Wilkerson v. State

881 S.W.2d 321, 1994 Tex. Crim. App. LEXIS 36, 1994 WL 90542
CourtCourt of Criminal Appeals of Texas
DecidedMarch 23, 1994
Docket71309
StatusPublished
Cited by284 cases

This text of 881 S.W.2d 321 (Wilkerson v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wilkerson v. State, 881 S.W.2d 321, 1994 Tex. Crim. App. LEXIS 36, 1994 WL 90542 (Tex. 1994).

Opinions

OPINION

CAMPBELL, Judge.

At a trial held in the 184th District Court of Harris County in July 1990, a jury found appellant, Ponchai Wilkerson, guilty of capital murder.1 At the punishment phase of appellant’s trial, the jury answered affirmatively the punishment issues submitted to them under Article 37.071(b) of the Texas Code of Criminal Procedure, and appellant was sentenced to death as required by Article 37.071(e).2 Direct appeal to this Court was then automatic under Article 37.071(h). We now affirm.

In sixteen points of error, appellant challenges: the sufficiency of the evidence to prove beyond a reasonable doubt that he intentionally caused the death of the deceased; the sufficiency of the evidence to support the jury’s affirmative answer to the punishment issue concerning future dangerousness; the trial court’s refusal to grant a mistrial after certain evidence of uncharged misconduct was admitted during the punishment phase; the trial court’s refusal to grant a mistrial after the jury foreman revealed she was acquainted with a prosecution witness; and the trial court’s refusal to grant a mistrial based on the prosecutor’s final argument during the punishment phase.

In his first point of error, appellant argues that he has been denied his federal right to due process of law because the evidence at his trial was insufficient to support the jury’s implicit finding that he intentionally caused the death of his victim. See footnote one, supra. Appellant notes that he testified at trial that he shot but did not intend to kill his victim, and argues that that testimony, like the testimony of the defendant in Foster v. State, 689 S.W.2d 691 (Tex.Crim.App.1982), was “sufficient to rebut the presumption of intent to kill based on his using a gun.” The State argues in response that the jury was free to disbelieve appellant’s trial testimony and to infer from the [324]*324circumstances of the offense that appellant intended to kill.

Viewed in the light most favorable to the jury’s verdict, the evidence presented at the guilVinnocence phase of appellant’s trial established the following: At approximately 2:30 p.m., November 28, 1990, appellant entered the Houston jewelry store of 43-year-old Chung Myong Yi. After browsing for a few minutes, appellant pulled a handgun out of his jacket, pointed it at Chung’s head, and demanded money from him. Moments later, appellant shot Chung in the forehead from a distance of less than one foot. He then left the store carrying a box of jewelry. A subsequent expert examination of the handgun revealed that eight pounds of pressure on its trigger were necessary to fire it.

Our determination of appellant’s first point of error is governed by familiar principles. First, the jury, as the sole judge of the weight and credibility of the evidence, was free to accept or reject any or all of the evidence of either the State or the defense, even if that evidence was uncontradicted. Vanderbilt v. State, 629 S.W.2d 709, 716 (Tex.Crim.App.1981). Second, due process of law requires that appellant’s conviction be supported by evidence sufficient to rationally prove all of the elements of the offense— including his intent to kill3 — beyond a reasonable doubt. In re Winship, 397 U.S. 368, 364, 90 S.Ct. 1068, 1072, 26 L.Ed.2d 368 (1970). Therefore, as an appellate court, our task is to consider all of the record evidence and reasonable inferences therefrom in the light most favorable to the jury’s verdict and to determine whether, based on that evidence and those inferences, a rational jury could have found beyond a reasonable doubt that appellant intended to kill. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1973). Thus, our review is a very limited one. We do not act as a thirteenth juror re-evaluating the weight and credibility of the evidence. Rather, we act only “as a final, due process safeguard ensuring ... the rationality of the factfinder.” Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988).

Utilizing the required standard of review, we must reject appellant’s insufficiency claim. A rational jury could certainly infer that appellant intended to kill from the manner in which he handled his weapon, the amount of pressure needed to fire the weapon, the distance from which he fired, the nature of the injury he inflicted, and his flight from the scene. See Vuong v. State, 830 S.W.2d 929, 934 (Tex.Crim.App.1992) (deadly manner of use of gun); Turner v. State, 805 S.W.2d 423, 427 (Tex.Crim.App.1991) (heavy trigger pressure required to fire gun); Thompson v. State, 691 S.W.2d 627, 630 (Tex.Crim.App.1984) (short distance between victim and gun, and flight from scene).

In Foster we held that no rational jury could have found that the defendant intended to kill, but the evidence in that case was very different from the evidence adduced at appellant’s trial. Admittedly, the evidence in Foster, like the evidence at appellant’s trial, showed that the defendant shot and killed his victim at close range and that the defendant denied having the intent to kill. But in Foster, other evidence showed that (1) the defendant and the victim had a loving relationship on the evening of the shooting; (2) the weapon involved was defective and fired easily, even with its safety on; (3) after the shooting, the defendant promptly sought medical assistance for the victim and then notified the police; (4) the defendant freely admitted handling the weapon when it discharged; and (5) he was extremely distraught after the shooting. At appellant’s trial, in contrast, there was abundant evidence from which a rational jury could conclude he intentionally shot Chung in the course of robbing him. Point of error number one is overruled.

In point of error number two, appellant maintains the evidence adduced at his trial was insufficient to support the jury’s affirmative answer to the second punishment issue, concerning his future dangerousness. See footnote two, supra. Appellant argues that

the only evidence presented by the State concerning the issue of whether [he] would [325]*325constitute a continuing threat to society was [his] involvement in several unadjudi-cated extraneous offenses and instances of misconduct. The State presented no character evidence and no psychiatric evidence. The appellant, on the other hand, presented psychiatric and psychological evidence [showing that he has a reasonable chance of being rehabilitated], evidence of [a relatively normal] family history, evidence of remorse, and evidence of current behavior without the effect of alcohol and drugs.

Appellant argues further that he “was only 20 years of age when the act occurred.” The State argues in response that “the evidence shows that appellant was on an extended, murderous rampage that culminated in the charged offense,” and that, consequently, “[a] rational factfinder could conclude beyond a reasonable doubt that appellant would probably commit future acts of violence that would pose a continuing threat to society.”

Viewed in the light most favorable to the jury’s finding, the evidence at the punishment phase of appellant’s trial established the following: On August 2, 1990, in Fort Bend County, appellant pled guilty to the felony offense of unauthorized use of a motor vehicle and was placed on probation for three years.

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Cite This Page — Counsel Stack

Bluebook (online)
881 S.W.2d 321, 1994 Tex. Crim. App. LEXIS 36, 1994 WL 90542, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilkerson-v-state-texcrimapp-1994.