Opinion issued July 22, 2010
In The
Court of Appeals
For The
First District of Texas
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NO. 01-09-00253-CR
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Kenneth Ray Green, Appellant
V.
The State of TExas, Appellee
On Appeal from the 209th District Court
Harris County, Texas
Trial Court Case No. 1069293
MEMORANDUM OPINION
A jury found appellant, Kenneth Ray Green, guilty of capital murder and the trial court assessed punishment at confinement for life. In three points of error, appellant contends (1) that the trial court erred in admitting letters purportedly written by appellant that were not properly authenticated and (2) that the evidence was legally and factually insufficient to prove appellant’s identity as the perpetrator. We affirm.
BACKGROUND
On Mother’s Day 2006, Sally Banks, the grandmother of the deceased, heard an argument and gunshots outside her house. She later discovered that her grandson, Terrance Banks, had been shot. Banks testified that her grandson drove a white Cadillac.
Homicide Detective R. Wedgeworth interviewed a witness, Danielle Shorter, and was directed to the Coke Street Apartments some 15 miles away. At that site, Wedgeworth found the complainant’s white Cadillac, which had been stripped of its rims and tires. After interviewing Xavier Sauls and Benedict Onezine, who lived at the apartments, Wedgeworth developed two suspects, appellant Kenneth Green a/k/a “Killa Pop” and Ryan Mitchell a/k/a “Smoke.” One of appellant’s fingerprints was discovered on the wheel well of the stolen vehicle. Appellant was subsequently arrested. The eyewitness, Shorter, was unable to identify him in a line-up.
At trial, appellant’s cousin, Messiah Fritz, testified that on the day of the offense, appellant and Smoke came by Fritz’s apartment, woke him up, and asked for a car jack to get some tires off a car. Appellant told Fritz that he had “taken care of business” to get the car and that “he took someone’s life” in the process. Appellant claimed that he shot the owner of the car five or six times.
Appellant and Smoke then took the rims to Onzine’s apartment and asked if he could leave them there for a few hours. Sauls, who lived at the apartment with Onezine, testified that appellant and Smoke came by later to pick up the rims, and Sauls heard appellant say that he had killed someone for those rims.
At trial, a forensic expert testified that the complainant was shot six times by either a .38 or .357 revolver.
AUTHENTICATION
In point of error one, appellant contends the trial court erroneously admitted letters that appellant purportedly wrote to another inmate in the jail. Specifically, appellant complains that the letters were not properly authenticated under Tex. R. Evid. 901(a).
Background
At trial, the State called Sauls, who testified that appellant, along with Smoke, came to pick up a set of rims from Saul’s aunt’s apartment. Sauls testified that he heard appellant say that “he killed a man for the rims.”
Sauls also testified that, at the time of appellant’s trial, he, Sauls, was in jail on a robbery charge. Sauls testified that, while in jail before appellant’s trial, a jail trustee brought Sauls two letters signed by “Killa Pop,” the street name used by appellant. Sauls did not write the letters and he did not believe the trustee wrote the letters. In the first letter, State’s exhibit 50, “Killa Pop” mentioned that Smoke was not going to testify and asked Sauls not to testify either. “If you don’t testify, I walk,” stated “Killa Pop.” “Killa Pop” also mentioned that his trial date was “1-23-09” and that he was also in jail “right down the hall.”
The second letter, State’s exhibit 51, was actually a draft affidavit that “Killa Pop” prepared and asked Sauls to sign and have notarized. The draft affidavit that “Killa Pop” wanted Sauls to sign stated that police “instructed [Sauls] of what to say and made agreement not to have [Sauls’s] family kicked out of the Coke Street Apartments.” The draft affidavit further instructed Sauls to aver that he “had no knowledge of this crime and I have told them that I don’t wish to testify and I’m not going to testify.”
Standard of Review
To resolve this issue, we must determine whether it was an abuse of discretion for the trial judge to find that sufficient evidence was presented to support a jury finding that appellant wrote the letters. Druery v. State, 225 S.W.3d 491, 502 (Tex. Crim. App. 2007). The trial court does not abuse its discretion in admitting evidence when he reasonably believes that a reasonable juror could find that the evidence has been authenticated or identified. Id. We affirm the trial court’s decision as long as its ruling is within the zone of reasonable disagreement. Id. The authentication requirement is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. Tex. R. Evid. 901(a).
Law and Analysis
The authentication requirement can be satisfied by showing “Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.” Tex. R. Evid. 901(a)(4). In Druery, the trial court found a similar jailhouse letter authenticated by evidence showing that (1) the defendant was in a position to have mailed the letter from the jail, (2) the writer identified himself by the defendant’s nickname, (3) the letter was sent to the defendant’s cousin, a witness in the case, (4) the content of the letter identified five witnesses who were going to testify against the defendant, (5) the letter included the cover pages of the witnesses interviews with police, implying that the writer had access to those interviews, (6) the letter discussed facts know to the defendant about his case, (7) the letter stated that the return address is false because of an attempt to keep jail staff from reading the letter, and (8) appellant’s fingerprints were on the letter. Id. at 503. The court also noted that there was no evidence of tampering or any other fraud regarding the letter. Id.
Appellant argues that Druery is distinguishable because in that case the defendant’s fingerprints were on the letter, and in this case, there are no fingerprints. While it is true that one of the factors the Druery court considered was the presence of the defendant’s fingerprints on the letter, we consider the circumstances as a whole to determine whether a rational jury could have concluded that appellant wrote the letters.
First, we note that appellant was in a position to have the letters delivered by a trustee to Sauls. Appellant and Sauls were both confined to the Harris County Jail at the same time. Second, both letters are signed by “Killer Pop,” a name that multiple witnesses identified as appellant’s street name. Third, the letter is written to Sauls, a witness to the charged offense. Sauls provided police with evidence linking appellant to the stolen rims as well as a statement that appellant had “killed someone for those rims.” Fourth, the letter referenced Smoke, another witness in the case, and told Sauls that Smoke was not going to testify against appellant. Fifth, the “affidavit” referred to Sauls’s family at the “Coke Apartments,” which is where the stolen vehicle was recovered, thus indicating a knowledge of the facts of the case. Sixth, the letter mentioned appellant’s cell location in the Harris County Jail. Seventh, the letter referenced appellant’s next court date.
Nevertheless, appellant argues that Sauls possessed the same information and could have written the letters himself in order to obtain leniency in his robbery case. The court of criminal appeals considered and rejected a similar argument in Druery. Id. at 503 (“So while Druery is correct that a possibility does exist that another person knew and had access to all of this information . . . it was reasonable for the trial judge to believe that a reasonable juror could find that the exhibit was what the State purported it to be—a letter written by Druery.”). Similarly, in this case, based on the facts and circumstances discussed above, the jury could have reasonably concluded that appellant wrote the letters admitted as State’s Exhibits 50 and 51. Also, in this case, as in the Druery case, there is no evidence of tampering or fraud associated with the letters. As such, the trial court did not abuse its discretion in admitting the letters.
We overrule point of error one.
SUFFICIENCY OF THE EVIDENCE
In points of error two and three, appellant contends the evidence is legally and factually insufficient to show that he murdered the complainant during the course of committing a robbery.
Standards of Review
We review the legal sufficiency of the evidence by considering all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89 (1979)). In doing so, we give deference to the responsibility of the fact-finder to fairly resolve conflicts in testimony, to weigh evidence, and to draw reasonable inferences from the facts. Id. However, our duty requires us to “ensure that the evidence presented actually supports a conclusion that the defendant committed” the criminal offense of which he is accused. Id.
In a factual sufficiency review, we view all the evidence in a neutral light and set aside the verdict if the proof of guilt is so obviously weak as to undermine confidence in the jury’s determination, i.e., that the verdict seems “clearly wrong and manifestly unjust,” or the proof of guilt, although legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Watson v. State, 204 S .W.3d 404, 414–15 (Tex. Crim. App. 2006). We note that a jury is in the best position to evaluate the credibility of witnesses, and we afford due deference to the jury’s determinations. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006).
A person commits the offense of murder when he intentionally or knowingly causes the death of an individual. Tex. Penal Code Ann. § 19.02(b)(1) (Vernon 2003). A murder is a capital murder if intentionally committed in the course of committing or attempting to commit a robbery. Tex. Penal Code Ann. § 19.03(a)(2) (Vernon Supp. 2009).
Legal Sufficiency
In support of his legal sufficiency challenge, appellant asserts that “there was no proof that appellant was involved in the shooting,” and that “[n]o proof was offered by the State that appellant alone or with another planned or formed the intent prior to or concurrent with the murder.” Appellant points out that no eyewitnesses testified at trial and the only eyewitness to the crime was unable to identify him in a line-up. He also questions the credibility of Sauls and Fritz.
Viewing all of the evidence in the light most favorable to the verdict, we note that the complainant’s vehicle was recovered from an apartment complex about 15 miles away from the shooting. In fact, the car was found with its tires and rims removed in front of a building at the Coke Street Apartments where appellant’s cousin, Fritz, lived. Appellant’s fingerprints were found on the car near the wheel well. The complainant was shot with either a .38 or .357 Magnum revolver. Appellant was seen carrying a .357 Magnum. An eyewitness, Shorter, described the shooter, and her description matched appellant’s physical appearance. Appellant’s cousin, Fritz, saw him stripping the tires off of a vehicle that matched the victim’s vehicle. Appellant bragged to Fritz that he “took someone’s life” to obtain the vehicle and that he shot its owner five or six times. Forensic evidence showed that the complainant was shot six times. Onezine testified that appellant asked him if he could store the rims and tires in Onezine’s apartment for a few hours. Sauls testified that appellant came by the apartment where Sauls was living with his Aunt Mary and Onezine to retrieve a set of time and rims that were there. While appellant was putting the rims in a car, Sauls heard appellant tell someone else that he had killed a man for those rims. There was also evidence that appellant tried to persuade Sauls not to testify.
Viewing the evidence in the light most favorable to the verdict, a reasonable trier of fact could have found beyond a reasonable doubt that appellant murdered the complainant while stealing the rims from the complainant’s car. Accordingly, we hold that the evidence is legally sufficient to support appellant’s conviction.
Factual Sufficiency
In support of his factual sufficiency challenge, appellant argues that Sauls and Fritz are both lacking in credibility and stood to gain in their own criminal cases by testifying for the State. Appellant also argues that he “was only circumstantially tied to the offense based on the statements [by Sauls and Fritz] as well as the fact that he was present and attempted to sell the rims and tires from the vehicle stolen in this offense[.]” We note that circumstantial evidence is probative of a defendant’s guilt and is sufficient by itself to establish guilt. Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). We also note that issues of credibility are resolved by the jury. Marshall, 210 S.W.3d at 625. A jury’s decision is not manifestly unjust merely because the jury resolved the issue of witness credibility if favor of the State. See Westbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).
We conclude that the verdict is not “clearly wrong and manifestly unjust” and the proof of guilt is not against the great weight and preponderance of the evidence. See Watson, 204 S.W.3d at 414-15. Accordingly, we hold that the evidence is factually sufficient to support appellant’s conviction.
We overrule appellant’s second and third points of error.
CONCLUSION
We affirm the judgment of the trial court.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Bland and Sharp.
Do not publish. Tex. R. App. P. 47.2(b).