JONATHAN DERRELL CAREY, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed; Opinion issued March 7, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-00033-CR
............................
JONATHAN DERRELL CAREY, Appellant
        V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 363rd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F04-57977-W
.............................................................
OPINION
Before Chief Justice Thomas and Justices FitzGerald and Maloney   See Footnote 1 
Opinion By Justice Maloney
        The jury convicted Jonathan Derrell Carey of capital murder and the trial court assessed the mandatory life sentence. In three points of error,   See Footnote 2  appellant complains the evidence is factually insufficient to support a jury verdict that he intentionally and knowingly caused the death of the deceased. We affirm the trial court's judgment.
BACKGROUND
 
        The Grand Jury indicted appellant for causing the death of the clerk of Mr. K's Food Store (Mr. K's) while in the course of committing or attempting to commit robbery. Mr. K's was a convenience store that also cashed checks. Only one clerk, who was the manager's son, was in the store when appellant entered Mr. K's. Appellant had the clerk empty the cash registers and then appellant ordered the clerk to the back office where the store kept the safe. There, appellant shot and killed the clerk. A videotape captured the early portions of the robbery. Some six months later, John Mahaffey, a Camden, Arkansas police officer stopped appellant for a traffic violation. Maffaey later determined that his department had received a Texas felony warrant for appellant.
THE EVIDENCE
1. Scott Laminack
 
        Laminack, a Dallas Fire Department paramedic, testified that he examined the deceased at the scene. He found the deceased behind a door in the back office. The deceased had lost a great deal of blood and had no pulse. Although Laminack found the entry wound above the deceased's left ear, he found no exit wound.
2. Rahim Lakhani
 
        Lakhani, the deceased's father, testified that he had been the manager of Mr. K's for forty years. The Store had a big, check cashing business. His son would have opened Mr. K's at 6:00 a.m., but Lakhani did not usually arrive until about 10:00 a.m. When he arrived, he found two of the cash register drawers open and empty. He determined that $5,588 was missing-$800 to $900 in cash and checks that Mr. K's had cashed.
3. Dan Wojcik
 
        Wojcik, a Dallas Police Sergeant, testified at the time of the offense, he was a crime scene detective. As such, he responded to major crimes, collected evidence, and processed crime scenes. He was dispatched to Mr. K's where he discovered both spent casings and unfired bullets from a .45 caliber gun as well as a videotape and the deceased's “cell phone.”
        Wojcik also found a pack of cigarettes on the counter.   See Footnote 3  He testified that anyone entering a store to commit a robbery frequently asks for cigarettes “to get close to” the intended robbery victim. He processed the package as well as the carton behind the register for fingerprints but, found none.
        The videotape seemed out of place. Wojcik found no blood on the video tape. He opined that either the clerk took it out of the recorder or the shooter removed it and forgot to take it with him. But, he believed that the shooter took it out of the security system, laid it down, and forgot to take it with him. When he viewed the videotape, it confirmed what he “pictured” as taking place in the office. Wojcik did not dust the videotape for fingerprints because the powder could have destroyed the evidence on the videotape.
        Wojcik found both blood smears and splatter at the scene. The position of the blood smears indicated that the clerk “did not die right away.” Rather, Wojcik believed that the clerk moved around looking for a telephone.
3. Charles Clow
 
        Clow, a firearms and tool marks examiner for the Southwest Institute of Forensic Sciences (SWIFS), testified the spent cartridge casings found at the scene were all fired from the same weapon. Additionally, he determined that one of the unfired cartridges found at the scene was cycled through the same gun as the spent cartridge casings. Another unfired cartridge had some tool marks that matched the other cartridge casings, but he was unable to say the same gun fired this casing as the other casings. Clow, however, could not approximate where the shooter would have stood when he fired his gun.
4. John Mahaffey
 
        Mahaffey, a Camden Police Officer, testified his department handed out a felony warrant with appellant's photograph attached. Six months later, Mahaffey was patroling U.S. Highway 79 within Camden's city limits when he clocked and stopped a speeding Suburban. The driver carried no valid identification but, identified himself as Jason Utsey and gave Utsey's date of birth. Mahaffey had his dispatch run Utsey's name and date of birth through the Arkansas Crime Information Center. That check returned the information that Utsey's license was suspended. Mahaffey arrested the driver and placed him in the patrol car. A back-up officer, who knew Utsey, arrived at the scene and told Mahaffey that the arrested driver was not Jason Utsey. They took the driver to their police station and determined that he was wanted on a capital murder warrant out of Texas.
5. John Davison
 
        Davison, a Dallas Police Homicide Detective, testified that a Crime Stoppers segment on the news showed the videotape found at Mr. K's. After the jury saw the videotape, the State went through the videotape and Davidson testified to its contents. He testified that the videotape showed appellant entering Mr. K's with his hood on, looking around, and then removing his hood. Next the deceased and appellant are behind the counter at the cash register and then move off camera. Crime Stoppers also aired still shots taken from the videotape. This showing lead to appellant's being identified.
        When Davison received information that the Camden police had arrested appellant, he traveled to Arkansas to interview appellant. He showed appellant the still photographs and added that they had him on tape. Davison told appellant his friends said, “how stupid he was for going into the store with nothing on his head.” It was then that appellant dropped his head and began to tell Davison what happened. Davison wrote down appellant's statement and appellant signed the statement and initialed the warnings.
        Appellant's statement confirmed that he entered Mr. K's with a gun and intended to rob the clerk. Appellant first asked the clerk for a pack of Newports and then went to get a Powerade. Next, he walked behind the counter, showed his gun, and demanded all the money. Appellant told the deceased that if he gave him all the money, he would not get hurt. Appellant knew that Mr. K's cashed checks, so they went to the back office. The clerk got some money from the safe and gave it to appellant. The clerk grabbed appellant's jacket as he turned to leave. Appellant then fired three shots, but the next shot “hung up.”
        Appellant's statement showed he went to the store because his rent was due and both he and his mother were hungry. He maintained he never intended to shoot anybody
6. Sheila Spotswood
 
        Spotswood, a Dallas County Medical Examiner, testified she performed the autopsy on the deceased. One bullet entered on the right side of the deceased's face and traveled front to back. This shot was superficial, not fatal, and would have caused some bleeding. Another bullet entered just above the top of the left ear and slightly in front of the ear, traveled left to right, and ended up in the deceased's right shoulder. The pathway would be consistent with the shooter being above the deceased-either holding his arm up or the shooter standing and the deceased on his knees. Both wounds had the same type of sparse stippling. The stippling around the wound indicated that the gun was fired between six inches and three feet from the wound.
        On cross, Spotswood explained that a small, dense stippling indicates the gun was closer to the deceased while a sparse stippling indicates the gun was within a broad range. Soot around the wound indicates that the gun was fired between a few inches and a foot from the deceased. Although she found no soot, she explained the range between stippling and soot could overlap between six inches and one foot, depending on the gun and ammunition.   See Footnote 4  But, the lack of soot indicated the gun was not “consistent with contact.” The superficial wound traveled front to back, but the fatal wound traveled right and downward, from the “middle of the head [to] the middle of the shoulder.” The fatal wound was consistent with the clerk's head, if turned away from the shooter, being turned only slightly. Spotswood admitted that she could only tell the relationship between the gun and the clerk, but the fatal wound was not inconsistent with a struggle and the shooter blindly firing.
7. Appellant
 
        Appellant did not testify. Nor did he call any witnesses in the guilt-innocent stage of trial. Rather, his confession admitted before the jury and read to them by Davison supplied appellant's version of the events as they occurred at Mr. K's on the date in question.
SUFFICIENCY OF THE EVIDENCE
 
Appellant argues that this Court must acquit appellant because no rational trier of fact could have found appellant guilty of capital murder because if he is guilty, he is only guilty of either murder or aggravated robbery. Additionally, appellant argues that factually insufficient evidence exists to show that appellant intentionally and knowingly caused the death of the deceased because appellant only entered the store to rob, not to commit murder.
The State responds that appellant entered the store with a loaded gun and no disguise to rob the deceased. And in appellant's own statement, he admitted he only stopped shooting because his gun jammed.
1. Standard of Review
a. Legal Sufficiency
 
In evaluating the legal sufficiency of the evidence, we view all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The factfinder is the exclusive judge of the witnesses' credibility and of their testimony's weight, and it is within the factfinder's exclusive province to resolve any evidentiary conflicts. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). A claim of legal insufficiency is, in effect, an argument that the case should never have even been presented. Id.
b. Factual Sufficiency
 
In reviewing the factual sufficiency of evidence to support a verdict, we answer only one question-“[c]onsidering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt.” Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004).   See Footnote 5  We determine the factual sufficiency of evidence by (1) considering if the evidence, although legally sufficient to support the verdict, is “'so weak' that the jury's verdict seems 'clearly wrong and manifestly unjust'” and (2) asking whether “considering conflicting evidence, the jury's verdict, though legally sufficient,” is nevertheless against the great weight and preponderance of the evidence. Watson, 204 S.W.3d at 414-15 (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). In doing so, we must consider the evidence appellant contends most undermines the jury's verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003) In conducting a factually sufficient review, we must not “substantially intrude upon” the factfinder's role as the sole judge of the evidence's weight and the testimony's credibility. See Johnson, 23 S.W.3d at 7; see also Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979). This Court cannot conclude a conviction is “clearly wrong”or “manifestly unjust” simply because we would have voted to acquit. Watson, 204 S.W.3d at 417. We must defer to the jury's decisions on credibility and weight. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003).
Both legal and factual sufficiency review require that we consider all the evidence. Marshall v State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2007) (citing Watson, 204 S.W.3d at 414). Although a factual sufficiency review is barely different from a legal sufficiency review, Watson requires an appellate court to defer to the jury's determining of credibility and weight in the latter and allows, but limits, its ability to substitute its judgment in the former. Id. Conflicting evidence does not justify a new trial just because it conflicts with the jury's resolution of that conflict. See id. at 417. Some objective basis must exist to show that the jury's verdict is against the great weight of the evidence. Id.
2. Applicable Law
 
A person commits capital murder if he intentionally or knowingly causes the death of an individual in the course of committing a robbery. Tex. Pen. Code Ann. § 19.03(a)(2) (Vernon Supp. 2006). A person acts intentionally when it is his conscious objective or desire to engage in the conduct or cause the result. Tex. Pen. Code Ann. §6.03(a) (Vernon 2003). We infer intent to kill from the use of a deadly weapon in a deadly manner. Adanandus v. State, 866 S.W.2d 210, 215 (Tex. Crim. App. 1993); see also Johnson v. State, 959 S.W.2d 284, 288 (Tex. App.-Dallas 1997, pet. ref'd). A pistol is a deadly weapon per se. See Tex. Pen. Code Ann. § 1.07(17) (Vernon Supp. 2006).
 
3. Application of Law to the Facts
 
Although appellant frames his three points of error as separate points, he argues all three together alleging the evidence is factually insufficient to show he intentionally and knowingly caused the death of the clerk. Appellant refers to the legal sufficiency of the evidence only in questioning whether the evidence is factually sufficient to show he intentionally or knowingly intended to kill the deceased. In the same argument, he submits that at best he is guilty of murder or aggravated robbery-thus, agreeing the evidence sufficiently shows that he caused the death of the deceased and he used or exhibited a weapon during a robbery.
After reviewing all the evidence in the light most favorable to the jury's finding of guilt, we conclude the evidence substantiates appellant's guilt beyond a reasonable doubt. We now turn to the evidence appellant claims supports his contention the evidence is factually insufficient to support his intent to cause the clerk's death, but shows he committed a lesser included offense.
It is uncontested that appellant shot and killed the deceased. Appellant, in his confession, admits that he entered Mr. K's to commit a robbery because he and his mother were hungry. Appellant's brief summarizes all of the witnesses' testimony, but in his analysis, only relies on appellant's statement he “never intended” to shoot the deceased, just to “rob” the store. Appellant, in his brief, argues the gun went off when the clerk grabbed him from behind. But appellant in his confession, stated that when the clerk grabbed him from behind, appellant “threw his arm off my jacket with my left arm”and fired off three shots, not stopping until his gun jammed.
The medical examiner's autopsy showed the fatal bullet entered above and in front of the clerk's left ear and ended up in his right shoulder. This, she testified indicated the fatal shot came from above the clerk and traveled in a straight line. The sparse stippling around the wound indicated the gun was fired at a distance somewhere between six inches and three feet from the clerk.
Appellant ran, got rid of the gun, and left the State. When stopped by the Arkansas officer, appellant gave him a false name. We are guided by the decisions in Watson and the Marshall to consider all the evidence in a neutral light, measuring it against the charge, and giving due deference to the jury's role. In doing so, we cannot say the finding of guilt beyond a reasonable doubt and against the lesser included offenses of aggravated robbery and murder is so contrary to the overwhelming weight of the evidence to be clearly wrong and unjust. We conclude the State's evidence taken alone is neither too weak to support the jury's finding nor is the proof of guilt, although adequate if taken alone, against the great weight and preponderance of the evidence. The evidence was factually sufficient to support the jury's findings. We overrule appellant's three points of error.
We affirm the trial court's judgment.
 
 
 
 
                                                          
                                                          FRANCES MALONEY
                                                          JUSTICE, ASSIGNED
Do Not Publish
Tex. R. App. P. 47
 
Footnote 1 The Honorable Frances J. Maloney, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Footnote 2 We are aware that this Court now resolves issues or points, but because appellant's brief refers to points of error, we use the term “point of error” in this opinion. See Tex. R. App. P. 38.1(e).
Footnote 3 John Davison confirmed that a pack of Newports was found on Mr. K's counter
Footnote 4 The police never recovered the weapon.
Footnote 5 The Watson court disavowed Zuniga “to the extent” that it allowed an appellate court “to overturn a jury verdict and remand for new trial when the greater weight and preponderance of the evidence actually favors conviction.” Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006).