Opinion issued July 24, 2003
In The
Court of Appeals
For The
First District of Texas
NO. 01-02-00383-CR
____________
BYRON DEMON MOORE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 179th District Court
Harris County, Texas
Trial Court Cause No. 873,265
MEMORANDUM OPINION
A jury found appellant, Byron Demon Moore, guilty of murder and assessed his punishment at confinement for 87 years. In five points of error, appellant contends that the evidence was legally and factually insufficient to support his conviction and that the trial court erred in denying his motion to exclude the testimony of two witnesses who allegedly violated “the Rule.”
We affirm.
Facts and Procedural Background
During the early morning hours of April 1, 2001, following an argument in the parking lot of the apartment complex where appellant lived, appellant fatally shot the complainant, Alan Thomas, in the face.
Danilo Cabrera, who lives at the apartment complex, testified that he was awakened that morning by the sound of voices arguing in the parking lot. Cabrera, who wears glasses for reading but does not wear them to drive, testified that he looked out his window and saw three black men. One of the men, later identified as appellant, left the parking lot while the other men got inside a Chevrolet Suburban, which began to back up. Appellant then returned to the parking lot carrying a handgun and pointed the gun at the passenger side of the Suburban. Cabrera testified that he saw a passenger, later identified as the complainant, get out of the Suburban while appellant continued to point the gun at him. Appellant then shot the complainant once, and the complainant fell to the ground. Cabrera testified that the complainant did not hit or touch appellant before the shooting. Cabrera then saw appellant “run away with the gun in his hand.”
Malcum Evans, who also lives at the apartment complex, testified that his wife woke him up that morning and that, when he looked out his window, he saw four black men arguing in the parking lot. Evans testified that he saw a man, later identified as appellant, shoving another man. Evans then saw appellant leave and heard him say, “Be here when I get back. I’m going to smoke all of y’all.” About two minutes later, Evans heard a white female say, “No, Byron, no.” Evans then saw appellant return with a handgun. Appellant, with his arm extended, pointed the gun at the passenger side of the Suburban and said, “Bitch, you mine.” A man, later identified as the complainant, then got out of the Suburban. Appellant lowered his arm, raised it again, and shot the complainant one time. Evans testified that the complainant never touched or struggled with appellant at the time of the shooting.
Embry Ball testified that he lived at the apartment complex at the time of the shooting and was awakened by the sound of three voices arguing. Ball heard one of the voices say, “Get your hands off me,” and, a few seconds later, heard a single gunshot. Ball’s wife called 9-1-1.
Houston Police Department officers arrived at the scene of the shooting and, after questioning several witnesses, arrested appellant at his apartment. Houston Police Officer D. C. Lambright testified that, at the time of appellant’s arrest, appellant did not attempt to flee and did not struggle. Houston Police Sergeant W. Allen testified that, at the apartment complex, after appellant was placed in a patrol car, appellant, who was visibly upset, said “He shouldn’t have grabbed me.”
Houston Police Sergeant B. Smith testified that, at the police station, he interviewed appellant, and appellant voluntarily gave Smith two written statements concerning the shooting. Smith testified that, at the beginning of the interview, appellant “cried and showed some emotion,” and, in Smith’s opinion, appellant displayed “genuine remorse” for what had happened. Smith described appellant’s manner during the interview as “conversational, very lucid, quiet, but very responsive, very cooperative.”
Appellant’s first statement reads, in part, as follows:
Last night I was with Tyerick [sic] [Walker], Terry Burk, and [the complainant]. . . . We were in two different cars and we were running around going to different topless bars. . . .
. . . .
We dropped Terry off to get his Suburban and [the complainant] got in with him. We then drove to my apartment. When we got there I got out of Tyerick’s [sic] car and walked towards Terry’s Suburban. . . . Then [the complainant] started talking to me about a woman.
[The complainant] was mad at me for flirting with one of his women. I asked him which one and he told me “the one you flirt with.” He was mad and cussing. I told him I was going to go in my house and that if he wanted to fight me, he could fight me another day. He got out of the Suburban and as I was walking toward my house, [the complainant] was following me and cursing behind me. I told him to leave and get away from my property. We were in the middle of the parking lot . . . . He shoved me and he wanted to fight. I shoved him back and told him again that I was going inside.
I was turning away to walk to my apartment and I saw him reaching toward his waistline. I didn’t know what he was reaching for so I turned around and pulled my gun and shot at him one time. We were standing close to each other when I shot. Terry grabbed my gun away from me and told me I didn’t need to do that. I just kept walking and went inside my apartment.
About an hour or two later the cops came to my door. I went outside and I saw [the complainant] was laying [sic] on the pavement where I shot him. That was the first I knew that I had hit him. I thought I had shot up in the air.
Appellant’s second written statement reads, in part, as follows:
I gave Sgt. Smith a statement earlier this morning about shooting my friend [the complainant]. That statement was true but there were some things I didn’t put in that statement that I want to add now.
. . . .
I went outside and Tyerick [sic], [the complainant], and Terry were there. I gave [the complainant] the Taurus 9mm. . . .
It was after I had given [the complainant] the 9 that we got into the argument about the girl. . . . At some point during the argument [the complainant] gave the Taurus back to me. I don’t remember if I took it back into my apartment before or after I shot [the complainant]. I do remember that I told him and everyone else to leave my property. I told them all several times to leave, to get out, to leave me alone, that I had kids inside. I never argued with Terry or Tyerick [sic], but I told them all to leave.
Even though [the complainant] had given me the Taurus back, when he reached towards his waistline, I didn’t know if he had a gun of his own, a knife, or what.
Harris County Assistant Medical Examiner Dr. Roger Milton testified that the autopsy performed on the complainant indicated that he died as a result of a single gunshot wound to the face. The bullet entered the complainant’s cranium at the bridge of his nose and followed a “slightly upward” trajectory out through the back of his head. It was Dr. Milton’s opinion, that, at the time of the shooting, the gun was “aimed directly toward the center of the deceased’s face.” Based on a stippling pattern of gunpowder particles observed on the complainant’s face, it was Dr. Milton’s opinion that the gun was fired at a range of between 18 and 24 inches from the complainant. Atomic absorption testing performed on the hands of both appellant and the complainant was “inconclusive.”
Tyvis Moore, appellant’s brother, testified that he witnessed the shooting in the parking lot. After appellant and the complainant began arguing, appellant went inside his apartment and returned to the parking lot with two guns. Appellant was holding one gun in each hand, with his elbows bent, holding the guns “straight up in the air.” When appellant approached the passenger side of the Suburban, the complainant, who was sitting inside, got out and asked appellant, “What are you going to do, take me away from my niece, or my child?” Using both hands, the complainant then tried to grab the gun from appellant’s right hand and said, “Give me the fucking gun.” Moore testified that the gun in appellant’s right hand “went off,” and the complainant fell to the ground. After the shooting, Moore screamed at appellant, “What did you do that for?” Moore described appellant’s demeanor after the shooting as “dazed.”
TyEric Walker testified that, at the time of the shooting, he was with the men in the parking lot but “wasn’t really paying attention” to the argument between appellant and the complainant. At some point, appellant went inside his apartment, returned, and walked over to the passenger side of the Suburban. Walker did not remember whether appellant was carrying anything in his hands when he returned to the parking lot. After appellant returned, Walker saw appellant and the complainant “wrestling” and holding each other by the arms and hands for about one or two minutes. Walker then looked away to light a cigarette and heard a gunshot. When Walker looked back, he saw the complainant fall to the ground. Walker then walked over to the complainant’s body, saw what had happened, and left with Tyvis Moore in Moore’s car. Walker admitted that, when he was later questioned by the police about the shooting, he gave the false name “TyEric Moore” to “cover up” for Tyvis Moore because he knew Tyvis was wanted for outstanding warrants. Walker also testified that, in his opinion, all of the men in the parking lot that evening were intoxicated.
Terry Burks testified that he was the driver of the Suburban in the apartment complex parking lot on the night of the shooting. After appellant and the complainant began arguing, appellant left the parking lot and went to his apartment. When Burks and the complainant got into the Suburban, appellant returned and pointed two guns at the Suburban. The complainant then got out of the Suburban on the passenger side, and Burks got out on the driver’s side. Burks saw appellant and the complainant talking face-to-face “within arm’s reach of each other.” Appellant was still holding the guns; “One was about 9:00 o’clock, and one was about 1:00 or 2:00 o’clock.” Burks heard, but did not see, the fatal gunshot. Before the gunshot, Burks did not see the complainant make any movement toward appellant, and appellant and the complainant were “just standing there.” Burks did not see appellant extend either arm toward the complainant in a horizontal position. When he heard the gunshot, Burks ducked behind the Suburban, and when he stood up, he saw the complainant lying on the ground. Appellant was standing over the complainant’s body, apologizing. Appellant then put a gun up to his own head, but Burks told him to “just calm down” and took the gun from appellant.
Appellant testified that he had known the complainant for about five years and thought of him as “my little brother.” After an evening of drinking, appellant and the complainant, Tyvis Moore, Terry Burks, and TyEric Walker returned to the parking lot of the apartment complex where appellant lived. Appellant and the complainant then began to argue about the complainant’s accusation that appellant had been “flirting” with the complainant’s girlfriend. When appellant attempted to reconcile with the complainant by giving him a hug, the complainant pushed appellant away, and the two men “shoved each other a couple of times.” Appellant then told all of the men to “get the fuck off my property” and went inside his apartment. Appellant testified that, at the time he went inside, he had two 9 millimeter pistols, one tucked in the front waistband of his pants and the other tucked in the back waistband.
Appellant further testified that he subsequently came out of his apartment carrying the two guns, one in each hand, with his arms bent at the elbows, pointing the guns up. Appellant testified that he did not check to see if the guns were cocked or if their safety mechanisms were engaged. Appellant denied pointing the guns at the Suburban. When appellant approached the passenger side of the Suburban, the complainant continued to accuse him of “flirting” with the complainant’s girlfriend, and the complainant then “jumped out” of the Suburban. The complainant subsequently “lunged” at appellant and, with both hands, grabbed appellant’s right hand. Appellant testified that the next thing he remembered was “the gun going off.” Appellant denied that he intended to fire the gun or kill the complainant.
Appellant testified that, as a result of the shooting, his mental state at the police station was “blank,” and he was not thinking clearly. Appellant described his feelings at the time of his written statements as “tired,” “hysterical,” and “mentally unstable,” and he testified that, at the time he signed his statements, he was “not in my right frame of mind.”
The jury subsequently returned a general verdict, finding appellant guilty of murder “as charged in the indictment.”
Sufficiency of the Evidence
In his first and second points of error, appellant argues that the evidence was legally and factually insufficient to show that he “intentionally and knowingly caused the death of the complainant.” See Tex. Pen. Code Ann. § 19.02 (Vernon 2003). In his third and fourth points of error, appellant argues that the evidence was legally and factually insufficient to show that he intended to and did cause the complainant’s death by “intentionally and knowingly committing an act clearly dangerous to human life.” Id.
We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine if any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). Although our analysis considers all evidence presented at trial, we may not re-weigh the evidence and substitute our judgment for that of the fact finder. Id.
The factual sufficiency of the evidence is reviewed by examining all of the evidence neutrally and asking whether the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury’s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).
Here, the State presented evidence, set forth above, in the form of testimony from lay and expert witnesses and written statements signed by appellant, sufficient to permit a rational jury to conclude beyond a reasonable doubt that appellant “intentionally and knowingly” shot and killed the complainant. Danilo Cabrera and Malcum Evans both testified that they saw the shooter point a handgun at the passenger side of the Suburban, and Evans heard appellant say “Bitch, you mine.” When the complainant got out of the Suburban, both Evans and Cabrera saw appellant shoot the complainant without any struggle. Dr. Milton testified that it was his opinion that the gun was aimed at the center of the complainant’s face and was fired from 18 to 24 inches from the complainant. We hold that, viewed in the light most favorable to the verdict, the evidence was legally sufficient to support a finding by the jury that appellant intentionally and knowingly caused the complainant’s death. Similarly, we hold that the evidence was legally sufficient to support a finding by the jury that appellant caused the complainant’s death by intentionally and knowingly committing an act clearly dangerous to human life.
We overrule appellant’s first and third points of error.
In regard to the factual sufficiency of the evidence, appellant notes that he testified that he did not point his gun at the Suburban and the complainant jumped out of the Suburban and “lunged” at him. Appellant testified that he did not intend to shoot the complainant and that his gun “went off involuntarily” while the complainant struggled with him. He points to the testimony of Moore, Walker, and Burks to corroborate his version of the shooting. He also directs us to various inconsistencies in the testimony of the State’s witnesses.
However, viewing all of the evidence neutrally, we hold that an examination of the record does not demonstrate that the proof of guilt was so obviously weak as to undermine confidence in the jury’s determination, or that the proof of guilt was greatly outweighed by contrary proof. Although often contradictory, the evidence presented at trial was not one-sided, and the jury, as fact finder, was entitled to resolve conflicts in the evidence against appellant. Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997) (“What weight to give contradictory testimonial evidence is within the sole province of the jury because it turns on an evaluation of credibility and demeanor.”). A jury decision is not manifestly unjust merely because the jury resolved conflicting views of evidence in favor of the State. Id at 410.
Accordingly, we hold that the evidence was factually sufficient to support a jury finding that appellant intentionally and knowingly caused the complainant’s death. In addition, we hold that the evidence was factually sufficient to support a jury finding that appellant caused the complainant’s death by intentionally and knowingly committing an act clearly dangerous to human life.
We overrule appellant’s second and fourth points of error.
Violation of “the Rule”
In his fifth point of error, appellant argues that the trial court erred in permitting two witnesses to testify after it was established that they had violated the trial court’s instruction that, during the trial, they were not to listen to the testimony of other witnesses or discuss the case with anyone. See Tex. R. Evid. 614.
During the course of trial, on appellant’s request, the trial court conducted a hearing outside the presence of the jury to determine whether any witnesses had violated Rule 614. At this hearing, Christine Hamilton, the complainant’s girlfriend, testified that, during the trial, she was waiting in the hallway outside the courtroom near two other witnesses, Alondria Brewer and Anthony Thomas. As they were waiting to testify, Alisa Thomas, the complainant’s sister, came out of the courtroom during Danilo Cabrera’s testimony. Alisa Thomas, who was not sworn in as a witness and did not testify, then described Cabrera’s testimony to Alondria Brewer and Anthony Thomas concerning where and how appellant was standing and holding the gun at the time of the shooting. According to Hamilton, Thomas said that Terry Burks had “lied” with regard to how the shooting occurred. Hamilton testified that she did not respond to Thomas’s statements.
Alondria Brewer, a friend of the complainant and Terry Burks’s girlfriend, testified that, after she heard Thomas’s comment that Terry Burks had “lied” about how the shooting occurred, Brewer became defensive and moved to another part of the hallway because Burks was her boyfriend. Brewer testified that she did not hear anything else Thomas may have said concerning the trial testimony.
The record supports appellant’s contention that the witnesses complained of violated Rule 614. We review the trial court’s decision to permit the testimony of a witness who has violated the rule for abuse of discretion. Bell v. State, 938 S.W.2d 35, 50 (Tex. Crim. App. 1996). In reviewing the trial court’s decision to allow the testimony, we look at whether or not the defendant was harmed or prejudiced by the witness’s violation by focusing on two criteria: (1) whether the witness actually conferred with or heard testimony of other witnesses, and (2) whether the witness’s testimony contradicted the testimony of a witness from the opposing side or corroborated testimony of a witness he had conferred with or heard. Id.
Appellant argues that both Brewer and Hamilton testified that they were told, at the scene of the shooting, that appellant shot the complainant. Appellant argues that this testimony gave the jury the false impression that appellant intentionally, not accidentally, shot the complainant. However, at trial, as noted above, appellant did not contest the fact that he shot the complainant. Here, both of the witnesses challenged by appellant testified that they did not see the shooting and did not discuss the shooting with appellant. Neither of the witnesses testified about the specifics of the shooting itself and did not contradict or corroborate the testimony of any of the witnesses to the shooting. Based on the record, we cannot conclude that appellant was harmed or prejudiced by the witnesses’ violation of the rule. Accordingly, we hold that the trial court did not abuse its discretion in permitting Brewer and Hamilton to testify.
We overrule appellant’s fifth point of error.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Justices Taft, Jennings, and Hanks.
Do not publish. Tex. R. App. P. 47.2(b).