COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-03-453-CR
ALBERT
CLINTON RICHARDS APPELLANT
V.
THE
STATE OF TEXAS STATE
------------
FROM
THE 213TH DISTRICT COURT OF TARRANT COUNTY
MEMORANDUM OPINION1
A
jury convicted Appellant Albert Clinton Richards of murder, and the trial court
assessed his punishment and sentenced him to twenty-five years’ imprisonment.
In six points on appeal, Appellant complains that 1) the evidence is legally
insufficient, 2) the evidence is factually insufficient, 3) the trial court
erred by refusing to allow Appellant to confront a witness regarding the length
of time of his incarceration, 4) the trial court erred by finding that a deadly
weapon was used, 5) the trial court erred by determining that an aggravating
factor was present, and 6) the trial court’s judgment contains an erroneous
statement. We will affirm.
Background
Facts
This
case involves the death of Cullen Baker2, who was
homeless, by Appellant, who was also homeless. Joy Thomas and her husband, Mr.
Temple, live near the intersection of Interstate 35 and Rosedale, an area where
many homeless people frequent. Mr. Temple would occasionally offer assistance to
them, and they would sometimes go to his house to visit or for additional help.
On the morning of February 14, 2003, Thomas and Temple were awakened by banging
on the front door. When they opened the door, they saw Baker, who was bleeding
from wounds to his head. He told Thomas and Temple, “Call the police. They
just jumped on me.” The police and emergency personnel were called. Medstar
arrived and treated Baker’s wounds, but he refused to be transported to the
hospital.
Officer
J.R. Oakely, the Fort Worth police officer who responded to the call, took a
report from Baker regarding the incident. Based on the information obtained from
Baker, Oakely began looking for Ronald Watkins and Appellant.
The
following day, Roger Richards, Appellant’s brother, was driving around looking
for Appellant. Richards drove to an area where there was a large tent that he
knew held church services and fed the homeless. As he approached the large tent,
he noticed a man lying inside a smaller tent. He called out to the man, “Hey,
hey, mister,” but the man did not respond. Richards left and continued to look
in other places for his brother. Richards returned the next day to the same area
where he had seen the man lying inside the small tent. He thought something was
wrong because the man was in the same spot and same position. After checking the
man’s pulse and finding that he was dead, Richards called 911. The man in the
tent was later identified as Baker.
Standard of
Review
In
reviewing the legal sufficiency of the evidence to support a conviction, we view
all the evidence in the light most favorable to the verdict in order to
determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Ross v. State, 133 S.W.3d
618, 620 (Tex. Crim. App. 2004). This standard gives full play to the
responsibility of the trier of fact to resolve conflicts in the testimony, to
weigh the evidence, and to draw reasonable inferences from basic facts to
ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789. The trier of
fact is the sole judge of the weight and credibility of the evidence. See
Tex. Code Crim. Proc. Ann. art.
38.04 (Vernon 1979); Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim.
App. 2000). Thus, when performing a legal sufficiency review, we may not re-
evaluate the weight and credibility of the evidence and substitute our judgment
for that of the fact finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.
Crim. App. 1999), cert. denied, 529 U.S. 1131 (2000). We must resolve any
inconsistencies in the evidence in favor of the verdict. Curry v. State,
30 S.W.3d 394, 406 (Tex. Crim. App. 2000).
In
contrast, when reviewing the factual sufficiency of the evidence to support a
conviction, we are to view all the evidence in a neutral light, favoring neither
party. See Zuniga v. State, 144 S.W.3d 477, 481 (Tex. Crim. App. 2004).
The only question to be answered in a factual sufficiency review is whether,
considering the evidence in a neutral light, the fact finder was rationally
justified in finding guilt beyond a reasonable doubt. Id. at 484. There
are two ways evidence may be factually insufficient: (1) the evidence supporting
the verdict or judgment, considered by itself, is too weak to support the
finding of guilt beyond a reasonable doubt; or (2) when there is evidence both
supporting and contradicting the verdict or judgment, weighing all of the
evidence, the contrary evidence is so strong that guilt cannot be proven beyond
a reasonable doubt. Id. at 484-85. "This standard acknowledges that
evidence of guilt can 'preponderate' in favor of conviction but still be
insufficient to prove the elements of the crime beyond a reasonable doubt."
Id. at 485. In other words, evidence supporting a guilty finding can
outweigh the contrary proof but still be insufficient to prove the elements of
an offense beyond a reasonable doubt. Id.
In
performing a factual sufficiency review, we are to give deference to the fact
finder's determinations, including determinations involving the credibility and
demeanor of witnesses. Id. at 481; Cain v. State, 958 S.W.2d 404,
407 (Tex. Crim. App. 1997). We may not substitute our judgment for that of the
fact finder's. Zuniga, 144 S.W.3d at 482.
A
proper factual sufficiency review requires an examination of all the evidence. Id.
at 484, 486-87. An opinion addressing factual sufficiency must include a
discussion of the most important and relevant evidence that supports the
appellant's complaint on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex.
Crim. App. 2003).
Applicable Law
A
person commits murder if he intentionally or knowingly causes the death of an
individual, or intends to cause serious bodily injury and commits an act clearly
dangerous to human life that causes the death of an individual, or commits or
attempts to commit a felony, other than manslaughter, and in the course of and
in furtherance of the commission or attempt, or in immediate flight from the
commission or attempt, he commits or attempts to commit an act clearly dangerous
to human life that causes the death of an individual. Tex. Penal Code Ann. § 19.02(b) (Vernon
2003). A person acts intentionally with respect to the result of his conduct
when it is his conscious object or desire to cause the result; he acts knowingly
when he is aware that his conduct is reasonably certain to cause the result. Id.
§§ 6.03(a),(b).
Legal and
Factual Sufficiency
In
his first two points, Appellant complains that the evidence is legally and
factually insufficient to sustain his conviction. Specifically, he complains
that the evidence is insufficient to show beyond a reasonable doubt that the
blows administered by him caused Baker’s death. He argues that there were
numerous other individuals in the area who could have inflicted the injuries
that killed Baker. In this case, the record reveals that Appellant testified
that when he first spoke to Detective S.J. Waters about Baker’s death, he
denied hitting Baker. He also testified as follows:3
[STATE]: Let
me stop you there. You picked up some rocks.
A. Uh-huh.
[STATE]: Did
you . . . hit him with the rock?
A. Yes,
I did.
[STATE]: How
many times did you hit him with a rock?
A. I
have no idea. I was scared, I was trying to get that stick away from him.
[STATE]: How
many times did you hit him with a rock? How many times do you think you hit him?
A. A
couple, three times.
Arthur
Brown and Leo Qualls, who were also homeless men and who were with Appellant and
Baker on the date of the incident, also testified that they saw Appellant hit
Baker. Brown testified that he saw Appellant pull out a “pretty good size . .
. piece of asphalt” from under Appellant’s sleeping bag and hit Baker in the
“head and face” between “nine and ten times.” During his testimony, the
State asked Brown what Appellant did after Baker fell to the ground. Brown
responded, “[Appellant] [w]ent on top of him, had his knees right where his
chest was at. He was working on his head with asphalt.” The State asked Brown
to clarify what “working on his head” meant, to which Brown stated,
“hitting him with it.” Brown testified that the concrete asphalt was “like
a good-sized football” and was “about six inches long and about three or
four inches round.”
It
should be noted that Officer B.R. Patterson, a crime scene officer responding to
the call regarding Baker’s body, and Detective Waters both indicated in their
testimony that Baker’s initial appearance did not indicate that a homicide had
occurred. However, after an autopsy was performed, Dr. Gary Sisler, a deputy
medical examiner, testified that Baker died from blunt force injury to the head.
Although he was unable to determine the time of death, he found a blood clot on
the surface of Baker’s brain and gave a rough estimate that it was at least 36
hours old. Dr. Sisler stated that on the inner layer of Baker’s scalp there
were bruises on top of the head, the right frontal area, and the back right
area. Dr. Sisler admitted that many times older people fall and suffer this type
of injury as a result, but he stated that he did not see any external evidence
that Baker fell.
After
considering the evidence in the light most favorable to the verdict, we conclude
that a rational trier of fact could have found that Appellant intentionally or
knowingly caused Baker’s death, or that Appellant intended to cause Baker
serious bodily injury and committed an act clearly dangerous to human life that
caused Baker’s death. Thus, the jury could have found beyond a reasonable
doubt that Appellant murdered Baker. We hold that the evidence is legally
sufficient to sustain Appellant’s conviction. Therefore, we overrule
Appellant’s first point.
Further,
reviewing all the evidence in a neutral light, we conclude the jury was
rationally justified in finding that when Appellant hit Baker in the head and
face numerous times with a rock or piece of concrete asphalt, he caused
Baker’s death. We cannot say the evidence of guilt considered by itself is too
weak to support the finding of guilt beyond a reasonable doubt, or that the
contrary evidence is strong enough that the beyond-a-reasonable-doubt standard
could not have been met. See Zuniga, 144 S.W.3d at 481. We hold that the
evidence is factually sufficient to sustain Appellant’s conviction.
Accordingly, we overrule Appellant’s second point.
Excluded
Evidence
In
point three, Appellant complains that the trial court erred by not allowing him
to introduce evidence regarding the amount of time Brown actually served for a
drug conviction in order to reveal any possible biases. The State contends that
Appellant has forfeited his complaint by not preserving error in the exclusion
of the testimony.
To
preserve error, the substance of the excluded evidence must be shown by offer of
proof unless it is apparent from the context of the questions asked. Tex. R. Evid. 103(a)(2); Chambers v.
State, 866 S.W.2d 9, 27 (Tex. Crim. App. 1993), cert. denied, 511
U.S. 1100 (1994). When, as in this case, there is no bill of exception or offer
of proof to show the facts that Appellant could have proved through
cross-examination of an adverse witness, the issue has not been preserved for
appellate review. See Tex. R. App.
P. 33.2; Love v. State, 861 S.W.2d 899, 900-01 (Tex. Crim. App.
1993). Because Appellant failed to preserve this complaint, we overrule point
three.
Deadly Weapon
Finding
In
points four through six, Appellant argues that 1) the evidence was legally
insufficient to show that the rock, or brick, or piece of concrete asphalt
constituted a deadly weapon, 2) the trial court erred by determining that a
deadly weapon was used without submitting the issue to the jury, and 3) the
judgment contains an erroneous statement that the jury made an affirmative
finding on use of a deadly weapon when the finding was actually made by the
trial court.
A
deadly weapon means anything that in the manner of its use or intended use is
capable of causing death or serious bodily injury. Tex. Penal Code Ann. § 1.07(a)(17)(B)
(Vernon Supp. 2004-05). The plain language of section 1.07(a)(17)(B) does not
require that the actor actually intend death or serious bodily injury; rather,
“[t]he placement of the word ‘capable’ in the provision enables the
statute to cover conduct that threatens deadly force, even if the actor has no
intention of actually using deadly force.” Bailey v. State, 38 S.W.3d
157, 159 (Tex. Crim. App. 2001). Objects that are not inherently dangerous may
be found to be deadly weapons under section 1.07(a)(17)(B). Hill v. State,
913 S.W.2d 581, 582-83 (Tex. Crim. App. 1996). An object qualifies as a deadly
weapon if the actor intends a use of the object that would make it capable of
causing death or serious bodily injury. Bailey, 38 S.W.3d at 159; McCain
v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000). For example, while a
telephone cord or a feather pillow are not normally deadly weapons, they become
so if the manner of their use is to strangle or smother a victim. Hill,
913 S.W.2d at 591. The wounds inflicted and the general testimony regarding the
weapon’s potential for deadliness are also factors relevant to the deadly
weapon inquiry. Denham v. State, 574 S.W.2d 129, 130-31 (Tex. Crim. App.
1978).
During
the guilt/innocence portion of the trial, Detective Waters testified about
whether any of the objects used could be a deadly weapon. Waters testified as
follows:
[STATE]: Detective
Waters, as part of your experience as a police officer, have you learned the
terminology of a deadly weapon?
A. Yes.
[STATE]: As
part of your training and experience, have you learned what constitutes a deadly
weapon?
[STATE]: Let
me ask you, can a rock be a deadly weapon?
A. Yes
[STATE]: Can
a brick be a deadly weapon?
[STATE]: Can
concrete asphalt be a deadly weapon?
[STATE]: Are
all three of those items in the manner of their use or intended use capable of
causing death or serious bodily injury?
[STATE]: If
a person, based on your training and experience, were to be hit in the head with
one of those three items, would that constitute an act clearly dangerous to
human life?
Dr.
Sisler testified that Baker died from blunt force injury to the head. He also
stated that a rock, brick, or some type of concrete asphalt could have been
consistent with the type of injury that he observed on Baker. By Appellant’s
own admission, he hit Baker in the head and face with a piece of asphalt.
Furthermore, the State called an eyewitness who described how Appellant hit
Baker with a “pretty good size” piece of asphalt in the head and face nine
to ten times. While a rock, brick, or piece of concrete asphalt normally would
not be considered a deadly weapon, the evidence was legally sufficient to
support that it became one when Appellant used it to strike Baker repeatedly in
the head and face. Applying the appropriate standard of review for legal
sufficiency,4 we hold that the evidence was
sufficient to support the deadly weapon finding. We overrule Appellant’s
fourth point.
Next,
we address whether the trial court erred by not submitting to the jury the
special issue regarding the use of a deadly weapon and by including that finding
in the judgment. In Polk v. State, the court set out three instances
when, in a jury trial, the court may enter in the judgment that the jury made an
affirmative finding that a defendant used or exhibited a deadly weapon during
the commission of an offense: 1) When the indictment specifically alleged the
words “deadly weapon” describing the weapon used and the verdict reads
“guilty as charged in the indictment”; 2) When the indictment names a weapon
which is per se a deadly weapon and the verdict reads “guilty as charged in
the indictment”; and 3) When the special issue is submitted to the trier of
fact and is answered affirmatively. 693 S.W.2d 391, 396 (Tex. Crim. App. 1985).
In
Polk, the indictment did not allege that the defendant used or exhibited
a “deadly weapon.” Id. Polk specifically allows the trial
court to enter a deadly weapon finding when the State pleads in the indictment
the use or exhibition of a deadly weapon and the jury finds the defendant guilty
as charged in the indictment. Id.
The
indictment in this case alleged that Appellant “intentionally or knowingly
cause[d] the death of an individual, Cullen Baker, by hitting him with a deadly
weapon, to-wit: a rock, that in the manner of its use or intended use was
capable of causing death or serious bodily injury.” The verdict in this case
read, “We the Jury find the defendant guilty of the offense of murder as
charged in the indictment.” We hold that the trial court did not err.
Therefore, we overrule Appellant’s fifth and sixth points.
Conclusion
Having
overruled all six points on appeal, we affirm the trial court’s judgment.
PER
CURIAM
PANEL
A: HOLMAN, J.; CAYCE, C.J.; and SAM J. DAY, J. (Retired, Sitting by Assignment)
DO
NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED:
May 5, 2005
NOTES
1.
See Tex. R. App. P. 47.4.
2.
The record reveals that Baker went by the nickname “Tent Man.”
3.
Appellant testified in his own defense during the guilt/innocence portion of the
trial. He testified that he hit Baker in self-defense.
4.
See Jackson, 443 U.S. at 307, 99 S. Ct. at 2781; Burden v. State,
55 S.W.3d 608, 612 (Tex. Crim. App. 2001); Dewberry, 4 S.W.3d at 740.