ARTHUR ALLEN LEE, JR., Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion issued June 28, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-00195-CR
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ARTHUR ALLEN LEE, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 354th District Court
Hunt County, Texas
Trial Court Cause No. 22,364
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OPINION
Before Justices Wright, Bridges, and Mazzant
Opinion By Justice Bridges
        Arthur Allen Lee, Jr. appeals his capital murder conviction. A jury convicted appellant and sentenced him to life confinement. In four points of error, appellant argues the trial court erred in denying his motion for instructed verdict because a fatal variance existed between the indictment and the proof at trial, and the evidence was legally and factually insufficient to support his conviction. We affirm the trial court's judgment.
        On May 13, 2004, Hunt County deputy sheriff Tommy Grandfield was dispatched to a house where a body had been observed lying inside. When Grandfield reached the house, neighbors told him they had found the body, and Grandfield went inside to investigate. Grandfield discovered a woman's body lying bedside a bed, and he secured the scene.         Texas Ranger Jeffery Collins was called to assist in the crime scene investigation. Collins took photographs of the scene but, because of the amount of blood around the deceased woman's head, her injuries were not immediately apparent. Because there was no weapon near the body, Collins believed the woman had not committed suicide. At one point, a canine unit tracked a scent outside the home, and Collins followed along with them in hopes of finding a weapon. Collins had observed knife wounds in nearly every death scene he had investigated, and he anticipated finding a knife or “some kind of sharp instrument that was capable of causing the wounds” on the woman's body. In particular, Collins observed wounds on the woman's hands which were consistent with defensive wounds caused by a cutting instrument. However, Collins did not find a weapon.
        Viewing the crime scene, Collins got the impression that the murder was not part of a burglary because too many things of value were left behind. In the kitchen, only one drawer was open, and it had steak knives with a serrated edge lying right on top, and this indicated to Collins that the killer knew the house well. Collins thought the scene seemed to be “staged,” and this suggested the killer had a personal connection to the victim and was trying to throw investigators “off.” Collins spoke with neighbors and determined the deceased woman was Hazel Shores. Shores' nephew Darrell Rosenzweig was considered a suspect, but police found Rosenzweig walking beside the road and determined he had been in the Kaufman County jail at the time of the murder. However, Collins' investigation led him to consider appellant and his wife, Roxie, suspects because he learned appellant and Roxie lived with Shores and were drug users. Collins also determined that Shores' car was missing.
        Collins contacted Dallas police, who located and arrested appellant and Roxie. Appellant was in Shores' car when he was apprehended. Collins interviewed appellant, and appellant said Shores had loaned him her car so that he could go to Dallas and look for Roxie. Appellant stated Shores was fine when he left her. Appellant claimed “several black males there in Dallas” had stolen Shores' car from him and were gone for twelve hours. According to appellant, he recovered the car approximately five minutes before Dallas police stopped him. When arrested, appellant had blood on his jeans, shirt, and socks, and subsequent testing showed the blood was Shores'. Appellant also had a bloody towel and Shores' pocketbook in the car with him. Appellant was subsequently indicted for capital murder.
        At trial, appellant testified he stopped in at Shores' house the night she was killed and was looking for a cigarette in the dark in Shores' room. Appellant knew there were ashtrays in Shores' room, and he felt around in the dark looking for unfinished cigarettes. Appellant testified he “tripped over something” but thought it was a doll “because it was cushiony.” According to appellant, he must have gotten Shores' blood on his pants when he tripped. Still looking for cigarettes, appellant went outside to Shores' car to look in her ashtray. Despite the fact that Shores never left her keys in her car, when appellant opened the car door, he heard a beeping sound indicating that the keys were in the ignition. Appellant “figured [he would] go ahead and just take her car to Quinlan to buy some cigarettes. Appellant testified he ended up going looking for Roxie after he bought cigarettes in Terrell. At the conclusion of trial, a jury convicted appellant, and this appeal followed.
        We first address appellant's third and fourth points of error, in which appellant argues the trial court erred in overruling his motion for directed verdict because the evidence was legally and factually insufficient to prove he used a “knife” in the commission of the underlying offense. The penal code defines “knife” as “any bladed instrument that is capable of inflicting serious bodily injury or death by cutting or stabbing a person with the instrument.” Tex. Pen. Code Ann. § 46.01(7) (Vernon 2003). The indictment charged appellant with causing Shores' death by “cutting and/or stabbing her with a knife.” A complaint about overruling a motion for directed verdict is in actuality an attack upon the sufficiency of the evidence to sustain a conviction. McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997). When we review the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Turner v. State, 805 S.W.2d 423, 427 (Tex. Crim. App. 1991). The inquiry is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Turner, 805 S.W.2d at 427. The jury, as the sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000).
        In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). To reverse a case on a factual sufficiency challenge, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. at 417. In making a factual sufficiency review, a reviewing court is permitted to substitute its judgment for the jury's when considering credibility and weight determinations, but only “to a very limited degree.” Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006) (explaining factual sufficiency jurisprudence still requires appellate court to afford “due deference” to jury's determinations). Unless the record clearly reveals a different result is appropriate, an appellate court must defer to the jury's determination concerning what weight to give contradictory testimonial evidence. Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000).
        Here, Collins testified that one of the photographs he took of the crime scene showed a blood “cast off” that “would be indicative of a stab wound coming off of something thin like a knife or a screwdriver or something like that.” Although police did not recover the actual murder weapon, based on his observations Collins anticipated finding a knife or “some kind of sharp instrument that was capable of causing the wounds” on Shores' body. Medical examiner James Pinckard testified the autopsy on Shores' body revealed a total of five stab wounds and one incised wound. Pinckard testified the difference between a stab wound and an incised wound was that a stab wound is deeper than it is long and an incise wound is longer on the surface than it is deep. According to Pinckard, all of Shores' wounds were characteristic of being inflicted by a knife. Regarding one of Shores' injuries, Pinckard testified it was a “cutting-type wound” and a “stab wound” the shape of which was indicative of “either the knife or the body moving while the knife is inserted in the tissue thus creating the irregular shape.”
        On cross examination, Pinckard repeated his testimony that the wounds on Shores' body were “highly suggestive of a knife” but admitted they were consistent with “any sharp sided instrument.” Pinckard answered affirmatively that he “[took] that back about the knife necessarily.” Pinckard testified he was not able to testify “within a reasonable medical probability that it was a knife that caused these injuries and caused the death of Hazel Shores.” On redirect examination, however, Pinckard confirmed Shores' wounds were consistent with a knife wound. Numerous pictures were introduced into evidence showing Shores' stab wounds and showing, in detail, the incise wound apparently made by a blade. Autopsy photographs are relevant to show the identity of the victim and the manner and means of death. Williams v. State, 937 S.W.2d 479, 488 (Tex. Crim. App. 1996). Having reviewed the autopsy photos and the testimony in the record concerning the use of a knife to cause Shores' stab and incise wounds, we conclude the evidence is legally and factually sufficient to show a “knife” was used to cause the wounds. See Jackson, 443 U.S. at 319; Watson, 204 S.W.3d at 415. Accordingly, the trial court did not err in overruling appellant's motion for directed verdict on this basis. See McDuff, 939 S.W.2d at 613. We overrule appellant's third and fourth points of error.
        In his first and second points of error, appellant argues the trial court erred in overruling his motion for directed verdict because there was a fatal variance between the indictment and the proof at trial. Specifically, appellant points to the language in the indictment that he caused Shores' death by “cutting and/or stabbing her with a knife” and argues the evidence at trial did not prove he used a “knife.”
        Again, a variance occurs when there is a discrepancy between the allegations in the charging instrument and the proof at trial. Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001). In a variance situation, the State has proven the defendant guilty of a crime but has proven its commission in a manner that varies from the allegations in the charging instrument. Id. Variance claims are treated as sufficiency of the evidence problems. Id. at 247. A variance that is not prejudicial to a defendant's “substantial rights” is immaterial. Id. at 248. In determining whether a defendant's substantial rights have been prejudiced in this context, two questions are generally asked: whether the indictment, as written, informed the defendant of the charge against him sufficiently to allow him to prepare an adequate defense at trial, and whether prosecution under the deficiently drafted indictment would subject the defendant to the risk of being prosecuted later for the same crime. Id.
        Here, appellant argues the variance between the indictment and the proof at trial in this case both prevented him from preparing an adequate defense and subjected him to the risk of being prosecuted later for the same crime. However, we have already concluded the evidence is legally and factually sufficient to show appellant used a “knife” in the commission of the underlying offense, consistent with the language in the indictment charging that he caused Shores' death by “cutting and/or stabbing her with a knife.” Accordingly, no variance occurred in this case between the indictment and the proof at trial. See id. at 246. Again, because the evidence was sufficient to show appellant used a “knife,” the trial court did not err in overruling appellant's motion for directed verdict. See McDuff, 939 S.W.2d at 613. We overrule appellant's first and second points of error.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          DAVID L. BRIDGES
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
060195F.U05