Opinion issued May 17, 2007
In The
Court of Appeals
For The
First District of Texas
NO. 01-05-00842-CR
LAMAR BASKIN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Cause No. 990299
MEMORANDUM OPINION
Appellant, Lamar Baskin, was charged by indictment with capital murder, to which he pleaded not guilty. See Tex. Pen. Code Ann. § 19.03 (Vernon Supp. 2006). The jury found appellant guilty as charged. The State sought the death penalty but the jury found sufficient mitigating circumstances and assessed punishment at confinement for life.
Appellant raises 10 issues. In his first and second issues, appellant contends that the trial court erred by granting the State's strike for cause as to veniremember, Ray Lopez, and by "failing to discharge the jury panel under Batson v. Kentucky." (1) In his third through eighth issues, appellant contends that the trial court erred by admitting evidence of extraneous offenses. In his ninth and tenth issues, appellant challenges the legal and factual sufficiency of the evidence as to the element of intent. We affirm.
Background
At approximately 5:30 in the evening on December 20, 2002, the complainant, Laura Higgins, an interior designer for Perry Homes, left the company holiday party and stopped by Perry's warehouse a few blocks away on Hansen Street in southeast Houston to tag furniture for a courier pickup.
Appellant was driving around in the area with his friend, Danieca Green, as his passenger. Green testified that she and appellant saw Higgins driving alone in a white, four-door car and that appellant followed Higgins as she drove to a warehouse. Higgins parked in front of the warehouse and appellant parked a few spaces away. The parking lot was otherwise empty. Appellant and Green watched Higgins go into the warehouse.
Appellant then got out of his car, took something from the trunk, and went into the warehouse. Green, who waited in the car, tilted back the seat and turned on the radio. Approximately 10 to 15 minutes later, appellant returned to the car and replaced the item he had removed from the trunk. Green did not see appellant with a gun, however, she testified that, on a prior occasion, she had seen a small pistol behind a seat in appellant's car and that she had seen him put it in the trunk of the car. When appellant got into the car, he began hitting the steering wheel and mumbling, "Damn. I killed the b----." Appellant quickly drove back to the highway and dropped off Green a distance from her house.
The next morning, Jerry Whitehead, a building manager for Perry Homes, saw Higgins's car in front of the warehouse. Police arrived and went to the warehouse with Whitehead. An outside door and an interior door between the front office and the back warehouse were found unlocked. Police searched the warehouse and discovered Higgins lying on the floor, deceased, with a gunshot wound to her back.
John Varela, of the Houston Police Department, testified that the driver door on Higgins's car was unlocked and that the car appeared to have been ransacked inside. Houston police officer Robert Parrish testified that Higgins's purse was later found in a delivery bay of a Kroger store located one block from appellant's house. There was no cash in the purse. Higgins's credit card had been taken, but there had been no activity on the card. Higgins's car keys were found a few blocks north of the warehouse. Higgins's jewelry was still on her or at the scene. There were no identifiable fingerprints recovered.
In March 2003, based on a tip phoned in to CrimeStoppers, Parrish, who had been investigating three other aggravated robberies that had occurred in south Houston during the preceding two-week period, obtained a picture of appellant to create a photo line-up to present to the four people who had been shot in those incidents. All four of the prior victims identified appellant as the perpetrator. Appellant was charged with capital murder. The police interviewed Green, but she was not charged.
At trial, Darrell Stein, a firearms examiner for the Houston Police Department, testified that the bullets recovered from the prior incidents had been compared microscopically with the bullet recovered from Higgins and that the examination showed that all of the bullets had been fired from the same gun.
Challenge for Cause
In his first issue, appellant contends that the trial court erred by "granting the State a causal strike against Ray Lopez, where the record fails to demonstrate that [the] venireman was biased against any phase of the law that the state was entitled to rely upon for conviction." The State contends that appellant failed to preserve error because he failed to object at trial.
The record shows that, at the close of the voir dire of veniremember number 35, Ray Lopez, the trial court sustained the State's challenge for cause on the basis that Lopez had stated that he would hold the State to a burden of showing proof beyond "all doubt," rather than reasonable doubt.
A veniremember who requires proof beyond "all doubt" is challengeable for cause on the ground of inability to follow the law. Tex. Code Crim. Proc. Ann. art. 35.16 (Vernon 2005); Castillo v. State, 913 S.W.2d 529, 533 n.1 (Tex. Crim. App. 1995). When a trial court grants a challenge for cause, any objection must be timely raised. See Fuller, 827 S.W.2d 919, 924-25 & n.4, 5 (Tex. Crim. App. 1992). Here, the record clearly shows that, when the State challenged for cause veniremember Lopez, defense counsel did not state any objection, but responded, "No questions." Immediately after, Lopez was dismissed. Appellant has not preserved any error for our review. See id.
Accordingly, we overrule appellant's first issue.Batson ChallengeIn his second issue, appellant contends that the trial court erred by "failing to discharge the jury panel under Batson v. Kentucky." (2) Specifically, appellant contends that the record does not support the prosecution's stated reason for striking veniremember 77, Gloria Stewart. The State contends that the trial court properly found that the State provided race-neutral reasons for its peremptory strike. We conclude that we are precluded from conducting a meaningful review because appellant's issue on appeal does not comport with appellant's objection at trial.
The record shows that, at the close of the voir dire of Stewart, the following strike and objection took place:
[State]: We'll exercise a peremptory challenge, Your Honor.
[The Court]: You're going to be excused from jury service. Ma'am, please wait in the hallway for a second.
(Venireperson exits courtroom)
[Defense Counsel]: Your Honor, we are making a Batson challenge. We
feel like this person, Ms. Stewart, gave the same answers that the previous ones in which they accepted, namely, Sharon Valdespino, Ricky Soles, Clint Martin, Kenneth Aubry. They had accepted those people. They are all non-African-Americans. Ms. Stewart is an African-American, and we would like them to tell us race neutral reasons that did not apply to the previous ones they accepted.
At trial, appellant objected to the strike of Stewart on the theory that a comparison of Stewart's answers to those of veniremembers Valdespino, Soles, Martin, and Aubry would reveal that the "same answers" were given and, because Stewart was the only African-American among the group and the only member of the group that the State struck, Stewart had been disparately treated.
On appeal, however, appellant presents, in three specific points, a theory that the State misinterpreted Stewart's own answers. First, appellant contends that "the prosecutor implied that she struck Stewart out of concerns that [Stewart] was opposed to the death penalty," when "[t]he record clearly shows that [Stewart] was not." Second, appellant contends that "[t]he prosecutor also expressed concerns that Stewart could not sit in judgment of others due to religious beliefs" and that "the record fails to reveal any religious beliefs that would have impaired Stewart's functioning as a juror." Finally, appellant contends that "[t]he State also expressed concerns that Stewart might herself be prejudice[d] because she believed that blacks had been discriminated against," and that "[t]he record simply fails to support that [Stewart] had the beliefs or impairments that formed the basis for the prosecutor striking her for cause [sic]." Appellant does not in his brief refer to any of the other veniremembers that he listed in his objection in the trial court and does not point to any of the allegedly "same answers" as raised in his objection. Hence, appellant's issue on appeal does not comport with his objection at trial.
"The point of error raised on appeal must comport with the objection made at trial." Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). When an issue raised on appeal does not correspond to the objection raised at trial, the trial court has not been given an opportunity to rule on the legal theory that is the basis of the appeal. Cook v. State, 858 S.W.2d 467, 474 (Tex. Crim. App. 1993). Thus, nothing is presented for appellate review. Id.
Accordingly, we overrule appellant's second issue. Extraneous OffensesIn his third through eighth issues, appellant contends that the trial court erred by admitting evidence of three extraneous aggravated robberies allegedly committed by appellant. Specifically, as to each of the three offenses, appellant contends that the evidence is not relevant and that the probative value of the evidence is substantially outweighed by "unfair prejudice, undue delay, and confusion of the issues relevant to the case."
A. The Applicable Law and Standard of Review Evidence of extraneous offenses is not admissible to prove the character of the person in order to show action in conformity therewith. Tex. R. Evid. 404(b). However, evidence of other crimes, wrongs, or acts may be admissible for purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Id. Even if admissible under Rule 404(b), evidence must be excluded if "its probative value is substantially outweighed by the danger of unfair prejudice." Tex. R. Evid. 403.
It is within the trial court's discretion to determine whether extraneous evidence has relevance apart from character conformity and whether the danger of unfair prejudice outweighs the probative value of the evidence. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). We review the trial court's determination as to the admissibility of evidence under an abuse of discretion standard. Id.; Roberts v. State, 29 S.W.3d 596, 600 (Tex. App.--Houston [1st Dist.] 2000, pet. ref'd). If the trial court's ruling lies within the zone of reasonable disagreement, we will affirm. Moses, 105 S.W.3d at 627; Roberts, 29 S.W.3d at 600.
B. Relevance
In his third, fifth, and seventh issues, appellant contends that evidence of each aggravated robbery is inadmissible because it is "not relevant to any issue in the case." The State contends that the evidence is admissible because it is relevant to show proof of appellant's identity as the perpetrator. (3)
An extraneous offense may be admissible to show identity only when identity is an issue in the case. Lane v. State, 933 S.W.2d 504, 519 (Tex. Crim. App. 1996). The issue of identity may be raised by the defendant during cross-examination of the State's witnesses. Id.; Thomas v. State, 126 S.W.3d 138, 144 (Tex. App.--Houston [1st Dist.] 2003, pet. ref'd). "To be admissible to show identity, an extraneous offense must be so similar to the offense charged that the offenses are marked as the accused's handiwork." Lane, 933 S.W.2d at 519; see Thomas, 126 S.W.3d at 144 (stating that, to be considered relevant, "the evidence must bear the signature of the offender"). Sufficient similarity may be shown by proximity in time and place or by a common mode of committing the offenses. Johnson v. State, 68 S.W.3d 644, 651 (Tex. Crim. App. 2002) (citing Lane, 933 S.W.2d at 519); Thomas, 126 S.W.3d at 144 (considering specific characteristics and time interval between extraneous and charged offenses).
Here, appellant contends that he did not place his identity in issue. However, the record shows that appellant put his identity as the perpetrator at issue when, after Green had testified on direct examination that appellant owned a gun and that she believed that he had it on the night of the offense, defense counsel, on cross-examination of Green, elicited testimony that, during the time period just prior to the shooting of Higgins, someone else had possession of appellant's gun and that Green did not see appellant with the gun on the night that Higgins was shot.
In addition, appellant contends that "there were insufficient similarities between the extraneous offenses and the offense at issue." The record shows that the State introduced the following evidence of four extraneous aggravated robberies in which all victims identified appellant as the person who had robbed and shot them, as follows:
1. Jose Reyes
Reyes identified appellant as the man who came into Reyes's business on Harwin Street in south Houston as he opened on December 7, 2002. According to Reyes, who was working alone, appellant, who came in pretending to be a customer, stated that he needed Reyes to sign something. Appellant went to his car, returned with a small gun, and, holding the gun to Reyes, stated, "This is a robbery. . . . Give me the money." Reyes responded, "What money?" Appellant then shot at Reyes twice--once hitting an office machine and once hitting Reyes in the arm. Appellant then demanded Reyes's wallet, pulled the cash out of it, and left. Appellant did not take any credit cards, checks, or the jewelry that Reyes was wearing.
2. William Davis
Davis identified appellant as the man who came into Davis's business, which was located in a warehouse and office complex on Bissonnet Street in south Houston, at approximately 5:40 p.m. on December 17, 2002, while Davis was closing. The other employees had just left. According to Davis, appellant came in and asked where a cleaning service was located in the complex. Davis told him that the service had moved out and appellant left. Davis gathered his things to leave, set the burglar alarm, and stepped outside to lock the door. Appellant then jumped out from behind a column, put a gun to Davis's head, and forced Davis back into the office. Appellant demanded, "Give me your money, give me your wallet." There was not any cash in the wallet. Appellant emptied Davis's pockets, taking $125.00. When the store alarm sounded and Davis refused to turn it off, appellant shot Davis in the abdomen and left. Davis went to close and lock the door before he called for help. At the doorway, he peered out into the parking lot to try to get a description of appellant's car. Appellant, who was sitting in his car, saw Davis and yelled, "Don't make me come back and shoot you again."
3. and 4. Edward Cole and Paul Winters
Cole identified appellant from a lineup as the man who came into H&H Music Company, located on Clementshire Street in south Houston, as he was closing at approximately 7:45 p.m. on December 17, 2002. The other employees had just left. Cole heard a knock at the door and, when he opened it, appellant, who had been crouching down to one side, jumped at Cole with a gun and forced him back into the office. Appellant then shot Cole in the arm and knocked him to the floor. Appellant reached into Cole's pocket, removed Cole's wallet, and took out Cole's cash and credit cards, demanding access codes. Appellant began rummaging around in the store. Cole, who was lying on the floor, heard the front door open and heard a gunshot in the next room.
Paul Winters, a United Parcel Service driver, had approached the doorway of H&H Music with a delivery and saw a man he later identified as appellant standing at the threshold. Winters asked if the business was still open. Appellant said yes and told him to come in. When Winters walked in, appellant shot him in the back and Winters fell to the ground. Appellant demanded Winters's wallet. Winters explained that his wallet was in the delivery truck. Appellant demanded the keys and went outside. Moments later, appellant returned and demanded that Winters go out with him to get the wallet. Winters complied and, when he handed appellant the wallet, Winters saw appellant's face.
The State also introduced evidence, in the form of testimony by Houston Police Department Firearms Examiner Darrel Stein, that the bullets recovered from Reyes, Davis, Cole, and Winters, when compared microscopically with the bullet recovered from Higgins, showed that all of the bullets were fired from the same .32 caliber weapon.
In sum, the interval of time between the offenses was short in that the shootings of Davis, Cole, and Winters occurred hours apart on the same evening and the shooting of Higgins occurred just three days later. See Johnson, 68 S.W.3d at 651 (considering offenses that occurred within short interval of time to be evidence of similarity as to identity); Walker v. State, 588 S.W.2d 920, 924 (Tex. Crim. App. 1979) (considering six offenses within one month to be evidence of similarity as to identity). The offenses all occurred across an area of south Houston. See Walker, 588 S.W.2d at 924 (considering offenses taking place in the same area to be evidence of similarity as to identity); Ransom v. State, 503 S.W.2d 810, 813 (Tex. Crim. App. 1974) (same). Further, appellant engaged in a similar mode of committing each of the offenses in that appellant, acting alone, targeted a business that had just opened or had just closed, took the time to ensure that his victim was alone, used deception to enter, and shot each of them. See Lane, 933 S.W.2d at 519 (considering specific modes to be evidence of distinguishing characteristics that went to identity).
We conclude that the trial court did not abuse its discretion by determining that the extraneous offense evidence was relevant to the issue of identity.
C. Rule 403 Balancing
Specifically, in his fourth, sixth, and eighth issues, appellant contends that the probative value of the evidence in each extraneous offense was substantially outweighed by the danger of unfair prejudice because "appellant never placed his identity in issue at trial" and because "the extraneous aggravated robbery offense was not so similar in characteristics to the alleged offense as to constitute a 'signature' offense."
Although evidence is admissible under Rule 404(b), we must consider whether "its probative value is substantially outweighed by the danger of unfair prejudice" by examining (1) how compellingly the evidence serves to make more or less probable a fact of consequence, (2) the potential for the evidence to impress the jury in some irrational but indelible way, (3) how much trial time the proponent needs to develop the evidence, and (4) how great is the proponent's need for the evidence. See Tex. R. Evid. 403; Montgomery v. State, 810 S.W.2d 372, 389, 390 (Tex. Crim. App. 1990); Jaggers v. State, 125 S.W.3d 669, 670 (Tex. App.--Houston [1st Dist.] 2003, pet. ref'd).
Here, the record shows that the evidence presented makes more probable a fact of consequence, namely, that appellant is the person who caused Higgins's death by shooting her. The potential for the evidence to impress the jury in an irrational but indelible way was not significant because the trial court instructed the jurors to limit their consideration of that evidence to the issues of "motive, intent, [and] identity." We must presume that the jury followed the instruction when, as here, no evidence has been presented to rebut that presumption. See Thrift v. State, 176 S.W.3d 221, 223-24 (Tex. Crim. App. 2005). While some time was taken to develop the testimony as to the extraneous offenses, we cannot conclude that the amount of time was undue, given the number of offenses involved. Finally, the State's need for the evidence was significant because the State lacked direct evidence identifying appellant as the person who shot Higgins. Appellant contends that the State did have direct evidence of identification, in the form of Green's testimony. However, the record shows that Green did not see appellant shoot Higgins.
We conclude that the trial court did not abuse its discretion by determining that the probative value of the evidence was not outweighed by its danger of prejudice. See Moses, 105 S.W.3d at 627.
We must uphold the trial court's decision to admit evidence of other crimes, wrongs, or acts so long as the court's ruling was within the "zone of reasonable disagreement." Roberts, 29 S.W.3d at 600. Here, we conclude that there were sufficient common distinguishing characteristics between the extraneous offenses and the charged offense. We hold that the trial court did not abuse its discretion by admitting the extraneous evidence of the prior aggravated robberies. Accordingly, we overrule appellant's third, fourth, fifth, sixth, seventh, and eighth issues.
Sufficiency of the Evidence
In his ninth and tenth issues, appellant challenges the legal and factual sufficiency of the evidence to support his conviction because, alleges appellant, the evidence fails to show that he had the requisite intent to cause Higgins's death at the time of the commission of the alleged underlying robbery.
A. Standard of Review
A legal sufficiency challenge requires us to determine whether, after viewing the evidence in the light most favorable to the verdict, 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 562, 562 (Tex. Crim. App. 2000); Howley v. State, 943 S.W.2d 152, 155 (Tex. App.--Houston [1st Dist.] 1997, no pet.). Although our analysis considers all of the evidence presented at trial, we may not re-weigh the evidence and substitute our judgment for that of the factfinder. King, 29 S.W.3d at 562.
We begin the factual sufficiency review with the presumption that the evidence supporting the jury's verdict is legally sufficient. Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). When conducting a factual-sufficiency review, we view all of the evidence in a neutral light. See Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997). We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000). Under the first prong of Johnson, we cannot conclude that a conviction is "clearly wrong" or "manifestly unjust" simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 416-17 (Tex. Crim. App. 2006). Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury's resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id.
In conducting the factual sufficiency review, we must address the evidence that, according to the appellant, most undermines the jury's verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). We may not re-weigh the evidence and substitute our judgment for that of the fact-finder. King, 29 S.W.3d at 562. The factfinder alone determines what weight to give contradictory testimonial evidence because that question depends on how the factfinder evaluates credibility and demeanor. Cain, 958 S.W.2d at 408-09. As the determinor of the credibility of the witnesses, the factfinder may choose to believe all, some, or none of the testimony presented. Id. at 407.
The standards of review for legal and factual sufficiency challenges are the same for direct and circumstantial evidence cases. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).
B. Capital Murder
A person commits capital murder if he commits murder as defined under Texas Penal Code section 19.02(b)(1) and, inter alia, he "intentionally commits the murder in the course of committing or attempting to commit . . . robbery." Tex. Pen. Code Ann. § 19.03 (Vernon Supp. 2006). A person commits murder under section 19.02(b)(1) if he "intentionally or knowingly causes the death of an individual." Id. § 19.02(b)(1) (Vernon 2003). A person commits robbery if, in the course of committing theft and with intent to obtain or maintain control of property, he intentionally, knowingly, or recklessly causes bodily injury to another, or intentionally or knowingly places another in fear of imminent bodily injury or death. Id. § 29.02(a). A person acts intentionally with respect to the nature or result of his conduct, when it is his conscious objective or desire to engage in the conduct or cause the result. Id. § 6.03(a).
Here, the trial court instructed the jury that "if you find beyond a reasonable doubt that . . . [appellant], . . . while in the course of committing or attempting to commit the robbery of [Higgins], intentionally cause[d] the death of [Higgins] by shooting [Higgins] with a deadly weapon, then you will find [appellant] guilty of capital murder, as charged in the indictment."
C. Legal Sufficiency of the Evidence
In his ninth issue, appellant contends that the evidence was legally insufficient because "a reasonable trier of fact could not have found beyond a reasonable doubt that appellant had the intent to cause the death of the complainant at the time of the alleged offense." Appellant claims that "the only evidence of intent came from the testimony of Danieca Green" and that "a close examination of Green's testimony suggests that the appellant never had the . . . intent to cause the complainant's death."
Appellant contends that the only evidence of appellant's intent came from Green's testimony that, when appellant got back into the car at the Perry warehouse, he was "mumbling under his breath and . . . hitting the steering wheel" and "saying, damn, I killed the B." Appellant argues that a close examination of the following testimony by Green on cross-examination shows that appellant did not have the specific intent to cause Higgins's death:
[Defense Counsel]: And I think you testified that when [appellant] came to the car, he was beating on the steering wheel and you were trying to read his lips, but what you think you read was damn, I killed that woman, and that was because he was agitated, upset at the time?
[Green]: Yes, sir.
[Defense Counsel]: It didn't appear that [appellant] intentionally ever killed anybody, did he?
[Green]: I wouldn't know. He just ---when he got---.
Intent may be inferred from circumstantial evidence such as the acts, words, and conduct of the appellant. Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004). Intent to kill may be inferred from the use of a deadly weapon, unless it is reasonably apparent that serious bodily injury or death could not result from the particular manner of use. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996); Ahrens v. State, 43 S.W.3d 630, 634 (Tex. App.--Houston [1st Dist.] 2001, pet. ref'd). A firearm is, per se, a deadly weapon. Tex. Pen. Code Ann. 1.07(a)(17)(A) (Vernon 2003). When a deadly weapon is used and death results, the inference of an intent to kill is almost conclusive. Flanagan v. State, 675 S.W.2d 734, 745 n.9 (Tex. Crim. App. 1982).
Here, the record shows that Green had been riding around with appellant on the evening of the incident when appellant began to follow a woman, later identified as Higgins, who was alone in a white, four-door car. Green testified that appellant followed Higgins to a warehouse, that the parking lot was empty, that he hesitated slightly before he pulled into the parking lot, and that he parked near Higgins's car. Green testified that she and appellant watched Higgins go into the warehouse, that appellant got out of his car, went around to the trunk, removed something, and went into the warehouse after Higgins. Green testified that, on a prior occasion, she had seen a gun, partially hidden under a towel, behind a seat in appellant's car and that she saw appellant retrieve the gun, state that he had to "put it up," and put it in the trunk. From these facts, the jury could have reasonably inferred that appellant kept a gun his trunk and that he retrieved the gun before following Higgins into the warehouse.
It was Green's testimony that appellant returned 10 to 15 minutes later and that "[h]e went to the trunk and whatever he took out, he put back in." Green testified that appellant then got into the car and began hitting the steering wheel and mumbling, "I killed the b----." From these facts, the jury could have reasonably concluded that appellant was referring to having killed the person that Green saw him follow into the warehouse, Higgins.
Further, Green testified that appellant drove back to the highway very quickly and dropped Green off some distance from her house, refusing to drive her completely home. See Wilkerson v. State, 881 S.W.2d 321, 324 (Tex. Crim. App. 1994) (finding that intent may be inferred from evidence of flight from the scene).
The next morning, Higgins was found at the warehouse deceased. Dr. Morna L. Gonsoulin, an assistant medical examiner from the Harris County Medical Examiner's office, testified that Higgins died from a single gunshot wound to her back. Officer J. Varela testified that the driver door on Higgins's car was unlocked and that the car appeared to have been ransacked inside. Officer R. Parrish testified that Higgins's purse was later found in a delivery bay of a Kroger store located one block from appellant's house and that there was no cash in the purse.
In addition, the record shows that the trial court admitted four extraneous aggravated robberies, in part, for purposes of determining appellant's intent. Three of the four shootings took place just three days prior to the charged offense. The four complainants in the extraneous offenses each testified that appellant took their cash and shot them in close proximity, without regard to whether they had cooperated with his demands. Davis testified that appellant shot him in the abdomen, and Winters testified that appellant shot him in the back. See Ex parte Thompson, 179 S.W.3d 549, 555 & n.18 (Tex. Crim. App. 2005) (stating, "It is both a common sense inference and an appellate presumption that a person intends the natural consequences of his acts . . . and that the act of pointing a loaded gun at someone and shooting it toward that person at close range demonstrates an intent to kill." (citations omitted)); Jones, 944 S.W.2d at 647 (stating that intent to kill may be inferred from the use of a deadly weapon); Ahrens, 43 S.W.3d at 634 (same).
Green's testimony that she and appellant purposefully followed Higgins, whom they saw driving alone on the interstate, to a closed warehouse, that Green knew appellant kept a gun in the trunk, that appellant got out of the car, retrieved something from the trunk, followed Higgins into the warehouse, returned minutes later, replaced the item in the trunk, got in the car, reported that he had killed someone and quickly drove away, then Higgins was found shot in the back the next morning, supports a conclusion, especially taken in light of the extraneous offense evidence, that appellant intended to kill Higgins. See Flanagan, 675 S.W.2d at 745 n.9; Ahrens, 43 S.W.3d at 634. In addition, the bullet recovered from Higgins matched the bullets recovered in the extraneous offenses. Further, the evidence shows that Higgins's car had been ransacked and her purse was found, without her cash, a block from appellant's house.
Viewing the evidence in the light most favorable to the verdict, we hold that a rational jury could have found beyond a reasonable doubt that there was sufficient evidence that appellant intended to cause Higgins's death during the commission of a robbery. See King, 29 S.W.3d at 562; Howley, 943 S.W.2d at 155.
We overrule appellant's ninth issue.
D. Factual Sufficiency of the Evidence
In his tenth issue, appellant claims that the evidence was factually insufficient because "the record fails to show that the appellant had the intent to cause the death of the complainant at the time of the alleged offense."
As laid out above, the State put on evidence that appellant purposefully followed Higgins, whom he saw driving alone, to a closed warehouse, and followed her inside, after having retrieved an item from the trunk. The evidence shows that appellant returned minutes later, replaced the item in his trunk, got in the car, reported that he had killed someone, and then quickly drove away. The next morning, Higgins was found deceased in the warehouse with a gunshot wound to her back. The bullet recovered from Higgins matched the bullets recovered in the extraneous offenses. Further, the evidence shows that Higgins's car had been ransacked and her purse was found, without her cash, a block from appellant's house. The State also put on evidence that appellant committed four extraneous aggravated robberies in the two weeks prior to the instant offense, three of which occurred just three days prior to the charged offense, and that, in each case, appellant took cash and shot his victim without regard to their cooperation.
Appellant contends that "the only evidence of intent came from the testimony of Danieca Green" and that "for all the reasons previously urged, her testimony was insufficient to establish that the appellant had the specific intent to cause the complainant's death." The record shows that Green's testimony was not the only evidence of intent presented. Furthermore, the jury was not limited to considering only Green's stated belief as to appellant's intent or the meaning of his behavior.
After considering all of the evidence in a neutral light, we cannot conclude that the evidence is so weak that the verdict is clearly wrong and manifestly unjust or that the verdict is against the great weight and preponderance of the evidence. See Johnson, 23 S.W.3d 11. The evidence is therefore factually sufficient to support appellant's conviction.
Accordingly, we overrule appellant's tenth issue.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Justices Nuchia, Higley, and Wilson. (4)
Do not publish. Tex. R. App. P. 47.2(b).
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