In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-07-00102-CR
______________________________
FRANK ANDREWS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 124th Judicial District Court
Gregg County, Texas
Trial Court No. 35419-B
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
Frank Andrews appeals from his conviction for burglary of a building. A jury convicted him and assessed his punishment at two years' confinement in a state-jail facility.
He contends that the trial court erred by instructing the jury to examine the evidence of his prior convictions before jury argument and deliberation on punishment, and that the evidence is legally and factually insufficient to support his conviction.
We first address the evidentiary contentions. In reviewing the legal sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000).
In a factual sufficiency review, we review all the evidence, but do so in a neutral light and determine whether the evidence supporting the verdict is so weak or is so outweighed by the great weight and preponderance of the evidence that the jury's verdict is clearly wrong or manifestly unjust. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007); Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006); Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006); Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996).
The evidence showed that computers and other business machines were stolen from the offices of Pro Test after closing hours. Robert Walker, the owner of a janitorial company, testified that he had waxed the floor of the Pro Test offices and left the building while it dried. He returned later and found a maroon Ford Mustang parked outside, and also testified that he saw some computer equipment on the ground next to the car. When he went in, he thought that perhaps someone was working on the computers--he saw a person there, kneeling next to a desk. The person did not respond to his greeting, and the person walked outside and drove away. As Walker made the rounds of the office checking the wax, he saw a broken window and realized some equipment was missing. He telephoned the business owner, Steve Stidham, who called police. About $12,000 to $15,000 worth of equipment was taken in the burglary. None was recovered.
Several weeks after the encounter, Walker saw and recognized the Mustang and its driver. He took down the license number, which was relayed to police. Walker was shown a photographic lineup and he identified Andrews as the person who was inside Pro Test. There was also testimony from Stidham that Andrews had briefly been an employee of Pro Test.
Andrews contends that the evidence is insufficient because Walker did not see him in actual possession of the office equipment and because there was nothing else to connect him to the missing items. The items were never recovered, and there was no link to Andrews besides Walker's and Stidham's testimony. He argues that this constitutes nothing more than mere presence, and thus guilt has not been adequately proven. That is not, however, all that may be gleaned from the evidence. Items of the type stolen were seen on the ground next to the Mustang, there was no evidence of any valid reason for Andrews to be inside the building, and the building had been broken into. Walker was able to identify Andrews, and the evidence shows that they were in close proximity inside the building.
There was evidence that at about 2:00 a.m. on the morning of February 27, 2006, Andrews was inside a building which had been broken into, that he left when confronted, and that items of the type stolen were on the ground next to his automobile. The jury can draw multiple reasonable inferences as long as each inference is supported by evidence presented at trial. The jury may not come to conclusions based on mere speculation or factually unsupported inferences or presumptions. Hooper v. State, 214 S.W.3d 9, 15-16 (Tex. Crim. App. 2007). Because of the time, the location, and the proximity of Andrews to the type of items stolen, this is evidence which could have been understood by a jury as more than mere presence at a crime scene, and from which it could reasonably infer that Andrews had broken into the building, taken the items, and left with them.
The evidence is legally and factually sufficient.
Andrews also argues that the court erred by directing the jury to examine the documentary proof of his prior convictions before argument on punishment. The record indicates that after closing, in the midst of discussing the jury charge, it became clear that part of the charge was missing, and while waiting for that part to be brought in, the court allowed the panel to return to the jury room.
THE COURT: Folks, I'm going to let you do this: I'm going to let you go back in the jury room. You can review those documents. Be sure you bring them out when you come back out and we'll get this Charge going. We won't be long.
There was no objection to this procedure, and counsel has been unable to direct us to any authority that suggests that under these circumstances, it was necessarily error. The documents were in evidence, and even though the jury had not previously seen them, there is no convincing explanation made of why the jury should not have been allowed to do so before final arguments. Counsel suggests that this constituted a comment on the weight of the evidence, evidently based on the fact that Andrews had not been placed on the stand to establish that the jury might have the option of placing him on community supervision. Nevertheless, in any event, the documents were in evidence and would have been available to the jury to review.
Regardless of whether any error might exist, however, there was no objection to this procedure. In the absence of a timely objection, this claim of error has not been preserved for our review. See Tex. R. App. P. 33.1.
We affirm the judgment.
Bailey C. Moseley
Justice
Date Submitted: February 20, 2008
Date Decided: February 21, 2008
Do Not Publish
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-10-00228-CR
______________________________
JOSHUA WILLIAM LAY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 354th Judicial District Court
Hunt County, Texas
Trial Court No. 26176
Before Morriss, C.J., Carter and Moseley, JJ.
Opinion by Justice Moseley
O P I N I O N
Joshua William Lay did not dispute that he tucked a nine-millimeter pistol into his pocket, pedaled his bicycle to Darryl Dwane Feggetts apartment, and shot Feggett four times, killing him. Rather, he disputed the motives for his actions. A jury convicted Lay of murder and sentenced him to thirty years imprisonment. On appeal, Lay complains that the evidence was insufficient to establish that he intentionally or knowingly killed Feggett and contends that the trial court erred in refusing to submit instructions to the jury concerning the lesser-included offense of manslaughter and on self-defense. We affirm the judgment of the trial court because we find the evidence sufficient to establish the requisite mens rea for murder, hold the inclusion of manslaughter as a lesser-included offense was unwarranted, and conclude that Lay was not entitled to an instruction on self-defense.
I. Sufficient Evidence Established that Lay Intentionally or Knowingly Killed Feggett
A. Standard of Review
In reviewing the legal sufficiency of the evidence, we review all the evidence in the light most favorable to the jurys verdict to determine whether any rational jury could have found the essential elements of murder beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (414 decision) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.Texarkana 2010, pet. refd) (citing Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)). Our rigorous legal sufficiency review focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at 91718 (Cochran, J., concurring). We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 31819).
Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically correct jury charge sets out the law, is authorized by the indictment, does not unnecessarily increase the States burden of proof or unnecessarily restrict the States theories of liability, and adequately describes the particular offense for which the defendant was tried. Id. In this case, Lay committed murder if he intentionally or knowingly caused Feggetts death. Tex. Penal Code Ann. § 19.02(b)(1) (West 2011).
B. The Record
Feggetts neighbor at the Greentree apartment complex, Juan Davis, witnessed Feggett, Feggetts girlfriend, and Lay laughing and joking outside the convenience store. Lay had just met Feggett and felt that they could be friends. Lay accepted an invitation from Feggett to attend a cookout at Feggetts apartment and gave Feggett a $100.00 bill to pay for groceries for the cookout. Feggett and his girlfriend went to Wal-Mart to purchase groceries and instructed Lay to meet them at their apartment.
When Lay went to Feggetts apartment to attend the cookout, he discovered that Feggett had liedthere was no cookout to attend. Incensed, Lay demanded the return of his money. Feggett (who, unbeknownst to Lay, was a drug addict) refused to return the money, became belligerent, held a knife to Lays throat, and demanded that Lay leave.
Davis was socializing that evening with his neighbor, Quenten Mays, on the Greentree apartment grounds when they witnessed a mad, irritated Lay exit Feggetts apartment. Lay told Davis, Im going to kill him, said to Mays that somebodys going to die, and then took off on his bike. Apartment resident Andre Smith spoke with Feggett afterward and related that Feggett was pretty upset, like he was scared for his life. Smith also told the jury that Feggett had said, Im being threatened. Somebodys going to hurt me.
Lay angrily pedaled back to his rental home. He stewed over the altercation, grabbed his friends gun, rode his bicycle back to Feggetts apartment, and confronted him about the previous argument and the theft of his money. Lay said that he just wanted to make [Feggett] feel how I felt. Lay offered the explanation that he became afraid when Feggett walked toward him and reached in his pocket, whereupon Lay drew the pistol, shot Feggett, and ran. Lay admitted that Feggett had no weapon in his hands at the time he was shot.
Davis heard gunshots at the apartment complex and Smith witnessed the shooting. Smith testified that Feggett did not have a knife and did not move toward Feggett before the shooting began. According to Smith, the two were just talking when Feggett was shot. Davis ran toward the commotion and saw [Lay] cutting across the top balcony going down the stairs. Mays witnessed Lay running across the parking lot. Davis held [Feggett] as he took his last breaths.
Officer Phillip Spencer received a tip as to the location of Lays home and found him asleep in his bedroom. A consensual search of the home revealed an empty 9 millimeter pistol box and a box of 9 millimeter rounds missing a few rounds from the box. The pistol was found hidden in the attic, and a bicycle matching the description given by witnesses was located in the garage. Lay was taken to the police department for questioning.
Detective Felicia White, who interviewed Lay testified:
to my understanding . . . they had a confrontation earlier, . . . the victim had drawn a knife on him. They had an altercation. The Defendant left the area, rode home to Anderson Street, got a gun, came back to Greentree Apartments, confronted the victim and said that he wanted him to make him feel like he did.
C. Analysis
Lay contends that the evidence was insufficient to establish the intentional or knowing mens rea element of murder. A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result. Tex. Penal Code Ann. § 6.03(a) (West 2011). Whether Lay possessed the intent to kill was a question of fact for the jury to determine. Brown v. State, 122 S.W.3d 794, 800 (Tex. Crim. App. 2003). In determining whether intent to kill was proven, the jury can use its collective common sense and may apply common knowledge and experience. See Rodriguez v. State, 90 S.W.3d 340, 355 (Tex. App.El Paso 2001, pet. refd). The jury may infer the intent to kill from any evidence that it believes proves the existence of that intent. Brown, 122 S.W.3d at 800. Intent can be inferred from such circumstantial evidence as the persons acts, words, and conduct because [o]nes acts are generally reliable circumstantial evidence of ones intent. Laster v. State, 275 S.W.3d 512, 524 (Tex. Crim. App. 2009); Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004). The jury may also infer intent to kill from the defendants use of a deadly weapon, such as a gun, unless it would be unreasonable to infer that death or serious bodily injury could result from the particular use of the weapon. Brown, 122 S.W.3d at 80001; Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996).
The jury heard that Lay became angry at Feggett. Davis and Mays both testified that Lay said he was going to kill Feggett. Lay pedaled a bicycle to his home, retrieved a gun, and returned on the bicycle to Feggetts apartment, maintaining that his intention was to make Feggett feel how he had made Lay feel when Feggett had placed a knife at his throat. Smith testified the two were just talking when Lay drew his deadly weapon and shot Feggett. Lay ran after the shooting and hid the pistol in his attic.
Viewing the evidence in a light most favorable to the verdict, we find that a rational jury could have found beyond a reasonable doubt that Lay intentionally or knowingly killed Feggett. We overrule Lays legal sufficiency challenge.
II. Trial Court Was Not Required to Submit Manslaughter as a Lesser-Included Offense
Lay argues that the trial court erred in denying his request to include manslaughter in the jury charge as a lesser-included offense. The Texas Court of Criminal Appeals has implemented a two-prong test to determine whether a charge on a lesser-included offense should be given. McKinney v. State, 207 S.W.3d 366, 370 (Tex. Crim. App. 2006). A party is entitled to such a charge when (1) the offense is a lesser-included offense of the offense charged in the indictment, and (2) the record includes some evidence to permit a rational jury to find that if the defendant was guilty, he was guilty only of the lesser offense, but not guilty of the greater. Id.; Guzman v. State, 188 S.W.3d 185, 188 (Tex. Crim. App. 2006); Salinas v. State, 163 S.W.3d 734, 741 (Tex. Crim. App. 2005); Wesbrook v. State, 29 S.W.3d 103, 113 (Tex. Crim. App. 2000). Manslaughter is a type of homicide which requires the perpetrator to possess a reckless state of mind which prompts the prohibited act. Tex. Penal Code Ann. § 19.04 (West 2011). A person acts recklessly when he is aware of, but consciously disregards, a substantial and unjustifiable risk. Tex. Penal Code Ann. § 6.03(c) (West 2011). Manslaughter is a lesser-included offense of murder. Moore v. State, 969 S.W.2d 4, 9 (Tex. Crim. App. 1998); see Tex. Code Crim. Proc. Ann. art. 37.09(3) (West 2006). Thus, we focus on the second prong of the test.
Lay argues that he did not have the intention to kill Feggett, but that he only wanted to obtain an apology from Feggett, and wanted him to feel what it felt like to be threatened with a deadly weapon.[1] This is the sole evidence that it was not Lays intention to kill Feggett. [T]he act of pointing a loaded gun at someone and shooting it toward that person at close range demonstrates an intent to kill. Ex parte Thompson, 179 S.W.3d 549, 556 n.18 (Tex. Crim. App. 2005). Lay was indicted and tried for using a firearm to slay Feggett. A firearm is a deadly weapon per se. Stewart v. State, 532 S.W.2d 349, 350 (Tex. Crim. App. 1976). When a deadly weapon per se is used in a deadly manner and death results, there is no need to give a charge of a lesser-included offense even though the defendant testified he did not intend to kill the victim. Womble v. State, 618 S.W.2d 59, 65 (Tex. Crim. App. [Panel Op.] 1981) (defendant not entitled to charge on aggravated assault as lesser-included offense). Lays denial that he intended to kill the victim does not, of itself, raise the issue of manslaughter. Munoz v. State, 932 S.W.2d 242, 245 (Tex. App.Texarkana 1996, no pet.). To raise the issue of manslaughter, there must be evidence of a lack of intent to kill and evidence that [the defendant] acted recklessly while ignoring a known risk. Id.
We do not believe there is evidence that Lay acted recklessly while ignoring a known risk. Lay left Feggetts residence, rode his bicycle to his own neighborhood where he obtained a gun, returned to Feggetts home, aimed the gun at Feggett, and shot him four times. This is not evidence of reckless behavior. Moreover, the statements that Lay made to Davis and Mays, together with Lays admission that Feggett had no weapon in his hands at the time he was shot, remained uncontested. The physical evidence shows that Feggett was shot four times from close range with one of the four bullets striking his forehead. The evidence shows a deliberate and voluntary act, and there is no dispute that when Lay drew the weapon, he intended to use it. Lays testimony that he did not intend to kill contained no evidence of a reckless state of mind and there was no other evidence of that mindset. Therefore, we find there was no evidence in the record from which a rational trier of fact could determine that Lay was guilty only of manslaughter.
We overrule this point of error.
III. Lay Was Not Entitled to an Instruction on Self-Defense
Lay complains that the trial court erred in refusing to instruct the jury on the issue of self-defense. After relating the facts of the shooting, White testified, I dont think thats self-defense, and told the jury that Lay was unlawfully carrying a weapon.
Under Section 9.31 of the Texas Penal Code, a person is justified in using force against another when and to the degree [he] reasonably believes the force is immediately necessary to protect [himself] against the others use or attempted use of unlawful force. Tex. Penal Code Ann. § 9.31(a) (West 2011). But [t]he use of force against another is not justified . . . if the actor sought an explanation from or discussion with the other person concerning the actors differences with the other person while the actor was unlawfully carrying a weapon under Section 46.02. Tex. Penal Code Ann. § 9.31(b)(5)(A) (West 2011). A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun . . . if the person is not: (1) on the persons own premises or premises under the persons control. Tex. Penal Code Ann. § 46.02(a)(1) (West Supp. 2011).
A defendant bears the burden of production of some evidence supporting the justification of self-defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991); Dyson v. State, 672 S.W.2d 460, 463 (Tex. Crim. App. 1984). Once a defensive issue is raised by the evidence, a defendant has the right to an instruction . . . whether that evidence is weak or strong, unimpeached or contradicted, and regardless of what the trial court may or may not think about the credibility of the defense. Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996).
In his video-recorded interview with White, Lay recounted the prior altercation in which Feggett threatened Lay by placing a knife at his throat. Lay stated that he became afraid for his life and only drew his gun during the final altercation after Feggett gave him a crazed look, came toward him, and reached in his pocket. A folding lock-blade knife less than three inches long was recovered from Feggetts pocket by officers after his death. Lay described Feggetts demeanor as violent. Feggett was known to have a problem with drugs. He was also previously involved in disturbances in family violence-type situations. His autopsy revealed the presence of cocaine and a blood alcohol level of .12. The defendants testimony alone may be sufficient to raise a defensive theory requiring a charge. Dyson, 672 S.W.2d at 463. Also, Smith testified he had seen Feggett pacing angrily while saying f this and Im going to go hurt somebody.
However, when the evidence, viewed in the light most favorable to the defendant, establishes as a matter of law that force is not justified in self-defense, no self-defense issue is required. Ferrel v. State, 55 S.W.3d 586, 591 (Tex. Crim. App. 2001); Weatherall v. State, No. 06-09-00095-CR, 2009 WL 3349039, at *2 (Tex. App.Texarkana Oct. 20, 2009, no pet.) (mem. op., not designated for publication);[2] Williams v. State, 35 S.W.3d 783, 786 (Tex. App.Beaumont 2001, pet. refd) (citing Dyson, 672 S.W.2d at 46465).
The undisputed evidence was that after the first altercation, Lay returned to his home, took possession of his friends gun, returned to Feggetts apartment complex, and confronted Feggett, seeking to convince [Feggett] to acknowledge wrongdoing in swindling money from him. Because Lay sought a discussion concerning his differences with Feggett while carrying his friends gun upon the apartment complex premises in violation of Section 46.02 of the Texas Penal Code, he was not entitled to an instruction on the issue of self-defense as a matter of law. Therefore, the trial court did not err in refusing to include the instruction.
Lays last point of error is overruled.
IV. Conclusion
We affirm the trial courts judgment.
Bailey C. Moseley
Justice
Date Submitted: December 9, 2011
Date Decided: January 24, 2012
Publish
[1]Lay also argues that the following facts also indicate reckless, rather than intentional or knowing acts: Lay closed his eyes, did not use a high-powered weapon, and was easily identifiable from tattoos and the unique bicycle he rode. He states that a person who commits a murder might practice using the weapon, use accomplices, shoot witnesses, and have a motorized vehicle available for a quick and inconspicuous escape, or steal one. These facts do not indicate reckless, as opposed to intentional or knowing acts. Rather, they simply emphasize that the murder was not committed by a stealthy criminal.
[2]Although this unpublished case has no precedential value, we may take guidance from it as an aid in developing reasoning that may be employed. Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.Amarillo 2003, pet. refd).