get into a red car by jumping through the passenger side window, and then the car sped away. Salazar wrote down a partial license plate number and called the police. Salazar told an officer the man who shot Venson stood about five-feet-eight, weighed about 180 pounds, was bald or had very little hair on his head, had a red rag or handkerchief around his left forearm, and wore no shirt. Dallas police officer Douglas Craig testified that when he arrived at the complex, he found Venson lying on his stomach in a pool of blood. Venson was dead when the ambulance arrived. Craig recalled that the information broadcast over the radio said the suspect was in a compact red vehicle. Detective Donald Whitsitt testified there was a blood trail from Venson's body to the other side of the complex, and they found six nine-millimeter shell casings and two sets of bullet fragments. The distance between the first shell casing and the last was 110 feet. The blood trail extended 290 feet, which indicated that Venson had been running or moving at a fast rate. No weapons were ever found. Later analysis showed that all six shell casings and one bullet recovered from Venson's body were fired from the same nine-millimeter semi-automatic gun. Detective Chuck Young testified that two days after the murder, he received a telephone call from appellant's former girlfriend, who claimed appellant was the person who had shot Venson. Young learned that appellant had been issued a citation while driving a red Chevrolet Cavalier. Young compiled a photographic lineup that included appellant's photograph. An eyewitness to the murder identified appellant's photograph from the lineup as the man who had shot Venson. Eric Blaylock, an eyewitness to the murder, testified he and Venson had been drinking together all day on October 14, 2003. Blaylock testified that after walking around and drinking all day, he and Venson walked through the Chapel Brook apartment complex. Blaylock went behind a dumpster to urinate while Venson said he was going to talk to some men nearby. When Blaylock came out from behind the dumpster, he heard three gunshots and saw three men chasing Venson. Blaylock identified appellant in open court as the man he saw with the gun who shot Venson. Blaylock had seen appellant around the neighborhood, but he did not know appellant's name. Blaylock had heard others call appellant "Youngster." Blaylock testified that he was grazed by a bullet as he ran into the cemetery next to the complex. Blaylock then ran to a friend's house. He did not know Venson had died until two days later when he told his mother about the bullet grazing him. Blaylock's mother insisted he contact the police. Blaylock identified appellant from a photographic lineup as being the person who shot Venson. Blaylock admitted that in a hearing outside the jury's presence, he had testified he did not see the person who shot Venson. Blaylock explained that at the hearing he was upset because he was the only witness who was made to testify and he was afraid of reprisal if he testified against appellant. Blaylock testified he had previous convictions for arson and unauthorized use of a motor vehicle. Breah Lynch testified she lived in the Bayou Bend apartment complex, which was located near the entrance of the cemetery. Lynch had seen appellant in the neighborhood every day and had interacted with appellant once or twice a week. She testified she did not know appellant's real name because people on the street did not use their real names. She knew appellant as Youngster. Lynch testified she had seen appellant with a black nine-millimeter gun on previous occasions. At about 5:30 p.m. on October 14, 2003, Lynch and two friends were in the cemetery using crack cocaine. After about thirty minutes, Lynch heard a noise, then heard a man yelling, "Get him, get that fool." Lynch got up, walked to the side, and looked around a large dumpster. Lynch testified she saw two people chasing Venson. Lynch saw appellant shoot Venson. Venson stumbled, took a few more steps, then fell to the ground. The man with appellant ran over to Venson and "went through" Venson's pockets. Lynch testified she and her friends left the cemetery. Lynch did not call the police because she had been using drugs. Lynch was arrested two weeks later on a probation violation. At that time, she told a detective about seeing Venson's murder. On October 30, 2003, Lynch gave a written statement about the murder, and identified appellant from a photographic lineup as the person she saw shoot Venson. Lynch testified that some parts of her written statement were not true because she had been high for a few days and was very tired when the officer wrote down her statement. Lynch positively identified appellant in open court as the person she saw shoot Venson. Lynch further testified she had prior convictions for theft and aggravated robbery. Appellant denied he was the person who shot Venson or that he was a party to Venson's killing. Appellant also denied he lived in the area of the Chapel Brook apartments and that he had a nine-millimeter gun. Appellant testified he was living in South Dallas with his mother in October 2003, and that he did not own a car. Appellant testified he had moved from Sweetwater, Texas to Dallas after he broke up with his girlfriend. This former girlfriend had made a report with the Sweetwater police that appellant had stolen her car. Appellant was arrested, but was released four days later. Appellant testified he did not know either Venson or Lynch and he had never seen Lynch before the trial. Appellant testified he had seen Blaylock before. Appellant testified he had borrowed a friend's car from time to time, but he did not recall whether he was riding in a red vehicle on the day Venson was shot or even what he was doing that day. On cross-examination, appellant admitted he had a friend who owned a red Chevrolet Cavalier and that appellant would sometimes borrow that vehicle. Appellant admitted he had received a ticket on October 1, 2003 while driving the red vehicle within one block of where Venson had been shot. The ticket was for possession of a glass crack pipe. Appellant testified he had prior convictions for possession of a controlled substance and possession of a prohibited weapon. Applicable Law
In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment, and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003). The standard is the same for both direct and circumstantial evidence cases. Edwards v. State, 813 S.W.2d 572, 575 (Tex.App.-Dallas 1991, pet. ref'd). In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). Under either review, the fact finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). Discussion
Appellant argues the evidence is legally and factually insufficient because there was no physical evidence connecting him to the murder, and the alleged eyewitnesses were not credible. Appellant asserts that the witnesses who identified him as the person who shot Venson were unreliable due to their alcohol and drug use, one witness could not identify the shooter at all, and one alleged eyewitness implicated appellant only because she had been arrested on a probation violation. The State responds the evidence is legally and factually sufficient to support the conviction. There was conflicting evidence presented in this case. Both Blaylock and Lynch testified they saw appellant shoot Venson. Blaylock testified he had been drinking all day, he knew appellant from the neighborhood, and he clearly saw appellant shoot Venson. Lynch testified she had seen appellant in the neighborhood every day, she had seen appellant with a nine-millimeter gun in the past, and she had been using cocaine at the time she saw appellant shoot Venson. Salazar testified he did not get a good look at the person who shot Venson, but he saw the gunman get into a red vehicle and flee the scene. Appellant admitted he had received a ticket while driving a red vehicle approximately two weeks before Venson's murder. Appellant essentially asks this Court to find that his testimony was more credible than that of the other witnesses. However, the jury was the sole judge of the weight and credibility of the witnesses and their testimony, and it was the jury's function to resolve the conflicts in the evidence. See Cain v. State, 958 S.W.2d 404, 408 (Tex.Crim.App. 1997); see also Empty v. State, 972 S.W.2d 194, 196 (Tex.App.-Dallas 1998, pet. ref'd). We may not substitute our own determination for that of the jury. See Ortiz v. State, 93 S.W.3d 79, 87-88 (Tex.Crim.App. 2002), cert. denied, 538 U.S. 998 (2003); Scott v. State, 934 S.W.2d 396, 399 (Tex.App.-Dallas 1996, no pet.). Having reviewed all of the evidence under the proper standards, we conclude it is legally and factually sufficient to support the conviction. See Sanders, 119 S.W.3d at 820; Zuniga, 144 S.W.3d at 484. We overrule appellant's points of error. We affirm the trial court's judgment.