BRIAN CRAIG JOHNSON, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion Filed August 8, 2007.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-00979-CR
............................
BRIAN CRAIG JOHNSON, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause No. F05-01269-Y
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OPINION
Before Justices Moseley, Bridges, and Richter
Opinion By Justice Moseley
        A jury convicted Brian Craig Johnson of the capital murder of Michael George. The trial court assessed punishment at life imprisonment. In twelve issues, appellant challenges the legal and factual sufficiency of the evidence to support the conviction and complains of the trial court's rulings in admitting certain testimony and photographs. We affirm the trial court's judgment.
 
Background
 
        On December 27, 2004, George died as the result of multiple gunshot wounds. Kelly George testified that George was her husband. At the time of George's death, he was not living in the family home; he was staying with a friend at Royal Park Place near Highway 75/Central Expressway and Royal Lane in Dallas, Texas. When Kelly retrieved George's belongings from the apartment, she found an envelope containing fourteen $100-bills in the nightstand. Kelly testified that George had been driving a red BMW. She was not aware he had been going to nightclubs.
        Magnon Ross testified that she was known as “Pretty Black.” At the time of the shooting, Ross and Tina Calvin were living at 3415 Terrell. Ross met appellant, who she knew as “Craig Mac,” through her half-brother, Darrion Choice. About a week before the shooting, appellant had come to Ross's house with a semi-automatic firearm. Appellant drove a dark blue Lexus. On the afternoon of December 26, 2004, Ross and appellant had sex. Ross testified that was their only sexual encounter.
        On the night of December 26, Ross met George in the parking lot of the Club Blue at Pacific and Harwood. Ross left the club with George, and he allowed her to drive the red BMW. Another woman Ross knew as “Sexy Black” went with them to George's apartment, but left when they reached the apartment. Ross went into the apartment with George, where he retrieved an envelope containing a “stack” of $100 bills from the bedroom. George took $500 from the envelope to use to “party” and to buy Ecstasy pills.
        Ross and George left the apartment, with Ross driving the BMW. Ross purchased Ecstasy pills, marijuana, and cigars with money George gave her. They then went to Tiffany's, an after- hours club, where Ross introduced Choice to George. George paid everyone's admission into Tiffany's and bought drinks for everyone. Ross and George then went into the “VIP” section of the club where they met another man named Michael and some other girls. Ross left George in the VIP section and went to talk to Choice. Ross told Choice, “I have a lick, ” which she testified meant she had someone she was going to get money from. Ross denied the term necessarily meant robbery. Ross told Choice that George had about $5000 at his home, that she intended to get it from him, and that she wanted Choice to give her a ride home afterwards.         George, the other Michael, and the women left Tiffany's to go to George's apartment. Ross decided to take Calvin with her to George's home. Ross planned for Calvin to get George's money while Ross kept George busy. George and Ross were in George's BMW; a woman known as Porsche was driving her vehicle; and a Jeep was also in the caravan. They stopped at a Chevron station for some supplies. Choice and appellant also pulled into the Chevron station. Ross went to talk to Choice and appellant. Choice asked if George had money, and Ross said yes. Choice kept asking if it was “going down.” Ross told Choice to just follow her. Appellant did not say anything during this time.
        The group went to Ross's house and Ross went in to get Calvin. Ross told Calvin the plan and they went into the bathroom so Calvin could get ready. While they were in the bathroom, they heard three or four gunshots. Ross and Calvin went to the living room and looked out the window. Appellant was standing on the driver's side of the BMW. He looked towards the house, and Ross heard more gunshots. She did not see a gun.
        After they heard the cars “squealing off,” Ross and Calvin went outside. George was slumped over. The police came and Ross went to the police station where she gave two statements. Ross did not mention George in the first statement. Ross testified the first time she told authorities appellant shot George was ten months after the incident; however, she told Calvin the day after. Ross testified she did not know a Chaundra Jones, but admitted she “possibly” carried identification in that name for check writing.
        LaShandra Harris testified that in December 2004, she met a man she knew as Michael C.   See Footnote 1  at the Harlem Nights club where she danced. They decided to go to Tiffany's. Inside Tiffany's, the two met George, who was in the VIP section with some other girls. Harris did not know George, but Michael C. did. Harris testified they smoked marijuana at Tiffany's. She also had a drink before she left the Harlem Nights, and she and a woman named Shi took cocaine in the bathroom at Tiffany's.
         George decided they should all go to his North Dallas apartment. George and another woman went in the BMW; Harris and Shi went with Michael C. in his Jeep; and two other women went in a third car. They stopped at a Chevron station to get cigars, cigarettes, and bottled water. Harris testified she did not recall seeing a fourth car at the Chevron station, nor did she see anyone get out of the BMW at the station. The group then went to a house at Terrell and Dolphin. The woman in the BMW went into the house. Harris dropped her cell phone in the Jeep and leaned over to look for it. She heard a gunshot and looked up. Harris did not hear anyone say “drop down” before the shooting. She saw appellant, who was on the driver's side of the BMW, shoot George five or six times. Harris saw “sparks” and “smoke” come from the gun. She saw appellant's face because “he had the nerve to stand there and point the gun at us afterwards.”
        Harris testified she yelled at Michael C. to get out of there. He backed the Jeep over the median and drove down Dolphin. They called 911 several times. Michael C. took Shi to a motel at I-30 and Dolphin, then he and Harris returned to the scene and spoke with police.
        Natasha Brown, a dancer whose stage name is Porsche, went to Tiffany's on December 27 with Shi and another woman named Jade. Inside Tiffany's, the three women went into the VIP section with a white male named Mike. Another white male, also named Mike, was in the VIP section with Ross. While at Tiffany's, Brown and Jade took cocaine and Brown had a drink. The group left Tiffany's to go to George's apartment near Royal Lane. Ross was in the BMW with George. Brown and Jade followed George in Brown's car. The other Mike, Harris, and Shi followed Brown in a Jeep. The group went to a Chevron station, where Brown saw Ross get out of the BMW and walk towards a gas pump. Brown did not know what Ross was doing and did not see Ross speak to anyone. After leaving the Chevron station, they went to a house off Dolphin. Ross went into the house. Brown pulled her car behind the BMW, and the Jeep pulled in behind her. Brown had her window rolled down and her car turned off. Brown got out of her car and went to ask George what they were doing at the house. George said that Ross wanted to talk to a friend.
        As Brown walked back to her car, appellant came from behind the Jeep. Brown got back into her car. Appellant walked to the driver's side of the BMW and told George to “Drop out, give me everything you've got.” Brown understood the phrase to mean a robbery. Without giving George time to respond, appellant pulled out a gun and began shooting.
        After the second shot, Brown put her car in reverse, and appellant pointed the gun at her car. Brown almost hit the Jeep, did hit a meter, went around a post, and “ran every stop sign and every light” until she got to her mother's house. She flagged down a police officer and described what had happened. Brown denied telling the officer that appellant only said “drop out.” Brown picked appellant's photograph from a lineup, but she was unable to identify appellant's face or voice in a live lineup.
        Michael Kruzel testified that on December 27, 2004, he met Harris at the Harlem Nights club. The two left the club and went to Tiffany's where they met George, who Kruzel knew from high school. George was with another woman, and Harris introduced Kruzel to some other women.
        The group left Tiffany's to go to George's apartment. George and Ross went together in George's BMW; Harris and Shi went with Kruzel in his Jeep; and Brown and another women went in a third vehicle. They stopped at a Chevron station where Kruzel bought some cigarettes and a couple of drinks. When Kruzel returned George's change, Kruzel noticed Ross was not in the BMW. The group then went to a house and Ross went in. Brown got out of her car and went to speak to George.
        While waiting, Kruzel noticed a man cross the yard. The man had his arms clutched in front of himself across his chest. Kruzel thought the man was carrying a bottle of beer or something. The man walked past Brown, but did not speak to her. The man walked directly to the BMW, leaned down, and started to talk to George. Kruzel could not hear what the man said. The man then pulled out a weapon and started shooting. The man stepped back and looked at Kruzel. Kruzel started the Jeep, backed down the street, and “took off.” One of the women in the Jeep called 911. Kruzel took Shi to a motel and returned to the scene with Harris. Kruzel testified he could not positively identify appellant as the shooter.
        Dallas police officer Darlene Pittman responded to a call of a shooting in the 3400 block of Terrell. Pittman was flagged down by Tina Calvin, and Pittman drove to 3415. She saw a person slumped in a BMW, motionless and unconscious. Apart from Calvin, no one else was near the vehicle. Pittman flagged down the fire truck and ambulance that had responded to the scene, then went into the house and spoke with Magnon Ross. Ross was “completely uncooperative.”
        Dallas police detective Richard Dodge collected evidence from the crime scene. Dodge recovered bullet casings from a semi-automatic weapon from in and around the BMW, a bullet from the driver's seat, and a water bottle. Another casing was recovered from the hospital gurney. Dodge also found a wallet with identification for Chaundra Jones on the driver's seat of the vehicle. Dodge recovered fingerprints from several places on the outside of the vehicle, but none belonged to appellant or Darrion Choice. He did not compare the prints to Ross, Calvin, or Mike Kruzel.
        Dallas police officer Jada Brody testified that on December 27, 2004, she received a call of a shooting in the Dolphin/Terrell area. Brown flagged her down at the corner of Illinois and East Overton, about seven or eight miles from the shooting. Brown was scared and nervous, told Brody she had witnessed a shooting, and gave Brody details. Brody testified that Brown told her the shooter said, “drop out,” which means the person is going to rob or do something to you.
        Adolphus Kines testified that in January 2005, he was in a vehicle with Reginald Marshall and appellant. They were leaving an apartment complex on Fawn Ridge when they saw a red Durango truck and a grey and silver pickup. Appellant said, “Oh shit, there they go.” Marshall picked up speed and exited the apartment complex. The two trucks came up fast behind them. Appellant told Marshall to stop the car. Marshall turned down a dead-end street. Appellant got out and ran into the woods.
        In January 2005, Dallas police officer Kurt Hibbets was assigned to locate appellant. Hibbets's investigation focused on an apartment complex on Fawn Valley and a white Oldsmobile. Hibbets noticed the vehicle pulling into the apartment complex with appellant in the back seat. The vehicle exited the complex and accelerated rapidly, but turned onto a dead-end street. Appellant got out and fled into the woods at a “dead run.” Hibbets found appellant hiding behind a bush.
        Dallas medical examiner Sheila Spotswood testified George died of multiple gunshot wounds. George had a medical procedure at the hospital and he was sutured after he died. Several of the autopsy pictures depict the sutures. Among George's personal effects were $309 cash and a watch that said Rolex.
        Heather Thomas, who worked at the Dallas County Crime Lab, testified that all of the cartridges recovered from the scene and from George were fired from the same semi-automatic weapon. However, the lab did not have a weapon to compare the cartridges to.
        Dallas police officer John Palmer noticed bullet defects and blood on the driver's seat of the BMW and found a cartridge casing on the passenger's side. Through his interviews with Ross, Palmer obtained Choice's name and the name “Craig Mac.” Palmer also obtained a surveillance videotape from the Chevron station that showed Ross walking towards a dark Lexus, getting in, and then later walking away from the Lexus. The vehicles all drove away, with the Lexus going the opposite direction.
 
Sufficiency of the Evidence
 
        In his first issue, appellant asserts the evidence is legally insufficient to support the conviction because there is no evidence, or no competent evidence, that appellant was in the course of committing or attempting to commit a robbery. In his second issue, appellant contends the evidence is factually insufficient to support the conviction.
 
A. Standard of Review and Applicable Law
 
        In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the verdict, and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex. Crim. App. 2004). In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). In conducting a legal sufficiency review, the reviewing court defers to the fact finder's credibility and weight determinations; in a factual sufficiency review, the reviewing court may substitute its judgment for the fact finder's on these questions to a very limited degree. See Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), petition for cert. filed, (U.S. Mar. 13, 2007) (No. 06-11318). “A factual sufficiency review is 'barely distinguishable' from a . . . legal sufficiency review.” Id. (citing Watson, 204 S.W.3d at 415-16).
        To obtain a conviction for capital murder, the State had to prove beyond a reasonable doubt that: (1) appellant; (2) intentionally or knowingly caused Michael George's death; and (3) that he intentionally committed the murder in the course of committing or attempting to commit robbery. See Tex. Pen. Code Ann. § 19.02(b)(1), 19.03(a)(2) (Vernon 2003 & Supp. 2006). Proof of a completed theft is not required to establish the underlying offense of robbery. Maldonado v. State, 998 S.W.2d 239, 243 (Tex. Crim. App. 1999). At a minimum, to show attempted robbery, the State was required to prove beyond a reasonable doubt that appellant had the specific intent to commit robbery and that he committed an act amounting to more than mere preparation for robbing George. Id. The State met its burden of proving capital murder if it introduced evidence from which the jury could rationally conclude appellant possessed the specific intent to obtain or maintain control of George's property either before or during the commission of the murder. See id. The requisite intent may be inferred from circumstantial evidence and from the accused's conduct. See id.
 
B. Analysis
 
        In his first issue, appellant contends there is no evidence or incompetent evidence to show he was in the course of committing a robbery at the time of the murder. In his second issue, appellant also asserts the evidence is factually insufficient because “nary one of the purported eyewitnesses . . . are worthy of credence.” The State responds that the evidence is legally and factually sufficient to show the murder occurred during the course of a robbery or attempted robbery.
        Appellant's complaint that the evidence is incompetent to show he was in the course of committing or attempting to commit a robbery is without merit. Evidence is not rendered incompetent simply because another witness testifies differently. Any inconsistencies in the evidence were for the jury to resolve. See Marshall, 210 S.W.3d at 625.
        There was evidence appellant knew Ross intended to steal from George at his home and she arranged for Choice to provide transportation afterwards. Appellant remained with Choice, and, in fact, provided the transportation after this arrangement was made. En route, they stopped at Ross's house. Appellant went up to George's vehicle, told George to “drop out, give me everything you've got,” a phrase indicative of robbery, and then shot George multiple times. A completed theft was not required to establish the underlying offense of robbery. See Maldonado, 998 S.W.2d at 243.
        Reviewing the record as a whole, under the appropriate standards, we conclude a rational jury could have concluded beyond a reasonable doubt that at the time appellant shot George, appellant possessed the specific intent to obtain or maintain control of George's property. See id. Thus, the evidence was legally and factually sufficient to support the conviction. We resolve appellant's first and second issues against him.
 
Evidence of Flight
 
        In his fifth issue, appellant claims the trial court erred in admitting evidence of appellant's flight from police two weeks after the offense as an inference of guilt. Appellant contends there was no evidence to show the flight was connected to the offense that occurred two weeks earlier, nor was there any evidence to show appellant knew why the police were after him. The State responds that the trial court did not abuse its discretion, and appellant was not harmed by the admission of the evidence of flight.
        Evidence of escape from custody or flight to avoid arrest is generally held admissible on the issue of guilt. McWherter v. State, 607 S.W.2d 531, 535 (Tex. Crim. App.1980). In order to have such evidence excluded, the burden shifts to the defendant to affirmatively show the escape and flight is directly connected to some other transaction and further show that it is not connected with the offense on trial. See Wockenfuss v. State, 521 S.W.2d 630, 632 (Tex. Crim. App. 1975). Absent a showing by appellant that the escape was related to circumstances unrelated to the charged offense, evidence of escape is admissible. See id.
        Here, evidence was presented that Hibbett had been assigned, as a member of the fugitive squad, to locate appellant. Hibbett was in an unmarked police vehicle, and located appellant about two weeks after the offense. As soon as appellant saw the unmarked vehicle, he said, “Oh shit, there they go.” After his vehicle hit a dead end, appellant continued to flee on foot. While counsel asserted during the sub rosa hearing that a United States's Marshal's report (which was not introduced into evidence) stated appellant said he wanted to get rid of his drugs before he was caught, Kines testified appellant never said anything about wanting to get rid of drugs.
        Based on the record before us, we conclude the trial court did not err in admitting evidence of appellant's flight from the police. We resolve appellant's fifth issue against him.
 
Admission of Photographs
 
        In his third issue, appellant asserts the trial court erred in overruling his objection to the admission of State's Exhibit number 1, a photograph depicting George with his family. In issues six through eleven, appellant complains the trial court erred in overruling his objections to State's Exhibit numbers 25 through 29 and 32, autopsy photographs.
        The admissibility of a photograph lies within the sound discretion of the trial judge. Paredes v. State, 129 S.W.3d 530, 539 (Tex. Crim. App. 2004). 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). Rule of evidence 403 favors the admissibility of relevant evidence, and the presumption is that relevant evidence will be more probative than prejudicial. Long v. State, 823 S.W.2d 259, 271 (Tex. Crim. App. 1991). An abuse of discretion arises only when the probative value of the photographs is small and its inflammatory potential is great. Long, 823 S.W.2d at 271.
        In determining whether the trial court erred in admitting a certain photograph, we first consider the form, content, and context of the photograph. Erazo v. State, 144 S.W.3d 487, 492 (Tex. Crim. App. 2004); Long, 823 S.W.2d at 271-73 (holding reviewing court should consider number of exhibits offered; gruesomeness, detail, and size of photographs; whether photographs are black and white or in color; whether they are close-up; whether body is naked or clothed; and availability of other means of proof and circumstances unique to each individual case). We then consider the factors set out in Montgomery v. State, 810 S.W.2d 372, 389-90 (Tex. Crim. App. 1991) (op. on reh'g): (1) the probative value of the evidence, (2) the ability of the photograph to impress the jury in some irrational yet indelible way; (3) the time needed to develop the evidence; and (4) the proponent's need for the evidence. Erazo, 144 S.W.3d at 492-96.
         Appellant asserts State's Exhibit no. 1, the family photograph, was irrelevant and prejudicial. The State responds that the trial court did not abuse its discretion and appellant was not harmed by the admission of the photograph.
        State's Exhibit no. 1 shows George with his wife, daughter, and two sons. Before the photograph was admitted into evidence, Kelly George testified, without objection, that George had a daughter from a previous marriage, she and George had two sons, and of the personal and financial difficulties the family had faced before George's death. The photograph was relevant to show a true appearance of George before his death. See Fails v. State, 999 S.W.2d 144, 146 (Tex. App.-Dallas 1999, pet. ref'd).
        Moreover, while showed the family smiling, the photograph was not the type that would impress the jury in an irrational, but indelible way. In fact, the photograph would have generated very little sympathy beyond that already generated by Kelly's unobjected-to testimony. Moreover, no mention was made of the photograph during closing argument, and only one mention was made of George's children.
        We conclude the photograph was relevant and that its probative value was not substantially outweighed by its prejudicial effect. See id. Therefore, the trial court did not abuse its discretion in admitting State's Exhibit no. 1 into evidence. We resolve appellant's third issue against him.
        Appellant asserts the autopsy photographs were irrelevant because it was undisputed George died of gunshot wounds. Appellant further contends the photographs were gruesome and any probative value was substantially outweighed by unfair prejudice. The State responds that appellant did not raise is irrelevance argument at trial; therefore, it is not preserved. Moreover, the State responds that while the photographs are disturbing to view, they merely depict the reality of the injuries sustained by George.
        Appellant objected at trial to the admission of the autopsy photographs on the basis that the cause of death was not contested and the photographs' probative value was substantially outweighed by the prejudicial effect. These are the same claims he raises on appeal; therefore, we conclude he has preserved his complaints.
        Spotswood testified that George died of multiple gunshot wounds. She further testified some of the autopsy photographs depicted sutures George was given after death. Generally, 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. See Threadgill, 146 S.W.3d at 671. The photographs in dispute did no more than visually depict what Spotswood's testimony had already described.
        Moreover, we conclude the probative value of the autopsy photographs was not substantially outweighed by their prejudicial effect. Contrary to appellant's assertion, the photographs were neither gruesome nor unnecessarily graphic. The photographs showed the bullet holes in appellant's body that were the result of his being shot seven times. The suturing from the surgical procedure, while evident, did not present a “Frankenstein-style image.” Minimal time was spent on actually introducing the photographs following Spotswood's testimony. And, while the manner of appellant's death was not disputed, the circumstances surrounding it were disputed, and the photographs lend visual support to the witnesses' description of those events. We conclude, therefore, the trial court did not abuse its discretion in admitting the autopsy photographs. See Erazo, 144 S.W.3d at 492-96. We resolve issues six through eleven against appellant.
 
Admission of Weapon Evidence
 
        In his fourth issue, appellant contends the trial court erred in admitting evidence that appellant possessed a “nondescript” weapon the week before the offense in this case. Appellant argues the evidence was too remote in time and not sufficiently connected to the murder weapon to be relevant. Moreover, appellant argues, even if the evidence was relevant, the prejudicial value was substantially outweighed by its prejudicial effect. The State responds that the evidence was relevant because it made appellant's possession of a similar weapon at the time of the capital murder all the more likely. Additionally, the State responds, the prejudicial effect of the evidence did not substantially outweigh its probative value.
        “Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” Tex. R. Evid. 404(b). Such evidence may be admissible to show “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake.” See id. However, although relevant, evidence may be excluded if its probative value is substantially outweighed by its prejudicial effect. Tex. R. Evid. 403.
        In this case, the evidence showed that George was shot seven times by a semi-automatic weapon. There was also ample evidence that appellant shot George. The evidence that appellant possessed a semi-automatic weapon one week prior to the offense was relevant because it made appellant's possession of the same type of weapon on the night of the offense more likely. Thus, the evidence was probative. See Tex. R. Evid. 401.
        Further, we conclude the probative value of the evidence was not substantially outweighed by its prejudicial effect. There is a presumption that relevant evidence will be more probative than prejudicial. See Long, 823 S.W.2d at 271. Here, there was eyewitness evidence that appellant shot George with a semi-automatic weapon. The State did not impute appellant's possession of the semi- automatic weapon to be a crime, nor did the State imply that appellant was generally a criminal because he possessed the weapon. Moreover, there was no indication the weapon may have been used in another offense. We conclude the evidence that appellant possessed a semi-automatic weapon prior to the date of the offense was not more prejudicial than probative. See Tex. R. Evid. 403. Therefore, the trial court did not abuse its discretion in admitting evidence that appellant possessed the semi-automatic weapon the week before the offense. We resolve appellant's fourth issue against him.
 
Cumulative Error
 
        In his twelfth issue, appellant claims the cumulative effect of all of the previously asserted errors warrants reversal. The State responds that because the trial court did not err, appellant is not entitled to a new trial. We agree with the State. Having concluded as to each issue that there was either no error or no harm, we likewise conclude the cumulative effective of the previously asserted errors does not require reversal. We resolve appellant's twelfth issue against him.
 
        We affirm the trial court's judgment.
 
                                                          
                                                          JIM MOSELEY
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
060979f.u05
 
Footnote 1 Michael C. is actually Michael Kreuzel.