David Randolph Strong v. The State of Texas--Appeal from 338th District Court of Harris County

IN THE

TENTH COURT OF APPEALS

No. 10-01-353-CR

DAVID RANDOLPH STRONG,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 338th District Court

Harris County, Texas

Trial Court # 854,658

O P I N I O N

David Randolph Strong, Jr. appeals his conviction for the offense of aggravated assault; he was sentenced to fifteen years confinement. He raises three issues for our review: the evidence is both (1) legally and (2) factually insufficient to support the conviction; and (3) in closing argument, the prosecutor supposedly referred to facts that were not established by the evidence. Finding no error, we will affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In May 2000, then eighteen-year-old Precious Arceneaux began dating Strong. The two met during job training at a Job Corps program in San Marcos, Texas. By July, the couple were engaged to be married. In the meantime, Precious had moved back home to Houston to live with her mother and begin work as a certified nurse s aide. Strong also moved back to Houston to live with his parents. On August 30, Precious telephoned Strong and told him that she did not want to marry him. The next day, Strong called her and asked if she would like to go out and get ice cream. She agreed, and he picked her up around 3:00 p.m.

After they finished eating ice cream, Strong told her that he needed to buy a tire because his car had a flat. Precious protested about going with him to the other side of town, but he urged her to go and she complied. Precious, however, continued to argue with him about having to accompany him. They also argued about their breakup. Precious declared once again that they were no longer together. Strong pulled the car over on the shoulder of Interstate-10, grabbed the passenger-side seatbelt, and began choking her with it. He then drove back onto the freeway, exited, and stopped the car underneath an interstate overpass.

Strong forced Precious out of the car, grabbed a blue backpack from the backseat, and retrieved a gun from the backpack, placing it in his pants. He told Precious to walk with him towards nearby railroad tracks. The two went behind a train-car to a small body of standing water. Strong commanded her to stand near the water and to walk backwards toward him. Then, while pointing a gun at her, he said I can t take it anymore. Precious tried to convince him not to shoot her; she told him that she still loved him and that they could work it out. Precious remembers being shot once, and her next memory is of waking up, lying face down in the mud by the water.

When she regained consciousness, she saw her blood on the ground, and she felt wet-blood on the left side of her face. She crawled underneath the train-car and stood in the middle of the road until an approaching car stopped. Mary and Joe Hardberger had taken the same exit as Strong off the interstate, and they by chance came into contact with Precious. Mary Hardberger testified that she had seen Precious coming out of heavy tree brush onto the road that she and Joe were driving on. Joe rolled down his window and Precious told them that her ex-fiancé had shot her and she could not hear very well.

Mary said that Precious had dried, caked blood coming out of her mouth. Her clothes were wet and muddy. She noticed what appeared to be a hole in Precious s chest and dried blood on her neck. She used her cellular telephone to call 911" for medical assistance, and the operator dispatched an ambulance to their location. Precious complained to Mary mostly about her head hurting. Mary asked, who shot you? And Precious replied, He was my fiancé. Precious then said I want my momma. Please call my momma. Mary used her cellular telephone to call Precious s mother, but was unsuccessful.

James Harlow, an emergency services technician employed by the Houston Fire Department, attended to Precious before she was transported to a local hospital for surgery. Harlow testified that Precious told him that she and her boyfriend had been in an argument and he had shot her. The incident report by Harlow s partner indicated that Precious told them that she was unsure what kind of gun Strong used or how many times he shot at her. At the hospital, it was determined that Precious had suffered two gunshot wounds: (1) to the left side of her chest; and (2) in the back of her head.

On September 3, Precious, having just been released from the hospital, accompanied the Houston police investigators to the crime scene. Precious spotted her keys near the small body of water, which was a drainage ditch. The investigators also found one spent shell casing and a rock with dried blood on it. The next day, Houston police officer Leonard Dawson of the homicide division arrested Strong at his parents home. Strong was taken into custody without any incident; officers searched his car but found only a blue backpack and no gun.

Strong was charged by indictment with the felony offense of aggravated assault. He pled not guilty to the charge. A jury found him guilty, made a deadly weapon finding, and assessed his punishment at 15 years confinement. Strong then brought this appeal.

DISCUSSION

Issue (1): Legal Sufficiency Claim

Strong s first issue is that because Precious s testimony about him being the shooter was not corroborated by any evidence linking him to the alleged offense, the evidence is legally insufficient to support a conviction. Strong emphasizes that: (1) there was no witness other than Precious who saw him at the secluded location; and (2) the investigators failed to recover the firearm that was used to shoot her.

A person may commit assault by intentionally or knowingly threatening another with imminent bodily injury. Tex. Pen. Code Ann. 22.01(a)(2) (Vernon Supp. 2002). The assault is aggravated if the individual uses or exhibits a deadly weapon. Id. 22.02(a)(2) (Vernon Supp. 2002). In determining whether the evidence is legally sufficient to support the verdict, we view the evidence in the light most favorable to the verdict, asking whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Weightman v. State, 975 S.W.2d 621, 624 (Tex. Crim. App. 1998); Lane v. State, 933 S.W.2d 504, 507 (Tex. Crim. App. 1996) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979)); Westfall v. State, 970 S.W.2d 590, 595 (Tex. App. Waco 1998, pet. ref d).

A defendant may be convicted on the testimony of a single eye-witness. Hohn v. State, 538 S.W.2d 619, 621 (Tex. Crim. App. 1976) (testimony of victim under the age of consent need not be corroborated in prosecution for rape even though there is no outcry or prompt report of the defendant s alleged act); Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971) (Court concluded that the testimony of the eye witness alone was sufficient to support the jury s verdict. ); Scott v. State, 914 S.W.2d 628, 629-30 (Tex. App. Texarkana 1995, no pet.) (court upheld DWI conviction based on only the arresting officer s testimony). Here, we find that Precious s testimony provides more than enough evidence, when viewed in the light most favorable to the jury s verdict of guilty, to allow any rational trier of fact to find the State had proven the essential elements of the crime beyond a reasonable doubt. Weightman, 975 S.W.2d at 624. Thus, we overrule Strong s first issue.

Issue (2): Factual Sufficiency Claim

Strong s next issue contends that the evidence is factually insufficient because there was no other evidence besides Precious s testimony linking him to the offense.

In reviewing a factual sufficiency claim, we begin with the assumption that the evidence is legally sufficient. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). We consider all of the evidence neutrally, without viewing it in the light most favorable to the verdict. Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997); Fulguim v. State, 4 S.W.3d 107, 112 (Tex. App. Waco 1999, pet. denied). We must also remain cognizant of the factfinder s role and unique position, a position that the reviewing court is unable to occupy. Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000). The jury determines the credibility of the witnesses and may believe all, some, or none of the testimony. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). It is the jury that accepts or rejects reasonably equal competing theories of a case. Goodman v. State, 66 S.W.3d 283, 287 (Tex. Crim. App. 2001).

Our ultimate decision is guided by the Court of Criminal Appeals determination that the evidence to support a criminal conviction may be factually insufficient in two distinct ways. Id. at 285-86. In the first, evidence is factually insufficient when the only evidence presented on the particular element supports the inference that the fact is true, but that evidence is simply too weak by itself to support a rational finding. Id. at 285. In the second, the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof so as to be clearly wrong or manifestly unjust. Id. at 285-86; Johnson, 23 S.W.3d at 11. A decision is not manifestly unjust as to the accused merely because the factfinder resolved conflicting views of evidence in favor of the State. Cain, 958 S.W.2d at 410.

Here, Strong did not provide any competing theory of the case in his defense. The two witnesses who testified in his defense, both former girlfriends, were character-witnesses rather than fact-witnesses. Accordingly, the jury heard Precious and the State s other witnesses about the facts of the offense. Furthermore, the other fact-witnesses corroborated Precious s story of how she was shot. She told the Hardbergers that her ex-fiancé had shot her. She told Harlow, an EMT, that her boyfriend had shot her. The police investigators testified that Precious took them to the crime scene where she found her keys. Thus, after a neutral review of all of the evidence, we find that the evidence is factually sufficient because (a) the evidence is not too weak by itself and (b) it is not contradicted. Goodman, 66 S.W.3d at 285-86. There is no basis whatsoever for finding that Precious s version of what happened to her is not true. Thus, we overrule Strong s second issue.

Issue (3): Improper Argument

Strong s third and final issue is that the trial court erred by overruling his objection to an alleged improper statement during closing argument which referred to facts outside of the record.

A proper jury argument must fall within one of four general areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999). But when a prosecutor s statement falls outside of these parameters, the statements themselves cannot be error. Rather, it is the trial court s responses to defense counsel s objections to the statements that may be error. Chimney v. State, 6 S.W.3d 681, 703 (Tex. App. Waco 1999, no pet.). Usually three types of error are possible: (1) overruling the initial objection to the prosecutor s statement; (2) granting the initial objection, but denying a request for an instruction to the jury to disregard the statement; and (3) granting the initial objection and instructing the jury to disregard, but denying a motion for a mistrial. Id.

Here, Strong complains of the first type of error. He contends that the following statement by the prosecutor went outside the record :

[Prosecutor]: ... The physical evidence is consistent with what happened. What happened is he pointed the gun at her, said, I can t take it anymore, shoots her here. That is the gunshot wound that the Hardbergers saw. Oh, my God, they saw this hole in this poor woman walking down the street. 100-degree weather. Shot here. Deflects off the bone, lodged in her breast, pushed this way, left arm goes back, right shoulder. She falls forward, falls down in the mud. We know she woke up. She had been shot. Then what is consistent? Once you start something, you ve got to finish it. The person goes up to her and shoots a second time.

[Defense counsel]: There is nothing in the record, anything about a second shot.

[Trial court]: Overruled.

[Prosecutor]: The physical she has a gunshot wound here, a grazing wound to the back of her head .... The first bullet hits her here. She stumbles. That second bullet grazes her.

(Emphasis added). We disagree with Strong. Although Precious did not testify that she was shot twice, she did testify that Strong shot her once, she lost consciousness, and then she woke up with a hole in her chest and a wound on the left side of her head. In addition, her medical records show that she suffered two distinct gunshot wounds one to the left chest area and the other near the left ear. Thus, the prosecutor s statement about Strong shooting her twice was a reasonable deduction from the evidence. Guidry, 9 S.W.3d at 154. Accordingly, the trial court did not err by overruling defense counsel s objection, and the third issue is overruled.

CONCLUSIONHaving overruled all of Strong s issues, we affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed July 10, 2002

Do not publish

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