Jerry Wayne Green v. The State of Texas--Appeal from 179th District Court of Harris County

Affirmed and Memorandum Opinion filed January 9, 2007

Affirmed and Memorandum Opinion filed January 9, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-05-01223-CR

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JERRY WAYNE GREEN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 179th District Court

Harris County, Texas

Trial Court Cause No. 1008352

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

A jury convicted appellant Jerry Wayne AWeasey@ Green of murder and assessed punishment at eighty years= confinement in the Texas Department of Criminal Justice, Institutional Division. In two issues, appellant challenges the legal and factual sufficiency of the evidence. We affirm.

I. BACKGROUND

On November 18, 2004, around 11:00 p.m., the complainant Anthony ACraig@ Johnson was shot in the back of the head at a range of less than two feet as he stood watching a group of people play dice in a tire shop.

Two groups of people were gambling at the tire shop. At one table, Sam ABoo@ Davis, ABig Keith@ Spates, Gary Marshall, and Pat were shooting dice, while the complainant was observing. At another table, appellant, Jock, Andrew ADrew@ Toussaint, and Will were playing poker. The poker players left their table. Jock and Will left the tire shop, but Toussaint and appellant stayed inside. When the complainant was shot, Toussaint was standing by the dice table, and appellant was standing near the door, behind the complainant and to his left side. The witnesses initially told the police that they did not see anyone with a gun or observe an altercation; they only heard a gunshot and saw the complainant fall to the floor. He later died at the hospital.

All of those in the tire shop during the shooting testified at trial except for Pat. All gave similar accounts concerning where each person was standing at the time of the shooting and what appellant said following the shooting. However, only Davis testified that he saw appellant shoot the complainant. Spates testified that he did not see the shooting, but looked at appellant after the shot was fired and saw appellant holding a revolver. Marshall testified that he did not see the shooting or the gun but heard appellant say, AHe trying to get Drew jacked.@ Toussaint testified that he did not see appellant with a gun but that appellant said immediately following the shooting that the complainant was planning to rob him.

No bullet casings or slugs were recovered, either in the victim=s body or at the tire shop. The bullet entered and exited the complainant=s skull but was not found anywhere on the ground. Officers testified that it is normal not to find bullet casings at the scene of a crime if a revolver was used. They also testified that it is equally common not to find bullet slugs. The testimony from police and medical experts was consistent with the witnesses= placement of appellant relative to the victimCmeaning, that the testimony and physical evidence was consistent in placing appellant within two feet of the complainant, to his rear left side. However, there was no physical evidence linking appellant to the shooting.

Appellant briefly testified in his own defense. He expressly denied killing the complainant. He also presented testimony from Toussaint and others around the neighborhood that appellant never carried a weapon. Additionally, appellant=s witnesses testified that the State=s eyewitnesses did not have a good reputation for truthfulness and one of them had previously threatened appellant with a gun.

II. ANALYSIS

A. Legal Sufficiency

In his first issue, appellant contends the evidence was legally insufficient to sustain his conviction. In a legal-sufficiency challenge, we employ the familiar standard of viewing the evidence in the light most favorable to the verdict. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). If any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt, we will affirm. Id. Although we consider all evidence presented at trial, we may not re weigh the evidence and substitute our judgment for that of the jury. Id. The jury is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony, and it is the exclusive province of the jury to reconcile conflicts in the evidence. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).

Appellant maintains that the evidence amounts to no more than strong suspicion of his guilt. Appellant posits that it is equally as likely that one of the eyewitnesses shot the complainant as it is that he shot him. However, given the state of the evidence, appellant essentially asks us to determine that the jury=s assessment of witness credibility was erroneous and to invalidate that assessment, which we cannot do.

Davis testified that he saw appellant shoot the complainant. Spates testified that immediately following the shooting, he saw appellantCand no one elseCwith a gun in his hand. Davis, Spates, Marshall, and Toussaint testified that after the shooting, in response to an inquiry as to why the complainant was shot, appellant told Toussaint to leave and that the complainant was planning to rob Toussaint. Thus, there is both direct and circumstantial evidence that positively identifies appellant as the shooter. Accordingly, the evidence is legally sufficient to support appellant=s conviction. We overrule appellant=s first issue.

B. Factual Sufficiency

In his second issue, appellant challenges the factual sufficiency of the evidence. When conducting a factual sufficiency review, we view all of the evidence in a neutral light. Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We may set the verdict aside if: (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414B15 (Tex. Crim. App. 2006) (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). However, while we may disagree with the jury=s conclusions, we must exercise appropriate deference to avoid substituting our judgment for that of the jury, particularly in matters of credibility. Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005); see also Watson, 204 S.W.3d at 414 (stating that a court should not reverse a verdict it disagrees with, even though supported by legally sufficient evidence, unless the verdict represents a manifest injustice). Also, in our review, we must discuss the evidence that, according to appellant, most undermines the jury=s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

Turning to the first basis upon which we may reverse, the evidence was not so weak that the verdict is clearly wrong and manifestly unjust. Among the eyewitnesses who testified, one stated that he actually saw appellant shoot the victim. The others provided circumstantial evidence, such as appellant being the only one holding a gun immediately following the shooting and appellant providing an apparent explanation for the shooting. The physical evidence also supports the eyewitness accounts. While appellant attempted to undermine the witnesses= credibility at trial, it was ultimately the jury=s province to accept or reject that testimony. The jury did so, and its verdict is not clearly wrong and manifestly unjust.

The only evidence presented at trial directly refuting the State=s case is appellant=s testimony unequivocally denying that he murdered the complainant. Additionally, Toussaint testified that he did not observe appellant with a gun, even after the shooting. However, Toussaint also testified that it is possible appellant had a gun, but he simply could not see it. The jury was faced with competing theories: the eyewitness accounts placing appellant as the shooter, or appellant=s denial that he was the shooter. It is the jury=s role to chose between those theories, which it did.

The verdict is neither clearly wrong and manifestly unjust, nor is it against the great weight and preponderance of the evidence. Rather, it reflects the jury=s decision to believe some of the witnesses, and not others, which is its role. The evidence is not factually insufficient. We overrule appellant=s second issue.

III. Conclusion

Having overruled both of appellant=s issues, we affirm the trial court=s judgment.

/s/ Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed January 9, 2007.

Panel consists of Justices Yates, Anderson, and Hudson.

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