Terry Demon McClintock, Jr. v. The State of Texas--Appeal from 337th District Court of Harris County

Affirmed and Memorandum Opinion filed July 19, 2007

Affirmed and Memorandum Opinion filed July 19, 2007.

In The

Fourteenth Court of Appeals

_______________

NO. 14-06-00258-CR

_______________

TERRY DEMON MCCLINTOCK, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court

Harris County, Texas

Trial Court Cause No. 1029173

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

A jury found appellant, Terry Demon McClintock, Jr., guilty of murder and sentenced him to thirty-one years= confinement. In two issues, he contends the evidence is legally and factually insufficient to support the conviction. Our disposition is based on clearly settled law. Accordingly, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4.

I. Background

Appellant was accused of shooting and killing Danielle Nicole Bonner at her duplex in Houston on June 1, 2005. At trial, witnesses testified that they observed appellant and his girlfriend, Lena Bryant, arguing with Bonner who was standing in the front doorway of her residence. At some point, appellant retrieved a handgun either from his pants or his car and entered Bonner=s duplex. A few seconds later, witnesses heard a Apop@ that sounded like a gunshot inside the duplex. Shortly thereafter, appellant ran out of the duplex and entered an Impala on the driver=s side, and he and Bryant drove away. Appellant and Bryant returned a minute later, and appellant reentered Bonner=s duplex. Moments later, appellant exited the duplex, holding Bonner=s cordless phone and exclaiming, AOh, my God, she=s dead.@ Appellant and Bryant returned to the Impala. This time Bryant took the wheel, and they drove away. Several minutes later, appellant and Bryant returned to Bonner=s residence a third time. At this point, Houston police officers took them into custody. Police entered Bonner=s residence and found her lying in a large pool of blood. A 22-caliber chrome pistol was lying near her body.

The jury found appellant guilty of murder and sentenced him to thirty-one years= confinement.

II. Standard of Review

In two issues, appellant challenges legal and factual sufficiency of the evidence to support the jury=s verdict because there is no direct evidence he committed murder. The standard of review for a criminal case comprised wholly of circumstantial evidence is the same as in cases where the State has presented direct evidence of guilt. Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999); King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995); Wilson v. State, 863 S.W.2d 59, 65 (Tex. Crim. App. 1993).

In determining legal sufficiency, we view all the evidence in the light most favorable to the verdict and then determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Salinas v. State, 163 S.W.3d 734, 737 (Tex. Crim. App. 2005). The jury, as the sole judge of the credibility of the witnesses, is free to believe or disbelieve all or part of a witness=s testimony. Jones v. State, 984 S.W.2d 254, 257 (Tex. Crim. App. 1998). We do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993); Harris v. State, 164 S.W.3d 775, 784 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d).

In determining factual sufficiency, we view all the evidence in a neutral light and set aside the verdict Aonly if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.@ Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997) (quoting Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996)). Before we may reverse for factual insufficiency, we must first conclude, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury=s verdict. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). When reviewing evidence, we must avoid intruding on the fact-finder=s role as the sole judge of the weight and credibility of the witness testimony. Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000). We do not re-evaluate the credibility of witnesses or weight of the evidence, and will not substitute our judgment for that of the fact finder. Johnson v. State, 967 S.W.2d 410, 412 (Tex. Crim. App. 1998).

III. Discussion

A person commits murder if he (1) intentionally or knowingly causes the death of an individual or (2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. Tex. Penal Code Ann. ' 19.02(b)(1)-(2) (Vernon 2003).

Appellant contends there was no direct evidence that he murdered Bonner. However, it is well established that circumstantial evidence may be sufficient to sustain the jury=s verdict. See Kutzner, 994 S.W.2d at 184; Smith v. State, 965 S.W.2d 509, 515 (Tex. Crim. App. 1998). For purposes of proving guilt beyond a reasonable doubt, direct and circumstantial evidence are equally probative. See McGee v. State, 774 S.W.2d 229, 238 (Tex. Crim. App. 1989). Moreover, in a case that consists entirely of circumstantial evidence, it is not necessary for every inculpatory fact to point directly and independently to the accused; it is enough if the jury=s conclusion is warranted by the cumulative force of all incriminating evidence. See Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993).

Here, the State presented ample evidence to support the conviction. The State produced two witnesses who positively identified appellant at the scene. These witnesses testified that they watched from across the street at a distance of approximately 150 feet. Appellant and Bryant were arguing with Bonner, who was standing in her front doorway, before appellant entered her duplex, carrying a small, black gun. A few seconds later, these witnesses heard a Apop@ that sounded like a gunshot. Appellant was then seen running out of the victim=s duplex. Appellant and Bryant left the scene in an Impala, driven by appellant. The jury could rationally conclude from these facts that appellant shot Bonner inside her duplex.

Apparently, they drove around the block because they returned to Bonner=s duplex a minute later. One of the witnesses testified that neighborhood children were walking toward Bonner=s duplex when appellant and Bryant returned. The witness heard appellant tell the children Ato go to their friend=s house. Go next door. Don=t come in.@ The jury could have reasonably concluded that appellant instructed the children not to enter the duplex because they would find Bonner with a gunshot wound. Appellant re-entered Bonner=s duplex, exited a few moments later holding the victim=s cordless phone, and exclaimed, AOh, my God, she=s dead.@

Both witnesses testified that appellant and Bryant returned to the Impala. This time Bryant was behind the wheel. Apparently, they circled the block again and returned to the victim=s duplex a few minutes later. Appellant and Bryant were then seen re-entering the victim=s duplex. The police, fire department, and an ambulance arrived shortly thereafter.

There were discrepancies in the testimony of the two witnesses. First, each testified that the gun was black when it was, in fact, chrome. However, the defense conceded that the gun was small and the witnesses viewed the events from across the street. Further, appellant was wearing a black shirt, which may have reflected onto the gun. In addition, shadows may have affected the witnesses= perceptions of the gun. A jury could have reasonably inferred that a chrome gun appeared to the witnesses to be black when viewed next to a black shirt at a distance.

Second, one witness testified appellant retrieved the gun from his pants, while the other testified that appellant retrieved the gun from the Impala. However, the jury heard all of the evidence and could decide what weight to give the witnesses= testimony in light of this conflict. Unless the available record clearly reveals a different result is appropriate, we must defer to the jury=s determination concerning what weight to give contradictory testimony because resolution often turns on an evaluation of credibility and demeanor of the witnesses= testimony. See Watson, 204 S.W.3d at 414; Johnson, 23 S.W.3d at 8.

Third, one witness testified she saw and heard appellant instruct the neighborhood children to not enter Bonner=s duplex, while the other testified that he did not see the children. Again, this is not such a pivotal detail that conflicting testimony creates a reasonable doubt about appellant=s guilt.

Bonner=s estranged husband, Cedric Maddox, testified that following a telephone call from his daughter, he went to Bonner=s duplex. When Maddox arrived, appellant yelled out to him, ACedric, I just got here. She was already dead when I got here.@ However, appellant=s exclamation was contradicted by the testimony of the witnesses who saw appellant and Bryant arguing with the victim shortly before they heard the Apop@ of a gunshot and observed appellant=s multiple entries into Bonner=s residence.

The State also presented the testimony of Jason Schroeder, a forensic chemist with the Harris County Medical Examiner=s Office. Schroeder testified that appellant had no gunshot residue on his hands at the time he was tested. However, Schroeder also testified gunshot residue Asloughs off@ easily through normal hand motions within four to six hours of discharging a gun. Schroeder suggested that appellant could have washed his hands, wiped them on some object, or transferred the gunshot residue through sweat onto another object. These actions could explain the absence of gunshot residue on his hands. Moreover, there was evidence that Bryant had gunshot residue on her right hand. According to Schroeder, this transfer could have occurred at the steering wheel of the Impala when Bryant drove away from the victim=s duplex the second time after appellant had served as the driver the first time.

Appellant argues that Bonner likely committed suicide because she had a high gunshot residue finding on her left hand and a low gunshot residue finding on her right. However, Dr. Morna Gonsoulin, Assistant Medical Examiner at the Harris County Medical Examiner=s Office, testified that the gunshot wound was inconsistent with a typical self-inflicted gunshot wound based on the large area of stippling (or gunpowder burned into the victim=s skin) around the point of entry. According to Dr. Gonsoulin, the gun was fired at a distance of six to eighteen inches from Bonner. The bullet entered near the armpit on the left side, which may explain the higher gunshot residue finding on her left hand. Dr. Gonsoulin testified the bullet=s path was left to right, front to back, and downward making it an Ainconvenient@ location for a self-inflicted gunshot wound.

In sum, examining the evidence in the light most favorable to the verdict, we conclude that a reasonable jury could have found that appellant intentionally or knowingly caused the Bonner=s death or intended to cause serious bodily injury and committed an act clearly dangerous to human life that caused her death. Viewing the evidence in a neutral light, we further conclude that the jury=s verdict is not contrary to the great weight and preponderance of the evidence and find the evidence factually sufficient.

Accordingly, we overrule appellant=s two issues and affirm the judgment of the trial court.

/s/ Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed July 19, 2007.

Panel consists of Justices Frost, Seymore, and Guzman.

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