CHARLES LEE JONES, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued May 26, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-01562-CR
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CHARLES LEE JONES, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 291st Judicial District Court
Dallas County, Texas
Trial Court Cause No. F05-71652-U
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MEMORANDUM OPINION
Before Justices Moseley, Bridges and Fillmore
Opinion By Justice Bridges
        Appellant Charles Lee Jones appeals his conviction of murder and accompanying sentence. We affirm.
Background
 
        On the morning of March 22, 2005, the victim banged on Tyrone Weatherall's window and screamed he had been stabbed by appellant. Appellant lived across and down the street from Weatherall. Weatherall looked out his window and saw appellant at the front entrance gate, trying to come into the gate, but he did not come in. From inside his house, Weatherall told appellant to leave the victim alone and appellant screamed, “Fuck you,” and left. Weatherall did not see a knife in appellant's hand, nor did he hear appellant say anything to the victim.         Weatherall called 911 and the paramedics arrived about ten minutes later. The victim did not say anything else after telling Weatherall that appellant had stabbed him. The victim died on the grass under Weatherall's window. By the time Weatherall had put on his clothes to go outside, the paramedics had arrived.
        Dallas Police Officer Borchardt testified that he responded to the call about this murder. When he arrived, the ambulance had already left, but he learned where appellant lived. Officers approached appellant's door, but did not get an answer, The officers set up a perimeter around the house to prevent appellant from escaping and waited for the SWAT team to arrive.
        Dallas Police Officer Emberlin testified that, as a member of the SWAT team, he responded to a call regarding a barricaded person. He had been told that appellant had been involved in an offense with a knife and there was a high probability he had the knife. A negotiator tried to talk appellant out of the house, but received no response.
        After the SWAT team entered the house, Officer Lancaster found appellant in the bathroom and called Officer Emberlin to come forward with a less lethal weapon. When appellant brought his arms up, Officer Emberlin thought appellant might be armed with a knife, so he fired one spongy round into appellant's torso, knocking appellant back into the tub. Officers took appellant into custody.
        Officer Emberlin did not find a knife in the bathroom; however, he testified that SWAT officers search only for bodies, so they did not look for any weapons or other evidence.
        Dallas Police Detective Quirk testified that he and Detective Ahearn responded to this murder and talked to witnesses, learning the offense occurred in front of the victim's residence. In the front living room of the house, officers found a tan jacket and knit cap, both of which witnesses said appellant was wearing at the time of the offense. A kitchen knife was also found in the living room, along with a knife block and other knives in the house.
        The medical examiner, who performed an autopsy on the victim, testified the cause of death was a stab wound and the manner of death was homicide. Adrienne Warner, a serologist, testified she analyzed the knife and it was broken when she received it from her registrar, who collected it from the police. Blood was not detected on the broken knife. Warner also analyzed each individual knife from the block and one knife had traces of blood. Blood was also found on a t-shirt.
        Kenneth Balagot, a forensic biologist, testified he performed a DNA analysis in the case and the DNA profile from the knife blade matched that of the victim. He also testified the DNA profile from the stain on the t-shirt matched appellant's DNA profile, but he was uncertain as to the owner of the t-shirt.
        After pleading not guilty, appellant was convicted by a jury of murder. The jury set punishment at life confinement in the Texas Department of Criminal Justice, Institutional Division. This appeal ensued.
Analysis
 
        Appellant raises three issues in his appeal. First, he contends the trial court erred by overruling his objection to the tampered-with evidence. Second, he argues the evidence is factually insufficient to establish that appellant murdered the victim. Finally, appellant alleges the trial court erred by denying his motion to testify without being subject to impeachment under Texas Rule of Evidence 609(a).
        With regard to the first issue, the trial court admitted Exhibit 54, the knife with the broken handle, over appellant's objection that there was evidence of tampering. Wagner testified the handle on the knife was broken when she received it, but Detective Epple testified it was not bent when he retrieved it and affirmed the crime lab must have bent the handle. Appellant argues that the admission of this “tampered-with evidence” warrants a new trial.
        An appellate court should not set aside a trial court's ruling on the admission of evidence absent a showing on the record that the trial court abused its discretion by acting in an arbitrary and unreasonable manner. Montgomery v. State, 810 S.W.2d 372, 379-80 (Tex. Crim. App. 1990). The reviewing court should not reverse a trial court whose ruling was within the “zone of reasonable disagreement.” Id.; Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996). “Tamper” means to “meddle so as to alter a thing, especially to make illegal, corrupting or perverting changes . . . .” BLACKS LAW DICTIONARY 1305 (5th ed. 1979). Here, the police officer who recovered the knife affirmed at trial that it did not “appear to have been tampered with in any way.”
        Appellant argues, however, that the knife was tampered-with, implying any changes to the evidence implicated appellant in the crime. We disagree. Although Exhibit 54, the bent knife, was found on appellant's floor, it was another of appellant's knives that had the victim's blood on it. The bent knife in question did not have blood on it and appellant failed to demonstrate the evidence suffered from”tampering.” Therefore, the trial court's decision to admit Exhibit 54 into evidence was within the “zone of reasonable disagreement” and we overrule appellant's first issue. Montgomery, 810 S.W.2d at 379-80.
        In his second issue, appellant argues the evidence is factually insufficient to establish that appellant murdered the victim. To obtain a conviction in this case, the State was required to prove that appellant intentionally and knowingly caused the death of the victim. Tex. Penal Code Ann. § 19.02(b)(1) (Vernon 2003).
        In a factual sufficiency review, we review the evidence in a neutral light rather than (as in a legal sufficiency review) in the light most favorable to the verdict. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007). Evidence can be factually insufficient in one of two ways: (1) when the evidence supporting the verdict is so weak that the verdict seems clearly wrong and manifestly unjust, or (2) when the supporting evidence is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009); Roberts, 220 S.W.3d at 524; Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). A reversal for factual insufficiency cannot occur when “the greater weight and preponderance of the evidence actually favors conviction.” Roberts, 220 S.W.3d at 524.
        Although an appellate court reviewing factual sufficiency has the ability to second-guess the jury to a limited degree, our review should still be deferential, with a high level of skepticism about the jury's verdict required before a reversal can occur. Id. Thus, we afford due deference to the trier of fact's determination, because it was in the best position to evaluate the credibility of the witnesses. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). See also Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (The trier of fact, having heard all the testimony and viewed the demeanor of the witnesses, was free to accept or reject any and all evidence presented by either side.). We turn to a review of the evidence under these principles.
        At trial, Weatherall testified the victim banged on his window and screamed he had been stabbed by appellant. From inside his house, Weatherall told appellant to leave the victim alone and appellant said, “Fuck you” and then he left. The victim said nothing else after telling Weatherall that appellant had stabbed him. The victim died on Weatherall's lawn.
        Appellant's father testified that he told the police appellant “had a hate” for him and the victim. Evidence showed the police tried to talk appellant out of his house, but they received no response. After the SWAT team entered the house, an officer located appellant in his bathroom.
        In the front living room of appellant's house, officers located a tan jacket and knit cap that witnesses said appellant was wearing at the time of the offense. A kitchen knife was also found in the living room. The police also recovered a knife block with other knives from appellant's home, along with marijuana.
        The medical examiner testified the cause of death was a stab wound to the chest and the manner of death was homicide. From the knives taken from appellant's home, blood was located on one, which matched the DNA profile of the victim.
        Thus, our examination of the record reveals that the evidence supporting the verdict is not so weak that the verdict is clearly wrong and manifestly unjust. Roberts, 220 S.W.3d 524. We overrule appellant's second issue.
        In his third issue, appellant alleges the trial court erred by denying his motion to testify without being subject to impeachment   See Footnote 1  under Texas Rule of Evidence 609(a). We need not address the merits of this issue because appellant never testified and, therefore, failed to preserve error. Jackson v. State, 992 S.W.2d 469, 479 (Tex. Crim. App. 1999); Clark v. State, 2007 WL 659837, *3 (Tex. App.-Dallas March 6, 2007, no pet.); Caballero v. State, 919 S.W.2d 919, 923 (Tex. App.-Houston [14th Dist.] 1996, pet. ref'd). Thus, we overrule appellant's third issue.
        Having overruled all of appellant's issues, we affirm the judgment of the trial court.
 
 
                                                          
                                                          DAVID L. BRIDGES
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
081562F.U05
 
Footnote 1 Appellant had been convicted of possession of cocaine and unauthorized use of a motor vehicle in 1990, possession of marijuana and unlawful possession of a handgun in 1996, unlawful carrying of a weapon and criminal mischief in 1997, assault and evading arrest in 1997, evading arrest in 1999, unlawful carrying of a weapon in 2000, and attempted theft in 2004.