Affirmed and Memorandum Opinion filed October 5, 2006.
In The
Fourteenth Court of Appeals
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NO. 14-05-00639-CR
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MAURICE BALDWIN CANTY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 180th District Court
Harris County, Texas
Trial Court Cause No. 1027811
M E M O R A N D U M O P I N I O N
Challenging his conviction for attempted capital murder, appellant Maurice Baldwin Canty asserts in four issues that the evidence is legally and factually insufficient to support his conviction because he lacked the intent to shoot at or cause the death of the complainant. We affirm.
I. Factual and Procedural Background
On June 19, 2004, appellant and a companion, Chimere Jolivette, shoplifted some electronic merchandise from the Wal-Mart store at the corner of Dunvale and Westheimer in Houston. Mark Camper, a loss prevention officer for WalMart, saw them taking the merchandise and notified the complainant, Dong Hoang, an off-duty uniformed Houston Police Department officer working security at the store. After discovering them with stolen property, Hoang detained appellant and Jolivette near the front of the store, handcuffed them, and escorted them back through the store to the security office. Camper and Gail Hogan, a cashier, accompanied them to the security office. An assistant store manager, Larry Britton, arrived at the security office shortly thereafter. Once inside the security office, Hoang formally arrested appellant and Jolivette for shoplifting. However, appellant refused to allow Hoang to search him. As Hoang called for back-up on his cell phone, appellant drew a gun that he had concealed and fired, shooting Hoang in the arm. Hoang returned fire and shot appellant several times.
After being charged with the felony offense of attempted capital murder, appellant pleaded not guilty. A jury found appellant guilty of the charged offense and assessed punishment at confinement for ninety-nine years. Challenging this conviction, appellant asserts four issues on appeal:
(1)-(2) The evidence is legally and factually insufficient to support the conviction of attempted capital murder because the record fails to show that appellant intended to cause the death of the complainant.
(3)-(4) The evidence is legally and factually insufficient to support the conviction of attempted capital murder because the State failed to prove that appellant intentionally shot at the complainant.[1]
II. Analysis
In four issues, appellant contends the evidence is legally and factually insufficient to support his conviction for attempted capital murder. Appellant was charged with attempted capital murder under section 19.03(a)(1) of the Texas Penal Code, specifically that he:
did then and there unlawfully, intentionally, with the specific intent to commit the offense of CAPITAL MURDER of D. HOANG, hereafter styled the Complainant, do an act, to-wit: SHOOT THE COMPLAINANT a peace officer acting in the lawful discharge of an official duty WITH A DEADLY WEAPON, NAMELY A FIREARM, which amounted to more than mere preparation that tended to but failed to effect the commission of the offense intended, KNOWING AT THE TIME THAT THE COMPLAINANT WAS A PEACE OFFICER.
Appellant contends that the State failed to establish that he acted with specific intent to either shoot the complainant or cause the complainant=s death, both necessary elements of the offense of attempted capital murder.
In evaluating a legal-sufficiency challenge, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The issue on appeal is not whether we, as a court, believe the State=s evidence or believe that appellant=s evidence outweighs the State=s evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The jury, as the trier of fact, Ais the sole judge of the credibility of the witnesses and of the strength of the evidence.@ Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury may choose to believe or disbelieve any portion of the witnesses= testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).
In contrast, when evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence in a neutral light and inquire whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). A reviewing court may find the evidence factually insufficient in two ways. Id. First, when considered by itself, the evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, after weighing the evidence supporting the verdict and the evidence contrary to the verdict, the contrary evidence may be strong enough that the beyond-a- reasonable-doubt standard could not have been met. Id. at 484B85. In conducting the factual-sufficiency review, we must employ appropriate deference so that we do not substitute our judgment for that of the fact finder. Id. at 481B82. Our evaluation should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). In conducting a factual-sufficiency review, we must discuss the evidence appellant claims is most important in allegedly undermining the jury=s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
The Texas Penal Code defines criminal attempt as follows: AA person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.@ Tex. Penal Code Ann. ' 15.01(a) (Vernon Supp. 2005). As relevant here, capital murder is defined as intentionally or knowingly causing the death of a peace officer acting in the lawful discharge of an official duty, knowing that the person is a peace officer. See id. '' 19.02(b)(1), 19.03(a)(1) (Vernon Supp. 2005). A specific intent to kill is a necessary element of attempted murder. Flanagan v. State, 675 S.W.2d 734, 741 (Tex. Crim. App. 1984). The specific intent to kill may be inferred from the use of a deadly weapon, unless the manner of its use makes it reasonably apparent that death or serious bodily injury could not have resulted. See Godsey v. State, 719 S.W.2d 578, 580-81 (Tex. Crim. App. 1986); Flanagan, 675 S.W.2d at 743.
Because appellant admitted on cross-examination and does not challenge on appeal that the weapon he was carrying was a deadly weapon,[2] and that he knew Hoang was a peace officer acting in the lawful discharge of an official duty, we focus our analysis on evidence regarding appellant=s specific intent. A[T]he most obvious cases and the easiest ones in which to prove a specific intent to kill[] are those cases in which a firearm was used and was fired or attempted to have been fired at a person.@ Godsey, 719 S.W.2d at 581.
In this case, there is ample evidence from which the jury reasonably could have inferred appellant=s specific intent to kill through his attempt to fire at the complainant, Officer Hoang.[3] First, Wal-Mart store manager Larry Britton observed appellant aiming a gun and trying to shoot at Hoang. After he heard two clicking sounds and saw appellant attempting to pull the trigger, Britton fled from the security office. Gail Hogan, the cashier who accompanied appellant and the others into the security office, stated that appellant fired at Hoang after she heard two similar clicking sounds, which she attributed to an attempt to fire the gun. Chimere Jolivette, appellant=s accomplice in the shoplifting, testified that appellant pulled out a gun and tried to shoot Hoang. She stated that she heard two clicks; the first was an attempt to shoot that failed, and the second click occurred when appellant shot the gun.[4] Additionally, Hoang testified that, while he was making a call for back-up on his cell phone, he heard two clicking sounds. When he looked at appellant, he saw a gun in appellant=s hand. As he moved towards appellant, he heard appellant racking the gun and saw appellant aiming it at him, so he drew his weapon and returned fire. Wal-Mart loss prevention officer Mark Camper also heard the two clicking sounds and the sound of appellant racking and firing the gun before Hoang returned fire.
To support his sufficiency challenges, appellant argues that, because he and Hoang were very close together, he would have had no trouble shooting Hoang had he tried. He asserts that because his gun only hit Hoang in the hand when it discharged, he lacked the requisite specific intent to support an attempted capital murder conviction. Furthermore, appellant=s recollection of the events in the security office differed from the accounts of the other eyewitnesses. Appellant testified that he was attempting to hand the gun over to Hoang, telling him, AOfficer take the gun.@ Instead of taking the gun from him, Hoang Aspooked out@ and began moving towards Hoang, shooting at him. Appellant could not remember whether his gun accidentally discharged or went off when it hit the ground.[5] He explained the clicking sounds heard by the other witnesses as his handcuffs clicking together.
However, by its verdict, the jury indicated it believed the accounts of the other eyewitnesses rather than appellant=s version of events. This court may not re-evaluate the weight and credibility of the record evidence and thereby substitute its judgment for that of the fact-finder. Wilson v. State, 863 S.W.2d 59, 65 (Tex. Crim. App. 1993). We conclude the evidence presented in this case is legally and factually sufficient to support appellant=s conviction of attempted capital murder. Accordingly, we overrule appellant=s four issues and affirm the judgment of the trial court.
/s/ Kem Thompson Frost
Justice
Judgment rendered and Memorandum Opinion filed October 5, 2006.
Panel consists of Justices Fowler, Edelman, and Frost.
Do not publish C Tex. R. App. P. 47.2(b).
[1] Because many of the facts and legal arguments overlap in appellant=s issues, we address them together.
[2] The Texas Penal Code=s definition of a deadly weapon includes Aa firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury.@ Tex. Penal Code Ann. ' 1.07(a)(17)(A) (Vernon Supp. 2005).
[3] The testimony of a single eyewitness is sufficient to support a felony conviction. See Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982).
[4] However, in her statement to police immediately after the shooting occurred, Hogan stated that appellant tried to shoot Hoang twice, then cocked the gun and shot again.
[5] A Houston Police Department firearms expert testified that it is not possible for the type of gun appellant used to accidentally discharge when dropped because it has a trigger locking device that physically prevents it from firing unless the trigger is pulled completely back.