GREGORY MATTHEW THOMPSON, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and AFFIRM as REFORMED and Opinion Filed November 24, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-01033-CR
No. 05-07-01068-CR
No. 05-07-01076-CR
No. 05-07-01158-CR
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GREGORY MATTHEW THOMPSON, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F04-53057-NR, F05-44096-QR, F04-53056-R, and F05-44107-QR
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OPINION
Before Justices Morris, Whittington, and O'Neill
Opinion By Justice O'Neill
        Appellant appeals jury convictions for murder and aggravated assault. He also appeals a judgment adjudicating him guilty for possession with intent to deliver cocaine and a judgment revoking his community supervision for robbery. In six points of error, appellant generally contends (1) the evidence is factually insufficient to support his murder and aggravated assault convictions, (2) his sentence in the possession with intent to deliver case is cruel and unusual, and (3) the judgments in the possession and robbery cases must be reformed to reflect appellant's pleas of not true to the allegations in the motion to adjudicate and the motion to revoke. For the following reasons, we affirm appellant's convictions for murder and aggravated assault. We also reform the judgments in the possession and robbery cases and affirm those convictions as reformed.
        We will first consider appellant's points of error attacking the factual sufficiency of the evidence to support his jury convictions for murder and aggravated assault. The evidence at the trial of those offenses showed the following. On the night of the offenses, tensions at a highschool football game caused officials to disburse a crowd that had formed in the parking lot of the stadium. A large group of students then went to a nearby Sonic restaurant for an “afterparty.” Fights broke out among several different groups of students. In one of these altercations, a male student, Brandon Sharp, hit a female student, who police later learned was appellant's younger sister.
        Shortly thereafter, an older group of males, including appellant, Nadeem Raza, and Kendrick Summons appeared in the parking lot asking for “Little Brandon.” Appellant and his friends got into an argument with a group of students that included Brandon Sharp. When someone threw a punch, Summons pulled out a gun and fired a single shot into the air. The individuals in the crowd started running away. Appellant then took the gun from Summons and began firing at the crowd. Raza also pulled out a gun and fired at the crowd. Jason Martin, a highschool student, was shot in the head and died later that night. Martin's cousin, Phillip Colbert, also a highschool student, was beside Martin when he was shot.
        The jury was charged on the law of parties. The jury found appellant was guilty, as a principal or a party, of both the murder of Martin and the aggravated assault of Colbert. This appeal followed.
        In his first and second points of error, appellant contends the evidence is factually insufficient to support his jury convictions because the State failed to prove he personally committed the offenses and also failed to show his guilt as a party. In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury's verdict of guilt was rationally justified. See Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008); Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007). We determine whether (1) the proof of guilt is so obviously weak as to undermine confidence in the fact finder's verdict, or (2) the proof of guilt, even if sufficient standing alone, is greatly outweighed by contrary proof. See Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App.2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App.1996). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to give contradictory testimony. Lancon, 253 S.W.3d at 705.
        A person commits murder if he (1) intentionally or knowingly causes the death of an individual or (2) intended to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. Tex. Penal Code Ann. § 19.02(b)(1) & (2) (Vernon 2003). A person commits aggravated assault if he intentionally or knowingly threatens another with imminent bodily injury and he uses or exhibits a deadly weapon. Tex. Penal Code Ann. § 22.02(a)(2) (Vernon 2003).
        The jury was instructed to find appellant guilty if it believed beyond a reasonable doubt that appellant committed the offenses as a principal or as a party. Thus, the jury could have found appellant guilty if appellant personally committed the offenses. In the alternative, it could have found appellant guilty if Summons or Raza committed each element of the offenses and appellant (1) intended to promote or assist the commission of the offenses, and (2) encouraged, aided or attempted to aid commission of offenses. See Tex. Penal Code Ann. § 7.02(a)(2) (Vernon 2003).
        Circumstantial evidence may be used to prove someone is a party to an offense. Ransom v. State, 920 S.W.2d 288, 302 (Tex.Crim.App.1994). Although presence at the scene of an offense alone is insufficient to support a conviction, it can be a circumstance tending to prove guilt, which, combined with other facts, may suffice to show that the accused was a participant. See id. In determining whether the accused was a party, it is proper to look to events occurring before, during, and after the commission of the offense, and to rely on actions of the defendant which show an understanding and common design to do the prohibited act. Id.
        Appellant first asserts the evidence is factually insufficient to show his guilt as a principal. He complains the State failed to prove he personally shot the bullet that killed Martin or fired a gun toward Colbert. He also asserts the evidence is factually insufficient to prove he was guilty as a party to the offenses because the State failed to show the person that did fire at Martin and Colbert intended to cause death or serious bodily injury. Finally, he asserts the State failed to show that he acted with intent to promote or assist commission of the offenses. We disagree with each of appellant's assertions.
                        The evidence shows that appellant and three or four other individuals, including Summons and Raza, inserted themselves into a highschool altercation. Both appellant and Raza had guns and fired shots at a crowd of students, including Martin and Colbert. One bullet hit Martin in the head, killing him. A jury can infer intent to cause death or serious bodily injury from use of a deadly weapon in a deadly manner. See Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App.1996). Thus, the jury could rationally infer the shooter - whether it was Raza or appellant - had the requisite intent. Likewise, the intent to threaten Colbert can be inferred from firing a deadly weapon toward him.
        Moreover, the jury could infer from appellant's actions before, during, and after the shooting that he was acting with the intent to promote or assist commission of the offenses and encouraged or aided commission of the offenses. The individuals arrived in the parking lot, armed with guns, shortly after appellant's sister had been assaulted by another student. When a punch was thrown, Summons fired a shot in the air. Appellant then grabbed the gun and started shooting at the crowd. Contrary to appellant's assertion, the evidence does not show he fired only in the air or at the ground. Viewing all the evidence neutrally, we conclude the evidence is factually sufficient to support the jury's verdicts. See Patterson v. State, 950 S.W.2d 196, 202 (Tex. App.-Dallas 1997, pet. ref'd) (evidence legally and factually sufficient to support murder conviction when codefendant fired bullet that killed victim, but the appellant had pointed gun toward victim and pulled trigger). We overrule appellant's first and second points of error.
        In his third and fourth points of error, appellant asserts the punishment imposed for his conviction for possession with intent to deliver cocaine was cruel and unusual. Appellant was on deferred adjudication probation for possession with intent to deliver when he committed the above murder and aggravated assault offenses. After the jury found appellant guilty of those offense, the trial court adjudicated him guilty in the possession case and assessed his punishment at sixty years' confinement. Appellant did not complain about the sentence either at the time it was imposed or in his motion for new trial. See TEX.R.APP. P. 33.1(a)(1); Castaneda v. State, 135 S.W.3d 719, 723 (Tex.App.-Dallas 2003, no pet.). Even constitutional rights, including the right to be free from cruel and unusual punishment, may be waived. Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App.1996); Castaneda, 135 S.W.3d at 723. Because appellant did not object to his sentence, he has not preserved any error for review. Castaneda, 135 S.W.3d at 723. We overrule appellant's third and fourth points of error.
        In his fifth and sixth points of error, appellant requests we reform the judgments in cause number F04-53056-R revoking his community supervision and in cause number F04-53057-R adjudicating his guilt. In these cases, appellant pleaded not true to the State's allegations in the motion to revoke and the motion to adjudicate. However, the judgments in these cases state appellant pleaded true to the allegations. The State agrees the judgments should be reformed to show appellant's actual pleas. An appellate court may reform a judgment when it has the necessary information to do so. Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.-Dallas, pet. ref'd). Accordingly, we sustain appellant's fifth and sixth points of error and reform the judgments in both cases to show appellant pleaded not true to the allegations in the State's motion to revoke probation and the motion to adjudicate.
        We affirm the trial court's judgments of conviction in the murder and aggravated assault cases. We reform the judgments in the possession with intent to deliver and robbery cases and affirm those judgments as reformed.
 
 
                                
                                                          
                                                          MICHAEL J. O'NEILL
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
071033F.U05