Opinion issued June 16, 2005
In The
Court of Appeals
For The
First District of Texas
NO. 01-04-00782-CR
____________
DEION DEWAYNE SERGENT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 209th District Court
Harris County, Texas
Trial Court Cause No. 971579
MEMORANDUM OPINION
A jury found appellant, Deion Dewayne Sergent, guilty of the offense of murder and assessed his punishment at confinement for 40 years. In two points of error, appellant contends that the evidence was factually insufficient to support his conviction. We affirm.
Factual Background
Dorothy Frelow, a friend of the complainant’s, testified that, in October or November of 2002, the complainant introduced appellant to Frelow as the father of the complainant’s then-unborn baby, Deirdra, who was born on December 8, 2002. On the evening of March 20, 2003, Frelow, the complainant, and two of their friends, Patricia Orji and “Peaches,” went to Metropolis, a club, to celebrate another friend’s birthday. After spending two hours at the club, Frelow and the complainant returned to the complainant’s one-bedroom apartment, where the complainant lived with her baby and her mother, who were asleep in the dining room. Frelow spent the night, sleeping on an air mattress bed in the complainant’s bedroom.
Frelow further testified that, the next morning, on March 21, 2003, at about 9:00 a.m., she awoke to the sound of Deirdra crying. Frelow also heard appellant and the complainant arguing in the bathroom, which was accessible only through the bedroom. Frelow walked into the living room to tend to Deirdra. Appellant came out of the bedroom, nodded to Frelow, walked quickly to Deirdra in her bassinet, kissed her, and then left the apartment. After appellant left, Frelow went into the complainant’s bedroom to get her glasses and then knocked on the bathroom door, which was closed, to check on the complainant. After receiving no response, Frelow tried to open the door but discovered that it was locked. Frelow explained that, although she was concerned, she thought that the complainant just wanted to be alone. The complainant’s mother also received no response from the complainant when she knocked on the bathroom door. After Frelow called Orji to ask her to come to the complainant’s apartment, Orji arrived, knocked on the bathroom door, and also received no response. Frelow and Orji eventually opened the bathroom door with a screwdriver. Frelow saw the complainant lying in the bathtub, her head leaning to the side toward the faucet, and blood dripping down the right side of her face. After a call for emergency assistance was made, an ambulance and law enforcement officers arrived.
Orji testified that the complainant and appellant occasionally argued and that appellant had no participation in Deirdra’s life after she was born. On the evening of March 20, 2003, while at the club, Orji received a call on her cellular telephone from appellant, who asked about the complainant. After Orji told him that the complainant was at a club, he became upset and hung up. At around 2:00 a.m., the four girls left the club, and, after dropping Peaches off at her house, Frelow, Orji, and the complainant returned to the complainant’s apartment. At around 3:00 a.m., Orji left to stay at another friend’s house. The next morning, on March 21, 2003, at around 9:30 a.m., after receiving a telephone call from Frelow, Orji went to the complainant’s apartment, helped open the bathroom door, and saw the complainant lying in the bathtub. After emergency assistance and law enforcement officers arrived, Orji answered Frelow’s cellular telephone, and appellant, who was at the other end, asked to speak with the complainant. Orji told him that the complainant was busy but that he should come to the complainant’s apartment because someone wanted to speak with him. Orji then handed the telephone to a police officer, who spoke with appellant. About fifteen minutes later, appellant called Frelow’s cellular telephone again, and she again gave the telephone to the police officer.
Houston Police Officer R. Lewis testified that, on March 21, 2003, after being dispatched to the complainant’s apartment, he saw that paramedics were performing CPR on the complainant, who had blood in her hair and who was lying on the bedroom floor just outside of the bathroom. About five minutes later, after the paramedics pronounced that the complainant was dead, Lewis contacted the homicide division and secured the scene. Thereafter, one of the witnesses handed him a cellular telephone, and the person on the other end identified himself as appellant, who said that he “was down the street.” Lewis asked appellant to come to the apartment, and appellant said that he would come. However, in the two to three hours that Lewis was at the scene, appellant never came to the apartment.
Houston Police Sergeant J. Swaim, a homicide division detective, testified that, on May 21, 2003, after arriving at the scene at about 10:05 a.m., he spoke with Frelow, the complainant’s mother, and Orji in the apartment complex’s laundry room, and the witnesses gave him appellant’s picture. The next morning, on March 22, 2003, he and his partner went to appellant’s apartment but were then taken to the apartment of appellant’s grandmother in the same complex, where Swaim found appellant hiding behind a bedroom door.
Harris County Assistant Medical Examiner Dr. A. Lopez testified that she supervised Dr. Lester in conducting the complainant’s autopsy. Lopez observed that the complainant had a gunshot wound on the left side of her head and that the bullet entered the left side of the complainant’s head but did not exit her head. She also did not detect any soot or gunpowder stippling around the gunshot wound. She explained that, depending upon the type of firearm used, if a firearm’s barrel is greater than two-and-one-half to three feet away from the skin when fired, it will not deposit any soot or stippling. She also saw that the complainant had a contusion below her right eyebrow and a small laceration on her inner lip. In her opinion, the complainant’s cause of death was a “penetrating gunshot wound to the head.” During cross-examination, Lopez agreed that it was “possible, but not probable” that a small-caliber firearm had been 18 inches from the complainant when fired and had not deposited soot and stippling. She also agreed that it was possible that the complainant’s wound could have been “caused by two people grappling over a gun and it firing accidentally.”
Houston Police Department firearms examiner D. Stein testified that the bullet that was recovered from the complainant was “consistent in size, style and weight with that loaded in a .25 auto cartridge” and that the bullet had been fired from a handgun. During cross-examination, he agreed that, “if one or two people had their hands on the gun and it fired, that the slide might be kept from going back and chambering another round.” He also testified that since he had “never personally done any testing” or “read specifically about .25 autos,” he could not state that a .25 caliber firearm might not deposit soot and stippling from a distance of 18 to 24 inches away from a gunshot wound. During redirect examination, he testified that he was not able to calculate the distance from the firearm to the gunshot wound because no firearm or ammunition was submitted to him for comparison.
Houston Police Officer J. Wood, assigned to the Crime Scene Unit, testified that, on March 21, 2003, he secured the scene after being dispatched to the complainant’s apartment. He saw a bloodstain pattern on the bathroom’s south wall, which was opposite of the bathtub’s faucet, both above and below the towel bar. He explained that he had received training in evaluating blood spatter evidence. He testified that the blood stain above the towel rack, which was five feet, three inches from the floor, had “characteristics of having a perpendicular or 90 degree impact angle on the wall, meaning that, when it left the source, it flew at a 90 degree angle and struck the surface” and that it would be characterized as “high velocity.” The bloodstain below the towel rack, which was three feet, ten inches from the floor, was indicative of blood striking the wall “not at a ninety degree angle” but “more of a greater angle of impact where the blood was actually in a downward trajectory when it struck the wall.” In his opinion, “the blood spatter on the wall [was] consistent with the [c]omplainant standing with her left side toward the wall [o]n which the blood was found” and that “the blood spatter was indicative of back spatter, meaning when the bullet entered the complainant’s head, it forced blood back out of the wound, impacting the wall at a 90 degree or perpendicular angle, consistent with her height and body position.” During cross-examination, he agreed that it was possible, but “highly unlikely,” that the back spatter from the gunshot wound could have arced in an upward path, reached its peak, and then struck the wall exactly at that peak before starting its downward trajectory.
Appellant testified that, some time in 2002, after being robbed at gunpoint at his apartment complex, he bought a Lorsen .25 caliber automatic firearm from an unidentified man whom he had met while getting off of a bus near the Astrodome. The night before the complainant was shot, on March 20, 2003, appellant went to the complainant’s apartment, but only the complainant’s mother and Deirdra were there. He talked with the complainant’s mother, who said that the baby needed more diapers. He tried to buy some diapers that night, but all the stores were closed. The next morning, on March 21, 2003, at around 9:00 a.m., he returned to the complainant’s apartment and again spoke with the complainant’s mother and gave her some money. He then played with, held, and kissed his daughter. Thereafter, Frelow and the complainant awakened. He spoke with Frelow, who came over and took the baby from him, and appellant went into the bedroom to speak with the complainant about some financial problems and the baby. A little while later, for more privacy, at the complainant’s suggestion, they went into the bathroom. The complainant started “pushing and pulling” appellant, and appellant’s .25 caliber automatic firearm, which was in his pant’s pocket and which had a bullet in the chamber, fell to the floor. He explained that not much pressure was needed to move the safety on the gun. The complainant and appellant then started “tussling over the gun,” and appellant, bending over, grabbed the bottom of the gun, and the complainant grabbed the top of the gun, which was pointed upward. The gun went off, but he did not know whose finger was on the trigger. He saw the complainant fall backward into the bathtub, saw blood, and, because he was scared and in shock, left the complainant’s apartment and drove to his grandmother’s apartment, where he spent the night. While driving to his grandmother’s apartment, he threw the gun out the window. He did not recall how the bathroom door became shut and locked after he left. He explained that he called the complainant’s apartment to see if she was all right and that he did not call for emergency assistance or law enforcement because he was scared and ashamed.
During cross-examination, appellant indicated that, when the gun was fired, it was about three feet from the floor and that the complainant had her hand wrapped around the gun’s barrel. He also testified that, when he left the complainant’s apartment after she had been shot, he told Frelow to call for emergency assistance. He agreed that his cousin, James Rosenthal, was waiting for him in the car after appellant left the complainant’s apartment and that he told Rosenthal that “the gun had went off and [that he] thought something was wrong.” During redirect examination, appellant explained that he helped police officers search the street where he thought that he had thrown the gun out his car window, but they were unable to locate it. He also indicated that he did not remember the position of the gun when it was fired because it had been so long since the occurrence.
In the State’s rebuttal case, Dr. E. Sappenfield, a trace evidence lab manager with the Harris County Medical Examiner’s Office, testified that he analyzed the complainant’s left palm to determine if gunshot residue was present. In his opinion, the results were inconclusive as to the presence of gunshot residue on the complainant’s palm, meaning that there was not enough barium, antimony, and lead present to yield a positive result. He also explained that semiautomatic weapons tend to give off less gunshot residue than bigger firearms, such as revolvers. He further testified that, if a person had her left hand wrapped around the barrel of a .25 caliber semiautomatic when it was fired, he would expect to find gunshot residue on the back of the hand. During cross-examination, he agreed that, if a person were holding her left palm over the slide as a gun was fired, residue from the ejection port might get on her palm. On redirect examination, he also explained that any gunshot residue on a person’s palm could also be consistent with a person putting her hand up in a defensive posture when a gun is fired at her.
Sufficiency of the Evidence
In his two points of error, appellant argues that the evidence was factually insufficient to prove that appellant “intended to cause” the complainant’s death or that he “intended to cause serious bodily injury” to the complainant because “the proof that [a]ppellant intended to kill [the complainant] or intended to cause serious bodily injury is so obviously weak as to undermine confidence in the jury’s determination” of appellant’s guilt.
In our review of the factual sufficiency of the evidence, we view all of the evidence neutrally, not in the light most favorable to the verdict, and we will set aside the verdict “only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met.” Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 483 (Tex. Crim. App. 2004)); see Johnson v. State, 23 S.W.3d 1, 6-7 (Tex. Crim. App. 2000). Although our analysis considers all the evidence presented at trial, we note that the trier of fact is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given to their testimony. Johnson, 23 S.W.3d at 7; Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996). Unless the available record clearly reveals that a different result is appropriate, an appellate court must defer to the jury’s determination concerning what weight to give contradictory testimonial evidence because this resolution often turns on an evaluation of the credibility and demeanor of the witnesses, and the jurors were in attendance when the testimony was delivered. Johnson, 23 S.W.3d at 8.
A person commits the offense of murder if he (1) intentionally or knowingly causes the death of an individual or (2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual.
Tex. Pen. Code Ann. § 19.02(b)(1)–(2) (Vernon 2003). In the instant cause, appellant was charged, and the jury was instructed, on both theories. In response to the charge, the jury returned a general verdict of guilty. When the trial court submits alternative theories of conviction to the jury, and the jury returns a general verdict, we will uphold the verdict if the evidence is sufficient to support any of the alternative theories. Aguirre v. State, 732 S.W.2d 320, 326 (Tex. Crim. App. 1987) (op. on reh’g).
A defendant’s intent may be inferred from his acts, words, and conduct. Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004); Beltran v. State, 593 S.W.2d 688, 689 (Tex. Crim. App. 1980). Proof of a mental state, such as intent, must almost always be proved by circumstantial evidence. Smith v. State, 56 S.W.3d 739, 745 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d). The jury may infer the intent to kill from the use of a deadly weapon unless it would not be reasonable to infer that death or serious bodily injury could result from the use of the weapon. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996); Ross v. State, 861 S.W.2d 870, 873 (Tex. Crim. App. 1992); Dominguez v. State, 125 S.W.3d 755, 761 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d).
Appellant argues the evidence in the instant cause was factually insufficient to support the jury’s implied findings that appellant intended to cause the complainant’s death or that he intended to cause serious bodily injury to the complainant because (1) “[t]he State proved no motive for [the complainant’s] murder”; (2) “neither Officer Wood’s [n]or Dr. Sappenfield’s testimony conclusively disproved [a]ppellant’s version of the facts”; (3) “[t]o the contrary, Officer Wood stated [that] the blood spatter pattern possibly was caused by blood striking the wall by arching upward from a point below it’s [sic] striking point of 5'3" inches [sic] above the floor”; and (4) “Dr. Sappenfield’s testimony established that all three elements of barium, antimony and lead which are components of primers used in most ammunition were found on the left palm of [the complainant].”
Here, however, there is ample evidence that appellant either intended to kill the complainant or intended to cause serious bodily injury and committed an act clearly dangerous to human life that resulted in the complainant’s death. Dorothy Frelow testified that she heard appellant and the complainant arguing in the complainant’s bathroom. Frelow then saw appellant quickly leave the apartment soon thereafter. Both Frelow and Patricia Orji testified that the bathroom door was locked and that they had to open the door with a screwdriver. They testified that they found the complainant lying in the bathtub, with her head propped against the faucet and blood running down her face. Dr. Lopez, an assistant medical examiner, testified that she did not detect any soot or stippling around the gunshot wound on the complainant’s head, and Lopez explained that, if a gun’s barrel is fired from a distance of greater than two-and-one-half to three feet away from a target, no soot or stippling would be deposited. Lopez also testified that she saw that the complainant had a contusion below her right eyebrow and a small laceration on her inner lip. Darrell Stein, a firearms expert, testified that the bullet recovered from the complainant was “consistent in size, style and weight with that loaded in a .25 auto cartridge.” Officer Wood, who was trained in evaluating blood spatter evidence, testified that the blood spatter on the bathroom wall was consistent with the complainant standing with her left side toward the wall when she was shot. Wood also explained that the blood spatter was indicative of back spatter, meaning that, consistent with the complainant’s height and body position, after the complainant was shot in the left side of her head, blood was forced out of the wound, left the wound at a 90 degree angle, and struck the wall. Dr. Sappenfield, a trace evidence lab manager, testified that gunshot residue was not conclusively detected on the complainant’s left palm. He also testified that he would expect to find gunshot residue on the back of a hand that was wrapped around the barrel of a fired gun and that any gunshot residue on a person’s palm could also be consistent with a person putting her hand up in a defensive posture when a gun is fired at her.
Furthermore, appellant testified that he had a Lorsen .25 caliber semiautomatic firearm in his pocket when he went to the complainant’s apartment the morning that she was shot. He also testified that he and the complainant got into an argument about finances and their baby while in the bathroom, that they were pushing one another, and that they were “tussling over the gun” that had fallen out of his pocket. As stated above, intent to kill or cause serious bodily injury that resulted in death may be inferred from appellant’s acts, words, and conduct. Guevara, 152 S.W.3d at 50; Beltran, 593 S.W.2d at 689. Evidence that a defendant arrived at the scene of the crime carrying a loaded weapon is probative of deliberate conduct. See Carter v. State, 717 S.W.2d 60, 67 (Tex. Crim. App. 1986). Further, evidence of a struggle does not necessarily negate deliberate conduct. See Turner v. State, 805 S.W.2d 423, 428 (Tex. Crim. App. 1991). Moreover, the jury was entitled to infer intent to kill from appellant’s use of a deadly weapon. See Jones, 944 S.W.2d at 647.
Finally, motive is not a required element in a criminal case and need not be proved to sustain a conviction. Bush v. State, 628 S.W.2d 441, 444 (Tex. Crim. App. 1982). The State was not required to prove that appellant had a motive to intentionally kill the complainant or to cause serious bodily injury that resulted in the complainant’s death. See id. Nevertheless, the evidence shows that appellant and the complainant argued, which provides a motive.
Considering this evidence, as the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given their testimony, the jury was free to believe or disbelieve all or any part of the State’s witnesses’ or appellant’s testimony. McKinny v. State, 76 S.W.3d 463, 468-69 (Tex. App.—Houston [1st Dist.] 2002, no pet.). As noted above, the jury, as the fact finder, is the sole judge of the weight and credibility given to witness testimony, and, when reviewing the evidence, we must not substitute our judgment for that of the fact finder. Johnson, 23 S.W.3d at 7. Viewing all of this evidence neutrally, we conclude that the evidence was not so weak that the verdict was clearly wrong or manifestly unjust and that the contrary evidence was not so strong that the standard of proof beyond a reasonable doubt could not have been met. Accordingly, we hold that the evidence was factually sufficient to support appellant’s conviction for the offense of murder.
We overrule appellant’s two points of error.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Chief Justice Radack and Justices Jennings and Hanks.
Do not publish. Tex. R. App. P. 47.2(b).