Miller, Robert Terry v. The State of Texas--Appeal from 262nd District Court of Harris County

Affirmed and Memorandum Opinion filed November 8, 2005

Affirmedand Memorandum Opinion filed November 8, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00632-CR

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ROBERT TERRY MILLER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 975,873

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

A jury found appellant Robert Terry Miller guilty of aggravated assault and assessed punishment at five years= confinement in the Texas Department of Criminal Justice Institutional Division. In two issues, appellant challenges the legal and factual sufficiency of the evidence supporting his conviction. We affirm.

Background

On January 4, 2004, around 3:00 a.m., Kevin Tatum and his wife, Helen Tatum, went to an after-hours nightclub known as ADa Spot.@[1] After arriving at the nightclub, Kevin stopped to chat with friends and remained in the car with the windows down. His friends stood outside the vehicle on the passenger=s side. While Kevin leaned over the passenger seat in conversation, a man known as AJavay@ reached through the driver=s side window and punched Kevin in the jaw. Kevin opened the car door to confront Javay. Javay then ran away and joined appellant and others who were standing in a group. After seeing that appellant and the others had guns, Kevin jumped back into his car and began to drive away. As he drove, he saw appellant and several others shoot at his car. Kevin drove until the street became a dead-end and his car got stuck in a ditch.

At the time of the incident, Officer Xavier Budd was working near Da Spot. When he heard the gunshots, he drove toward the area of the sound and came upon Kevin and Helen. He noticed that the rear window of their car was shattered. A few days after the incident, Kevin and Helen each gave the investigating officer, Officer K.W. Bray, a statement regarding the incident. Kevin and Helen both identified appellant as one of the gunmen. In addition, another witness, Dominic Conley, testified that he saw appellant with a large group of men. Appellant was walking toward Kevin=s car while holding out his arms as if he were about to shoot a gun. Before trial, Helen and Kevin separated and filed for divorce. Helen testified at trial that while she saw appellant at Da Spot, she was certain that he was not one of the individuals that shot at her and Kevin the night of the incident.

Appellant was charged with aggravated assault with deadly weapon. A jury found appellant guilty of aggravated assault and assessed punishment at five years= confinement.

Standard of Review

In evaluating a legal-sufficiency challenge, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The issue on appeal is not whether we, as a court, believe the State=s evidence or believe that appellant=s evidence outweighs the State=s evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The trier of fact, Ais the sole judge of the credibility of the witnesses and of the strength of the evidence.@ Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The trier of fact may choose to believe or disbelieve any portion of the a witness=s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).

In contrast, when evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence in a neutral light and inquire whether the trier of fact was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). A reviewing court may find the evidence factually insufficient in two ways. Id. First, when considered by itself, the evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, after weighing the evidence supporting the verdict and the evidence contrary to the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. at 484B85. In conducting the factual-sufficiency review, we must employ appropriate deference so that we do not substitute our judgment for that of the fact finder. Id. at 481B82. Our evaluation should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). In conducting a factual-sufficiency review, we must discuss the evidence appellant claims is most important in allegedly undermining the verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

Sufficiency of the Evidence

Appellant contends, in two issues, that the evidence is legally and factually insufficient to support his conviction. More specifically, appellant contends that the evidence is insufficient because his witnesses= testimony contradicted the State=s witnesses= testimony and there was no evidence either that he owned or carried a firearm or that he discharged a firearm on the day of the incident. We disagree with appellant=s contentions.

It is well-established that it was for the jury, as the trier of fact, to decide whether to believe the State=s or appellant=s witnesses. The jury is entitled to believe all, none, or some of any of the witnesses= testimony. See Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991); Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981). We do not realign, disregard, or reweigh the evidence. See Rodriguez v. State,939 S.W.2d 211, 218 (Tex. App.BAustin 1997, no pet.). In addition, mere contradiction in testimony at trial will not suffice to overturn a conviction. See Turner v. State, 4 S.W.3d 74, 83 (Tex. App.BWaco 1999, no pet.).

The State presented the following witnesses to prove its case beyond a reasonable doubt: the complainant, Kevin Tatum, and Dominic Conley (another eyewitness). Kevin Tatum testified that appellant was among the individuals who aimed their guns at him as he stepped out of his vehicle to confront Javay. Kevin was located only a few feet from where appellant was standing and observed appellant pull a gun and aim it at him. The jury was entitled to believe Kevin=s identification of the shooter. See Harvey v. State,3 S.W.3d 170, 174 (Tex. App.BHouston [14th Dist.] 1999, pet. ref=d) (affirming aggravated assault conviction where the identification of the defendant was made by the complainant who was a few feet away from defendant). Next, Dominic Conley also testified that he saw appellant with a large group of men walking toward Kevin=s car while holding out his arms as if to shoot a gun.

Appellant=s key witness, Helen Tatum, initially identified appellant as a shooter in her statement given to the police shortly after the incident. However, she retracted this identification after she and Kevin separated, and she testified at trial that appellant was not one of the shooters. Shaneka Williams and Chris Mills also testified for appellant. Shaneka testified that she was facing the direction from which the shots were fired, but yet heard the shots come from behind her. Chris Mills testified that he knew about three days after the incident that appellant had been arrested but did not come forth with his statement that appellant was not one of the shooters until directly before trial, about six months later.

It is within the sole province of the jury to reconcile conflicts, contradictions, and inconsistencies in the evidence. Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982). The jury is also the judge of the credibility of the witnesses, and it is free to believe or disbelieve any portion of a witness=s testimony. Cain, 958 S.W.2d at 408B09. Here, the jury was presented with some inconsistent testimony between the witnesses concerning whether appellant was one of the shooters. The jury heard and considered the inconsistencies in the testimony and determined that appellant was guilty of aggravated assault. Considering all of the evidence in the case, and deferring to the jury=s role as the sole judge of the weight and credibility given to witness=s testimony, we are unable to conclude that the inconsistencies in the testimony are enough to declare the verdict legally or factually insufficient. See Tran v. State, No. 14-03-01372-CR, __ S.W.3d __, 2005 WL 2334828, at *7B8 (Tex. App.BHouston [14th Dist.] June 2, 2005, pet. ref=d) (holding that evidence was sufficient to support convictions for three counts of aggravated sexual assault of a child, even though testimonies of victim and outcry witness were inconsistent as to location of alleged sexual assaults as well as exact incidents that transpired during assaults, and evidence suggested that defendant did not have large window of opportunity to commit assaults). Accordingly, we overrule both of appellant=s issues and affirm the trial court=s judgment.

/s/ Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed November 8, 2005.

Panel consists of Justices Yates, Hudson, and Seymore.

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

[1] Helen Tatum is appellant=s ex-wife.