Kevin Edward Connors v. The State of Texas--Appeal from 339th District Court of Harris County

Affirmed and Memorandum Opinion filed August 10, 2006

Affirmed and Memorandum Opinion filed August 10, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00126-CR

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KEVIN EDWARD CONNORS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 339th District Court

Harris County, Texas

Trial Court Cause No. 937,946

M E M O R A N D U M O P I N I O N

Appellant, Kevin Edward Connors, appeals his conviction for murder. In four issues, he contends that the evidence is legally and factually insufficient to support his conviction. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4

I. Background

In the early morning hours of January 30, 2003, appellant drove a Sport Utility Vehicle (SUV) toward the deceased, Adrian Heyne. Heyne was thrown off the hood and died as a result of injuries sustained when his head struck the pavement. According to appellant, he was leaving a local bar to avoid an altercation with Heyne when Heyne charged the vehicle and leapt up onto the hood. In contrast, the State claimed that appellant intentionally struck Heyne with the vehicle, and Heyne attempted to pull himself onto the hood to lessen the impact. A jury found appellant guilty of murder, and the trial court assessed punishment at forty-five years= imprisonment.

II. Legal Sufficiency

In his first two issues, appellant contends the evidence is legally insufficient to support his conviction. In reviewing the evidence for legal sufficiency, we must view all evidence in the light most favorable to the verdict to determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). We consider all evidence when determining legal sufficiency, including admissible and inadmissable evidence, and the same standard of review is applied to direct and circumstantial evidence. See Johnson v. State, 967 S.W.2d 410, 411B12 (Tex. Crim. App. 1998); King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995).

A person commits murder if he intentionally or knowingly causes the death of an individual or intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. TEX. PEN. CODE ANN. ' 19.02(b)(1)-(2) (Vernon 2003). AA person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient.@ TEX. PEN. CODE ANN. ' 6.04(a) (Vernon 2003).

Appellant argues scientific evidence conclusively established that Heyne propelled himself onto the hood of the vehicle. Therefore, appellant contends that a rational jury could not have concluded beyond a reasonable doubt that appellant knowingly or intentionally caused Heyne=s death by striking him with the SUV.

Two of the State=s experts testified regarding the type of injuries expected in automobile/pedestrian collisions. The pedestrian would likely sustain bone fractures if the vehicle was traveling more than fourteen miles per hour. If the vehicle was traveling less than twenty-five miles per hour, a pedestrian would be knocked over in the direction the vehicle is traveling or to the side. If the vehicle was traveling from twenty-five to thirty-five miles per hour, a pedestrian would be flipped onto the hood. If the vehicle was traveling more than fifty miles per hour, a pedestrian would be flipped onto the top or trunk of the vehicle or thrown over the vehicle. Because Heyne did not sustain bone fractures from the collision, the experts agreed that the vehicle was traveling less than fourteen miles per hour at the time of impactCa speed insufficient to flip Heyne onto the hood.

However, when presented with hypothetical scenarios by the State, both experts agreed that it was possible for a pedestrian struck by a vehicle traveling at less than fourteen miles per hour to push up onto the hood to avoid greater impact, be carried along by the vehicle for a few seconds, and then be thrown off the hood when the driver turns sharply or slams on the brakes. When presented with hypothetical scenarios by appellant, the experts also agreed that the same result could occur if the pedestrian was not struck but aggressively leapt onto the hood of the vehicle. Thus, the scientific evidence is consistent with both the State=s and appellant=s explanations.

In addition to the scientific evidence, the State presented testimony from three witnesses. Heyne=s romantic partner was in the parking lot of the bar with Heyne shortly before his death. She testified that she saw the SUV stopped at the entrance to the bar with its lights on and engine running. Appellant and Heyne exchanged words at another bar approximately one hour earlier. Fearing another altercation between the two parties, she pleaded with Heyne to get into his car. Heyne ignored her pleas and walked toward the SUV. When he came within about four feet of the vehicle, appellant accelerated and struck Heyne with the front of the SUV. Appellant then Aslammed@ on his brakes, and Heyne flew off the hood.

A second witness was in the parking lot of the bar waiting for a taxi before Heyne=s death. The witness testified that Heyne told him to Ago get help@ and Ago get the bouncer.@ He saw the SUV stopped at the entrance of the bar with its headlights on. He turned toward the bar to get help when he heard tires Apeeling out.@ He turned back around and saw the SUV hit Heyne, throwing him over the top of the vehicle. The incident happened too quickly for Heyne to move out of the vehicle=s path. The witness chased the SUV, but the driver did not stop.

A third witness was appellant=s friend and a passenger in the SUV the night in question. He testified that Heyne was running toward the SUV and appellant A[hit] the gas@ when Heyne was about ten to fifteen feet away. He further testified that, although the SUV did not strike Heyne, Heyne Apushed off away from the vehicle, like he was trying to get out of the way.@

An investigating officer testified that he found brake and acceleration marks at the crime scene. Another officer testified that the SUV had been washed and detailed the day after Heyne=s death. The officer also testified that appellant gave evasive answers to the police when asked about his whereabouts the night of the death.

Viewing the evidence in the light most favorable the State, we conclude that the evidence is legally sufficient to support appellant=s conviction. The scientific evidence is consistent with the State=s explanation that Heyne was struck by the SUV and pushed up onto the hood to lessen the impact of the collision. Other evidence shows that after arguing with Heyne earlier that evening, appellant drove to the same bar as Heyne and sat stationary at the entrance to the parking lot with the lights on and engine running. Witnesses testified that appellant struck Heyne with the SUV, fled the scene, and had the SUV washed and detailed the next day. Although the witness accounts differ with respect to some details, and one witness testified that the SUV did not strike Heyne, we must defer to the jury=s reconciliation of the conflicts, contradictions, and inconsistencies in the evidence. Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982). A rational jury could have concluded appellant caused Heyne=s death by striking him with the SUV with the knowledge or intent to kill, or that he struck Heyne with the SUV in an act clearly dangerous to human life with the intent to cause serious bodily injury. Accordingly, we overrule appellant=s first two issues.

III. Factual Sufficiency

In his third and fourth issues, appellant contends the evidence is factually insufficient to support his conviction. In reviewing the evidence for factual sufficiency, we must view all the evidence in a neutral light and A. . . set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.@ Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). The evidence is factually insufficient if (1) it is too weak to support the finding of guilt beyond a reasonable doubt, or (2) the contrary evidence is so strong that a reasonable jury could not find guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004).

In support of his factual insufficiency claim, appellant refers to the testimony of a security officer who witnessed the earlier argument between appellant and Heyne in the parking lot of the other bar. Heyne took off his shirt and began walking toward appellant=s vehicle. Appellant accelerated and left the parking lot. The security officer did not see a physical confrontation but did not witness the entire argument.

Two other witnesses testified regarding the previous altercation. The passenger in appellant=s SUV testified that Heyne hit appellant in the jaw. After he was struck, appellant and his passengers got in the SUV and left as quickly as they could. Heyne=s romantic partner testified that she saw Heyne tapping on the door or window of the SUV as appellant was trying to leave. She also heard Heyne ask appellant why he would not get out and fight.

Appellant also refers to the passenger=s testimony concerning the incidents causing Heyne=s death. The passenger testified that appellant drove into the parking lot of bar and stopped as soon as he saw Heyne. Heyne began making stretching movements like he was preparing to fight. He took off his shirt and began running toward the SUV. The passenger told appellant to AGo, go, get on it. Just get out of here@ and Apunch it.@ Appellant then A[hit] the gas and swerv[ed] away.@ Appellant said something about Heyne chasing the SUV, and the passenger again told appellant to Ago, go, go.@ He further testified that the SUV was detailed the next day because it got stuck in the mud earlier that evening and was extricated by a wrecker.

Appellant=s ex-girlfriend testified that he and his two passengers stopped at her house the night of Heyne=s death, and all three were caked in mud. She is a medical assistant, so appellant asked her to examine his jaw, which appeared swollen. Appellant and his passengers talked about Heyne Acharging@ the SUV, but they all appeared calm. They did not indicate there was any reason to call the police or an ambulance.

Appellant also notes that all of the witnesses testified that they had been drinking that night, and Heyne=s blood-alcohol content was .27, near a stage the medical examiner described as Astuporous.@ Appellant further points out that the crime scene was left unsecured for approximately twenty minutes, and an investigating officer indicated it was possible for the acceleration and brake marks to have been made by a different vehicle.

Viewing the evidence in a neutral light, we find factually sufficient evidence to support appellant=s conviction. Appellant=s actions in fleeing the scene and having the SUV detailed the next day are inconsistent with his explanation that Heyne=s death was an accident caused by Heyne=s own attempt to vault onto the hood of the vehicle. Although the passenger in the vehicle and appellant=s ex-girlfriend gave other explanations for appellant=s behavior, the jury could have reasonably disbelieved the testimony from appellant=s friends. We must not substitute our own findings for the jury=s finding; the jury acts as the sole judge of witness credibility and the weight of the evidence. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). Here, the jury could have reasonably believed that appellant intentionally or knowingly caused Heyne=s death by striking him with the SUV, or that he struck Heyne with the SUV in an act clearly dangerous to human life with the intent to cause serious bodily injury. The State=s evidence is not too weak to support a finding of guilt beyond a reasonable doubt, and the contrary evidence is not so strong that it would prevent a rational jury from finding guilt beyond a reasonable doubt. Accordingly, appellant=s third and fourth issues are overruled.

The judgment of the trial court is affirmed.

/s/ Charles W. Seymore

Justice

Judgment rendered and Opinion filed August 10, 2006.

Panel consists of Justices Hudson, Fowler, and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).