No. 05-07-01317-CR
Opinion Filed March 6, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F06-62118-WQ.
Before Chief Justice THOMAS and Justices FRANCIS and MURPHY.
Opinion By Chief Justice THOMAS.
A jury convicted Derrick Joseph Moffett of murder and assessed punishment, enhanced by a prior felony conviction, at seventy-five years' imprisonment and a $10,000 fine. 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.
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). A review of the evidence for legal sufficiency does not involve a re-weighing of the evidence or a substitution of the jury's judgment. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). 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.). In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the fact-finder's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App.), cert. denied, 128 S.Ct. 282 (2007); Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), cert. denied, 128 S.Ct. 87 (2007). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to be given to contradictory testimony. Lancon v. State, 253 S.W.3d 699, 705 (Tex.Crim.App. 2008). To obtain a conviction for murder, the State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly caused the death of Kelly Burke by shooting him with a firearm, a deadly weapon. See Tex. Penal Code Ann. § 19.02(b)(1) (Vernon 2003). Evidence
On February 6, 2006, Dallas police officer Majusta Allen was on a service call at an apartment complex located on Audelia, behind the Bent Creek apartment complex. Allen testified that while talking to individuals in the parking lot, he heard about ten gunshots in quick succession from the direction of Bent Creek. It was approximately 2:30 a.m. He did not hear anyone scream. Allen immediately went to Bent Creek, where several people pointed to one of the buildings and said, "[H]e's laying there." Allen found a man, later identified as Kelly Burke, lying in the "breezeway" landing on the second floor of building number ten. Although Burke was already dead, Allen ordered an ambulance to the scene. Allen saw a blood trail leading up the stairway towards the third floor, spent shell cartridges, and a gun magazine with ammunition in it lying on the steps. Allen testified he arrived at the scene less than one minute after hearing the gunshots. Dr. Jill Urban, the medical examiner, testified Burke sustained six gunshot wounds to his body, including in his left thigh, right thigh, right buttock, left side of the back, right upper back, and back of the head on the left side. The gunshots went from back to front and downward, which indicated the shooter was behind Burke. Toxicology tests showed Burke's blood alcohol concentration was .12, and there was the presence of an active ingredient in marijuana in his blood. There was no gunshot residue on the skin around any of the wounds or on Burke's hands. Urban determined that Burke died as the result of multiple gunshot wounds. Marquita Davis testified she saw appellant shoot Burke while they were both in Davis's apartment. Davis and her one-year-old son moved to Dallas from New Orleans in January 2006 at the urging of Davis's stepsister, Jawanda Harris. Harris was appellant's girlfriend. Davis stayed at Harris's and appellant's apartment in the Bent Creek complex for about two days. When one of Harris's relatives decided to move back to New Orleans, Davis and her son took over that apartment, which was on the third floor of building ten, number 1012. A few days later, Davis met Burke, who lived in an apartment complex down the street from Bent Creek. Davis asked Burke to move in with her, and he did. Around February 2, 2006, Davis went to a gun show in Mesquite with Harris and appellant. After appellant asked Harris to buy him a gun, Harris purchased a Glock .40-caliber handgun and a "long" ammunition clip. On February 5, 2006, Burke and his friends had a barbecue outside for Super Bowl Sunday. Davis did not participate in the barbecue. At that time, Harris and appellant had moved from the complex into a house. Davis called Harris to ask for a ride to a grocery store, but could not reach her. Davis made several calls to Harris throughout the day, leaving a message each time. Burke came in and out of Davis's apartment all day checking to see if Harris responded to Davis's calls. Burke appeared to get more upset each time Davis said she had not yet heard from Harris. By the evening hours, Burke had been drinking all day and was "a little tipsy." At one point, Burke argued with Davis, then told her to pack up all his clothes because "they could still be together, but he was not going to live there anymore." Davis testified Harris finally returned her call at about 11:45 p.m. Harris said she was on her way to get Davis, but Harris did not arrive until the early morning hours on Monday, February 6, 2006. Davis gathered Burke's clothes from a closet and put them in the living room. After dressing herself, she began dressing her son. Davis was in a "sunroom" that she used as a second bedroom. The sunroom was adjacent to the living room. While Davis dressed her son, Harris walked into Davis's apartment and stood at the doorway of the sunroom waiting for Davis. Three minutes after Harris had arrived, appellant walked in. Appellant said, "[M]an, they out there looking crazy. They trippin' outside." A few seconds after appellant arrived, Burke and a man named Terrance Staples came into the apartment. Burke began "fussing" at appellant, using foul language. Davis yelled at Burke and appellant to go outside because her son was there. Appellant said, "[M]an, you trippin'." Staples said to Burke, "[Y]eah, man, you trippin'. Come on." Burke, who stood in the living room near the door with his hands "in his clothes," continued shouting at appellant. Appellant, who was standing slightly inside the sunroom, looked at Davis and placed a finger to his lips. Davis believed appellant was saying "don't say nothing." Appellant started shooting a gun towards Burke. Davis did not see gunfire coming from where Burke or Staples was standing and did not see either of them with a gun. Davis saw a gun in appellant's hand and saw gunfire coming from where appellant was standing. Burke and Staples ran out the front door. Davis grabbed her son and began screaming. When she looked up, appellant was not there, and Harris was walking out the door. Davis testified she felt "in a panic" and did not know what to do. She grabbed her son's bag and ran out the front door with her son. By the time she ran down the steps, she saw Harris and appellant driving away. Appellant stopped, and Harris told Davis to get in the car. Davis got into the back seat. Appellant drove around for awhile. While in the car, appellant said he was "sorry that happened" and that he hoped he dropped the gun clip in the car and not at the scene. Appellant drove to his house. They stayed at the house for thirty minutes, then Davis saw appellant wrap a towel around a gun and put it under the hood of the car. They all got back in the car. Appellant drove around, eventually stopping at an apartment complex. Davis testified she did not know where appellant's house or the complex where appellant stopped after the shooting was located because she had only been in Dallas for about three weeks. Appellant and Harris went into an apartment while Davis waited in the car. One hour later, appellant and Harris returned to the car. Appellant said, "[I]t's not on the news yet." At one point while driving around, appellant was pulled over by a police officer due to faulty back lights. The officer let them go. Appellant eventually dropped Davis off across the street from a hospital. Appellant told Davis to say "I don't remember anything. I don't know nothing" if questioned. Davis went into the hospital, called her mother in Houston, then called the police. An officer took Davis to the police station. Davis testified she initially lied to a detective about the shooting because she was nervous, afraid, and did not know what to do. The only people in Dallas she knew were Burke, Harris, and appellant. Davis admitted the statements she made to a detective were different than her testimony before the jury. Davis denied making several statements to the detective, some of which appeared in her written statement, including: (1) Burke was harassing appellant and Harris because they were from New Orleans, (2) appellant and Harris moved from the complex because the "MOB" gang did not want anybody there from New Orleans, (3) Burke said he would kill appellant if appellant did not leave the complex, (4) Burke was "digging" in the back of his pants like he was about to pull out a gun. While being interviewed by a detective, Davis identified a photograph of appellant from a photographic lineup as the person she saw shoot Burke. Detective Richard Duggan testified that when he interviewed Davis, she seemed scared and reluctant initially, but eventually told him what happened before and during the shooting. Duggan typed out the statement as Davis talked. Before signing the statement, Davis swore that everything contained in it was true. While talking to Duggan, Davis said she did not actually see the gun in appellant's hand. Davis said appellant told her he was tired of Burke "and his boys" harassing him and Harris for the "last couple of days." Davis said Burke always harassed Harris and appellant because they were from New Orleans. Davis said Burke was digging in the back of his pants like he was about to pull out a gun right before appellant starting shooting. Davis also said Burke had been drinking that day and he was drunk. After talking with Davis, Duggan obtained a photograph of appellant and created a lineup. Davis identified appellant's photograph as the person she saw shoot Burke. Duggan prepared an arrest warrant for appellant. On February 28, 2006, Duggan went to Seattle, Washington, because appellant had been arrested there. Duggan found Harris in Seattle hiding out in appellant's sister's apartment. Physical evidence officers found several spent cartridge casings at the crime scene. They found .40-caliber cartridge casings on the stairs, in front of and inside apartment 1012, and in the third-floor hallway. They recovered a fired .40-caliber bullet from apartment 1011, which is next door to 1012. Officers found a Glock magazine lying on the stairs. The magazine had a twenty-nine round capacity. Officers found fifteen live rounds in the magazine and fourteen spent cartridge casings at the scene. All of the casings found were .40-caliber Smith and Wesson Winchester bullets. Sergeant T.R. Mount testified that based upon the location of the casings found and the bullet defects on the stairway leading down, the shooter began firing while inside apartment 1012 and continued into the hallway outside. The actual weapon used in the shooting was never found. Charles Clow, a firearm and toolmark examiner at Southwestern Institute of Forensic Sciences, testified he analyzed fourteen cartridge shells, fifteen unfired cartridges, four jacketed bullets, and one Glock magazine all found at the crime scene, and two bullet jacket fragments and two lead fragments from the medical examiner. Clow determined that all of the fired casings were consistent with Glock-type firearms. Eric Hale testified that while appellant was his cellmate in the county jail, appellant talked about killing a man who called his girlfriend a name. Appellant said he shot and killed the man, but did not tell Hale the man's name. Appellant said after he shot the man, he and his girlfriend left town and went to Houston, then Washington state. They were planning to go to Canada. Hale testified appellant told him about going to a gun show a few days before he killed the man and how his girlfriend bought him the gun and an "extended clip." Appellant never mentioned that the man he shot had a gun or that anyone else had a gun. Hale testified that after appellant left the jail, he had another cellmate who was a good friend of Burke's. Hale and this cellmate talked about Burke's killing. Hale admitted he was on parole at the time he was arrested for two aggravated assault with a deadly weapon charges, and had prior convictions for robbery, burglary of a motor vehicle, and unauthorized possession of a firearm by a felon. Appellant did not present any evidence at the trial. Discussion
Appellant contends the evidence is legally and factually insufficient because Davis's and Hale's testimony was "unbelievable and not credible," no weapon was ever recovered, and the two-hour time gap between when Harris called Davis and when Allen heard gunshots was clearly enough to provide reasonable doubt that appellant killed Burke. Appellant argues that because Davis lived with Burke, and Hale was a "jailhouse snitch" and "not credible," the evidence is insufficient to support the conviction. The State responds that the evidence is legally and factually sufficient to support the conviction. Davis testified she saw appellant shooting at Burke in her apartment, and heard more gunshots after both appellant and Burke left her apartment. After Davis fled the scene with appellant and Harris, she heard appellant say he thought he dropped his gun clip. Davis had seen Harris purchase a Glock .40-caliber handgun and gun clips for appellant a few days before the shooting. Officers found fourteen .40-caliber cartridge casings that were all fired from the same handgun at the crime scene, and a gun clip on the stairs near Burke's body. Although Harris had eventually returned Davis's calls at 11:45 p.m., Harris did not arrive at Davis's apartment until the "early morning hours" on February 6, 2006. Allen heard several gunshots at approximately 2:30 a.m. on February 6, 2006. Although there were conflicts in the evidence presented, it was the jury's function to evaluate the credibility of the witnesses and to resolve any conflicts in the evidence. See Lancon, 253 S.W.3d at 705. We must afford due deference to a jury's determination. See Marshall, 210 S.W.3d at 625. The jury was 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). Viewing the evidence under the proper standards, we conclude it is legally and factually sufficient to support the conviction. See Roberts, 220 S.W.3d at 524; Lane, 151 S.W.3d at 191-92. We overrule appellant's two points of error. We affirm the trial court's judgment.