Jamison, John Dwayne v. The State of Texas--Appeal from 176th District Court of Harris County

Affirmed and Memorandum Opinion filed February 20, 2003

Affirmed and Memorandum Opinion filed February 20, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00443-CR

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JOHN DWAYNE JAMISON, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 176th District Court

Harris County, Texas

Trial Court Cause No. 871,835

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M E M O R A N D U M O P I N I O N

John Dwayne Jamison appeals from his conviction for murder. After appellant pled true to two enhancement paragraphs, a jury found him guilty and assessed punishment at 50 years imprisonment. Appellant contends the evidence is legally and factually insufficient to sustain his conviction. We affirm.

The Evidence

On the morning of March 9, 2001, Keith Davis was fatally shot outside a Texaco service station. In its case-in-chief, the State presented testimony from an eyewitness to the shooting as well as several witnesses who provided circumstantial evidence against appellant.

George Cunningham testified that, on March 9, he stopped at the service station. While inside, he saw appellant and someone he knew as Goldie, who he believed to be related to appellant. Cunningham stated that Goldie was having an argument with the cashier and appellant was standing by the door holding a gun in his hand. Cunningham left the store after making a purchase and, while using the payphone outside, he overheard Goldie, appellant, and the decedent, Davis, arguing about a drug sale. He then heard gunshots. Although he heard the shots come from the area of the Texaco station, he did not see who fired the shots. When he did look in the direction of the gunfire, he saw appellant and Goldie get into a car and speed away, and he saw Davis lying on the ground, bleeding from his head.

Juan Granados testified that he was working at the Texaco station that day. He said he knew Goldie to be a drug dealer who frequented the station, and he knew appellant as Goldie s cousin. He further stated that he had previously lent Goldie $50 and, when Goldie and appellant came into the store that morning, Granados and Goldie argued about the debt. Goldie challenged Granados to go outside and fight, but Granados noticed appellant had a gun in his waistband and decided not to go outside, fearing he would be shot by appellant. As Goldie and appellant walked out of the store, Granados heard Goldie say, It s a lick, which he took to mean someone was coming to purchase drugs. After they walked out, Davis came into the store to use the restroom. As he was leaving, Davis said to Granados that they were going to mess or play with him when he left the store. Granados then observed Goldie follow Davis through the parking lot as the two argued, and he saw appellant pull out his gun and point it at Davis. Moments later, Granados heard three gunshots, but he did not see who fired.

Melvin Barnes testified that on the morning of March 9, he drove a friend and another man, who was looking to purchase drugs, to the Texaco service station. Before they left, Davis drove up and a woman in Davis s vehicle asked Barnes to give her something of hers that he had in his possession. Barnes told her that he would give it to her if she and Davis followed him. At the station, Barnes told Goldie that the man wanted to buy drugs. Goldie referred Barnes to another man, known as Rock, who said he would have to go to his house to retrieve the drugs. At some point, Barnes began to leave with his two passengers, but Goldie and Rock opened the doors to Barnes s vehicle. An argument ensued, during which Barnes observed Davis step out of the store and walk toward his vehicle, which was parked next to Barnes s vehicle. As he passed the group, Davis said, with a smile, Don t shoot him with the shotgun. Appellant then discharged his handgun twice into the air and said to Davis, Do you think this a game? [sic]. According to Barnes, appellant pointed the gun at Davis and shot him. Barnes fled the scene, but when he later heard on the local news that Davis had been killed, he went to the police.

The State also introduced evidence from several law enforcement personnel. Sergeant E.T. Yancheck stated, among other things, that he compiled photospreads out of which Granados and Cunningham positively identified appellant as the man they saw with a firearm at the station that morning. Yancheck further testified that he retrieved a spent shell casing from the bed of Barnes s pickup truck. Dr. M. Gonsoulin, an assistant Harris County medical examiner, testified that he performed an autopsy on Davis and determined that he died of a single gunshot wound to the head. Robert Baldwin, a criminalist with the Houston Police Department s crime lab, testified that a bullet found lodged in the back of Davis s neck and the casing retrieved from the bed of Barnes s truck likely were fired from the same type of handgun.

The appellant testified on his own behalf. He admitted being present at the station on the morning in question, but he claimed he did not have a gun at the time and that he did not shoot Davis. He stated instead that he heard Goldie arguing with Davis then he heard gunshots. He said he followed Goldie because he was frightened and that he later fled to Louisiana because he was afraid of Goldie. In addition to the conflicting testimony of other witnesses, appellant was impeached with proof of his prior convictions for aggravated assault with a deadly weapon, felony theft, and misdemeanor theft. Appellant also called his girlfriend, Catina Scott, as a witness. She stated that appellant called her from Florida and told her that he had been present at the station when another person shot Davis.

Standard of Review

In reviewing legal sufficiency, we examine the evidence in the light most favorable to the verdict and ask whether any rational trier of fact could have found all of the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Santellan v. State, 939 S.W.2d 155, 160 (Tex. Crim. App. 1997). We accord great deference to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences therefrom. See Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). We further presume that any conflicting inferences from the evidence were resolved by the jury in favor of the prosecution, and we must defer to that resolution. See id. at 133 n.13. In conducting this review, the appellate court is not to re-evaluate the weight and credibility of the evidence, but must act only to ensure the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993); Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988).

In reviewing factual sufficiency of the evidence, we examine all of the evidence without the prism of in the light most favorable to the prosecution and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). We consider all of the evidence in the record and not just the evidence which supports the verdict. Santellan, 939 S.W.2d at 164. The court is authorized to disagree with the jury s determination, even if probative evidence exists which supports the verdict. Clewis, 922 S.W.2d at 133. However, a factual sufficiency review must be appropriately deferential to avoid substituting the appellate court s judgment for that of the fact finder or substantially intruding upon the jury s role as the sole judge of the weight and credibility of testimony. Johnson, 23 S.W.3d at 7. Unless the record clearly reveals that a different result is appropriate, we must defer to the jury s determination concerning the weight given to contradictory testimony. Id. at 8.

Under his factual sufficiency arguments, appellant contends that the Texas Constitution s grant of authority to review factual sufficiency to the intermediate courts of appeal includes the authority to review the credibility of witnesses. Although intermediate appellate courts are not precluded from reviewing the credibility of witnesses, the scope of that review is exceedingly narrow. See id. at 8 9.[1] The reasons for this stem from the very nature of live testimony. The fact finder, in this case the jury, was present to observe the witnesses body language, mannerisms, voice inflection, cadence, and other keys to weighing credibility that we generally cannot discern from the cold record. See id. at 8 n.9. Accordingly, we must afford great deference to the jury s credibility determinations.

Analysis

Appellant contends that the evidence is legally and factually insufficient to sustain his conviction because the State failed to present a credible case against him. However, an eyewitness testified that appellant shot Davis. Appellant was identified by other witnesses as possessing a firearm at the Texaco service station the morning of the shooting. Although there may be minor discrepancies in the testimony of various witnesses, the most critical pieces of evidence went uncontradicted except by appellant s own self-interested testimony, which was impeached by both the testimony of other witnesses and by his own prior felony and theft convictions. See generally Tex. R. Evid. 609 (permitting use of certain prior convictions for impeachment purposes). Although the physical evidence collected at the scene does not directly implicate appellant, it does generally comport with witness testimony.

Appellant makes four specific points in arguing insufficiency of the evidence: (1) Barnes testimony regarding the shooting was uncorroborated; (2) Granados, the Texaco cashier, testified that he saw appellant s companion, and not appellant, point a firearm at Davis; (3) appellant himself testified that Davis was shot while with appellant s companion and appellant did not shoot Davis; and (4) Scott, appellant s girlfriend, testified that appellant told her that another person shot Davis. We find that each of these points either lacks merit or lacks sufficient weight to require reversal.

First, although no other eyewitnesses to the shooting testified, Barnes testimony was corroborated by Cunningham and Granados to the extent that they, too, observed appellant with a weapon on the morning in question. Indeed, Granados testified that he saw appellant point a weapon at Davis and, shortly thereafter, heard shots. Furthermore, Barnes s testimony regarding the shooting was otherwise clear, direct, and without internal contradiction. The jury was free to believe Barnes s testimony as they saw fit. See Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000) ( The jury may choose to believe some testimony and disbelieve other testimony. ). Second, appellant s contention that Granados testified it was appellant s companion who possessed a firearm that morning appears to stem from a misreading of the record. Granados s testimony clearly reflects that he saw appellant, and not his companion, with a firearm.[2] Third, appellant s own testimony may well have been discounted by the jury due to its self-interested nature and the fact that it was contradicted by the testimony of other witnesses and was otherwise impeached by appellant s past convictions. Lastly, Scott s testimony may have been discounted by the jury because it was arguably in her self-interest and because it was essentially just a recitation of statements allegedly made to her by appellant.

In sum, we find that a rational trier of fact could have found all of the elements of the offense beyond a reasonable doubt. See Santellan, 939 S.W.2d at 160. We further find that the verdict was not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Johnson, 23 S.W.3d at 7. The evidence is legally and factually sufficient to support the verdict. Accordingly, appellant s issues are overruled.

The judgment of the trial court is affirmed.

/s/ Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed February 20, 2003.

Panel consists of Justices Edelman, Seymore, and Guzman.

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

[1] In Johnson, the Court of Criminal Appeals stated:

The degree of deference a reviewing court provides must be proportionate with the facts it can accurately glean from the trial record. A factual sufficiency analysis can consider only those few matters bearing on credibility that can be fully determined from a cold appellate record. Such an approach occasionally permits some credibility assessment but usually requires deference to the jury s conclusion based on matters beyond the scope of the appellate court's legitimate concern. Unless the available record clearly reveals a different result is appropriate, an appellate court must defer to the jury's determination concerning what weight to give contradictory testimonial evidence because resolution often turns on an evaluation of credibility and demeanor, and those jurors were in attendance when the testimony was delivered.

23 S.W.3d at 8.

[2] As the States points out, appellant s brief makes several references to appellant by the nickname Goldie. However, the record is clear that in using this nickname the witnesses intended to refer to appellant s companion and not appellant. This confusion likely explains the appellant s erroneous assertion that Granados testified it was the companion who possessed a weapon. Appellant testified that although he and the other man share the same last name, they are not related.