TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-01-00208-CR
Frederick Leamon Grayson, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
NO. 51,591, HONORABLE RICK MORRIS, JUDGE PRESIDING
A jury found appellant Frederick Leamon Grayson guilty of aggravated assault. See
Tex. Pen. Code Ann. § 22.02(a)(2) (West 1994). The jury assessed punishment, enhanced by
a previous felony conviction, at imprisonment for life and a $10,000 fine. In his only point of
error, appellant contends the evidence is factually insufficient to sustain the guilty verdict. Finding
no merit to this contention, we affirm the conviction.
Preservation of error
The State urges that appellant did not preserve his factual sufficiency claim for review.
The State acknowledges that the legal sufficiency of the evidence may be challenged for the first time
on appeal. Rankin v. State, 46 S.W.3d 899, 901 (Tex. Crim. App. 2001). The State contends,
however, that a factual sufficiency claim must be raised in the trial court in order to preserve the issue
for appeal under the terms of Texas Rule of Appellate Procedure 33.1. This rule provides that as a
prerequisite to presenting a complaint for appellate review, the record must show that a timely and
specific request, objection, or motion was made to and ruled on by the trial court. Tex. R. App. P.
33.1(a)(1).
The State does not suggest the manner by which a factual sufficiency complaint should
be preserved in the trial court. A motion for directed verdict is a challenge to the legal sufficiency
of the evidence. Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). A motion for new
trial is a prerequisite to appellate review in a criminal case only when necessary to adduce facts not
in the record. Tex. R. App. P. 21.2; see Davila v. State, 930 S.W.2d 641, 648 (Tex. App.—El Paso
1996, pet. ref’d) (motion for new trial unnecessary in order to raise factual sufficiency claim on
appeal).
This Court has held that both the legal and the factual sufficiency of the State’s
evidence may be challenged for the first time on appeal. Givens v. State, 26 S.W.3d 739, 741 (Tex.
App.—Austin 2000, pet. ref’d). The State does not persuade us to alter that view.
Factual sufficiency
Latoya Scott was shot in the shoulder as she slept on the night of May 20, 2000. She
was unable to identify the person who shot her, but did testify that appellant, the father of her child,
had previously threatened to kill her. Scott’s companion on the night of the shooting, Eugene Scull,
testified that he was awakened by a noise. He then saw appellant lean through the bedroom window
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and fire at Scott. Killeen Police Officer Dora Major testified that Scull told her at the scene that Scott
had been shot by the father of her child. Officer Monty Steven Miller testified that his written report
of the shooting reflected that Scull was not able to identify the shooter. Scull’s initial written
statement to the police did not mention appellant.
Jerry Lee Davis, a jail inmate, testified that appellant told him in a jail conversation that
he shot his girlfriend because she was “with another guy.” Defense witness Lawrence Kendrick
testified that appellant was with him at the time of the shooting.
A factual sufficiency review asks whether a neutral review of all the evidence, both
for and against the finding of guilt, demonstrates that the proof of guilt is so obviously weak or so
greatly outweighed by contrary proof as to undermine confidence in the jury’s determination.
Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). We must maintain appropriate deference
to the jury’s verdict by reversing for factual insufficiency only when the record clearly indicates that
the verdict is wrong and manifestly unjust. Id. at 9; Reina v. State, 940 S.W.2d 770, 773 (Tex.
App.—Austin 1997, pet. ref’d). We are not free to reweigh the evidence and set aside a verdict
merely because we feel that a different result is more reasonable. Clewis v. State, 922 S.W.2d 126,
135 (Tex. Crim. App. 1996); Reina, 940 S.W.2d at 773. A decision is not manifestly unjust merely
because the fact finder resolved conflicting views of the evidence in the State’s favor. Roise v. State,
7 S.W.3d 225, 233 (Tex. App.—Austin 1999, pet. ref’d).
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Finding no manifest injustice in the jury’s verdict, we overrule the point of error and
affirm the judgment of conviction.
__________________________________________
Marilyn Aboussie, Chief Justice
Before Chief Justice Aboussie, Justices B. A. Smith and Puryear
Affirmed
Filed: December 13, 2001
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Frederick Leamon Grayson v. State
Combined Opinion