Burrell, Carlton Richard v. The State of Texas--Appeal from 337th District Court of Harris County

Affirmed and Opinion filed  January 16, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-01-01136-CR

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CARLTON RICHARD BURRELL, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 337th District Court

Harris County, Texas

Trial Court Cause No. 888,720

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O P I N I O N

Appellant Carlton Richard Burrell was convicted of capital murder. In two points of error, he contends the evidence was legally and factually insufficient to support the jury s finding that he intentionally caused the death of Ruthmary Goldman. We affirm.

I. FACTUAL BACKGROUND

On the morning of August 11, 2000, Ruthmary Goldman was finishing a cigarette at the north entrance of the Dillard s department store at Baybrook Mall. Waiting for his wife in his vehicle, William Byrd observed Goldman from the parking lot. Shortly after she had finished smoking, Byrd noticed appellant jog toward her. Byrd saw him make contact with Goldman and struggle with her for her purse. Appellant knocked her to the ground and stood over her as he continued his attempts to take the purse. Just as he was unlocking the vehicle to go to Goldman s aid, Byrd heard a pop and looked over to discover appellant holding a firearm over her body. As Byrd used his cellular telephone to call the authorities, he saw appellant take the purse and jog to a nearby vehicle. Byrd noticed two other individuals in the vehicle. After committing the license plate to memory, Byrd went to aid Goldman. Shopping inside the store at about this time, Sylvia Cole heard cries for help. A nurse, Cole began to treat Goldman, who by then was bleeding profusely from the gunshot wound. Goldman told Cole that she had been shot by a robber and that she knew that she would not survive. About an hour after the robbery, she died of her wounds. After the authorities ascertained the identities of the suspects, located the vehicle, and obtained arrest warrants, appellant turned himself into the police and provided a statement detailing his involvement in the crime. After entering a plea of not guilty, appellant was found guilty of capital murder and sentenced to life in prison.

II. STANDARD OF REVIEW

When an appellant challenges both the legal and factual sufficiency of the evidence, the reviewing court addresses the legal sufficiency challenge first because an affirmative finding on that issue will result in rendition of a judgment of acquittal, while a finding of factual insufficiency warrants a remand for a new trial. See Nickerson v. State, 69 S .W.3d 661, 668 (Tex. App. Waco 2002, pet. ref d). In conducting a legal sufficiency review, an appellate court must view the evidence in the light most favorable to the prosecution and determine if any rational fact finder could have found the crime s essential elements to have been proven beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). The reviewing court will examine the entire body of evidence; if any evidence establishes guilt beyond a reasonable doubt, and the fact finder believes that evidence, the appellate court may not reverse the fact finder s verdict on grounds of legal insufficiency. See id. In reviewing for factual sufficiency, an appellate court will examine all the evidence without the prism of in the light most favorable to the prosecution and will set aside the fact finder s verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App.1996). However, an appellate court conducting a factual sufficiency review must be appropriately deferential so as to avoid substituting its own judgment for that of the fact finder. Id. at 133. Accordingly, we are only authorized to set aside the fact finder s finding in instances where it is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Id. at 135.

In two points of error, appellant contends the evidence was legally and factually insufficient to prove that he had the intent to cause the death of an individual at the time of the crime. A person commits the offense of capital murder if he intentionally commits the murder in the course of committing or attempting to commit robbery. See Tex. Penal Code Ann. 19.03 (a)(2); see also Tex. Penal Code Ann. 6.03 ( A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result. ). A culpable mental state is almost always proven through circumstantial evidence. Warren v. State, 797 S.W.2d 161, 164 (Tex. App. Houston [14th Dist.] 1990, pet. ref d). The jury must review all of the evidence and may reasonably conclude from the circumstantial evidence that the requisite mental state existed. Mouton v. State, 923 S.W.2d 219, 223 (Tex. App. Houston [14th Dist.]1996, no pet.).

The manner in which appellant perpetrated the crime clearly suggests his specific intent to kill. An accused s intent may be inferred from his acts, words, and conduct. Id.; Henderson v. State, 825 S.W.2d 746, 749 (Tex. App. Houston [14th Dist.] 1992, pet. denied). Appellant used a firearm to commit the robbery, and he shot Goldman in the upper part of her chest after she resisted his attempts to take her purse. From the use of a deadly weapon, the finder of fact may infer the specific intent to kill unless in the manner of its use it is reasonably apparent that death or serious bodily injury could not result. Childs v. State, 21 S.W.3d 631, 635 (Tex. App. Houston [14th Dist.] 2000, pet ref d); see also Hatton v. State, 21 S.W. 679, 679 (1893) ( If a deadly weapon is used in a deadly manner, the inference is almost conclusive that he intended to kill; on the other hand, if the weapon was not a dangerous one, or was not used in a deadly manner, the evidence must be established by other facts. ). A handgun, like that used by the appellant in this case, is a deadly weapon per se. See Tex. Penal Code Ann. 1.07(a)(17)(a). Appellant s firearm was loaded. Because appellant failed to remove the bullets and used a gun he knew to be loaded, the jury could also reasonably infer an intent to kill. Mouton, 923 S.W.2d at 223. Furthermore, where a deadly weapon is fired at close range, and death results, the law presumes an intent to kill. Womble v. State, 618 S.W.2d 59, 64 (Tex. Crim. App. [Panel Op.] 1981). The assistant medical examiner who performed the autopsy testified that the soot around the edges of and within the wound suggested that the firearm was discharged within inches of Goldman s body. Seeing no defensive wounds during the autopsy, the medical examiner also testified that it was unlikely that Goldman struggled with appellant over the weapon. Having analyzed the evidence at the scene, a Houston Police Department firearms examiner testified that the weapon was likely a Kel-Tec, which requires three pounds of pressure to dispel the bullet from the chamber. The jury may have taken these facts into account in determining that appellant had the conscious intent to fire it into her body. See Mouton, 923 S.W.2d at 223. Considering the totality of the circumstances, we find the evidence was sufficient to support the jury s finding that appellant acted with the requisite intent to commit the offense of murder in the course of a robbery.

III. CONCLUSION

Based on the foregoing evidence, we find the evidence legally and factually sufficient to support the jury s finding that appellant intentionally caused the death of complainant. From it, a rational trier of fact could conclude that this element was proven beyond a reasonable doubt. Further, the fact finder s decision is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. The judgment is affirmed.

/s/ Eva M. Guzman

Justice

Judgment rendered and Opinion filed January 16, 2003.

Panel consists of Justices Edelman, Seymore, and Guzman.

Do Not Publish Tex. R. App. P. 47.2(b).