Kenneth W. Cunningham v. The State of Texas--Appeal from 226th Judicial District Court of Bexar County

DISSENTING OPINION
No. 04-96-01020-CR
Kenneth CUNNINGHAM,
Appellant
v.
The STATE of Texas,
Appellee
From the 226th Judicial District Court, Bexar County, Texas
Trial Court No. 94-CR-7236-B
Honorable Sid L. Harle, Judge Presiding

Opinion by: Tom Rickhoff, Justice

Dissenting opinion by: Sarah B. Duncan, Justice

Sitting: Tom Rickhoff, Justice

Alma L. L pez, Justice

Sarah B. Duncan, Justice

Delivered and Filed: October 14, 1998

As a reviewing court, we owe a responsibility to the jury to indulge all reasonable inferences in favor of its verdict. But we also owe a responsibility to criminal defendants to ensure that convictions are based upon evidence that is legally sufficient under the United States Constitution. Kenneth Cunningham was convicted on less evidence than our Constitution requires. I would therefore reverse the trial court's judgment and render a judgment of acquittal.

Factual and Procedural Background

One Sunday evening in late July 1994, Cunningham, a member of a gang called the Dope Overthrowing Gangsters, was standing inside the entrance to Martin Luther King Park with or near Frederick Burkes and Cunningham's fellow gang members Daniel Griffin, Terry Battle, and Frederick Carter. Suddenly, several of the men opened fire on a green Cadillac Fleetwood stopped at a stop light in front of the park. Inside the Cadillac were rival gang members Darrell and William Bee and Clinton Lee, as well as Lee's uncle and the driver of the car, Delvage McIntyre.

Park Ranger Gabriel Escobedo, Jr. heard the shots, turned in their direction, and saw five to seven young black males. Although Escobedo testified he "believed" all of the men had their right arms extended, he further testified he was able to see only three guns. Lee saw Cunningham run with the shooters and Burkes towards the creek in the back of the park, and Darrell Bee saw what looked to him like a gun in Cunningham's hand after the shooting when he was running away. Escobedo also saw the five or six black males run towards the back of the park. By that point, however, everyone in the park--and there were hundreds or even thousands--was running for cover.

After a chase that, tragically, resulted in the death of Park Ranger Paul Pytel, Police Officer Carlos Trevino apprehended Burkes and Battle, who surrendered an empty .9 millimeter semi-automatic pistol. Later, Griffin's body was found in the bottom of the creek. A few feet away, a double action Ruger automatic handgun was found. The Ruger was loaded with one round in the chamber and a magazine containing fourteen rounds. An empty clip was found in Griffin's pocket. Forensic testing established the gun found near Griffin's body fired the twenty spent shell casings found at the scene of the shooting.

The Bees and Lee saw Cunningham standing with the shooters at the time of the shooting, but they did not identify him or Burkes the night of the shooting or name him in their written statements. Cunningham was not mentioned, in fact, until several days later, when Officer Rene Martinez showed all four occupants of the Cadillac a single picture of Griffin and two photo arrays, one of which included pictures of Carter and Cunningham and the other of which included a picture of Cunningham. All four occupants of the Cadillac identified Griffin, Carter, and Cunningham as being "involved in the aggravated assault and the shooting itself." The State charged Cunningham with four counts of aggravated assault with a deadly weapon by "knowingly and intentionally threaten[ing] bodily injury ... by aiming and shooting [a firearm] at and in the direction" of the four occupants of the Cadillac.

A few days before trial, the two prosecutors involved in the case met with Lee. At that meeting, Lee apparently said Cunningham "shot at" him; he was then reminded by the two prosecutors that he had not included this fact in his earlier statement. At trial, Lee would identify only Griffin, Battle, and Carter as shooters. The State then began to treat Lee as an adverse witness, questioning him about his oral statement a few days earlier. Lee explained this statement was based upon his assumption that Cunningham would also have been shooting because he was with his fellow gang members and he would not have wanted to look like a "punk." In short, despite extensive questioning by the State, Lee insisted at trial he saw only three shooters--Griffin, Battle, and Carter. William and Darrell Bee also insisted they saw only the three shooters identified by Lee; however, the Bees testified they believed there must have been more because there were so many shots. McIntyre did not see Cunningham and identified the shooters as only Griffin and Battle. Like the Bees, however, he believed there must have been more than two shooters.

The jury also heard an audio recording of the exchange between Pytel, in pursuit, the dispatcher, and later Escobedo. In this exchange, Pytel initially said he was chasing "about six black males," and he described one. Seconds later, Pytel said "there may be five of them" or "there may be as many as five of them," and he "believe[d] all of them [were] armed."

The court's charge instructed the jury that it could find Cunningham guilty of the charged offenses under the law of parties. During its deliberations, the jury asked for a tape recorder to listen again to the tape recording of Pytel's conversation with the dispatcher, and this request was granted. The jury also asked to hear again "Darrell Bee's testimony regarding when he thought he saw a gun," and this request was granted. Approximately two hours later, the jury found Cunningham guilty on all counts. Cunningham was thereafter sentenced by the trial court to ten years on each count, with the sentences to run concurrently.

Standard of Review

To determine whether the evidence is legally sufficient to support a criminal conviction, we review the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979).

Discussion

Cunningham was charged with aggravated assault by knowingly and intentionally threatening imminent bodily injury to the occupants of the Cadillac by aiming and shooting a gun at and in their direction. See Tex. Penal Code Ann. 22.01(a)(2), 22.02(a)(2) (Vernon 1994). However, there is no direct or circumstantial evidence Cunningham aimed or fired a gun during the commission of the offense and no evidence from which this fact can rationally be inferred. Therefore, the conviction cannot be sustained on the theory Cunningham acted as a principal actor in the commission of the offense. However, the court's charge also authorized conviction under the law of parties. See id. 7.01, 7.02(a)(2). We must therefore determine whether there is legally sufficient evidence to support the jury's finding of guilt under this theory.

Under the law of parties, a person may be convicted of the offense if he "is physically present at the commission of the offense, and encourages the commission of the offense either by words or other agreement." Burdine v. State, 719 S.W.2d 309, 315 (Tex. Crim. App. 1986), cert. denied, 480 U.S. 940 (1987). "The evidence must show that at the time of the offense the parties were acting together, each contributing some part towards the execution of their common purpose." Id. In determining whether a defendant participated in an offense as a party, the court may examine the events occurring before, during, and after the commission of the offense and may rely on the defendant's actions that show his understanding and common design to commit the offense. Beier v. State, 687 S.W.2d 2, 4 (Tex. Crim. App. 1985). However, acts committed after the offense do not establish liability as a party. Morrison v. State, 608 S.W.2d 233, 235 (Tex. Crim. App. [Panel Op.] 1980); see Urtado v. State, 605 S.W.2d 907, 912 (Tex. Crim. App. [Panel Op.] 1980); Pesina v. State, 949 S.W.2d 374, 382-85 (Tex. App.--San Antonio 1997, no pet.); Guillory v. State, 877 S.W.2d 71, 74 (Tex. App.--Houston [1st Dist.] 1994, pet. ref'd).

There is no question Cunningham was present during the commission of the offense and standing with or near the three identified shooters. But there is no direct evidence Cunningham was involved with the shooters in a common design; no direct evidence he in any way encouraged or assisted in the commission of the offense; and no direct evidence he intended to do so. Accordingly, we can sustain Cunningham's conviction only if a rational juror could infer his guilt (he encouraged the commission of the aggravated assault) from the circumstantial evidence, and this inference established his guilt beyond a reasonable doubt. It is at the second of these two junctures that the majority and I disagree.

For analytical purposes, I will concede the majority's holding: a rational juror could infer that "Cunningham at least encouraged commission of the aggravated assault" from: (1) "Cunningham's membership in the Dope Overthrowing Gansters"; (2) "Pytel's posthumous testimony," i.e., he saw five or six black males, all of whom he "believed" were armed, running towards the back of the creek (3) "Darrell Bee's testimony that Cunningham was armed as he fled the scene"; and (4) "Escobedo's testimony that he saw five to seven men standing with arms outstretched, three of them with guns." But I strongly disagree that this "inference," which I frankly believe is nothing more than speculation, constitutes sufficient evidence to convince a rational person beyond a reasonable doubt that Cunningham encouraged the commission of the aggravated assault on the occupants of the Cadillac. At best, this "inference" is "some evidence" to support the jury's finding of guilt. But it cannot "'seriously be argued that such a 'modicum' of evidence could by itself rationally support a conviction beyond a reasonable doubt.'" Amunson v. State, 928 S.W.2d 601, 611 (Tex. App.--San Antonio 1996, pet. ref'd) (Duncan, J., dissenting) (quoting Jackson v. Virginia, 443 U.S. 307, 320 (1979)).

Conclusion

The majority's holding encompasses the first aspect of the Jackson standard of review--there is some evidence from which a rational juror could infer that Cunningham encouraged the commission of the aggravated assault. But the majority fails to even reach the second aspect of the Jackson standard--whether this evidence is sufficient to justify a rational conclusion of guilt beyond a reasonable doubt. I would hold the inference is legally insufficient to support Cunningham's conviction beyond a reasonable doubt and therefore reverse the trial court's judgment and render a judgment of acquittal.

Sarah B. Duncan, Justice

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