Gray, Larry Larnail v. The State of Texas--Appeal from 337th District Court of Harris County

Affirmed and Opinion filed  December 5, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-01184-CR

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LARRY LARNAIL GRAY, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from 337th District Court

Harris County, Texas

Trial Court Cause No. 855,928

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O P I N I O N

Appellant, Larry Larnail Gray, appeals a conviction for murder on the following grounds: (1) the evidence presented by the State was factually insufficient; (2) the trial court erred by including an instruction on voluntary intoxication; and (3) the trial court erred in admitting testimony from a State s witness before determining his qualifications to be an expert. Finding no merit in appellant s three points of error, we affirm the trial court s judgment.

Facts

After receiving information that appellant s brother (complainant s stepfather) had died, the family met to discuss funeral arrangements. The complainant, Shannon Pitre, also attended the meeting. At the meeting, appellant was purportedly angered because he felt that complainant was trying to choose the funeral home. The complainant left the meeting with Michael Dennis, a family friend, who was driving a truck. After appellant threw a beer can at the truck, the family friend pulled over onto the right shoulder. When complainant exited the truck, appellant fired three shots from two different rifles. One of the shots hit complainant in the back, causing his death. Appellant later signed a confession admitting that he shot the complainant. Appellant did not testify during the guilt-innocence phase of the trial. However, he contends that he was shooting solely with the intent of frightening the complainant.

Factual Insufficiency

  In appellant s first point of error, he contends the evidence is factually insufficient to support a conviction for murder. To support his contention, appellant offers his signed confession: the pertinent portion reads, I was not trying to kill Shannon, I was just trying to scare him.

In reviewing factual sufficiency of the evidence, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict only if proof of guilt is so obviously weak as to undermine confidence in the jury s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). We review the fact finder s weighing of the evidence and are authorized to disagree with the fact finder s determination. Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). In our review, we must not substitute our own judgment for that of the jury. See Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996).

A mental state, such as intent, is necessarily proved by circumstantial evidence. Sadler v. State, 728 S.W.2d 829, 831 (Tex. App. Dallas 1987, no pet.). Because it has exclusive power to determine factual disputes, the jury may infer intent to kill from the use of a deadly weapon. Mercado v. State, 718 S.W.2d 291, 295 (Tex. Crim. App. 1986). A rifle is a deadly weapon per se. Chavez v. State, 657 S.W.2d 146, 148 (Tex. Crim. App. 1983). Intent to kill can also be inferred from the acts, words, and conduct of the defendant. Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1974).

The appellant fired at least three shots. The record further indicates that appellant used two different high-powered rifles, one of which had a scope. Both rifles were deadly weapons and by shooting toward complainant at least three times, one could reasonably infer that appellant intended to kill him. The only contrary evidence that appellant did not intend to kill complainant is his confession. Accordingly, we hold that the proof of guilt is not so obviously weak as to undermine confidence in the jury s verdict. For these reasons, we overrule appellant s first point of error.

Jury Instruction

In appellant s second point of error, he contends the trial court erred when it submitted the State s proposed jury instruction on the issue of appellant s voluntary intoxication. The trial court charged the jury as follows:

Voluntary intoxication does not constitute a defense to the commission of a crime. Intoxication means disturbance of mental or physical capacity resulting from the introduction of any substance into the body.

This instruction tracked the language of section 8.04 of the Texas Penal Code. Appellant voiced no objection to the instruction. Appellant now contends the instruction constituted an impermissible comment on the weight of the evidence.

An instruction on voluntary intoxication is appropriate if there is any evidence from any source that might lead a jury to conclude that the defendant s intoxication excused his actions. Taylor v. State, 885 S.W.2d 154, 157 58 (Tex. Crim. App. 1994) (emphasis added). It is undisputed that appellant drank beer on the night of the shooting. It is also undisputed that appellant threw a beer can toward the truck occupied by the complainant. A reasonable jury might conclude that appellant s intake of alcohol contributed to the extent of his hostility toward the complainant. We find, therefore, some evidence exists for the trial court to instruct the jury on voluntary intoxication.

Moreover, we find no egregious harm in submitting this instruction. See Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996) (when defendant fails to object, he must show egregious harm to warrant reversal). The court s statement of the applicable law was not a comment on the weight of the evidence. See Taylor, 885 S.W.2d at 157. At worst, the instruction was superfluous. Zuliani v. State, 52 S.W.3d 825, 832 (Tex. App. Austin 2001, pet. granted). If appellant was intoxicated and did not use intoxication as a defense, the jury could simply ignore the instruction; if the jury believed he was intoxicated, the instruction correctly guided them to ignore the intoxication. Id.

Witness Testimony

In point of error number three, appellant contends the State s crime scene witness was not qualified to render an opinion regarding blood splatter. Deputy Ortiz testified that based on his examination of blood splatter, the complainant was standing outside of the vehicle when he was shot. Appellant contends that this testimony directly contradicts his defensive theory because it tends to prove he intended to kill the complainant.

We recognize that the party proffering testimony from an expert bears the burden of showing by clear and convincing evidence that the witness is qualified on the specific matter in question. Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App. 2000). However, we are not so persuaded that the failure in this case is reversible error. Assuming that Deputy Ortiz was not qualified as an expert on blood splatter evidence, there was other testimony supporting the State s contention that complainant was standing outside the truck when he was shot. Michael Dennis, the driver of the truck, pulled onto a right shoulder and stopped after appellant threw the beer can. Dennis heard three shots after complainant exited the truck. Detective Walter Kuhlman testified that he observed the complainant s body lying beside the pickup truck. Dr. Patricia Moore, the medical examiner, testified that the cause of the complainant s death was a gunshot to the back. Therefore, the jury could have concluded that the complainant was standing outside the truck when shot. Accordingly, the error, if any, is rendered harmless because the same facts were established by other evidence. Willis v. State, 785 S.W.2d 378, 383 (Tex. Crim. App. 1989) (applying the rule that inadmissible evidence can be rendered harmless if other evidence at trial is admitted without objection and tends to prove the same fact that the inadmissible evidence was offered to prove).

We find that the error, if any, was harmless. Accordingly, we overrule appellant s third point of error and affirm the judgment of the trial court.

/s/ Charles W. Seymore

Justice

Judgment rendered and Opinion filed December 5, 2002.

Panel consists of Justices Edelman, Seymore, and Guzman.

Do Not Publish Tex. R. App. P. 47.3(b).