11th Court of Appeals
Eastland, Texas
Opinion
Brandon Ladon Littles
Appellant
Vs. No. 11-01-00375-CR B Appeal from Dallas County
State of Texas
Appellee
The jury convicted appellant of murder and assessed his punishment at 18 years confinement. We affirm.
In his first point of error, appellant contends that the evidence is factually insufficient to support his conviction. In order to determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak as to render the conviction clearly wrong and manifestly unjust or whether the evidence supporting guilt, although adequate when taken alone, is so greatly outweighed by the overwhelming weight of contrary evidence as to render the conviction clearly wrong and manifestly unjust. Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Cr.App.2002); Goodman v. State, 66 S.W.3d 283 (Tex.Cr.App.2001); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State 922 S.W.2d 126 (Tex.Cr.App.1996). We review the fact finder=s weighing of the evidence and cannot substitute our judgment for that of the fact finder. Cain v. State, supra; Clewis v. State, supra. Due deference must be given to the jury=s determination, particularly concerning the weight and credibility of the evidence. Johnson v. State, 23 S.W.3d 1 (Tex.Cr.App.2000); Jones v. State, 944 S.W.2d 642 (Tex.Cr.App.1996), cert. den=d, 522 U.S. 832 (1997). This court has the authority to disagree with the fact finder=s determination Aonly when the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice.@ Johnson v. State, supra at 9.
Nora Randolph testified at trial that on September 3, 2000, she and a friend named Mike went to John Baptist Price=s (J.B.) house around 7:00 or 7:30 p.m. Randolph stated that people frequently went to J.B.=s house to drink and smoke. Randolph and Mike left J.B.=s house together later that night. Sometime after midnight, Randolph again stopped at J.B.=s house on her way to the Abootleg house@ where people bought beer and cigarettes. The victim and two other men were also at J.B.=s house. After talking for a while, Randolph told the men that she was leaving to go to the bootleg house.
Randolph testified that, as she was leaving the house, she saw appellant asleep in a chair on the front porch. Randolph told the victim to go wake up appellant. The victim woke up appellant, and appellant began feeling in his pockets. Randolph testified that appellant then asked the people at the house about something he was missing.
Randolph testified that someone drove up across the street from the house and asked appellant what was the matter. Randolph stated that appellant told the man that someone had taken something from appellant. Appellant went with the man to the man=s car. When he returned, appellant took a gun from his pocket and fired a shot that hit the ground in front of Randolph and the victim. Appellant then raised the gun and fired three more times. The victim said A[h]elp me@ and hid behind the side of a vehicle. The victim then went down the street. Randolph stated that appellant got back in the car and left.
Everyone left J.B.=s house except for Randolph and another man. Randolph stayed at J.B.=s for awhile and then decided to go to the bootleg house. While she was on her way, a friend picked her up, and they saw the victim lying in the street. Randolph saw the ambulance going toward the victim, and she went home.
Rodney Wallace, with the Dallas Police Department, testified that on September 4, 2000, he received a call from dispatch at 5:38 a.m. concerning a male lying in the street. When he arrived, Officer Wallace saw the victim lying in the street and saw ants crawling in and out of his mouth, eyes, and ears. Officer Wallace said that the victim had suffered a gunshot wound to the chest. Officer Wallace said that the evidence at the scene indicated that the victim had been shot at another location and then walked to the scene where he died. A trace analyst from the Southwestern Institute of Forensic Sciences testified that there was no gunshot residue on the victim=s clothing indicating that the shot was fired from a distance greater than three or four feet.
Charlotte Renee Robinson, appellant=s common-law wife, testified that appellant left the apartment late one night to go visit friends. Robinson said that around 3:00 a.m. she woke up and that appellant was crying in the bedroom. Robinson asked appellant why he was crying, and appellant responded that he was scared. Appellant then told Robinson that someone had been shot but that it was an accident and that he did not mean to shoot him.
Appellant testified at trial and gave a different version of the events than Randolph. Appellant said that he arrived at J.B.=s house around midnight and that the victim and two other men were there. Appellant testified that, while at J.B.=s house, he drank some beer and smoked a cigar containing marihuana. Appellant stated that he fell asleep in a chair on the porch and slept for approximately one hour. Appellant said that, when he went to sleep, he had $100 in his pocket and that, when he woke up, the money was gone. Appellant began asking the people at the house who had his money. Appellant testified that Randolph Awas like throwing it off on somebody like check him, I seen him moving.@ Appellant said that everyone began arguing about who had taken his money. At that time, appellant=s friend ABlack@ drove up and parked in front of the house.
Appellant testified that he went over to Black=s car and told him what had happened. Appellant stated that he saw a pistol in Black=s car. Appellant grabbed the pistol and went back to the house. Appellant said that he was Abluffing@ and that he did not point the pistol at anyone. Appellant waived the pistol so that everyone could see it. Appellant said that the victim reached toward him and that appellant thought the victim was reaching for the pistol. Appellant pushed the victim, and the Agun went off.@ Appellant spun around after he pushed the victim, and the gun went off a second time hitting a window in a Suburban.
Appellant testified that the victim said, AOh man. Man, you shot me. Why you shoot me, man? Why you shoot me?@ The victim then began walking away and asked a neighbor to call an ambulance. Appellant said that he went toward his mother=s house and then found a ride to his house. Appellant stated that he did not intend to shoot anyone.
Appellant specifically argues that the evidence is factually insufficient to prove that he intentionally and knowingly caused the death of the victim or that he intended to cause serious bodily injury that resulted in the victim=s death as alleged in the indictment. However, Randolph testified that appellant fired the first shot in her direction, not just at the ground. Randolph further testified that appellant pointed the gun in the direction of the people at the house. Shortly after appellant pointed the gun at them, the victim began asking for help. The jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony, and it is also the exclusive province of the jury to reconcile conflicts in the evidence. TEX. CODE CRIM. PRO. ANN. art. 36.13 & 38.04 (Vernon 1979 & 1981); Wesbrook v. State, 29 S.W.3d 103 (Tex.Cr.App. 2000), cert. den=d, 532 U.S. 944 (2001). Viewing all of the evidence, we do not find that the verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, supra. Appellant=s first point of error is overruled.
In his second point of error, appellant contends that the trial court erred in denying his request for a charge on the lesser included offense of criminally negligent homicide. Appellant requested charges on the lesser included offenses of manslaughter, aggravated assault, and criminally negligent homicide. The trial court instructed the jury on the lesser offenses of manslaughter and aggravated assault.
An accused is entitled to a charge on a lesser included offense if the lesser offense is included within the proof necessary to establish the offense charged and if there is some evidence in the record that would permit a jury to rationally find that, if appellant is guilty, he is guilty only of the lesser offense. Rousseau v. State, 855 S.W.2d 666, 673 (Tex.Cr.App.), cert. den=d, 510 U.S. 919 (1993). This is true regardless of whether such evidence is strong or weak or unimpeached or contradicted and regardless of what the trial court may or may not think about the credibility of the evidence. Bartholomew v. State, 871 S.W.2d 210 (Tex.Cr.App.1994); Hayes v. State, 728 S.W.2d 804, 807 (Tex.Cr.App.1987); Mares v. State, 903 S.W.2d 419, 421 (Tex.App. ‑ Eastland 1995, pet=n ref=d). Criminally negligent homicide is a lesser included offense of murder; therefore, we must determine whether there is some evidence that appellant is only guilty of criminally negligent homicide. Thomas v. State, 699 S.W.2d 845 (Tex.Cr.App.1985).
A person commits the offense of criminally negligent homicide if he causes the death of an individual by criminal negligence. TEX. PENAL CODE ANN. ' 19.05(a) (Vernon 1994). A person acts with criminal negligence when Ahe ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur.@ TEX. PENAL CODE ANN. ' 6.03(d) (Vernon 1994). The charge of criminally negligent homicide is required in a particular case if the record contains evidence showing that the defendant was unaware of the risk or that he failed to perceive the risk created by his conduct. Mendieta v. State, 706 S.W.2d 651, 653 (Tex.Cr.App.1986); Thomas v. State, supra.
Appellant testified that he had the pistol at his side and then that he was Awaving@ it so the others could see that he had a gun. The victim reached for the pistol, and appellant pushed him. Appellant said that he did not know whether or not the gun was loaded and that he did not intend to shoot anyone.
An allegation of accidental discharge does not necessarily raise the issue of criminally negligent homicide. Thomas v. State, supra at 850. The mere fact that the defendant testified that someone bumped him, causing him to pull the trigger, does not necessarily alter the awareness of risk. Thomas v. State, supra. Just because part of the conduct may be involuntary does not relieve a defendant of responsibility and culpability for the entire action. Thomas v. State, supra. It may be the case that a defendant has awareness of the risk and disregards it. Thomas v. State, supra. Emphasis should not be placed on the gun=s accidental discharge, although that is a circumstance that should be considered. Thomas v. State, supra. The record shows that appellant took a pistol, not knowing whether or not it was loaded, and waved it at a group of people. Appellant testified that the pistol was a semiautomatic and that just touching the trigger could cause it to go off. Appellant=s testimony does not show that he was unaware of or failed to perceive the risk of his conduct. Therefore, we hold that the trial court did not err when it refused to include a jury instruction on criminally negligent homicide.
Moreover, the jury was authorized to convict appellant of manslaughter. The jury=s rejection of one lesser included offense will not automatically render harmless the trial court's failure to authorize the jury to convict on another lesser included offense also raised by the evidence. Saunders v. State, 913 S.W.2d 564 (Tex.Cr.App.1995). However, the record does not show a Arealistic probability@ that the jury=s decision was reduced to whether appellant committed murder or criminally negligent homicide. Saunders v. State, supra at 573. Appellant has not shown that he was harmed by the trial court=s failure to include the lesser offense of criminally negligent homicide in the jury charge. Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985). Appellant=s second point of error is overruled.
In his third point of error, appellant argues that the State made an impermissible jury argument. During its final argument, the State commented that, A[a]s far as any favors given Nora Randolph, I can guarantee you I met Ms. Randolph for the very first time last Thursday. She was as honest with me as she was with you.@ The trial court overruled appellant=s objection to the argument. Appellant contends that the argument bolstered the credibility of Randolph.
Appellant argued during his closing argument that Randolph was not a credible witness because she was a crack addict. Appellant stated that Asomewhere down the line [Randolph] is going to need some help from the district attorney=s office and will be asking for that.@ Appellant also stated that Athe district attorney can help her or hurt her in that regard, her getting out on early parole. A simple letter from their office can help her or hurt her.@ The record shows that the State=s comments during its final argument were in response to appellant=s closing argument. Coble v. State, 871 S.W.2d 192 (Tex.Cr.App.1993), cert. den=d, 513 U.S. 829 (1994); see Wylie v. State, 908 S.W.2d 307 (Tex.App. - San Antonio 1995, pet=n ref=d). Moreover, the comment was not calculated to deprive appellant of a fair and impartial trial. Wesbrook v. State, supra. Appellant=s third point of error is overruled.
The judgment of the trial court is affirmed.
W.G. ARNOT, III
CHIEF JUSTICE
January 30, 2003
Do not publish. See TEX.R.APP.P. 47.2(b).
Panel consists of: Arnot, C.J., and
Wright, J., and McCall, J.