Anthony Arlanders Ross v. State

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION

No. 04-19-00873-CR

Anthony Arlanders ROSS, Appellant

v.

The STATE of Texas, Appellee

From the 226th Judicial District Court, Bexar County, Texas Trial Court No. 2017CR12490 Honorable Velia J. Meza, Judge Presiding

Opinion by: Sandee Bryan Marion, Chief Justice

Sitting: Sandee Bryan Marion, Chief Justice Luz Elena D. Chapa, Justice Beth Watkins, Justice

Delivered and Filed: September 23, 2020

AFFIRMED

A jury found appellant Anthony Arlanders Ross (“Ross”) guilty of manslaughter and

assessed punishment at confinement for ten years. In a single issue, Ross argues the evidence is

legally insufficient to support the guilty verdict. We affirm the trial court’s judgment.

Background

On the evening of March 16, 2016, Jemichal Hardy, his girlfriend Raven, and Raven’s two

children were watching television in the house Jemichal shared with Ross in San Antonio. Ross

arrived at the house and had a friendly conversation with Jemichal for about fifteen to twenty 04-19-00873-CR

minutes while Raven, who was seated nearby, looked at Facebook on her cell phone. As the men

were talking, Ross retrieved a handgun. Raven testified she heard Ross load the gun, but he never

handed it to Jemichal. Raven was listening to Ross and Jemichal discussing oiling the gun so it

could fire better when “the gun just went off.” Raven looked up from her cell phone at the sound

of the gunshot, but she did not see whether Ross’s finger was on the gun’s trigger. Jemichal had

been shot in the face and appeared to have died instantly. Raven and Ross took the children outside,

and Raven called 9-1-1.

San Antonio Police Detectives Ronald Lee Haley and Robert Bunnell were dispatched to

the scene. Ross approached Detective Haley as he pulled up to the house and said: “I got to tell

you something. I accidentally shot somebody.” Ross was distraught but cooperative, so Detective

Haley placed him in handcuffs to keep Ross and everyone else safe. Both detectives entered the

house. Detective Bunnell observed a magazine clip “some distance” away from Jemichal’s body

and a .40 caliber Smith & Wesson handgun. Detective Bunnell testified the handgun is the same

make and caliber used by police, and these guns are very unlikely to discharge accidentally. The

specific gun used to shoot Jemichal had a 10.5-pound trigger pull weight, which is even harder to

fire than the guns used by police. Subsequent testing revealed the presence of gunshot residue on

Jemichal’s hands, which Detective Bunnell testified is consistent with Jemichal holding his hands

up before being shot in the face. Detective Bunnell explained: “[M]y surmise was [Jemichal] sees

a gun right here, puts his hands up and . . . [a]ll that garbage and debris, smoke and gas comes out

of the barrel, and it’s going to hit him in the face and hit him in his hands.” In Detective Bunnell’s

opinion, the shooting was not accidental.

Detective Haley drove Ross to the police station, where he was interviewed by San Antonio

Police Detective Randall Hines. Detective Hines testified Ross entered the interview room

weeping. Ross told the detective he and Jemichal were discussing the weights of their respective

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guns when Ross handed his gun to Jemichal for comparison. Jemichal removed the gun’s magazine

clip, and then, holding the gun through his shirt with the barrel facing himself, handed the gun

back to Ross. Ross told Detective Hines that Jemichal “put the gun in my hand, and it went off.”

Detective Hines testified Ross’s story did not make sense because, if it were true, “I would have

expected a lower body torso area” wound. In addition, if Jemichal had removed the gun’s magazine

clip, Detective Hines would expect the clip to be somewhere near Jemichal’s body, rather than

across the room. Detective Hines agreed with Detective Bunnell that the .40 caliber Smith &

Wesson did not have a “hair trigger,” but rather a heavy, 10.5-pound trigger pull.

Dr. Samantha Evans, a forensic pathologist for the Bexar County Medical Examiner’s

Office, performed Jemichal’s autopsy. Dr. Evans determined Jemichal died as a result of a gunshot

wound, with the bullet entering just below Jemichal’s right eyebrow and exiting the back of his

head. Jemichal’s injury did not indicate the barrel of the gun was pressed against his skin or within

one to three inches of his skin when it fired, but it is unclear whether Jemichal was shot from a

few inches or a few feet away. Evidence of gun powder grains were found around Jemichal’s

wound but not on his clothing, and there were no powder burns on Jemichal’s hands. Dr. Evans

determined the manner of Jemichal’s death was homicide.

Edward Wallace, the forensic scientist supervisor in the firearm section of the Bexar

County Criminal Investigation Laboratory, testified the handgun used to shoot Jemichal was not

mechanically or physically defective in any way. Therefore, the only way to discharge the gun

would be to manually pull the trigger. The gun’s trigger pull weight is between 10.5 and 11 pounds,

which represents the amount of force that must be applied to the trigger in order to fire the weapon.

Wallace testified 10.5 pounds is “fairly heavy” and “to the heavier end of the trigger pull range.”

Although the magazine clip had been removed from the gun before it fired, Jemichal was shot with

a round left in the chamber.

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Ross testified in his own defense, stating he and Jemichal were very good friends, like

brothers. Ross testified he bought his gun from Jemichal about two weeks before Jemichal was

shot, and Jemichal wanted to compare the weight of Ross’s gun to the weight of Jemichal’s new

gun. Ross handed his gun to Jemichal, who removed the magazine clip and began comparing the

guns. Jemichal then startled Ross by stating “Huh, Ross,” and handing the gun back to Ross while

holding it in both hands through his shirt. Jemichal’s hands were under his shirt, which partially

obscured the gun from Ross’s view. Ross reached out and grabbed the gun and Jemichal’s shirt

and fingers all at once. Then the gun “went off” without Ross realizing he had grabbed or pulled

the trigger. Ross testified he does not have a concealed handgun license and has never taken any

firearm safety courses. Ross is familiar with some of the fundamental rules of firearm safety, like

never pointing a gun at someone else and always acting as if a gun is loaded, and he agreed those

rules are common sense. He agreed handing his gun to Jemichal without checking to see whether

it was loaded and while there were children present was “pretty reckless.” Ross also agreed

grabbing the gun while Jemichal was holding it through his shirt was “pretty reckless” as well.

At the conclusion of trial, the jury found Ross guilty of manslaughter. Ross appeals.

Standard of Review

When considering a legal sufficiency challenge, we review all the evidence in the light

most favorable to the verdict to determine whether any rational factfinder could have found the

essential elements of the crime beyond a reasonable doubt. Mayberry v. State, 351 S.W.3d 507,

509 (Tex. App.—San Antonio 2011, pet. ref’d) (citing Jackson v. Virginia, 443 U.S. 307, 319

(1979)). Whether the evidence is legally sufficient is a question of law, and we will not overturn

the verdict unless it is irrational or unsupported by proof beyond a reasonable doubt. See Matson

v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991).

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We apply this standard of review to a hypothetically correct jury charge. Adames v. State,

353 S.W.3d 854, 860 (Tex. Crim. App. 2011), cert. denied, 565 U.S. 1262 (2012). The offense

charged in this case was manslaughter. “A person commits [the] offense [of manslaughter] if he

recklessly causes the death of an individual.” TEX. PENAL CODE ANN. § 19.04(a). “A person acts

recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his

conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the

circumstances exist or the result will occur.” Id. § 6.03(c). “The risk must be of such a nature and

degree that its disregard constitutes a gross deviation from the standard of care that an ordinary

person would exercise under all the circumstances as viewed from the actor’s standpoint.” Id.

Discussion

Ross argues the evidence is insufficient to support the verdict because the State did not

prove who pulled the trigger, and the jury was required to speculate as to how Jemichal actually

was shot.

The jury is the sole judge of the weight and credibility to assign to witness testimony. Tate

v. State, 500 S.W.3d 410, 413 (Tex. Crim. App. 2016). The jury may choose to believe all, none,

or any part of a witness’s testimony, even if other evidence in the record contradicts that testimony.

Dossett v. State, 216 S.W.3d 7, 31 (Tex. App.—San Antonio 2006, pet. ref’d) (citing Sharp v.

State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986)). The jury also may draw reasonable

inferences from the facts so long as each inference is supported by evidence in the record. Tate,

500 S.W.3d at 413. The jury may not, however, draw conclusions based on speculation. Id. “Unlike

a reasonable inference, speculation is insufficiently based on the evidence to support a finding

beyond a reasonable doubt.” Id. When the record supports conflicting inferences, we presume the

jury resolved the conflicts in favor of its verdict. Id.

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Here, although Ross testified the gun just “went off,” there is evidence in the record

reasonably supporting an inference that Ross recklessly pulled the trigger, causing Jemichal’s

death. Raven testified she did not hear Jemichal ask for Ross’s gun, and Ross had possession of

the gun “the entire time” he and Jemichal were discussing it. Ross himself told Detective Haley at

the scene: “I accidentally shot somebody.” Detectives Bunnell and Hines as well as Edward

Wallace testified the gun that shot Jemichal had a 10.5-pound trigger pull weight, which is “fairly

heavy” in order to prevent accidental firing. Wallace testified the gun was not mechanically or

physically defective and its safety features were working correctly, so he had no reason to believe

the gun would discharge accidentally. In fact, Detective Bunnell testified the police drop the same

make and caliber handguns from helicopters at three hundred feet just to make sure they do not

accidentally discharge when dropped. He agreed “simply slapping [the gun], grabbing it, dropping

it” would not have caused it to accidentally discharge and testified it is “near impossible” to

accidentally discharge that gun.

The jury also could reasonably disbelieve Ross’s version of events. Although Ross testified

he believed the gun was not loaded because Jemichal removed the magazine clip, the clip was not

recovered near Jemichal’s body. Raven testified Ross asked “where the bullets were” when he

entered the house, and she heard Ross load the gun before Jemichal was shot. Again, Raven

testified Jemichal never had the gun in his hands. And while Ross testified Jemichal handed him

the gun with both hands under his shirt, Jemichal was shot in the face, not in his torso or through

his shirt. Dr. Evans testified Jemichal’s injury was not consistent with the gun’s muzzle being only

one to three inches away from the bullet’s entry point. Detective Bunnell testified gunshot residue

was present on Jemichal’s hands, which he believed was consistent with Jemichal raising his hands

up before being shot in the face. The jury reasonably could have inferred Jemichal would not have

gunshot residue on his hands if they were inside his shirt, as Ross claimed.

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But even accepting Ross’s version of events, Ross himself admitted he voluntarily

“grabbed” the gun from Jemichal while fully aware the gun barrel was pointed at Jemichal. Ross

knew it is common sense not to point a gun at another person and to never assume a gun is

unloaded.

“In determining whether the evidence supports a finding of recklessness, a statement that

a defendant did not intend to kill the victim ‘cannot be plucked out of the record and examined in

a vacuum.’” Gahagan v. State, 242 S.W.3d 80, 86 (Tex. App.—Houston [1st Dist.] 2007, pet.

ref’d) (quoting Godsey v. State, 719 S.W.2d 578, 584 (Tex. Crim. App. 1986)). “Courts have

upheld jury findings that a defendant consciously disregarded a substantial and unjustifiable risk

in numerous situations involving allegedly accidental discharge of a firearm.” Id. (compiling

authorities). For instance, where the defendant was familiar with guns and knew she should never

point a gun at another person even if she believed, as she claimed, the gun was not loaded, the jury

was entitled to disbelieve the defendant’s “benign description of the incident” and instead conclude

the defendant was conscious of the risk of her actions. See id. at 88. Similarly, here, Ross admitted

he knew not to point a gun at another person and that it was reckless to grab the gun from Jemichal

while the barrel was pointed directly at Jemichal. Therefore, even accepting Ross’s version of

events, the jury reasonably could conclude Ross recklessly caused Jemichal’s death.

For these reasons and in light of all the evidence in the record, we conclude the evidence

is sufficient to support the jury’s conclusion that Ross committed manslaughter by recklessly

causing Jemichal’s death. We overrule Ross’s sole issue.

Conclusion

Having overruled Ross’s sole issue, we affirm the trial court’s judgment.

Sandee Bryan Marion, Chief Justice

DO NOT PUBLISH

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