No. 05-06-00365-CR.
Filed January 26, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 195th Judicial District Court, Dallas County, Texas. Trial Court Cause No. F04-55760-PN. AFFIRM.
Before Justices WHITTINGTON, MOSELEY, and O'NEILL.
Opinion By Justice O'NEILL.
A jury convicted Freeman Earl LeRoy, Jr. of murder and assessed punishment at seventy years' imprisonment and a $10,000 fine. In two issues, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm the trial court's judgment.
Background
At 5:50 a.m. on September 2, 2004, police officers on routine patrol found the body of Ashley Simpson lying face-down in a pool of blood in the parking lot of Rochester Park in South Dallas. Officers noted several items around Ashley, including a nine-millimeter Luger cartridge case, a cigar wrapper, a used condom, a cigarette, a lighter, and broken glass on and around Ashley's body. At 1:00 p.m. that day, Dr. Jeffrey Barnard, the chief medical examiner, performed an autopsy to determine Ashley's identity and injuries. Barnard testified Ashley died as a result of one gunshot wound to the neck. The bullet entered the left side of Ashley's neck and exited on the right. The wound was a "contact gunshot," meaning the gun touched the skin when it was fired, that showed part of the imprint of the gun and contained a large amount of soot. Ashley had lacerations to the right temple area, possibly due to her face being slapped against breaking glass, and abrasions on her face and side of the abdomen. Detective Robert Quirk, the lead investigator, did not know Ashley's identity until after the autopsy. Quirk testified that when he notified Ashley's mother and brother about her death, they stated Ashley got into appellant's car, a 1996 two-door Beretta, that morning at about 3:00 a.m. Quirk and other officers began searching for appellant, but did not find him until appellant called 911 later that day and reported his car stolen. The call came into the dispatcher at 4:30 p.m. Appellant said his 1996 two-door Beretta had been stolen from the driveway of 3100 Mallory sometime between 4:00 p.m. and 4:30 p.m. The audiotape of the 911 call was played for the jury. Quirk did not find out about appellant's 911 call until about 5:00 p.m. Quirk drove to 3100 Mallory, but appellant had already been apprehended. At the jail, Quirk interviewed appellant at 10:35 p.m. Neither appellant's vehicle nor test results from Ashley's sexual assault kit were available at that time. During the interview, appellant admitted he had been with Ashley earlier that morning. Appellant said he went to Ashley's house at 3:00 a.m., then he and Ashley drove to Rochester Park. They had sex while using a condom, then he smoked a cigar while Ashley smoked a cigarette. They talked and then he drove Ashley home. The last time appellant saw Ashley was as she walked toward her front door. Appellant denied shooting Ashley. When questioned about his car, appellant said the car was stolen sometime between 4:00 p.m. and 4:30 p.m. from the driveway at 3100 Mallory because he mistakenly left the keys in the trunk lock. Appellant also told Quirk he had arrived at 3100 Mallory that morning at about 4:30 a.m. Quirk testified he believed Ashley and appellant had sex while outside the car because the car was quite small and at the time of her death, Ashley weighed 258 pounds and appellant weighed 240 pounds. Police officers located appellant's vehicle in a four-acre body of water that was an old gravel pit at about 1:30 p.m. on September 3, 2004. Officer Donald Whitsitt testified that as the vehicle was towed from the water, a pair of women's shoes floated out of the passenger-side window. They were recovered by officers. The passenger-side window was broken out, as was the rear window, and the driver's-side door was open. Whitsitt recovered two nine-millimeter cartridges from inside the car, one in the center console tray and one in the driver's floorboard. There was broken glass in the passenger-side door handle, and a reddish-brown stain in the shoulder area of the front passenger seat. Whitsitt testified he believed two adults could sit comfortably in the front seats of the small car, but the back seat would not accommodate an adult. Several examiners at the Southwestern Institute of Forensic Sciences testified regarding tests on various materials. Felicia Aron testified the vaginal and anal swabs from Ashley's sexual assault kit contained seminal fluid, the vaginal and anal smears tested positive for the presence of sperm, and the passenger-side seat cover and headrest from appellant's vehicle tested positive for the presence of blood. Angela Fitzwater testified that appellant's DNA was found on the vaginal and anal swabs, the condom, and the driver's-side seat cover, and a stain on the driver's seat contained Ashley's DNA. David Spence testified he analyzed glass samples taken from Ashley's left buttock and shirt, the parking lot east and south of where Ashley's body was found, and appellant's vehicle's front passenger seat, right door handle, front strap hold, and rear window. All of the samples, except the rear window, matched the glass originating from the passenger-side door window of appellant's vehicle. Vicki Hall testified she examined Ashley's shirt, appellant's shirt, and a set of seat covers from appellant's vehicle for gunshot residue. Hall found gunshot residue on Ashley's left collar area, the left and right abdomen areas of appellant's shirt, and on the driver's seat cover. Lakisha Bell is the mother of one of appellant's seven children. Lakisha testified Ashley and appellant knew each other, but she did not know the nature of their relationship. Lakisha lived one block from Ashley's house, and had been dating appellant since 2003. Lakisha testified that sometime near the end of July 2004, appellant threatened to kill Ashley. While Lakisha and appellant were at a friend's house, Lakisha talked to appellant about the fact that Ashley told her appellant had come to her home and pulled a gun on one of Ashley's relatives. Appellant denied the incident happened and said if Ashley ever said or did anything "that would have him put in jail, he would kill her." Lakisha did not warn Ashley or tell anyone about appellant's threat. Fred Jackson, Ashley's brother, testified Ashley and her two-year-old son lived with him, his mother, and another sister. On September 2, 2004, appellant came to their house at 1:00 a.m. and asked for Ashley. Fred was sitting on the front porch when appellant arrived and saw appellant put a "pistol" in his pocket. Ashley came outside and talked with appellant for a few minutes. Fred testified he overheard appellant making threats against Lakisha, then appellant and Ashley left in appellant's car. They returned about one hour later. Ashley went inside the house and appellant drove on. At about 2:30 a.m., appellant returned to the house. After arguing with her mother, Ashley again left with appellant. Appellant testified that in 2004, he was living with Caldonia Turner, the mother of three of his children. Appellant has seven children with four different women. Both Ashley and Lakisha knew he was seeing them at the same time. Appellant denied he ever made threats to kill Ashley or any of her family members. Appellant admitted he owned a Luger nine-millimeter semi-automatic handgun, but testified he kept it in his car wedged between the center console and the passenger-side seat. Appellant admitted he lied to the police when he was questioned on the day of the shooting, but only because he was still "panicking" about accidentally shooting Ashley. Appellant testified he went to Ashley's house sometime in the early morning. Appellant denied he put the gun in his pocket as he walked towards the front door. Ashley came outside, they talked for a few minutes, then he drove Ashley to Rochester Park where they had sex in the car. Appellant testified that although Ashley weighed over 250 pounds and he weighed 240 pounds at that time, they had sex inside the car and not outside in the park. Appellant denied he had anal sex with Ashley. After they "smoked and talked" a few minutes, he drove Ashley home. Later that morning, appellant drove back to Ashley's house because he wanted to have sex again. He pulled into the driveway and honked his horn. Ashley came outside and got into the car. Ashley did not say anything about arguing with her mother about going out again. They drove to Rochester Park and got ready to have sex in the car again. Ashley's hips spanned the width of the passenger seat and even touched the console on one side. The gun was wedged on the side of the passenger seat. As Ashley reclined the seat back, she asked appellant to move the gun "out of the way." Appellant grabbed the gun and it accidentally discharged, breaking the passenger-side window. Appellant apologized to Ashley, then noticed she was bleeding. Appellant panicked. When he got out of the car and opened the passenger door, Ashley fell out of the car. Appellant got back in the car and fled. Appellant testified he did not remember the gun touching Ashley's skin. The gun accidentally discharged as he moved it from between the console and passenger seat to the back seat. After the shooting, appellant drove "to a place off Ledbetter" and tried to hide the car in "some water." Appellant testified he tossed the gun out of the car somewhere between where Ashley's body was found and where the car was found. After getting rid of the car, appellant walked to 3100 Mallory, where he stayed in a garage that had been converted into living quarters located behind the house. About ten hours after the shooting, appellant called 911 and reported his car was stolen. Officers arrived a short time later and arrested him. Appellant testified he did not intend to shoot Ashley, and that at the time of the shooting, he was on deferred probation for unlawful carrying of a weapon and was not supposed to have a gun. 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); Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004). 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. Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006); see also Marshall v. State, No. AP-75048, 2006 WL 3733198, *5 (Tex.Crim.App. Dec. 20, 2006). 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.). The State was required to prove beyond a reasonable doubt that appellant (1) knowingly or intentionally caused the death of Ashley Simpson by shooting her with a firearm, a deadly weapon, or (2) intended to cause serious bodily injury to Ashley Simpson and committed an act clearly dangerous to human life, i.e. shooting her with a firearm, that caused her death. See Tex. Pen. Code Ann. § 19.02 (Vernon 2003). The jury was instructed it could find appellant guilty of murder or guilty of manslaughter or criminally negligent homicide, as included in the indictment. See Tex. Pen. Code Ann. §§ 19.04, 19.05 (Vernon 2003). Discussion
Appellant argues the evidence is legally and factually insufficient because the shooting was accidental. Appellant asserts the physical evidence shows Ashley was reclining in the passenger seat when the gun discharged, striking her in the neck, and that gunshot residue found on the bottom of the driver's seat indicates the gun was held down low and discharged in an upward direction. The State responds that the evidence is legally and factually sufficient to support the conviction because intent can be proved by circumstantial evidence and appellant admitted he caused Ashley's death. There was conflicting evidence. The medical examiner testified Ashley sustained a contact gunshot wound to the neck, meaning the gun was touching her skin when it was fired. Appellant testified he accidentally shot Ashley when he tried to move the gun, which he did not remember was touching her skin. Lakisha, one of appellant's girlfriends, testified that in July 2004, appellant threatned to kill Ashley if Ashley went to the police about an alleged incident where appellant threatened one of her relatives with a gun. Appellant denied making the threat. After the shooting, appellant fled the scene and disposed of the gun and his car, then hours later made a false report to the police that his car had been stolen. When questioned, appellant admitted he had been with Ashley earlier that morning, but denied any involvement in the shooting. It was the jury's function to resolve any conflicts in the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); see also Johnson, 23 S.W.3d 1, 9 (Tex.Crim.App. 2000). The jury is free to accept or reject any and all of the evidence presented by either side. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). We may not substitute our own determination for that of the jury. Ortiz v. State, 93 S.W.3d 79, 87-88 (Tex.Crim.App. 2002); Scott v. State, 934 S.W.2d 396, 399 (Tex.App.-Dallas 1996, no pet.). We conclude the sum total of the evidence is sufficient to support a rational jury's finding beyond a reasonable doubt that appellant knowingly or intentionally caused the death of Ashley Simpson by shooting her with a firearm, and is legally and factually sufficient to support appellant's murder conviction. See Watson, 204 S.W.3d at 415; Lane, 151 S.W.3d at 191-92. We resolve appellant's issues against him. MICHAEL J. O'NEILL, JUSTICE.