Affirmed and Memorandum Opinion filed February 5, 2015.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-13-01118-CR

                      DANIEL JACOB STINER, Appellant
                                          V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 177th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1290078

                       MEMORANDUM OPINION

      In this appeal from a conviction for capital murder, we consider whether the
evidence is legally sufficient to support the conviction and whether an automatic
sentence of life without parole is cruel or unusual in violation of the United States
and Texas Constitutions. For the reasons explained below, we conclude that the
evidence is sufficient and that the automatic sentence is constitutional. We
therefore affirm the trial court’s judgment.
                                  BACKGROUND

         The complainant, a convenience store clerk, was gunned down at work by a
masked robber. Surveillance footage showed that the complainant had attempted to
run from the robber and hide behind a steel door. The robber shot five times at the
door, in an area tightly clustered at chest level. The bullets were hollow points,
which are designed to expand upon impact and inflict maximum damage. Each of
the bullets pierced the door and struck the complainant on the other side. The
robber quickly made off with the cash register, and the complainant died at the
scene.

         Two days after the incident, appellant turned himself in for questioning and
confessed that he was the masked robber. He cooperated fully with investigators.

         At trial, appellant testified that he lacked the specific intent to kill the
complainant, and that the jury should finding him guilty of felony murder, but not
capital murder. Appellant explained that he shot at the steel door because he
believed that a gun may have been hidden in the store, and he wanted to scare or
deter anyone from daring to use it.

         The State countered that the killing was deliberate. It noted that appellant
had military training in firearms, and that he had aimed his weapon with precision
at the complainant’s center of mass, where shots are often fatal. The State also
noted that appellant could have easily scared the complainant in a non-deadly
manner, such as by firing a single shot in the air, or by verbally threatening the
complainant to stay in the back of the store, to where he had been fleeing.

         The jury received instructions on both offenses, but it rejected appellant’s
claim of felony murder and convicted him of the greater offense of capital murder.
Because the State did not seek the death penalty, the sentence was automatic.


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Appellant received no opportunity to put on any evidence of mitigating
circumstances.

                      SUFFICIENCY OF THE EVIDENCE

      To obtain a conviction for capital murder, the State was required to prove
that appellant murdered the complainant and that the murder was intentionally
committed during the course of a robbery. See Tex. Penal Code § 19.03(a)(2).
Appellant does not dispute that he killed the complainant, or that the killing
happened during the course of a robbery. He argues only that there is legally
insufficient evidence that he had the specific intent to kill.

      When reviewing the legal sufficiency of the evidence, we examine all of the
evidence in the light most favorable to the verdict and determine whether a rational
trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. See Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.
2013). The evidence is insufficient when the record contains no evidence, or
merely a “modicum” of evidence, probative of an element of the offense. See
Garcia v. State, 367 S.W.3d 683, 687 (Tex. Crim. App. 2012).

      Although we consider everything presented at trial, we do not reevaluate the
weight and credibility of the evidence or substitute our judgment for that of the fact
finder. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
Because the jury is the sole judge of the credibility of witnesses and of the weight
given to their testimony, any conflicts or inconsistencies in the evidence are
resolved in favor of the verdict. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.
Crim. App. 2000). Our review includes both properly and improperly admitted
evidence. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We
also consider both direct and circumstantial evidence, as well as any reasonable
inferences that may be drawn from the evidence. Id. Circumstantial evidence is as
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probative as direct evidence in establishing the guilt of an actor, and circumstantial
evidence alone can be sufficient to establish guilt. See Hooper v. State, 214 S.W.3d
9, 13 (Tex. Crim. App. 2007).

      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. See Tex. Penal Code § 6.03(a). Intent
may be inferred from circumstantial evidence, such as acts, words, and conduct.
See Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004). If a person uses
a deadly weapon in a deadly manner, the inference is almost conclusive that the
person intended to kill. See Adanandus v. State, 866 S.W.2d 210, 215 (Tex. Crim.
App. 1993).

      Appellant testified directly that he did not intend to kill the complainant, but
the jury was free to disbelieve that testimony and infer an opposite intent from the
surrounding circumstances. The record showed that appellant began firing at the
complainant nearly as soon as he entered the convenience store. Appellant testified
that he knew that guns were sometimes hidden in convenience stores, and the jury
could have inferred from that testimony that appellant fired at the complainant to
neutralize a perceived threat. That inference is further supported by evidence that
appellant used hollow-point bullets, which are especially deadly, and he aimed his
weapon near the complainant’s center of mass. See Evans v. State, 440 S.W.3d
107, 113 (Tex. App.—Waco 2013, pet. ref’d) (holding that the jury could have
inferred an intent to kill from evidence that the defendant shot a convenience store
clerk in the chest using a gun loaded with hollow-point bullets). Appellant also
discharged his weapon five times, when there were less dangerous means of
scaring the complainant. See Vuong v. State, 830 S.W.2d 929, 934 (Tex. Crim.
App. 1992) (holding that the jury could have inferred an intent to kill from

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evidence that the defendant fired multiple shots, and most of them struck human
targets). The jury could have reasonably determined that appellant wanted to
eliminate the complainant, not just scare him. See Jones v. State, 944 S.W.2d 642,
647 (Tex. Crim. App. 1996) (“The jury may infer the intent to kill from the use of
a deadly weapon unless it would not be reasonable to infer that death or serious
bodily injury could result from the use of the weapon.”); Aguirre v. State, 732
S.W.2d 320, 326 (Tex. Crim. App. 1982) (op. on reh’g) (holding that there was
legally sufficient evidence of an intent to kill, even though the defendant fired his
weapon through a door).

      We conclude that there is legally sufficient evidence from which the jury
could have found every element of capital murder beyond a reasonable doubt.

                   CRUEL AND UNUSUAL PUNISHMENT

      Appellant argues next that an automatic sentence of life without parole
amounts to cruel and unusual punishment in violation of both the United States and
Texas Constitutions. Appellant relies on Miller v. Alabama, 132 S. Ct. 2455
(2012), which held that juvenile offenders could not be sentenced to a mandatory
term of life without parole. Even though appellant was an adult at the time of his
offense, he believes that the spirit of Miller applies, and that he should have been
allowed to present evidence of mitigating circumstances.

      The State responds that error, if any, has not been preserved, and we agree.
Before a party may present a complaint for appellate review, the record must
normally show that the complaint was made to the trial court by a timely request,
objection, or motion. See Tex. R. App. P. 33.1. Appellant never objected at trial
that the sentencing statute violated either the United States or Texas Constitutions.
Because no specific and timely objection was made, appellant has preserved
nothing for appellate review. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex.
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Crim. App. 1996); Cerna v. State, 441 S.W.3d 860, 867–68 (Tex. App.—Houston
[14th Dist.] 2014, pet. ref’d).

      Even if error had been preserved, this court has routinely held that an
automatic sentence of life without parole is not unconstitutional when assessed
against an adult offender convicted of capital murder. See Sloan v. State, 418
S.W.3d 884, 891–92 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (refusing
to extend Miller to the adult-offender context); Wilkerson v. State, 347 S.W.3d
720, 722–23 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d) (holding that an
automatic sentence of life without parole did not violate either the United States
Constitution or the Texas Constitution). Appellant’s constitutional challenges are
therefore without merit.

                                  CONCLUSION

      The trial court’s judgment is affirmed.




                                      /s/       Tracy Christopher
                                                Justice



Panel consists of Justices Christopher, Donovan, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).




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