MONTEZ MONTELL EARL, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued December 7, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-00799-CR
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MONTEZ MONTELL EARL, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 3
Dallas County, Texas
Trial Court Cause No. F04-56485-J
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OPINION
Before Justices Whittington, Wright and FitzGerald
Opinion By Justice Whittington
        Montez Montell Earl appeals his conviction for murder. After finding appellant guilty and that he used or exhibited a deadly weapon during the commission of the offense, the jury assessed punishment at thirty-six and one-half years' confinement. In two issues, appellant claims the evidence is legally and factually insufficient to support his conviction. In two additional issues, he contends the trial judge erred in admitting certain evidence and failing to adequately instruct the jury on accomplice witness testimony. We affirm the trial court's judgment.
        On September 15, 2004, police responded to a 9-1-1 call. When they arrived, they discovered Christopher Pate, who had been shot nine times, and the body of Tyrone Deadmon. The police later arrested appellant and charged him with Deadmon's murder. Following a five-day trial, appellant was convicted. This appeal ensued.
        In his first and second issues, appellant claims the evidence is legally and factually insufficient to support his conviction. Under these issues, appellant argues “there are too many inconsistencies in this case to provide the jurors with enough information to determine whether each element is true beyond a reasonable doubt.”
        In addressing legal sufficiency complaints, we apply well-known standards: “we consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt.” Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The jury, as sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all of the evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). As the reviewing court, we must give deference to “the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Hooper, 214 S.W.3d at 13 (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)).
        Evidence that rationally supports a guilty verdict beyond a reasonable doubt under the legal sufficiency standard can still be factually insufficient. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), cert. denied, 128 S. Ct. 87 (2007). Evidence is factually insufficient to support the verdict if it is clearly wrong or manifestly unjust or against the great weight and preponderance of the evidence. Marshall, 210 S.W.3d at 625. The difference between the legal and factual sufficiency standards is that “the former requires the reviewing court to defer to the jury's credibility and weight determinations while the latter permits the reviewing court to substitute its judgment for the jury's on these questions 'albeit to a very limited degree.'” Rollerson, 227 S.W.3d at 724 (quoting Marshall, 210 S.W.3d at 624); Watson v. State, 204 S.W.3d 404, 416-17 (Tex. Crim. App. 2006)). A “factual-sufficiency review is 'barely distinguishable' from a Jackson v. Virginia legal sufficiency review.” Rollerson, 227 S.W.3d at 724 (quoting Watson, 204 S.W.3d at 415).
        A person commits the offense of murder if he intentionally or knowingly causes the death of an individual. Tex. Pen. Code Ann. § 19.02(b)(1) (Vernon 2003). A person is criminally responsible as a party to the offense of murder if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or both. Tex. Pen. Code Ann. § 7.01(a) (Vernon 2003). A person is criminally responsible for an offense committed by the conduct of another if, acting with the intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Tex. Pen. Code Ann. § 7.02(a)(2) (Vernon 2003). The evidence is sufficient to support a conviction under the law of parties where the defendant is physically present at the commission of the offense and encourages the commission of the offense either by words or other agreement. Glassey v. State, 117 S.W.3d 424, 430 (Tex. App.-Fort Worth 2003, no pet.) (citing Burdine v. State, 719 S.W.2d 309, 315 (Tex. Crim. App. 1986)); see Michel v. State, 834 S.W.2d 64, 67 (Tex. App.-Dallas 1992, no pet.) (State must show that, at time of offense, parties were acting together, each contributing to common purpose). In determining whether a defendant participated in an offense as a party, the jury may examine the events occurring before, during, and after the commission of the offense, and may rely on actions of the defendant that show an understanding and common design to commit the offense. See Burdine , 719 S.W.2d at 315. The fact finder can infer the necessary intent from the acts, words, and conduct of the accused. Beltran v. State, 593 S.W.2d 688, 689 (Tex. Crim. App. [Panel Op.] 1980). Mere presence of the defendant at the scene of the offense will not support a conviction; however, it is a circumstance which, combined with other facts, may show the defendant was a participant. See Beardsley v. State, 738 S.W.2d 681, 685 (Tex. Crim. App. 1987) (citing Valdez v. State, 623 S.W.2d 317, 321 (Tex. Crim. App. [Panel Op.] 1981) (op. on reh'g)); Edwards v. State, 106 S.W.3d 833, 842 (Tex. App.-Dallas 2003, pet. ref'd) (mere presence is not enough but presence is circumstance tending to prove guilt which, combined with other facts, may suffice to show accused was participant).
        In this case, the jury was instructed
 
[I]f you find from the evidence beyond a reasonable doubt that on or about the 15th day of September, 2004, in Dallas County, Texas, [appellant] did intentionally or knowingly cause the death of an individual, to-wit: Tyrone Deadmon, by shooting Tyrone Deadmon with a firearm, a deadly weapon,
 
                                                  -or-
 
If you find from the evidence beyond a reasonable doubt that on or about the 15th day of September, 2004, in Dallas County, Texas, [appellant] acting as a party did intentionally or knowingly cause the death of an individual, to-wit: Tyrone Deadmon, by encouraging, directing, aiding or attempting to aid Golden Thorn or Torry Timmons to shoot Tyrone Deadmon with a firearm, a deadly weapon then you will find the defendant guilty of the offense of murder as charged in the indictment.
 
        Viewing the evidence in the light most favorable to the verdict, we conclude a rational trier of fact could have found that appellant was a principal or a party to Deadmon's murder. Pate testified he was a single father and a truck driver for Lucky Lady Oil. He had been placed on two years' probation for the state jail offense of possession of marijuana but, after fulfilling his obligations, was no longer involved in drugs. Pate knew Golden Thorn because Golden dated Pate's cousin, and Pate considered Golden to be family. Pate knew Golden had been incarcerated although he was not sure why Golden had gone to jail. According to Pate, Golden had family and connections in Arkansas, and Pate occasionally traveled with Golden to Arkansas. Golden dealt drugs. Pate, who had contacts from his “past life” and “associates” he used to hang out with, sometimes set Golden up with people in Dallas. Although he would get Golden the connections, Pate was “never around when [Golden] took care of his business.” Pate did admit, however, that he was a “middle man” who would get drug buyers and sellers together.
        In early September 2004, Golden called Pate and asked if he knew anyone dealing cocaine. Pate called Deadmon who he knew sold drugs. Deadmon could not get any cocaine, and “that's when [Golden] put in the order for the marijuana.” According to Pate, he gave Deadmon Golden's phone number and assumed he was no longer involved. But Golden called Pate later and asked if they could do the drug transaction at Pate's house. Pate agreed. Later that afternoon, Golden showed up at Pate's house with Torry Timmons and appellant. Pate had not met either appellant or Timmons before. The three men entered Pate's house and sat in the living room for approximately thirty to forty-five minutes waiting for Deadmon. When he finally arrived, Deadmon brought in a fifty-pound bag of marijuana and set it on a scale in the kitchen.
        At that point, all five men were standing in the kitchen. Deadmon was telling Golden that it was not the one hundred fifty pounds of marijuana Golden asked for because Deadmon wanted to make sure Golden liked the product. Suddenly, Pate heard a gunshot and saw Deadmon fall to the ground. Pate looked around and saw Timmons raise his gun in Pate's direction. Timmons shot Pate twice. Pate began to run but he fell onto one of the couches in the living room. Golden yelled, “He's still alive. He's looking. Kill the m-----f-----, kill him.” Appellant ran out of the kitchen to where Pate was lying and shot him three times in the back while Golden yelled at appellant to “kill him, kill him.” According to Pate, appellant's gun must have jammed “because the shots stopped.” Golden yelled, “Grab the dope.” He then walked over, placed a gun to Pate's head, and shot him in the jaw. After Golden and Timmons left, Pate got up and walked to the kitchen where he saw Deadmon on the floor. He called 9-1-1 before collapsing on the front lawn.         Pate testified he was in the hospital recovering from nine gunshot wounds for approximately two weeks. During that time, police asked him if he knew who had been involved that day. Pate gave them Golden's name but he did not know the names of the two men who had accompanied Golden. He identified all three men from photographic line-ups that the police presented him shortly before he was released from the hospital. He admitted he was still in pain at the time he viewed the line-ups but testified he was aware of his circumstances and surroundings and was able to understand what was going on. He immediately identified all three men from the three line-ups he was shown. He testified he was “really sure” and there was no confusion about the three men. He identified appellant in court as the individual at his house that day who shot him and was involved in Deadmon's murder. He was “[o]ne hundred percent” sure and had “[n]o doubt” appellant, Golden, and Timmons were the three men in his house on the day of the shootings and that appellant shot him and was involved in Deadmon's shooting.
        Pate also testified he believed appellant shot Deadmon. He made his assumption, not because he saw appellant shoot Deadmon, but because of where appellant and Deadmon were standing and the fact that after the first shot was fired, Pate turned and saw Timmons raise his gun in Pate's direction. Once Deadmon hit the floor, he did not get up or move again.
        Pate also testified he later told police about an incident in January 2004 involving Pate's cousin, Kendrick Montgomery. According to Pate, Montgomery was working for Golden, transporting drugs to Arkansas, when he was arrested. Kendrick “snitched” on Golden and, as a result, a number of Golden's friends “got in trouble” in Arkansas. Golden tried to convince Pate to “give up” his cousin, in other words to tell him where Kendrick was. Pate would not do so and believed that is why Golden targeted Pate that day.
        This evidence shows appellant, Timmons, and Golden arrived at Pate's house together. They waited for Deadmon to arrive with a large quantity of marijuana. When Deadmon brought the marijuana into Pate's kitchen, appellant shot Deadmon. Timmons then shot Pate who ran to the living room. Golden yelled at appellant to shoot Pate. Appellant shot Pate three times. Golden then shot Pate in the face. Pate survived nine gunshots and positively identified appellant as one of three men at his house that day. Pate also identified appellant as the man who shot him three times and shot Deadmon. From these facts, we conclude a rational jury could infer appellant, acting as a principal or as a party, intentionally caused Deadmon's death by shooting Deadmon or by encouraging, directing, aiding, or attempting to aid Golden or Timmons to shoot Deadmon. After viewing the evidence in the light most favorable to the verdict, we conclude the evidence is legally sufficient to support appellant's conviction for murder either as a principal or as a party. We overrule appellant's first issue.
        Under his second issue, appellant claims the evidence is factually insufficient to support his conviction because appellant's defense witnesses testified he was not in Dallas on the day of the murder. During trial, appellant's mother testified her son and Golden are cousins and that both boys had gone to school with Timmons. Appellant lived in Stuttgart, Arkansas, and according to his mother, he lived with his fiancé and his two sisters in three households. Appellant's mother saw him every couple of days but testified that appellant would not be involved in any of Golden's drug deals. She did not believe he could be involved in a murder in Texas. She conceded appellant had his faults and had pleaded guilty to a marijuana possession in the past.
        Appellant's sister, Monica White, testified she lived in Stuttgart and that appellant lived with his girlfriend. According to Monica, she saw appellant every day. Sometimes he watched her son for her but he stopped by her house every day. Monica's husband similarly testified he lived in Stuttgart and saw appellant every day. Appellant's girlfriend and her mother also testified appellant was in Stuttgart every day and could not have been in Dallas.
        Although appellant argues this evidence, along with the fact Pate did not see appellant shoot Deadmon, renders the State's evidence insufficient to support his conviction, we cannot agree. It is the role of the fact finder, not this Court, to resolve conflicts in the evidence and to determine the credibility of any witnesses. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979). Because the jury is in the best position to evaluate the credibility of the witnesses, we must afford due deference to its determination. See Marshall, 210 S.W.3d at 625. Here, the jury chose to believe Pate, who was present at the time of the shootings, and disbelieve appellant's witnesses. Furthermore, even if Pate did not see appellant shoot Deadmon, there is sufficient evidence to establish appellant acted as a party to Deadmon's murder. After reviewing all the evidence in this case, we cannot conclude that the great weight and preponderance of evidence contradicts the jury's verdict. The jury was rationally justified in finding guilt beyond a reasonable doubt. Therefore, we conclude the evidence is factually sufficient to support appellant's conviction. We overrule appellant's second issue.
        Under his third issue, appellant claims the trial judge erred in admitting forty-four crime scene photos, specifically State's Exhibits number 33-76. With respect to this complaint, we note the State offered the photographs during the first full day of trial. Defense counsel asked to approach the bench and, following an off-the-record discussion at the bench, the trial judge admitted the photographs. During the second day of trial, the following occurred outside the presence of the jury:
 
JUDGE:
 
[Counsel] had previously made an objection at the side of the bench, which was preserved and was actually ruled on, but I don't think she ever voiced the objection for the record. It had to do with some photographs that were introduced showing the decedent as he was found at the apartment in question. [Counsel], go ahead and make your objection.
COUNSEL:
 
Judge, we just, at the side of the bench we approached and asked the Court to limit the number of photographs that were being introduced by the State, based on the fact that there were, I believe, four extremely bloody, extremely gory photographs of the decedent. There's been no contention that Mr. Deadmon was not deceased, that he did not die while at the Goldeneye location, and we felt that the repetitious and overly graphic nature of the photographs tended to be more prejudicial than probative to the Jury.
 
 
 
JUDGE:
 
That objection was overruled.
 
Thus, the record reflects appellant objected at trial to four of the forty-four photographs. To the extent appellant attempts to complain on appeal of the admission of all forty-four photographs, he clearly has waived any objection to the forty photographs to which he did not object to at trial. See Tex. R. App. P. 33.1(a)(1); Grimes v. State, 135 S.W.3d 803, 816 (Tex. App.-Houston [1st Dist.] 2004, no pet.) (concluding appellant waived any error because appellant failed to object to complained-of evidence when it was admitted at trial).
        With respect to the remaining four that he complains were “extremely bloody [and] extremely gory,” appellant fails to identify for this Court precisely which four photographs were objectionable. By failing to identify the photographs, we conclude he has waived any error associated with the admission of these photographs.   See Footnote 1  We overrule appellant's third issue.
        In his final issue, appellant claims the trial judge erred in “failing to adequately instruct the jury as to corroboration of two accomplice witness' testimony.” Under this issue, appellant argues Goldeana Thorn and Tommy Moore were “accomplice witnesses either per se (as matter of law) or by fact. Ms. Thorn and Mr. Moore participated after the shooting to aid or perform acts in furtherance of covering up the crime of murder.” Although appellant provides adequate legal authority in support of his issue, he provides no discussion of the facts of this case and no application of law to the facts. Nor does he provide a clear and concise argument for the contentions he makes with appropriate citation to the record. See Tex. R. App. P. 38.1(h); Swearingen v. State, 101 S.W.3d 89, 100 (Tex. Crim. App. 2003) (concluding appellant failed to adequately brief issue when he failed to apply law to facts of case as required under appellate rules). Because appellant has failed to adequately brief this issue, we do not reach the merits of his complaint. We overrule appellant's final issue.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          MARK WHITTINGTON
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
060799F.U05
 
Footnote 1 Furthermore, even if we addressed appellant's complaint by examining all six photographs (State's Exhibits numbers 38-43) in which the decedent's body is visible, we would conclude his complaint lacks merit. Four of the photographs depict the crime scene generally including the decedent's body. The remaining two photographs depict the decedent's head and chest area. As a general rule, a photograph is admissible if verbal testimony regarding what is depicted in the photographs is also admissible and the probative value of the photograph is not substantially outweighed by any of the rule 403 counter-factors. Threadgill v. State, 146 S.W.3d 654, 671 (Tex. Crim. App. 2004). When addressing the admissibility of such photographs, we consider the form, content, and context of each photograph. Erazo v. State, 144 S.W.3d 487, 492 (Tex. Crim. App. 2004). Here, the investigating detective testified in detail about the crime scene and the discovery of the decedent's body. The photographs aided the detective in describing the scene, and appellant did not object to the detective's testimony. Furthermore, our review of the photographs, which are somewhat graphic, shows they are not so gruesome or horrifying as to cause a juror of normal sensitivity to have difficulty rationally deciding the critical issues in this case. See Fuller v. State, 829 S.W.2d 191, 206 (Tex. Crim. App. 1992) (photographs complained of by appellant no “so horrifying or appalling that a juror of normal sensitivity would necessarily encounter difficulty rationally deciding the critical issues of this case after viewing them..”), overruled on other grounds by Castillo v. State, 913 S.W.2d 529, 534 n.2 (Tex. 1995). After reviewing the record, including the testimony associated with these six photos, we cannot conclude the trial judge abused his discretion in admitting them. See Paredes v. State, 129 S.W.3d 530, 540 (Tex. Crim. App. 2004).