                                     NO. 07-03-0387-CR

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL D

                                        JUNE 22, 2005

                           ______________________________


                               ERIC D. WILLIS, APPELLANT

                                               V.

                            THE STATE OF TEXAS, APPELLEE


                         _________________________________

            FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

             NO. 2003-402757; HONORABLE CECIL G. PURYEAR, JUDGE

                           _______________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.


                                 MEMORANDUM OPINION


       Following a plea of not guilty, appellant Eric D. Willis was convicted of murder and

sentenced to life imprisonment. Challenging his conviction by two issues, appellant

contends (1) the trial court erred in its charge to the jury, and (2) the evidence is legally and

factually insufficient to prove he intentionally fired the gun as required by statute.
      In the early morning hours of August 16, 2002, Officer John Lofton responded to a

shots fired call at an apartment complex. Jeanette Lopez, a resident of an upstairs

apartment awoke to the sound of gunshots and someone saying, “this ain’t over yet.” She

called 911 and went back to bed. She heard another gunshot and looked out her open

window and, from the light in the parking lot, saw an African American male with braided

hair walking across the parking lot with a gun behind his back. Several other African

American males accompanied appellant toward apartment number eight, a downstairs

apartment.


      A group of Hispanic individuals, including the 15-year old male victim, were having

a party in apartment number eight. From the evidence presented, it is unclear whether the

door was partially opened; however, Lopez testified that she could hear voices coming from

the apartment. From her upstairs apartment, she could see the door of apartment number

eight and noticed appellant extend his arm across the threshold. She heard another

gunshot and called 911 a second time. She saw everyone scatter after the shooting, and

after insuring her daughter’s safety, ran downstairs to check on the situation.      She

discovered the victim had been shot in the head.


      Lopez’s 14-year old daughter testified that she was on the phone when she heard

the first shot. She heard a group of African American males talking outside her open

window and heard them declare, “we’re going to get them fucking Mexicans.” She moved

to her mother’s bedroom and looked out the open window and saw the African American


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group walking toward apartment number eight. The victim and his friend Crystal were

standing in the doorway when she noticed appellant point the gun inside. According to the

witness, the victim pushed Crystal out of the way when appellant fired the gun.


       Officer Lofton testified that he responded to a shots fired call and, as he pulled into

the parking lot, observed an African American male running while looking back at another

group of African Americans yelling, “5-0," which is slang for police. After the “5-0" warning,

Lofton pulled further into the parking lot and heard a single gunshot. Two African American

males ran in front of his patrol car and he noticed one raise his shirt and put something in

his waistband. Lofton continued deeper through the parking lot, then exited the patrol car

and pursued the two males. He lost sight of them and decided not to pursue them in the

dark out of concern for his safety and the safety of the backup officer.


       Lofton returned to apartment number eight and found the victim lying motionless on

the floor with a gunshot wound to the head. He called for emergency medical services and

secured the scene. The victim eventually died from a fractured skull caused by the gunshot

to the head.


       Detective Gary Hodges investigated the scene and interviewed numerous witnesses.

The suspect was described as a black male, about 20 or 21 years old, with long braided

hair, and wearing a plaid shirt. An anonymous tip led officers to a local motel where they

found appellant. His head had been recently shaved as the clippers and cut hair were still




                                              3
on the vanity. He was arrested and, after being given the required warnings, voluntarily

gave an oral and written statement.


       By his first issue, appellant contends the trial court erred in its charge to the jury

regarding the victim’s use of force in defense of a third person. Specifically, he argues the

jury instruction precluded the jury from considering self-defense and failed to instruct the

jury to find him not guilty on this issue. We agree that the trial court’s inclusion of an

instruction on the victim’s defense of a third person was erroneous, but disagree that

appellant was harmed by the error.


       During the charge conference, defense counsel objected to paragraph 17 of the

charge as being improper, confusing, and diluting the defendant’s use of self-defense as

provided in paragraph 11 of the charge.1 Paragraph 17 provides:


       You are further instructed that a person is justified in using force or deadly
       force against another to protect a third person if:
       (1) under the circumstances as the actor reasonably believes them to be, the
       actor would be justified under the instructions set forth in numbered
       Paragraph 11 and numbered Paragraph 16 of this charge in using force or
       deadly force to protect himself against the unlawful force or unlawful deadly
       force he reasonably believes to be threatening the third person he seeks to
       protect; and
       (2) the actor reasonably believes that his intervention is immediately
       necessary to protect the third party.




       1
      Paragraph 11 of the charge instructed the jury on the elements of self-defense.
See generally Tex. Pen. Code Ann. § 9.31 (Vernon 2003).

                                             4
       However, under the law of defense of another, unlike under the law of self-
       defense, the actor is under no duty to retreat even though a reasonable
       person in the actor’s situation would have retreated.
       All persons are presumed to know the law.
       If you believe from the evidence beyond a reasonable doubt that at the time
       and place in question [the victim] reasonably believed that the defendant,
       ERIC WILLIS, was using or attempting to use unlawful deadly force against
       Crystal Acosta and that said [victim] reasonably believed that the use of
       deadly force when and to the degree he used the same was immediately
       necessary to protect Crystal Acosta, and you further believe from the
       evidence beyond a reasonable doubt that the defendant, ERIC WILLIS, as
       viewed from his standpoint alone, did not reasonably believe that [the victim]
       was using or attempting to use unlawful deadly force against him, you will
       find against the defendant on his plea of self-defense. But if you do not so
       believe from the evidence beyond a reasonable doubt, or if you have
       reasonable doubt thereof you will determine the defendant’s right of self-
       defense in accordance with the instructions of this charge under numbered
       Paragraph 11 above dealing with the right of self-defense and give no further
       consideration to the instructions under numbered Paragraph 17.


       The function of the jury charge is to instruct the jury on applying the law to the facts.

Abdnor v. State, 871 S.W.2d 726, 731 (Tex.Cr.App. 1994). When reviewing the record for

jury charge error, we must first determine whether error actually exists and second,

whether the error was calculated to injure the rights of the defendant sufficient to require

reversal. See Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 1981); Hutch v. State, 922

S.W.2d 166, 170-71 (Tex.Cr.App. 1996).


       According to Crystal, the victim heard a knock and she accompanied him to the

door. She could not recall whether the door was already open. At least six or seven

African American males, including appellant, were standing outside. The defendant got in

her face and asked “what the ‘f’ are you looking at”? As she looked down, appellant

                                               5
reached inside the doorway and she heard the victim scream her name as he pushed her

with both of his hands. She heard a gunshot and hit the floor. Although she was not

injured, she realized the victim had been shot.


       A defendant is entitled to an instruction on every defensive issue raised by the

evidence regardless of the strength of the evidence. Ferrel v. State, 55 S.W.3d 586, 591

(Tex.Cr.App. 2001); Brown v. State, 955 S.W.2d 276, 279 (Tex.Cr.App. 1997). Defense

of a third person requires that the intervention by the actor be immediately necessary to

protect a third person. § 9.33(2). Logically, the term “actor” refers to the accused, not the

victim. See Hughes v. State, 719 S.W.2d 560, 564 (Tex.Cr.App. 1986). See also Banks

v. State, 955 S.W.2d 116, 119 (Tex.App.–Fort Worth 1997, no pet.). The victim acted in

defense of Crystal. Appellant, however, was not protecting a third person. Thus, an

instruction on defense of a third person was not applicable and the trial court erred in so

instructing the jury.


       Having concluded that inclusion of the victim’s defense of a third person in the

charge was erroneous, we now consider whether there was sufficient harm to require

reversal. Appellant argues the trial court’s error precluded the jury from fully considering

self-defense and failed to instruct the jury to find him not guilty on the issue.


       Self-defense is a justification which, if established, is a defense to prosecution. Tex.

Pen. Code Ann. §§ 2.03, 9.02, & 9.31 (Vernon 2003). A person is justified in using force

against another when and to the degree he reasonably believes the force is immediately

                                              6
necessary to protect himself against the other’s use or attempted use of unlawful force. §

9.31(a). A person is justified in using deadly force against another when and to the degree

he reasonably believes that deadly force is immediately necessary to protect himself

against the other’s use or attempted use of unlawful deadly force, and a reasonable person

in the actor’s situation would not have retreated. § 9.32(a). The reasonableness of the

accused’s use of deadly force is viewed from his standpoint at the time he acted. Bennett

v. State, 726 S.W.2d 32, 37-8 (Tex.Cr.App. 1986) (en banc). Whether a defendant’s beliefs

are reasonable and justifiable under the circumstances are fact questions for the jury to

decide. Hayes v. State, 728 S.W.2d 804, 808 (Tex.Cr.App. 1987) (on reh’g).


       A neighbor testified that prior to the shooting she heard a group of African American

males speaking outside her window and one said, “we’re going to get them fucking

Mexicans,” as they walked toward the apartment where the shooting took place. Although

some evidence was presented that the victim had a small paring-type knife earlier in the

evening, there was no evidence that the victim exhibited a knife or other weapon at the time

he was shot. Several witnesses who were in the apartment at the time of the shooting

testified they did not see the victim with a knife or weapon and did not hear him threaten

anyone. Crystal testified that when the victim pushed her out of the way with both hands,

he was not holding a knife.


       One of the investigating officers testified that a small utility knife was found near the

victim’s body; however, testimony was also presented indicating that the location of the


                                              7
knife could have been different depending on whether paramedics disturbed it while

treating the victim. Also, no identifiable fingerprints were found on the knife.


         By his voluntary statement, appellant claimed the “15 year old dude [victim] just

came at me and kept coming after I pulled out my gun. I knew he had something in his

hand and he was behind a girl and I saw him holding something but didn’t know what.”

Appellant continued in his statement, “I pointed the gun at him and told him bitch get back

and he didn’t and the gun went off . . . .”


         Excluding the erroneous portion of paragraph 17 of the charge regarding defense

of a third person, the jury was instructed to determine appellant’s right of self-defense in

accordance with paragraph 11 “and give no further consideration to the instructions under

numbered Paragraph 17.” Paragraph 11 instructed the jury on the law of self-defense and

paragraph 12 permitted the jury to acquit appellant if it had reasonable doubt as to whether

he was acting in self-defense.


         The reasonableness or viability of appellant’s defense is a fact issue to be

determined by the jury. Saxton v. State, 804 S.W.2d 910, 913-14 (Tex.Cr.App. 1991) (en

banc).     The jury is entitled to believe or disbelieve any witness and resolve any

inconsistencies in favor of either party. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Cr.App.

1986). A jury verdict of guilty is an implicit finding rejecting the defendant’s self-defense

theory. Saxton, 804 S.W.2d at 913-14. We conclude the erroneous inclusion in the charge

of the victim’s defense of a third person did not harm appellant as it did not preclude the

                                              8
jury from considering self-defense. Instead, the jury ‘s guilty verdict was a rejection of

appellant’s theory of self-defense. Issue one is overruled.


       By his second issue, appellant maintains the evidence is legally and factually

insufficient to prove he intentionally fired the weapon that resulted in the victim’s death. We

disagree. When both the legal and factual sufficiency of the evidence are challenged, we

must first determine whether the evidence is legally sufficient to support the verdict. Clewis

v. State, 922 S.W.2d 126, 133 (Tex.Cr.App. 1996). It is a fundamental rule of criminal law

that one cannot be convicted of a crime unless it is shown beyond a reasonable doubt that

the defendant committed each element of the alleged offense. U.S. Const. amend. XIV;

Tex. Code Crim. Proc. Ann. art. 38.03 (Vernon Supp. 2004-05); Tex. Pen. Code Ann. §

2.01 (Vernon 2003).


       In conducting a legal sufficiency review, we examine the verdict, after viewing the

evidence in the light most favorable to the prosecution, to determine whether any 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, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573

(1979); Burden v. State, 55 S.W.3d 608, 612-13 (Tex.Cr.App. 2001). This standard is the

same in both direct and circumstantial evidence cases. Burden, 55 S.W.3d at 612-13. In

measuring the sufficiency of the evidence to sustain a conviction, we measure the elements

of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d

234, 240 (Tex.Cr.App. 1997). This is done by considering all the evidence that was before



                                              9
the jury—whether proper or improper—so that we can make an assessment from the jury's

perspective. Miles v. State, 918 S.W.2d 511, 512 (Tex.Cr.App. 1996). As an appellate

court, we may not sit as a thirteenth juror, but must uphold the jury's verdict unless it is

irrational or unsupported by more than a “mere modicum” of evidence. Moreno v. State,

755 S.W.2d 866, 867 (Tex.Cr.App. 1988).


       After conducting a legal sufficiency review under Jackson, we may proceed with a

factual sufficiency review. Clewis, 922 S.W.2d at 133. As an appellate court, we view all

the evidence without the prism of “in the light most favorable to the prosecution” and set

aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to

be clearly wrong and unjust. Johnson v. State, 23 S.W.3d 1, 9 (Tex.Cr.App. 2000). We

must determine after considering all the evidence in a neutral light, whether the jury was

rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d

477, 484 (Tex.Cr.App. 2004). It is the exclusive province of the jury to determine the

credibility of the witnesses and the weight to be given their testimony, and unless the record

clearly demonstrates a different result is appropriate, we must defer to the jury’s

determination. Johnson, 23 S.W.3d at 8.


       Before determining whether the evidence is sufficient to support appellant’s

conviction, we must review the essential elements the State was required to prove.

Appellant was charged with two alternative theories of murder–intentional murder and

felony murder. The underlying felony for felony murder was aggravated assault by using


                                             10
or exhibiting a deadly weapon during an assault. Tex. Pen. Code Ann. § 22.02(a)(2)

(Vernon 2003). Furthermore, when the trial court's charge authorizes the jury to convict

on several different theories, as it did in this case, the verdict of guilty will be upheld if the

evidence is sufficient on any one of the theories. Swearingen v. State, 101 S.W.3d 89, 95

(Tex.Cr.App. 2003).


       To be guilty of murder, the State is required to prove that a person intentionally or

knowingly caused the death of the victim, intended to cause serious bodily injury and

committed an act clearly dangerous to human life that caused the death, or committed or

attempted to commit a felony . . . and in furtherance of the commission or attempt . . .

committed or attempted to commit an act clearly dangerous to human life that caused the

death of an individual. Tex. Pen. Code. Ann. § 19.02(b) (Vernon 2003). A person commits

aggravated assault if he intentionally, knowingly, or recklessly causes bodily injury to

another person and during the commission of the assault he uses or exhibits a deadly

weapon. §§ 22.01(a) & 22.02(a). A deadly weapon is a firearm or anything manifestly

designed, made, or adapted for the purpose of inflicting death or serious bodily injury. §

1.07(a)(17)(a).


       Over twenty witnesses testified during the guilt - innocence phase of trial. Excluding

law enforcement and expert witnesses, a number of witnesses were residents of the

apartment complex. The evidence established that the victim resided at a different

apartment than where the shooting occurred. Earlier in the day, while at a different


                                               11
apartment, the victim had used a small knife to fill a “Swisher Sweet Cigar” with “weed.”

According to one of the witnesses, the knife looked like a peeling knife. Another witness

testified that the victim had a kitchen knife in his pocket the evening before the shooting.

A knife was found on the floor after the shooting; however, witnesses testified that the

victim was not in possession of a knife at the time he was shot. Crystal testified that when

the victim pushed her out of the way using both hands, he was not holding a knife. By his

own voluntary statement, appellant could not place a knife or weapon in the victim’s hands

at the time of the shooting.


       The medical evidence showed the victim had marihuana and cocaine in his system

at the time of his death, which the defense urged could have caused aggressive behavior.

Several witnesses testified that the victim did not argue with or provoke appellant or any

of the young men in his group. Instead, evidence was presented that an African American

male was “talking all kinds of shit how he wanted to get rid of some Mexicans.”


       By his argument, appellant asserts the State did not prove he intentionally fired the

gun. As the State points out, it is not required to prove appellant fired the gun, only that he

intentionally or knowingly caused the victim’s death. Murder, intentionally or knowingly

committed is a result oriented offense. Cook v. State, 884 S.W.2d 485, 490 (Tex.Cr.App.

1994). The accused must have intended the result, death, or have been aware that his

conduct was reasonably certain to cause that result. Id. Section 6.03 of the Penal Code

defines the culpable mental states of “intentionally” and “knowingly” as follows:


                                              12
       (a) A person acts intentionally . . . with respect to the nature of his conduct
       or to a result of his conduct when it is his conscious objective or desire to
       engage in the conduct or cause the result.
       (b) A person acts knowingly . . . with respect to the nature of his conduct or
       to circumstances surrounding his conduct when he is aware of the nature of
       his conduct or that the circumstances exist. A person acts knowingly . . . with
       respect to a result of his conduct when he is aware that his conduct is
       reasonably certain to cause the result.


       According to the medical examiner, the victim died as a result of the gunshot wound

to the head. A two by three inch stippling injury, which is caused by powder particles,

indicated the gun was within six inches of the victim’s head. By his written statement,

appellant admitted pointing the gun at the victim and that the gun went off. Although he

declared he “didn’t mean for it to happen,” his action demonstrated his culpable mental

state in engaging in conduct reasonably certain to cause death. We conclude the evidence

is legally sufficient to support appellant’s conviction.


       Concluding the evidence is legally sufficient to support the conviction, we must now

determine whether it is factually sufficient. Johnson, 23 S.W.3d at 11. It is the exclusive

province of the fact finder to determine the credibility of the witnesses and the weight to be

given their testimony. Johnson v. State, 571 S.W.2d 170, 173 (Tex.Cr.App. 1978);

Armstrong v. State, 958 S.W.2d 278, 284 (Tex.App.--Amarillo 1997, pet. ref'd).


       In determining the sufficiency of the evidence, and faced with a record that supports

conflicting inferences, we must presume–even if it does not affirmatively appear in the

record–that the trier of fact resolved any such conflict in favor of the prosecution and must


                                              13
defer to that resolution. Couchman v. State, 3 S.W.3d 155, 163 (Tex.App.–Fort Worth

1999, pet. ref’d). Further, in circumstantial evidence cases it is not necessary that every

fact point directly and independently to the accused’s guilt; it is enough if the conclusion is

warranted by the combined and cumulative force of all the incriminating circumstances.

Johnson v. State, 871 S.W.2d 183, 186 (Tex.Cr.App. 1993), cert. denied, 511 U.S. 1046,

114 S.Ct. 1579, 128 L.Ed.2d 222 (1994); Armstrong v. State, 958 S.W.2d 278, 283

(Tex.App.–Amarillo 1997, pet. ref’d).


       There is evidence that appellant and his group set out that night to provoke the

Hispanics gathered in apartment number eight. Several witnesses testified they heard

threats made against Mexicans.        Although the murder weapon was not recovered,

appellant admitted he pointed the gun at the victim and fled the scene after the shooting.

Although conflicting evidence was presented on whether the victim possessed a knife,

there is no evidence to indicate he brandished a knife prior to being shot. Appellant’s acts,

words, and conduct were sufficient for the jury to infer his intent to cause the victim’s death

or recklessly cause bodily injury to him during the commission of an assault while exhibiting

a deadly weapon.2 Having conducted a neutral review of all the evidence, we conclude the

jury was rationally justified in finding appellant guilty of murder beyond a reasonable doubt.

Issue two is overruled.




       2
       To avoid repetition, refer to our discussion of the evidence in our analysis of issue
one, wherein we concluded the jury rejected appellant’s self-defense theory.

                                              14
      Accordingly, the judgment of the trial court is affirmed.


                                         Don H. Reavis
                                           Justice

Do not publish.




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