COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-048-CR
JARED DWAYNE BIRMINGHAM APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Appellant Jared Dwayne Birmingham appeals his conviction for capital
murder. In three points, he argues that the trial court erred by denying his
motion to suppress evidence allegedly obtained through coercion, abused its
discretion by failing to make findings of fact and conclusions of law, and that
1
… See T EX. R. A PP. P. 47.4.
the evidence is factually insufficient to prove that Appellant intended to cause
the death of the victim. We affirm.
Background
On December 20, 2005, Syed Sadiq and Shekhar Regmi were working at
a Fina gas station and convenience store in Arlington, Texas. Sadiq testified
that just before his shift ended at 11:00 p.m., he was sitting on a cabinet
behind the counter, taking care of paperw ork out of the view of customers,
when he heard the door open and stood up to see a masked figure enter the
store. The man headed toward the stockroom at the back of the store, where
Regmi was working. Sadiq started toward the stockroom door, but then he
heard a gunshot and ran and hid in a cooler. Noise from the cooler fan
prevented Sadiq from hearing what was happening in the store. After four or
five minutes, Sadiq looked through the cooler window, and not seeing anyone
inside the store, exited the cooler. He called 911, then turned a corner in the
store and found Regmi lying face down on the floor in a pool of blood.
Regmi had been shot in the back of the head. He later died at Harris
Hospital. Medical examiner Nizam Peerwani testified that Regmi was killed by
a loose-contact gunshot wound, meaning that the muzzle of the gun was no
more than two inches from his skull. The bullet entered the back of Regmi’s
head and exited through the top of his skull. Although the bullet did not pass
2
through any vital brain structures and death was not instantaneous, the trauma
to the brain was so devastating that death was inevitable.
A time-lapse surveillance video from the convenience store, which was
admitted into evidence and shown to the jury, shows two masked and gloved
men walk into the store. About a minute later, the victim appears on the video,
holding both hands by his head. One of the masked men grasps the back of the
victim’s shirt in his left hand and points a revolver at the victim with his right
hand, sometimes pressing the muzzle into the victim’s hair. The video shows
the gunman straighten his left arm, apparently pushing the victim forward,
while the gunman steps back with the pistol pointed at the victim’s head. The
victim’s hair blows forward over his head—evidently from the blast of the pistol
shot—and he collapses forward into some shelving. The gunman runs from the
store before the victim even hits the floor, with the other masked man close
behind.
Police released stills of the video to the media in the hope of developing
a lead to solve the case. They received a tip, on the basis of which they
developed Darryl Quinones as a suspect. Quinones cooperated with the police
and testified at trial. Quinones testified that on the day of the murder,
Appellant and Julis Perales went to his house and asked him if he wanted to
rob someone for Christmas money. Quinones agreed and got into the car with
3
the other two. As they drove, the others told him that they were going to rob
a Fina station and talked about taking a plasma television and some money.
Appellant, who was driving, parked behind a motel near the Fina station and
sent Quinones into the store to see if it had a plasma television and whether
any police officers were in the area. Quinones went into the store and saw a
plasma television 2 but no police officers. He returned to the car and reported
his findings to the others.
Quinones testified that Appellant and Perales put on toboggan hats. On
the ride to the Fina station, Appellant had shown Quinones a gun but told him
it was not loaded. But as Appellant and Perales got out of the car, Perales said,
“Watch out, it’s loaded.” Appellant put the gun down the front of his pants,
and he and Perales walked to the Fina station. Quinones sat in the car while
they were gone.
Quinones testified that Appellant and Perales returned five to seven
minutes later. They were running, and Appellant was limping. When they got
in the car, Perales said, “I think you shot that [man] in the head.” Appellant
said, “I think I shot myself in the foot,” and he showed Quinones a bloody hole
2
… The television was on top of a cooler where customers and store
employees could watch it. After the attempted robbery, police found the
television broken on the floor.
4
in his shoe. Appellant and Perales were aggravated, scared, and angry and
were struggling with each other for control of the gun. Appellant asked Perales
why he had dropped the television; Perales said he didn’t know. Quinones
drove the car to his house. When he got out of the car, Appellant told him to
be careful and not to tell his best friend what had happened. The next day,
Appellant called Quinones and asked him, “[D]id you hear about some hoodlums
killing somebody at a store last night?,” and laughed about it. The State played
portions of the Fina station’s surveillance video, and Quinones identified
Appellant as the shooter from the clothes he was wearing.
Based on information provided by Quinones, police obtained a warrant for
Appellant’s arrest. They arrested Appellant in his girlfriend’s apartment. They
also found a pistol in the apartment after Appellant told them where to look and
his girlfriend consented to a search. The voluntariness of Appellant’s statement
regarding the gun’s location and his girlfriend’s consent to search are the
subjects of Appellant’s first point, and we will discuss the relevant evidence in
more detail later in this opinion. Detective Kyle Dishko noticed that Appellant
had an injured toe; he asked Appellant if that was where he had shot himself
during the robbery, and Appellant indicated that it was. Police recovered a pair
of shoes from the apartment; the left shoe had a small hole in the toe.
5
The grand jury indicted Appellant for capital murder. The State later
waived the death penalty. In his opening statement, Appellant’s counsel
conceded that Appellant shot and killed the victim but argued that the shooting
was accidental. Whether Appellant intended to kill the victim was hotly
contested at trial.
Jamie Becker, a firearms examiner with the Tarrant County Medical
Examiner’s office, testified that she matched bullet fragments found at the
crime scene to the pistol found in the apartment. Becker explained that the
pistol is a single-action revolver, meaning that the shooter had to cock the
hammer before pulling the trigger and firing a shot. She testified that the force
needed to pull the pistol’s trigger ranged from 3.63 to 4.53 pounds—within
factory specifications for that model—and that the trigger was not a “hair
trigger.” She also testified that the hole in the shoe seized from Appellant’s
girlfriend’s apartment was a bullet hole.
The jury determined that Appellant did intend to kill the victim and
convicted him of capital murder, and the trial court sentenced him to life in
prison.
6
Discussion
1. Suppression of Evidence
In his first point, Appellant argues that the trial court erred by denying his
motion to suppress and admitting into evidence statements Appellant made at
the time of his arrest and the items seized during the search of his girlfriend’s
apartment.
a. Standard of Review
We review a trial court’s ruling on a motion to suppress evidence under
a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.
Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.
1997). In reviewing the trial court’s decision, we do not engage in our own
factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App.
1990); Best v. State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no
pet.). The trial judge is the sole trier of fact and judge of the credibility of the
witnesses and the weight to be given their testimony. Wiede v. State, 214
S.W.3d 17, 24–25 (Tex. Crim. App. 2007); State v. Ross, 32 S.W.3d 853,
855 (Tex. Crim. App. 2000), modified on other grounds by State v. Cullen, 195
S.W.3d 696 (Tex. Crim. App. 2006). Therefore, we give almost total
deference to the trial court’s rulings on (1) questions of historical fact, even if
the trial court’s determination of those facts was not based on an evaluation of
7
credibility and demeanor, and (2) application-of-law-to-fact questions that turn
on an evaluation of credibility and demeanor. Amador, 221 S.W.3d at 673;
Montanez v. State, 195 S.W.3d 101, 108–09 (Tex. Crim. App. 2006);
Johnson v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002). But when
application-of-law-to-fact questions do not turn on the credibility and demeanor
of the witnesses, we review the trial court’s rulings on those questions de
novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607
(Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652-53.
Stated another way, when reviewing the trial court’s ruling on a motion
to suppress, we must view the evidence in the light most favorable to the trial
court’s ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818
(Tex. Crim. App. 2006). When the trial court makes explicit fact findings, we
determine whether the evidence, when viewed in the light most favorable to the
trial court’s ruling, supports those fact findings. Kelly, 204 S.W.3d at 818–19.
We then review the trial court’s legal ruling de novo unless its explicit fact
findings that are supported by the record are also dispositive of the legal ruling.
Id. at 819.
We must uphold the trial court’s ruling if it is supported by the record and
correct under any theory of law applicable to the case even if the trial court
gave the wrong reason for its ruling. State v. Stevens, 235 S.W.3d 736, 740
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(Tex. Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401, 404 (Tex.
Crim. App. 2003), cert. denied, 541 U.S. 974 (2004).
b. Suppression Hearing Testimony
Three witnesses testified at the hearing on Appellant’s motion to
suppress: Detective Kyle Dishko, Appellant, and Appellant’s girlfriend, Nicole
Trammel.
Detective Dishko testified he obtained a warrant for Appellant’s arrest and
located Appellant at Trammel’s apartment. He said that he and other officers
made contact with Trammel outside her apartment and asked her if Appellant
was inside. She first denied that he was in the apartment, but then admitted
that he was. Another detective asked Trammel if the officers could enter the
apartment, and she consented. Detective Dishko, Detective Shinpaugh, and
another officer entered the apartment, found Appellant—who had just come out
of the shower and was wearing only boxer shorts—in a bedroom, and
handcuffed him. Detective Shinpaugh, who had held Appellant at gunpoint,
holstered his weapon; Detective Dishko’s weapon was also holstered. They sat
Appellant on the bed, and Detective Shinpaugh told him he was under arrest for
capital murder. Detective Dishko advised Appellant of his Miranda rights.3
3
… See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
9
Detective Dishko testified that he asked Appellant if he understood his rights
and that Appellant indicated that he did by nodding.
Detective Dishko testified that he then asked Appellant if he wanted to
“speak to me about what was going on” and that Appellant again answered by
nodding; Detective Dishko asked if he meant “yes,” and Appellant said, “Yes.”
Detective Dishko asked Appellant “if the gun he used to shoot the man was in
the apartment”; Appellant did not respond. Detective Dishko said that he
explained to Appellant that “we were going to find the gun if it was in the
bedroom or in the apartment and that his girlfriend was outside and that it
would look like he was cooperating with us if he turned the gun over to us.”
Appellant did not respond, but he did ask for some clothes. Appellant told
Detective Dishko what clothes he wanted, and the detective got them.
Detective Shinpaugh told Appellant that “we were gonna find the gun anyway
and he did not want us going through all his girlfriend’s things, and that we
would possibly [obtain] a search warrant.” Detective Dishko testified that
Appellant then said, “[Y]ou got me, it’s under the dresser.” He looked under
the dresser and saw a black bag, but he did not remove it. Detective Dishko
asked Detective Shinpaugh to help Appellant get dressed. Meanwhile,
Detective Dishko went outside to talk to Trammel.
10
Trammel was sitting in the back of a patrol car with her roommate; a
police officer was sitting in the front seat. Detective Dishko explained that
officers had seated her in the patrol car because it was a cool day and she was
wearing shorts and because media personnel were beginning to arrive on the
scene. He told Trammel that Appellant was under arrest for capital murder,
that Appellant had said the gun used in the killing was in her bedroom, and that
the police wanted to search her bedroom for the weapon and the clothes
Appellant was wearing at the time of the killing. Trammel said she did not have
a problem with letting the police into her apartment. Detective Dishko then got
a consent to search form and went over it line by line with Trammel, and she
signed the form. Detective Dishko then went back into the apartment, removed
the bag from under the dresser, opened it, and found the pistol later determined
to be the murder weapon.
Appellant testified that he would not have told Detective Dishko where
the gun was if the detectives had not told him that they would get a warrant,
go through Trammel’s possessions, and find the gun anyway. On cross-
examination, he denied having told the detectives where the gun was; he said
that they searched the room without asking and found the gun.
Trammel testified that she read the consent form and signed it, but she
said that she would not have signed it if she had known she did not have to.
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She could not recall if she merely read the consent form to herself or if
Detective Dishko explained it to her. She said that Detective Dishko told her
that they had found the gun before he asked her to consent to the search. On
cross-examination, Trammel testified that it was “okay” with her if police
searched her apartment and that her regret in having signed the consent form
arose from the inconvenience of having to testify at the suppression hearing.
At the conclusion of the hearing, the trial court pronounced oral findings
on the record, including findings that Trammel gave police consent to enter the
apartment, that Appellant’s statements to the detectives were voluntary, and
that police located the pistol as a result of Appellant’s statements to them.
c. Discussion
i. Appellant’s statement regarding pistol
Appellant first contends that his statement to Detective Dishko that “you
got me, [the pistol is] under the dresser” resulted from police coercion because
the police told him that it would look like he was cooperating if he told them
where the gun was and that they would get a search warrant and “tear up” his
girlfriend’s possessions if he didn’t tell them where the gun was.
An accused’s statement is admissible evidence if the accused made it
freely and voluntarily and without compulsion or persuasion. T EX. C ODE . C RIM.
P ROC. A NN. art. 38.21 (Vernon 2005). When deciding whether a statement was
12
voluntary, we consider the totality of the circumstances in which the statement
was obtained. Creager v. State, 952 S.W.2d 852, 855 (Tex. Crim. App.
1997); Reed v. State, 59 S.W.3d 278, 281 (Tex. App.—Fort Worth 2001, pet.
ref’d). A confession is involuntary if circumstances show that the defendant’s
will was “overborne” by police coercion. Creager, 952 S.W.2d at 856. The
defendant’s will may be “overborne” if the record shows that there was
“official, coercive conduct of such a nature” that a statement from the
defendant was “unlikely to have been the product of an essentially free and
unconstrained choice by its maker.” Alvarado v. State, 912 S.W.2d 199, 211
(Tex. Crim. App. 1995); Frank v. State, 183 S.W.3d 63, 75 (Tex. App.—Fort
Worth 2005, pet. ref’d). An accused’s oral statement made as a result of
custodial interrogation is admissible if it contains assertions of fact that are
found to be true and that tend to establish the guilt of the accused, such as a
finding of secreted property or the instrument with which the accused states
the offense was committed. T EX. C ODE C RIM. P ROC. A NN. art. 38.22, § 3(c)
(Vernon 2005).
If a promise made by a person in authority induced a confession, then
that confession is inadmissible. Penry v. State, 903 S.W.2d 715, 748 (Tex.
Crim. App.), cert. denied, 516 U.S. 977 (1995); Alvarez v. State, 649 S.W.2d
613, 620 (Tex. Crim. App. 1982), cert. denied, 464 U.S. 849 (1983). But
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before a promise will render a confession inadmissible, the promise must be
shown to have induced the confession because it was positive for the
defendant, made or sanctioned by someone in authority, and of such an
influential nature that appellant might speak untruthfully in response. Muniz v.
State, 851 S.W.2d 238, 254 (Tex. Crim. App.), cert. denied, 510 U.S. 837
(1993). In our review, we look to whether the circumstances of the promise
would reasonably induce a defendant to admit to a crime he did not commit.
Sossamon v. State, 816 S.W.2d 340, 345 (Tex. Crim. App. 1991). A promise
to inform the court or prosecutor that an accused was cooperative can render
an accused’s statement involuntary. Johnson v. State, 68 S.W.3d 644,
654–55 (Tex. Crim. App. 2002).
Here, Detective Dishko merely represented that it would look like
Appellant was cooperating if he told police where the gun was; he did not
promise or suggest leniency, nor was his statement likely to induce an innocent
person to confess to capital murder. See Muniz, 851 S.W.2d at 254. Thus,
we hold that Detective Dishko’s representation did not render Appellant’s
statement involuntary.
Appellant next argues that his free will was overborne by Detective
Shinpaugh’s statement that police”could possibly obtain a warrant” and find the
gun without Appellant’s cooperation. In the context of a consensual search,
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an otherwise voluntary consent is not vitiated by the fact that an officer asserts
that he could or would obtain a search warrant if consent is refused. Grant v.
State, 709 S.W.2d 355, 357–58 (Tex. App.—Houston [14th Dist.] 1986, no
pet.) (citing Beaupre v. State, 526 S.W.2d 811, 815 (Tex. Crim. App.), cert.
denied, 423 U.S. 1037 (1975)). By the same token, the voluntariness of
Appellant’s statement telling Detective Dishko where to find the gun is not
vitiated by Detective Shinpaugh’s assertion that the police could get a search
warrant.
Appellant relies on Paprskar v. State for the proposition that police
officers’ threat to obtain a search warrant renders consent to search
involuntary, and, by analogy, rendered Appellant’s statement involuntary in this
case. 484 S.W.2d 731, 739 (Tex. Crim. App. 1972). Paprskar is easily
distinguishable because the “totality of the circumstances” in that case was
vastly different from the totality in this case. In Paprskar, the defendant’s wife
consented to a search of their home after police entered the home, pulled her
out of the bathroom, treated her roughly, dragged her into her living room, and
pushed her into a chair while twenty or more police officers—all brandishing
pistols or shotguns and some pointing their shotguns at her—crowded into the
room and formed a semicircle around her. Id. at 734. The officers did not
warn her of her rights. Id. at 735. An officer told her to sign a consent-to-
15
search form or they would get a warrant and “tear the place up anyway.” Id.
She signed the form but testified that she did so only because she was afraid
not to. Id. The court of criminal appeals held that from the totality of the
circumstances, her consent to search was not voluntary. Id. at 739.
By contrast, in this case, after arresting Appellant, the detectives put
away their weapons. Detective Dishko warned Appellant of his rights, and
Appellant indicated that he wanted to talk to the detectives anyway. He was
wearing only boxer shorts, but Detective Dishko agreed to get clothes for him.
Detective Dishko described the scene as “very quiet and low key.” Viewing the
totality of the circumstances, we cannot say that Appellant’s statement was
involuntary.
ii. Trammel’s consent to search
Appellant next contends that Trammel’s consent to the search of her
apartment was involuntary. Under the Fourth Amendment, a search conducted
without a warrant issued on probable cause is per se unreasonable unless it
falls within one of the well-established exceptions to the warrant requirement.
Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043–44
(1973); Reasor v. State, 12 S.W.3d 813, 817 (Tex. Crim. App. 2000).
Consent to search is one of the well-established exceptions to the constitutional
requirements of both a warrant and probable cause. Carmouche, 10 S.W.3d
16
at 331 (citing Schneckloth, 412 U.S. at 219, 93 S. Ct. at 2043–44). The
federal constitution requires the State to prove voluntary consent by a
preponderance of the evidence, but the Texas constitution requires proof by
clear and convincing evidence. Id.
In Schneckloth, the United States Supreme Court considered the
definition of “voluntary consent” in the context of a search and seizure. 412
U.S. at 219, 93 S. Ct. at 2044. “[W]hen the subject of a search is not in
custody and the State attempts to justify a search on the basis of his consent,
the Fourth and Fourteenth Amendments require that it demonstrate that the
consent was in fact voluntarily given, and not the result of duress or coercion,
express or implied.” Id. at 248, 93 S. Ct. at 2059. Voluntariness is a question
of fact to be determined from the totality of the circumstances. Id. at 249, 93
S. Ct. at 2059.
When determining voluntariness, courts consider various factors,
including whether the consenting person was in custody, whether he was
arrested at gunpoint, whether he had the option of refusing consent, the
constitutional advice given to the accused, the length of detention, the
repetitiveness of the questioning, and the use of physical punishment. See
Reasor, 12 S.W.3d at 818; Laney v. State, 76 S.W.3d 524, 532 (Tex.
App.—Houston [14th Dist.] 2002), aff'd, 117 S.W.3d 854 (Tex. Crim. App.
17
2003). A warning that an individual does not have to consent to a search and
has the right to refuse is not required nor essential. Meeks v. State, 692
S.W.2d 504, 510 (Tex. Crim. App. 1985).
In this case, Trammel was not in custody, though she was sitting in the
back of a patrol car. Detective Dishko advised her that she was not under
arrest and circled the words “I am not currently under arrest” on the consent
form. Trammel did not testify that Detective Dishko threatened or coerced her
into signing the consent to search form. She did testify that she would not
have signed the form if she had known that she did not have to, but she also
testified that she read the form, and the form states:
• I understand that unless I give my consent to the search, the
officer cannot search the property unless the officer obtains
a search warrant from a Judge . . . .
• The officer has not told me that he will seek a search warrant
if I do not consent to the search.
....
• I understand that I can withdraw my consent at any time.
Detective Dishko testified that he went over every line of the form with
Trammel. She testified that she did not understand the form, but she also
testified that she was a high school graduate and was attending classes at
Tarrant County College. Trammel testified that she was “okay” with the search
18
at the time and that her regret in having signed the consent form arose from the
inconvenience of having to testify at the suppression hearing.
Deferring to the trial court’s determination of the witnesses’ demeanor
and credibility of the witnesses, see Amador, 221 S.W.3d at 673, we hold that
the State proved by clear and convincing evidence that Trammel voluntarily
consented to the search of her bedroom. Therefore, we overrule Appellant’s
first point.
2. Failure to make findings of fact and conclusions of law after suppression
hearing
In his second point, Appellant argues that the trial court erred by failing
to make written findings of fact and conclusions of law with respect to its
rulings on Appellant’s motion to suppress. A trial court must make specific
findings of fact when a question is raised as to the voluntariness of an
accused’s statement and the trial court determines that the statement was
voluntarily made. T EX. C ODE C RIM. P ROC. A NN. art. 38.22, § 6 (Vernon 2005).
Such findings are mandatory even if the defendant does not object to the trial
court’s failure to make them. Urias v. State, 155 S.W.3d 141, 142 (Tex. Crim.
App. 2004). Although section 38.22 contemplates written findings (“the order
[containing the findings of fact] shall be filed among the papers of the cause”),
the trial court satisfies the article when it dictates findings into the record and
19
the reporter transcribes them and makes them part of the record. Murphy v.
State, 112 S.W.3d 592, 601–02 (Tex. Crim. App. 2003), cert. denied, 541
U.S. 940 (2004). That has been done in this case. Therefore, we overrule
Appellant’s second point. See id.
3. Factual sufficiency of evidence to show intent to cause death
In his final point, Appellant argues that the evidence is factually
insufficient to support the jury’s finding that he intended to cause the victim’s
death.
a. Standard of review
When reviewing the factual sufficiency of the evidence to support a
conviction, we view all the evidence in a neutral light, favoring neither party.
Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006); Drichas v.
State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005). We then ask whether
the evidence supporting the conviction, although legally sufficient, is
nevertheless so weak that the fact-finder’s determination is clearly wrong and
manifestly unjust or whether conflicting evidence so greatly outweighs the
evidence supporting the conviction that the fact-finder’s determination is
manifestly unjust. Watson, 204 S.W.3d at 414–15, 417; Johnson v. State, 23
S.W.3d 1, 11 (Tex. Crim. App. 2000). To reverse under the second ground,
we must determine, with some objective basis in the record, that the great
20
weight and preponderance of all the evidence, though legally sufficient,
contradicts the verdict. Watson, 204 S.W.3d at 417.
In determining whether the evidence is factually insufficient to support a
conviction that is nevertheless supported by legally sufficient evidence, it is not
enough that this court “harbor a subjective level of reasonable doubt to
overturn [the] conviction.” Id. We cannot conclude that a conviction is clearly
wrong or manifestly unjust simply because we would have decided differently
than the jury or because we disagree with the jury’s resolution of a conflict in
the evidence. Id. We may not simply substitute our judgment for the fact-
finder’s. Johnson, 23 S.W.3d at 12; Cain v. State, 958 S.W.2d 404, 407
(Tex. Crim. App. 1997). Unless the record clearly reveals that a different result
is appropriate, we must defer to the jury’s determination of the weight to be
given contradictory testimonial evidence because resolution of the conflict
“often turns on an evaluation of credibility and demeanor, and those jurors were
in attendance when the testimony was delivered.” Johnson, 23 S.W.3d at 8.
Thus, we must give due deference to the fact-finder’s determinations,
“particularly those determinations concerning the weight and credibility of the
evidence.” Id. at 9.
An opinion addressing factual sufficiency must include a discussion of the
most important and relevant evidence that supports the appellant’s complaint
21
on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
Moreover, an opinion reversing and remanding on factual insufficiency grounds
must detail all the evidence and clearly state why the finding in question is
factually insufficient and under which ground. Goodman v. State, 66 S.W.3d
283, 287 (Tex. Crim. App. 2001); Johnson, 23 S.W.3d at 7.
b. Discussion
Appellant spends several pages of his brief discussing two Supreme Court
cases—Ring and Apprendi—apparently in an effort to show that the indictment
in this case was deficient. See Ring v. Arizona, 536 U.S. 584, 122 S. Ct.
2428 (2002); Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).
Ring and Apprendi hold that certain facts must be alleged by the State and
found by the jury beyond a reasonable doubt before punishment may be
increased beyond the statutory maximum for the crime for which the jury found
the defendant guilty. Ring, 536 U.S. 584, 609, 122 S. Ct. 2428, 2443
(declaring unconstitutional an Arizona law that enhanced life imprisonment to
death sentence upon certain findings made solely by a judge and not a jury);
Apprendi, 530 U.S. 466, 490–92, 120 S. Ct. 2348, 2363–64 (declaring
unconstitutional a New Jersey law that enhanced punishment upon judge-made
findings).
22
Ring, Apprendi, and their progeny are simply inapplicable to this case.
The indictment alleged that Appellant intentionally caused the victim’s death by
shooting him with a firearm during the course of committing or attempting to
commit a robbery. The court’s charge tracked the indictment’s language. Both
the indictment and the charge set out the essential elements of capital murder.
See T EX. P ENAL C ODE A NN. §§ 19.02(b)(1) (Vernon 2003), 19.03(a)(2) (Vernon
Supp. 2007). The jury found those elements beyond a reasonable doubt. The
statutory maximum—and mandatory—punishment for capital murder when the
State waives the death penalty is life imprisonment without parole. Id.
§§ 12.31(a) (Vernon Supp. 2007), 19.03(b). Thus, the indictment alleged, and
the jury found, all of the elements necessary to impose a mandatory life
sentence, and the concerns addressed by Ring and Apprendi play no role in this
case.
We turn now to the evidence that touches upon Appellant’s intent to
cause the victim’s death. In addition to the evidence recounted earlier in this
opinion, the following evidence is relevant to intent. Appellant presented the
testimony of Max Courtney, a forensic consultant. Courtney testified
that—based largely on the security camera’s depiction of the
killing—Appellant’s shooting the victim was “consistent with a sympathetic
trigger pull.” He explained that sympathetic trigger pull occurs when a person
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who has their finger on a gun’s trigger accidentally pulls the trigger in response
to an external stimulus such as “stress, [a] sudden shocking event, a bump, a
distraction, or whatever.” Courtney testified that the facts that Appellant
apparently shot himself in the foot during the attempted robbery, which
presumably was accidental and possibly another sympathetic trigger pull; 4 was
wearing gloves (which decreased his trigger finger’s sensitivity); was looking
away from the victim when he fired the fatal shot; and killed the victim when
the victim might have opened the cash register for the robbers all support the
possibility of sympathetic trigger pull. He agreed with Jamie Becker that the
force needed to pull the gun’s trigger was within the average range for the
model of gun and that it could not be characterized as a “light trigger pull.”
To summarize, before the jury was evidence that Appellant entered the
Fina station with the intent to commit robbery; carried a single-action pistol of
normal trigger-pull that he knew to be loaded; cocked the hammer; pulled the
trigger and shot himself in the foot, presumably on accident; cocked the
hammer again; held the pistol close to the victim’s head, at times so close that
4
… The security video does not show Appellant shooting himself in the
foot. A chipped tile and bullet fragments found in the store suggest that he
shot himself while inside the store. And because Appellant fled the store
immediately after shooting the victim, he must have shot himself in the foot
before he shot the victim.
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the barrel visibly moved the victim’s hair; pulled the trigger a second time with
the muzzle within two inches of the victim’s head, killing the victim; and
immediately sprinted out of the store before the victim’s body hit the floor.
Also before the jury was Courtney’s testimony that the fatal shot was
“consistent with sympathetic trigger pull.”
Considering all of the evidence in a neutral light, we cannot say that the
evidence supporting the jury’s finding that Appellant intended to cause the
victim’s death is so weak or so greatly outweighed by the conflicting evidence
that the jury’s determination is clearly wrong and manifestly unjust. Thus, the
evidence is factually sufficient to support the finding that Appellant intended to
cause the victim’s death. See Watson, 204 S.W.3d at 414–15, 417. We
overrule Appellant’s third point.
Conclusion
Having overruled all of Appellant’s points, we affirm the trial court’s
judgment.
ANNE GARDNER
JUSTICE
PANEL B: LIVINGSTON, HOLMAN, and GARDNER, JJ.
DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)
DELIVERED: June 26, 2008
25
Jared Dwayne Birmingham v. State
Combined Opinion