AFFIRM;     Opinion   Filed   October   31, 2012.




                                                In The
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                                         No. 05-11-00149-CR


                        DEMARI US DWIGHT CUMMiNGS, Appellant

                                                    V.

                                THE STATE OF TEXAS, Appellee


                       On Appeal from the Criminal District Court No. 7
                                    Dallas County, Texas
                            Trial Court Cause No. F08-24666-Y


                               MEMORANDUM OPINION
                           Before Justices Moseley, Fillmore, and Myers
                                    Opinion By Justice Myers

       Demarius Dwight Cummings appeals his conviction for capital murder. After the jury found

appellant guilty, the trial court sentenced him to life imprisonment without parole. See TEX. PENAL

CODE ANN.    §   12.3 l(a)(2) (West 2011). Appellant brings one issue on appeal contending the

evidence is insufficient to prove he had the intent to commit murder. We affirm the trial court’s

judgment.

                                          BACKGROUND

       On the night of July 18, 2008, appellant and his friend, James Broadnax, discussed

committing a robbery to obtain money to travel to Texarkana. Appellant took his aunt’s AK-47 and
used it to borrow a handgun. Appellant Broadnax then took the train from Dallas to Garland to find

someone     to rob. As appellant and Broadnax walked around downtown Garland. they                 came across




Stephen Swan and Matthew Butler who            were   standing outside a recording studio. Appellant and

Broadnax talked to Swan and Butler about music and the record business for about thirty to forty-

five minutes, and appellant and Broadnax walked away. By this time, it         was past   midnight, the trains

and buses were no longer running, and appellant and Broadnax had no money and no way to                get   back
to Dallas. They decided to go back and rob Swan and Butler and take Swan’s car. Appellant told

Broadnax, who had the gun. that he might have to             bbpopI
                                                                      them a few times, but Broadnax told

appellant he did not want to do that. They decided appellant would distract the           men   by asking for
a cigarette and Broadnax would pull out the        gun   to rob them. When they returned to the recording

studio, Swan and Butler    were    still there. Appellant asked for a cigarette, and Broadnax pulled out

the gun and fired two shots at Swan and four shots at Butler. As Swan lay on the ground bleeding

to death, appellant vent through Swan’s pockets and took his wallet and car keys. Appellant and

Broadnax then drove away in Swan’s car, a Ford Crown Victoria. Swan and Buffer died                  from    their
injuries.

        Appellant and Broadnax returned the handgun to its owner and the AK-47 to appellant’s aunt

They removed the Ford’s license plates and replaced them with plates from a Cadillac. After

appellant pawned some tools they found in the car, they drove to Texarkana.

        In Texarkana, a police officer ran the license-plate number on the Ford through the computer

and learned the plates   were   registered to a Cadillac. The officer performed a traffic   stop   and arrested
appellant and Broadnax on outstanding misdemeanor warrants. When the officer entered the Ford’s

VIN number on the computer, he learned the car was involved in a double homicide in Garland. The

officer contacted the Garland police, who traveled to Texarkana and brought the             men    to Garland.



                                                      —2—
Garland Police [)etective Gary Sweet interviewed appellant, who denied any involvement in or

knowledge of the robbery and murders, Detective Sweet told appellant it would help appellant ifhe

cooperated and showed remorse. hut appellant invoked his right not to answer further questions. See

TEX. CODE CRIM. PROC. ANN.                   art. 38.22,        2(a)(5) (West 2005). On June 23, 2008. appellant gave

interviews     to three television stations discussing the facts of the offense.

                                                                 MURDER

         In his sole issue on appeal, appellant contends the evidence is insufficient to prove he had

the requisite intent to commit murder. In reviewing a challenge to the sufficiency of the evidence,

we examine all the evidence in the light most thvorablc to the verdict and determine whether a

rational trier of fact could have found the essential elements of the offense beyond a reasonable

doubt. Jacksun v. Viiinia, 443 U.S. 307, 319 (l979) Lucio v. State. 351 S.W.3d 878. 894 (Tex.

Crim. App. 2() 11). We are required to defer to the fact finder’s credibility’ and weight determinations

because the fact finder is the sole judge of the witnesses’ credibility and the weight to be given their

testimony. See Jackson. 443 U.S. at 326.

         The jury charge instructed the jurors under section 7.02(b) of the Penal Code, which

provides,

         lf 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.

TEx. PENAL CoDE ANN. § 7.02(b) (West 2011) (emphasis added).’ When the jury is instructed on


    The trial court charged the jury under section 7.02(b) as follows:

        Now, if’/OLL find from the evidence beyond a reasonable doubt that on or about the 19th day of June. 2008. in Dallas County.
        Texas. the defendant. DEMARIUS CUMM [NGS. entered nto a conspiracy with James Broadnax to commit the felony offense
        of robbery. and that in the attempt to carry out this conspiracy, ifany, if[sicl James Broadnax did intentionally cause the death
        of srEPIlE\ SWAN, :m individual, by shooting the said STEPHEN SWAN with a firearm, a deadly weapon. and if you




                                                                         -I
conspirator liability, the State is not required to prove the defendant intended to kill the victim;

instead, the State must prove the murder was foreseeable. Id,; Whitmire                                     v.   State, I $3 S.W.Sd 522,

526 (Tex. App. —-Houston [14th Dist.] 2006, pet. retd).                                     Appellant asserts the             evidence   was

insufficient to prove he should have anticipated the murder of Swan as a result of the carrying out

of the conspiracy to rob him.

            Appellant argues the evidence was insufficient because in the television interviews, appellant

stated that Broadnax had not killed anyone before, that Broadnax said he did not want to shoot

anyone, and that he knew Broacinax and it was not in Broadnax’s heart to shoot anyone. The

evidence shows appellant took his aunt’s AK—47 and used it to borrow a handgun from someone.

When appellant and Broadnax decided to rob the victims, appellant told Broadnax he might have to

“pop,” i.e.. shoot, the victims a few times.
                                      2 Broadnax said he did not want to shoot anyone but that

he thought one of the men had a gun. Appellant said. “I dont know. but we can just find out or

whatever.” This evidence shows appellant knew Broadnax was carrying a handgun and knew it was

loaded. Appellant’s telling I3roadnax he might have to shoot the victims a few times shows

appellant should have anticipated that Broadnax might shoot and kill the victims. (f, Davis v. State,

276 S.W.3d 491. 497 (Tex. App—Waco 2008, pet. ref d) (evidence supported finding defendant

anticipated murder when defendant supplied loaded weapons and discussed the possibility of gun

violence).

           After reviewing all the evidence in the light most favorable to the verdict, we conclude a

reasonable juror could find beyond a reasonable doubt that appellant should have anticipated


           further find that intentionally causing the death of STEPHEN SWAN was committed in furtherance of the unlawful purpose
           to commit robbery and should have been anticipated as a result of carrying out the conspiracy to commit robbery. whether or
           not the defendant, DEMARIUS CUMMINGS, had the intent to cause the death of STEPHEN SWAN, then you will find the
           defendant. DEMARIUS CUMMINGS. guilty of capital murder

   2
       One of the definitions of”pop” is “to fire at” or “shoot.” WEBSTER’S TFttRo NEW INTERNATI(tNAL Dtcltrt,\RY 1765 19X1).




                                                                     --4-
Broadnax shooting and killing Swan. We overnile appellant’s sole issue.

       We affirm the trial court’s judgment.




                                                  LANA kIYERS
                                                  JUSTICE
Do Not Publish
TEx. R. App. P. 47
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                                     (Lmirt f Apprats
                       fiftIi Jistrirt nf rxa at Ja1hts

                                       JUDGMENT
i)EMARIUS       DWIGFIT      C U M Ml N ( S,       Appeal from the Criminal District Court No.
Appellant                                          7 of l)allas County, Texas. (Tr.Ct.No. FOS
                                                   24666-Y).
No. 05-1 1-00149-CR          V.                    Opinion delivered by Justice Myers, Justices
                                                   Moseley and Fillmore participating.
TI-IF STATE OF TEXAS, Appellee

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMEI).




Judgment entered October 31. 2012.




                                                   JUSTICE
