Booker v. State

929 S.W.2d 57, 1996 Tex. App. LEXIS 3514, 1996 WL 447863
CourtCourt of Appeals of Texas
DecidedAugust 7, 1996
Docket09-94-171 CR
StatusPublished
Cited by59 cases

This text of 929 S.W.2d 57 (Booker v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Booker v. State, 929 S.W.2d 57, 1996 Tex. App. LEXIS 3514, 1996 WL 447863 (Tex. Ct. App. 1996).

Opinions

OPINION

STOVER, Justice.

This is an appeal from a conviction for attempted capital murder with a deadly weapon. The appellant pleaded not guilty to the charge; trial was to a jury, which found appellant guilty as charged in the indictment. On February 17,1994, after hearing evidence on punishment, the trial court sentenced appellant to 99 years in the Institutional Division of the Texas Department of Criminal Justice and fined appellant $10,000. The trial court also made an affirmative finding that a deadly weapon was used in the commission of the crime. Appellant filed his motion for new trial on February 23, 1994, which was overruled by operation of law. This appeal then followed.

Facts

On October 21, 1991, James Wade Bailey, a certified peace officer employed by the Harris County Constable’s Office, Precinct 4, was assigned to the 10:00 p.m. to 6:00 a.m. shift in the Kingwood patrol district in northeast Harris County near IH 59 and the Montgomery County line. Around midnight, Officer Bailey was flagged down by a pedestrian who reported that he was concerned for his safety because three black males driving three separate automobiles had driven past him several times with them headlights off.

Bailey asked the pedestrian to point to the direction from which the vehicles had come, and the pedestrian pointed up the road to the north. At that point, Bailey noticed three vehicles, without their headlights on, approaching him at a high rate of speed. Approximately fifty feet after the vehicles drove past him, they ran a stop sign. Officer Bailey then began his pursuit. Although Bailey testified he could not be sure of the color of the first vehicle (he thought it was green), the second vehicle was a maroon Chrysler LeBaron convertible with a black top, and the third vehicle was a blue Ford LTD.

Bailey continued to follow the three vehicles and attempted to contact other police units on his radio for assistance. As the chase continued, Officer Bailey noticed other traffic violations by the drivers of the three vehicles he was pursuing. The blue Ford LTD at one time collided with the Chrysler LeBaron. Ultimately, the chase poured over into Montgomery County. As the three vehicles sped onward, the blue Ford LTD [60]*60slammed on its brakes, turning sideways, in a maneuver that the officer considered to be an attempt to block him off and remove him from the chase. Officer Bailey took evasive action and thereby avoided a collision; the blue Ford went out of control and appeared to hit a tree. At that point Bailey was closing in on the Chrysler LeBaron. The vehicular portion of the chase came to an end when the LeBaron crashed into a ditch along the fence line on the back side of the New Caney High School in New Caney, Texas.

Officer John Holobeck of the Roman Forest Police Department responded to Officer Bailey’s call for assistance and arrived at the location in time to see both vehicles (the Chrysler LeBaron and Officer Bailey’s patrol car) approaching him and witnessed the end of the chase with the LeBaron crashing into the ditch and Bailey’s unit being side by side, but approximately 55 to 60 feet away, on top of the pavement itself. Officer Holobeck stopped his unit approximately 25 or 30 feet from the scene.

Bailey testified that when he stepped out of his patrol unit, he looked up and saw appellant already out of the Chrysler LeBar-on and “in a prone position across the top of his car.” Booker “came over with both hands, in a shooter’s stance, across the top of the vehicle.” Bailey then saw a flash of light, which he described as a muzzle flash, and heard the report of a gunshot. According to Bailey, the weapon was pointed right at him. There were no other persons around when the appellant allegedly fired the shot[s]. Bailey testified that after he (Bailey) fired, appellant “got back up and fired again.” At that point, Bailey fired several more rounds. After Booker fired at Bailey, Booker then ran northbound, down the fence line of 494 and the New Caney High School, with Bailey in pursuit.

During the gunfire, Officer Holobeck arrived on the scene. Holobeck stated he saw a muzzle flash from Bailey’s gun but not from appellant’s gun. He observed appellant get up off the ground and run north along the fence line. Exiting his vehicle, Officer Holobeck yelled at appellant to get face down on the ground. Appellant complied and fell face down on the ground with his left arm beneath him. Officer Bailey handcuffed appellant and found the weapon underneath him. Appellant’s arm had been struck by one of Bailey’s bullets.

Appellant brings forth four points of error. In point of error four, appellant challenges the legal sufficiency of the evidence to support the verdict.

In reviewing the sufficiency of the evidence, this court must determine whether, considering the evidence in the light most favorable to the verdict, 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, 61 L.Ed.2d 560, 573 (1979); Emery v. State, 881 S.W.2d 702, 705 (Tex.Crim.App.1994), cert. denied, — U.S. -, 115 S.Ct. 1257, 131 L.Ed.2d 137 (1995). The standard is applicable to both direct and circumstantial evidence cases. Geesa v. State, 820 S.W.2d 154, 163 (Tex.Crim.App.1991).

The jury is the trier of fact, the sole judge of the credibility of the witnesses and the weight to be given their testimony. Tex.Code Crim. PROC. Ann. art 38.04 (Vernon 1979). The jury may accept or reject all or any part of the testimony. Penagraph v. State, 623 S.W.2d 341, 343 (Tex.Crim.App.1981). Contradictions in the evidence are reconciled by the jury and will not result in reversal so long as there is enough credible testimony to support the verdict. Bowden v. State, 628 S.W.2d 782, 784 (Tex.Crim.App.1982). Additionally, the jury may use common sense and apply common knowledge, observation, and experience gained in the ordinary affairs of life when giving effect to the inferences that may reasonably be drawn from the evidence. Wawrykow v. State, 866 S.W.2d 87, 88 (Tex.App.—Beaumont 1993, pet. refd).

The sufficiency of the evidence is a question of law. The issue on appeal is not whether we as a court believe the State’s evidence or believe that the appellant’s evidence outweighs the State’s evidence. See Matson v. State, 819 S.W.2d 839, 846 (Tex.Crim.App.1991); Wicker v. State, 667 S.W.2d 137, 143 (Tex.Crim.App.), cert. denied, 469 [61]*61U.S. 892, 105 S.Ct. 268, 83 L.Ed.2d 204 (1984). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson, 819 S.W.2d at 846.

The appellant does not deny that the weapon he was holding discharged; what he does claim, however, is that the gun accidentally discharged when he hit it on the top of the LeBaron as he was trying to exit from the car. Appellant’s testimony is in direct opposition to Officer Bailey’s testimony that he saw Booker point the gun and fire at him.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Timothy Jarvis Cooley v. the State of Texas
Court of Appeals of Texas, 2025
Cameron Dontae Robinson v. the State of Texas
Court of Appeals of Texas, 2024
Gus Guevara v. the State of Texas
Court of Appeals of Texas, 2023
Parmer v. State
545 S.W.3d 724 (Court of Appeals of Texas, 2018)
Allen Ray Ince v. State
Court of Appeals of Texas, 2015
Acosta, Victor Manuel
429 S.W.3d 621 (Court of Criminal Appeals of Texas, 2014)
Keith Freeman v. State
Court of Appeals of Texas, 2012
Catarino Jose Castillo v. State
Court of Appeals of Texas, 2011
Carla Jo Keck v. State
Court of Appeals of Texas, 2009
Roger Dale Gentry v. State
Court of Appeals of Texas, 2008
Russel Cole Harty v. State
Court of Appeals of Texas, 2007
Harty v. State
229 S.W.3d 849 (Court of Appeals of Texas, 2007)
Vicente Carranza v. State
Court of Appeals of Texas, 2007
Trevino v. State
228 S.W.3d 729 (Court of Appeals of Texas, 2006)
Joe Ibarra v. State
Court of Appeals of Texas, 2006
Miguel Trevino A/K/A Mike Trevino v. State
Court of Appeals of Texas, 2006
Donnie Conyers v. State
Court of Appeals of Texas, 2006
Rodriguez v. State
191 S.W.3d 428 (Court of Appeals of Texas, 2006)
Rafael Javier Rodriguez v. State
Court of Appeals of Texas, 2006
Kenneth Burkett Giddens v. State
Court of Appeals of Texas, 2006

Cite This Page — Counsel Stack

Bluebook (online)
929 S.W.2d 57, 1996 Tex. App. LEXIS 3514, 1996 WL 447863, Counsel Stack Legal Research, https://law.counselstack.com/opinion/booker-v-state-texapp-1996.