Ivery Dwayne Dorsey v. State

• Court: Court of Appeals of Texas
• Decided: December 18, 2008
• Docket: 14-07-01072-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed December 16, 2008

Affirmed and Memorandum Opinion filed December 16, 2008.

In The

Fourteenth Court of Appeals

_______________

NO. 14-07-01072-CR

IVERY DWAYNE DORSEY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 228th District Court

Harris County, Texas

Trial Court Cause No. 1097367

M E M O R A N D U M   O P I N I O N

A jury convicted appellant Ivery Dwayne Dorsey of murder and sentenced him to twenty years= confinement in the Texas Department of Criminal Justice, Institutional Division.  In a single issue, appellant contends  the trial court erred by denying his motion for an instructed verdict of acquittal.  We affirm.

I.  Background

Appellant was indicted for the felony offense of murder, alleged to have occurred on July 10, 1994.  That night, several armed gunman broke into a residence located at 5426 Hirondel Avenue in Houston.  Two men inside the house, Willie Williams and Clifford Tyler, were both injured.  Another person inside the house, Charles Monroe, was killed.  After the murder, police were unable to develop any suspects.  But years later, Tyler, one of the original witnesses to the shooting, identified appellant as one of the gunmen.  At appellant=s trial in December 2007, the following evidence was presented.

During the late evening hours on July 10, 1994, a resident on Hirondel Avenue near the house where the offense occurred was awakened by the sound of car doors slamming outside his house.  This neighbor looked outside his bedroom window and saw a car parked across the street from his home, also located on Hirondel Avenue in Houston.  He watched as several young African American men got out of the car, opened the trunk, and armed themselves with shotguns or hand guns taken out of the trunk.  He saw the young men, each holding a gun, walk towards 5426 Hirondel Avenue.  When they passed out of sight, he called 911 from his kitchen phone.  While talking to the 911 operator, he heard numerous shots fired.  Once he gave the location of his house, he hung up the phone and returned to the window.  The neighbor saw the same young men returning to the car, walking slowly and calmly.  The police arrived about 15 to 20 minutes after the men left in their vehicle.  The neighbor was never able to identify any of the young men he saw that night.

Meanwhile, Willie Williams, Clifford Tyler, and Charles Monroe were at their residence at 5426 Hirondel.^[1]  Willie, who was 23 years old at the time, explained that the three of them, along with their friend Jason Williams, had rented the house so they could sell crack cocaine from it.  That evening, Willie was cutting Tyler=s hair in the front room of the house.  Monroe went into a nearby room to lay down on the couch.  While Willie was standing in front of Tyler with his back to the front door, he heard the door being kicked open and gun shots.  He saw a light-skinned African American male approaching him with a gun; he immediately tried to run away.  He also saw another dark-complected African American male holding a pump action shot gun.  He did not see either of these assailants well enough to identify them because events transpired so quickly and he was running away from the shooters.  He escaped to a nearby motel where he got the motel clerk to call an ambulance because a bullet had grazed his head.  He spoke to police about two days after the shooting occurred, but did not reveal that they had been dealing drugs out of the house.

Tyler, who was 17 years old at the time of Monroe=s murder, was facing the front door when the gunmen barged in.  He saw Aa tall guy and two short guys.@  Although he did not identify appellant at the time, Tyler testified at trial that appellant was holding a pump shotgun.^[2]  Tyler was shot in his upper thigh, left testicle, and in the back of his head.  Even though shot, he managed to escape the house by running out through the kitchen.  Tyler continued to hear shots fired after he escaped the residence.  He fell down in the yard of a friend=s house a few streets away.  An ambulance transported Tyler to the hospital, where he had surgery to repair his gunshot wounds.  He was in the hospital for more than three days.

While he was in the hospital, Detective Clement Abbondandolo (AAbby@), a homicide investigator with the Houston Police Department, came to interview him.  Tyler did not tell Detective Abby that they had been selling drugs out of the residence or that he recognized appellant.  Tyler testified that he did not admit he knew appellant was one of the gunmen because he was Avery scared@ at the time.  He explained his willingness to come forward years later as follows:

I was getting older.  And every time my mother always talked to me and I got tired of lying to her, telling her that I didn=t know what happened.  And she told me I had nothing to be afraid of.  And at that time, I was like I really don=t >cause I=m grown now.

Tyler also asserted that he was not under the influence of drugs or alcohol on the evening of the murder, although he admitted that he had been convicted of two counts of possession of a controlled substance and one count of theft subsequently.  He also testified that he had regularly sold and used the narcotic Afry@ after the murder, beginning around 1997. 

Detective Abby was dispatched to the murder scene in July 1994.  He found numerous 12- and 20-gage shotgun shells at the scene.  He also discovered the decedent, Charles Monroe, lying face down outside the residence.  Abby testified that he interviewed Tyler at the hospital and observed that Tyler was very frightened when he spoke with him.  Abby stated, AI felt like the first few times I spoke with him he was not being honest with me . . . .  He was afraid.@  Abby followed-up with Tyler several times after the murder; in 2006, when Abby received some new information, he set up an in-person interview with Tyler.  According to Abby, Tyler no longer seemed afraid.  Abby obtained information from Tyler that was Ahelpful@ to the investigation and spoke with Tyler several more times.  He developed a photo array in May 2006 containing appellant=s photograph.  Tyler identified appellant in the array.  Abby stated that Willie Williams also tentatively identified appellant from the array, but could not be sure.  Abby testified that, as part of his investigation, he also interviewed Kelton Smith, who was incarcerated for aggravated assault.^[3]  According to Abby, Smith told him that appellant admitted killing Monroe.  Smith, however, testified that appellant did not talk to him about what happened on July 10, 1994.

According to an assistant medical examiner with the Harris County Medical Examiner=s Office, Monroe suffered shotgun wounds to the face and neck, chest, and abdomen.  Monroe also suffered a gunshot wound to the abdomen.  All four of the injuries suffered by Monroe constituted Aserious bodily injury.@  The medical examiner testified that the cause of Monroe=s death was shotgun wounds to the chest and face and neck, with the other shotgun and gunshot wounds to the abdomen classified as Asignificant.@

At the close of the State=s evidence, appellant sought an instructed verdict of acquittal.  The trial court denied the motion, and the defense rested.  The jury convicted appellant of murder and sentenced him to 20 years= confinement in the Texas Department of Criminal Justice, Institutional Division.  The trial court rendered judgment on the jury=s verdict, and this appeal timely followed. 

II.  Issue Presented

In a single issue, appellant contends the trial court erred in denying his motion for an instructed verdict of acquittal.

III.  Sufficiency of the Evidence

A.        Standard of Review

We treat a complaint concerning a trial court=s failure to grant a motion for an instructed or directed verdict as a challenge to the legal sufficiency of the evidence.  Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996); Mapes v. State, 187 S.W.3d 655, 658 (Tex. App.CHouston [14th Dist.] 2006, pet. ref=d).  Appellant has also included the standard of review for a factual sufficiency analysis in his briefing of this issue, but a challenge on appeal to the trial court=s denial of a motion for an instructed verdict is a challenge to the legal sufficiency of the evidence only.^[4]  See Williams, 937 S.W.2d at 482; Mapes, 187 S.W.3d at 655; see also Turner v. State, 101 S.W.3d 750, 761 (Tex. App.CHouston [1st Dist.] 2003, pet. ref=d) (AAlthough appellant phrases his challenge to the trial court=s ruling on his motion for directed verdict as one of factual sufficiency, the law is well‑settled that a challenge on appeal to the denial of a motion for directed verdict is a challenge to the legal sufficiency, not the factual sufficiency of the evidence.@).  

When reviewing the legal sufficiency of the evidence, we do not ask whether we believe the evidence at trial established guilt beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 318‑19 (1979).  Rather, we examine all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Id. at 319; Mason v. State, 905 S.W.2d 570, 574 (Tex. Crim. App. 1995) (en banc).  We consider both direct and circumstantial evidence and all reasonable inferences that may be drawn therefrom in making our determination.  See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).  Although we consider all evidence presented at trial, we may not re‑weigh the evidence and substitute our judgment for that of the jury. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (en banc).  In other words, the jury is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony, and it is the exclusive province of the jury to reconcile conflicts in the evidence.  Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (en banc).

B.        Application

Here, appellant asserts two primary arguments in challenging the sufficiency of the evidence.  First, he contends that no witnesses testified that they saw appellant shoot Monroe.  Second, he complains that the only witness who connected appellant with the offense, Clifford Tyler, Awas totally not credible.@

Regarding appellant=s first argument, the jury charge in this case authorized the jury to convict appellant either as a principal or a party to the offense of murder.  A person commits murder if he intentionally or knowingly causes the death of an individual or intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. Tex. Penal Code Ann. ' 19.02(b)(1), (2) (Vernon 2003).  He acts as a party if he intentionally promotes or assists the commission of murder by soliciting, encouraging, directing, aiding, or attempting to aid another person to commit the offense. Id. at '' 7.01, 7.02.

AEach fact need not point directly and independently to the guilt of the appellant, as long as the cumulative effect of all the incriminating facts are sufficient to support the conviction.@ Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004) (affirming conviction of appellant as a party to his wife=s murder based on motive, conflicting statements, and other circumstantial evidence).  Furthermore, a conviction may be based on the testimony of a single eyewitness.  Walker v. State, 180 S.W.3d 829, 832 (Tex. App.CHouston [14th Dist.] 2005, no pet.) (citing Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971)).

Here, the evidence established that a group of armed young men burst into the house on Hirondel Avenue, with guns firing.  Two of the three individuals inside the house, Willie Williams and Clifford Tyler, managed to escape with gunshot injuries.  The third person inside the house, Charles Monroe, did not escape and was killed.  Appellant was later identified by Tyler as one of the armed gunmen.  Tyler also testified that appellant was armed with a shotgun.  The cause of Monroe=s death was multiple shotgun wounds to the face and neck and chest.  Although no witness actually saw appellant shoot Monroe, the jury could reasonably infer from the evidence, at a minimum, that appellant was promoting or assisting the commission of the offense by encouraging, directing, or aiding another in committing the murder; i.e., was a party to the murder.  Tex. Penal Code Ann. '' 7.01, 7.02, 19.02(b)(2).  In fact, a reasonable juror could infer from the evidence that appellant intentionally or knowingly caused Monroe=s death or intended to cause serious bodily injury and committed an act clearly dangerous to human life that caused the death of Monroe; i.e., was the principal gunman. Id. ' 19.02(b)(1), (2). 

Finally, turning to the credibility of Tyler, the jury heard the testimony of Tyler and his reasons for waiting so long before identifying appellant.  Jurors were also informed about Tyler=s history of drug abuse and were aware that he had lied for over ten years about not knowing who was responsible for Monroe=s murder.  The jury no doubt took these facts into consideration in weighing the credibility of Tyler=s testimony.  See Wesbrook, 29 S.W.3d at 111.  We may not re-weigh the evidence and substitute our judgment for that of the jury.  King, 29 S.W.3d at 562. 

C.        Conclusion

In sum, viewing the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found that appellant, as a principal or a party, committed the murder of Monroe. We therefore overrule appellant=s sole issue.  The judgment of the trial court is affirmed.

/s/        Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed December 16, 2008.

Panel consists of Chief Justice Hedges, and Justices Guzman and Brown.

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

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^[1]  There was also testimony that another individual, identified only as ABud,@ was at the house that evening.

^[2]  Tyler explained that he knew appellant from middle school and from seeing him around some apartments in the neighborhood.

^[3]  Smith testified that he was friends with appellant around the time of the murder.

^[4]  Moreover, as discussed more fully infra, appellant bases his factual sufficiency challenge almost entirely on the credibility of Tyler and directs us to no evidence contrary to the jury=s verdict.   But in a factual sufficiency review, we must avoid intruding on the factfinder=s role as the sole judge of the weight and credibility of the witness testimony.  Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000) (en banc).  (A[D]ue deference must be accorded the fact finder=s determinations, particularly those determinations concerning the weight and credibility of the evidence.@ (emphasis added)).  Thus, for the same reasons the evidence is legally sufficient, it is likewise factually sufficient.