AHMAD RASHAD SPENCER, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed January 7, 2010.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-00895-CR
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AHMAD RASHAD SPENCER, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court
Dallas County, Texas
Trial Court Cause No. F07-57242-VH
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OPINION
Before Justices Bridges, Lang, and Lang-Miers
Opinion By Justice Lang-Miers
        A jury convicted Ahmad Rashad Spencer of murder and assessed punishment at ninety-nine years' imprisonment. In a single issue, appellant contends the evidence is factually insufficient to support the conviction. We affirm.
Applicable Law
 
        In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the fact-finder's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App.), cert. denied, 552 U.S. 920 (2007); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), cert. denied, 552 U.S. 842 (2007). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to give to contradictory testimony. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). To obtain a conviction for murder, the State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly caused the death of Damon Galloway by shooting him with a firearm, a deadly weapon. See Tex. Penal Code Ann. § 19.02(b (Vernon 2009).
Evidence Presented
 
        On September 22, 2007, Damon Galloway was shot and killed in a parking lot behind an after-hours club. Sarah Higginbotham, Galloway's fiancé, testified she and Galloway drove together to True Ballin Records, a club that opened around midnight. Andre Preston, Galloway's uncle, and Michelle Lopez, a friend, followed them in another vehicle. When the four of them arrived at the club, they stood around and listened to the music. Both Higginbotham and Galloway had taken ecstasy prior to going to the club, and they each had an alcoholic drink at the club. After being in the club a short time, Higginbotham went to the ladies room. When she came out, a man, later identified by her as appellant, grabbed her arm and said, “[C]ome here real quick.” Higginbotham told appellant she was there with her boyfriend, then turned to walk away. Appellant grabbed her arm again. At this point, Galloway stepped between appellant and Higginbotham and said, “[H]ey, back up off of my girlfriend.” Galloway and appellant “exchanged words.” Preston and Higginbotham pulled Galloway back, telling him not to argue with appellant. Appellant said, “[N]o problem, no problem. We're grown-ups.” After Galloway and appellant calmed down, everyone went back to their respective areas, believing that the disagreement was over. A short time later, Higginbotham, Galloway, Preston, and Lopez left the club and walked to their cars, which were parked in a lot between the rear of the club and a funeral home. As Higginbotham went to the passenger side of the car and Galloway went to the driver's side, appellant walked up to Galloway and put his arm around him. Higginbotham heard a gunshot, then saw Galloway fall back. Appellant started jumping around and laughing. When Higginbotham ran around the car to Galloway, appellant pointed the gun at her and fired. She fell to the ground. Appellant ran from the scene. Higginbotham got up and yelled for help. She and Preston put Galloway in the back seat of her car, then she drove to a nearby hospital, where Galloway was pronounced dead on arrival. When hospital staff removed Higginbotham's clothing to treat her gunshot wound, a bullet fell out of her bra. Later that morning after she was released from the hospital, she went to the police station and gave a statement. Higginbotham described the shooter as a man in his “late twenties, five-feet-nine or five-feet-ten inches tall, heavyset, stocky, with facial hair, and wearing dark clothing and a colorful bandana with a hat over it and braided hair.” Higginbotham viewed a photographic lineup at 11:15 a.m. on September 22, 2007, and selected appellant's picture as showing the man she saw shoot Galloway. Higginbotham testified that at the time of the shooting, she did not see anyone except appellant holding a gun.
        Andre Preston testified he and Galloway parked in the back of the club near the funeral home. He, Lopez, Galloway, and Higginbotham entered the club at the back door, going through a metal detector administered by club personnel. The place was crowded, so the four of them stood against a wall near the DJ's station. Preston testified he did not have any drugs or alcohol that evening. When Higginbotham went to the ladies room, Galloway went into the men's room. Preston and Lopez stood in the short hallway that led to the restrooms and waited for them. Higginbotham came out first. Appellant approached Higginbotham and grabbed her arm. Preston heard Higginbotham say she had a boyfriend and her boyfriend was there with her. Higginbotham turned to walk away, but appellant grabbed her arm again. Galloway came out of the men's room and told appellant that Higginbotham was his girlfriend. Appellant said something to Galloway, and Galloway told appellant to leave Higginbotham alone. Preston stepped between the men and said, “[W]hat's going on. This is a misunderstanding. That's his girlfriend.” Appellant said, “[I]t ain't no problem. We all grown men. It ain't no problem.” Everyone went back to what they were doing before the altercation.
        Preston testified he noticed appellant going in and out of the club several times. Appellant was acting “hyper,” and talked to several people while looking over at Galloway. Preston told Galloway they should leave. Both Galloway and Higginbotham wanted to have their picture taken before leaving. About thirty minutes after the altercation, Galloway, Higginbotham, Preston, and Lopez left the club. As Preston was getting into the driver's side of his car, he heard Galloway call his name twice. Preston saw appellant approaching Galloway with a gun in his hand. Appellant put the gun to the back of Galloway's head and said, “[I]'m going to kill you motherfucker, and I'm going to take everything you got.” Appellant shot Galloway in the head, then pointed the gun at Preston. Preston ran to the back end of his vehicle. He heard another gunshot before he moved around to the front end of his vehicle. He heard two more shots. Preston saw appellant point the gun at Higginbotham and fire. Higginbotham fell to the ground. Appellant began jumping around and laughing. Preston testified he saw two other people with guns “scattered” in the area, but they were “far back” from appellant. After appellant ran from the scene, Higginbotham got up. Both she and Preston put Galloway in the back seat of Higginbotham's car, and she drove away. Preston testified he left the scene because he was scared and did not know if appellant would come back. He called the police later that evening. A detective came to his house and took his statement. Preston described the shooter as a man standing “five-feet-ten inches, very stocky with a thick neck and lots of tattoos, and wearing a black shirt, a red, white, and blue bandana, and a white cap.” The detective showed Preston a photographic lineup at 9:02 p.m. on September 22, 2007. Preston selected appellant's picture as showing the man he saw shoot Galloway and Higginbotham.
        Michelle Lopez testified she rode to the club with Preston. She had one alcoholic drink while in the club. Lopez testified that after Higginbotham came out of the ladies room, a man grabbed her arm. Galloway came out of the men's room and said, “[T]hat's my girl.” Higginbotham got between the man and Galloway and told them not to argue. After the disagreement was over, everyone went back to what they were doing. A few minutes later, Lopez saw the man talking with several other people in the club; the man was acting “real jumpy and hyper” and was saying “I'm going to murk him. I'm going to murk him,” meaning he was going to “murder him.” Lopez told Galloway what the man was saying, but Galloway did not take it seriously. Lopez testified she, Preston, Galloway, and Higginbotham left when the club was closing. She walked to the passenger side of Preston's car. At that same time, the man who had earlier grabbed Higginbotham came from an area near bushes and walked up to Galloway. Lopez saw the man put his arm around Galloway. She saw something in the man's hand, then she saw the flash of gunfire by Galloway's head. Galloway fell to the ground. She stood frozen. She saw more flashes of gunfire, then Preston pushed her and told her to run. She ran toward the club. The man pointed the gun at her, but she did not recall if he fired or not. Lopez ran inside the club and ran out through the front door. When she saw Higginbotham driving through the parking lot, she flagged her down and got in the car. Higginbotham drove to the hospital with Galloway in the back seat.
        Lopez testified she gave a statement to a detective the next night. Lopez said she was scared and in shock and did not start at the beginning of the evening because she was trying to get to the point of what happened. She described the shooter as a man wearing a “white T-shirt and a flag bandana on his head with a hat over it.” She told the detective the man wore his hair in “twisties or braids.” The detective showed Lopez a photographic lineup, but she was not able to pick out anyone. Lopez testified she is sure the man who grabbed Higginbotham at the club was the same man she saw shoot Galloway. Lopez identified appellant in court as the person she saw shoot Galloway. She admitted her statement to the police did not mention the man threatening to murder Galloway, but she insisted she told the detective about the man saying he would “murk him.”
        Reginald Peterson, the club's manager, testified that True Ballin Records is a music studio and after-hours club that opens between 11:00 p.m. and midnight. Peterson and appellant grew up in the same neighborhood and attended the same schools. Peterson testified that on September 22, 2007, he arrived at the club at 3:30 a.m. and saw that appellant was upset and angry. Appellant told Peterson that Galloway had “touched him.” Peterson tried to calm appellant, telling him to go outside for a few minutes. Appellant went in and out of the club several times, appearing more upset each time he came inside. When appellant finally left the club, both Galloway and Higginbotham were still inside. Approximately thirty minutes after appellant had left, the club was closing. The shooting occurred as people were leaving. Many of them ran back inside the club. No one stayed to talk with the police or even called the police because that is against the neighborhood rules. Peterson left the club at about 5:30 a.m. and did not wait for the police. He did go to the police station later that day and give a statement. Peterson told the police appellant was wearing a dark shirt and a red, white, and blue bandanna on his head with a hat over it. Appellant's hair was braided. Peterson viewed a photographic lineup at 3:49 p.m. on September 22, 2007, and selected appellant's picture as the man who told him that Galloway had touched him.
        Darnell Daniels, an employee of the club and the brother of the club's owner, testified he “worked the door,” and had seen appellant at the club on prior occasions. Daniels was at the door when appellant came and talked to him. Appellant said he and another man “got into it” over a girl. Appellant was upset. Daniels was inside the building when the shooting occurred. He talked with a detective later that day. Daniels viewed a photographic lineup at 2:45 p.m. on September 22, 2007, and selected appellant's picture as the man he talked to who was upset. Daniels testified he cleaned up the parking lot every day after the club closed because the funeral home's owner, who owned the lot, did not like bottles and other trash near her establishment. The funeral home had floodlights above each garage door, and the lights were illuminated on the night of the shooting.
        Detective John Davison testified only two people who actually saw the shooting selected appellant's picture from a photographic lineup. Both Higginbotham and Preston chose appellant's picture without hesitation. Davison interviewed two other witnesses, Felicia Grant and Gidgett Ware, who said they drove up to the club and saw a woman shooting a gun. They said the woman was “at a distance from the club” when they saw her shooting. Davison testified appellant was arrested on October 2, 2007. Appellant did not testify or present any evidence during the trial.
Discussion
 
        Appellant contends the evidence is factually insufficient because the witnesses' identification of him as the shooter was unreliable. Appellant argues the lighting in the parking lot where the offense occurred was questionable; Higginbotham's testimony was not credible because she had consumed alcohol and drugs prior to the shooting; Lopez's in-court identification of appellant as the shooter was unreliable because it is obvious who is the accused at trial, and she could not pick out appellant from a photographic lineup shortly after the offense had occurred; and although Preston identified him in a photo lineup and in court, his testimony was unreliable. The State responds that the evidence is factually sufficient to support the conviction because the jury determined the witnesses' credibility.
        The jury heard Daniels's testimony that the parking lot where the shooting occurred was illuminated by floodlights above the funeral home's garage doors. Both Higginbotham and Preston identified appellant in a photographic lineup and in court as the person they saw shoot Galloway. While Higginbotham admitted she had taken ecstacy and consumed an alcoholic drink that evening, she told the jury she was aware of her surroundings and everything that had occurred.
        Appellant argues that Preston's testimony is unreliable because he testified he heard appellant make a threatening statement to Galloway before appellant shot him, but other witnesses who were nearby did not hear appellant say anything. The jury was free to accept or reject any and all of a witness's testimony and to draw reasonable inferences from the testimony. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007) (the trier of fact draws reasonable inferences in manner that supports verdict).
        Viewed under the proper standards, we conclude the evidence is factually sufficient to support the conviction. See Roberts, 220 S.W.3d at 524. We resolve appellant's sole issue against him.
        We affirm the trial court's judgment.
 
                                                          
                                                          ELIZABETH LANG-MIERS
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
080895F.U05