Aderian Jerrel McBride v. The State of Texas--Appeal from 400th District Court of Fort Bend County

   NUMBERS 13-05-045-CR & 13-05-051-CR

   COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI  - EDINBURG

ADERIAN JERREL MCBRIDE, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 400th District Court of Fort Bend County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Ya ez and Castillo

Memorandum Opinion by Chief Justice Valdez

Appellant, Aderian Jerrel McBride, was convicted of aggravated robbery and was assessed punishment at ninety-nine years= imprisonment and a fine of $8,000. See Tex. Pen. Code Ann. ' 29.03(a)(2) (Vernon 2003). Appellant was also convicted of burglary of a habitation (with a deadly weapon) and assessed punishment at sixty-one years= imprisonment and a fine of $8,000. See Tex. Pen. Code Ann. ' 30.02(a)(3) (Vernon 2003). For the reasons that follow, we affirm the judgment of the trial court.

I. Background

On March 28, 2003, at about 10:00 or 11:00 a.m., Gilbert Cruz, a computer network engineer, returned home from work to notice his garage door was open and a red car was backed into his garage. He saw a young black male in the driver=s seat. Cruz then observed appellant exit his house with some computer equipment. Cruz proceeded to block the red car in his garage by pulling his car in front of the red car. Appellant allegedly removed a gun from a black pouch and pointed it at Cruz. Cruz, in fear of his life, allowed appellant to leave but pursued him in his car while calling the police on his cell phone. Cruz alleged that during the chase, appellant fired shots at him with the gun. Officer Santos of the Missouri City Police Department received a call from a dispatcher in reference to the chase. Santos and other officers from the police department began to pursue the vehicles. Santos did not see a weapon thrown from the appellant=s vehicle. During the chase, appellant=s vehicle jumped a curb, passed through an empty field, through a fence, and ended up crashing into the back of a house. Appellant fled and was found in a backyard of a house disrobing. When approached, appellant fled on foot again. Appellant and the driver were apprehended by the officers after being pursued through a water-filled bayou. Santos, along with the assistance of the other officers, checked the area for evidence, but, because appellant was not in sight during the entire chase, it was difficult to determine the exact route taken by appellant; as a result, some areas were not searched. The gun allegedly used in the incident was not recovered and there were no traces of gun residue on appellant.

By two issues, appellant asserts that the evidence is factually insufficient to support his convictions because no evidence was presented that he possessed or exhibited a deadly weapon. We address both contentions together.

II. Standard of Review

In a factual sufficiency review, the evidence is viewed in a neutral light, favoring neither party. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). In this neutral light, we determine whether Athe proof of guilt is so obviously weak as to undermine confidence in the jury=s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.@ See Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). A clearly wrong and unjust verdict occurs where the jury=s finding Ashocks the conscience@ or Aclearly demonstrates bias.@ Santellan v. State, 939 S.W.2d 155, 164-65 (Tex. Crim. App. 1997). We are authorized to disagree with the fact finder=s verdict even if probative evidence exists that supports the verdict. Id. at 164; see also Johnson, 23 S.W.3d at 7.

In a criminal conviction, sufficiency of the evidence is determined by the elements of the crime as defined by the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Adi v. State, 94 S.W.3d 124, 131 (Tex. App.BCorpus Christi 2002, pet. ref'd). The correct charge would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State=s burden of proof or unnecessarily restrict the State=s theories of liability, and adequately describes the particular offense for which the defendant was tried.@ Malik, 953 S.W.2d at 240.

III. Analysis

By two issues, appellant asserts that the evidence for both convictions is factually insufficient because no evidence was presented that he ever possessed or exhibited a gun. In support of his argument, appellant contends that there existed no physical evidence to corroborate his possession or exhibition of a gun.

Although the weapon was not recovered, the actual weapon used to commit an offense need not be introduced into evidence if the testimony of a witness describes the weapon and how it was used. See Wright v. State, 591 S.W.2d 458, 459 (Tex. Crim. App. 1979). At trial, Cruz testified that appellant removed a gun from a black pouch and pointed it at him; he further testified that appellant shot at him a couple of times. The Court of Criminal Appeals has held that testimony of a Agun@ is sufficient to support a jury=s finding that a deadly weapon was used. Id. The jury is the exclusive judge of the credibility of the witness and of the weight to be given to his testimony. Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994). The jury, as fact-finder, was entitled to believe or not to believe Cruz=s account. We iterate that our evaluation should not substantially intrude upon the jury=s role as the sole judge of the weight and credibility of witness testimony. See Santellan, 939 S.W.2d at 164.

Our review of the record as a whole, with consideration given to all of the evidence, both for and against the jury=s finding, does not reveal any evidence that would cause us to conclude that the proof of guilt is so obviously weak or is otherwise so greatly outweighed by contrary proof as to render appellant=s convictions wrong or manifestly unjust. Therefore, we hold that the evidence is factually sufficient to support the jury=s verdict for both convictions. Appellant=s first and second issues are overruled.

We affirm the judgment of the trial court.

ROGELIO VALDEZ

Chief Justice

Do not publish

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

Memorandum Opinion delivered and

filed this the 29th day of June, 2006.