Damien Lorenzo Green v. State

• Court: Court of Appeals of Texas
• Decided: June 30, 2009
• Docket: 14-07-00827-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed June 30, 2009

Affirmed and Memorandum Opinion filed June 30, 2009.

In The

Fourteenth Court of Appeals

____________

NO. 14-07-00827-CR

DAMIAN LORENZO GREEN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 434th District Court

Fort Bend County, Texas

Trial Court Cause No. 40,619A

M E M O R A N D U M   O P I N I O N

Appellant Damian Lorenzo Green challenges his conviction for felony murder.  After the jury found appellant guilty, the trial court assessed punishment as confinement for 45 years.  Appellant contends (1) the evidence is legally and factually insufficient to support the jury=s findings that he knowingly discharged a firearm in complainant=s direction on July 24, 2004 and killed her; (2) the trial court erred in denying his request that the jury be instructed on felony and misdemeanor deadly conduct; and (3) the trial court erred in instructing the jury on the law of parties.  We affirm.

Background

Houston Police Officer George Lucero responded to a shooting in progress at 4:23 a.m. on July 24, 2004 outside a club in the 15800 block of South Post Oak Boulevard in Houston.  Upon arriving at the crime scene at approximately 4:26 a.m., Officer Lucero observed the complainant, Lashonda Byrd, lying on the ground and being assisted by emergency medical personnel. 

During Officer Lucero=s investigation, witness Denise Lopez told him that an African-American male in a blue sport utility vehicle Astuck his body out the window and shot at the crowd.@  Lopez also told Officer Lucero that three males, including the assailant, were in the SUV.

While Officer Lucero was attempting to control the crowd at the crime scene, Houston Police Officer Cecilio Pena, Jr., stopped a blue Ford Expedition SUV with shiny rims for running a stop sign less than one mile from the shooting scene.  During the traffic stop, Officer Pena observed that the SUV contained three African-American males.  Officer Pena also noticed during the stop that the driver and front-seat passenger of the SUV appeared very nervous.

Officer Pena requested the SUV driver=s identification, which he did not have with him.  The driver explained that the SUV was his friend=s, and that he was driving because his friend had just gotten into a fight at a club.  The front-seat passenger then exited the SUV and handed Officer Pena his identification, which identified him as appellant.  Officer Pena noticed that appellant was not wearing a shirt and had numerous tattoos, including a pit bull on his chest.  Appellant told Officer Pena that he owned the SUV; Officer Pena discovered that the SUV was registered to appellant=s mother.

Officer Lucero requested assistance, at which point Officer Pena concluded his traffic stop of the blue SUV.  Officer Pena arrived at the crime scene within five minutes of Officer Lucero=s request.  Officer Pena learned of the description of the blue SUV and its occupants from talking to Officer Lucero and overhearing conversations among the crowd gathered at the crime scene. 

Upon learning this information, Officer Pena realized that it matched the description of the vehicle and persons he had stopped minutes earlier.  In particular, Officer Pena noted that the assailant was described as having been in the front passenger seat with no shirt and a stocky build.  Officer Pena left the crime scene and returned to the area of the traffic stop in hopes of locating the SUV or its occupants.  Officer Pena saw the SUV and a chase ensued.  Officer Pena was unable to catch the fleeing SUV because his patrol car began experiencing engine trouble.

Houston Police Officer Justin Wood responded to the crime scene as part of the Homicide Division=s Crime Scene Unit.  Officer Wood found one fired bullet and spent shell casing at the crime scene.  The bullet had no visible signs of blood or serological fluid, hair, skin, or tissue present.

Houston Police Sergeant David Ferguson responded to the crime scene as part of the Homicide Division=s investigation.  Sergeant Ferguson discovered while at the scene that Byrd had been transported to a hospital, where she was pronounced dead.  Sergeant Ferguson obtained appellant=s name from Officer Pena as a possible suspect in the shooting.  Sergeant Ferguson then returned to the police station and prepared a photo spread containing pictures of appellant and five similar-looking men. 

Sergeant Ferguson showed this photo spread to four eyewitnesses C Denise Lopez, Shannon Nealey, Ana Arbelaez, and Kimberly Bradley.  Bradley, who was Lashonda Byrd=s sister, identified appellant as the person who shot Byrd.  Lopez, Nealey, and Arbelaez did not identify anyone in the photo spread as the assailant.  Houston Police Sergeant E. T. Yanchak, also with the Homicide Division, showed the photo spread to witness Dean Williams; he identified appellant as the person who shot Byrd.

Byrd=s body was transported to the Harris County Medical Examiner=s Office from the hospital.  Dr. Dewayne Wolf supervised Byrd=s autopsy on July 24, 2004.  The autopsy revealed the cause of Byrd=s death to be a gunshot wound to the abdomen, and Byrd=s death was classified as a homicide.  One bullet penetrated Byrd=s body, piercing her kidney, liver, aorta, stomach, diaphragm, one vertebrae, and two ribs before exiting her body.  These injuries caused Byrd to bleed to death.  The bullet entered Byrd=s body on her right side and exited through her left side, approximately one inch higher than the entrance wound.

Laboratory testing on the bullet and casing found at the crime scene indicated that they came from a nine-millimeter Ruger handgun.  Testing was unable to determine whether the bullet found was the one that killed Byrd.  Using information gathered during the shooting investigation and the July 24, 2004 traffic stop, police located and arrested appellant a few days after the shooting.  Appellant was charged with felony murder for causing Byrd=s death in the course of committing felony deadly conduct. 

Trial began on May 22, 2007.  During trial, testimony was provided by Officers Lucero, Pena, and Wood; Sergeants Ferguson and Yanchak; and Dr. Wolf.  Officer Pena identified appellant in open court as the front-seat passenger he encountered during the July 24, 2004 traffic stop.

The State called Denise Lopez, who testified that she and her friends were outside the club when they heard two men arguing.  Lopez also testified that she had taken one ecstasy pill 20 minutes before the argument, but that she was still aware of her surroundings when she observed the argument and shooting.  Lopez testified that one of the men involved in the argument was a tall, light-skinned African-American and the other was a short, stocky, dark-skinned African-American.  According to Lopez, the short, stocky man removed his shirt during the argument, and she never saw him put it back on.  Lopez further testified that after the argument she saw the short, stocky man get into the front passenger side of a Ford Expedition SUV carrying three or four individuals, sit on the edge of the door, and hang outside the SUV.

Lopez testified that she saw the short, stocky man reach over the top of the SUV with something shiny in his hand, which she believed to be a black gun.  Lopez further testified that the short, stocky man pointed the shiny object in the air in the direction of the group that included Byrd, and that she heard three gunshots immediately afterward.  Lopez testified that she believed the short, stocky man in the SUV fired the gunshots, but that she could not say for certain because his body blocked her view and she dropped to the ground to protect herself once the shooting began.  Lopez could not identify appellant as the short, stocky man from the shooting in open court.  Lopez also testified that the short, stocky man was the only person she saw with a gun during the incident.

The State then called Dean Williams, who testified that he went to the club on July 24, 2004 with Byrd, Nealey, and Bradley.  Williams testified that he had known appellant for a few months, and that the two began arguing at the club.  Williams also testified that he had been drinking alcohol throughout the evening and was probably intoxicated, but that he had stopped drinking at 2:00 a.m. and was aware of what was going on around him at the time of the shooting.  Williams testified that after arguing with appellant for between five and 10 minutes, Williams turned and began walking away.

Williams further testified that he heard someone say, A[H]e=s got a gun.@  At that point, Williams looked back and saw appellant holding a gun straight up in the air and sitting on the edge of the front passenger side of a Abluish-green@ Ford Expedition SUV.  Williams testified that another African-American male was in the SUV with appellant.  Williams testified that he heard Amaybe a couple@ of shots fired and then saw Byrd lying on the ground.  Williams testified that he believed appellant fired the gunshots he heard, but that he only saw appellant discharge the gun once into the air because Williams hid behind a van after seeing appellant with a gun.  Williams testified that he did not see whether appellant aimed the gun toward Byrd or anyone else when appellant fired the gun after the initial shot into the air.  Williams testified that he did not see or hear about anyone other than appellant using a gun during the shooting.

The State then called Ana Arbelaez, who testified that she witnessed an argument between Williams and a short, stocky male at the club on July 24, 2004.  Arbelaez testified that she had taken two ecstasy pills C one at approximately 11:00 p.m. and one at approximately 3:30 a.m. C and that they did not affect her ability to understand what was going on at the time of the shooting.  Arbeleaz testified that she believed the short, stocky male removed his shirt at some point during the argument.

Arbelaez further testified that she saw the short, stocky male sitting on the edge of the passenger side of a blue Ford Expedition SUV.  Arbelaez testified that she saw the short, stocky male reach over the top of the SUV with a gun and fire approximately five shots in Byrd=s direction.  Arbelaez testified that she only saw the first gunshot C which she described to police that night as being Awild,@ or Akind of just anywhere@ C after which she dropped to the ground to protect herself.  Arbelaez testified that she saw two people in the SUV that night even though she initially told police that she saw four people in the SUV.  Arbelaez testified that once the shooting stopped she saw Byrd lying motionless on the ground.  Arbelaez testified that she did not get a good look at the short, stocky male, but she identified appellant in open court as having a similar build.  Arbelaez testified to her belief that the short, stocky male she saw shooting from the SUV killed Byrd.

The State also called Shannon Nealey, Byrd=s sister-in-law, who testified that she, Byrd, Bradley, and Williams went to the club on July 24, 2004.  Nealey testified that while the group was there, an argument arose between Williams and appellant, whom she testified was the aggressor.  Nealey testified that appellant took his shirt off during the argument, and that she could see that he had several tattoos.  Nealey further testified that she saw someone give appellant a gun, which he placed in his waistband.  Nealey testified that she heard someone say, A[H]e=s got a gun.@  She, Byrd, and Bradley began walking toward their vehicle at that point.

Nealey testified that she saw appellant get into the passenger side of a blue SUV; hang out of the SUV; point a gun in the direction of her, Bradley, and Byrd over the top of the SUV; and begin shooting in their direction.  Nealey testified that she initially told police that she did not see the discharge of the gun, but instead heard Atwo or three shots@ and then turned around.  Nealey also testified that she saw two people in the blue SUV.  Nealey testified that upon hearing the gunshots she immediately dropped to the ground for protection. 

Nealey further testified that she heard Bradley say Byrd had been shot.  Nealey testified that she turned around and saw Byrd take a step toward her before falling to the ground.  Nealey testified that she called 9-1-1 and tried to slow Byrd=s blood loss by applying pressure to the right side of Byrd=s body.  Nealey identified appellant in open court as the person who shot at her, Bradley, and Byrd on July 24, 2004.  Nealey further testified that appellant was the only person she saw with a gun during the shooting.

The State called Bradley as its final witness.  Bradley testified that she, Byrd, Nealey, and Williams went to the club on July 24, 2004.  Bradley testified that while the group was there, an argument arose between Williams and appellant.  Bradley also testified that appellant removed his shirt during the argument.  Bradley identified appellant in open court as the man she saw arguing with Williams at the club.  Bradley testified that she identified appellant in a photo spread shown to her by police as the man who shot and killed Byrd. 

Bradley testified that she, Byrd, and Nealey were walking away from Williams and appellant when appellant got into the passenger side of a blue Ford Expedition SUV with Abig round rims.@  Bradley further testified that she saw appellant hanging out of the passenger side window of the SUV yelling.  Bradley testified that there were two other individuals in the SUV with appellant.  Bradley also testified that she was uncertain whether the back windows of the SUV were up or down when the shooting occurred, but that they were up when appellant got into the SUV. 

Bradley testified that appellant pulled out a gun, faced the three women, and pointed the gun in their direction.  Bradley testified that she turned to warn Byrd, but was unable to do so before hearing two gunshots.  Bradley also testified that she saw the first gunshot and smoke and sparks coming from appellant=s gun.  Bradley testified that Byrd told her that she had been shot before Byrd fell to the ground.  Bradley testified that no one had a gun during the shooting other than appellant.  The State then rested its case.  Appellant presented no evidence in his defense.

During the jury charge conference, appellant requested that the jury be instructed on misdemeanor and felony deadly conduct as lesser included offenses of felony murder.  The trial court denied appellant=s request.  As a result, the jury charge gave the jury two options: (1) convict appellant of felony murder; or (2) acquit appellant.  Appellant also objected to the instruction on the law of parties included in the proposed jury charge.  The trial court overruled appellant=s objection.

The jury convicted appellant of felony murder as charged in the indictment on May 25, 2007.  The trial court assessed appellant=s punishment as confinement for 45 years, and signed its judgment imposing this sentence on September 11, 2007.  Appellant appeals from this judgment.

Analysis

Appellant challenges the legal and factual sufficiency of the evidence supporting the jury=s findings that he knowingly discharged a firearm in Byrd=s direction on July 24, 2004 and killed her.  Appellant further contends that the trial court erred in denying his request that the jury be instructed on misdemeanor and felony deadly conduct as lesser included offenses of felony murder.  Additionally, appellant challenges the trial court=s overruling of his objection to the inclusion in the jury charge of an instruction on the law of parties.  We address each challenge in turn.

I.          Legal and Factual Sufficiency

An individual commits felony murder if the individual commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of another individual.  Tex. Penal Code Ann. _ 19.02(b)(3) (Vernon 2003).

An individual commits felony deadly conduct if the individual knowingly discharges a firearm at or in the direction of one or more individuals.  Id. _ 22.05(b)(1), (e) (Vernon 2003).  An individual commits misdemeanor deadly conduct if the individual recklessly engages in conduct that places another in imminent danger of serious bodily injury.  Id. _ 22.05(a), (e).

Appellant=s sufficiency challenges focus on whether the State proved beyond a reasonable doubt that (1) he; (2) knowingly discharged a firearm in Byrd=s direction; and (3) killed her.  Because much of the evidence is relevant to more than one of these individual findings, we address them together.

A.        Legal Sufficiency

In reviewing legal sufficiency of the evidence, an appellate court will examine the evidence in the light most favorable to the State to determine whether any rational finder of fact could have found the essential elements of the offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319 (1979); Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999).  The court does not sit as another juror and may not re-evaluate the weight and credibility of the evidence or substitute its judgment for that of the fact finder.  Dewberry, 4 S.W.3d at 740.

Reconciliation of conflicts in the evidence is within the exclusive province of the fact finder.  See Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998) (en banc).  The appellate court=s duty is not to reweigh the evidence, but to serve as a final due process safeguard ensuring only the rationality of the fact finder.  See Williams v. State, 937 S.W.2d 479, 483 (Tex. Crim. App. 1996).  An appellate court faced with a record of facts that supports conflicting inferences must presume _ even if not obvious from the record _ that the finder of fact resolved any such conflicts in favor of the State, and must defer to that resolution.  Jackson, 443 U.S. at 326.

The State presented ample evidence of appellant=s identity as the assailant at the club on July 24, 2004: (1) Officer Pena=s testimony that he stopped appellant less than one mile from the crime scene within minutes of the shooting, and that appellant matched the description of the assailant; (2) Officer Pena=s in-court identification of appellant as the front-seat passenger he encountered during his July 24, 2004 traffic stop of a blue Ford Expedition SUV; (3) Sergeant Ferguson=s testimony that Bradley identified appellant as the assailant from a photo spread; (4) Sergeant Yanchak=s testimony that Williams identified appellant as the assailant from a photo spread; (5) Williams=s testimony that he saw appellant sitting on the edge of the front passenger side of a Abluish-green@ Ford Expedition SUV with a gun moments before the shooting; (6) Williams=s testimony that he did not see or hear about anyone other than appellant using a gun during the shooting, and that he believed that appellant fired the gunshots at the club; (7) Arbelaez=s testimony that a man with a build similar to appellant=s sitting on the edge of the passenger side of a blue Ford Expedition SUV fired approximately five gunshots C the first of which she saw C during the shooting; (8) Nealey=s testimony that she saw appellant get into the passenger seat of a blue SUV, hang out of the SUV, point a gun in the direction of her, Bradley, and Byrd, and start shooting; (9) Nealey=s in-court identification of appellant as the person who shot at her, Bradley, and Byrd, and Nealey=s testimony that appellant was the only person she saw with a gun during the incident; (10) Bradley=s testimony that she saw appellant hanging out of the passenger side window of a blue Ford Expedition SUV when he pulled out a gun, pointed it toward her, Nealey, and Byrd, and fired two shots; (11) Bradley=s testimony that she saw the first gunshot and smoke and sparks coming from appellant=s gun; (12) Bradley=s testimony that no one had a gun during the shooting except appellant; and (13) Bradley=s in-court identification of appellant as the man who was arguing with Williams and eventually started shooting at the club, and her testimony that she identified appellant as the assailant from a photo spread.

The State presented the following evidence that appellant knowingly discharged a firearm Ain the direction of one or more individuals@ identified in the indictment:  (1) Officer Lucero=s testimony that Lopez told him the assailant Ashot at the crowd@; (2) Lopez=s testimony that the short, stocky man that she believed to be the assailant had argued with a tall, light-skinned African-American man immediately before he began shooting; (3) Lopez=s testimony that the assailant pointed what she believed to be a gun in the air in the direction of the group that included Byrd before firing three shots; (4) Williams=s testimony that he and appellant argued for between five and 10 minutes immediately before the shooting; (5) Arbelaez=s testimony that she saw a man with a build similar to appellant=s arguing with Williams at the club; (6) Arbelaez=s testimony that the man with a build similar to appellant=s fired approximately five gunshots in the direction of Byrd; (7) Nealey=s testimony that appellant argued with Williams immediately before the shooting, and that appellant was the aggressor in that argument; (8) Nealey=s testimony that immediately after the argument appellant pointed a gun in the direction of her, Bradley, and Byrd, and fired Atwo or three shots@ at them; (9) Bradley=s testimony that appellant argued with Williams immediately before the shooting; and (10) Bradley=s testimony that immediately after the argument appellant pointed a gun toward her, Nealey, and Byrd, and fired two shots in their direction.

In addition to the evidence described above, the State presented further evidence that appellant=s gunfire killed Byrd: (1) Officer Wood=s testimony that he found a fired bullet and spent shell casing at the crime scene; (2) Dr. Wolf=s testimony that Byrd died from internal bleeding caused by a single gunshot wound to the abdomen; (3) Lopez=s testimony that she heard three gunshots during the shooting, and that the short, stocky male she saw in the blue Ford Expedition SUV was the only person she saw with a gun; (4) Williams=s testimony that he heard Amaybe a couple of shots@ fired and then saw Byrd lying on the ground; (5) Williams=s testimony that he did not see or hear about anyone other than appellant using a gun during the shooting; (6) Arbelaez=s testimony that after the assailant fired five times in Byrd=s direction she saw Byrd lying motionless on the ground; (7) Arbelaez=s testimony that she believed that a man with a build similar to appellant=s killed Byrd on July 24, 2004; (8) Nealey=s testimony that she heard Atwo or three shots,@ heard Bradley say that Byrd had been shot, and then saw Byrd take one step and fall to the ground; (9) Nealey=s testimony that appellant was the only person she saw with a gun during the shooting; (10) Bradley=s testimony that she heard two gunshots and Byrd then told her that she had been shot before falling to the ground; and (11) Bradley=s testimony that no one had a gun during the shooting except for appellant.

Viewing the evidence described above in the light most favorable to the jury=s verdict, a rational fact finder could have found beyond a reasonable doubt that on July 24, 2004, appellant knowingly discharged a firearm in Byrd=s direction and killed her.  See Jackson, 443 U.S. at 319; Dewberry, 4 S.W.3d at 740. 

B.        Factual Sufficiency

When conducting a factual sufficiency review, an appellate court must determine whether (1) the evidence introduced to support the verdict is Aso weak@ that the fact finder=s verdict seems Aclearly wrong and manifestly unjust,@ and (2) the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met.  Prible v. State, 175 S.W.3d 724, 730-31 (Tex. Crim. App. 2005).  We view the evidence in a neutral light in a factual sufficiency review.  Id.

In order to declare that an evidentiary conflict justifies a new trial, an appellate court must rely on some objective basis in the record demonstrating that the great weight and preponderance of the evidence contradicts the jury=s verdict.  See Lancon v. State, 253 S.W.3d 699, 706-07 (Tex. Crim. App. 2008).  An appellate court should not intrude upon the fact finder=s role as the sole judge of the weight and credibility of witness testimony.  Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002). 

The jury may choose to believe or disbelieve any portion of the testimony.  Bargas v. State, 252 S.W.3d 876, 887 (Tex. App.CHouston [14th Dist.] 2008, no pet.) (citing Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986) (en banc)).  Due deference must be given to the fact finder=s determinations concerning the weight and credibility of the evidence, and reversal of those determinations is appropriate only to prevent the occurrence of a manifest injustice.  Martinez v. State, 129 S.W.3d 101, 106 (Tex. Crim. App. 2004).

Appellant=s factual sufficiency challenges mirror his legal sufficiency challenges.  Appellant=s theory at trial was that someone else at the club C possibly another occupant of the SUV C fired the fatal bullet.  Appellant relies heavily upon admissions by witnesses during cross-examination that it was Apossible@ that someone else at the club could have had a gun and shot Byrd, but there is no direct testimony supporting either of these Apossibilities.@  Because the substantial evidence supporting the jury=s findings is thoroughly described above, we do not repeat it here.

Appellant emphasizes the following evidence in support of his factual sufficiency challenge regarding his identity as the assailant at the club: (1) the failure of Lopez, Arbelaez, and Nealey to positively identify appellant in the photo spread as the assailant; (2) the failure of Lopez and Arbelaez to positively identify appellant in open court as the assailant; (3) the testimony from all witnesses to the shooting that other individuals were in the SUV from which shots were fired; (4) Lopez=s testimony that she could not say for certain that the short, stocky man in the SUV was the assailant; (5) Williams=s testimony that he heard Amaybe a couple@ of shots fired, but that he only saw appellant discharge the gun once; (6) Arbelaez=s testimony that she heard five gunshots but only saw the short, stocky man in the SUV fire the first one; (7) Nealey=s testimony that she initially told police she did not see the gun discharge when she heard Atwo or three shots@; (8) Bradley=s testimony that she was uncertain whether the back windows of the SUV were up or down when the shooting occurred, and that there were two other individuals in the SUV with appellant; and (9) Bradley=s testimony that she saw appellant fire the first gunshot during the shooting, but did not see whether he fired the second one that she heard.

With regard to whether he knowingly discharged a firearm Ain the direction of one or more individuals@ named in the indictment, appellant highlights the following evidence: (1) Lopez=s testimony that she could not say for certain whether the short, stocky man in the SUV aimed at or fired toward anyone because his body blocked her view; (2) Lopez=s testimony that the assailant pointed what she believed to be a gun Ain the air@ in the direction of Byrd and her friends; (3) Williams=s testimony that he saw appellant holding a gun straight up in the air, and that he saw appellant fire the gun once into the air; (4) Williams=s testimony that he did not see whether appellant aimed the gun at Byrd or anyone else when gunshots were fired after the initial shot into the air; (5) Arbelaez=s testimony that she only saw the first gunshot fired by the short, stocky man in the SUV, and that she described that shot to police as being Awild,@ or Akind of just anywhere@; and (6) Nealey=s testimony that she initially told police that she did not see the gun discharge.

In addition to the above evidence highlighted by appellant, he emphasizes the following evidence in support of his contention that he did not fire the bullet that killed Byrd: (1) Officer Wood=s testimony that the bullet found at the crime scene had no visible signs of blood or serological fluid, hair, skin, or tissue present; (2) Officer Wood=s testimony that laboratory testing could not determine whether the bullet found at the scene was the one that killed Byrd; (3) Williams=s testimony that he only saw appellant fire one gunshot into the air, but that he heard Amaybe a couple@ of shots fired; and (4) Arbelaez=s testimony that she only saw appellant fire the first gunshot, but that she heard five gunshots.

In challenging the factual sufficiency of the evidence to support the jury=s findings, appellant further relies on his contention that (1) Lopez=s and Arbelaez=s testimony is unreliable because of their use of ecstasy in the hours before the shooting; and (2) Williams=s testimony is unreliable because of his admission that he was probably intoxicated at the time of the shooting.  Judging the credibility of witnesses and the weight to be given their testimony is exclusively within the jury=s province as finder of fact, and we may intrude upon its determination only if required to prevent a manifest injustice.  See Martinez, 129 S.W.3d at 106; Vasquez, 67 S.W.3d at 236; Bargas, 252 S.W.3d at 887.

Comparing the evidence supporting appellant=s contentions with that supporting the jury=s findings, and viewing all of the evidence in a neutral light, we conclude that it is factually sufficient to justify the jury=s findings that on July 24, 2004, appellant knowingly discharged a firearm in Byrd=s direction and killed her.  See Prible, 175 S.W.3d at 730-31.  The jury=s findings are neither clearly wrong nor manifestly unjust.  See id.; Martinez, 129 S.W.3d at 106.

We overrule appellant=s issue regarding legal and factual sufficiency of the evidence.

II.        Denial of Request for Jury Instructions on Misdemeanor and Felony Deadly Conduct

Appellant contends that the trial court erred by denying his request for jury instructions on misdemeanor and felony deadly conduct as lesser included offenses to felony murder.  The State asserts that appellant was not entitled to a jury instruction on either offense based on the record in this case.

Upon the defendant=s request, the trial court must instruct the jury on a lesser-included offense if (1) the requested charge is for a lesser-included offense of the charged offense; and (2) there is some evidence that, if the defendant is guilty, he is guilty only of the lesser offense.  Guzman v. State, 188 S.W.3d 185, 188 (Tex. Crim. App. 2006).

As noted earlier, an individual commits felony murder if the individual commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of another individual.  Tex. Penal Code Ann. _ 19.02(b)(3).  A defendant commits felony deadly conduct if he knowingly discharges a firearm at or in the direction of one or more individuals.  Id. _ 22.05(b)(1), (e).  A defendant commits misdemeanor deadly conduct if he recklessly engages in conduct that places another in imminent danger of serious bodily injury.  Id. _ 22.05(a), (e).

The State concedes that misdemeanor and felony deadly conduct are lesser-included offenses in this case, but contends that appellant failed to establish that there was some evidence that he was guilty only of one of these offenses.  Appellant asserts on appeal that he was entitled to instructions on these offenses because the record contains evidence that he acted only recklessly.

Recklessness and danger are presumed if the actor knowingly points a firearm at or in the direction of another.  Id. _ 22.05(c).  A statutory presumption is not evidence and does not supply evidence; rather, it is simply a permissive guide to jurors.  Guzman, 188 S.W.3d at 193 & n.17.  A statutory presumption is not an element of an offense because it is not part of the statutory definition of the offense.  Id. at 193 & n.16.  A statutory presumption may play no part in determining whether a defendant is entitled to a lesser-included offense instruction.  Id. at 193.

A murder defendant attempting to establish recklessness and his entitlement to a misdemeanor deadly conduct instruction for a fatal shooting must produce evidence or testimony that the gun accidentally discharged.  See Johnson v. State, 915 S.W.2d 653, 659-60 (Tex. App.CHouston [14th Dist.] 1996, pet. ref=d) (citing Hayes v. State, 728 S.W.2d 804, 809-10 (Tex. Crim. App. 1987) (en banc), and Thomas v. State, 699 S.W.2d 845, 850 (Tex. Crim. App. 1985) (en banc)) (discussing offense of Areckless conduct,@ predecessor to offense of Adeadly conduct@).

Although appellant references the statutes defining both misdemeanor and felony deadly conduct and cites to the argument made at trial for lesser-included offenses found in the record, he premises his argument on his assertion that the record contains some evidence that appellant acted recklessly rather than knowingly.  Appellant does not differentiate between misdemeanor and felony deadly conduct throughout his argument, instead referring simply to the offense of Adeadly conduct.@ 

Where an appellant fails to develop in his brief any argument relating to the issue complained of on appeal, or to cite to any relevant authority in support of his contention on appeal, nothing is preserved for our review.  Tex. R. App. P. 38.1(i); Oldham v. State, 5 S.W.3d 840, 847 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d).  An argument that appellant acted recklessly relates only to establishing appellant=s possible entitlement to a jury instruction on misdemeanor deadly conduct because felony deadly conduct requires the more culpable mental state of acting knowingly.  See Tex. Penal Code Ann. _ 22.05(a), (b)(1); Guzman, 188 S.W.3d at 190-92.  Thus, we conclude that appellant has waived his contention that he was entitled to a jury instruction on felony deadly conduct because he premises his appellate argument on evidence that he acted recklessly and does not offer argument as to specifically why he was entitled to a felony deadly conduct instruction.  See Tex. R. App. P. 38.1(i); Oldham, 5 S.W.3d at 847.

The record does not support appellant=s contention that he acted recklessly in discharging a firearm at the club on July 24, 2004.  The record contains no evidence or testimony indicating that the gun discharged accidentally.  Appellant=s inability to establish that the gun accidentally discharged precluded the jury from finding that appellant acted recklessly and convicting appellant only of misdemeanor deadly conduct.  See Johnson, 915 S.W.2d at 659-60; see also Hayes, 728 S.W.2d at 809-10; Thomas, 699 S.W.2d at 850.  Therefore, the trial court did not err in denying appellant=s request that the jury be instructed on misdemeanor deadly conduct.  See Guzman, 188 S.W.3d at 188.

We overrule appellant=s issue regarding the denial of his requests for jury instructions on the offenses of misdemeanor and felony deadly conduct.

III.       Objection to Jury Instruction on Law of Parties

Appellant contends that the trial court erred by overruling his objection to the inclusion in the jury charge of an instruction on the law of parties.  While appellant=s brief identifies this issue as being presented for our review and properly cites to the portion of the record discussing appellant=s objection to the jury charge, appellant does not include any argument or cite to any legal authority regarding this issue in his brief.  Appellant has not preserved this issue for review and it is therefore waived.  See Tex. R. App. P. 38.1(i); Oldham, 5 S.W.3d at 847.

We overrule appellant=s issue regarding the overruling of his objection to the inclusion in the jury charge of an instruction on the law of parties.

Conclusion

The trial court=s judgment is affirmed.

/s/      William J. Boyce

Justice

Panel consists of Justices Boyce, Anderson, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).