Opinion issued May 19, 2011.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-10-00391-CR
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Mark Owens, Appellant
V.
The State of Texas, Appellee
On Appeal from the 248th District Court
Harris County, Texas
Trial Court Case No. 1217662
MEMORANDUM OPINION
A jury convicted appellant Mark Owens of murder, and he was given an agreed sentence of life imprisonment. See Tex. Penal Code Ann. § 19.02(b) (West 2003). On appeal, appellant challenges the legal and factual sufficiency of the evidence to support his conviction. We hold that the evidence is legally and factually sufficient and affirm the trial court’s judgment.
Background
Appellant was convicted of shooting and killing Marquita Brown on Memorial Day 2009. On that day, Brown spent time with appellant, with whom she was romantically involved, and her two best friends, Kimly King and Tracy Shepard, and their boyfriends. King picked up Brown and appellant at Shepard’s apartment, where Brown was staying. King saw a gun on the window sill in the back bedroom of the apartment. King, Brown and appellant went to King’s boyfriend’s house, where they met up with Shepard and her boyfriend and children. They ate, watched movies and talked. King and Shepard witnessed Brown and appellant arguing throughout the day.
Later, the group decided to go to a local sports bar. Shepard took her children home, where King would pick her up later. King, Brown and appellant went to the apartment where Brown was staying so that Brown could change her clothes. At the apartment, Brown and appellant went inside while King stayed in the car. Fifteen to twenty minutes later, appellant returned to the car alone and asked King to take him home.
King took appellant home and was preparing to leave when appellant asked her to wait for him while he went inside to get some money to give to Brown. Appellant returned to the car five to ten minutes later and asked her to take him to the store to get change because he had only a fifty-dollar bill. King declined to take appellant to the store but drove him back to the apartment where Brown was. King stayed in the car while appellant went inside. After a few minutes, appellant appeared on the apartment balcony and told King that Brown needed help with her hair. When King went inside, she saw Brown’s body lying on the floor in the master bedroom. Appellant placed a gun to King’s head and said, “Don’t say nothing and don’t scream.” Appellant repeatedly stated that he “had to do it” and that Brown thought he “was playing with her.” Appellant forced King into a bedroom, where he used a cord to bind her hands and feet behind her and placed her on the bed. King begged appellant not to kill her.
A man called “Corey” then knocked on the apartment door. Corey knocked several times and left when no one answered. After Corey left, appellant placed a phone call in which he told the person on the other line, “I’ve got her cousin with me, I did it,” and gave the person King’s name and address. He told the other person that if anything happened to him or he went to jail, the person should kill King and her baby. Appellant then untied King and proceeded to ransack the apartment in an effort to make it look as if Brown had been robbed. Appellant placed several items in a black trash bag and took a key to the apartment from Brown’s back pocket. Appellant and King then left the apartment. Appellant disposed of the black trash bag in a storm drain.
Appellant told King to call Shepard and say that Brown was not coming as planned because she had passed out. Appellant threatened to shoot King in the head if she said anything to Shepard about what had happened. When Shepard got in the car, appellant sat in the back seat with his gun in his lap. King, Shepard and appellant proceeded to a bar. On the way, Shepard called Corey, who met them at the bar. They did not go inside the bar but spoke to Corey when he came over to their car. Shepard and Corey noticed that King was smoking a lot and appeared nervous.
When they left, King dropped off Shepard, and appellant instructed her to drive him to a nearby apartment complex. Appellant placed his gun to King’s head and told her he should shoot her and dump her body in the woods. King convinced appellant she would not tell anyone what happened, and appellant then told her to drive him to the apartment where they had left Brown’s body. They went inside the apartment briefly, at which time appellant returned the apartment key to Brown’s pocket. King then drove appellant home. When they arrived at his house, appellant took King’s license from her and entered her contact information into his cell phone. He tried to make her touch his gun, but she refused. He then told King to go straight home and not to call or speak to anyone. He also stated that he might follow her and that she would never know if he was watching her or not.
When King returned to her boyfriend’s home, she fell to the floor crying and screaming, “He killed her. He killed her.” She told her boyfriend that appellant had shot and killed Brown. At this time, appellant called the house. He told King to call Shepard and ask her if she had heard from Brown. At one point, King’s boyfriend picked up the phone and overheard appellant tell King to report Brown missing in the morning and to remember what he had said. King and her boyfriend went to Shepard’s boyfriend’s house to tell Shepard what had happened. King, her boyfriend, and Shepard then went to the police.
In the meantime, appellant, who had been acting as a confidential informant for the narcotics division of the Houston Police Department, contacted Officer Scales and told him that a woman named Marquita was transporting narcotics between Houston and Mississippi. Appellant took Officer Scales and his partner to the apartment where he had left Brown’s body, telling them that Marquita lived there. When they neared the apartment, the police were already there. At this time, appellant “became frantic” and said, “We got to get out of here.” Officer Scales and his partner were informed of the homicide and that the victim was Marquita Brown. Officer Scales then showed appellant a picture of Brown, at which point appellant stated that he wanted to leave. Officer Scales’s partner later informed him that appellant, also known as “Big O,” was a suspect. Officer Scales asked appellant if he knew “Big O,” at which point appellant “reacted strongly” and said, “They’re going to think I did this.” Soon after, appellant was arrested and charged with Brown’s murder.
Brown’s autopsy indicated that the gun had been placed against her head when she was shot. The police recovered a black cord that was tied in a double-loop from the apartment where Brown’s body was found. King took the police to the place where appellant had disposed of the black trash bag. The police recovered the bag at that location. Inside the bag, they found a Hawaiian Punch Can, several cigarette butts, a deck of cards, and a paper labeled, “Reality Assessment Program (R.A.P.).” There was testimony at trial that appellant claimed to work with an organization called Reality Assessment Community Outreach Program, and at the time of appellant’s arrest, he had a card in his wallet identifying him as an anger therapist, CEO and founder of “Reality Assessment Community Outreach Program, Home of the R.A.P. Program.”
Standard of Review
Both legal and factual sufficiency challenges are reviewed under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 27 (1979). Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). Under this standard, evidence is insufficient to support a conviction if, considering all the record evidence in the light most favorable to the verdict, no rational factfinder could have found that each essential element of the charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2788–89; In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071 (1970); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Viewed in the light most favorable to the verdict, the evidence is insufficient under this standard in two circumstances: (1) the record contains no evidence, or merely a “modicum” of evidence, probative of an element of the offense; or (2) the evidence conclusively establishes a reasonable doubt. See Jackson, 443 U.S. at 314, 318 n.11, 320, 99 S. Ct. at 2789 n. 11, 2789–90; Laster, 275 S.W.3d at 518; Williams, 235 S.W.3d at 750. Additionally, the evidence is insufficient as a matter of law if the acts alleged do not constitute the criminal offense charged. Williams, 235 S.W.3d at 750.
An appellate court determines whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (quoting Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007)). In viewing the record, direct and circumstantial evidence are treated equally. Id. Circumstantial evidence is as probative as direct evidence in establishing an actor’s guilt, and circumstantial evidence alone can be sufficient to establish guilt. Id. An appellate court presumes that the factfinder resolved any conflicting inferences in favor of the verdict and defers to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct. 2793; Clayton, 235 S.W.3d at 778. An appellate court also defers to the factfinder’s evaluation of the credibility and weight of the evidence. See Williams, 235 S.W.3d at 750.
Sufficiency of the Evidence
A person commits murder if he intentionally or knowingly causes the death of an individual. Tex. Penal Code Ann. § 19.02(b)(1). Appellant’s primary contention on appeal is that the evidence is legally and factually insufficient because the State’s case rests too heavily on the testimony of a single witness: King. However, “[i]t is well established that a conviction may be based on the testimony of a single eyewitness.” Davis v. State, 177 S.W.3d 355, 359 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (citing Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971); Lewis v. State, 126 S.W.3d 572, 575 (Tex. App.—Texarkana 2004, pet. ref’d)). “The determination of what weight to give testimonial evidence is within the sole province of the jury, as it turns on an evaluation of credibility and demeanor.” Id. (citing Cain v. State, 958 S.W.2d 404, 408–09 (Tex. Crim. App. 1997)). The jury is free to believe or disbelieve all or any part of a witness’s testimony. Id. This court must defer to the jury’s assessment of a witness’s credibility. Williams, 235 S.W.3d at 750.
Additionally, King’s testimony was supported by corroborating evidence. The police found a black trash bag in the storm drain where King said appellant had discarded it. The bag contained a paper from the Reality Assessment Program, corresponding to a card in appellant’s wallet connecting him to the program. Appellant’s own witness also connected him to the program. The police also found a black cord tied in a double-loop in a bedroom in the apartment where Brown’s body was discovered. This is consistent with King’s testimony that appellant tied her up with a black cord in the apartment. King’s boyfriend also testified that appellant called King at his house on the night of the murder and that he heard appellant tell King to report Brown missing in the morning and remind her to remember what he had told her. Cf. Scott v. State, No. 01–06–00151, 2007 WL 2264458, at *4 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (mem. op., not designated for publication) (observing that witness’s voice identification was corroborated by cell phone records showing a call made at the time alleged).
Appellant complains that the evidence is insufficient to establish appellant’s motive for killing Brown. However, there is evidence that appellant and Brown argued immediately before the murder. There was also evidence at trial that Brown and appellant were romantically involved, that appellant had a jealous nature, and that Brown was considering a move to Atlanta, where she had another boyfriend. This is evidence of motive. Additionally, although motive may be indicative of guilt, the State is not required to prove motive in order to obtain a conviction for murder. Clayton, 235 S.W.3d at 781; Smith v. State, 965 S.W.2d 509, 519 (Tex. Crim. App. 1998).
The evidence demonstrates that: appellant and Brown argued throughout the day before the murder; Brown and appellant were alone together in the apartment where Brown was shot around the time of the murder; no one else was seen entering or leaving the apartment during this time; King went into the apartment approximately twenty minutes after appellant entered and found appellant in the apartment with Brown’s body; appellant had a gun with him; Brown died from a pointblank gunshot wound to the head; appellant indicated to King that he shot Brown and threatened to kill King if she told anyone what happened; appellant took items from Brown’s apartment and disposed of them in a storm drain; appellant contacted police and identified Brown as a drug dealer, leading them to the apartment; and appellant reacted very strongly and made frantic efforts to leave when he arrived with the police at the apartment and found other police officers already there. Reviewing this evidence in the light most favorable to the verdict, we hold that a rational trier of fact could have found beyond a reasonable doubt that appellant intentionally or knowingly caused Brown’s death. See Tex. Penal Code Ann. § 19.02(b)(1). Accordingly, we hold that the evidence was legally and factually sufficient to support appellant’s conviction and affirm the trial court’s judgment. See Jackson, 443 U.S. at 319; Laster, 275 S.W.3d at 517; Williams, 235 S.W.3d at 750.
Jane Bland
Justice
Panel consists of Justices Keyes, Higley and Bland.
Do not publish. Tex. R. App. P. 47.2(b).