Affirmed and Memorandum Opinion filed April 11, 2006.
In The
Fourteenth Court of Appeals
____________
NO. 14-05-00220-CR
____________
ANTHONY SHAWN GIBSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court
Harris County, Texas
Trial Court Cause No. 978,668
M E M O R A N D U M O P I N I O N
Appellant, Anthony Shawn Gibson,[1] was convicted of first degree murder and sentenced to 70 years= confinement in the Texas Department of Criminal Justice, Institutional Division. He appeals his conviction and sentence alleging four points of error: (1) the evidence was legally insufficient to establish his guilt; (2) the evidence was factually insufficient to establish his guilt; (3) he was denied a fair trial and due process because his trial counsel was unable to voir dire the venire panel on its view of probation; and (4) the trial court reversibly erred by overruling his objection to the State=s jury argument during the punishment phase. We affirm.
Factual and Procedural Background
On February 21, 2004, appellant, Anthony Shawn Gibson, received a phone call from Rolanda Pouncy telling him that his close friend, Gary Edwards, had been stabbed in the arms. Appellant considered Gary Edwards, also known as ABoo,@ to be like a brother to him. After receiving this phone call, appellant drove to see Edwards at the Roadrunner InnCa hotel marked by drug dealers, prostitutes, and murderersCwhere the various people involved in this case either lived full-time or part-time. When appellant returned to the motel, witnesses described him as being irate. He fired his 9 mm pistol several times in a motel room, and used his gun to threaten at least two people in the room. His anger revolved around the fact that Edwards had been stabbed, but appellant did not know whom to blame.
The complainant, Lonny Smulian, also known as ABonsai,@ lived in the Roadrunner Inn. Smulian raised and sold bonsai trees. Like most of the residents at the motel, he was a crack user. Smulian had a male lover referred to as John and the Afat white dude.@ Evidently, John had stabbed Edwards to rob him of money and drugs. Because appellant thought Smulian would know how to contact John, he and Edwards went to Smulian=s room. While appellant and Edwards were there, Smulian was fatally shot four times. It is for this murder that appellant was indicted.
The evidence indicated that Smulian had been wrapped in a telephone cord, and that the gunshots were delivered in slow intervals. One of the witnesses, Jennifer Dangona, was not connected or acquainted with any of the other people who frequented the hotel. She had come to Houston in the hopes of tracking down her ex-boyfriend and had the misfortune to check into the room directly above Smulian=s. Sometime around 5:30 a.m. on February 22, 2004, Dangona heard gunshots from Smulian=s room. They were spaced out over a period of approximately a minute. She also heard yelling, and pleading.
Pouncy also testified that between 5:30 and 5:45 a.m. she was leaving another room at the Roadrunner Inn to find a male client. While walking, she came within view of Smulian=s room. She testified that she saw appellant and appellant=s girlfriend, Crystal Sosa, go into Smulian=s room. However, she did not see Edwards, hear any gunshots, or witness a struggle.
Appellant confessed to police that he was in Smulian=s room with Edwards when Smulian was killed. However, he said that he was in the bathroom when Edwards fired, in rapid succession, the fatal shots. According to appellant, he had no idea Edwards would kill Smulian, and did not see the murder occur. Yet, to another inmate at the Harris County jail, appellant admitted to having killed a man for a friend. Also, other witnesses testified that they had observed only appellant, and never Edwards, carry a gun. Further, witnesses testified appellant could be violent and Acrazy,@ whereas Edwards had been described as Asoft.@ Appellant did not take the stand during the guilt/innocent phase of the trial, nor did he present any rebuttal evidence.
During the punishment phase of the trial, the State introduced another murder, for which there was no conviction, that occurred the previous month on New Year=s Eve. The testimony indicated that appellant had, without provocation, shot and killed Nathaniel Bankett, also called ADillinger.@ Bankett was infatuated with Trinetta Fantroy, and the two had scammed someone into paying for a room at the Red Carpet InnClocated next door to the Roadrunner Inn and also crime infested. They had decided to spend New Year=s Eve together. Fantroy had been sexually involved with both Bankett and appellant previously.
Pouncy was also staying in the Red Carpet Inn that New Year=s Eve, using a room one of her male clients had rented. She testified that she saw appellant go to Bankett and Fantroy=s room twice. She said that after the second visit, she saw Fantroy leave the room with appellant, and go with him into the stairwell.
Fantroy testified she had taken Xanax that evening, which made her tired. She went to sleep, and Bankett was awake smoking crack. She was aware that appellant had come to the room once and told her to go with him, which she did. However, because she was so tired, she testified she lost track of appellant in the stairwell and returned to Bankett=s room and fell asleep. Bankett woke her up to see the ball drop on Times Square, they wished each other a happy new year, and she fell asleep again. Fantroy remembered appellant coming to the room a second time; she closed her eyes and heard Bankett fall on the floor. She testified that she went to help Bankett back onto the bed because he was wearing a leg brace and would have needed help. However, when she saw him, he was gurgling up blood, and she realized appellant had shot himCevidently using a gun with a silencer attached.
Following the shooting, Fantroy said appellant, Edwards and Sosa took her to the Roadrunner Inn. There, they kept her in a motel room for three days, and let her go only after Edwards explained that she shouldn=t tell anyone about the murder. Fantroy believed that she had been held hostage. Appellant denied even being in Houston that evening or the following days. According to his and his family=s testimony, he was in Louisiana.
The jury convicted appellant of first degree murder, and then sentenced him to seventy years= confinement. Although appellant was probation eligible, there was no questioning regarding probation during voir dire. Appellant moved for a mistrial at the beginning of the punishment phase, arguing he was not allowed to question jurors regarding their views on probation, and thus the jury was not competent to sentence him. The trial court denied the motion, gave much leeway to appellant in his punishment closing, and included special instructions in the jury charge to help cure any error.
Analysis
I. Legal Sufficiency
In his first point of error, appellant alleges the evidence was legally insufficient to sustain his conviction. In a legal-sufficiency challenge, we employ the familiar standard of viewing the evidence in the light most favorable to the verdict. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). If any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt, we will affirm. Id.
The jury was instructed that it could convict appellant either as the principal shooter, or as a party to the offense. The jury returned a general verdict of guilt. We will affirm if the evidence is sufficient to support the verdict on either theory. See Rabbani v. State, 847 S.W.2d 555, 558 (Tex. Crim. App. 1992). We have no difficulty determining the evidence was legally sufficient to sustain appellant=s conviction on either theory.
Between Gibson=s confession and the testimony at trial, there was legally sufficient evidence to uphold his conviction as a party. Even if a defendant does not commit murder himself, he may be found guilty as a party to the crime if he acts with the intent to promote or assist in the commission of the murder. Tex. Pen. Code ' 7.02(a)(2). Here, Gibson confessed to going with Edwards to get information from Smulian. He knew that Edwards was upset about being stabbed, and wanted information that would lead him to John. Witnesses testified that at least one of the two regularly carried a gun. The evidence also showed there had been a struggleCone that resulted in Smulian becoming incapacitated. However, Edwards= arms were severely injured by the stabbing wounds and he would have needed help to subdue Smulian. At a minimum, appellant=s confession placed him in a room where there had been a struggle for which Edwards would have needed help, and the result was the callous murder of the complainant. With Dangona=s testimony regarding the firing of spaced shots and yelling, the evidence indicates that whoever was in the room with Smulian was overpowering him, torturing him, and finally killing him in concert with another.
The evidence is also legally sufficient to convict appellant as the shooter. Indeed, the evidence is stronger to convict appellant as the shooter. Witnesses testified that Edwards never carried a gun; he was considered by some to be Asoft.@ Appellant, however, always carried a gun, and was known to have what could be considered a violent temper. He rushed to the Roadrunner Inn when he heard that Edwards had been stabbed and began firing shots in a motel roomCnot Smulian=s room, rather the room where Edwards was waiting with Pouncy and others for appellant to arrive. While in that room, appellant held his gun to a man=s head, made him strip and get on his knees, and threatened to kill him if Edwards thought that he had something to do with the stabbing. Appellant then asked another man in the room to give him a cigarette. Appellant threatened the second man with the gun when the man was slow in getting the cigarette. Unlike appellant, witnesses testified that Edwards was upset, but not violent. Moreover, Smulian visited Edwards before appellant arrived and Edwards did not act angrily or with hostility toward Smulian. The testimony clearly indicated that appellant, not Edwards, was the shooter.
In addition to witness testimony as to what they saw, appellant confessed to committing the murder. David Criff, an older inmate at the Harris County Jail, testified that appellant confessed to killing a man for a friend. Appellant also told Criff that he would have done the killing on Criff=s behalf as well. Viewing the evidence in the light most favorable to the verdict, there was legally sufficient evidence to uphold appellant=s conviction as the shooter.
We overrule appellant=s first point of error.
II. Factual Sufficiency
Appellant also raises the issue of factual sufficiency. When conducting a factual sufficiency review, we view the evidence in a neutral light and will set the verdict aside only if the evidence is so weak as to make the verdict clearly wrong and manifestly unjust, or if the contrary evidence is so strong that the standard of proof, beyond a reasonable doubt, could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004), cert. denied, 125 S. Ct. 1697 (2005). Again, we will affirm if the evidence is sufficient to support the verdict on either of the theories on which the jury was instructed. See Rabbani 847 S.W.2d at 558. While we have reviewed the entire record and have considered all evidence presented at trial, we cannot assume the role of fact finder and substitute our judgment for that of the jury. See Zuniga v. State, 144 S.W.3d 477, 482 (Tex. Crim. App. 2004) (stating that appellate courts are not to Afind@ facts or substitute their judgment for that of the jury). The evidence is factually sufficient as well.
Appellant presented no evidence during the guilt/innocence portion of the trial. Certainly, he had no requirement to do so as he had absolutely no burden of proof. However, that does mean that there is no contrary evidence that would be so strong so as to render the verdict factually insufficient. As a result, we consider only whether the evidence adduced was so weak so as to make the verdict clearly wrong or manifestly unjust. Because the jury, not we, evaluates witness credibility, and there was ample witness testimony to support the conviction, we hold the evidence was factually sufficient.
At trial, appellant=s counsel made much of the credibility of the State=s witnesses. The witnesses who were able to directly tie appellant to possessing a gun, being violent, and confessing to the murder were serving sentences in jail. They had prior convictions involving drugs and prostitution. Some of them were relying on deals from the District Attorney=s office. DangonaCwho was not incarcerated and had no convictionsCtestified about the spacing of the shots, and the screaming and pleading for help. However, her testimony was inconsistent with other State testimony. Certainly, appellant had a case to make that the jury could be suspicious of these witnesses= version of events. Yet, while these arguments are perfectly sensible before a jury, we cannot be persuaded by them. The jury must resolve those questions and it did resolve those credibility issues in favor of the State.
Below and on appeal, appellant has maintained that his confession was accurate; he admitted to mere presence, but nothing more. The jury was free to consider that assertion. It was free to believe his confession to police regarding how the entire incident took place, or it could believe the various witnesses. The jury chose the latter, and the evidence it relied upon was factually sufficient. We have outlined most of it already.
Without restating all of the evidence, we will point out some of the evidence that further buttresses the State=s theory, and undermines appellant=s version of events. Police and medical experts testified about Smulian=s wounds, the condition of the room, and how he was bound. According to testimony, Smulian was wrapped in a telephone cord. He received four gun-shot woundsCone delivered within two feet to the back of his left leg. The other three wounds occurred to the front of Smulian=s body. The three shots to the front were fired at extremely close range; one shot was a Acontact wound,@ meaning the gun was pressed against Smulian. The exit wounds and location of the recovered bullets confirmed that Smulian was most likely lying on the ground when he received these last three shots. Appellant claimed that the shots came in rapid successionCso quickly that he had gone into the bathroom, but had not had time to relieve himself before all the shots were fired. However, to shoot Smulian in the back of the leg, turn him over, wrap him in a telephone cord, and then deliver three shots as the shooter did, would require more time than appellant=s confession allows. Also, Jennifer Dangona, the witness who was in the hotel room above Smulian=s, testified that the shots were fired slowly, not in rapid succession.
Appellant confessed to police that he was present in the room when Smulian was killed. He then confessed to a fellow jail mate that he had killed a man for a friend. Witness testimony belied appellant=s theory of mere presence. The testimony reinforced that appellant was the only person in Smulian=s room with a gun, and he was also the only one violent enough to use it. Even if Edwards was also violent, the jury could have concluded that Edwards= wounds would have left him too weak to carry out the murder alone. The evidence was factually sufficient. We overrule appellant=s second point of error.
III. Voir Dire on Probation
In his third point of error, appellant complains that he was unable to question the venire panel about its views on probation. Prior to trial, appellant filed a sworn motion for community supervision. That, we have in our record. However, the judge=s ruling, any instructions regarding questioning during voir dire, any objections to the judge=s ruling, or when any error became apparent, is not in the record. All we have is an explanation at the start of the punishment hearingCover which a different judge presidedCexplaining what occurred. That is not enough.
We do not have an adequate record with which to determine what error occurred, when it occurred, whether counsel made a timely objection, and whether he pursued and received an adverse ruling on that objection. See Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (restating the well-known rules that a complaining party must make a specific objection at the earliest possible opportunity, obtain a ruling on that objection, and the point of error on appeal must comport with that objection; otherwise, the point of error is waived). Without a properly developed record addressing these basic questions, the record does not demonstrate the error. See Ortiz v. State, 144 S.W.3d 225, 229B30 (Tex. App.CHouston [14th Dist.] 2004, pet. ref=d) (en banc) (explaining that while the district and appellate courts have a duty to ensure delivery of a record, the party seeking review still has a duty to develop a record demonstrating error). Accordingly, we do not have a developed record with which to review the alleged error.
IV. Improper Jury Argument
In his final point of error, appellant complains that the prosecutor=s closing argument during the punishment phase was highly prejudicial, and that the trial court erred in overruling appellant=s objection, and thus denied him a fair trial and due process. Appellant complains of the following:
[State:] He gets something like 30, 40 years, whatever. When he gets out, he=s still a vibrant adult who can pull the trigger.[2] It=s not like when you give him a lot of time and he=s going to come out a little old man. He=s not. He is going to be just as dangerous as he comes out as he is when he goes in and y=all know that he is dangerous. And ask yourself this. Honestly, what=s the life expectancy for Trinetta Fantroy, Rolanda Pouncy when he gets out.
[Defense]: Objection, Judge. That is a future crime and I really would like that to be stricken off the record about him making accusations that he=s going to kill somebody and that=s what he=s making and I would like to have it stricken from the record, Judge. I would ask for a mistrial
[State]: Plea for law enforcement, Your Honor.
The Court: Mistrial is denied. Strike from the record is denied.
[State]: Do you think they=re safe? He sees them. They=re back at the Roadrunner and he sees them, do you think they=re safe for one second? . . . I=m not guaranteeing it obviously, but they won=t have a chance to be saved if he=s out there on the streets with them. Not a chance.
(Emphasis added).
There are four general areas of proper jury argument: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999); LaHood v. State, 171 S.W.3d 613, 623 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d). There is error if facts not supported by the record are interjected in the closing argument, though it is not harmful unless, in light of the record, the argument is extreme or manifestly improper. Guidry, 9 S.W.3d at 154. Here, the prosecutor=s comments were reasonable deductions from the evidence, and constituted a plea for law enforcement.
It is well-settled that a prosecutor may refer in argument to a defendant=s violent nature. See generally LaHood, 171 S.W.3d at 623 (citing cases and holding that the statement, A[d]o you really want to wake up 20 years from now, having worked [sic] on your house and have [appellant] come in as the electrical contractor? Are you going to feel safe while that=s going on?@ was permissible as summation of the evidence and a plea for law enforcement). The situation in this case is somewhat different. Here, we have a more specific statement regarding specific individuals who would be killed. However, the jury heard testimony of statements by appellant that, if he could get out on bond, Sosa would not make it to court. Also, Fantroy testified that appellant and Edwards let her go after Bankett=s murder only after Edwards admonished her that she should not talk to anyone about the murder. A reasonable deduction from this evidence is that appellant would severely injure or kill anyone who would testify against him. Whether a plea for law enforcement regarding a highly dangerous criminal, or deducing that appellant would try to kill certain witnesses, the argument was not outside permissible bounds. We overrule appellant=s fourth point of error.
Conclusion
Having overruled each of appellant=s points of error, we affirm the judgment of the trial court.
/s/ Wanda McKee Fowler
Justice
Judgment rendered and Memorandum Opinion filed April 11, 2006.
Panel consists of Justices Hudson, Fowler, and Seymore.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] Appellant spelled his last name as AGipson@ at trial, and in handwritten documents. However, because all court documents spell his last name as AGibson,@ so do we.
[2] Appellant was eighteen years old at the time of trial.