












 
 
 
 
 
 
                                      COURT
OF APPEALS
                                       SECOND
DISTRICT OF TEXAS
                                                   FORT
WORTH
 
 
                                        NO.
2-05-143-CR
 
 
ANDRE A. CARROTHERS                                                      APPELLANT
 
                                                   V.
 
THE STATE OF TEXAS                                                                STATE
 
                                              ------------
 
           FROM
THE 371ST DISTRICT COURT OF TARRANT COUNTY
 
                                              ------------
 
                                MEMORANDUM
OPINION[1]
 
                                              ------------
I.  Introduction
Appellant Andre A. Carrothers
appeals his conviction and life sentence for murder.  In two points, appellant complains that the
evidence is legally and factually insufficient to establish that he
intentionally or knowingly caused the victim=s death.  We affirm.




II.  Background Facts
Appellant was indicted for
the stabbing death of Jayne Barber. 
After the jury found appellant guilty of murder, the trial judge
sentenced him to a life sentence in the Institutional Division of the Texas
Department of Criminal Justice.
III.  Legal and Factual Sufficiency
In two points, appellant
argues that the evidence is legally and factually insufficient to establish
that he intentionally or knowingly caused Barber=s death.
A.  Standards of Review
In reviewing the legal
sufficiency of the evidence to support a conviction, we view all the evidence
in the light most favorable to the judgment in order 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); Hampton v.
State, 165 S.W.3d 691, 693 (Tex. Crim. App. 2005).




In reviewing the factual
sufficiency of the evidence to support a conviction, we are to view all the evidence
in a neutral light, favoring neither party. 
See Zuniga v. State, 144 S.W.3d 477, 481 (Tex. Crim. App.
2004).  The only question to be answered
in a factual sufficiency review is whether, considering the evidence in a
neutral light, the fact finder was rationally justified in finding guilt beyond
a reasonable doubt.  Id. at
484.  There are two ways evidence may be
factually insufficient:  (1) when the
evidence supporting the verdict or judgment, considered by itself, is too weak
to support the finding of guilt beyond a reasonable doubt; or (2) when there is
evidence both supporting and contradicting the verdict or judgment and,
weighing all of the evidence, the contrary evidence is so strong that guilt
cannot be proven beyond a reasonable doubt. 
Id. at 484-85.  AThis standard acknowledges that evidence of guilt can >preponderate= in favor of
conviction but still be insufficient to prove the elements of the crime beyond
a reasonable doubt.@  Id. at 485.  In other words, evidence supporting a guilty
finding can outweigh the contrary proof but still be insufficient to prove the
elements of an offense beyond a reasonable doubt.  Id. 
In performing a factual
sufficiency review, we are to give deference to the fact finder=s determinations, including determinations involving the credibility
and demeanor of witnesses.  Id. at
481; Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).  We may not substitute our judgment for the
fact finder=s.  Zuniga, 144 S.W.3d at 482.  




A proper factual sufficiency
review requires an examination of all the evidence.  Id. at 484, 486-87.  An opinion addressing factual sufficiency
must include a discussion of the most important and relevant evidence that
supports the appellant=s complaint
on appeal.  Sims v. State, 99
S.W.3d 600, 603 (Tex. Crim. App. 2003).
B.  Applicable Law
Section 19.02 of the penal
code provides, AA person
commits [murder] if he . . . intentionally or knowingly causes the death of an
individual.@  Tex.
Penal Code Ann. ' 19.02(b)(1)
(Vernon 2003).  Penal code section 6.03
defines the culpable mental states as follows:
(a) A person acts intentionally, or with intent,
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, or with knowledge,
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, or with
knowledge, with respect to a result of his conduct when he is aware that his
conduct is reasonably certain to cause the result.
 
Id. ' 6.03 (Vernon 2003).
C.  Applicable Facts




At trial, Andrea Anderson,
appellant=s friend,
testified that on Friday, September 26, 2003, appellant called her and told her
that he had been on a Abinge,@ so she took him some clean clothes at the South Oaks Inn.  The following Monday morning, at
approximately 1:00 a.m., Anderson received a phone call from appellant=s mother telling her that appellant was in jail and needed a ride
home.  After picking up appellant at the
Fort Worth jail, Anderson took appellant to appellant=s mother=s
apartment.  At approximately 10:00 a.m.
that same morning, appellant=s mother called Anderson and asked her to come over because appellant
had told her that he had found a dead body. 
When Anderson arrived at the apartment, she told appellant that he
needed to call the police, but appellant told her that he did not want to call
the police because he was afraid the police would think that he was involved
with the victim=s death.
Appellant stated that he had gotten high with the victim all week and had
driven her car in exchange for drugs. 
Appellant said that he had found the victim in her apartment Athree to four days prior,@ but that he could not remember the exact date because he had been on
drugs.  Appellant told Anderson that the
victim=s throat was cut, that she was sitting in a chair, and that she was
wrapped in blankets.  He stated that
there was blood in the chair. Appellant stated that he touched the victim to
see if she was alive or dead, and once he realized that she was dead, he turned
the thermostat down in the apartment to preserve the body. 




Anderson testified that after
hearing appellant=s story, she
left appellant=s mother=s apartment to go home and get her car because she was with a friend,
and when she returned to the apartment, appellant was getting into a police
car.  Appellant=s mother got into Anderson=s car, and they followed the police car to Barber=s apartment.  When they arrived
at Barber=s apartment,
appellant got out of the police car and led the way to the back door of the
apartment.  Anderson testified that
appellant never attempted to use the front door. Anderson stated that the back
sliding glass door was closed but unlocked. 
She said that she could smell Arotten flesh@ when the
police officer went into the apartment. 
Anderson testified that appellant=s mother told her that appellant had purchased a knife with his social
security check.[2]  However, appellant stated that he left the
knife in Barber=s car when
it was impounded. Additionally, when Anderson asked appellant if he had
anything to do with Barber=s death, appellant said Ano,@ and seemed Avery sincere.@  Anderson stated that appellant never told her
that he moved the body and that he did not see Barber=s face because it was wrapped in a blanket.




J.D. Hopper, a Fort Worth
police officer, testified that on September 30, 2003, at approximately 2:35
p.m., he received an investigation dispatch call that someone knew where a dead
body was located.  After arriving at
appellant=s mother=s apartment, Officer Hopper drove appellant to the Peppertree
Apartments after appellant stated that was where he saw the dead body.  Officer Hopper stated that appellant seemed Aflat@ and Anormal.@  When they arrived at the Peppertree
Apartments, appellant pointed out Barber=s apartment and took Officer Hopper to the back sliding glass
door.  Officer Hopper testified that he
saw flies on the back door and that this indicated that something had
died.  Officer Jones, who had met Officer
Hopper and appellant at the apartment, opened the back door and went inside the
apartment.  Officer Hopper testified that
he could smell the decaying body and that the door did not appear to have been
forced open.  While Officer Jones was
inside the apartment, Officer Hopper stayed outside with appellant and began to
question him about the body.  Although
Officer Hopper gave appellant his Miranda[3]
rights before questioning him, Officer Hopper stated that appellant was not
under arrest.
Appellant stated to Officer
Hopper that he had known Barber for approximately four or five months and that
she was a friend.  Appellant told Officer
Hopper that Barber would let him borrow her car and he would bring her drugs in
exchange for using the car.  Appellant
also told Officer Hopper that he did not call the police because he was
afraid.  Officer Hopper testified that
appellant stated that he wrapped Barber in a blanket.




Sarah Waters, a homicide
detective with the Fort Worth Police Department, testified that at
approximately 2:30 p.m. on September 30, 2003, she received a dispatch call to
the Peppertree Apartments.  She stated
that when she arrived thirty minutes later, she noticed that appellant was
jittery and nervous.  Appellant approached
Detective Waters and told her that he had been on crack for the previous twelve
days and that he had found his friend Barber four days earlier.  Appellant said that he has a psychological
disorder, that he hears voices, and that he hallucinates.  After talking with appellant, Detective
Waters then went inside the apartment and saw Barber lying on the floor in the
living room.  She stated that Barber
appeared to have been dead for a while because the decomposition was advanced
and there were maggots on Barber=s face and clothing.  She noted
that a TV, stereo, and VCR appeared to be missing from the entertainment center
in the living room.  Detective Waters
testified that she thought someone else lived in the apartment, so the police
secured the apartment and left until a search warrant could be obtained.




Detective Waters stated that
when she left Barber=s apartment,
she went to the homicide office, wrote an arrest warrant for appellant for
tampering with evidence, and interviewed appellant along with Detective
Carroll.  She said that appellant seemed
to be intelligent and not mentally ill or intoxicated.  Detective Waters stated that she took a
written statement from appellant, which he signed at 8:30 p.m.  In the statement, appellant stated that he
met Barber through his ex-girlfriend, Tricia Bryant.  Appellant said that he had Barber=s car the week of September 20. 
Appellant stated that he did not call the police because he was too
afraid to make an anonymous phone call. 
Appellant told Detective Waters that Barber was Adeathly afraid@ of her
ex-husband and that the ex-husband had just gotten out of prison.  However, Detective Waters later learned that
Barber=s ex-husband was still in prison at the time of Barber=s death.  Detective Waters
testified that she confronted appellant about the inconsistencies in his story
because Athings did not add up.@  During her investigation,
Detective Waters found out that Rhonda Tealer, one of the prostitutes that had
been staying with appellant, was in jail and interviewed her. 
On October 6, 2003, Detective
Waters obtained a search warrant to look for Barber=s property, bloody clothing, and a knife, and she went to the South
Oaks Inn, where Tealer told her that appellant had rented a room.  She stated that she found a pair of blue jean
shorts that appeared to have blood on them in a dresser drawer.  Detective Waters also took bedding and
another pair of blue jean shorts from the motel room. 




Detective Waters testified
that after learning from Tealer that appellant had pawned some jewelry and a
stereo at a Cash America Pawn, she went to the store and obtained a pawn ticket
for a watch, rope chain, and a ring.  She
also got the September 22, 2003 video surveillance tape from the store.  At trial, Detective Waters pointed out
appellant on the tape carrying a stereo speaker and a turntable.  The store also had surveillance video of the
parking lot, which showed that appellant was driving Barber=s car.  The pawn store manager
told Detective Waters that he only agreed to pawn the jewelry and not the
stereo.  Detective Waters further
testified that she obtained two rings and a bracelet from Tealer.  After obtaining the jewelry, Detective Waters
took it to Donna Snodgrass, Barber=s friend, who verified that the items belonged to Barber. 




Glenn Box testified that on
September 15, 2003, he checked into the Super 7 Motel with Eloy Rubio.  He stated that on September 19, 2003, Tealer,
whom he met at the motel, came by his motel room and had some drugs.  Tealer told Box that she had gotten the drugs
from appellant.  On September 20, 2003,
Box saw Tealer with a woman named Shea[4]
and Shea asked him if he knew how to get rid of Amerchandise.@  Box testified that he thought Shea was
talking about stolen merchandise.  Shea
told him that she had some jewelry, a toaster oven, and a stereo.  Box agreed to look at the merchandise and
walked with Tealer and Shea to a blue station wagon driven by appellant. After
looking at the merchandise, Box told them that the stereo and toaster oven were
not things that he could sell.  Box
testified that the blue station wagon was still parked in front of the motel on
September 22.  Box testified that after
appellant got kicked out of the Super 7 motel, appellant moved into the South
Oaks Inn.  He stated that while he and
appellant were standing out on the motel=s balcony, appellant showed him a knife and told him that he had
gotten into a fight with a Mexican and stabbed him.  Box asked appellant if the Mexican was dead,
and appellant stated that he was not sure because he left after the stabbing.




The next night, while Box and
appellant were at Carter Park, appellant told Box that the Mexican had
recognized his car and had gone Alooking for him.@  Appellant stated that when he got to Barber=s house, she was tied up in a chair with her throat slit.  Box asked appellant if he had called the
police or touched anything, and appellant said no.  Appellant stated that he figured the Mexican
had retaliated against him and killed Barber. 
Appellant did not want to be connected to Barber=s murder, so he asked Box what he should do.  Box stated that if appellant had nothing to
do with the murder, then he should call the police.  However, appellant stated that he could not
call the police because his fingerprints were around Barber=s apartment.  Appellant then
asked Box how to get rid of a body, and Box told him that he was not going to have
anything to do with that.  Appellant said
that he wrapped Barber=s body in
plastic and put it in the bathroom.  Box
told appellant that the body was going to create an odor, and appellant replied
that he turned the air conditioner down and put incense in the apartment.  While they were at the park, appellant got
out of Box=s truck, and
when he returned he told Box that he had gotten rid of the knife.  Box testified that he told appellant to get
rid of the knife.
Bryant, appellant=s ex-girlfriend and Barber=s friend, testified that Barber was very protective of her
property.  She said that Barber was paranoid
and would lock the door immediately after letting someone in the
apartment.  Bryant stated that she did
not know Barber to loan out her car to anybody; however, she also stated that
Barber might have loaned her car to appellant. 
On September 19, 2003, she saw appellant at her apartment and he had a
three-blade knife clipped to his belt.




Tealer testified that she met
appellant on September 13 or 14 while she was walking down the street and that
she became friends with him for his money.  She stated that on that same day, appellant
bought her a knife at a convenience store because she was afraid of her
husband, but she refused to carry it. 
Tealer said that appellant was the only person to have the knife.  On September 19, 2003, appellant returned to
the motel where they were staying with a car, watch, stereo, and a couple of
rings.  Appellant told Tealer that he was
renting the car from a friend, Barber, for crack and that Barber gave him the
jewelry and stereo in exchange for drugs. 
Tealer noticed that he had blood on him and the knife.  When Tealer questioned appellant about the
blood, appellant told her that he had gotten in a fight with a ASpanish man.@  Tealer made appellant wash the blood off of
the knife.
Tealer testified that she
asked appellant if she could meet the lady that loaned him her car, but
appellant very adamantly said no because A[Barber] wouldn=t
understand.@  Tealer stated that between September 25 and
September 29, appellant told her that he had found Barber dead in her
apartment.  Appellant said that he found
Barber dead on September 23, and that she was sitting in a rocking chair with
her throat slit.  Tealer asked appellant
if he had called the police, and he said no. 
When Tealer asked him if he had killed Barber, he said, A[Barber] was my friend.@




Ricky Williams, Barber=s neighbor and an acquaintance of appellant through MHMR, testified
that in September 2003, he had known appellant for approximately two to three
months.  He stated that in September 2003
at approximately 7:00 to 8:00 p.m., appellant came over to his apartment with
two stereo speakers and left them at his apartment.  Approximately ten to fifteen minutes later,
appellant brought over the rest of the stereo, a toaster oven, a TV, and some
other appliances, and then left again. 
Williams testified that after bringing all the items over to his
apartment, appellant started selling the items immediately.  He stated that appellant sold everything
except for the TV, which he sold to Williams. 

Officer Harold Gass, a Fort Worth
police officer in the crime scene unit, testified that in September 2003 at
approximately 2:55 p.m., he responded to a call at Barber=s apartment.  Officer Gass
testified that after entering the apartment through the sliding glass door in
the back, he noticed that the front door was locked and dead bolted.  He further stated that the sliding glass door
did not show any signs of forced entry. 
He stated that when he looked at the thermostat, the air conditioner was
on and the thermostat was set to fifty-five degrees, but that it was actually
seventy-two degrees in the apartment.
Doctor Gary Sisler, a deputy
medical examiner for Tarrant, Parker, and Denton counties, testified that on
October 1, 2003, he performed the autopsy on Barber.  He stated that Barber=s body was in an advanced state of decomposition and estimated that
she had been dead for more than thirty-six hours because of the extent of
decomposition.  Dr. Sisler testified that
he believed Barber knew that she was being attacked because she had defensive
wounds on the back of her forearms.  Dr.
Sisler said that the cut wound on Barber=s neck was five inches long and two and a half inches wide.  He listed Barber=s death as a Acut wound to
the neck.@




Jody Hrabal, a forensic DNA
analyst for Orchid Cell-Mark, testified that she received numerous items in
this case to test for possible DNA.  She
stated that she had been provided Barber=s DNA through hair roots, and appellant=s DNA through a buccal swab.[5]  Hrabal stated that she tested the back patio
door handle of Barber=s apartment
for DNA and found a large amount of Barber=s DNA and a small amount of appellant=s DNA on the door handle.  She
said that she found Barber=s blood and DNA and appellant=s DNA on a pair of Bugle Boy blue jean shorts.
Max Courtney, the lab
director and owner of Forensic Consultant Services, testified that the large
amount of blood in the chair cushion indicates that Barber was facing the
chair, but not seated in the chair, when her neck was cut.  Courtney opined that Barber was standing at
or near the chair when her throat was cut. 
He stated that Barber could not have gone over to the sliding glass door
after her throat was cut without Aleaving a trail of blood along the way,@ which was not found in the apartment. 




In appellant=s written statement that he signed on September 30, 2003, he stated
that he met Barber through Bryant, his ex-girlfriend.  He said that he became friends with Barber
and that she let him use her car on four occasions.  The shortest time that appellant had Barber=s car was for two days. 
Appellant always gave Barber some crack when he returned her car to
her.  Appellant stated that he had Barber=s car the week of September 22 to September 27, and that Barber had
told him to have her car back on September 27. Appellant went over to Barber=s apartment on September 27 at approximately 1:00 a.m. to return the
car, but Barber did not answer the front door when he knocked. Appellant stated
that it was Aunusual@ for Barber not to answer the door. 
After knocking on the front door again with no answer, appellant walked
around to the back sliding glass door. 
He noticed that the door was partially open, so he went inside Barber=s apartment and called out her name. 
When Barber did not answer, appellant went looking for her in the
apartment and noticed a bunch of blankets on a chair in the living room.  When he looked closer, appellant saw arms
sticking out of the blankets, so he moved Barber to the floor thinking that she
might still be alive.  However, when he
unwrapped her face, he saw that it was blue and that her throat was Aall gored up,@ so he took
a blanket or sheet off of her bed and covered her up.  Appellant stated that he turned the
thermostat down to sixty degrees to help preserve the body and then took Barber=s car back to the motel where he was staying.  He stated that he did not tell Tealer or Shea
about discovering the body.  




The State and appellant=s attorney stipulated that if Judy Alarcon, Barber=s sister, would have testified, she would state that she recognized
the stereo speaker, turntable, and jewelry as belonging to Barber.  Alarcon would have also testified that Barber
was Anot in the habit of loaning her car out to people.@  Additionally, the State and appellant=s attorney stipulated that if Snodgrass, Barber=s friend, would have testified, she would have said that the last time
that she saw Barber was on September 20, 2003. 
A couple of days later, Snodgrass noticed that Barber=s car was missing, but she did not think anything about it because
Barber had stated that she had wanted to get out of town.  On September 26, 2003, Snodgrass saw the lights
in Barber=s apartment
turned on and saw something moving around inside the apartment, but she thought
it was Barber.  Additionally, Snodgrass
stated that Barber was Aexcessively
protective@ of her car
and did not let anyone, besides her dad and niece, drive the car.  She stated that Barber was Avery afraid of everyone and kept her apartment locked at all
times.  She would never open the door to
a stranger.@  Snodgrass stated that Barber never allowed
anyone to pawn her things for her and that she would never have pawned her TV
or stereo. 
D.  Analysis







Appellant complains that the
evidence fails to show that he Aintentionally or knowingly committed the murder.@  Specifically, appellant
asserts that the State=s
circumstantial evidence is Aso weak that no rational trier of fact could conclude that the
essential elements of the offense were proven beyond a reasonable doubt.@[6]  However, the surveillance tape
shows appellant pawning Barber=s stereo on September 22, 2003, when he claimed to have noticed that
her stereo was missing on September 27. 
In his written statement, appellant asserts that he did not tell Tealer
or Shea about finding Barber=s body, but Tealer testified that appellant had told her about the
discovery one night. Additionally, when Detective Waters interviewed appellant,
he did not mention that he had pawned Barber=s property; instead he merely stated that he had walked into Barber=s apartment, found her dead, and left the apartment.  Appellant had Barber=s car in his possession, but witnesses testified that Barber never
lent her car to anyone except her father and niece.  Appellant told Tealer and Box that he had
gotten into a fight with a Mexican and stabbed him; however, Detective Waters
testified that she could not find any reports of cuttings or stabbings that
occurred between September 16 and September 30 that met appellant=s description of the incident. 
Tealer and Box both testified that appellant had blood on his shorts,
and Tealer testified that appellant had blood on the knife.  Box stated that appellant inquired about how
to dispose of a body and even suggested burning the building down so that he
could not be traced to Barber=s apartment.  Appellant opined
that the Mexican had retaliated against him by killing Barber, but everyone who
knew Barber testified that she would not open her door to strangers.  Additionally, appellant=s blood was found in Barber=s apartment, and Barber=s blood was found on appellant=s blue jean shorts.  Finally,
there was no evidence of forced entry into the apartment, and appellant took
the police to the back door without first trying to open the front door.  
Unless the available record
clearly reveals a different result is appropriate, an appellate court must
defer to the jury=s
determination concerning what weight to give contradictory testimonial evidence
because resolution often turns on an evaluation of credibility and demeanor,
and those jurors were in attendance when the testimony was delivered.  Johnson v. State, 23 S.W.3d 1, 8 (Tex.
Crim. App. 2000).  Here, the jurors were
present when the testimony was given and the evidence was introduced.  After reviewing the record, we cannot say
that a different result is appropriate and must defer to the jurors= determination.  




We hold that the evidence,
when viewed in the light most favorable to the verdict, supports a
determination beyond a reasonable doubt that appellant intentionally or
knowingly killed Barber; therefore, we overrule appellant=s first point.  Additionally,
when viewed neutrally, the evidence is not so obviously weak or so greatly
outweighed by contrary proof that it would not support the finding of guilty
beyond a reasonable doubt.  We overrule
appellant=s second
point.  
IV.  Conclusion
Having overruled appellant=s two points, we affirm the trial court=s judgment.
 
TERRIE LIVINGSTON
JUSTICE
 
PANEL B:   LIVINGSTON, GARDNER, and MCCOY, JJ.
 
DO
NOT PUBLISH
Tex. R. App. P. 47.2(b)
 
DELIVERED:
July 20, 2006




[1]See Tex. R. App. P. 47.4.


[2]Appellant
was receiving social security checks because he was mentally ill and was
receiving treatment from the Texas Department of Mental Health and Mental
Retardation (MHMR).  


[3]See
Miranda v. Arizona, 396 U.S. 868, 90 S. Ct. 140 (1969).  


[4]Shea=s
last name is unknown.


[5]A
buccal swab is a swab from the inside of a person=s
cheek.


[6]Appellant
concedes that in certain instances, circumstantial evidence can be legally
sufficient to prove an offense.


