Opinion issued May 25, 2006
In The
Court of Appeals
For The
First District of Texas
NOS. 01–05–00409–CR
01–05–00410–CR
JAMES ANTHONY CAIN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Cause Nos. 1009837 & 1017253
MEMORANDUM OPINION
Appellant, James Anthony Cain, appeals his convictions on two charges. In trial court cause number 1009837 (appellate cause number 01–05–00409–CR), appellant was convicted of aggravated assault and sentenced to 30 years confinement. In trial court cause number 1017253 (appellate cause number 01–05–00410–CR), appellant was convicted of unlawful possession of a firearm and sentenced to 35 years confinement. The trial court ordered the sentences to run concurrently.
In appellate cause number 01–05–00409–CR, appellant argues in two points of error that the evidence presented at trial was legally and factually insufficient to support his conviction for aggravated assault. In appellate cause number 01–05–00410–CR, appellant argues in four points of error that the evidence presented at trial was legally and factually insufficient to support his conviction for unlawful possession of a firearm because (1) the evidence incriminating appellant was not credible and (2) the State failed to prove that the alleged possession did not take place at the location where appellant lives.
We affirm.
Factual Background
On the evening of June 4, 2004, two groups of young men confronted each other in the parking lot of a grocery store in appellant’s neighborhood. Appellant’s son, Jonathan Cain, was a member of one of the groups. The other group was comprised of two brothers, Jarrold and Kirk Wolridge, Dante Thomas, and Malcolm Fields. An ensuing fist fight between the two groups resulted in some minor injuries to Jonathan Cain.
Shortly after the fight, Officer K. Wagner of the Houston Police Department responded to a call that Jonathan Cain had been assaulted. On his way to Jonathan’s house, at 4228 Sayers, Officer Wagner came across Shemell Dixon and arrested him on suspicion of involvement in Jonathan’s assault. Jonathan told Officer Wagner that the boys who assaulted him had taken his earrings and shorts. As a result of his investigation, Officer Wagner arrested Shemell, Jarrold, and Kirk and held them on suspicion of robbery. While he was in custody, Shemell told Officer Wagner about a shooting. At that time, Officer Wagner did not believe Shemell’s story.
Officer S. J. Anderson, of the Robbery Division, took over the investigation and interviewed those involved in the confrontation and ensuing fight. Jonathan admitted to Officer Anderson that he had provided false information regarding his name, date of birth, and address. In addition, he told Officer Anderson that he did not lose two earrings, but that he was missing one that came off during the fight. He stated that he wanted to drop the robbery charges against Shemell, Jarrold, and Kirk. The three were released from custody without being charged.
Based on the version of events given by Shemell, Jarrold, Kirk, Dante Thomas, and Malcolm Fields, what had begun as a robbery investigation became an aggravated assault investigation. According to Jarrold and the others, after the fight the group walked to a nearby basketball court to play basketball. Shortly after their arrival there, a blue Jeep Cherokee approached and stopped near the basketball court. Someone in the Cherokee pointed to the group playing basketball and said, “There they go right there.” Appellant, who was driving, got out of the vehicle holding a handgun and said, “Y’all want to fight?” Appellant then pointed the gun at Kirk and the other boys and began shooting. The boys ran, and no one was hit by the gunfire.
Appellant was charged with one count of aggravated assault and one count of unlawful possession of a firearm. At trial, Jarrold, Kirk, Dante, and Malcolm all testified in open court that while they were at the basketball court a blue Jeep Cherokee approached and stopped nearby and that appellant got out the car and fired a handgun multiple times in their direction. They all testified in open court that they identified appellant as the shooter from photospreads shown to them by investigators. In addition, Shemell identified appellant as the shooter in open court. The State also presented two witnesses not connected to the incident, one of whom testified that he saw appellant with a handgun near the place and time of the shooting. The other witness testified that he heard gunshots around the corner from where the shooting occurred.
For the defense, Jonathan and Latanya Cain, appellant’s son and sister, testified that neither of them saw appellant possess or shoot a handgun at any time on the night of the incident. Another defense witness, who lives near the location where the incident occurred, testified that he did not hear any gun shots on the night of the incident. Appellant did not testify.
Sufficiency of the Evidence
In his first two points of error in the aggravated assault conviction, appellant challenges his convictions on both legal and factual sufficiency of the evidence grounds.
Legal Sufficiency
In a legal-sufficiency review, the appellate court views the evidence in the light most favorable to the verdict and determines 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, 320, 99 S. Ct. 2781, 2789 (1979); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The court must consider all the evidence at trial, but the court may not re-weigh the evidence and substitute its own judgment for that of the jury. King, 29 S.W.3d at 562.
In his first point of error, in appellate cause number 01–05–00409–CR, appellant contends that the evidence was legally insufficient to support his conviction for aggravated assault. He bases his legal sufficiency argument on a purported lack of credibility of the State’s witnesses; the fact that Officer Wagner did not, at first, believe Shemell’s story regarding the shooting, and the fact that the State did not present any physical evidence at trial.
A person commits aggravated assault if he intentionally or knowingly threatens another with imminent bodily injury and the person uses or exhibits a deadly weapon during the commission of the assault. Tex. Pen. Code Ann. §§ 22.01(a), 22.02(a) (Vernon Supp. 2005). Appellant was charged by indictment with intentionally and knowingly threatening Kirk Wolridge with imminent bodily injury by using and exhibiting a deadly weapon, namely, a firearm.
At trial, the State presented five witnesses, including Kirk Wolridge, who all testified that they saw appellant get out of a blue Jeep Cherokee and fire a handgun at the group of boys Kirk was with. Jarrold Wolridge testified that appellant pointed the gun at his brother Kirk just before he started firing. Kirk testified that he thought he was going to be shot and that he was in fear of imminent bodily injury or death.
The State also presented witnesses not connected to the incident. George Nealy, Jr., who lives in the same neighborhood, testified that on the night of the incident, he heard gunshots around the corner from where the shooting allegedly occurred. Damian Phillips, who also lives in the neighborhood, testified that on the night of the shooting, he saw a man getting out of a blue or green Jeep Cherokee with a handgun in a yard near where the shooting occurred. He testified that he identified appellant out of a photospread as the man with the handgun, and he also identified appellant in open court as the man with the handgun.
Viewing the evidence in the light most favorable to the verdict, the State proved the elements of aggravated assault beyond a reasonable doubt. Accordingly, we conclude that the State presented legally sufficient evidence to support appellant’s conviction for aggravated assault.
We overrule appellant’s first point of error in cause number 01–05–00409–CR.
Factual Sufficiency
In his second point of error in appellate cause number 01–05–00409–CR, appellant contends that the evidence was factually insufficient to support his conviction for aggravated assault. Appellant supports his argument on the purported lack of credibility of the witnesses, the fact that Officer Wagner did not initially believe the story regarding the shooting, and the State’s lack of physical evidence.
In conducting a factual-sufficiency review, the appellate court considers all of the evidence in a neutral light and determines whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). There are two ways in which evidence may be factually insufficient. Id. at 484. First, the evidence supporting the verdict, standing alone, may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, in a case where there is both supporting and contrary evidence, the contrary evidence may be so strong that the beyond-a-reasonable-doubt standard could not have been met. Id.
However, deference must be given to the jury verdict as well as to determinations involving the credibility and demeanor of witnesses. Id. at 481; Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997). The verdict may be set aside only if the evidence supporting it is so weak as to render the verdict clearly wrong and manifestly unjust. Zuniga, 144 S.W.3d at 481; Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996). A verdict is clearly wrong and manifestly unjust if it shocks the conscience or clearly demonstrates bias. Zuniga, 144 S.W.3d at 481; Clewis, 922 S.W.2d at 135. Moreover, the jury is the judge of the facts, and an appellate court is not allowed to find facts or substitute its judgment for that of the jury. Zuniga, 144 S.W.3d at 482.
Here, the State’s evidence consisted almost exclusively of eyewitness testimony. As the sole judge of the weight of the evidence, the jury could choose to believe all, some, or none of it. Moore v. State, 935 S.W.3d 124, 126 (Tex. Crim. App.1996); Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). In addition, a jury is permitted to believe or disbelieve any part of a witness’s testimony, whether it be from a State or defense witness. Jones v. State, 984 S.W.2d 254, 258 (Tex. Crim. App. 1998).
The evidence is not too weak to support the finding of guilt beyond a reasonable doubt. The State presented the testimony of five eyewitnesses who all testified consistently as to the key facts: that appellant approached the group of boys in a blue Jeep Cherokee, got out of the vehicle brandishing a handgun, and began firing at the group. In addition, the State presented two witnesses, Damian Phillips and George Nealy, Jr., not connected to the incident who offered corroborating testimony.
Appellant argues that the evidence is factually insufficient because Officer Wagner did not initially believe the story regarding the shooting and the State did not present any physical evidence. Officer Wagner testified that Jonathan told him that the boys that assaulted him had taken his shorts and “do-rag” and that both of his earrings had been pulled from his ears. He further testified that, while he had Shemell in custody, Shemell began telling him about being shot at. At the time, Officer Wagner was not interested in Shemell’s story because he thought that he was investigating a robbery. He also testified that he did a cursory look through the windows of the vehicle Shemell pointed out as having been involved in the shooting and that he did not see any weapons. Officer Wagner also had a vague recollection of having driven through the area where Shemell told him that the shooting had occurred, but he did not find any evidence of the shooting.
Officer Anderson testified that when she conducted a telephone interview with Jonathan, he admitted to her that he was missing only one earring that came off during the fight. She also testified that Jonathan originally gave her false information as to his name, date of birth, and address and that he subsequently admitted to lying to her about that information. She stated that Jonathan told her that he wanted to drop the robbery charges. Officer Anderson testified that she interviewed Jarrold, Dante, and Malcolm and that they all identified appellant as the shooter from photospreads. Although Officer Wagner did not initially believe that a shooting had occurred, it was reasonable for the jury to conclude, after hearing five witnesses testify, that a shooting had taken place and that the entire investigation would change. Moreover, although the State did not present any physical evidence of a shooting, the jury could have chosen to believe the abundant eyewitness testimony of the crime. See Moore, 935 S.W.3d at 126. Thus, we conclude that the facts that Officer Wagner did not initially believe that a shooting had occurred and that no physical evidence was presented do not make the evidence factually insufficient.
The defense also proffered the testimony of appellant’s son and sister, who both testified that they did not see appellant possess or shoot a gun on the night in question. However, both of these witnesses are closely related to appellant, and thus the jury may have discredited their testimony. See Jones, 984 S.W.2d at 258. The only other witness proffered by the defense testified simply that he did not hear any gunfire on the night in question. It was up to the jury to decide whether this testimony was credible and what weight to give to the testimony. Jaggers v. State, 125 S.W.3d 661, 671 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). A rational jury could have found the testimony simply not credible, or it could have attributed some other explanation to the fact that the witness did not hear any gunfire. Accordingly, we conclude that the contrary evidence is not so strong that the beyond-a-reasonable-doubt standard could not have been met.
We overrule appellant’s second point of error in appellate cause number 01–05–00409–CR.
Unlawful Possession of a Firearm
In his first and second points of error in appellate cause number 01–05–00410–CR, appellant argues that the evidence was legally and factually insufficient to support a guilty verdict for unlawful possession of a firearm.
Legal Sufficiency
A person commits the offense of unlawful possession of a firearm if the person has been convicted of a felony and possesses a firearm at a location other than the premises at which the person lives at the time. Tex. Pen. Code Ann. § 46.04 (Vernon Supp. 2005). The indictment alleges that appellant possessed a firearm after having been convicted of a felony, namely burglary of a habitation, in the 185th District Court of Harris County, Texas, in cause number 9427983 on February 10, 1995, and that the possession of a firearm occurred at a location other than the premises at which he lived at the time. At trial, appellant stipulated to the 1995 conviction.
Based on the trial testimony as outlined above and for the same reasons, appellant’s contention fails. Witnesses for the State testified that they saw appellant brandishing and shooting a handgun. Officer Anderson testified that appellant lived at 4228 Sayers. Damian Phillips also testified that appellant lived on Sayers Street. Officer Wagner testified that he responded to a call on Sayers Street involving appellant and his son. Jarrold, Kirk, Shemell, Dante, and Malcolm all testified that appellant parked his vehicle in the street near the intersection of Russell and Jewel, where he brandished and fired the gun. Thus, a rational jury could have found that appellant possessed the handgun at a location other than his residence.
We overrule appellant’s first point of error in cause number 01–05–00410–CR.
Factual Sufficiency
In his second point of error in appellate cause number 01–05–00410–CR, appellant argues that the evidence was factually insufficient to support a guilty verdict for unlawful possession of a firearm. Appellant argues that the State’s witnesses were not credible and that their lack of credibility was shown by the fact that the investigating officers did not believe them. In addition, appellant argues that the evidence is factually insufficient because no “brass shell casings” were recovered from the basketball court where the alleged shooting took place.
As we stated in response to appellant’s earlier factual sufficiency point of error, as the sole judge of the weight of the evidence, the jury may choose to believe all, some, or none of it. Moore, 935 S.W.3d at 126. The lack of physical evidence and the fact that Officer Wagner did not initially believe that a shooting had occurred were factors for the jury to consider in weighing the evidence. See Johnson v. State, 176 S.W.3d 74, 78 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d). A jury’s decision is not manifestly unjust merely because the jury resolved conflicting views of the evidence in favor of the State. Cain, 958 S.W.2d at 409. We conclude, having viewed the evidence neutrally, that the proof of possession of a handgun was not so obviously weak as to undermine confidence in the jury’s determination or so greatly outweighed by contrary proof as to indicate that a manifest injustice occurred. See Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). Because probative evidence supports the jury’s verdict and because the jury is the sole judge of the weight and credibility, we may not reweigh the evidence in appellant’s favor. See King, 29 S.W.3d at 563. Accordingly, we conclude that the evidence is factually sufficient to support the verdict.
We overrule appellant’s second point of error in appellate cause number 01–05–00410–CR.
Location of the Premises
Legal Sufficiency
In his third point of error in appellate cause number 01–05–00410–CR, appellant argues that the evidence is legally insufficient to support a guilty verdict for unlawful possession of a firearm because the State failed to prove that the alleged possession did not take place at the location of the premises where appellant lived at the time. Appellant argues that, because it is unclear exactly where the blue Jeep Cherokee was parked at the time of the shooting, and because the record is silent as to where appellant resided, the State did not meet its burden in proving that the alleged possession occurred at a location other than the premises where appellant lived at the time.
As noted above, Officer Anderson testified that appellant lived at 4228 Sayers. Damian Phillips also testified that appellant lived on Sayers Street. Officer Wagner testified that he responded to a call on Sayers Street involving appellant and his son. Jarrold, Kirk, Shemell, Dante, and Malcolm all testified that appellant parked his vehicle in the street near the intersection of Russell and Jewel, where he brandished and fired the gun.
Taking this testimony as true, a rational trier of fact could have found beyond a reasonable doubt that the possession occurred at a location other than the premises where appellant lived at the time. We conclude that the evidence is legally sufficient to show that possession of the firearm occurred at a location other than appellant’s premises.
We overrule appellant’s third point of error in appellate cause number 01–05–00410–CR.
Factual Sufficiency
In his fourth point of error in appellate cause number 01–05–00410–CR, appellant argues that the evidence was factually insufficient to support a guilty verdict for unlawful possession of a firearm because the State failed to prove that the alleged possession did not take place at the location of the premises where appellant lived at the time.
The only contrary evidence proffered by the defense was the testimony of Jonathan, who stated that appellant did not live at the house to which Jonathan was driven on the night of the incident. As the sole judge of the weight of the evidence, the jury could choose to believe all, some, or none of it. Moore, 935 S.W.3d at 126. Here, the jury chose to discredit the testimony of appellant’s son. We conclude, having viewed the evidence neutrally, that the proof of the location of appellant’s residence was not so obviously weak as to undermine confidence in the jury’s determination or so greatly outweighed by contrary proof as to indicate that a manifest injustice occurred. See Zuliani, 97 S.W.3d at 594. Because probative evidence supports the jury’s verdict, and because the jury is the sole judge of the weight and credibility, we may not reweigh the evidence in appellant’s favor. See King, 29 S.W.3d at 563. Accordingly, we conclude that the evidence is factually sufficient to show that appellant’s possession of a firearm occurred at a place other than his residence.
We overrule appellant’s fourth point of error in appellate cause number 01–05–00410–CR. Conclusion
We affirm the judgments of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Nuchia, Keyes, and Hanks.
Do not publish. Tex. R. App. P. 47.4.