Matthew Donnell Lowry v. The State of Texas--Appeal from 42nd District Court of Taylor County

11th Court of Appeals

Eastland, Texas

Opinion

Matthew Donnell Lowry

Appellant

Vs. No. 11-01-00394-CR -- Appeal from Taylor County

State of Texas

Appellee

The jury convicted appellant of the offense of murder and assessed his punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of 30 years and imposed a fine of $8,000. Appellant raises two issues on appeal. We affirm.

Appellant attacks the factual sufficiency of the evidence supporting his conviction in his first issue. When reviewing the factual sufficiency of the evidence, we review all of the evidence, but not in the light most favorable to the prosecution. See Clewis v. State, 922 S.W.2d 126, 129 (Tex.Cr.App.1996). We reverse only if: (1) the evidence in support of the verdict, considered as standing alone, is factually too weak to support it; or (2) the verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Goodman v. State, 66 S.W.3d 283, 285-86 (Tex.Cr.App.2001); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Cr.App.2000). A decision is not clearly wrong and unjust merely because the fact finder resolved conflicting evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 408 (Tex.Cr.App.1997).

The record reveals that appellant and the victim were very close friends. They were also members of a group known as the ARolling 60s Crypts.@ Appellant, the victim, and three other members of the Rolling 60s Crypts (Michael Vasquez, Nicholas Powell, and Justin White) traveled to the home of Anthony Smith in the early morning hours of March 4, 2001. Smith had previously Aembarrassed@ Vasquez by pulling a gun on him. Powell testified that the five men went to Smith=s house because Vasquez wanted to kill Smith. Appellant=s statement to the police confirmed this fact. Vasquez was armed with a pistol, and appellant was armed with an assault rifle.

The group parked their vehicles out of sight near Smith=s home. They remained outside of the home and waited for Smith to return. Smith testified that, when he returned home, he saw the men standing in his yard. Smith yelled out from the car in which he was riding, AWho the f_ _k is that in my yard?@ Someone in the group responded by yelling, AWho the f_ _k are you?@ Smith replied, AI live there.@ Smith testified that someone yelled A[t]here he is, dump on him@ and then a barrage of gunfire erupted. Smith returned fire with a pistol he had in his possession. Appellant admitted in his statement to the police to firing an assault rifle at Smith=s vehicle. Appellant argued at trial that Smith fired first and that he only returned fire in self-defense.

Appellant fired the assault rifle at least 20 times during the battle. Sometime during the melee, a bullet struck the victim in the lower abdomen. The bullet severed the iliac vein of the victim=s right leg which ultimately caused him to bleed to death. When they arrived at the scene, the police discovered the victim=s body lying in the street. Appellant was taken into custody after a neighbor reported someone hiding in their backyard. The assault rifle which appellant used in the battle was located later that morning approximately 30 feet from where appellant was arrested.

Detective John Reid of the Abilene Police Department testified that he recovered a fired bullet located near a blood stain at the location where the victim=s body was found. Richard Ernest, a forensic firearm examiner, testified that this bullet was fired from the assault rifle which appellant used during the altercation. Under microscopic examination, Ernest detected the presence of body tissue on the bullet. Carolyn Van Winkle, a DNA analyst, testified that the victim=s DNA profile was consistent with the DNA profile of the tissue found on the bullet. Dr. Marc Andrew Krouse of the Tarrant County Medical Examiner=s Office performed an autopsy on the victim. He testified that the victim=s gunshot wound was caused by a rifle rather than a pistol.

The jury convicted appellant of intentionally or knowingly causing the death of the victim.[1] Appellant argues that the evidence supporting the verdict is insufficient because there was no evidence of any animosity between appellant and the victim. Appellant=s reliance on this contention in this regard is misplaced for two reasons. First, appellant=s argument ignores the theory of Atransferred intent@ as set out in TEX. PENAL CODE ANN. ' 6.04(b)(2) (Vernon 1994):

A person is nevertheless criminally responsible for causing a result if the only difference between what actually occurred and what he desired, contemplated, or risked is that...a different person or property was injured, harmed, or otherwise affected.

The statutory principle of Atransferred intent@ is raised when there is evidence that a defendant with the required culpable mental state intends to injure or harm a specific person but injures or harms a different person or both. See Manrique v. State, 994 S.W.2d 640, 647 (Tex.Cr.App.1999). The evidence of appellant=s intent to kill Smith was, therefore, sufficient to support the jury=s finding that appellant intentionally caused the death of the victim. The fact that the court=s charge did not reference Atransferred intent@ is of no consequence because we are to assess the sufficiency of the evidence under a hypothetically correct jury charge. Manrique v. State, supra at 648; Malik v. State, 953 S.W.2d 234 (Tex.Cr.App.1997).

Additionally, the lack of evidence showing animosity between appellant and the victim does not affect the Aknowingly@ finding made by the jury. TEX. PENAL CODE ANN. ' 6.03(b) (Vernon 1994) provides in relevant part: AA person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.@ As noted by Judge McCormick in Manrique, firing numerous shots from an assault rifle during a gunfight is sufficient to establish that a defendant was aware that his conduct was reasonably certain to cause death. Manrique v. State, supra at 647; see Hull v. State, 871 S.W.2d 786, 789 (Tex.App. B Houston [14th Dist.] 1994, pet=n ref=d). The evidence in support of the jury=s verdict is, therefore, not too weak to factually support it. While there is some evidence that Smith fired first at appellant=s group, several witnesses disputed this assertion. The contrary evidence is not so overwhelming as to render the jury=s verdict clearly wrong and unjust. Appellant=s first issue is overruled.

Appellant argues in his second issue that the trial court erred in admitting printouts generated by DNA testing equipment. As a part of Van Winkle=s DNA comparison testimony, the State offered into evidence machine-generated printouts which graphically displayed the DNA profiles of evidentiary items involved in the case. Relying on DWI cases involving the admission of breathalyzer and intoxilyzer results, appellant argues that the printouts were inadmissible because Van Winkle was not a technician who serviced the machines which generated the reports.[2]

The trial court=s decision to admit scientific evidence is reviewed under an abuse of discretion standard. See Griffith v. State, 983 S.W.2d 282, 287 (Tex.Cr.App.1998), cert. den=d, 582 U.S. 1986 (1999). Van Winkle testified that she worked in the DNA section of the Tarrant County Crime Laboratory. She had a master of science degree in molecular biology and had received extensive training in forensic DNA testing. She set up the DNA laboratory in Dallas County and implemented the latest version of DNA testing in Tarrant County. She had testified as a DNA expert over 100 times and had lectured frequently about DNA analysis.

Van Winkle testified that quality control procedures are implemented at every step in the process in her laboratory to assess that each step is done properly. Each DNA analyst undergoes proficiency testing at least twice a year. Van Winkle established the quality control measures for her laboratory. She has also audited the quality control measures of other laboratories. She testified that company technicians serviced the instruments in her laboratory whenever there is a problem with the instruments. Given Van Winkle=s expertise as a DNA analyst and her testimony regarding the quality control measures followed in her laboratory, the trial court did not abuse its discretion in permitting the admission of the DNA printouts. Appellant=s second issue is overruled.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

JUSTICE

September 26, 2002

Do not publish. See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.

[1]The indictment charged appellant with murder in three paragraphs which tracked two subsections of TEX. PENAL CODE ANN. '19.02 (Vernon 1994). The first paragraph asserted that appellant intentionally and knowingly caused the death of the victim pursuant to Section 19.02(b)(1). The second and third paragraphs asserted that appellant committed an act clearly dangerous to human life that caused the death of the victim while in the course of committing a felony pursuant to Section 19.02(b)(2). The jury=s verdict form had separate Aguilty blanks@ for each of the three paragraphs which charged appellant with murder as opposed to a general verdict. See Aguirre v. State, 732 S.W.2d 320 (Tex.Cr.App.1987). The three Aguilty blanks@ for the offense of murder were submitted to the jury disjunctively. Pursuant to the format of the verdict form, the jury only entered a finding of guilt with respect to the allegation that appellant intentionally and knowingly caused the death of the victim.

[2]Appellant did not object to Van Winkle=s subsequent oral testimony wherein she stated that the DNA profile of the tissue found on the bullet was consistent with the victim=s DNA profile.