DAVIUS WILLIAMS, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued May 23, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-00354-CR
............................
DAVIUS WILLIAMS, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 291st Judicial District Court
Dallas County, Texas
Trial Court Cause No. F06-64091-SU
.............................................................
OPINION
Before Chief Justice Thomas and Justices Moseley and Lagarde   See Footnote 1 
Opinion By Justice Lagarde
        Appellant Davius Williams was indicted for murder. The jury found appellant guilty and, after hearing punishment evidence, assessed his punishment at thirty-seven years' imprisonment. In three issues, appellant contends the evidence is legally and factually insufficient to support the conviction. For reasons that follow, we affirm.
 
Facts
 
        Appellant, also known as “Day Day” had a friend named Kerwin “Juicy” Holmes. On March 28, 2006, Holmes was shot and killed. An individual named Anthony London was thought to be the killer. London sometimes stayed in room 155 at the Best Value Inn. After appellant and his friend Kevin “Popcorn” Hickman learned of Holmes's murder, they went to room 155 at the Best Value Inn. A man, who was later identified as Kenthony Curtis, answered Popcorn's knock on the door and was shot with a .22-caliber weapon and later died. Curtis was not involved in the killing of Holmes.
        Yvette Williams testified that Curtis was her brother. Curtis was forty-six years old when he was killed. Williams last saw Curtis on March 27, 2006, the day before he was killed. Williams learned of Curtis's death from his daughter, who had received information that Curtis had been killed. Williams began making telephone calls and confirmed Curtis had been killed. On cross- examination, Williams testified Curtis's first name was spelled Kenthony.
        Dallas police officer Ronnie Bratt testified that on March 28, 2006, at about 1:30 p.m., he responded to a “shots fired” call at the Best Value Inn. The victim was Holmes. Based on information the police received, they contacted Curtis and Alana London, who were staying in room 155. Curtis's first name was spelled as both Kethony and Kenthony in the police report, but both names refer to the same individual. Bratt identified Curtis's photograph as the man with whom he made contact. After determining that Alana had some information about Holmes's killing, officers drove her to the police station so she could speak with detectives. When they were finished, the officers transported her back to the motel. When no one answered the door, the police secured her entry through the motel manager. When the door was opened, the police saw Curtis lying face up on floor with his feet toward the door.
        Bratt testified that State's exhibit nos. 2 through 10 are crime scene photographs taken during the investigation of Curtis's death. Bratt described for the jury the various locations in the photographs. Bratt saw no weapons “on or around” Curtis's body. Bratt said it was clear someone was living in the room; there was a “small refrigerator and microwave and some cooking pots and things actually cooking in the room.” Bratt and two detectives were the only people in the room until the Physical Evidence Section (PES) officers arrived. A canvass of the motel revealed no potential witnesses. The first murder occurred about 1:30 p.m; the second body was found about 8:30 p.m. the same day. The next day, at the request of the homicide detectives, Bratt returned to the motel and secured video film from the motel. Bratt did not review the videotapes. On cross- examination, Bratt testified the PES officers collected three shell casings at the scene that were pointed out to them by the patrol officers. At the time Curtis was killed, Alana was at the police station.
        Dallas police detective Donald Whitsitt testified he collected physical evidence related to Curtis's murder. Whitsitt testified that when he and his supervisor Sergeant Wilson arrived at the motel, the front of room 155 was taped off with evidence tape. There were three small caliber cartridge casings outside the door and Curtis's body was lying just inside the door. Whitsitt interviewed the patrol officers to find out what kind of crime scene he had and what they had found, then he took photographs. He identified State's exhibit nos. 11 through 14 as his photographs and described for the jury what they showed. He described the casings as “.22 caliber cartridge” casings and, more specifically, “a .22 rim fire, as opposed to a center fire cartridge.” Whitsitt testified it is “a very common pistol and rifle caliber that has been around about a hundred years a little over a hundred years.” Whitsitt collected an empty black pistol holster from the top of a small refrigerator located on one side of the room. There was no evidence of any other firearms being present.
        Whitsitt described State's exhibit nos. 15 through 17 as “outside packaging” containing the paperwork he sent to the Southwest Institute of Forensic Sciences (SWIFS). He identified State's exhibit nos. 18 through 20 as the evidence he collected on the evening of the murder. Whitsitt testified he found the casings out on the sidewalk in front of room 155. Whitsitt testified he believed a semi-automatic weapon was involved based on the fact that three cartridge cases were found. No other casings or bullets were recovered at the scene.
 
        On cross-examination, Whitsitt testified the decedent was shot twice. The police did not find a third bullet anywhere. Whitsitt found no firearms' evidence at the scene and never found a weapon in this case. Although efforts were made to obtain fingerprints, none were recovered. There was no indication the shooter ever went inside the room. On re-direct, Whitsitt testified the bullet that comes out of a .22-caliber casing is “pretty minuscule,” about the “blunt size of a pin.” Because they are so small, fingerprints are never recovered.
        Monica Cannon testified she remembered March 28, 2006. She remembered seeing appellant, whom she knew as “Day Day, ” and Hickman, whom she knew as “Popcorn,” on that day. Cannon identified State's exhibit nos. 22 and 23 as pictures of “two guys” she saw at the motel on that date. Appellant is shown in State's exhibit no. 22 and Popcorn is shown in State's exhibit no. 23. Cannon was “just walking around” the motel that day.   See Footnote 2  Cannon has known appellant and Hickman“for a while,” maybe three years. When asked where she saw the two men on March 28, Cannon answered, “The door-I was walking up and I seen them standing there they told me to come here.” Appellant told her “come there.” Cannon went to see what he wanted. Appellant told Cannon to come there because something had just happened. When she asked what had happened, appellant said Holmes “just got shot in the head two times.” Cannon knew Holmes, and appellant was “close” to Holmes. Appellant told Cannon to get inside the Expedition, and she refused. When asked why she did not want to get into the vehicle, Cannon replied, “I didn't know what was going for one. I seen him with a gun in his hand. I didn't want to get in.” When asked what kind of gun he had in his hand, Cannon replied, “Some kind of long gun. He had it by his side.” When asked if they said what they were doing there, Cannon replied, “Yeah, he told me that they had-he was on some gutter stuff, whatever.” Cannon said she got very close to appellant, grabbed his hand and told him, “don't do it, but he told me he was on some gutter stuff.” When asked if she saw Hickman at this point, Cannon replied, “Yeah. I walked past the room. He was standing inside the door. I don't know who was inside of the room, but I-I walked past the door and I was talking to [appellant], and [Hickman] was standing in front of the door.” The following exchange then occurred, in relevant part:
 
[Prosecutor]:        Okay. So Popcorn was in front of the door?
 
 
 
[Cannon]:        Talking to whoever it was.
 
 
 
[Prosecutor]:        You couldn't see inside the room?
 
 
 
[Cannon]:        I wasn't paying attention because I just walked directly past the door to see what Day Day wanted.
 
 
 
[Prosecutor]:        In relation to where the door was and where Popcorn was, where were you and Day Day standing?
 
 
 
[Cannon]:        Like maybe five feet away from the door, probably. I don't know. It was pretty close.
 
 
 
[Prosecutor]:        Was he in front of the door or off to the side?
 
 
 
[Cannon]:        Who?
 
 
 
[Prosecutor]:        Day Day.
 
 
 
[Cannon]:        Oh, he was on the side. A couple of doors down from the door that Popcorn was standing in front of.
 
 
 
[Prosecutor]:        Monica, let's say where you are sitting here was the door where Popcorn was, okay? If I'm Day Day and you[,] and you said you saw him with the gun, how close or how far away?
 
 
 
[Cannon]:        From right here to where you are standing.
 
                                        
        Cannon then demonstrated the relative positions of the people involved. Cannon said appellant had the gun hid on his right side, by his side. When asked what happened next, Cannon replied,
 
Well, he had the gun and, well, Popcorn was like this and he threw his head up like and Day Day was-he kind of ran. I grabbed him-well, I pulled him by his arm and he was like-he just ran and then shot two times, and I ran upstairs and they took off.
 
        Cannon said there was no arguing or anything going on at the doorway, “they were just talking calmly.” Cannon said it happened pretty fast when appellant left her side and started shooting, just long enough to pull the trigger. She heard two shots but did not stay around to see what had happened. Cannon ran, as did appellant and Hickman.
        Cannon gave a statement and viewed some lineups. She identified the photographs of appellant and Hickman that she had picked out of a lineup. Each had her handwriting on the back. The police did not tell Cannon who to pick out; she showed the police. Afterwards, Cannon asked about a reward. The police gave her “probably a $100.00.” It was not a reward, it was just so she could “get back home and eat and stuff.” The police did not promise her anything for picking out the photographs in the lineups. When Cannon gave her statement and picked appellant and Hickman from the lineup, she did it not for the money, but because she did not feel like it was right. Cannon was doing what she thought was right. Cannon admitted she had a prior criminal history including unauthorized use of a motor vehicle and two drug possession charges. Cannon again denied she was at the motel working as a prostitute.
        On cross-examination, Cannon admitted both of her convictions were felonies and that she actually had been convicted of prostitution. She again denied she was at the motel as a prostitute on the date of the murder. She was just “hanging out” around the motel. Cannon admitted at that time in her life she was a PCP user; however, she said she was not “doing drugs” when she saw appellant and Hickman. Cannon said appellant was wearing a “red hoodie” on the date of the murder. She did not know what Hickman was wearing. She did not speak to Hickman. Cannon did not know Anthony London, but did know Holmes, and she had a “little history” with him. About two weeks before his death, Holmes had hit Cannon and knocked her “grill” out. They were “back talking” at the time of the incident. When asked what “gutter” meant, she said, “I guess he was some type of gangster.” She had heard the term in songs. About three minutes elapsed between the time Cannon walked up and spoke to appellant and the shooting. Cannon could not see who was inside the room. She walked past the room. Appellant was standing a couple of doors down. Using State's exhibit nos. 2 and 11, Cannon showed where she was. She repeated what appellant had said to her, that he was “on some gutter shit,” and he did not want her to be in the way. When defense counsel asked her if she did not just hear the shots from around the corner, she replied, “No, I was right there, standing right there, and I seen it and heard it, and he pulled the gun to his side and I shot upstairs and at the-they took off and I went upstairs and I was like in the hallway like this, and the Expedition that he was in, they kind of slowed down a little bit and then they just drove off.” Cannon told a friend, whose name she would not reveal, about what had happened. She heard only two gunshots. She saw appellant stand in front of that door and pull the trigger twice.
        Dallas police detective Joseph McNulty testified that on March 28, 2006, he investigated two related murder cases. The first murder occurred at about 1:30 p.m. outside the Best Value Inn on Preferred Way. The victim was Holmes, a sixteen-year-old boy. The police developed a suspect in the first murder. That suspect lived in apartment 155 at the same Best Value Inn. At about 9:00 p.m. on the same date, the victim of the second murder was discovered in room 155. That victim was Curtis. Curtis's body was found inside the apartment of Alana London, where the suspect in the first homicide lived. Curtis's body was discovered when the police returned Alana to her apartment after her police interview. During his investigation, McNulty concluded Curtis had nothing to do with the murder of Holmes. McNulty explained that the name of the second victim was spelled both Kethony and Kenthony in the police paperwork; however, both names referred to the same person. Upon discovering Curtis's body, the police secured the scene and called for the PES personnel to come process the scene. Other officers began to canvass the area and look for witnesses, but they found none. The police later contacted Cannon who was, in fact, a witness to the second crime. Through Cannon, McNulty developed appellant and Hickman as suspects in Curtis's murder. McNulty identified appellant in court. McNulty learned the two suspects had a relationship with Holmes. McNulty testified that from the beginning, the police viewed the killing of Curtis as a retaliatory or vengeance shooting for the murder of Holmes. McNulty confirmed that many of the people involved had nicknames. He identified State's exhibit no. 26 as an accurate summary of the actual names and nicknames.
        McNulty interviewed Cannon at the police headquarters and showed her lineups. McNulty identified the lineups from which Cannon, “without hesitation” identified appellant as the shooter and Hickman as the other participant in Curtis's murder. McNulty testified Cannon “knew exactly who it was and that is where the importance of these nicknames came in.” Cannon was neither offered nor promised anything for her testimony. However, after she gave her statement and picked the photographs from the lineup, Cannon asked several times for a reward. A police supervisor approved giving Cannon $100 for transportation and for some food and “stuff like that.”
        On March 29, 2006, appellant was brought to the police station to be interviewed. McNulty personally interviewed appellant, but before doing so, he read appellant his rights. Appellant indicated he understood his rights and agreed to waive them and submit to an interview. Appellant did not ask for an attorney. Appellant was never threatened, promised anything, nor denied any basic necessity. In McNulty's opinion, appellant was not under the influence of drugs or alcohol at the time of the interview. Defense counsel suggested on voir dire appellant was taken down to be interviewed in Holmes's murder, not Curtis's; however, McNulty denied that was the case. The interview was digitally recorded, and was admitted as State's exhibit no. 28 and played for the jury. McNulty testified the video shows appellant initially denied he had anything to do with Curtis's killing, but he eventually confessed. McNulty used several interview techniques to induce the confession. McNulty explained that the witness referred to on the tape as “OKC” was never found.
        State's exhibit no. 29, the security tape taken from the Best Value Inn, was admitted into evidence. The security tape did not show the murder. No guns were found in the room; however, McNulty told appellant guns were found there. McNulty also interviewed Hickman, but Hickman did not make a statement. McNulty based the arrest on appellant's confession, which was corroborated by Cannon's eyewitness account of the shooting. Both versions matched up. Appellant tried to mitigate his role in the murder. McNulty obtained a warrant for Hickman's arrest.
        On cross-examination, defense counsel brought out that McNulty got appellant to confess by lying to him during the interview. McNulty denied counsel's suggestion that “some might say” appellant was “totally set up” by him to tell what he eventually told. Defense counsel also suggested by his questions McNulty had done a “sloppy” investigation and, had he done a proper investigation, it may have led to the truth.
        Laura Fleming testified she was employed as a firearms examiner for SWIFS. She identified one fired bullet and one fired bullet fragment from Curtis's autopsy that were presented to her for examination by the medical examiner's office. Fleming also received several items from the Dallas Police Department. Fleming identified State's exhibit no. 33 as a copy of the report she prepared in this case summarizing her results. By matching the casings to each other, Fleming determined that three of the cartridge casings were all fired from the same firearm. Although she had no firearm to match the casings to, she testified that “[b]ased on the class characteristics of these items, some would be a Jennings, Bryco Arms or a Phoenix Arms.” This is not at all an extensive or exclusive list; there are other possible manufacturers of guns that may have been used to fire State's exhibit nos. 18 through 20. Fleming testified the casings exhibited features that would be characteristic of a firearm having an extractor, which would exclude a revolver.   See Footnote 3  Fleming described State's exhibit no. 31 as a .22-caliber fired bullet and State's exhibit no. 32 as a fired bullet fragment. She could not determine if those two exhibits were fired from the same gun. She testified that State's exhibit nos. 18, 19, 20, and 31 were all .22-caliber.
        Reade Quinton testified he was a medical examiner for the Dallas County Medical Examiner's Office. He identified the autopsy report on Curtis. Quinton explained the autopsy to the jury showing the path of the bullets in the body. Quinton testified that a firearm is considered a deadly weapon, and, shooting a firearm at someone would constitute an act clearly dangerous to human life and could cause serious bodily injury. Quinton testified the cause of Curtis's death was gunshot wounds to the chest and left shoulder. The manner of death was homicide. On cross- examination, Quinton testified he could not tell from what range Curtis was shot.
         Appellant testified that Holmes was his best friend. Appellant had known Holmes since he was he was twelve, but they were not related. Hickman was Holmes's cousin. Appellant testified that on March 28, 2006, he, Holmes, and Holmes's girlfriend were all in the same room. Holmes woke appellant up, and the two left the room. When asked what happened afterwards, appellant responded,
 
When we came on the street, they had made a right. They supposed to go straight, but the dude made a left. The dude smoked-Anthony London came out with-he came out and shot his pistol. I seen him shoot. I ran back to the room. I told my Aunt Bee, I said, I just seen Juicy get shot. Who's that? Who know [sic] the old boy name who drive [sic] a Lincoln? There was this woman smokes crack, her name [sic] Melinda. She told me she knew who he was. We called them up. I said, I just seen y'all get shot at, where [sic] Juicy? He said, Juicy dead. I said, Juicy dead? I said, where [sic] you at-
 
        Appellant and London “ain't never been cool” but they knew each other “around the neighborhood.” Appellant lied when he told McNulty he did not know London. Appellant had actually known London about two years. Appellant had no doubt who shot Holmes. When asked what he did “after calling somebody on the phone,” appellant replied that they went to the hospital Holmes had been taken to. Appellant was hurt and sad his buddy got shot. Appellant saw Hickman at the hospital, and Hickman “wanted revenge.” When asked if appellant also wanted revenge, he replied, “I did, but I didn't.” When asked what that meant, he replied, “I wanted somebody to pay for my best friend's cousin being killed, but I didn't want nobody else to be hurt. You know what I say?” At some point he and Hickman got together. Hickman questioned appellant's account of what happened to Holmes. Appellant testified,
 
Well, you know, he wanted to know why I wasn't with-I told him the truth. He didn't believe me. He was like, when have you ever been not with him? He feel like since I was out there on the whack real bad, PCP, he felt like I had Juicy set up. That isn't what it was. I loved him. So he told me you know, what I'm saying, it didn't add up, that he was going to hurt my momma. You know what I'm saying?
 
Counsel then asked if appellant was saying Hickman thought appellant was on PCP and set Holmes up. Appellant responded, “Yes, sir, we all smoked PCP.”
        They then went to the Royal Inn hotel. Appellant “went through the steps how I seen everything.” Hickman then asked appellant “where was the dude, Anthony London, staying at.” Appellant said he did not know what room, but a woman named Melinda who knew the “dude” knew he was in room 155. Melinda did not go with them to the motel. A woman appellant knew only as “Oklahoma” drove appellant and Hickman to the Best Value Inn. Hickman was the front passenger and appellant was in the backseat. They parked at the end of the motel. Appellant's attention was directed to room 155. Appellant said it looked familiar. Appellant showed where the car was parked and the walkway was located. Oklahoma kept a “sawed-off” .22-caliber rifle in her car. She had come to Dallas with the gun, and appellant had seen it before.
        Appellant and “Oklahoma” stayed in the vehicle. Hickman got out and went straight to room 155. Hickman called to appellant, and appellant went to join him. Appellant met Cannon at about room 163. Cannon asked why Hickman had a gun. Appellant told Cannon to run, and she did. Appellant then joined Hickman at room 155. Hickman asked if the man at the door was London, and appellant said no. Appellant testified he knew Curtis, and Curtis did not look anything like London. Appellant then turned and began walking away. He heard three shots. When asked how far he had walked before he heard the shots, appellant replied,
 
        I got to about, I would say, about right here.
 
 
 
        I ran to the truck. Oklahoma said, what did y'all just do? I said, I didn't do nothing, that fool shooting. That is my exact words. Then I'm like, let's go, you know what I'm saying? She was like, naw, we can't leave him like that, but I don't know what he was doing in the room. I'm being totally honest. He stayed in the room at least a minute. I don't know what went on. He came back to the truck, we burn off and went to my momma's house. I'm scared. It is been too crazy of a day, so my momma had just moved off of Sang (phonics), so she told me, don't bring Popcorn around the house, but just this happened, I did. Now he know where my momma stay - we went over there. We chilled out. We smoked more PCP you know what I'm saying? I fed my dogs. I had three dogs in the backyard. I fed my dogs. I had Popcorn, another person to come pick us up. Him-him, his girlfriend, his nephew and his son.
 
        Appellant testified Cannon went upstairs when he told her to and was not around when the shooting happened. Appellant did not see the gun disposed of, he got locked up and was in jail. The last person he saw with the gun was Oklahoma.
        Appellant testified that he was high on PCP during the interview with McNulty. Appellant had smoked PCP with Oklahoma earlier in the day. He said about “9:10 we was flying-.” Defense counsel asked appellant if the interview with McNulty started around 1:00 p.m, or whether it was earlier. Appellant responded,
 
No, on the freeway Juicy was pronounced dead at 10:12 or 10:25, if I ain't mistaken, one of the two. As soon as I went to the hospital, I went straight up to him. I said, bro, you ain't dead, you know what I said? I said, they brought you back yesterday, they can bring you back today. As soon as I said that, the detective tapped me on my shoulder. He said, are you Day Day? I said, yes. He said, do you mind going down to look at the pictures of the lineup of Juicy's murder? I said, no. I said, no-.”
 
         Appellant acknowledged he had previously had a couple of “run-ins” with the police. He had a state jail felony conviction for possession of crack cocaine. Appellant testified he did not believe all of the stuff McNulty was telling him. When he was asked why he confessed to Holmes's murder, appellant replied that Hickman had made threats of hurting appellant's mother and little brother, so appellant believed it would be better to “take the rap” to protect his family.
        Appellant also testified that before the interview with McNulty, he told his friend Jamell Reed what had actually happened. Appellant testified he was at the scene when Curtis was killed, but that he did not kill Curtis and he was sorry it happened. When asked why he went over there, he said to talk about this. He did not know it was going to escalate like it did. If London had been there, appellant would have fought with him. Appellant said he lied when he told McNulty he saw Curtis make a motion like he was going for a gun. In fact, appellant said, everything he told McNulty about having done the shooting and why he did the shooting was a lie. When asked why the jury should believe him now, appellant responded that the jury did not have to believe him, but he was telling the truth. Appellant had no reason to hurt Curtis, but Hickman shot him out of revenge for Holmes's murder.
        On cross-examination, appellant admitted he had been on probation since 2004 for a felony controlled substance offense. He said he had not been doing that well on probation-that he had made a couple of mistakes. He admitted he had not paid any of his fees, not done community service, was not reporting to his probation officer, had tested positive for drugs, and had picked up a new case while on probation. Appellant said he had shared a bed with Holmes when they were younger and his death hurt him a lot. Appellant admitted he was angry about Holmes's death and he wanted someone to pay, but he did not want anyone to get killed. He admitted “back then” he “used to smoke whack every day.”
        In response to a question from one of the jurors about what PCP is, the prosecutor asked appellant if PCP was a kind of drug. Appellant replied, “Yes, embalming fluids.” Appellant said you smoke it and it makes you high. Appellant testified Curtis was killed with a .22-caliber sawed- off rifle. Appellant admitted he had a gun at one time but it was a .25-caliber and would fit in his back pocket. Appellant had a gun when he was selling dope. Appellant did not believe the person who shot Holmes would be at the motel when they arrived-that it would be a “blank trip.” Appellant knew the gun stayed in the truck, but he did not see the gun when he got in. Appellant did not tell McNulty the version he was telling the jury because appellant “was still in the streets. They got me.” He had not talked to Hickman. When questioned about how he knew Hickman made a threat against appellant's family, appellant said Hickman he had made it before he went to the room and after he got back into the truck after killing Curtis. Hickman did not tell appellant what to say on the videotape; appellant just made that up. Appellant did not tell McNulty he was on PCP nor did he tell him about Hickman's threats. Appellant said he just felt he was supposed to take the rap for his momma. Appellant said the whole tape was basically a lie. On the tape appellant said he fired three times. At trial, he said Hickman fired the weapon. Appellant has not talked to Cannon since the shooting. Appellant said he saw the gun at Hickman's side when he got out of the truck. Appellant went over to the door to identify someone.         On redirect-examination, defense counsel asked what specific threats Hickman had made to appellant. Appellant answered, “He said, bro, if you tell, I'm going to get your momma and your little brother. He said, you younger up ain't never been in no trouble, you will get ten years.”
Fatal Variance
 
        In his first issue, appellant asserts the trial court erred in denying the motion for directed verdict based on the name of the deceased as alleged and as proved. Appellant contends the rule of idem sonans is inapplicable because the two names do not sound the same and the names can be distinguished when pronounced out loud. Thus, argues appellant, the evidence is insufficient due to the variance.
        A victim's name is not an element of a criminal offense. Fuller v. State, 73 S.W.3d 250, 252-53 (Tex. Crim. App. 2002). Only a “material” variance between the victim's name as alleged and as proved will render the evidence insufficient. Id. at 253. A variance is material only if it fails to inform the defendant of the charge against him sufficiently to allow him to prepare an adequate defense at trial, or subjects him to the risk of later prosecution for the same crime. Gollihar v. State, 46 S.W.3d 243, 257 (Tex. Crim. App. 2001); see also Tex. R. App. P. 44.2(b) (any variance that does not affect substantial rights must be disregarded).
        The indictment alleges the decedent's name as “Kethony” Curtis. At trial, Williams testified his name was “Kenthony” Curtis. Two police officers testified the name was spelled both “Kethony” and “Kenthony” throughout the police report, and both referred to the same individual. There is no evidence Curtis was known by both names or that there was anyone else name “Kethony” involved in the case. Nor is there any evidence appellant was either confused or surprised by the variance or that he had insufficient notice of the name to allow him to prepare an adequate defense.         We conclude the variance is not a material one. Therefore, the evidence is sufficient to prove Curtis's identity and to protect appellant from a subsequent prosecution for the same offense. We resolve appellant's first issue against him.
 
Sufficiency of the Evidence
 
        In his second and third issues, appellant asserts the evidence is legally and factually insufficient to support the conviction because Cannon was not credible and appellant testified he “took the rap” because he was afraid of Hickman. The State responds the evidence is both legally and factually sufficient to support the conviction.
        In reviewing a challenge to the legal sufficiency of the evidence, we review all of 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 crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex. Crim. App. 2004). The fact- finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.-Dallas 2003, no pet.).
        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. See Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). In conducting this review, we are permitted to substitute our judgment for the jury's on the question of witness credibility and weight of evidence determinations, “albeit to a very limited degree.” See Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), cert. denied, 128 S. Ct. 87 (2007). We will reverse a verdict of guilty on a factual sufficiency challenge only when we can say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. See Watson, 204 S.W.3d at 417.         To obtain the conviction for murder, the State had to prove beyond a reasonable doubt that appellant, acting as a principle or party, knowingly or intentionally caused the death of Curtis by shooting him with a firearm, a deadly weapon, or that appellant, with intent to cause serious bodily injury to Curtis, committed an act clearly dangerous to human life by shooting Curtis with a firearm and caused Curtis's death. See Tex. Penal Code Ann. § 19.02(b)(1), (1) (Vernon 2003). A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both. Id. § 7.01(a). A person is criminally responsible for the conduct of another if, acting with 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. Id. § 7.02(a)(2).
        The State presented evidence at trial, including appellant's confession, that appellant and Hickman went to room 155 of the Best Value Inn looking for London, whom they believed killed Holmes, and seeking retaliation for that killing. Curtis was in room 155 when appellant and Hickman arrived, and was shot and killed. There was evidence that appellant was holding a weapon when the two men arrived at the room, and that appellant was the one who fired the weapon. Appellant testified that he lied when he gave the confession, he “took the rap” because Hickman had made threats against appellant's family, and that Hickman shot Curtis.
        It was the jury's role, as fact finder, to determine the credibility of the witnesses and to resolve the conflicts in the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000). Having reviewed all the evidence under the appropriate standards, we conclude it is legally and factually sufficient to support the conviction. We resolve appellant's second and third issues against him.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          SUE LAGARDE
                                                          JUSTICE, ASSIGNED
 
Do Not Publish
Tex. R. App. P. 47
070354F.U05
 
Footnote 1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Footnote 2 She denied she worked there as a prostitute.
Footnote 3 Fleming explained what an extractor is.