KENDRICK CARL SNEED, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion Filed April 17, 2007.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-00389-CR
No. 05-06-00390-CR
No. 05-06-00391-CR
............................
KENDRICK CARL SNEED, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 363rd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F05-23514-LW, F05-23523-LW, and F05-23524-LW        
.............................................................
OPINION
Before Justices Whittington, Francis, and O'Neill
Opinion By Justice Francis
        A jury convicted Kendrick Carl Sneed of murder, aggravated assault, and deadly conduct in connection with a car chase that ended in the shooting death of a Duncanville High School student and assessed punishment at eighteen and a half years, five years, and two years, respectively. In nine issues, appellant raises complaints about the legal and factual sufficiency of the evidence to support his convictions, denial of a mistrial, charge error, and admission of extraneous offense evidence. We affirm.
        On May 27, 2005, Duncanville High School students Andrew Gvist and Robert Beachum were celebrating the end of the school year. The two spent a part of the day drinking alcohol at a friend's house before going to the Star Center, where they met up with Loren Ross and Frank Waid. Gvist was intoxicated, became ill, and went to lie down. Beachum, who also was intoxicated, tried to start a fight with some younger boys. One of the boys, Aric Washington, called a friend of his older brother's for help. When Beachum's group saw Washington making a phone call, they decided to leave. Beachum was driving Gvist's Nissan; Gvist was in the front passenger seat, and Ross and Waid were in the back seat. As Beachum's group was leaving the Star Center, a Mitsubishi Lancer driven by Brandon Jones pulled in. Appellant was a passenger in the Lancer, as were three females. After determining Beachum was the person “causing trouble,” Jones left the Star Center. While Jones's group was sitting at a traffic light, Beachum drove by and “gave him the finger.” Jones made a U-turn and chased the Nissan. Beachum drove through alleys and residential streets trying to lose the Lancer and ended up on a cul de sac.
        Ross testified that he told his group they needed to get out of the car and run but when Beachum stopped the car, no one followed Ross's suggestion. As Ross was getting out of the car, he saw the Lancer coming into the cul de sac. Ross took off running across a field. When he was twenty to thirty feet away, he heard four or five gunshots. Ross jumped a fence, knocked on the back door of the house, and told the resident to call the police.
        Waid testified he could not remember many details of the shooting. He did remember being chased at high speeds and that Beachum stopped the car to let Ross out. While the Nissan was moving, he saw appellant hang out of the window of the Lancer and start shooting. Waid said he was “terrified” and ducked. When the shooting stopped, Gvist's head was bleeding. Waid got out of the car and hid at the side of a house. Waid could not remember whether the Lancer was behind the Nissan in the cul de sac.
         Beachum testified that after he pulled into the cul de sac, he heard a door open, which is when Ross exited the car. Right after that, Beachum testified, the Lancer pulled in behind him. Beachum heard shots, but did not see who was shooting the gun. He heard the back windshield shatter but did not know how many shots were fired. After the shooting stopped, the Lancer left. Ross, Waid, and Beachum all testified that no one in their car had a gun.
        Duncanville police officers responded to the scene. Gvist had been shot once in the back of the head and died the following day. The Nissan had a bullet hole in the back windshield and another in the middle of the front passenger door. Police collected three shell casings from a .380- caliber weapon at the scene and recovered a bullet jacket fragment from the inside the passenger door. They later retrieved a .380-caliber gun from the apartment of appellant's brother; the shell casings found at the scene and the bullet jacket fragment were fired from the gun. Police searched the Lancer and found an empty .380 shell casing on the back seat. The expert testified the casing could have been fired from appellant's gun but could not say for certain.
        In a recorded oral statement to police just hours after the shooting, appellant said when the Lancer pulled into the cul de sac, the Nissan was parked and he saw one boy run from it into a house. Appellant said the driver of the Nissan, Beachum, got out of the car with a gun. Appellant said he started “bustin' in the air.” He thought he fired only two shots. Later, he said he fired the shots at the ground and then he said fired the shots at the car's tires. He said he did not intend to shoot anyone.
        At trial, Jones testified he was driving the Lancer on the day of the shooting. Appellant and three females, Tiffany Horton, Jerrica Childress, and Tomorrow Session, were passengers. Jones said he was angry because Beachum had harassed Washington and then made an obscene gesture at him. Thinking the group had been causing trouble all day, he chased the car so that he could fight with its occupants. Jones did not know appellant had a gun. Once he drove into into the cul de sac, he saw one of the boys get out of the Nissan and run away. As Jones watched Ross flee, he heard three gunshots coming from his car, the Lancer. As Jones was driving away, appellant said, “I think I hit somebody.” Jones testified he did not see anybody get out of the Nissan with a gun nor did appellant say he had to shoot because someone in the Nissan had a gun.
        Childress also testified that she did not know that appellant had a gun in the car, but said she did hear someone say the boys in the Nissan had a gun. When she heard the gunfire, she ducked. Afterwards, she heard appellant say he thought he “hit somebody.” Childress testified appellant never said anything about seeing a boy in the Nissan with a gun or coming toward the Lancer to shoot them.
        Sessions, like Childress and Jones, saw one boy, Ross, running away from the Nissan. She testified Ross looked like he “was scared for his life.” She never saw any other door of the Nissan or the Lancer open during the incident, and no other boy was outside their respective cars. The only person she saw with a gun was appellant, who, once the shooting stopped, said he thought he “hit somebody.”
        Horton, who was appellant's girlfriend, testified she did not remember much about the night because she “blacked out.” However, she did testify that she did not see anyone in the Nissan get out of the car, except for Ross, and she did not see anyone with a gun except appellant. The jury convicted appellant of the murder of Gvist, the aggravated assault of Beachum, and the lesser charge of deadly conduct against Waid. This appeal ensued.
        In his first issue, appellant contends the evidence is legally insufficient to sustain his murder conviction because the State failed to prove he was the shooter. In a legal sufficiency challenge, we view the evidence in a light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v.Virginia, 443 U.S. 307, 319 (1979). Under this standard, the factfinder is the exclusive judge of the witnesses' credibility and the weight to be given to the evidence, may draw reasonable inferences from basic to ultimate facts, and is entitled to resolve any conflicts in testimony and reject or accept any or all of the evidence presented by either side. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996).
        Appellant contends it was a “physical impossibility” for him to have killed Gvist. Specifically, he argues that Gvist had to be shot from behind, and there was no competent evidence that the Lancer was behind the Nissan in the cul de sac. Although he acknowledges that Beachum testified the Lancer was behind the Nissan in the cul de sac, he argues other evidence showed that the Lancer was in front of the Nissan.
        Contrary to appellant's assertion, Beachum's testimony was not rendered incompetent because one or more other witnesses testified differently. Jurors heard all the testimony, which was complimented by demonstrative exhibits to assist them in understanding the location of the vehicles during the chase and during the shooting. Any inconsistencies in the evidence were for the jury to resolve, but the undisputed evidence showed that once the Lancer was in the cul de sac, appellant leaned out of the back window and began shooting. Once he stopped, he said he thought he had hit someone. Afterwards, he fled the scene and hid his gun. Although appellant argues that Ross “could have physically fired the killing shot,” two witnesses, Jones and Session, watched Ross run from the scene and neither saw him with a gun. In fact, no witness testified seeing anyone else on the cul de sac with a gun, except appellant. Ross, Beachum, and Waid all testified that no one in their car was armed. Finally, all the shell casings found at the scene were fired from appellant's gun. Reviewing appellant's complaint under the appropriate standard, we conclude a rational jury could have concluded beyond a reasonable doubt that appellant shot Gvist. We overrule the first issue.         In issues two, three, and four, appellant argues the evidence is factually insufficient to support the jury's rejection of his claims of self-defense and defense of third parties on all three charges.
        When reviewing the factual sufficiency of the evidence, we view all of the evidence from a neutral perspective. Watson v. State, 204 S.W.3d 404, 416-17 (Tex. 2006). Evidence that rationally supports a verdict of guilt beyond a reasonable doubt under the Jackson legal sufficiency standard can still be factually insufficient when the verdict “seems clearly wrong or manifestly unjust” or “against the great weight and preponderance of the evidence.” Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). The difference between the two standards is that the former requires the reviewing court to defer to the jury's credibility and weight determinations while the latter permits the reviewing court to substitute its judgment for the jury on these questions “albeit to a very limited degree.” Id. We will reverse a guilty verdict on a factual sufficiency challenge only when we can say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Watson, 204 S.W.3d at 417.
        The defendant has the initial burden of producing evidence to raise self-defense and defense of third persons. Then the State has the final burden of persuasion to disprove it. Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App.1991). The State is not obligated to offer evidence refuting a claim of self-defense; rather, the State is required merely to prove its case beyond a reasonable doubt. Saxton, 804 S.W.2d at 914.                
        A person is generally justified in using deadly force against another if he reasonably believes deadly force was necessary to protect himself against the other's use or attempted use of unlawfully deadly force and a reasonable person in the actor's situation would not have retreated. Tex. Pen. Code Ann. §§ 9.31(a), 9.32(a) (Vernon 2003). In addition to the above, to make a showing of defense of third persons, the defendant must also produce some evidence to show he reasonably believed unlawful deadly force was threatening the third person he sought to protect and he reasonably believed his intervention was immediately necessary to protect the third person. Tex. Pen. Code Ann. § 9.33 (Vernon 2003 ).
        Appellant contends the record undermines accounts that Beachum did not have a gun and supports his claims of self-defense and defense of third parties. In particular, he argues the State's witnesses were not credible or trustworthy, for a variety of reasons. Appellant's argument, however, ignores the fact that of the eight witnesses who were present at the scene when Gvist was shot, only he testified that Beachum had a gun. Not one other person in his vehicle testified to seeing anyone in the Nissan, including Beachum, with a gun. Nor did anyone else testify that he or she saw Beachum get out of the car. While we recognize this Court has a limited ability to substitute our judgment for that of the jury, nothing in this record compels us to do so. Having deferred to the jury's determinations on weight and credibility, we conclude a rational jury could have believed that appellant did not begin shooting because he had a reasonable belief such force was necessary to protect himself or his friends from unlawful force by Beachum.
        Additionally, appellant again argues his “impossibility” defense and contends the evidence raises an alternative reasonable hypothesis that Gvist was actually shot by Ross and was the victim of “friendly fire.” But, as stated previously, two people in appellant's vehicle, Jones and Session, both testified they were watching Ross as he exited the Nissan and fled the scene, and neither testified that he had a gun. In contrast, the undisputed evidence showed that appellant was armed and fired on the Nissan. Reviewing the evidence under the appropriate standard, we conclude the proof of guilt is neither so obviously weak as to undermine confidence in the jury's decision nor is it greatly outweighed by contrary proof. We overrule issues two, three, and four.         In his fifth issue, appellant complains the trial court erred in failing to sua sponte declare a mistrial when the trial court and later a venire member brought attention to the presence of armed security personnel in the courtroom.
        During voir dire, the trial court introduced the bailiffs by stating, “they're here for your protection, my protection and everyone else who is coming in and out of the courtroom, so you can feel comfortable and safe while you are here.” Later, during voir dire examination, a venire member questioned the court's security:
 
 
 
[VENIRE MEMBER]: Given the severity of the crimes we're gonna be working with and that type of thing, I notice there are no guards or security within the court, in this room.
 
 
 
 
 
 
[PROSECUTOR]: Well, these guys right here, what do they look like?
 
 
 
 
 
 
[VENIRE MEMBER]: You got a gun?
 
 
 
 
 
 
THE BAILIFF: (Nods head).
 
 
 
 
 
 
[PROSECUTOR]: They do, you bet.
 
 
 
 
 
 
[VENIRE MEMBER]: Is it customary for the person who's accused not to be restrained, given the severity of the - I mean, I've seen Court TV too much and --
 
 
 
 
 
 
[PROSECUTOR]: And --
 
 
 
 
 
 
[VENIRE MEMBER]: And people misbehave.
 
 
 
 
 
 
[PROSECUTOR]: And I'm glad you brought that up. I'm glad you brought that up.
 
 
 
 
 
 
[VENIRE MEMBER]: People misbehave.
 
 
 
 
 
 
[PROSECUTOR]: It's kind of like Court TV and all the, you know, Boston Public and The Practice and all those shows - throw all those out the window for me, if you will.
 
 
        
 
 
 
[VENIRE MEMBER]: Okay.
 
 
 
 
 
[PROSECUTOR]: Certain times, obviously, they might be, they might not be. You- you don't even get to know if they're restrained sometimes, okay?
 
 
 
        They put boards up so you can't see that, because it prejudices the person that's charged before they've had atrial.
 
 
 
 
 
 
[VENIRE MEMBER]: Uh-huh.
 
 
 
 
 
 
[PROSECUTOR]: And, see, you are presumed innocent. You, as a fair juror right now, have to presume everybody is innocent until I put on my case. I've got to prove it. Okay?
 
 
 
        Also, obviously, if they make a bond, they can be out walking around. Okay? If they don't make a bond - I mean, it could be a dollar bond; they don't make it, then they stay in jail.
 
 
 
 
 
 
[VENIRE MEMBER]: Okay.
 
        
 
[PROSECUTOR]: And it doesn't matter what the crime is. It can be capital murder where I kill all 65 of you. If I can make a bond, then guess what? I'll be walking around.
 
 
 
 
 
[VENIRE MEMBER]: You know, that incident in Atlanta comes to mind first thing.
 
 
 
 
 
 
[PROSECUTOR]: But that's to try to help you answer your question. All right?
 
 
 
 
 
 
[VENIRE MEMBER]: Okay.
 
 
 
 
 
 
[PROSECUTOR]: So if you don't wanna do kind of what you're doing, you cannot say, well somebody was arrested, they were charged, they were indicted. You can't say, well, they must have done it here. All right? You can't do that yet.
 
 
 
 
 
 
        But you have to look at me and my case, have I proved the elements of the offense. Okay? Is there anybody that feels, hey, I can't sit in judgment, kind of like Ms. Young had said, or have any other questions that just off the top of you head that maybe Judge Johnson went over something you had questions about?
 
 
        None of the jurors responded, and the prosecutor went on to explain evidence and the elements of the offenses. Appellant did not object at any point. Recognizing this failure, appellant argues the comments by the trial court and venire member eviscerated his presumption of innocence and caused fundamental error.
        In Blue v. State, 41 S.W.3d 129, 132 (Tex. Crim. App. 2000) (plurality op.), a plurality of the court held that a trial judge's comments "which tainted [the defendant's] presumption of innocence in front of the venire, were fundamental error of constitutional dimension and required no objection." Even if we were bound to follow that plurality opinion, we cannot conclude that either exchange rises to the level of the conduct in Blue. The trial court's initial comment was simply to introduce the court staff, and nothing was said to suggest a bailiff was needed to protect jurors from appellant. In fact, the trial court stated that the bailiff was there for the protection of “everyone who is coming in and out of the courtroom,” which necessarily would include appellant. In the second exchange, a venire member questioned the security procedures of the court. Although the prosecutor sought to allay any concerns by establishing that the bailiff was armed, he also went on to specifically explain that the defendant was entitled to a presumption of innocence and that any finding of guilt had to be based on the evidence presented. Under these circumstances, we conclude fundamental error has not been shown. We overrule the fifth issue.
        In his sixth issue, appellant complains the trial court erred by not declaring a mistrial after the State elicited victim impact testimony during its case-in-chief. Specifically, appellant complains that the medical examiner testified that Gvist had undergone a number of surgeries, part of which included the harvesting of most of Gvist's organs for donation.
        Again, no objection was made to this testimony, and appellant cites us to no cases discussing situations in which courts have found the same or similar testimony to have been fundamentally erroneous. See Lunsford v. State, 896 S.W.2d 394, 397 (Tex. App.-Beaumont 1995, no pet.). Regardless, this case lacks any similarity to the circumstances presented in the plurality opinion in Blue. No fundamental error is shown. We overrule the sixth issue.         In his seventh issue, appellant contends he was denied his right to a unanimous verdict. In particular, he contends the jury charge submitted two separate offenses of murder - (1) intentionally causing the death of Gvist and (2) intending to cause serious bodily injury and committing an act clearly dangerous to human life - without requiring the jury to agree on one.
        The Texarkana Court of Appeals recently analyzed this precise issue with respect to the murder statute and concluded the charge appropriately submitted alternative ways of violating the statute. See Barfield v. State, 202 S.W.3d 912, 916 (Tex. App.-Texarkana 2006, pet. ref'd ). We agree with the analysis in Barfield. Accordingly, we overrule the seventh issue.
        In his eighth issue, appellant complains the trial court erred in admitting extraneous offense evidence of unauthorized use of a motor vehicle at the punishment phase. Specifically, Duncanville police officer Kevin McCown testified that he stopped a stolen car in which appellant was a passenger. McCown also testified he had “no knowledge of [appellant] knowing anything about it being stolen.”
        On appeal, appellant complains there was no proof of an “actual crime” or of appellant's culpability; thus, he contends the trial court violated Texas Rule of Evidence 404 in admitting it. We disagree.
        Unlike the guilt phase, "the question at punishment is not whether the defendant has committed a crime, but instead, what sentence should be assessed." Ellison v. State, 201 S.W.3d 714, 719 (Tex. Crim. App. 2006). The purpose of the bifurcated trial procedure - first guilt and then sentencing - is to “take the blindfolds off the judge or jury when it came to assessing punishment . . . thus allow[ing] evidence critical to an enlightened determination of punishment. . ..” Id. During the sentencing phase, “evidence may be offered . . . as to any matter the court deems relevant,” including evidence of a defendant's character. Tex. Code Crim. Proc. Ann. art. 37.07 § 3(a)(1) (Vernon Supp. 2006). Additionally, suitability for probation is relevant to sentences. Ellison, 201 S.W.3d at 718.
        Here, appellant sought probation for each of the offenses. The jury was instucted on the several conditions that appellant would be subject to, including that he “[a]void person or places of disreputable or harmful character[.]” Evidence that appellant was riding in a stolen vehicle is relevant to his judgment about who he chooses to spend his time with, regardless of whether he actually knew the vehicle was stolen. Such evidence would be helpful to the jury as it made its determination on probation. A jury may consider a wide range of evidence in determining whether to recommend probation in any given case. Ellison, 201 S.W.3d at 718. We conclude the trial court did not abuse its discretion in allowing the evidence. We overrule the eighth issue.
        In his ninth issue, appellant complains the cumulative effect of the above errors warrants a reversal for either a new trial or a new punishment hearing. We have analyzed the above complaints and have concluded there was no error. We overrule the ninth issue.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          MOLLY FRANCIS
                                                          JUSTICE
 
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Tex. R. App. P. 47
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