Cunningham v. State

982 S.W.2d 513, 1998 WL 712927
Court of Appeals of Texas·Decided November 23, 1998·No. 04-96-01020-CR·Published·Cited by 25 cases

Opinions

OPINION

RICKHOFF, Justice.

Kenneth Cunningham was convicted on four counts of aggravated assault with a deadly weapon after members of the Dope Overthrowing Gangsters opened fire in a crowded park on a green Cadillac occupied by four members of the Skyline Park gang. In five points of error, Cunningham challenges the legal and factual sufficiency of the evidence; argues the admission of evidence showing the death of a peace officer was error; and that his trial counsel was ineffective, both generally and in that counsel had a conflict of interest with his client. We find that evidence of Cunningham’s actions that day was sufficient to support a finding that he acted as a party, despite the fact that no one saw him shooting, and that a rational trier of fact could have so found beyond a reasonable doubt. We therefore affirm the judgment of the trial court.

Facts

Because Cunningham challenges the sufficiency of the evidence to support his conviction, a detailed rendition of the facts is in order.

Officer Toby Travieso of the San Antonio Police Department testified that he was patrolling in the area of Martin Luther King Jr. Park on July 31,1994 when he heard gunfire. Travieso said he drove toward the site of the gunfire, but that the dispatcher directed him to Salado Creek where a park ranger was chasing an armed suspect. Travieso said he and his partner chased two black males along Salado Creek; when one of them turned with an object in his hand, Travieso’s partner drew his weapon and fired. Both suspects fell to the ground and were cuffed; they were later identified as Terry Battle and Frederick Burkes.

At that point, Travieso said, he heard splashing in the creek, looked over and saw Park Ranger Paul Pytel splashing around in the water and screaming for help. Other officers arriving on the scene were unable to find Pytel for four or five minutes; when they did find him in the murky creek, they were unable to revive him.

Park Ranger Gabriel Escobedo next testified that he had been working in the park ■with Pytel and was near the bridge where the shots were fired. At the sound of the first shot, Escobedo said, he turned and saw three men with guns drawn among a group of about five. Escobedo said that while he could see only three weapons, all the men had their arms extended straight out in front of them, as if they were firing as well.

Escobedo said he and Pytel chased the five men, first in the vehicle and then on foot as they ran across a field and toward Salado Creek at the back of the park. Escobedo fell behind Pytel and lost sight of the group; however, he stayed in contact with Pytel by radio. He said he did not see Pytel again until other officers pulled him out of the creek.

Officer Ernest Trevino testified he was dispatched to the park; after a conversation with a civilian, he headed for the creek to try and cut off the fleeing suspects. Trevino said he ran into two suspects “walking fast and kind of looking, you know, over their shoulder;” one of these men was armed. Trevino drew his revolver and ordered the men to drop; he said the armed man, later [517] identified as Terry Battle, started to lift the gun and Trevino fired a shot. He said Battle dropped the weapon and fell to the ground (he was unhurt), and he told the other man, later identified as Burkes, to get on the ground at that point. Trevino said that at that point he heard the splash as Pytel went into the creek and could see that he was in trouble.

Trevino cuffed the suspects, took the weapon and headed for the spot where Pytel had gone in. Trevino said the creek was muddy and stirred up and it took several minutes to locate him; when he was pulled out, Trevino said he performed cardiopulmonary resuscitation but was unable to revive him.

Officer Brian Burke testified he was dispatched to aid a person hit by a bullet from the fusillade. He said the man, Lucas “Buster” Dukes, told him he heard several shots while crossing a bridge in the park, that he was struck in the leg, that he didn’t realize at first that he had been shot, and that he did not see anyone with a gun.

Officer Marcus Wilhelm Booth testified he was dispatched to Martin Luther King Park, which he described as being crowded with young people drinking and listening to music. He went first to the creek where Pytel was being pulled out of the water, then to a residence where a bullet-riddled Cadillac Fleetwood was parked. While there, Booth said he talked with complainants Delvage McIntyre, Clinton Lee, William Bee and Darrell Bee, as well as the mother of one of the complainants. They told him they had been shot at as they drove down the street in front of the park. Booth said an evidence technician was summoned to process the car while Booth took the four men to police headquarters to give a statement.

Clinton Lee, one of the complainants, testified he was in the car that July afternoon with Delvage McIntyre, William Bee and Darrell Bee. He said they rode in McIntyre’s ear, a green Cadillac, down Martin Luther King Jr. Drive and came to a stop at a stoplight in front of the park. He said that he saw a group of men pointing at their car; he testified that the group included Terry Battle (aka T-Dog), Kenneth Cunningham (aka Baby Kenneth), Frederick Carter (aka Kool Aid), and Frederick Burke, and “Quick” (aka Donald Griffin).

Lee said they were sitting at the stoplight on Martin Luther King Jr. Drive by the park when “Quick, he started shooting and the other ones joined in.” Lee said he didn’t see Cunningham with a gun, but “I am assuming he was shooting because he was with his homeboys and he don’t want to look like a punk.” He said he saw “T-Dog, Quick and Kool-Aid” with guns that day, but added that “All that shooting going on didn’t come from three guns, I can tell you that.” He also said he saw Cunningham running toward Salado Creek with the other four defendants. Lee also testified that the group of shooters were in the Dope Overthrowing Gangsters, or D.O.G., and that he and the others in the car were in the Skyline Park gang, and that there was “bad blood” between the two groups.

William Dante Bee testified that he was sitting in the front passenger seat of the Cadillac that Sunday afternoon when the group decided to drive by Martin Luther King Park. He said that when their car got to the bridge just outside the park, he saw Cunningham and his friends start “throwing gang signs” at them. He said that when the ear pulled up to the traffic light, the group opened fire on them. He said he ducked at that point and did not see the defendant firing at them. He said “Quick” was the first one to start shooting.

Delvage McIntyre said he was driving the Cadillac that night, and that he had just come up to the entrance to the park when “people started shooting at us.” He said he did not see Cunningham at the park. He did say that, to his ear, there were more than five people shooting at his ear at that point: “I have been shot at so many times I know when people are shooting.” He later said that “there were more than two people shooting but I don’t know who.” He said one of the shots hit his car in the radiator, and that he was able to limp the car back to Bee’s house, where Bee’s mother called the police.

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Cunningham v. State, 982 S.W.2d 513, 1998 WL 712927 (Tex. Ct. App. 1998).

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Cunningham v. State
982 S.W.2d 513 (Court of Appeals of Texas, 1998)