Gross v. State

352 S.W.3d 238, 2011 Tex. App. LEXIS 7786, 2011 WL 4489769
CourtCourt of Appeals of Texas
DecidedSeptember 29, 2011
Docket14-10-00461-CR
StatusPublished
Cited by11 cases

This text of 352 S.W.3d 238 (Gross 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
Gross v. State, 352 S.W.3d 238, 2011 Tex. App. LEXIS 7786, 2011 WL 4489769 (Tex. Ct. App. 2011).

Opinions

OPINION

SHARON McCALLY, Justice.

Appellant Jimmie Gross appeals his conviction for murder under the law of parties. Because the evidence is insufficient to support appellant’s conviction for murder under law of parties, we reverse the conviction and render judgment of acquittal.

[239]*239Background1

On September 4, 2006, the complainant, Corkney Lee, was shot and killed by appellant’s brother-in-law John Jones. Appellant, who was charged with murder of Lee, testified at Jones’s murder trial. Jones was convicted of the murder of Lee. Subsequently, at appellant’s trial for murder, the State read into the record the transcript of appellant’s testimony from Jones’s murder trial.

According to appellant’s testimony, he and Jones were in a white Dodge Ram truck in the right hand lane at a stoplight. The female passenger of a vehicle in the left lane signaled for appellant to roll down his window. Lee, who was driving, asked appellant, “Do you know me?” Appellant responded, “No, I don’t.” Lee asked appellant, “Well, why are you watching me?” Appellant responded, “I’m not.” This exchange continued until Lee asked appellant to pull into a gas station. Appellant complied.

Once at the gas station, appellant and Lee resumed their “verbal altercation” and exited their vehicles. Less than a minute later, Jones got out of the truck. Appellant testified that he did not know that Jones had gotten out of truck until Lee started running toward the store. At that moment, appellant looked back to see Jones raising a 12-gauge shotgun to his chest and pointing it in his and Lee’s direction. Appellant yelled, “No, no,” and ran back to the truck.

Appellant testified that he had been carrying the shotgun, which he claimed belonged to someone else, on the backseat of his truck for six to twelve months; the shotgun was unloaded but had ammunition stored in its “stock.”

Appellant heard the shotgun, but claims he did not see Jones fire it or know that anyone had been shot. Appellant panicked, and he and Jones left the scene in appellant’s truck. Appellant dropped off Jones, with the shotgun, at Jones’s grandmother’s house. Appellant drove back to the gas station where he saw eight or nine police cars and someone lying in the door of the store. When appellant found out that someone had been killed, he became “scared” and “panicked” and left gas station. Lee died of multiple gunshot pellet wounds to the back.

Appellant called a friend who was an officer with the Houston Police Department the next morning. On that friend’s advice, appellant contacted an attorney who had previously represented him in a misdemeanor case. That attorney testified that he advised appellant not to “answer any questions without me being present.”2

One of the HPD investigators testified that a break in the case came from a [240]*240Crime Stoppers’ tip, giving the police appellant’s name. The police learned that appellant had recently purchased a white Dodge Ram pickup truck. When contacted by the police for information two days after the murder, appellant said that he was not involved. Subsequently, a confidential informant told a police detective he had heard appellant admit to his involvement in the case. On September 18, 2006, two weeks after the murder, the police arrested appellant. When questioned, appellant denied his involvement in the murder and did not mention Jones’s name. Appellant was identified by witnesses in a “mock lineup” in the city jail and charged with murder. The jury found appellant guilty of murder under “law of parties.” The trial court ordered a presentence investigation report and recessed the case for punishment. At the end of punishment hearing, the trial court sentenced appellant to ten years’ confinement.

Sufficiency of the Evidence

In his first issue, appellant contends that the evidence is legally and factually insufficient to sustain his conviction for murder under the law of parties. The Texas Court of Criminal Appeals held that the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), legal sufficiency standard is the only standard to evaluate the sufficiency of the evidence in a criminal case. Brooks v. State, 323 S.W.3d 893, 895 (Tex.Crim.App.2010) (plurality opinion); id. at 926 (Cochran, J., concurring). Accordingly, we review the sufficiency of the evidence in this case under a rigorous and proper application of the Jackson v. Virginia sufficiency standard. Brooks, 323 S.W.3d at 906 (plurality opinion).

When reviewing the sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict and determine, based on that evidence and any reasonable inferences from it, whether any rational fact finder could have found the elements of the offense beyond a reasonable doubt. Gear v. State, 340 S.W.3d 743, 746 (Tex.Crim.App.2011); see also Jackson, 443 U.S. at 319, 99 S.Ct. 2781. The jury is the exclusive judge of the credibility of witnesses and the weight to be given to the evidence. See Isassi v. State, 330 S.W.3d 633, 638 (Tex.Crim.App.2010). Further, we defer to the jury’s responsibility to fairly resolve or reconcile conflicts in the evidence. Id. We draw all reasonable inferences from the evidence in favor of the verdict. Id. This standard applies to both circumstantial and direct evidence. Id.

A person commits the offense of murder if he “intentionally or knowingly causes the death of an individual.” Tex. Penal Code Ann. § 19.02(b)(1) (West 2011). A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or both. Tex. Penal Code Ann. § 7.01 (West 2011). A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he or she solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Tex. Penal Code Ann. § 7.02(a)(2) (West 2011).

Because appellant is not the principal actor, the State must prove conduct constituting an offense, plus an act committed by appellant with intent to promote or assist such conduct. See Beier v. State, 687 S.W.2d 2, 3 (Tex.Crim.App.1985). In determining whether the accused participated as a party, the court may look to events occurring before, during, and after the commission of the offense, and may rely on actions of the defendant that show an understanding and [241]*241common design to do the prohibited act. Ransom v. State, 920 S.W.2d 288, 302 (Tex.Crim.App.1994) (op. on reh’g); Cordova v. State, 698 S.W.2d 107, 111 (Tex.Crim.App.1985).

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Bluebook (online)
352 S.W.3d 238, 2011 Tex. App. LEXIS 7786, 2011 WL 4489769, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gross-v-state-texapp-2011.