Opinion issued February 12, 2004.
In The
Court of Appeals
For The
First District of Texas
NO. 01-03-00144-CR
CHARLES RAY MITCHELL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 228th District Court
Harris County, Texas
Trial Court Cause No. 913551
MEMORANDUM OPINION
Appellant, Charles Ray Mitchell, was found guilty by a jury of murder following his plea of not guilty. The jury assessed punishment of 99 years in confinement. Appellant asserts that the evidence is legally and factually insufficient to support his conviction for murder, that he received ineffective assistance of counsel at the guilt/innocence phase of trial, and that the prosecutor committed fundamental error by commenting on appellant’s failure to testify. We affirm.
BACKGROUND
On May 2, 2002, appellant was at “Jake’s” house, speaking to Patrick Trigg about Keith Williams, the complainant. Appellant told Trigg that he wanted to rob Williams and that Williams was an easy target. Appellant had previously had verbal altercations with Williams, according to Williams’s girlfriend Tiffany McKenzie, but these altercations had not been physical. Walter Tyler, who was also present at the house, testified that appellant said that “he was going to get him [Williams]” and that he repeated this statement more than once. Tyler also testified that he saw a small handgun lying on the console of the vehicle appellant was driving earlier in the week. Appellant remained at Jake’s house until the early morning of May 3, 2002.
Williams was a drug dealer who sold drugs in front of his house. He also had a job painting and hydro-blasting because his girlfriend, McKenzie, did not want him selling drugs. Williams picked McKenzie up from work at midnight on May 3. He was driving her car. Except for McKenzie, only Williams drove this car. After Williams picked McKenzie up from work, they visited a friend of Williams and then proceeded to Williams’s house. McKenzie went to bed after they arrived while Williams played a video game downstairs. McKenzie testified that her car was parked outside when she went to bed.
That night, Patrick Sue Scott was sitting on the stairs outside her apartment. Scott heard a car going around and heard Williams tell the occupants of the car to “Get the fuck on.” She did not see anyone else outside with Williams. Sometime between 3:00 and 4:00 a.m., she heard a gunshot coming from near Williams’s house. After the gunshot, Scott heard two different sounds, one that sounded like a trunk closing and another that sounded like a door slamming shut. After she heard these sounds, Scott looked toward Williams’s house and saw McKenzie’s car drive off. Scott noted that the car had a white styrofoam cup on its roof and that Patrick Trigg was chasing it on a bicycle, trying to stop the driver.
Milton Herbert, another of Williams’s neighbors, also heard the gunshot. He testified that he had seen Williams standing with someone outside of Williams’s house. Herbert testified that, before the gunshot, he believed that it had been about 20 minutes since he had last seen Williams. He believed that the gunshot came between 2:30 and 3:00 a.m. and thought that it sounded like the shot was fired from a small caliber handgun. Milton waited for around 10 to 15 minutes before going outside after the gunshot. When he went outside, Milton saw McKenzie’s car speeding away in a manner that indicated to Milton that Williams was not driving. Milton was familiar with Williams’s driving and knew that Williams always drove the car “slow and easy.” He also noted that the driver of the car was wearing a white shirt, which was different than the red shirt Williams was wearing when Milton saw him earlier.
Trigg, who was visiting a friend after leaving Jake’s house, also heard the gunshot. He also believed that it came from a small caliber gun. Trigg made his way to Williams’s house on a bicycle. When he neared Williams’s residence, he saw McKenzie’s car coming out of the driveway with a cup on the roof of the car. Trigg testified that he chased the car to tell the driver that the cup was on top of the vehicle. When the car stopped, appellant stepped out of the car and disposed of the cup. He told Trigg that he had the car so he could make a drug deal for Williams. Trigg testified that he was surprised to see appellant driving the car since he knew that Williams would not allow someone else to drive the car. Shortly thereafter, Trigg saw appellant walking toward Jake’s house. Trigg testified that he told appellant “I hope you ain’t did what you say you was going to do.” Appellant remained silent. Appellant’s girlfriend, Jacquelyn McClennie, picked him up shortly after he reached Jake’s house.
McClennie testified that she usually picked appellant up from Jake’s house at about midnight or 1:00 a.m. if he did not call her. When she arrived at about 12:30, he was not there and the street was deserted. McClennie drove through the neighborhood, looking for appellant. She returned to Jake’s house and found appellant standing outside. When McClennie asked appellant where he had been, he did not offer an explanation and just mumbled. Appellant told McClennie to drive him to a nearby motel. She did so, and appellant took keys out of his pocket and got into McKenzie’s car. When asked about the car, appellant stated that some guy owed him 20 dollars and that he was upset about the debt, so he was going to burn the car. Appellant then followed McClennie to a gas station and filled a bucket with gasoline.
McClennie testified that appellant instructed her to lead him to an abandoned house that they both knew. While driving to this house, McClennie noted that appellant was no longer following her. As she backtracked, searching for appellant, she saw Williams’s car on fire. Appellant came running from a nearby wooded area and got into McClennie’s car. According to McClennie, appellant smelled like smoke and fire.
Sometime before 7:00 a.m. on May 3, 2002, the Houston Fire Department informed the Houston Police Department of a possible homicide. The fire department had put out the fire on McKenzie’s car and had found a charred body in the trunk. They were able to get the registration of the car and determine that McKenzie was the owner. The medical examiner’s office determined that Williams died from a gunshot wound to the head from a small caliber weapon. Officer Gugnall, who conducted a crime scene investigation around Williams’s house, found what appeared to be blood on the side of the house and a small pool of blood on the ground.
Alton Diggles testified that the day after the Williams’s death, appellant was near the crime scene. He further testified that appellant told him that appellant had dropped something and then appellant picked something up off of the grass, closed his hand, and left.
On May 6, 2002, appellant was interviewed by Detective Lance Cook and gave both an oral and a written statement. He denied involvement with Williams’s death, stating that he never drove Williams’s car, and that someone from Baytown might have been involved in Williams’s death. In his statement, he mentioned that at about 8:00 p.m. on May 3, people had told him that they saw in the news that Keith had been “burnt up in his car.” Dr. Veronique Delattre, the chief forensic dental consultant for the Harris County medical examiner’s office, testified that Williams was not identified via his dental records until May 6. Cook testified that he was not aware of any news coverage of the case on May 3. Appellant also mentioned that there was blood on the side of Williams’s house, in his statement.
DISCUSSION
Legal and Factual Sufficiency
Appellant, in his first point of error, asserts that the evidence is legally insufficient to support his conviction for murder. Specifically, appellant argues that the State failed to prove that he had the requisite intent to kill or cause serious bodily injury to the complainant by shooting him with a firearm, but only proved that appellant had the intent to burn the car of the complainant. Appellant, in his second point of error, asserts that the evidence was factually insufficient to support a finding that he intentionally and knowingly committing murder.
Standard of Review
In reviewing the evidence on legal sufficiency grounds, we view the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). In reviewing the evidence on factual sufficiency grounds, all of the evidence as a whole must be reviewed neutrally, not in the light most favorable to the prosecution. Clewis v.State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). After reviewing the evidence, the evidence will not be deemed factually insufficient unless (1) it is so weak as to be clearly wrong and manifestly unjust or (2) the adverse finding is against the great weight and preponderance of the available evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). However, in a factual sufficiency review, the appellate court should not substitute its own judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex.Crim. App. 1996). Under both legal and factual sufficiency, the jury is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given to the witnesses’ testimony. Penegraph v. State, 623 S.W.2d 341, 343 (Tex Crim. App. 1981). Intent may be inferred from the acts and conduct of the defendant. McGee v. State, 774 S.W.2d 229, 234 (Tex. Crim. App. 1989).
Appellant did tell Cook that he did not drive McKenzie’s car and that he did not shoot Williams. However, appellant made several comments to witnesses showing hostility toward Williams and had possession of a small caliber firearm. He was seen leaving Williams’s residence in McKenzie’s car after a shot was fired and two slamming sounds were heard. Appellant set the car on fire. Williams’s body was found in the trunk. Appellant told two different stories to witnesses concerning his possession of McKenzie’s vehicle that night. Appellant returned to the area where the crime was committed and picked something off the ground. Also, appellant had knowledge that would only be available to a person who knew what had occurred.
A rational trier of fact could find that this evidence supports a finding beyond a reasonable doubt that appellant had the requisite intent to kill Williams by shooting him with a firearm as stated in the indictment. Further, given all the evidence as a whole, we do not find that this evidence is so weak as to be clearly wrong or manifestly unjust, nor do we find that the jury’s finding is against the great weight and preponderance of the evidence. We overrule appellant’s first and second points of error.
Improper Jury Argument
Appellant, in his fourth point of error, asserts that the prosecutor committed fundamental error by commenting on appellant’s failure to testify at trial.
The prosecutor, in his closing, stated:
“Abraham Lincoln once said that it’s better to remain silent and be thought a fool than to open your mouth and remove all doubt. Because if there’s any types of gaps you might have, look at his statement. He knows about the blood ahead of time. He knows the identity of the body in the trunk ahead of time. Either he’s the killer or he’s a psychic and the La Porte Police Department needs to hire him to help them solve all these–.”
The defense then objected to the sidebar remark, which was sustained as to the remarks of appellant being a psychic. No objection was made based on any reference to appellant’s failure to testify. We overrule appellant’s fourth point of error.Ineffective Assistance of Counsel
Appellant, in his third point of error, asserts that his counsel was ineffective at the guilt/innocence stage for failing to object to the prosecutor’s reference to his failure to testify as indicated supra.
The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986); Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.). Appellant must show that (1) counsel’s performance was so deficient that he was not functioning as acceptable counsel under the Sixth Amendment and (2) but for the counsel’s error, the result of the proceedings would have been different. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Thompson, 9 S.W.3d at 812; Gamble, 916 S.W.2d at 93.
It is the defendant’s burden to prove ineffective assistance of counsel. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Gamble, 916 S.W.2d at 93. A defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Thompson, 9 S.W.3d at 813; Gamble, 916 S.W.2d at 93.
The record is silent as to why appellant’s trial counsel did not object to the prosecutor’s remarks in his closing. To find that trial counsel was ineffective based on the asserted grounds would call for speculation, which we will not do. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). We overrule appellant’s third point of error.CONCLUSION
We affirm the judgment of the trial court.
Sam Nuchia
Justice
Panel consists of Justices Nuchia, Alcala, and Hanks.
Do not publish. Tex. R. App. P. 47.2(b).