Kristina Mary Jones v. The State of Texas--Appeal from 167th District Court of Travis County

JONES TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-95-00314-CR
Kristina Mary Jones, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
NO. 0935894, HONORABLE TOM BLACKWELL, JUDGE PRESIDING

Appellant Kristina Mary Jones was convicted of murder and assessed punishment of twenty years' imprisonment. Tex. Penal Code. Ann. 19.02 (West 1994). (1) In two points of error, Jones appeals. We will affirm the judgment of the trial court.

 
BACKGROUND

Appellant owned and managed several duplexes in North Austin. Maroun Moussallem, the victim, responded to a newspaper ad placed by appellant to attract prospective roommates for her tenants and soon became involved in a personal relationship with appellant. Appellant allowed Moussallem to manage her apartments, and he performed such tasks as making minor repairs and collecting rent from the tenants. Appellant testified that Moussallem lived with her for over a year during which time he abused her both mentally and physically and stole money from her. Witnesses at trial confirmed the volatile nature of their relationship.

In September 1993, Moussallem began seeing another woman. Moussallem attempted to collect several thousand dollars from appellant for work allegedly done in connection with her apartments. Moussallem intended to file a mechanic's lien against appellant's property on October 11, 1993. Before filing the lien, Moussallem went to appellant's duplex on October 10, 1993 to try one last time to collect the money. Appellant shot Moussallem four times in his body, reloaded her gun with a different kind of bullet, and then shot him once in the head. Moussallem died as a result of the wounds. At trial, appellant did not dispute that she killed Moussallem, but argued that she shot him in self defense and that there had been a pattern of abuse. The record is unclear as to whether a struggle occurred before appellant shot him. The jury found that appellant was guilty of murder and that she used a deadly weapon during its commission.

 
DISCUSSION

In her first point of error, appellant contends that there was insufficient evidence to show the offense was committed with a handgun as was alleged in the indictment and that, as a result, the trial court erred in entering a guilty verdict. In determining the sufficiency of the evidence to support a criminal conviction, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could find the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Griffin v. State, 614 S.W.2d 155,159 (Tex. Crim. App. 1981).

Appellant asserts that there is no evidence in the record to establish that she used a handgun to kill Moussallem as alleged in the indictment. She argues that there is a legal distinction between the terms "gun" and "handgun" and that the State was required to specifically prove appellant used a handgun, rather than just a gun, to commit the crime.

We find an abundance of evidence in the record to show that appellant committed the offense with a handgun. Officer Susan Myers, the first police officer on the scene, testified, "And then I asked her where the weapon was. She told me that it was in front of the bathroom downstairs. I stepped inside and saw that the--there was a handgun, looked like a .38 revolver." Further, appellant admitted during cross-examination to committing the offense with a handgun. Appellant was asked the question, "And you shot him the final shot in the head with that handgun here, State's exhibit No. 30 [a .38 caliber revolver]; is that right?" to which she responded "Yes." The evidence presented at trial was sufficient for the trier of fact to find beyond reasonable doubt that appellant committed the offense with a handgun. Accordingly, we overrule appellant's first point of error.

In her second point of error, appellant alleges that the evidence was insufficient to show that the deadly weapon alleged in the indictment was actually used to commit the offense and that the trial court erred in entering an affirmative finding as to appellant's use of that deadly weapon. Appellant claims that this improper affirmative finding may prevent her from becoming eligible for release on parole as soon as she would have been had no finding been made. See Polk v. State, 693 S.W.2d 391, 393 (Tex. Crim. App. 1985).

A handgun is a deadly weapon per se. Ex Parte Campbell, 716 S.W.2d 523, 526-27 (Tex. Crim. App. 1986). Many witnesses, including the first police officer on the scene and appellant's neighbor, testified that they saw appellant in possession of a gun immediately after the commission of the murder. Appellant herself told the jury that she used a handgun to shoot Moussallem. When the use of a handgun is alleged in the indictment, a finding of guilty supports an affirmative finding that a deadly weapon was used. See Polk, 693 S.W.2d at 394. Appellant's second point of error is overruled.

 
CONCLUSION

We affirm the judgment of conviction.

 

Jimmy Carroll, Chief Justice

Before Chief Justice Carroll, Justices Aboussie and Kidd

Affirmed

Filed: May 1, 1996

Do Not Publish

1. This offense took place before September 1, 1994 and is governed by the law in effect at the time the offense was committed. Penal Code, 63d Leg., R.S., ch. 399, sec. 1, 19.02, 1973 Tex. Gen. Laws 883, 913, amended by Act of May 28, 1973, 63d Leg., R.S., ch. 426, art.2, 1, 1973 Tex. Gen. Laws 1122, 1123 (Tex. Penal Code Ann. 19.02, since amended). Because the code amendments effective September 1, 1994 have no substantive effect on this offense, the current code is cited for the sake of convenience.

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DISCUSSION

In her first point of error, appellant contends that there was insufficient evidence to show the offense was committed with a handgun as was alleged in the indictment and that, as a result, the trial court erred in entering a guilty verdict. In determining the sufficiency of the evidence to support a criminal conviction, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could find the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Griffin v. State, 614 S.W.2d 155,159 (Tex. Crim. App. 1981).

Appellant asserts that there is no evidence in the record to establish that she used a handgun to kill Moussallem as alleged in the indictment. She argues that there is a legal distinction between the term