Affirmed and Opinion of July 22, 2008 Withdrawn; Substitute Opinion filed December 18, 2008.
In The
Fourteenth Court of Appeals
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NO. 14-07-00021-CR
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JONATHAN JOE COOPER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court
Harris County, Texas
Trial Court Cause No. 1024950
S U B S T I T U T E O P I N I O N
This court=s July 22, 2008 opinion is hereby withdrawn and this opinion is substituted in its place.
A jury found appellant, Jonathan Joe Cooper, guilty of murder and assessed punishment at nineteen years= confinement. In a single issue, appellant contends the evidence is factually insufficient to support the State=s burden of persuasion relative to appellant=s justification defenses.
I. Background
On the night of April 22, 2005, Janorris Banks, complainant=s cousin, contacted Kwame Cheremetang, attempting to arrange the sale of Xanax between Cheremetang and a third party. Tiffany Edmonds, appellant=s friend, subsequently drove Cheremetang and appellant to Janorris=s residence to complete the sale.
Upon arriving at the residence, Cheremetang and Janorris began to argue about details of the transaction. At some point during this argument, appellant saw Janorris enter the house and return, holding a large butcher knife. Cheremetang and Janorris continued to argue until appellant convinced Cheremetang to leave. However, as they left, Cheremetang and appellant informed the buyer that they would return later to complete the sale.
Approximately thirty minutes later, Edmonds drove Cheremetang and appellant back to Janorris=s residence, stopping just past the property. Cheremetang and appellant observed a group of men, including Janorris and complainant, Patrick Banks, congregated outside the house. After Edmonds stopped the car, complainant began to yell obscenities at Cheremetang and appellant while walking aggressively towards the car. As Cheremetang opened the front door of the car, complainant punched Cheremetang through the partly open front passenger window, causing Cheremetang to lose consciousness and severely injuring Cheremetang=s left eye.[1] According to appellant, complainant was holding a knife when he lunged toward appellant through the open rear passenger window. Appellant shot complainant three times C twice through the cheek and once through the shoulder C killing him.[2]
Immediately after the shooting, with the front door of the vehicle partly open, Edmonds drove away. She proceeded to a car wash where she and appellant attempted to clean complainant=s blood from the vehicle. At some point later, appellant dismantled and disposed of the gun he had used to shoot complainant. Appellant also changed his hair style by cutting his long, braided hair short.
Appellant was eventually arrested and indicted for murder. A jury found appellant guilty.
II. Analysis
Appellant concedes that the State=s evidence established the underlying elements of murder. However, in a single issue, appellant contends the evidence is factually insufficient to support his conviction because the State failed to meet its burden of persuasion in disproving his defenses of self-defense and defense of a third person. Specifically, appellant contends the State=s evidence was Aso weak that it undermines confidence in the jury=s rejection of self-defense because it could not shoulder the burden of persuasion beyond a reasonable doubt that appellant was not acting in self-defense or in defense of a third person.@
In evaluating factual sufficiency of the evidence, we view all the evidence in a neutral light and will set aside the verdict only to prevent manifest injustice. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). In conducting a factual-sufficiency review, we engage in a two-prong test to determine whether there is some objective basis to find (1) that the evidence in support of the jury=s verdict is so weak that the jury=s verdict seems clearly wrong and unjust; or (2) in considering conflicting evidence, the jury=s verdict is against the great weight and preponderance of the evidence. Id. at 417. When a defendant challenges factual sufficiency of the evidence supporting a fact-finder=s rejection of a defense, we review all of the evidence in a neutral light and ask whether the State=s evidence, considered alone, is too weak to support the finding and whether the proof of guilt, although adequate, if taken alone, is against the great weight and preponderance of the evidence. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003).[3]
Conduct otherwise proscribed as criminal may be justified under certain circumstances. See Luck v. State, 588 S.W.2d 371, 375 (Tex. Crim. App. 1979). The law in effect at the time of complainant=s killing provided, in pertinent part:
A person is justified in using deadly force against another:
(1) if he would be justified in using force against the other [in self defense];[4]
(2) if a reasonable person in the actor=s situation would not have retreated; and
(3) when and to the degree he reasonably believes the deadly force is immediately necessary . . . to protect himself against the other=s use or attempted use of unlawful deadly force[.]
Act of May 27, 1995, 74th Leg., R.S., ch. 235, ' 1, 1995 Tex. Gen. Laws 2141, 2141 amended by Act of March 27, 2007 80th Leg., R.S., ch. 1 ' 5, 2007 Tex. Gen. Laws 1, 2 (codified as an amendment of Tex. Penal Code Ann. ' 9.32).[5]
Additionally, the use of deadly force in defense of a third person is a justification for otherwise criminal conduct. See Tex. Penal Code Ann. ' 9.33 (Vernon 2003); Hughes v. State, 719 S.W.2d 560, 564 (Tex. Crim. App. 1986). A person asserting this defense stands in the shoes of the third person. Hughes, 719 S.W.2d at 564. The use of deadly force to protect a third person is justified in any situation in which the third person would be justified in using deadly force to protect himself. See id.
A defendant has the burden to produce some evidence to support his justification defense. See Zuliani, 97 S.W.3d at 594. Once the defense is raised, the State bears the burden of persuasion in disproving the defense, but not the burden of affirmatively producing evidence refuting the claimed defense; the State is required only to prove its case beyond a reasonable doubt. Id.; Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991); Roy v. State, 161 S.W.3d 30, 36 (Tex. App.CHouston [14th Dist.] 2004, no pet.). Accordingly, when the fact-finder determines that the defendant is guilty, there is an implicit finding against the defensive theory. Zuliani, 97 S.W.3d at 59; Miller v. State, 177 S.W. 3d 177,183 (Tex. App. CHouston [1st Dist] 2005).[6]
Appellant contends the evidence demonstrates that he acted in self-defense or in defense of Cheremetang when he shot complainant. Appellant testified that complainant was wielding a knife when complainant lunged directly at appellant through the rear passenger-side window of Edmonds=s vehicle. Accordingly to appellant, this attack occurred after appellant observed complainant strike Cheremetang with brass knuckles. Additionally, appellant argues that his perceived need to use deadly force to protect himself or Cheremetang was reasonably influenced by his earlier observation of the argument between Janorris and Cheremetang during which Janorris armed himself with a butcher knife.
Despite appellant=s cited evidence, we cannot conclude the jury=s verdict is clearly wrong and unjust or against the great weight and preponderance of the evidence. In assessing guilt, the jury must have rejected appellant=s justification theories. See Zuiliani, 97 S.W.3d at 594.
Ronald Banks and Kenneth Foreman, two eyewitnesses to complainant=s killing, testified that complainant was not wielding any weapon when he was shot. When he was initially interviewed by police, appellant did not state that the complainant was wielding a knife or any weapon. Although police discovered a butcher knife on the premises similar to the one Janorris was holding when the argument with Cheremetang ensued, the officers did not discover any physical evidence that complainant actually used a weapon to attack Cheremetang or appellant. The physical damage to Cheremetang=s face and eye was consistent with a bare knuckle impact. Appellant testified that he did not shoot complainant until complainant lunged directly at him through the window of the right rear car door. Conversely, Ronald Banks testified that complainant was shot as complainant fought with Cheremetang at the front passenger side door of Edmonds=s vehicle.
Dr. Sara Chauvin, an assistant Harris County medical examiner who conducted complainant=s autopsy, testified that complainant was shot twice through his left cheek, indicating complainant was shot at an angle, corroborating Ronald Bank=s testimony. Investigating officers discovered only a small amount of blood inside the vehicle, notwithstanding the gross amount of blood at the scene. The results of ballistics tests are consistent with Ronald Bank=s testimony. Moreover, the location of bullet wounds and abrasions on complainant=s body supports the State=s contention that complainant was outside the car when he was shot.
Appellant contends the State=s failure to call either Janorris Banks or Tiffany Edmonds resulted in Afatal weakness of evidence.@ Citing Waldon v. State, appellant argues that the Aabsence of evidence can create a logical gap in the necessary proof or disproof of an element that the remaining evidence is thereby rendered too weak to support a jury finding.@ 579 S.W.2d 499, 502 (Tex. Crim. App. 1979). However, as appellant concedes, the Court of Criminal Appeals overruled the standard enunciated in Waldon, holding A[w]hat is not in evidence is irrelevant to a determination of the sufficiency of the evidence.@ Chambers v. State, 711 S.W.2d 240, 245 (Tex. Crim. App. 1986). Moreover, the State presented testimony from two eyewitnesses to the shooting. Even if we employed the Waldon construct, under these facts, we conclude the absence of testimony from two other eyewitnesses does not create such a logical gap in the necessary proof that the evidence presented by the State is rendered too weak to support the verdict. Generally, a logical gap in necessary proof is not created by the failure to call witnesses who might present testimony that conflicts with other witnesses.
Appellant argues that Ronald Banks=s and Kenneth Foreman=s testimony could not support the jury=s verdict because of conflicts with appellant=s and Cheremetang=s testimony. Additionally, appellant notes that neither Ronald Banks nor Kenneth Foreman could recall all the details surrounding the killing, although Ronald Banks and Kenneth Foreman were standing nearby when the shooting occurred. The jury was in the best position to judge the credibility of the witnesses and weigh conflicts in the evidence, and we defer to its judgment unless the record clearly indicates that a different result is appropriate. See Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000).
Appellant also contends his conduct after the shooting is marginally relevant and Aweakly probative@ relative to consciousness of guilt. Appellant argues that his decision to retreat from an existing threat and failure to contact or cooperate with police does not logically indicate he was unjustified in shooting the complainant. However, we review all the evidence, even evidence unrelated to appellant=s justification defenses. While evidence indicating a consciousness of guilt, standing alone, is insufficient to support a conviction, evidence indicating consciousness of guilt is a circumstance from which the jury may draw an inference of guilt. See e.g. Valdez v. State, 623 S.W.2d 317, 321 (Tex. Crim. App. 1979) (holding evidence of flight is a circumstance from which jury may draw an inference of guilt). In this case, appellant fled immediately after shooting complainant. Additionally, Edmonds and appellant attempted to clean complainant=s blood from the vehicle. Further, appellant changed his appearance by cutting his long hair after the complainant was killed. Moreover, appellant dismantled and disposed of the gun he used to shoot complainant. Although this evidence alone is insufficient to support the jury=s verdict, taken together with the other evidence adduced at trial, it indicates a consciousness of guilt and lends additional support to the jury=s verdict. See id.
After reviewing all the evidence, consistent with our standards of review, we conclude that the there is no great weight or preponderance of evidence supporting appellant=s justification defenses; alternatively, the evidence is not so weak that it undermines confidence in the jury=s rejection of appellant=s justification defenses. Accordingly, we hold the State fulfilled its burden of persuasion relative to appellant=s justification defenses.
Appellant=s sole issue is overruled, and the judgment of the trial court is affirmed.[7]
/s/ Charles W. Seymore
Justice
Judgment rendered and Substitute Opinion filed December 18, 2008.
Panel consists of Chief Justice Hedges and Justices Frost and Seymore.
Publish C Tex. R. App. P. 47.2(b).
[1] According to appellant and Cheremetang, complainant used brass knuckles to strike Cheremetang. However, eyewitnesses Ronald Banks and Kenneth Foreman, complainant=s cousins, testified that complainant did not use a weapon that night.
[2] Ronald Banks also contradicted appellant=s testimony regarding the events occurring immediately after complainant struck Cheremetang, testifying that complainant was by the front door of Edmonds=s car when appellant shot him.
[3] Appellant erroneously asserts that Zuliani was not a self-defense case. However, Zuliani was charged with assault and contended that he acted in self-defense. See Zuliani, 97 S.W. 3d at 593. Accordingly, our disposition of this appeal is informed by the analysis and disposition of the Court of Criminal Appeals in Zuliani.
[4] A person is justified in using force in self defense against another when and to the degree he reasonably believes force is immediately necessary to protect himself against the other=s use or attempted use of unlawful force. See Act of June 19, 1993, 73rd Leg. R.S., ch. 900, ' 1.01, 1993 Tex. Gen. Laws 3586, 3598, amended by Act of March 27, 2007, 80th Leg., R.S., ch. 1 ' 5, 2007 Tex. Gen. Laws 1, 2 (codified as an amendment of Tex. Penal Code Ann. ' 9.31).
[5] Although the legislature has amended sections 9.31 and 9.32 of the Penal Code, the offenses for which the jury convicted appellant occurred on April, 22, 2005, which was before the September 1, 2007 effective date of the amendments. Accordingly, our analysis of appellant=s issues is governed by the previous version of the statutes. Act of June 19, 1993, 73rd Leg. R.S., ch. 900, ' 1.01, 1993 Tex. Gen. Laws 3586, 3598 (amended 2007); Act of May 27, 1995, 74th Leg., R.S., ch. 235, ' 1, 1995 Tex. Gen. Laws 2141, 2141 (amended 2007).
[6] Seeking reversal of a Aguilty@ verdict, appellant contends this court should employ a ASpecial Review,@ described as a Aweakness of evidence@ factual-sufficiency review, singularly focused on the State=s burden to disprove the elements of his justification defenses. However, appellant=s proposed focus and framing of the issue does not alter the standards of review outlined above. We have considered all the evidence and the jury=s implicit finding against appellant=s justification defenses, consistent with the analysis employed by the Court of Criminal Appeals in Zuliani.
[7] Although not specifically stated as an issue for review, appellant seems to contend the State made various improper jury arguments. However, appellant failed to properly preserve error for our review. Generally, to preserve a complaint for appellate review, a party must have presented the trial court with a timely request, objection, or motion stating the specific grounds for the ruling sought. Tex. R. App. P. 33.1; Cockrell v. State, 933 S.W.2d 73, 88 (Tex. Crim. App. 1996). The record fails to demonstrate appellant objected to the arguments at issue. Accordingly, to the extent appellant complains regarding allegedly improper argument, he has waived any such complaints.