ISMAIL SHABAZZ v. THE STATE OF TEXAS--Appeal from 411th District Court of Trinity County

NUMBER 13-05-237-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

___________________________________________________________________

 ISMAIL SHABAZZ, Appellant,

v.

 THE STATE OF TEXAS, Appellee.

___________________________________________________________________

On appeal from the 411th District Court

of Harris County, Texas.

___________________________________________________ _______________

MEMORANDUM OPINION

Before Justices Castillo, Garza, and Wittig[1]

Memorandum Opinion by Justice Wittig

Ismail Shabazz appeals his conviction of murder. A jury in Trinity county found him guilty and the court assessed punishment at confinement for fifty years in the Texas Department of Criminal JusticeBInstitutional Division. Appellant presents six issues, three challenging legal and factual sufficiency, one concerning an accomplice witness instruction, and two issues regarding the admission of extraneous offenses.

I. Legal and Factual Sufficiency of the Evidence

The procedural and factual background are known to the parties and will not be reiterated. See Tex. R. App. P. 47.4. In determining the legal sufficiency of the evidence, we review the evidence in a light most favorable to the verdict to determine whether any rational fact finder could have found the essential elements of the criminal offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App.2004). Although our analysis considers all evidence presented at trial, we may not re weigh the evidence or substitute our judgment for that of the fact finder. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App.2000).

We begin the factual sufficiency review with the presumption that the evidence supporting the jury's verdict is legally sufficient. Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App.1996). In conducting a factual sufficiency review, we view all of the evidence in a neutral light, without favoring either party. Johnson, 23 S.W.3d 1, 6 7 (Tex. Crim. App. 2000). We will set aside the verdict only if (1) the evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt, or (2) contrary evidence, if present, is strong enough that the beyond a reasonable doubt standard could not have been met. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004); see Zuliani v. State, 97 S.W.3d 589, 593 94 (Tex. Crim. App. 2003); Johnson, 23 S.W.3d at 11. When reviewing the evidence, we must give appropriate deference to the jury findings in order to prevent intruding on the fact finder's role as the sole judge of the weight and credibility of the evidence. Johnson, 23 S.W.3d at 7. Therefore, unless the record clearly reveals a different result is appropriate, we "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." Id. at 8.

The deceased, Brent Cunningham, did not appear at his birthday party. The police responded, and, through their investigation, found Cunningham=s body behind the Head Start building at approximately two o=clock in the morning. He had been shot four times and his body partially hidden. The autopsy revealed that two of the gunshots would have been fatal and that the deceased had been beaten, most likely with a firearm. The firearm used in the shooting was either a .38, a 9mm, a .357 or .380.

When appellant was arrested, he had an outstanding warrant charging him with aggravated assault with a firearm against the same victim, Cunningham. Witnesses testified they saw appellant and the victim in the area of the murder scene on the evening of the homicide. Three gunshots were heard in the area of the Head Start building around 6:30 or 7:00 pm. Later that evening appellant told a witness that AI messed up.@

Markus English testified that he, appellant, and others had been smoking marijuana. Appellant was seen crouching down behind a bush waiting for the deceased. English saw appellant hit the deceased on the side of the head and drag him behind the Head Start building. Later, English heard two or three shots.

A cell mate of appellant, Calvin Gardner, testified that appellant admitted killing Cunningham (Akilling the dude@) behind a daycare center.

Section 19.02 of the penal code provides that a person commits the offense of murder if the person (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. Pen. Code Ann. ' 19.02(b)(1), (2) (Vernon 2003). We hold that any rational trier of fact could have found the essential elements of the offense of murder beyond a reasonable doubt. Contrary to appellant=s contentions, the evidence of intent is easily inferred from the facts of the beating, multiple gun shot wounds, and appellant=s admissions. We conclude the evidence is legally sufficient to support the conviction for murder. See Jackson 443 U.S. at 319.

Appellant presented one witness who testified that Cunningham=s grandfather was angry with him, thus suggesting an alternative suspect for the murder. Appellant also argues there was no physical evidence connecting him to the crime because there was a rain after the killing and the weapon was never found. Appellant further argues that many of the details of appellant=s alleged admissions to his cell mate were inconsistent with the facts and thus tainted the cell mate=s veracity. Other inconsistencies relating to the incident included the number of shots heard and the time periods that various witnesses saw appellant at or near the scene. However, we do not find that the evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt, or that the contrary evidence is strong enough that the beyond a reasonable doubt standard was not met. See Zuniga, 144 S.W.3d 484-85. We overrule appellant=s issues pertaining to the legal and factual sufficiency of the evidence.

II. Corroboration and Instruction

Appellant contends the evidence does not corroborate the accomplice testimony of Marcus English and that he was entitled to an accomplice witness instruction in the charge.

Appellant argues that Marcus English is an accomplice as a matter of fact. While the State disagrees, the argument is immaterial because the trial court did instruct on this matter. Assuming without deciding that English was an accomplice, corroboration would be necessary. Cathey v. State, 992 S.W.2d 460 (Tex. Crim. App. 1999) holds:

Under Article 38.14, a conviction cannot stand on accomplice testimony unless it is corroborated by other evidence tending to connect the defendant with the offense; the evidence is insufficient if it proves merely the commission of the offense. It is not necessary that the corroborating evidence directly connect the defendant to the crime or that it be sufficient by itself to establish guilt; it need only tend to connect the defendant to the offense. If the combined weight of the non accomplice evidence tends to connect the defendant to the offense, the requirement of Article 38.14 has been fulfilled.

Id. at 462 (citations omitted). Cathey informs us that legal and factual sufficiency standards do not apply to a review of accomplice witness testimony under article 38.14. Id. Instead, A[t]he burden established by the Legislature is that there be other evidence tending to connect the defendant with the offense.@ Id. More than ample corroborative evidence is found in the testimony of eyewitnesses placing appellant at or near the scene, the autopsy report, and appellant=s various admissions. And, because the trial court did instruct on corroboration, we find no merit in either of these arguments by appellant regarding corroboration. We overrule appellant=s issue regarding an accomplice witness instruction.

III. Extraneous Offenses

We review the trial court's admission or exclusion of evidence under an abuse of discretion standard. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); see also Goff v. State, 931 S.W.2d 537, 553 (Tex. Crim. App.1996). A trial court has wide discretion in its decision to admit or exclude evidence. Guzman, 955 S.W.2d at 89; Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim. App. 1992). A trial court's evidentiary ruling should not be disturbed on appeal unless it is an abuse of discretion. Goff, 931 S.W.2d at 553; Erdman v. State, 861 S.W.2d 890, 893 (Tex. Crim. App. 1993). If the trial court's ruling is within the reasonable zone of disagreement, then an appellate court should not disturb it. Pierre v. State, 2 S.W.3d 439, 442 (Tex. App.BHouston [1st Dist.] 1999, pet. ref'd) (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990)).

Appellant argues error because of the admission of three extraneous offenses in the guilt-innocence phase of his trial. One incident involved appellant=s shooting at Marcus Smith. Both the State and the defense asked several questions concerning this incident. The testimony elicited by both sides was admitted without objection. Error, if any, was not preserved. To preserve a complaint for appellate review, a party must present a timely request, objection, or motion to the trial court stating the specific grounds for the desired ruling if the specific grounds are not apparent from the context. Tex. R. App. P. 33.1(a); Blue v. State, 41 S.W.3d 129, 131 (Tex. Crim. App. 2000). Generally, a party's failure to timely and specifically object at trial forfeits any error. See Blue, 41 S.W.3d at 131.

Another incident involved an unrelated alleged murder. This testimony was first elicited by defense counsel at trial during the cross-examination of Calvin Gardner. Again, no objection was made to the State=s brief follow-up questions. The name of the victim was not then introduced. Later, during the State=s rebuttal evidence, Kevin Pierce was recalled as a witness and testified that Norris Armstead was shot and killed. No one was charged with the offense. On cross examination by the defense, Pierce admitted that there was no probable cause to arrest any suspect. While the materiality of this testimony is problematic (how is an unindicted murder with no suspects relevant?), the error, if any, is harmless. See Potier v. State, 68 S.W.3d 657, 663 (Tex. Crim. App. 2002) (erroneous evidentiary rulings rarely rise to the level of denying the fundamental constitutional rights to present a meaningful defense). Tex R App. P 44.2(b). Appellant himself injected this killing in his cross examination of Gardner. Appellant cannot complain of invited error. See Prystash v. State, 3 S.W.3d 522, 531 (Tex. Crim. App. 1999) (the law of invited error estops a party from making an appellate error of an action it induced).

Regarding the third extraneous offense, appellant argues that his prior charge of aggravated assault against the same victim in this case was inadmissable. The State argues the evidence showed appellant=s relationship with the deceased. Two witnesses testified that appellant and Cunningham were fighting thirty-six days before Cunningham was murdered. The witnesses saw appellant chase Cunningham and heard a gun shot. The witnesses saw appellant with a weapon pointed at Cunningham=s head. We agree that this evidence was admissible under either (1) article 38.36 of the code of criminal procedure to show the prior relationship between appellant and the victim, or admissible under (2) Texas Rule of Evidence 404(b) to show motive, intent, and identity. See Tex. Code Crim. Proc. Ann. art. 38.36 (Vernon 2005); Tex. R. Evid. 404(b). Appellant presents no reversible error under his last two issues concerning the extraneous offenses. We overrule both of appellant=s issues pertaining to the admission of extraneous offenses.

We affirm the judgment of the trial court.

DON WITTIG

Justice

Do not publish.

Tex. R. App. P.47.2(b).

Memorandum Opinion delivered and

filed this 11th day of May, 2006.

[1]Retired Fourteenth Court of Appeals Justice Don Wittig, assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to the government code. See Tex. Gov=t Code Ann. ' 74.003 (Vernon 2005).