IN THE
TENTH COURT OF APPEALS
No. 10-03-00120-CR
Charles Gordon LeBlanc, Jr.,
Appellant
v.
The State of Texas,
Appellee
From the 260th District Court
Orange County, Texas
Trial Court # D-030039-R
MEMORANDUM Opinion
This appeal concerns a conviction for murder. Appellant presents three issues. We will affirm.
1. Sufficiency of the Evidence. Appellant contends that the evidence that he strangled the victim with a ligature was legally and factually insufficient. Appellant argues that “no one could testify to the manner and means by which” the victim “was strangled.”
Appellant left a bar with the victim and took her to a friend’s trailer home. The friend testified that during an argument, Appellant put an extension cord around the victim’s neck and took her outside; when Appellant came back inside, he said that the victim was dead and that he believed he had killed her. Appellant also made other recorded admissions later to the effect that he became afraid of getting in trouble again, “lost it,” and “grabbed that fucking cord.” The medical examiner testified that the victim died of strangulation, and that the strangulation could have been by a ligature.
1. a. Legal Sufficiency.
A “legal sufficiency of the evidence review does not involve any weighing of favorable and non-favorable evidence.” Margraves v. State, 34 S.W.3d 912, 917 (Tex. Crim. App. 2000) (citing Cardenas v. State, 30 S.W.3d 384, 389 (Tex. Crim. App. 2000)). Instead, a legal-sufficiency review calls upon the reviewing court to view the relevant 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. Id. See also Jackson v. Virginia, 443 U.S. 307 (1979) (emphasis in original); Mason v. State, 905 S.W.2d 570, 574 (Tex. Crim. App. 1995).
Viewing the evidence in the light most favorable to the verdict, a reasonable jury could have found beyond a reasonable doubt that Appellant strangled the victim with a ligature. The evidence is legally sufficient.
1. b. Factual Sufficiency.
In reviewing a challenge to the factual sufficiency of the evidence, we begin with the assumption that the evidence is legally sufficient. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). We must view all the evidence without the prism of the Ain the light most favorable to the prosecution@ construct. See Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996).
There is only one question to be answered in a factual-sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? However, there are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand. This standard acknowledges that evidence of guilt can “preponderate” in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Stated another way, evidence supporting guilt can “outweigh” the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard.
Zuniga v. State, No. 539-02, 2004 Tex. Crim. App. LEXIS 668, at *20 (Tex. Crim. App. Apr. 21, 2004) (footnote omitted).
We must also remain cognizant of the factfinder=s role and unique positionCone that the reviewing court is unable to occupy. Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000). The jury determines the credibility of the witnesses and may Abelieve all, some, or none of the testimony.@ Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). It is the jury that accepts or rejects reasonably equal competing theories of a case. Goodman v. State, 66 S.W.3d 283, 287 (Tex. Crim. App. 2001). A decision is not factually insufficient as to the accused merely because the factfinder resolved conflicting views of evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997).
Appellant does not point to any evidence contrary to the verdict. Viewing the evidence in a neutral light, and giving deference to the jury’s credibility determinations, the evidence was not too weak to support the finding that Appellant strangled the victim with a ligature beyond a reasonable doubt, and the jury was rationally justified in so finding beyond a reasonable doubt. The evidence is factually sufficient.
Having found the evidence legally and factually sufficient, we overrule Appellant’s issue.
2. Accomplice Witness Testimony. Appellant contends that the testimony of his friend constituted uncorroborated accomplice witness testimony. We assume without deciding that Appellant preserved his complaint. See Tex. R. App. P. 33.1(a). The first step in the analysis of accomplice witness testimony is determining whether the witness was an accomplice. See Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 1979); Rodriguez v. State, 104 S.W.3d 87, 91-92 (Tex. Crim. App. 2003). Appellant argues only the witness’s testimony was uncorroborated; he does not argue that the witness was an accomplice. The evidence shows, at most, that the witness assisted Appellant in concealing evidence after the murder. See Paredes v. State, 129 S.W.3d 530, 536-38 (Tex. Crim. App. 2004). We overrule Appellant’s issue.
3. Effective Assistance of Counsel. Appellant contends that his trial counsel did not render effective assistance of counsel. Appellant argues that counsel should have moved for continuance, moved for the appointment of an expert, and called witnesses. As Appellant notes, the record does not show when counsel began working on the case; and the record does not show the reasons for counsel’s decisions. See Massaro v. United States, 538 U.S. 500, 504-505 (2003); Freeman v. State, 125 S.W.3d 505, 506-507 (Tex. Crim. App. 2003); Murphy v. State, 112 S.W.3d 592, 601 (Tex. Crim. App. 2003), cert. denied, 124 S. Ct. 1660 (2004). Nor does Appellant show how an expert would have assisted him, or what witnesses counsel should have called. See McFarland v. State, 928 S.W.2d 482, 500-501 (Tex. Crim. App. 1996); cf. Wiggins v. Smith, 539 U.S. 510, ___, 123 S. Ct. 2527, 2533 (2003). We overrule Appellant’s issue.
Having overruled Appellant’s issues, we affirm the judgment.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Justice Vance concurs in the judgment with a note: The indictment charged and the jury found the offense occurred “by strangling the [victim] with a ligature.” Pointing to a lack of direct evidence and the medical examiner’s testimony that he could not say how the strangulation occurred, LeBlanc says the evidence fails the beyond-a-reasonable-doubt standard under Zuniga v. State, No. 539-02, 2004 WL 840786 at *7 (Tex. Crim. App. April 21, 2004). The majority recites some evidence but does not analyze the evidence appellant claims is most important. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003)).
Opinion delivered and filed August 18, 2004
Affirmed
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