Jezreel Djuan Mark v. State of Texas

• Court: Court of Appeals of Texas
• Decided: December 11, 2001
• Docket: 06-00-00175-CR
• Status: Published

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-00-00175-CR ______________________________

JEZREEL MARK, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 217th Judicial District Court Angelina County, Texas Trial Court No. CR-21364

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Before Cornelius, C.J., Grant and Ross, JJ. Opinion by Justice Ross

O P I N I O N

Jezreel Mark was convicted by a jury for aggravated robbery. The court sentenced him to eight years' imprisonment in accordance with the jury's verdict. Mark appeals, alleging four points of error which can be combined into a single complaint: ineffective assistance of counsel. Mark complains his trial counsel (1) failed to invoke the rule excluding witnesses from the courtroom; (2) failed to object to the admission of a videotaped confession; (3) failed to request a mistrial; and (4) improperly introduced evidence concerning his use of marihuana.

Mark was convicted as a party to aggravated robbery of a pizza establishment. Although Mark did not enter the establishment, the gun used in the robbery belonged to him, and after James Specks used the gun during the robbery, Mark drove the vehicle from the scene with Specks as his passenger. Mark, testifying in his own behalf, admitted he had placed a gun under the seat of the vehicle in which he and Specks were riding on the evening of the robbery. He denied, however, knowing of Specks' intention to commit the robbery, that Specks had taken the gun from under the seat, or that Specks had committed the robbery. The State's evidence showed that soon after the robbery the manager of the pizza establishment gave the police a description of the vehicle in which the robber was traveling. The manager recognized the vehicle from earlier in the day when a person whom he identified as Mark, then a passenger in the vehicle, walked up to the drive-through window and asked the price of a pizza and what time they closed. Shortly after receiving this information, the police saw a vehicle matching the description and attempted to stop it. Mark, who was driving the vehicle, slowed down, and Specks jumped out and ran. Mark continued driving, with the police in pursuit. He eventually turned into a dead-end street, where he stopped the vehicle, exited, and ran across a yard. The police apprehended him as he was attempting to scale a privacy fence.

The United States and Texas Constitutions guarantee the right to reasonably effective counsel at trial. U.S. Const. amend. VI; Tex. Const. art. I, § 10; Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). To prevail on an ineffective assistance of counsel claim, an appellant must show (1) that trial counsel's performance was deficient, in that counsel made such serious errors that counsel was not functioning effectively as the "counsel" guaranteed by the Sixth Amendment, and (2) the deficient performance prejudiced the defense to such a degree the defendant was deprived of a fair trial. Strickland, 466 U.S. at 687.

To satisfy the first prong of the test, an appellant must demonstrate that counsel's performance was unreasonable under prevailing professional norms and that the challenged action was not sound trial strategy. Strickland, 466 U.S. at 689; Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991). The second prong of the Strickland test requires an appellant to demonstrate that counsel's deficient performance prejudiced the defense, thereby depriving the defendant of a fair trial; that is, there is a reasonable probability that, but for counsel's deficient performance, the result of the proceedings would have been different. Strickland, 466 U.S. at 687; Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

A party claiming ineffective assistance of counsel has the burden of proving that claim by a preponderance of the evidence. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). Review of counsel's representation is highly deferential, and courts indulge a strong presumption that trial counsel's conduct falls within a wide range of reasonable representation and that trial counsel's actions might be considered sound trial strategy. Strickland, 466 U.S. at 689; McFarland, 928 S.W.2d at 500. Counsel's performance is not evaluated in hindsight, but rather from counsel's perspective at the time of trial. Strickland, 466 U.S. at 689; Ex parte Kunkle, 852 S.W.2d 499, 505 (Tex. Crim. App. 1993). We consider the totality of counsel's representation in evaluating an ineffectiveness claim; the claim cannot be demonstrated by isolating one portion of counsel's representation. Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986). Any error in trial strategy will be deemed inadequate representation only if counsel's actions are without any plausible basis. Thomas v. State, 886 S.W.2d 388, 392 (Tex. App.-Houston [1st Dist.] 1994, pet. ref'd).

Mark's first complaint is that his trial counsel provided ineffective assistance by failing to invoke the rule excluding witnesses from the courtroom while other witnesses testified. The rule of exclusion serves two purposes: it prevents witnesses from tailoring their testimonies to fit that of other witnesses and, in the case of witnesses testifying for the same side, it enhances the jury's ability to detect falsehoods by exposing inconsistencies in their testimonies. Tex. R. Evid. 614; Tell v. State, 908 S.W.2d 535, 540 (Tex. App.-Fort Worth 1995, no pet.); see, e.g., Ex parte Robertson, 731 S.W.2d 564, 566 (Tex. Crim. App. 1987); Allen v. State, 536 S.W.2d 364, 367 (Tex. Crim. App. 1976).

Under Strickland, Mark must first show the attorney's failure to invoke the rule fell below the standard of prevailing professional norms. In assessing Mark's claim, we apply a strong presumption that trial counsel was competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). We presume counsel's actions and decisions were reasonably professional and were motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). As far as strategic or tactical reasons for counsel's action or inaction, in the absence of direct evidence of counsel's reasons for the challenged conduct, an appellate court will assume a strategic motivation if any can be imagined. Garcia v. State, No. 73,804, 2001 Tex. Crim. App. LEXIS 75 (Tex. Crim. App. Oct. 3, 2001). We will not conclude the challenged conduct constitutes deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it. Id.; see Thompson, 9 S.W.3d at 814.

Although Mark filed a motion for new trial, his sole contention in that motion was that evidence existed which would entitle him to a new trial. The motion did not specify the nature of this evidence, and ineffective assistance of counsel was not mentioned. There are a number of reasons why counsel might not invoke the rule in any given case. In this case, there is nothing in the record showing why Mark's counsel did not invoke the rule. Thus, Mark has failed to show his counsel's action was unreasonable under prevailing professional norms and was not sound trial strategy.

Mark's second claim of ineffective assistance is that his counsel failed to object to the admission of a videotaped statement in which he admitted the gun used in the robbery was his. Mark contends counsel should have objected to the introduction of this statement on the ground the State failed to lay a proper predicate.

The general rule is that an objection to the admission of evidence on the ground of failure to lay a proper predicate is too general to merit consideration except where the specific ground is apparent from the context, or the evidence is inadmissible for any purpose. Wagner v. State, 720 S.W.2d 827, 829 (Tex. App.-Texarkana 1986, pet. ref'd). Any omissions in the predicate must be complained of specifically. Bird v. State, 692 S.W.2d 65 (Tex. Crim. App. 1985); Harris v. State, 565 S.W.2d 66 (Tex. Crim. App. 1978); Boss v. State, 489 S.W.2d 582 (Tex. Crim. App. 1972); Bennett v. State, 394 S.W.2d 804 (Tex. Crim. App. 1965); see also Zillender v. State, 557 S.W.2d 515 (Tex. Crim. App. 1977). Therefore, trial counsel would have had to make a more specific objection than just failure to lay a proper predicate.

Mark also contends his counsel should have required the State to prove the videotape had been held before trial in the property room of the local authorities by the custodian of that department and that the videotape had not been tampered with by anyone after it came into the custodian's possession. Mark cites Article 38.22, § 3(b), which requires every electronic recording of any statements made by an accused during a custodial interrogation be preserved until appeals have been exhausted or prosecution is barred by law. Tex. Code Crim. Proc. Ann. art. 38.22, § 3(b) (Vernon Supp. 2002).

The record is silent as to why Mark's counsel failed to object to the introduction of the videotaped statement; therefore, Mark has failed to rebut the presumption this was a reasonable decision. See Thompson, 9 S.W.3d at 814. We know from the record Mark and his attorney viewed the videotape before trial. What we do not know is if Mark's trial counsel knew the videotape had been properly preserved in compliance with Article 38.22, § 3(b) and therefore knew an objection on that basis would serve no purpose. Because the record does not show why trial counsel did not object to the admission of the videotape, we cannot find trial counsel acted imprudently.

Mark contends his counsel should have objected to the admission of the videotaped statement for the additional reason that he had told his counsel before trial that the police had attempted to take another statement from him before this videotaped statement and that, on this previous occasion, he had requested a lawyer. The record shows Mark's counsel consulted with the prosecutor before trial concerning whether the police had in fact attempted a prior interview with Mark at which time Mark requested counsel. The prosecutor checked with the police, who told him only one interview had occurred-the videotaped statement.

It appears that Mark's counsel should have objected to the videotaped statement based solely on the information he received from his client. However, at the time the State sought to admit this evidence, Mark's counsel had inquired into the matter and was under the impression the police would testify that no other interviews had been attempted. We cannot say counsel's failure to object was without any plausible basis.

Mark's third complaint is that his trial counsel was ineffective because he failed to move for a mistrial after the prosecutor, during a recess at the guilt/innocence phase of the trial, told counsel he had just learned Mark had indeed requested counsel in another attempted interview by the police before the videotaped statement was made. According to the record, the prosecutor did not learn of this situation until after the videotaped statement had been admitted into evidence. On receiving this information from the prosecutor, Mark's counsel discussed the situation with the trial judge on the record and spoke of his dilemma concerning whether he should seek a mistrial. He states on the record that he discussed the situation with his client and that it was Mark's "decision that he does not want to attempt to start over in this trial, to have a mistrial, and would rather proceed under the evidence that we have submitted before the Court at this point." There is nothing else in the record indicating what occurred during the meeting between Mark and his counsel. We therefore presume counsel's actions and decisions were reasonably professional and were motivated by sound trial strategy. See Jackson, 877 S.W.2d at 771. We do not know whether trial counsel knew of other evidence available to the State linking Mark to the gun, such as the testimony of Specks, and to what extent this may have influenced the decision not to seek a mistrial. Mark has the burden of proof and has failed to rebut the presumption that counsel's actions were reasonably professional and motivated by sound trial strategy.

Mark's final complaint is his trial counsel erred by presenting evidence before the jury that Mark had used marihuana on the day of the robbery. He contends the introduction of this type of extraneous act is inherently prejudicial. This evidence showed that on the afternoon before the robbery Mark smoked marihuana and was taken to the emergency room of a hospital because he was suffering from hallucinations and an accelerated heart rate. He was treated and released from the hospital. The robbery occurred during the early morning hours of that same evening. Mark's counsel presented four witnesses, including Mark, all of whom testified regarding the events in the emergency room and Mark's delusional behavior on the day of the robbery. They attributed Mark's unusual conduct that day to his smoking of marihuana.

Although disturbance of mental or physical capacity resulting from the voluntary introduction of any substance into the body does not constitute a defense to the commission of a crime, ⁽¹⁾ the obvious strategy of Mark's counsel in presenting this evidence was to try to gain sympathy from the jury and to show Mark's diminished culpability in the commission of the offense. While we may now question the wisdom of that strategy, we must evaluate counsel's performance from counsel's perspective at the time of trial. Based on the totality of counsel's representation, we cannot say his actions were unreasonable.

Mark has failed to rebut the presumption that counsel's actions were reasonably professional under the first prong of Strickland on all four of the alleged errors made by his counsel. Nothing in the record indicates the reasoning of trial counsel with regard to any of the alleged trial deficiencies. See Thompson, 9 S.W.3d at 814. In the absence of evidence to the contrary, we presume the actions taken by trial counsel were part of trial strategy. Strickland, 466 U.S. at 689; Jackson, 877 S.W.2d at 771. Mark's claims of ineffective assistance of trial counsel are overruled.

A substantial risk of failure accompanies an appellant's claim of ineffective assistance of counsel on direct appeal. Thompson, 9 S.W.3d at 813. Rarely will a reviewing court be provided the opportunity to make its determination on direct appeal with a record capable of providing a fair evaluation of the merits of the claim involving such a serious allegation. Id. This is not to say a case cannot be made on direct appeal, but it is easier if the record has been expanded by a motion for new trial addressing the issue of ineffective assistance on which a hearing is held or by filing a writ of habeas corpus. Id. at 813-14.

We affirm the judgment.

Donald R. Ross

Justice

Date Submitted: November 19, 2001

Date Decided: December 11, 2001

Do Not Publish

1. Tex. Pen. Code Ann. § 8.04(a), (d) (Vernon 1994).

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                                                         In The

                                                Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                ______________________________

                                                             No. 06-09-00061-CR

                                     AUSTIN KYLE DAVIS, Appellant

                                                                V.

                                     THE STATE OF TEXAS, Appellee

                                      On Appeal from the 202nd Judicial District Court

                                                             Bowie County, Texas

                                                        Trial Court No. 08F068-202

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                            Memorandum Opinion by Justice Moseley

                                                     MEMORANDUM  OPINION

            After he was convicted by a jury of murder and assessed a sentence of life imprisonment, Austin Kyle Davis has filed his appeal.  He now complains that the evidence was legally and factually insufficient to support the jury’s findings, that the trial court erred in admitting photographs of the deceased victim into evidence, that he was improperly refused a lesser-included offense instruction, and that the victim’s mother should not have been allowed to testify as victim impact evidence. 

I.          Factual and Procedural History

            Davis had been a friend of the victim, Beau Watty Gibson.  However, there was an offense by Davis against Gibson for which Davis was jailed, and Davis was forced to post bond.  Ten days before Gibson’s death, Davis’s girlfriend, Ramona Johnson, collected $500.00 to secure release on bond.  The need for the expenditure of bond money infuriated Davis.  Johnson, called as an adverse witness by the State, testified that Davis said “he was going to go and get that fool’s weed and he was going to resell it to make the money back that I had to put up for the bond.  Just in general, just about every day I had to talk him down out of going over there because he was angry.”  These same kinds of threats were overheard by Katherine Cunningham, a mutual friend of Davis and Gibson.  Cunningham testified that Davis had said that “he was going to go over to [Gibson]’s house and kill him. . . . He just -- he thought about it and he said, f*** it, I’m just going to go over there and take his s*** and get my money back.”  Johnson and Cunningham failed to report the threats before the murder occurred.

            Davis’s anger did not subside.  On the day of the murder, Davis discovered that his friend, David Sherrod, had a pistol for sale, and Davis asked Sherrod if he could try out the gun before purchasing it.  Sherrod agreed and lent him the .357 “Smith & Wesson Model 686 six inch barrel, Pachmayr type grip, stainless steel” pistol.  Johnson and Davis’s friend, Cory Sutton, both witnessed Davis cleaning the firearm.  After Davis repeatedly asked to borrow Johnson’s red Honda to take to Gibson’s apartment, Johnson “finally just told him to go.”  Davis then left with Sutton.  Fifteen minutes after he had left, Davis called Johnson and told her she needed to go to the Woodlands apartments, where Gibson lived, and retrieve the car he had borrowed from her.

            It was during that fifteen-minute period that Gibson was killed.  According to Sutton, Davis knocked on Gibson’s door and the pair were allowed entry.  Davis walked to a futon in the living area and sat beside Gibson and his girlfriend, Britney Morris, and the group engaged in small talk about movies.  Morris’s friend Brandi Lee Chisum Rabozzi was also present at Gibson’s apartment.  Because Sutton did not know Gibson, he chose to not sit in the living room with the others but, instead, remained close to the wall beside the front door.  Suddenly, Davis pulled out a gun from his hoodie; this frightened Sutton, who immediately ran out the door of the second-story apartment and down the stairs.  Pausing at the foot of the stairs when he heard gunshots, Sutton then ran behind the apartment, jumped a fence, and continued running until he reached his home.  Sutton testified that no one had threatened Davis and that the only weapon displayed while he was in the apartment was that carried by Davis. 

            Seventeen-year-old Morris described the horrific scene which unfolded.  She was looking forward to enjoying a movie with Gibson and Rabozzi when Davis and Sutton arrived.  They were sitting on the futon when Davis got up, picked up her backpack from the front of the apartment, and walked toward the door.  Because her car keys and wallet were in the backpack, she tried to wrestle it from Davis’s hands. 

            Rabozzi said that Morris “reached for the bag and began grappling with [Davis], kind of tugging at it.  And I recall him pointedly not trying to, you know, point the gun at her, but he was roughing her, you know, and pushing her around, trying to get her off him.”  Gibson “had gotten up when they started tussling. . . . And after [Davis] pushed Britney to the floor, [Gibson] made the move to go around me the opposite direction of everybody else.”  At first, Davis held the gun close to his chest.  Rabozzi “felt [Gibson] move past [her], and it was at that point that I believe [Davis] realized that [Gibson] was going for his own gun, and he aimed or he drew down in our direction.”  Davis “held the gun up in the air and said, mother f*****, you costed [sic] me $500” and began to shoot the pistol.  “The gun was thunderous from the front of the apartment.”  Eventually, Gibson retrieved his gun and was able to return fire.  The sound of Davis’s .357 “overpowered” the “pop” made by Gibson’s .380. 

            Belinda Ann Williams, who was living in the Woodlands apartments, heard the gunshots as she was checking her mail.  She saw “two guys running from the side of the building.”  One got into a red Honda and sped off, while the other ran behind a building.  After the rapid exchange of gunfire ended, Davis approached Gibson, grabbed Gibson’s and Morris’s cell phones, and rushed out of the apartment. 

            Davis is known to have made two telephone calls shortly after the shooting.  One of those calls (to which reference has already been made) was to Johnson, telling her to come retrieve her car.  In the other, Davis telephoned his friend Charles Lance Matthews (who was also living in the Woodlands apartments) and told Matthews that “he had put something on my porch and to put it up for him.”  Matthews located a pistol on his porch and took it to a girlfriend’s mother’s home, where he hid it in a plastic toy. 

            Rabozzi “could tell that something was wrong.  [Gibson] wasn’t moving.”  Panic ensued.  Rabozzi ran to the balcony and “started yelling for a phone.”  Conquilla Rudd and her friend heard cries for help and called the police.  Rudd went to the apartment and observed Rabozzi with a gun.  She later learned the gun belonged to Gibson.  Rudd wrapped the gun in a towel.

            Officer Ed Steger arrived at the crime scene within two minutes of the police dispatch seeking aid.  Rudd handed him Gibson’s .380 pistol and Williams alerted him to two cell phones that she had found on the ground.  Steger recounted that Gibson was lying on his back and “[t]here was a large pool of blood to the left side of his head and what I assume was some type of brain matter.  His eyes were open.”  LifeNet arrived and Gibson was rushed to the hospital, where he died later in the night from a gunshot wound to the head. 

            Johnson walked to the home of her neighbor Robert Jackson and asked for a ride to the Woodlands so she could get her car.  Ambulances and police cluttered the parking lot as Jackson pulled his automobile onto the grounds of the Woodlands.  They discovered Davis sitting on some steps and waiting for her arrival.  Seeing her, Davis then told Johnson that Gibson “went crazy and started shooting at him so he ran” and that he could not drive the Honda because he “knew [the] car was going to be pulled over.”  Davis jumped into Jackson’s car while Johnson got out, started her red Honda, and left for home alone.  Davis asked Jackson to drop him off before arriving home.  When Jackson pulled into his driveway, the police were already at Davis’s house next door.  Next, Sutton came to Jackson’s house and nervously asked him for advice as to what to tell the police.  He told Sutton to turn himself in and tell the truth. 

            Johnson, who had driven the red Honda home, noticed that Davis was not there.  Although Davis was not there, police were, and Officer Joshua Laster questioned her.  While Laster was questioning Johnson, she received a call on her cell phone from a land line.  The phone was confiscated and, from the telephone number shown for the last call received, the call was determined to have originated at an address on Beech Street in Texarkana.  Upon going to that address, Laster located Davis sitting with a friend on the front porch of the house located there.  Davis identified himself with the fictitious name of Thomas Johnson and provided a false birth date as well.  He was detained after confirmation that the identity was false. 

            Davis was placed in an interrogation room after being taken into custody.  After Detective Matt Cashatt “heard some furniture banging around in that room,” he looked through the door’s peephole and observed Davis dusting himself off.  When Cashatt entered the room, he discovered that Davis had pulled down ceiling tiles and the surrounding aluminum framework in an apparent effort to escape, leaving a large hole in the ceiling.  Cashatt placed Davis in handcuffs and left.  Cashatt “immediately went back to that room’s observation window and observed [Davis] transfer his cuffs from behind his back . . . under his feet to the front, and he began to tug on his cuffs.”  Fearing Davis might continue trying to escape, Cashatt placed him in a maximum security cell.  Cashatt later discovered that Davis had draped a wad of wet tissue over the observation camera in an effort to obscure the quality of video in the interrogation room. 

            An interview was conducted the following day during which Davis stated that Gibson shot at him first.  The version of events Davis gave changed throughout the interview.  Finally, he admitted to taking a gun to Gibson’s house because he was “mad cuz the fool cost me $500.”  Davis said he fired six or eight shots with a .357 pistol, that “I shot the dude, I did it,” and admitted he left the gun on Matthews’s porch.  After the termination of the interview, Davis again attempted to escape through the ceiling after officers left the room. 

            Despite the accounts above given at trial, Davis argues the evidence was legally and factually insufficient to prove he committed murder.  Specifically, he argues that Gibson was killed with a fragment of a bullet discharged from Gibson’s own gun and that there is no evidence to rebut that assertion. 

II.        The Jury’s Verdict Was Supported by Legally and Factually Sufficient Evidence

            The Fourteenth Amendment’s due process guarantee “prohibits a criminal defendant from being convicted of an offense and denied his liberty except upon proof sufficient to persuade a rational fact finder of guilt beyond a reasonable doubt.”  Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003). 

            A.        The Hypothetically-Correct Jury Charge

            Our analysis of whether the proof is sufficient is measured against the elements of a hypothetically-correct murder jury charge.^[1]  Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); see also Grotti v. State, 273 S.W.3d 273, 280 (Tex. Crim. App. 2008).  The hypothetically-correct jury charge “sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried.”  Malik, 953 S.W.2d at 240.  It is used to evaluate both legal and factual sufficiency.  Grotti, 273 S.W.3d at 281. 

            Davis was indicted for intentionally or knowingly causing Gibson’s death in violation of Section 19.02 of the Texas Penal Code.  Tex. Penal Code Ann. § 19.02 (Vernon 2003).  Under a hypothetically-correct charge in this case, the jury was required to find, beyond a reasonable doubt, that:  (1) Davis; (2) intentionally or knowingly; (3) caused the death; (4) of Gibson.  Id.  Davis acted intentionally if it was his “conscious objective or desire to engage in the conduct or cause the result.”  Tex. Penal Code Ann. § 6.03(a) (Vernon 2003).  He acted knowingly if he was “aware that his conduct [was] reasonably certain to cause the result.”  Tex. Penal Code Ann. § 6.03(b) (Vernon 2003). 

            B.        The Evidence Was Legally Sufficient to Prove Davis Caused Gibson’s Death

            The requirement of legal sufficiency confirms that a fact question was raised by the evidence.  Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996).  If the evidence in this case was insufficient to raise an issue of Davis’s guilt, there was no issue for the jury’s resolution.  Id.  When conducting a legal sufficiency analysis, we review all of the evidence in the light most favorable to the verdict and determine whether any rational jury could find the essential elements as charged by the indictment beyond a reasonable doubt.  Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); Lacour v. State, 8 S.W.3d 670, 671 (Tex. Crim. App. 2000) (citing Jackson v. Virginia, 443 U.S. 307 (1979)); Clewis, 922 S.W.2d at 132–33; Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991).

            Here, all of the witnesses at trial and Davis’s own confession, identified Davis as the shooter.  There was also evidence that Gibson’s death was caused by a bullet wound to the head.  The jury could connect the dots.  This leaves the elements of mens rea and causation.

            Davis’s requisite culpable mental state could be inferred from surrounding circumstances, his acts, words, and conduct.  Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995); Ledesma v. State, 677 S.W.2d 529, 531 (Tex. Crim. App. 1984); Dunn v. State, 13 S.W.3d 95, 98–99 (Tex. App.––Texarkana 2000, no pet.).  He had previously committed a crime against Gibson and made threats that he planned on killing him after he bonded out of jail.  He made a calculated decision to borrow a gun from a friend, clean it on the day of the murder, and begged for his girlfriend’s car to take to the Woodlands, where Gibson lived.  He took someone who did not know Gibson, instead of going alone.  Anger over the cost of the bond was apparent when he yelled “you costed [sic] me $500” to Gibson before shooting at him.  “Motive is a significant circumstance indicating guilt.”  Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004).  Undoubtedly, any rational juror could find beyond a reasonable doubt at this point that Davis was aware that shooting a gun in Gibson’s direction was reasonably certain to cause death.  Castillo v. State, 899 S.W.2d 391, 394 (Tex. App.––Houston [14th Dist.] 1995, no pet.); Murray v. State, 861 S.W.2d 47, 53 (Tex. App.––Texarkana 1993, pet. ref’d).  Also, “[t]here is no evidence that, in doing the act, he intended only to injure and not to kill.”  Murray, 861 S.W.2d at 53.

            Davis’s actions after the murder were further indications of guilt.  He dropped the gun off at a friend’s porch, instructed his friend to get rid of the evidence, and called his girlfriend to pick up her car so he would not get pulled over in it.  He grabbed Gibson’s and Morris’s cell phones so they could not be used to call for help and dropped them on the ground in the Woodlands to avoid being caught with them.  Instead of going home, he had Jackson drop him off at a friend’s street and lied to the police about his name after he was found.  When taken into custody, he repeatedly desperately tried to escape.  Evidence of flight is another circumstance from which the jury can draw an inference of guilt.  Bigby v. State, 892 S.W.2d 864, 883 (Tex. Crim. App. 1994).  We find that a rational juror could have determined Davis had the requisite mens rea. 

            Unfortunately, the bullet fragment removed from Gibson’s brain, which appeared to be the core of a jacketed bullet, could not be matched up with any particular gun.  Davis’s  primary contention (i.e., that there is no proof that it was a bullet fragment from his gun versus a fragment from Gibson’s gun that killed Gibson) focuses our attention to causation.  We note that the gist of Davis’s theory is addressed by statute:  “A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient.”  Tex. Penal Code Ann. § 6.04 (Vernon 2003).  Here, before the gunfight ever took place, Davis expressed an intention to kill Gibson and after the encounter, Davis specifically admitted that “I shot him, I did it.”  By his own words, Davis acknowledged that it was a bullet from the gun he was using which killed Gibson and not some errant ricochet from Gibson’s gun.

            Further, other evidence seems to ratify Davis’s statement.  It appeared that six bullets, (numbered one through six) were fired from the front of the apartment, whereas two (numbered seven and eight) were fired from the middle and back of the apartment toward the front door.  Morris and Rabozzi both described Davis as holding his gun high in the air, pointing it downward and shooting while standing close to the front of the apartment.  Bullets one and two hit a wall separating the front of the apartment from the kitchen.  The bullets entered on the side of the wall facing the front door.  Bullet three hit the kitchen counter in an obvious downward direction, bullet four entered the wall nine and one-half inches from the floor, bullet five also hit a wall one foot above the floor, and bullet six went through a bed in the apartment and lodged itself in the wall, one foot four inches above the floor.  Evidence that bullets one through six were fired by Davis was corroborated by his own statement during the interview.  Officer Shawna Yonts, who investigated the apartment scene, stated that bullets one through six were travelling from right to left, while bullets seven and eight were travelling in a different direction.  Not only did these bullets appear to have been fired from the front from right to left, but they seemed to be travelling in a downward direction.^[2]  This evidence (that six bullets shot from the front door at a right to left downward trajectory) is important for one reason.

            Gibson’s autopsy report said “[o]n the left side of the head, there is a 3/4 inch in diameter, irregular, stellate gunshot wound . . . . The trajectory of the bullet is left to right, slightly downward, with no significant front or back deviation.”^[3]  If Gibson was facing Davis while he shot at him, as Morris and Rabozzi testified, the general trajectory of the bullet as it entered his body was consistent with the trajectory of bullets one through six, which sufficient evidence establishes were fired by Davis as he stood at the front of the apartment firing from his right to left.  Dr. Daniel Lingamfelter, who conducted the autopsy, testified he did not believe the wound was self-inflicted.  A rational juror could find Davis was the person holding the gun which ejected a bullet that killed Gibson.

            We conclude the evidence was legally sufficient to support the finding that Davis intentionally or knowingly caused Gibson’s death.

            C.        The Evidence Was Factually Sufficient to Support the Verdict

            Unlike legal sufficiency review, we examine the evidence in a neutral light when assessing factual sufficiency and determine whether the proof of guilt is so obviously weak as to undermine confidence in the verdict, or, if taken alone, is greatly outweighed by contrary proof so as to be clearly wrong and unjust.  Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997); Harris v. State, 133 S.W.3d 760, 764 (Tex. App.—Texarkana 2004, pet. ref’d).  A clearly wrong and unjust verdict is manifestly unjust, shocks the conscience or clearly demonstrates bias.  Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997).  Because factual sufficiency is an issue of fact, we are not free to reweigh the evidence and set aside the verdict merely because we feel a different result is more reasonable.  Clewis, 922 S.W.2d at 135.

            Thus, if we determined the evidence raised issues for the jury’s resolution, we will not sit as the thirteenth juror, re-evaluating the weight and credibility of the evidence.  Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007); Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999).  Instead, we give full play to the jury’s responsibility to weigh the evidence, resolve conflicts in the testimony, and draw reasonable inferences from basic facts.  Johnson, 23 S.W.3d at 7; Clewis, 922 S.W.2d at 133; Bottenfield v. State, 77 S.W.3d 349, 354 (Tex. App.—Fort Worth 2002, pet. ref’d) (citing Jackson, 443 U.S. at 319).

            Aside from witness attacks on credibility and memory, which the jury was free to resolve, Davis makes three arguments suggesting that the evidence was factually insufficient in his brief.  First, he makes the (rather incredible) claim that the State failed to put on any evidence that Davis intended to do harm.  Amazingly, he cites Cunningham’s testimony and suggests it somehow stands for the proposition that Davis intended not to harm Gibson.  We disagree completely.  Cunningham testified Davis said, “he was going to go over to [Gibson]’s house and kill him.”  That he also said “I’m just going to go over there and take his s*** and get my money back” does nothing to “negate” Davis’s death threat. 

            Next, Davis cites the following exchange in the record:

            Q         [The State] Did any of the three of you pull a gun prior to [Gibson] pulling his?

            A         [Morris] No, sir.

A review of the record indicates that the State misspoke and did not catch the mistake in the names, but the context is clear.  Earlier, Morris had clearly testified that Gibson did not have a gun when Davis pulled out his weapon.  Her description of the occurrence clarified that Davis was first to draw his weapon and Morris also spoke in terms of Gibson returning fire.  Rabozzi’s testimony further clarified that Davis shot at Gibson before Gibson could retrieve his gun.

            Finally, Davis maintains that there was no testimony that Gibson was killed by a bullet fragment from a bullet which came from Davis’s gun.  However, testimony that Gibson was killed by a bullet wound to the head, coupled with the trajectory of the bullets in the apartment, provided a jury with ample evidence to find otherwise.  

            In reviewing all of the evidence in a neutral light, we cannot say the evidence of Davis’s guilt was greatly outweighed by testimony or evidence reflecting the defensive theory.  We find nothing unjust or shocking about the verdict and conclude the evidence was factually sufficient to support it. 

III.       The Trial Court Did Not Abuse Its Discretion in Admitting Photographs

            “The admissibility of a photograph is within the sound discretion of the trial judge.” Paredes v. State, 129 S.W.3d 530, 539 (Tex. Crim. App. 2004); see also McCarty v. State, 257 S.W.3d 238, 239 (Tex. Crim. App. 2008); Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007).  A trial court abuses its discretion if its decision is outside the zone of reasonable disagreement.  McCarty, 257 S.W.3d at 239 (citing Zuliani, 97 S.W.3d at 595).  Unless there is clear abuse of the trial court’s discretion, its ruling will not be reversed.  Id.

            At trial, the State admitted photographs of Gibson in the hospital after he had died.  Davis makes an elaborate argument that these photographs were “offered solely to inflame the jury” and that the probative value of the pictures was substantially outweighed by the danger of unfair prejudice.  He cites cases referencing Rule 403 of the Texas Rules of Evidence.  Tex. R. Evid. 403.  However, no such issue has been preserved for our review.^[4]  Instead, the record reveals that counsel had not made a reference to the inflammatory nature of the photographs but had, instead, made a mere objection to relevance under Rule 401 of the Texas Rules of Evidence.

            Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”  Tex. R. Evid. 401.  The threshold for relevance is low.  Ex parte Moreno, 245 S.W.3d 419, 425 n.20 (Tex. Crim. App. 2008) (citing Tennard v. Dretke, 542 U.S. 274, 285 (2004)).  “A photograph is generally admissible if verbal testimony about the matters depicted in the photograph is also admissible.”  Luna v. State, 264 S.W.3d 821, 829 (Tex. App.––Eastland 2008, no pet.) (citing Paredes, 129 S.W.3d at 539).  A trial court does not err in admitting photographs merely because they are gruesome.  Paredes, 129 S.W.3d at 540.

            The State was required to prove Gibson’s death was caused by a gunshot wound to the head.^[5]  The photographs were taken as a part of Yonts’s investigation and were used to explain the manner and circumstances of death.  Therefore, although the photographs may have been gruesome, they were relevant.  We conclude that the trial court did not abuse its discretion in overruling Davis’s Rule 401 objection.  This point of error is overruled.

IV.       Davis Was Not Entitled to an Instruction to the Jury of a Lesser-Included Offense

            Davis next argues that the trial court erred in refusing to submit an instruction on what Davis claims was the lesser-included offense of deadly conduct.^[6]  While deadly conduct, under the proper circumstances, can be deemed a lesser-included offense of murder, Davis would only be entitled to the jury instruction if there was ‘“some evidence’ that, if the defendant is guilty, he is guilty only of the lesser-included offense.”  Flores v. State, 245 S.W.3d 432, 439 (Tex. Crim. App. 2008); Ortiz v. State, 144 S.W.3d 225, 233–35 (Tex. App.––Houston [14th Dist.] 2004, pet. ref’d). 

            The element distinguishing deadly conduct from murder is the mens rea.  Here, Davis claims the following evidence negates the elements of murder:  (1) Cunningham’s erroneously interpreted testimony regarding the nature of the threat to Gibson; (2) “[t]hat [Davis] specifically avoided pointing the gun at [Morris]^[7] . . . when the scuffle for the backpack occurred”; (3) the erroneous contention (based on Morris’s misspeak^[8]) that Davis was not the first to pull a gun; and (4) the theory that the bullet fragment ricochet which slew Gibson was not a deliberate shot.  Davis also says “the location of the bullet holes at the crime scene show that the shots were strewn about the room, clearly showing that any shots fired by [Davis] were done so recklessly.”  We conclude this “evidence” does not negate the elements of murder; the jury could conclude that the fact that the small apartment was liberally sprayed with gunshots was simply evidence of poor marksmanship and this did nothing to absolve him from intent.  Again, Cunningham testified Davis said he was going to kill Gibson.  The fact that he also stated he was going to rob Gibson does not negate the greater offense.  The record says Davis, who drew a gun first, avoided only pointing it at Morris during the scuffle, and thus again does not negate the greater offense.  Even if Davis’s statement during his interview (during which he stated that Gibson shot first) was to be believed, the idea that Davis intentionally or knowingly caused Gibson’s death when he supposedly returned fire would not have been cancelled out.  No evidence was introduced suggesting that the ricochet was not a deliberate shot.  In fact, Davis said “I shot him, I did it.”  Further, the idea that six rounds were fired before one reached its mark does not suggest the shots were fired only recklessly.  We conclude that because this was not “some evidence” negating the greater offense and supporting the idea that Davis was guilty only of the lesser-included offense, the trial court did not abuse its discretion in failing to submit an instruction on deadly conduct. 

            This point of error is overruled.

V.        Victim Impact Evidence During Punishment

            Finally, Davis complains that the trial court erroneously allowed improper victim impact evidence through Gibson’s mother during the punishment phase of the trial.  The record shows that there was no error committed here and even if error had been committed, the record demonstrates that the testimony regarding this issue was not preserved for our review. 

            Prior to the victim’s mother taking the stand, Davis’s counsel made a mere Rule 403 objection.  After the court overruled the objection, counsel asked for a running objection to the mother’s testimony.  Without prompting, the trial court found “that based on the authority of the Court of Criminal Appeals in Salazar v. State^[9] that it is permissible for victim impact testimony to come in to show the uniqueness of the individual in the case.  However, [Prosecutor], the Court will direct you and warn you to stay within the proper parameters of those guidelines.”  The trial court went on to say, “[A]s far as a running objection on the fact of her testifying, I’ll grant you.  If you feel like it’s getting outside the scope of the testimony, you need to make those objections because I can’t . . . . That’s hard to do a running objection on that portion of it.”  Despite Davis’s understanding that the court would require objection if counsel believed that the testimony went beyond permissible victim impact testimony, the following exchange occurred without objection: 

            Q         And has this loss, his loss, had a terrible impact on your family? 

            A         Yes.  His brother cannot even be here at this trial.  Emotionally he can’t take this.  My mother is eighty-six years old.  This is killing her slowly, and it’s killing me to watch this.  And my sister, she’s -- we’re a very close family. . . . . His brother is devastated.  They’re only fourteen months apart in age, so growing up they were inseparable, always together.  Wherever there was [Gibson], there was Drew . . . .

            The trial court was well advised to look to Salazar for guidance in this matter.  In it, the Texas Court of Criminal Appeals observed that

As a general proposition, victim-impact evidence may be admissible at the punishment stage of a criminal trial when that evidence has some bearing on the defendant’s personal responsibility and moral culpability.  As the Supreme Court stated in Payne v. Tennessee, such evidence is “designed to show . . . each victim’s ‘uniqueness as an individual human being,’” and is a way to inform “the sentencing authority about the specific harm caused by the crime in question.”  Such evidence is of two distinct, but related, types:  victim character evidence and victim impact evidence.  The former is designed to give the jury “a quick glimpse of the life that the petitioner chose to extinguish, to remind the jury that the person whose life was taken was a unique human being.”  The latter is designed to remind the jury that murder has foreseeable consequences to the community and the victim’s survivors-family members and friends who also suffer harm from murderous conduct.

Salazar, 90 S.W.3d at 335 (footnotes omitted).

            Davis made no objection concerning any possible hearsay in the testimony.  We do not find that the testimony about which Davis now complains violated the parameters of permissible victim impact testimony as described in Salazar.  Even if it had gone out of bounds, Davis’s failure to object and preserve error left us with nothing to address.^[10] 

            Even had timely objection been made and even though the impact would certainly have some emotional influence, it falls within the parameters of such proof as set out by Salazar.  We overrule this point of error. 

VI.       Conclusion

            We affirm the judgment of the trial court.

                                                                        Bailey C. Moseley

Date Submitted:          February 16, 2010

Date Decided:             March 5, 2010

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^[1]Malik controls “even in the absence of alleged jury charge error.”  Gollihar v. State, 46 S.W.3d 243, 255 (Tex. Crim. App. 2001).

^[2]Bullet eight appeared to have an upward trajectory as it entered through the door, with bullet seven hitting the front wall in the same direction. 

^[3]The report indicated the bullet went through an object, broke up, and then hit Gibson. 

^[4]To preserve error for appellate review:  (1) the complaining party must make a timely objection specifying the grounds for the objection, if the grounds are not apparent from the context; (2) the objection must be made at the earliest possible opportunity; and (3) the complaining party must obtain an adverse ruling from the trial court.  See Tex. R. App. P. 33.1(a)(1).

^[5]We note that there was no stipulation in this record as to the cause of Gibson’s death.  In any event, the Texas Court of Criminal Appeals has determined that an offer to stipulate to the cause of death of a victim does not preclude admission of photographs demonstrating the cause, and does not render them less probative.  Newbury v. State, 135 S.W.3d 22, 43–44 (Tex. Crim. App. 2004) (autopsy photographs held admissible over offer to stipulate to means of death as gunshot wound).

^[6]Davis asks us to modify the judgment to reflect conviction of deadly conduct.  A court of appeals may modify a judgment of conviction to reflect conviction of a lesser-included offense if it finds that the evidence is legally insufficient to support conviction of the charged offense, but sufficient to support conviction of the lesser-included offense.  Herrin v. State, 125 S.W.3d 436, 443–45 (Tex. Crim. App. 2002); Lackey v. State, 290 S.W.3d 912, 920 (Tex. App.––Texarkana 2009, pet. ref’d); Murray, 861 S.W.2d at 53.

^[7]Davis claims that the record showed he “avoided pointing the gun at others in the apartment when the scuffle for the backpack began.”  Again, Davis misreads the record, which only says he avoided pointing the gun at Morris. 

^[8]Davis chose not to assert any self-defense claims.

^[9]Salazar v. State, 90 S.W.3d 330 (Tex. Crim. App. 2002).

^[10]This point of error was also not addressed in Davis’s motion for new trial.