




02-11-273-CR





















COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
 
 
NO. 02-11-00273-CR
 
 







William
  Gilmore
 
 
 
v.
 
 
 
The
  State of Texas


§
 
§
 
§
 
§
 
§


From the 211th District
  Court
 
of
  Denton County (F-2009-2086-C)
 
December
  21, 2012
 
Opinion
  by Justice Gardner
 
(p)



 
JUDGMENT
 
          This
court has considered the record on appeal in this case and holds that there was
no error in the trial court’s judgment.  It is ordered that the judgment of the
trial court is affirmed.
 
SECOND DISTRICT COURT OF APPEALS




 
 
 
 
By_________________________________
   
Justice Anne Gardner
 
 
 
 
 


















COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
 
NO. 02-11-00273-CR
 
 



William Gilmore


 


APPELLANT




 
V.
 




The State of Texas


 


STATE



 
 
----------
FROM THE 211th
District Court OF Denton COUNTY
----------
OPINION
----------
I. 
Introduction
A
jury convicted Appellant William Gilmore of aggravated assault with a deadly
weapon and assessed his punishment at twenty years in prison.[1] 
On appeal, Appellant challenges the admission of two witnesses’ identifications,
the sufficiency of the evidence, and the trial court’s jury instructions.  We
affirm.
II. 
Procedural and Factual Background
The
State charged Appellant with aggravated assault with a deadly weapon, alleging
that he had intentionally, knowingly, or recklessly caused bodily injury to
Kimberly Boggs by shooting her with a deadly weapon.
At
trial, Kimberly testified that at approximately 11:00 a.m. on June 22, 2009,
she and her husband Tracy walked to their neighborhood park with their two
children, six-year-old G.B. and two-month-old S.B.  Kimberly pushed S.B. in a
stroller, and Tracy walked next to G.B., who was riding in an electric toy
“Jeep.”  When they arrived, the only other person at the park was a man with a
black backpack who was sitting on a park bench and reading a book.  Kimberly
made eye contact with the thin, gray-haired man, whom she identified in court
as Appellant.
Kimberly
and Tracy sat down at a picnic table with their daughter, and G.B. rode his
Jeep around the park.  After a few minutes, the battery in G.B.’s Jeep went
dead, and Appellant commented, “I think he’s stuck.”  Tracy left the park and
walked home to retrieve another battery, and Kimberly and the two children
remained at the park.[2]
After
a few minutes, Kimberly held S.B. on her knee.  Around that same time, she saw
Appellant walk toward the only car in the parking lot, leaving his backpack
near the bench.  Appellant then walked back toward the park, came within two to
five feet of Kimberly, and began questioning her about her son’s Jeep.  As they
talked, Kimberly got a good look at Appellant’s face; she noticed he had
“really blue” eyes, gray scraggly hair, and was approximately sixty years old. 
Then, without warning or provocation, Appellant shot Kimberly in the right side
of her face, just below her temple.  Kimberly, who testified that she did not
see the gun and did not remember seeing Appellant after he shot her, picked up
her daughter, who had fallen on the ground, placed her in the stroller, and ran
to a nearby home to get help.  Amy Storey answered the door, called 911, and
followed Kimberly back to the park to attend to the children, who were scared
but physically unharmed.  Officers with the Corinth Police Department arrived,
and Kimberly described Appellant to them before being airlifted to Parkland
Hospital.[3]
When
officers arrived at the scene at approximately 11:45 a.m., the only vehicle in
the parking lot was an SUV, and the owner Evelia Lopez and her family were
playing in the park, unaware of the shooting.  Lopez told the officers that she
had driven past the parking lot a few minutes earlier on her way to pick up her
nephew at school at 11:30 a.m. and that she had noticed a green four-door car
with tinted windows in the lot.  When she pulled into the same lot immediately
after picking up her nephew, the car was gone.
Kim
Hollar testified that she was an administrative assistant with the Corinth
Police Department and that at approximately 2:45 p.m. the day of the offense, a
man walked into the police department’s lobby and stated that he had some
property to turn in.  When Hollar asked for additional information about the
property, the man stated it was “complicated.”  Hollar then retrieved a
supervisor.  Hollar identified Appellant in court as the man who came to the
police department that day.
Lieutenant
Lance Stacy testified that on the afternoon of the offense, Hollar came to his
office and told him that there was a gentleman in the lobby who needed to speak
with an officer.  Lieutenant Stacy identified Appellant in court as the man in
the lobby and testified that Appellant said, “Come out here.  It’s out here.”  According
to Lieutenant Stacy, Appellant then said something to the effect of “I know I’m
not allowed to have it here in Texas.  It’s loaded.”  Appellant led Lieutenant
Stacy outside to a small green, four-door Ford Focus, and stated, “[I]t’s back
here,” and “I know I’m not allowed to have it loaded in Texas and it’s not
registered here . . . .”  At the car, Appellant invited Lieutenant Stacy to
retrieve a black backpack from the back seat.  At Appellant’s direction, Lieutenant
Stacy unzipped the backpack and pulled out a .44 Magnum revolver.  After
ejecting the six live rounds from the weapon, Lieutenant Stacy asked Appellant
about the significance of the weapon, to which Appellant responded, “Oh, she didn’t
tell you? . . .  It’s about the incident in the park.”[4] 
Lieutenant Stacy testified that at some point—either after saying he had a
loaded gun or after referring to the “incident in the park”—Appellant stated,
“‘I’m pleading not guilty.’”  As soon as Lieutenant Stacy realized that
Appellant was a possible suspect in the park shooting, he notified officers at
the scene.  Lieutenant Stacy then asked Appellant if he had any other weapons,
and Appellant turned around and put his hands on his car.  Lieutenant Stacy
conducted a pat down, and after finding no other weapons, he led Appellant back
into the police station, after allowing him to retrieve a book from the car and
some contact lens solution.[5]  As they waited for other
officers to arrive, Appellant produced three microcassette tapes and, according
to Lieutenant Stacy, stated, “[O]nce you listen to these, then you’ll know or
then you’ll understand, something to that effect.”[6]
At
approximately 5:00 that afternoon, officials asked Tracy to come to the police
station to look at a photographic lineup.  Tracy testified that Captain Gregg
Wilkerson presented him with a six-picture photo spread, that he chose
Appellant’s picture, and that he told Captain Wilkerson he was “70–30 percent
sure,” meaning seventy percent sure.  Captain Wilkerson testified for the
defense that Tracy said he was “about 30 percent” sure.
The
afternoon of the shooting, a police officer went to Kimberly’s hospital room,
showed her a one-sheet photo lineup containing six pictures, and asked her if
she recognized anyone.  Kimberly, who was still under the influence of her
medications, looked at the photographs for approximately ten minutes.  She
narrowed her choices down to two similarly-looking men, one of whom was
Appellant.  When the officer asked her to make her selection, however, she
identified the other individual as the shooter.
That
evening, Kimberly and Tracy watched the nightly newscast, which aired a story
about the shooting.  Kimberly testified that when the newscast displayed a
picture of Appellant, she stated, “[T]hat’s him.”  She further testified that,
regardless of seeing a photograph of Appellant on television, seeing Appellant
in the courtroom left her no doubt that he was the shooter.  Tracy testified
that even if he had not seen Appellant’s picture in the photo lineup or
Appellant’s picture on the newscast, he still would have been able to recognize
Appellant as the man who was in the park.
Margaret
Wagner testified that she worked at a warehouse near the park and that at 11:39
a.m. on the day of the offense, she looked at her clock and decided to take her
lunch break.  As she walked outside, she heard what sounded like a gunshot. 
She saw a man walking slowly through the park toward the park’s parking lot,
carrying what looked like black trash bags wadded up in front of him at waist
level.  She described the man as approximately five foot eight in height, thin,
and wearing pants, a shirt, and a baseball cap.  Because the man appeared to be
picking up trash, Wagner did not investigate the situation any further.[7] 
Wagner testified that she could not identify the man.
Officers
did not find a weapon, shell casings, bullets, or any other physical evidence
at the scene.[8]  Officers also determined
that the .44 Magnum revolver Appellant brought to the police station in the
backpack was not used to shoot Kimberly.  Additionally, officers executed
search warrants on Appellant’s storage unit, a truck, and an abandoned house
with which he was associated.  They found several weapons in each location. 
Officers seized approximately 1500 rounds of ammunition from the three
locations.  Officers never found the weapon used to commit the offense.
Appellant
testified on direct examination from his counsel to the following:
Q.  Let’s cut to the
chase.  Were you at the park on June 22nd, 2009?
 
A.  No, I wasn’t.
 
Q.  Were you at the
Corinth Police Department on June 22nd, 2009?
 
A.  Yes, I was.
 
Q.  What did you go
to the police station for, [Appellant]?
 
A.  Basically to goad
them into a hasty and presumptuous arrest.
 
Q.  Was this on your
own or was it pursuant to a plan?
 
A.  Pursuant to a
plan.
 
Q.  How many people?
 
A.  Me and four other
individuals.
 
. . . . 
 
Q.  Could you answer
any and all questions concerning this plot or plan?
 
A.  Except for the
identities of my fellow political activists.  I will not reveal those
identities.
 
. . . .
 
Q.  Did you shoot
Kimberly Boggs?
 
A.  No, I did not.
 
Q.  Was shooting
Kimberly Boggs a part of the plan or doing injury to anybody a part of this
plan you speak of?
 
A.  That would be
counterproductive to the plan.
 
Q.  Do you even know
Kimberly Boggs?
 
A.  Never even met her nor heard the
name.
On
cross-examination, Appellant explained that he and the four other individuals
(“the group”) established “the plan,” under which the shooter, who resembled
Appellant in appearance, and his “aid” would pick a day (during the week of
June 22, 2009), pick a time (between 10:00 a.m. and 3:00 p.m.), and pick a
public location.  The shooter would then discharge a firearm into the air or
into the ground without hurting anyone.[9]
Afterward,
the group was supposed to send a prearranged signal to Appellant that it was
time for him to appear at the police station.[10]  Appellant was to be the
“fall guy” or the “worm on a hook.”  By presenting himself at the police
station soon after the shooting, he was “feed[ing] into [law enforcement’s]
assumptions, you know, the old, well, this guy must have done it, listen to this
stuff, nut with a gun, we have this case solved.”  Appellant described the plan
as “political activism,” the purposes of which were to showcase public
corruption and to demonstrate how the police rush to judgment.
Appellant
testified that he would know that the plan had been carried out when he saw a
blue capsule secreted behind a hedge at the Emily Fowler Public Library in
Denton.  According to Appellant, the day of the shooting, he went to the
library around 10:00 a.m., checked the designated spot approximately every
hour, and eventually saw the blue capsule at 1:00 p.m.  Soon thereafter, he
went to the police station.  Appellant acknowledged that no one could verify
his story and that he did not have any corroborating evidence that the other
members existed.
When
the prosecutor asked whether the shooter had a green sedan that resembled
Appellant’s green Ford Focus, Appellant responded, “[T]hey knew what I was
driving.  How they acquired this, that, or the other, how they did that, that’s
up to them.”  Appellant testified that he instructed the group to obtain a
black knapsack like the one he eventually took to the police station. 
Appellant did not remember whether the group recommended that the shooter read
a book in the public place before the shooting.
Appellant
acknowledged that he wanted the shooting to happen and that he knew it was
going to involve a real firearm and real ammunition.[11] 
When the prosecutor asked who supplied the gun, Appellant responded, “That was
up to them. . . . I really didn’t care.”  Appellant admitted that he was aware
that weapons are dangerous, that loaded weapons can cause bodily injury, that
handguns are deadly weapons, and that there are risks in firing a weapon.
As
discussed in more detail in the opinion below, the court’s charge instructed
the jury on the law of criminal responsibility under penal code sections
7.01(a) and 7.02(b).  See Tex. Penal Code Ann. §§ 7.01(a),[12]
7.02(b)[13] (West 2011).  The
court’s charge authorized the jury to convict Appellant if it found him guilty
of aggravated assault as a principal, or alternatively, if it found him guilty
of aggravated assault as a party conspirator under section 7.02(b).  The
court’s charge contained a general verdict form, and the jury found Appellant
guilty of aggravated assault with a deadly weapon, as alleged in the
indictment.  The jury assessed punishment at twenty years in prison.
III. 
Admission of Identifications (Issues One and Two)
In
issues one and two, Appellant asserts that the trial court erred by admitting
into evidence Kimberly’s and Tracy’s out-of-court identifications of him
because “the identification procedure used by law enforcement was unduly
suggestive in violation of Appellant’s constitutional rights under [the] 14th
Amendment of the United States Constitution and Art. 5 Sec. 19 of the Texas
Constitution.”  The substance of Appellant’s brief primarily challenges
Kimberly’s and Tracy’s in-court identifications of Appellant.
A. 
Standard of Review
The
question of whether a pretrial identification procedure was impermissibly
suggestive is a mixed question of law and fact that does not turn on an
evaluation of credibility and demeanor; therefore, we apply a de novo standard
of review.  Gamboa v. State, 296 S.W.3d 574, 581–82 (Tex. Crim. App.
2009).
B. 
Applicable Law
A
pretrial identification procedure may be so suggestive and conducive to
mistaken identification that subsequent use of that identification at trial
would deny the accused due process of law.  Simmons v. United States,
390 U.S. 377, 384, 88 S. Ct. 967, 971 (1968); Barley v. State, 906
S.W.2d 27, 32–33 (Tex. Crim. App. 1995), cert. denied, 516 U.S. 1176
(1996).  An in-court identification is inadmissible when it has been tainted by
an impermissibly suggestive pretrial photographic identification.  Luna v.
State, 268 S.W.3d 594, 605 (Tex. Crim. App. 2008) (citing Ibarra v.
State, 11 S.W.3d 189, 195 (Tex. Crim. App. 1999), cert. denied, 531
U.S. 828 (2000)), cert. denied, 130 S. Ct. 72 (2009).
To
determine the admissibility of both pretrial identification and potentially
tainted in-court identification, we ask, considering the totality of the
circumstances, (1) whether the identification procedure was impermissibly
suggestive and, if so, (2) whether the improperly suggestive procedure created
a very substantial likelihood of irreparable misidentification.  Simmons,
390 U.S. at 384, 88 S. Ct. at 971; Barley, 906 S.W.2d at 33.  The
defendant must prove both elements by clear and convincing evidence.  Barley,
906 S.W.2d at 33–34.  Only if we determine that the pretrial identification
procedure is impermissibly suggestive do we examine whether it tainted the
in-court identification.  Id. at 34.
C. 
Applicable Facts
The
trial court held a pretrial hearing on Appellant’s motion in limine regarding
the eyewitness identifications.  At the hearing, Kimberly testified that when
she and her family first arrived at the park, the only other person there was a
white male sitting on a bench approximately fifty to sixty feet—or twenty
steps—away from the picnic table where they sat, and he was reading a book. 
Kimberly further testified that when the man—whom she identified in court as
Appellant—later walked toward her from the parking lot, she noticed he was
thin.  When Appellant got within approximately two feet, she noticed he had
long gray hair, “some really blue eyes,” and that he held his neck “kind of
cocked back.”[14]  Kimberly looked at
Appellant for approximately five minutes as he talked to her and asked her
questions about her son’s Jeep before he shot her.
Kimberly
testified that three or four hours after she was shot, a police officer came to
the hospital, showed her a photo array, and asked her to pick out the person
who shot her.  Kimberly testified that she looked at the pictures for
approximately ten minutes.  She then testified, upon questioning by the State,
as follows:
Q.  . . . [F]irst of
all, did you recognize the person who shot you in the photographs?
 
A.  I did.
 
Q.  All right.  How
did that -- what happened? What did you say?  What did you do?
 
A.   I believe I was
between his picture and another.  They looked similar.  And as -- if I can
recall, the picture that I was looking at was [Appellant’s] driver’s license
picture with a blue background, which it did not look like him the day that --
the man that shot me because his hair was a lot shorter.  But I could just --
you know, some similarities, but -- but there was another guy next to him.  I
think it was No. 5, I believe.  They looked just really similar to me.  But I
did mention that No. 3 is kind of jumping out at me, I think.  And [the
officer] said, you know, you want to make sure.  You know, you -- take your
time.  And I took a couple of more minutes, and then that’s when I chose -- I
don’t remember -- No. -- No. 3, I think.
 
Q.  Okay.  The person
you chose in that line-up was not [Appellant].  Correct?
 
A.  It was not.
Kimberly
testified that later that night as she was watching the evening news from her
hospital bed, a news story about the shooting aired and displayed a photograph
of the suspected gunman.  Kimberly immediately recognized Appellant as the man
who shot her.  No officers were present or prompted her to watch the newscast. 
Kimberly testified that the broadcast also showed a videotape of Appellant
moving around and that it provided a better view than a photograph.  Further,
she testified in response to the State’s question, as follows:
Q.  . . . If you had
never seen the photographic line-up that [the police officer] showed to you, if
you had never seen the photograph that was put on the news at -- later that
night, would you know if you -- would you recognize if you saw the person who
shot you back on June 22nd of 2009?
 
A.  Yes.
 
Q.  All right.  Do
you see him here in court today?
 
A.  Yes, I do.
 
Q.  If you -- if
those other photos didn’t exist, could you still identify him here today?
 
A.  Yes, I can.
 
Q.  Any questions in
your mind about that?
 
A.  Absolutely not.
Appellant
did not elicit any significant controverting testimony during his cross-examination
of Kimberly.
Tracy
testified that when he and his family arrived at the park, he noticed a
gentleman sitting on a park bench reading a book.  He saw only the man’s
profile at first but noticed the way the man held himself.  When the gentlemen
commented about G.B.’s Jeep getting stuck, Tracy looked at him when responding
and noticed that the man had long, scraggly hair and a medium-sized nose. 
Tracy also glanced at the man when he went to help G.B.  Tracy identified
Appellant as the man he saw in the park.  On cross-examination, Tracy testified
that he was at the park approximately fifteen to twenty minutes before he went
home to get a new battery for the Jeep and that he got within six to seven feet
of Appellant when he went to help his son with the Jeep.
Tracy
testified that around 5:15 p.m. that same day, he went to the Corinth Police
Department, where he was shown a photographic lineup by Captain Wilkerson. 
Tracy looked at the lineup for approximately ten to thirteen seconds, selected
Appellant’s picture, and stated, “I think that this is him.”  He further
testified that when Captain Wilkerson asked him how certain he was, he
responded, “70-30, 70 percent / 30 percent on it.”  Tracy agreed with the
prosecutor that Captain Wilkerson had stated in an offense report that Tracy
had been thirty percent sure; however, Tracy reiterated that he recalled saying
seventy-thirty.  Tracy identified Appellant in court as the man he saw at the
park and testified that he still would have recognized him even if he had never
seen the photographic lineup.
On
cross-examination by Appellant’s counsel, Tracy testified as follows:
Q.  And then they
went on to ask you on a percentage scale that the individual you chose, you
think it is him, on a percentage scale, you were asked to quantify it.  And
you’re saying contrary to this report, your answer was 70-30, not quote, about
30 percent, unquote?
 
A.  (Pause) Yes, sir.
 
Q.  Yes, sir, you --
did you say about 30 percent?
 
A.  No, sir.
 
Q.  So the police
have it incorrect?
 
A.  I’m not saying
the police had it incorrect.  I believe whenever I stated 70-30, I believe that
it wasn’t clarified or --
 
Q.  Well,
clarification aside, did you state, quote, I’m only about 30 percent, unquote?
 
A.  I don’t recall.
Tracy
also testified that he saw news footage that evening that showed a picture of
Appellant.
At
the conclusion of the hearing, the trial court overruled and lifted Appellant’s
motion in limine and ruled that the State would be allowed to present the
out-of-court and in-court identifications.  At trial, Kimberly and Tracy
provided essentially the same (albeit somewhat more detailed) testimony, and
they identified Appellant in court in front of the jury as the man in the
park.  Appellant vigorously cross-examined Kimberly and Tracy about their
opportunities to view Appellant in the park, about their out-of-court
identifications, and about the fact that they saw Appellant’s picture on the
news.
D. 
Application of Law to Facts
On
appeal, Appellant asserts that it was improper
to allow [an]
in-court identification of Appellant when a witness is wrong or substantially
unsure of the choice of a picture from a photo array of suspects but then is
allowed to pick Appellant because (1) Appellant is the sole “suspect” according
to television broadcasts which showed Appellant’s picture and (2) in trial,
Appellant is the sole male sitting at the counsel table other than Trial
Counsel.  This sequence of events, particularly the superceding broadcast, is
the procedures of which the Appellant complains.
 
. . . .  
 
The Boggs[’s] opportunity to view the
assailant were limited as they addressed their attention on the two children. .
. . [Also, the] very uncertain (or outright wrong) selection of a picture out
of the photo array is very weak identification evidence. . . .  A news broadcast
all but concluded that Appellant was [the] assailant and gave the viewer no
other suspects.  Ms. Boggs watched that broadcast.  The superceding event
caused harm to Appellant as the Boggs then change[d] their story.  After the
news, they are 100% confident.    Their confidence is supported then by his
very presence in court two years later.  The procedure as a whole is unfairly
unreliable.
The State asserts
that despite Appellant’s stated issues presented for review, see Tex. R.
App. P. 38.1(f), he has not pointed this court to any procedures in the
out-of-court photographic lineups shown to Kimberly and Tracy that were
impermissibly suggestive.[15]  Indeed, Appellant
instead focuses on the “superceding broadcast.”[16] 
Citing Rogers v. State, the State asserts that “the mere fact that
appellant’s picture aired in a news broadcast, which Kimberly and Tracy Boggs
saw after viewing the photo lineups, cannot properly be factored into
the analysis of whether the lineup process was suggestive, as the news broadcast
was not a part of any law enforcement procedure.”  774 S.W.2d 247, 259–60 (Tex.
Crim. App.), cert. denied, 493 U.S. 984 (1989), overruled on other
grounds by Peek v. State, 106 S.W.3d 72, 79 (Tex. Crim. App. 2003); see
Craig v. State, 985 S.W.2d 693, 694 (Tex. App.—Houston [1st Dist.] 1999,
pet. ref’d).
In Rogers,
several witnesses identified a capital murder suspect from a lineup.  774
S.W.2d at 259.  The day before, the witnesses had seen a newspaper picture of
the suspect being arrested.  Id.  At trial, the witnesses again
identified the accused.  Id.  On appeal, Rogers complained that the
trial court should have suppressed the witnesses’ in-court identifications
because they were tainted by the suggestive out-of-court photograph.  Id. 
In overruling this point, the court of criminal appeals stated,
Given the absence of
any official action contributing to the likelihood of misidentification in this
case [from seeing the defendant’s photo in a newspaper article about his
arrest], the constitutional sanction of inadmissibility should not be applied,
regardless of the extent to which any witness’s in-court identification might
have been rendered less reliable by prior exposure to the newspaper photograph.
 
Of course, witnesses who viewed it
might have been inclined to identify appellant from the photo and not from a
clear recollection of the live events seen by them several days earlier, as was
indeed the case with one witness.  But the six other witnesses here in question
were, so far as the record reflects, not affected in their ability to make an
accurate identification of appellant by the challenged newspaper photograph. 
Since the police procedure was not itself suggestive, the fact that several
eyewitnesses were exposed to a media photo of appellant one day before
attending a police lineup might, at most, be taken to affect the weight,
although not the admissibility, of their trial testimony.
Id. at
260 (citations omitted).
The
United States Supreme Court recently held that “what triggers due process concerns
[regarding the admission of eyewitness identification] is police use of
an unnecessarily suggestive identification procedure.”  Perry v. New
Hampshire, 132 S. Ct. 716, 721 n.1 (2012) (emphasis added).  The Supreme
Court stated:
An identification infected
by improper police influence, our case law holds, is not automatically
excluded.  Instead, the trial judge must screen the evidence for reliability
pretrial.  If there is “a very substantial likelihood of irreparable
misidentification,” the judge must disallow presentation of the evidence at
trial.  But if the indicia of reliability are strong enough to outweigh the
corrupting effect of the police-arranged suggestive circumstances, the
identification evidence ordinarily will be admitted, and the jury will
ultimately determine its worth.
 
We have not extended pretrial
screening for reliability to cases in which the suggestive circumstances were
not arranged by law enforcement officers.  Petitioner requests that we do so
because of the grave risk that mistaken identification will yield a miscarriage
of justice.  Our decisions, however, turn on the presence of state action and
aim to deter police from rigging identification procedures, for example, at a
lineup, showup, or photograph array.  When no improper law enforcement activity
is involved, we hold, it suffices to test reliability through the rights and
opportunities generally designed for that purpose, notably, the presence of
counsel at postindictment lineups, vigorous cross-examination, protective rules
of evidence, and jury instructions on both the fallibility of eyewitness
identification and the requirement that guilt be proved beyond a reasonable
doubt.
Id. at
720–21 (citation and footnote omitted).
Here,
there is no evidence that law enforcement officials arranged for Kimberly and
Tracy to watch the news to see a photograph of Appellant.  Because Appellant
does not challenge the suggestiveness of the pretrial photo lineups and because
no state action was involved in Kimberly’s and Tracy’s sighting of Appellant’s
photograph on the news, Appellant fails to establish that the out-of-court
identification procedures in this case were impermissibly suggestive.  See
Bell v. State, Nos. 03-11-00247-CR, 03-11-00248-CR, 03-11-00249-CR,
03-11-00250-CR, 03-11-00251-CR, 2012 WL 3797597, at *6–9 (Tex. App.—Austin Aug.
28, 2012, no pet.) (mem. op., not designated for publication) (rejecting Bell’s
argument that witness’s in-court identification was tainted by having
previously viewed a photograph on the Internet identifying Bell as a suspect in
the offense).  Thus, we do not reach the second prong of the Simmons
analysis; that is, we do not examine whether the out-of-court identification
procedures tainted the in-court identifications.
We
note, however, that several safeguards noted in Perry were at work in
Appellant’s trial.  In addition to the fact that the trial court held a
pretrial hearing to determine the reliability of Kimberly’s and Tracy’s
identifications, Appellant vigorously cross-examined Kimberly and Tracy in
front of the jury about their identifications.  Based on Kimberly’s and Tracy’s
testimony, Appellant’s counsel reminded the jury in closing argument that
“three and a half hours after the fact, [Kimberly] pick[ed] the wrong person.” 
Regarding Tracy, he argued, “Some five hours after being in a park, an ID, even
though it wasn’t run with the correct protocol, an identification, thirty
percent?”  Counsel further argued, “And then all of [a] sudden, Kimberly and
Tracy Boggs see the news footage, and now any type of identification is going
to be tainted because they’ve seen [my client] as the individual arrested as
the man in the park.”  Counsel concluded by arguing, “There were two people
that say they saw the individual.  One person selected somebody else who is
still roaming Denton County supposedly, and the other one is 30 percent
certain. . . . You’re asked to find [Appellant] guilty beyond a reasonable
doubt, the highest standard we have.”  The jury charge required that
Appellant’s guilt be established beyond a reasonable doubt.
Additionally,
Kimberly and Tracy confidently stated that their in-court identifications were
based exclusively on their recollections of seeing Appellant at the park.  See
Rogers, 774 S.W.2d at 259–60.  Kimberly testified that she spoke with
Appellant face-to-face at a distance of five to six feet in broad daylight
while he asked her several questions.  Tracy testified that he looked at
Appellant when he responded to Appellant’s comment that G.B.’s Jeep was stuck. 
Both Kimberly and Tracy unequivocally testified before and during trial that
seeing Appellant’s photograph on the news broadcast did not influence their
in-court identifications of Appellant.
Based
on our de novo review of the totality of the circumstances, we conclude that
the trial court did not err by overruling Appellant’s objection to the
admissibility of Kimberly’s and Tracy’s out-of-court and in-court
identifications of Appellant as the man in the park who shot Kimberly.  We
overrule issues one and two.
IV. 
Sufficiency of the Evidence to Prove Identity (Issue Three)
In
his third issue, Appellant asserts that the evidence is insufficient to support
his conviction because the witnesses did not adequately or fairly identify him
as the shooter.  He specifically contends that no witnesses confidently
identified him near the time of the offense.
A. 
Applicable Law
In
our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the
verdict 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 (1979); Wise v.
State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012).  This standard gives
full play to the responsibility of the trier of fact to resolve conflicts in
the testimony, to weigh the evidence, and to draw reasonable inferences from
basic facts to ultimate facts.  Jackson, 443 U.S. at 319, 99 S. Ct.
at 2789; Blackman v. State, 350 S.W.3d 588, 595 (Tex. Crim. App. 2011).
The
trier of fact is the sole judge of the weight and credibility of the evidence. 
See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Wise, 364
S.W.3d at 903.  Thus, when performing an evidentiary sufficiency review, we may
not re-evaluate the weight and credibility of the evidence and substitute our
judgment for that of the factfinder.  Isassi v. State, 330 S.W.3d 633,
638 (Tex. Crim. App. 2010).  Instead, we determine whether the necessary
inferences are reasonable based upon the cumulative force of the evidence when
viewed in the light most favorable to the verdict.  Sorrells v. State,
343 S.W.3d 152, 155 (Tex. Crim. App. 2011).  We must presume that the
factfinder resolved any conflicting inferences in favor of the verdict and
defer to that resolution.  Jackson, 443 U.S. at 326, 99 S. Ct. at
2793; Wise, 364 S.W.3d at 903.  The standard of review is the same for
direct and circumstantial evidence cases; circumstantial evidence is as probative
as direct evidence in establishing the guilt of an actor.  Isassi, 330
S.W.3d at 638; Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
B. 
Application of Law to Facts
As
we discussed above, Kimberly and Tracy unequivocally identified Appellant in court
as the shooter.  The positive identification of a defendant as the perpetrator
is sufficient to support a conviction.  See Garcia v. State, 563
S.W.2d 925, 928 (Tex. Crim. App. [Panel Op.] 1978); Cate v. State, 124
S.W.3d 922, 928–29 (Tex. App.—Amarillo 2004, pet. ref’d); see also Aguilar
v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971) (holding that the
testimony of one eyewitness alone is sufficient to support jury’s verdict); Leadon
v. State, 332 S.W.3d 600, 607 (Tex. App.—Houston [1st Dist.] 2010, no pet.)
(same); Walker v. State, 180 S.W.3d 829, 832 (Tex. App.—Houston [14th
Dist.] 2005, no pet.); Pitte v. State, 102 S.W.3d 786, 794 (Tex.
App.—Texarkana 2003, no pet.).  Accordingly, the jury could have reasonably
concluded beyond a reasonable doubt that Appellant was the man in the park who
shot Kimberly based on the identification testimony alone.
Moreover,
additional, circumstantial evidence established that Appellant committed the
instant crime.  See Roberson v. State, 16 S.W.3d 156, 167 (Tex.
App.—Austin 2000, pet. ref’d) (holding that identity may be proven by direct or
circumstantial evidence, or even by inferences).  For instance, Evelia Lopez
testified that as she drove to pick up her nephew from school around the time
of the shooting, she saw a four-door green car parked with “dark” windows in
the parking lot at Fairview Park.[17]  When she drove to the
park immediately thereafter, the car was gone.  Responding Officer Kevin Tyson
testified that Kimberly said that the car she saw Appellant walk toward in the
park’s parking lot was small and had four doors.  The afternoon of the
shooting, Appellant arrived at the Corinth Police Department in a little green four-door
Ford Focus; Appellant testified that he owned the car.
Furthermore,
both Kimberly and Tracy testified that they saw Appellant with a black backpack
at the park.  Lieutenant Stacy testified that after Appellant arrived at the
police station, Appellant invited him to retrieve a black backpack from the
back seat of his green car.  When Lieutenant Stacy found a .44 Magnum revolver
in the backpack and asked about its significance, Appellant stated, “It’s about
the incident in the park.”[18]  Also, Kimberly and
Tracy both testified that Appellant was reading a book in the park, and
Appellant made a point of getting a book out of his car before going into the
police station with Lieutenant Stacy.  Moreover, Captain Wilkerson testified,
At that time
Lieutenant Stacy called me on the telephone to explain what -- what was going
on at the police station.  I had received information from officers on the
radio that there was a gray-headed suspect, white male, about five eight with a
pony tail possibly driving a green vehicle.  I asked Lieutenant Stacy, “Does he
have a pony tail?”
 
          “Yes, he
does.”
 
          “Does he
have a green vehicle?”
 
          He said yes.  I said, “I believe that’s our
suspect.  Detain him.”
Also,
Margaret Wagner testified that she saw a man matching Appellant’s general
description in the park at the time of the shooting wearing a baseball cap and
carrying trash bags.  Although Kimberly did not see Appellant wearing a
baseball cap or carrying trash bags, Lieutenant Stacy testified that Appellant
had three baseball caps in the front seat of his car, and Appellant testified
that he had black trash sacks in his backpack.
The
jury also could have reasonably construed Appellant’s version of events as
implausible, thereby demonstrating a “consciousness of guilt.”  See Guevara
v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004) (holding that
implausible explanations are probative of wrongful conduct and are
circumstances of guilt); Lozano v. State, 359 S.W.3d 790, 814 (Tex.
App.—Fort Worth 2012, pet. ref’d); see Gear v. State, 340 S.W.3d 743,
747 (Tex. Crim. App. 2011) (recognizing that fact finder can consider a
defendant’s untruthful statement as affirmative evidence of guilt).
Viewing
the evidence in the light most favorable to the verdict, a rational jury could
have found beyond a reasonable doubt that Appellant committed aggravated
assault by shooting Kimberly with a firearm.  We overrule Appellant’s third
issue.
V.  The Sufficiency
of the Evidence to Prove Parties Conspiracy 
(Issue Four)
 
In
his fourth issue, Appellant asserts that the jury verdict is based on
insufficient evidence because “the State failed to present evidence supporting
its unnecessary Jury Charge definitions and terms . . . .”  The jury charge stated
in part,
          A person is
criminally responsible as a party to an offense if the offense is committed by
his own conduct, or by the conduct of another for which he is criminally
responsible, or both.  Each party to an offense may be charged with the
commission of the offense.[[19]]
 
          “Conspiracy”
means an agreement between two or more persons, with intent that a felony be
committed, that they, or one or more of them, engage in conduct that would
constitute the offense.  An agreement constituting a conspiracy may be inferred
from acts of the parties.[[20]]
 
          If, in the
attempt to carry out a conspiracy to commit one felony, another felony is
committed by one of the conspirators, th[e]n all conspirators are guilty of the
felony actually committed, though having no intent to commit it, if the offense
was committed in furtherance of the unlawful purpose and was one that should
have been anticipated as a result of the carrying out of the conspiracy. 
Aggravated assault, deadly conduct, and terroristic threat are felony offenses.[[21]]

 
The
application paragraphs of the jury charge provided:
          Now if you
find from the evidence beyond a reasonable doubt that on or about the 22nd day
of June, 2009 in Denton County, Texas, the defendant, WILLIAM GILMORE, did then
and there intentionally, knowingly, or recklessly cause bodily injury to
Kimberly Boggs by shooting Kimberly Boggs with a deadly weapon, to-wit: a firearm;
as alleged in the indictment, you will find the defendant guilty of aggravated
assault, as charged in the indictment.
 
OR
 
If you find from the
evidence beyond a reasonable doubt that on or about the 22nd day of June, 2009
in Denton County, Texas the defendant, WILLIAM GILMORE, entered into a
conspiracy with one o[r] more unnamed persons to commit the felony offense of
aggravated assault, deadly conduct, or terroristic threat and that in the
attempt to carry out this conspiracy, if any, one or more of the conspirators
did then and there intentionally, knowingly, or recklessly cause bodily injury
to Kimberly Boggs by shooting Kimberly Boggs with a deadly weapon, to-wit: a
firearm; as alleged in the indictment, you will find the defendant guilty of
aggravated assault, as charged in the indictment.
 
The
court’s charge contained a general verdict form, and the jury found Appellant
guilty of aggravated assault with a deadly weapon, as alleged in the
indictment.
Citing
to section 15.02 of the penal code—the statute for the offense of criminal
conspiracy—Appellant argues that “the State’s selection of conspiracy terms in
the Jury Charge gives it the extra burden which was not met.”  See Tex.
Penal Code Ann. § 15.02 (West 2011).[22]  Appellant asserts that
“the corpus delicti of conspiracy must contain a showing of agreement to commit
a crime” and that “there was no showing at trial beyond the confession
itself that there had been an agreement to commit the [shooting].”  Citing
to Brown v. State, 576 S.W.2d 36, 43 (Tex. Crim. App. [Panel Op.] 1978)
(op. on reh’g), he contends that “[w]hen there is no corpus delicti, a
confession cannot stand.”  Id.  He continues,
Had there been some
showing of concerted activity directed toward commission of the offense, or had
someone come forward to testify as to the existence of the agreement, the
confession would have been sufficient to sustain the conviction.  Absent any
evidence of the corpus delicti of conspiracy, outside the extrajudicial
confession itself, the conspiracy conviction founded on that confession cannot
stand.
 
If the State wishes
to use “conspiracy” for one reason, it must use it for all purposes in the Jury
Charge.  In the alternative, it must simply rely o[n] the elements of the
actual offense.  No evidence exists in the record that an agreement to conspire
existed other than the insufficient testimony by Appellant.
 
The State responds
that Appellant confuses the crime of conspiracy found in section 15.02 of the
penal code with an instruction on the law of parties found in section 7.02(b). 
The State further responds that article 38.14—requiring corroboration of
accomplice-witness testimony—does not apply to a defendant’s own testimony and
that no Texas case law requires an appellant’s trial testimony to be corroborated
in order to stand as evidence in support of his conviction.
To the extent
Appellant argues that the evidence is insufficient to prove he committed the
offense of criminal conspiracy under section 15.02, he was not charged with,
and the jury was not instructed on, this offense.  Compare Tex. Penal
Code Ann. § 7.02(b) with Tex. Penal Code Ann. § 15.02.  Thus, his
reliance on Brown and the doctrine of corpus delicti in this context is
misplaced.[23]  See 576 S.W.2d
at 43 (“Absent any evidence of the corpus delicti of conspiracy, outside the extrajudicial
confession itself, the conspiracy conviction founded on that confession
cannot stand.”) (emphasis added).  The charge in Appellant’s case authorized
the jury to convict Appellant if it found him guilty of aggravated assault as a
principal, or alternatively, if it found him guilty of aggravated assault as a
party conspirator under section 7.02(b).[24]
To the extent
Appellant argues that the State failed to prove he was criminally responsible
for aggravated assault as a party conspirator, we need not conduct such a
sufficiency analysis.  See Swearingen v. State, 101 S.W.3d 89, 95
(Tex. Crim. App. 2003).  When a trial court’s charge authorizes the jury to
convict on alternative theories, the verdict of guilt will be upheld if the
evidence was sufficient on any one of the theories.  Grissam v. State,
267 S.W.3d 39, 41 (Tex. Crim. App. 2008); Swearingen, 101 S.W.3d at 95; Rabbani
v. State, 847 S.W.2d 555, 558 (Tex. Crim. App. 1992) (“[W]hen the jury
returns a general verdict and the evidence is sufficient to support a guilty
finding under any of the allegations submitted, the verdict will be upheld.”), cert.
denied, 509 U.S. 926 (1993); Schiffert v. State, 257 S.W.3d 6, 14
(Tex. App.—Fort Worth 2008, pet. ref’d).  Here, the court’s charge authorized
the jury to convict Appellant if it found him guilty of aggravated assault as a
principal or as a party conspirator under section 7.02(b).  Because we have
previously held that the evidence was sufficient to support a jury finding that
Appellant was guilty of aggravated assault as a principal, we need not
determine whether sufficient evidence showed that Appellant was guilty of
aggravated assault as a party conspirator under section 7.02(b).
To the extent
Appellant complains generally that the evidence was insufficient to support the
trial court’s decision to charge the jury on the law of parties, we conclude it
is unnecessary to make this determination.[25]  “In
general, an instruction on the law of parties may be given to the jury whenever
there is sufficient evidence to support a jury verdict that the defendant is
criminally responsible under the law of parties.”  See Ladd, 3 S.W.3d at
564 (citing McCuin v. State, 505 S.W.2d 827, 830 (Tex. Crim. App.
1974)).  Nonetheless, when “ʻthe evidence clearly supports a defendant’s
guilt as a principal actor, any error of the trial court in charging on the law
of parties is harmless.’”  Ladd, 3 S.W.3d at 564–65 (quoting Black v.
State, 723 S.W.2d 674, 675 (Tex. Crim. App. 1986)); Cathey v. State,
992 S.W.2d 460, 466 (Tex. Crim. App. 1999) (“Even where proper objection is
made at trial, we have held that where, as in the instant case, the evidence
clearly supports a defendant’s guilt as the primary actor, error in charging on
the law of parties was harmless.”), cert. denied, 528 U.S. 1082 (2000). 
Here, the State focused at trial on the theory that Appellant was a principal
actor, and as discussed in issue three, the evidence clearly supports
Appellant’s guilt as a principal actor.  In light of the evidence in this case,
“the jury almost certainly did not rely upon the parties instruction in
arriving at its verdict, but rather based the verdict on the evidence tending
to show appellant’s guilt as a principal actor.”  Ladd, 3 S.W.3d at
565.  Thus, any error in charging the jury on the law of parties under penal
code section 7.02(b) was harmless.  See id. at 564−65.  We
overrule Appellant’s fourth issue.
VI.  Jury Charge (Issues Five through Fourteen)
In
these several issues, Appellant contends that the jury charge contained “a
variety of ill-fitting and improper definitions without corresponding offenses
set forth in the Texas Penal Code” and that the trial court erred by denying
the several lesser-included offense instructions he requested.
A. 
Standard of Review
“[A]ll
alleged jury-charge error must be considered on appellate review regardless of
preservation in the trial court.”  Kirsch v. State, 357 S.W.3d 645, 649
(Tex. Crim. App. 2012).  In our review of a jury charge, we first determine
whether error occurred; if error did not occur, our analysis ends.  Id. 
If error did occur, whether it was preserved determines the degree of harm
required for reversal.  Id.
B. 
Defining and Applying Parties Conspiracy
In issue five,
Appellant asserts that because the indictment did not charge the offense of
conspiracy, the trial court erred by applying “the principle of ‘conspiracy’”
under section 15.02 of the penal code in the jury charge.  In his fourteenth
issue, Appellant asserts that the trial court erred in applying the law of
parties (under section 7.02(b)), while not charging the jury on the offense and
lesser-included offense of conspiracy (under section 15.02).
The
court of criminal appeals’s Montoya v. State case addresses Appellant’s
fifth issue and is instructive:
Appellant argues that
the inclusion of the theory of conspiracy in the court’s charge over his
objection constituted fundamental error because the offense of conspiracy had
not been alleged in the indictment.  He reminds us that criminal conspiracy is
an offense under [section 15.02 of the penal code], and argues that since he
had no notice he was being charged with the offense of criminal conspiracy, the
jury was erroneously instructed on an alternate theory of conviction.
 
Appellant is mistaken
in his argument.  The court’s charge did not instruct the jury to consider
whether appellant was guilty of the separate offense of criminal conspiracy as
set out in Section 15.02, supra.  Rather the court’s charge merely contained an
alternative “parties” charge as provided in V.T.C.A., Penal Code, Section
7.02(b).
 
. . . . 
 
It is well accepted that the law of
parties may be applied to a case even though no such allegation is contained in
the indictment.  This rule applies not only to the law of parties found in
Section 7.02(a)(2) but also the law of parties found in Section 7.02(b).
810
S.W.2d 160, 165 (Tex. Crim. App. 1989) (citations omitted), cert. denied,
502 U.S. 961 (1991); see Moses v. State, No. 04-09-00211-CR, 2011
WL 1402840, at *3–5 (Tex. App.—San Antonio Apr. 13, 2011, pet. ref’d) (mem.
op., not designated for publication); see also 8 Michael J. McCormick et
al., Texas Practice:  Texas Criminal Forms and Trial Manual § 104.2 n.1
(11th ed. 2005) (“It is proper to instruct the jury on the evidentiary law of
conspiracy without the defendant being charged with the offense of criminal
conspiracy.”) (citing Montoya).
Moreover,
the court of criminal appeals in Ladd upheld as proper a jury charge
that contained definitions similar to the ones in this case.  In Ladd,
as in this case, the court’s charge tracked section 7.02(b), and it contained a
definition of conspiracy that tracked a portion of section 15.02.  See 3
S.W.3d at 565.  The court of criminal appeals noted that the penal code does
not define “conspiracy” as that term is used in section 7.02(b) and that
although the trial court need not have defined the term, it “certainly did not
err in instructing the jury to give the term its commonly understood meaning.” 
Id.; see Montoya, 810 S.W.2d at 164–65; Moses, 2011 WL
1402840, at *5.  Thus, the trial court did not err in overruling Appellant’s
“objection to the State’s addition of the principle of ‘conspiracy’” to the
jury charge.  Moreover, as noted in issue four, because the evidence clearly
supports Appellant’s guilt as a principal actor, any error by the trial court
in charging the jury on the law of parties under penal code section 7.02(b) was
harmless.  See Ladd, 3 S.W.3d at 564–65; Cathey, 992 S.W.2d at
466.
C. 
Separate and Lesser-Included Offenses
In
issues six through fourteen, Appellant asserts that the trial court erred in
denying his request to charge the jury on certain offenses—including (1) the
“separate offenses” of conspiracy, deadly conduct, terroristic threat, and
conspiracy to commit terroristic threat and (2) the lesser-included offenses of
conspiracy, deadly conduct, and terroristic threat—because the State was
permitted to use the definitions of these offenses and some evidence of these
offenses was present.
1.  Definitions
The court’s charge defined conspiracy (addressed above),
deadly conduct,[26] and terroristic threat.[27] 
The parties-conspiracy application paragraph authorized the jury to find
Appellant guilty if it found that he “entered into a conspiracy with one o[r]
more unnamed persons to commit the felony offense of aggravated assault, deadly
conduct, or terroristic threat and that in the attempt to carry out this
conspiracy, if any, one or more of the conspirators did then and there
intentionally, knowingly, or recklessly cause bodily injury to Kimberly Boggs
by shooting [her] with a deadly weapon . . . .”  The State asserts that the
trial court properly included the felony offenses of deadly conduct and
terroristic threat in the parties conspiracy application paragraph and properly
defined these offenses in the abstract portion of the charge.  The State explains
that
Appellant testified
that actually shooting a person, i.e., committing aggravated assault
with a deadly weapon, would be counterproductive to the plan, but Appellant
testified to a plan that, had it been carried  out, certainly would have
constituted the felony offenses of deadly conduct and terroristic threat. . .
.  Appellant testified that he and his co-conspirators were aware of the
dangerous risks inherent in their plan but proceeded anyway.  Appellant
admitted being integral to the plan that, even though it excluded the
commission of aggravated assault with a deadly weapon, resulted in the
commission of the shooting of Kimberly Boggs. . . .
 
. . .  Thus, the trial court properly
instructed the jury, as raised by the evidence, that if Appellant entered into
a conspiracy with four unnamed co-conspirators to commit a felony offense, and
another felony offense was committed, then Appellant was properly guilty of the
felony actually committed. [Footnote and internal record citations omitted.]
Appellant’s
brief does not contain a substantive argument or supporting authority as to how
or why the trial court erred in defining deadly conduct and terroristic threat
in the abstract portion of the charge and in listing these offenses in the
application paragraph in the charge;[28] instead, the brief
provides that “if the jury is to consider definitions outside of the aggravated
assault with a deadly weapon language then allow the jury to consider applying
the definition to the related but separate crime[s].”  In light of the argument
set forth in Appellant’s brief, we cannot say that the trial court erred by
defining deadly conduct and terroristic threat in the abstract portion of the
charge and in listing these offenses in the parties conspiracy application
paragraph.  Further, and as noted in issue four, because the evidence clearly
supports Appellant’s guilt as a principal actor, any error by the trial court
in charging the jury on the law of parties under penal code section 7.02(b) was
harmless.  See Ladd, 3 S.W.3d at 564–65; Cathey, 992 S.W.2d at
466.
2.
 Separate Offenses
Appellant’s
brief contains no substantive argument or supporting authority regarding how or
why the trial court erred in failing to submit to the jury the “separate” and
unindicted offenses of criminal conspiracy under section 15.02, deadly conduct,
terroristic threat, and conspiracy to commit terroristic threat.[29] 
Without additional argument or authority, we cannot say that the trial court
erred in failing to submit instructions on “separate offenses” as requested by
Appellant.[30]
3.
 Lesser-Included Offenses
A
defendant may be convicted of an unindicted offense that is a “lesser-included
offense” of the charged crime.  See Wasylina v. State, 275 S.W.3d 908,
910 (Tex. Crim. App. 2009).  We use a two-step analysis to determine whether a defendant
was entitled to a lesser-included offense instruction.  See Hall v. State,
225 S.W.3d 524, 528 (Tex. Crim. App. 2007); Rousseau v. State, 855
S.W.2d 666, 672–73 (Tex. Crim. App.), cert. denied, 510 U.S. 919
(1993).  First, the lesser offense must come within article 37.09 of the code
of criminal procedure.  See Tex. Code Crim. Proc. Ann. art. 37.09 (West
2006); Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998).  Under
article 37.09, an offense is a lesser included offense if:
(1) it is established
by proof of the same or less than all the facts required to establish the
commission of the offense charged;
(2) it differs from
the offense charged only in the respect that a less serious injury or risk of
injury to the same person, property, or public interest suffices to establish
its commission;
 
(3) it differs from
the offense charged only in the respect that a less culpable mental state
suffices to establish its commission; or
 
(4) it consists of an
attempt to commit the offense charged or an otherwise included offense.
 
Tex.
Code Crim. Proc. Ann. art. 37.09.  Second, some evidence must exist in the
record that would permit a jury to rationally find that if the appellant is
guilty, he is guilty only of the lesser offense.  See Hall, 225
S.W.3d at 536; Salinas v. State, 163 S.W.3d 734, 741 (Tex. Crim. App.
2005); Rousseau, 855 S.W.2d at 672−73.
Appellant’s
brief discusses the trial objections and requests he made during the charge
conference as to the lesser-included offenses.  The brief also sets out the
statutes for criminal conspiracy (section 15.02), deadly conduct (section
22.05), and terroristic threat (section 22.07).  See Tex. Penal Code
Ann. §§ 15.02, 22.05, 22.07 (West 2011).  The brief also states,
Applying the first
step of the lesser included-offense analysis in this case, evidence presented
at trial would cover a broad range of offenses against the person. . . . .
 
The elements of the lesser included
offenses requested by Trial Counsel establish the same or less than all the
facts required to establish[] the commission of the offense charged of
aggravated assault with a deadly weapon.  The evidence adduced at trial could
support the lesser included offenses of conspiracy, deadly conduct, terroristic
threat and/or conspiracy to commit aggravated assault with a deadly weapon.
Appellant’s
brief contains neither specific arguments nor citations to any authority that
might support a conclusion that the named offenses satisfy the first prong of
the analysis.  See Cavazos v. State, No. PD-1675-10, 2012 WL 5348046, at
*3 (Tex. Crim. App. Oct. 31, 2012) (“The first step is a question of law, and
it does not depend on the evidence raised at trial.”).  In addition,
Appellant’s brief fails to address the second prong of the analysis; that is,
Appellant’s brief contains no citations to the record and no argument or
citation to any authority that might support an argument that if he is guilty,
he is guilty only of the lesser offenses.  Id. at *4 (“This second step
is a question of fact and is based on the evidence presented at trial.”). 
Without more, we have no basis to say that the trial court erred in failing to
instruct the jury on the lesser-included offenses of conspiracy, deadly
conduct, terroristic threat, and conspiracy to commit aggravated assault with a
deadly weapon.  See Lucio v. State, 351 S.W.3d 878, 895–96 (Tex. Crim.
App. 2011) (holding that appellant’s claim that the trial court erred by
failing to provide her requested jury instruction on a lesser-included offense
was inadequately briefed, and thus, the court did not consider it because it
was “under no obligation to make appellant’s arguments for her”), cert.
denied, 132 S. Ct. 2712 (2012).  We overrule issues five through fourteen.
VII. 
Conclusion
Having
overruled Appellant’s fourteen issues, we affirm the trial court’s judgment.
 
 
ANNE GARDNER
JUSTICE
 
PANEL: 
GARDNER,
WALKER, and MEIER, JJ.
 
PUBLISH
 
DELIVERED:  December 21,
2012




 




[1]See Tex. Penal Code Ann. § 22.02(a)(2)
(West 2011).


[2]Tracy testified and corroborated much of Kimberly’s testimony.  Tracy
explained that the man he saw at the park—whom he later identified in a photo
lineup and in court as Appellant—was sitting on a bench, reading a book, and
had a black backpack.  Tracy looked directly at Appellant when Appellant
commented that G.B.’s Jeep was broken or stuck.  Tracy agreed with Appellant’s
counsel that in Tracy’s written statement to the police, he described the man
as being in his mid- to late-forties with a pony tail and a medium-sized nose.


[3]Kimberly remained in the hospital for two days.  Her jaw was broken
in two places, and she lost the uvula in the back of her throat.  She lost
hearing in her right ear, and she suffered “a lot of emotional pain.”


[4]Lieutenant
Stacy testified that the gun was fully loaded at that time and that it was cool
to the touch.  He later testified that he did not believe this was the weapon
used in the offense because it was too powerful and would have injured Kimberly
more extensively.
  


[5]When
officers later searched Appellant’s car, they found two semiautomatic pistols
in the trunk.
 


[6]The record indicates that approximately one month before the
offense, Appellant made taped statements lasting three hours and forty-five
minutes.  The State played an edited version of the tapes for the jury.  At
trial, Appellant testified that he had two purposes for making the tapes.  One
was to report “numerous crimes both committed against [him] but more
importantly against the general public, not just locally but state-wide,” and
the other was “to entice the police into . . . making a hasty
arrest.”  Appellant agreed with the prosecutor that during the first hour and
forty-five minutes of the tape he talked about the speeding ticket he got in a
school zone and the discoveries and resulting problems he encountered with the
justice system.  He agreed that for the next hour he talked about Mary Shelley’s
novel Frankenstein.  He also agreed that in the final segment of the
tapes, he talked about wanting to get caught, wanting to take a “perp walk,”
and about how easy it was to get away with stranger-on-stranger murder.


[7]When Wagner returned to work and heard that someone had been shot
in the park, she reported what she had seen to the police.


[8]Although investigators tested Appellant’s hands for gunshot
residue, a report had not been issued by the time of trial.


[9]Appellant explained that the event was supposed to be a “classic
stereotyping type of nut” shooting guns into the air and bullets into the
ground and “yelling something about Corinth corruption, stuff like that, and
then running off leaving behind hopefully witnesses, a lot of excitement, media
coverage, [and] overly excited police.”


[10]According to Appellant, two of the group members did not participate
but were “intellectually in agreement.”


[11]Appellant testified that the fact that Kimberly was shot was a
“horrible awkwardness.”  He explained, “I know there was no intention -- I know
the guy.  There was never, like I said, even a -- a vague hint of any kind of
harm coming to anybody, although we did know that we [were] shooting a gun . .
. .”


[12]Section 7.01(a) provides, “A person is criminally responsible as a
party to an offense if the offense is committed by his own conduct, or by the
conduct of another for which he is criminally responsible, or both.”  Tex. Penal Code Ann. § 7.01(a).


[13]Section 7.02(b) provides, “If, in the attempt to carry out a conspiracy
to commit one felony, another felony is committed by one of the conspirators,
all conspirators are guilty of the felony actually committed, though having no
intent to commit it, if the offense was committed in furtherance of the
unlawful purpose and was one that should have been anticipated as a result of
the carrying out of the conspiracy.”  Id. § 7.02(b).


[14]At trial, Kimberly initially reiterated that she stood within two
feet of Appellant, but after the prosecutor demonstrated this distance,
Kimberly agreed that she probably stood within five to six feet of Appellant.


[15]Suggestiveness may arise from the manner in which the pretrial
identification is conducted if, for example, police point out the suspect or
suggest that a suspect is included in the photo array.  Barley, 906
S.W.2d at 33.  Also, the content of the photo array is considered unduly
suggestive if, for example, other participants are greatly dissimilar in
appearance from the suspect.  Id.


[16]We agree with the State that Appellant does not set forth a
substantive argument that the out-of-court photographic lineups shown to
Kimberly and Tracy were impermissibly suggestive.  As
the State points out, Appellant’s argument more closely tracks the second prong
of the Simmons analysis; that is, whether an improperly suggestive
procedure created a very substantial likelihood of irreparable
misidentification.  See Simmons, 390 U.S. at 384, 88 S. Ct. at
971; see Neil v. Biggers, 409 U.S. 188, 199–200, 93 S. Ct. 375, 382
(1972); Luna, 268 S.W.3d at 605.


[17]Kimberly described
the car as gray and also “dark colored,” and there was evidence that
Appellant’s car did not have tinted windows.  We must presume, however, that the factfinder resolved
any conflicting inferences in favor of the verdict and defer to that resolution. 
Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Wise, 364
S.W.3d at 903.


[18]Appellant denied making this statement; however, the jury was free
to disbelieve his testimony.  Throughout trial, the State emphasized this
statement.  The jury was free to give this statement some weight in light of
Appellant’s testimony that he was secluded the day of the shooting and that he
had made suggestions about where the shooting should occur but that he did not
know the location the other members ultimately chose.


[19]This instruction tracks a portion of the language in section 7.01
of the penal code.  See Tex. Penal Code Ann. § 7.01(a), (b).


[20]This definition of conspiracy tracks a portion of the criminal
conspiracy statute.  See id. § 15.02
(West 2011).  As discussed in the opinion below, the court of criminal appeals
has found no error in defining the term “conspiracy” in this way.  Ladd v.
State, 3 S.W.3d 547, 565 (Tex. Crim. App. 1999), cert. denied, 529
U.S. 1070 (2000).


[21]This instruction tracks the language in section 7.02(b) of the
penal code.  See Tex. Penal Code Ann. § 7.02(b).


[22]Section 15.02 provides in part that “(a) A person commits criminal
conspiracy if, with intent that a felony be committed: (1) he agrees with one
or more persons that they or one or more of them engage in conduct that would
constitute the offense; and (2) he or one or more of them performs an overt act
in pursuance of the agreement.”  Id. § 15.02.


[23]“The purpose of [the corpus delicti] rule is to ensure that a
person is not convicted based solely upon his own extrajudicial false
confession to a crime that never occurred.”  Menefee v. State, 287
S.W.3d 9, 21 (Tex. Crim. App. 2009) (Cochran, J., concurring); see Bible v.
State, 162 S.W.3d 234, 246 (Tex. Crim. App. 2005) (“The corpus delicti doctrine
requires that evidence independent of a defendant’s extrajudicial confession
show that the ‘essential nature’ of the charged crime was committed by
someone.”) (quoting Salazar v. State, 86 S.W.3d 640, 644–45 (Tex. Crim.
App. 2002)).


[24]“[U]nder the law of parties, the State is able to enlarge a
defendant’s criminal responsibility to acts in which he may not be the
principal actor.”  Goff v. State, 931 S.W.2d 537, 544 (Tex. Crim. App.
1996), cert. denied, 520 U.S. 1171 (1997); see Adames v. State,
353 S.W.3d 854, 861 (Tex. Crim. App. 2011) (“While the parties theory was not
plead[ed] in the indictment, both state and federal law specify that due
process does not require a defendant’s culpability as a party to the offense to
be plead in the charging instrument.”), cert. denied, 132 S. Ct. 1763
(2012).  An instruction on the law of parties should be submitted to the jury
when the evidence adduced at trial shows the active participation in the
offense by two or more persons.  See Goff, 931 S.W.2d at 544–45.


[25]To the extent Appellant complains that the trial court erred by applying
“the principle of ‘conspiracy’” under section 15.02 in the jury charge, he
raises this, and we address it, in his fifth issue.


[26]The court’s charge instructed, “A person commits deadly conduct if
he knowingly discharges a firearm at or in the direction of one or more
individuals.”


[27]The court’s charge instructed, “A person commits terroristic threat
if he threatens to commit any offense involving violence to any person or
property with intent to place the public or a substantial group of the public
in fear of serious bodily injury.”


[28]That is, the brief merely complains that the party conspiracy
instruction should not have been submitted.


[29]That is, the brief merely complains that the
definitions of these offenses were provided to the jurors.


[30]We take note of Woodard
v. State, 322 S.W.3d 648 (Tex. Crim. App. 2010).  In Woodard, the
court of criminal appeals reaffirmed (1) a defendant’s due process right to
notice of the charge against him; (2) the Fifth Amendment’s grand jury
guarantee that no person “shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a grand jury”; and (3)
the Texas constitution’s guarantee that “no person shall be held to answer for
a criminal offense, unless on an indictment of a grand jury . . . .”  Id.
at 656–57.  Notably, however, Woodard was indicted for murder and convicted of
the unindicted offense of conspiracy to commit aggravated robbery.  Id.
at 649.  After setting out the above guarantees, the court held that Woodard
could not complain for the first time on appeal that the trial court erred by
instructing the jury on the unindicted offense, because he had helped to
prepare the jury charge, including the instruction relating to the unindicted
offense, to which the State unsuccessfully objected.  Id. at 657–60.


