                                   NO. 07-08-0286-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL C

                                  JULY 22, 2009
                         ______________________________

                           DOMINICK N. TUTT, APPELLANT

                                            V.

                         THE STATE OF TEXAS, APPELLEE
                       _________________________________

      FROM THE CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY;

              NO. 1025144D; HONORABLE ELIZABETH BERRY, JUDGE
                       _______________________________


Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                               MEMORANDUM OPINION


       Appellant, Dominick N. Tutt, appeals his conviction for attempted capital murder

contending that the evidence is legally and factually insufficient. We affirm.


                                       Background


       On the evening of June 5, 2006, Tarrant County Sheriff Deputy Michael Beeson was

working as security for Carnival Foods grocery store. Upon receiving a phone call from his

wife, Beeson stepped outside of the store to speak with his wife. While distracted during
the phone call, an assailant stepped up to Beeson and ordered him to get off the cell

phone. Beeson looked toward the assailant and realized that a loaded firearm was pointed

at him. As Beeson began to move away and draw his service weapon, the assailant shot

Beeson twice. Beeson returned fire and hit the assailant in the back as the assailant ran

away. As two store employees tended to Beeson’s wounds, another witness, Jorge

Arambola, drove after assailant. The assailant eventually eluded Arambola by jumping

over a residential fence and out of Arambola’s sight. At the scene, police spoke with

witnesses including Arambola, Arnulfo Sanchez and Mercedes Sanchez, who gave the

police a description of the assailant. At the crime scene, the police photographed the

scene and gathered spent casings, a bandana, a cap, and samples of blood taken from

a wall along the assailant’s get away route.


      Meanwhile, Beeson was rushed to a hospital where doctors stabilized him and

removed the bullets.    Within a couple of hours of his arrival, Beeson is shown a

photospread and asked to identify his assailant. Initially, Beeson is in pain and asks to

view the photospread at a later time.      The next day, Beeson is shown a second

photospread and is able to identify appellant as the person who shot him. Unknown to

Beeson, appellant had also arrived at the same hospital for treatment.          After the

identification by Beeson, appellant is arrested and charged with attempted capital murder.


      At trial, the State had Arambola, Arnulfo, and Aliene Cruz testify to the shooting

incident and each described a tall, thin, black man as the person who shot Beeson.

Mercedes also testified that a tall, thin, black man shot Beeson and testified that she

further identified the shooter in a photospread shown to her on June 26, about three weeks

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after the shooting. She identified the shooter as appellant. Further, DNA evidence

gathered at the scene matched appellant’s blood. The jury found appellant guilty and the

trial court judge assessed appellant’s punishment at life imprisonment in the Institutional

Division of the Texas Department of Criminal Justice. Appellant timely filed his appeal

contending that the evidence at trial was legally and factually insufficient. We affirm.


Legal Sufficiency


       When appellant challenges both legal and factual sufficiency, we are required to

conduct an analysis of the legal sufficiency of the evidence first and then, only if we find

the evidence to be legally sufficient, do we analyze the factual sufficiency of the evidence.

See Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App.1996). In assessing the legal

sufficiency of the evidence, we review all 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 offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Ross v. State, 133 S.W.3d 618, 620

(Tex.Crim.App. 2004). In conducting a legal sufficiency review, an appellate court may not

sit as a thirteenth juror, but rather must uphold the jury's verdict unless it is irrational or

unsupported by more than a mere modicum of evidence. Moreno v. State, 755 S.W.2d

866, 867 (Tex.Crim.App.1988).


       Appellant’s primary contention that the evidence is insufficient centers on the

conflicting testimony presented at trial. Appellant points out that Arambola, Cruz, and

Arnulfo were unable to give more than a general description of a thin, black man. Only


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Beeson and Mercedes were able to pick appellant out of a photospread, however, the two

gave different descriptions as to the clothing worn by the shooter. Finally, appellant points

out that the DNA testing could not link him to either the bandana or the cap found at the

scene. Hence, appellant contends that the evidence is so inconclusive that a rational jury

could not have found the essential elements of the crime beyond a reasonable doubt.


       Even given the conflict in the testimony, we presume that the jury resolved the

conflicts in favor of the prosecution. Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.

2007). Given that presumption, we conclude that a rational jury, based on the photospread

identification by Beeson and Mercedes, appellant’s DNA found along the shooter’s route,

and the evidence that appellant was admitted to the hospital with a wound similar to what

the shooter would have experienced, had sufficient evidence to have found the essential

elements of the offense beyond a reasonable doubt. See Ross, 133 S.W.3d at 620. We

overrule appellant’s first issue.


Factual Sufficiency


       In a factual sufficiency review, we must consider all of the evidence in a neutral light

to determine whether a jury was rationally justified in finding guilt beyond a reasonable

doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). The appellate

court views the evidence in a neutral light and asks whether the evidence supporting the

verdict is so weak or so against the great weight and preponderance of the evidence as

to render the verdict manifestly unjust. See Steadman v. State, 280 S.W.3d 242, 246

(Tex.Crim.App. 2009). A wrong and unjust verdict includes instances in which the jury’s


                                              4
findings “shocks the conscience,” or clearly demonstrates bias. See Grotti v. State, 273

S.W.3d 273, 280 (Tex.Crim.App. 2008). In doing a factual sufficiency review, the appellate

court must be mindful that a jury has already passed on the facts and must give due

deference to the determinations of the jury. See Lancon v. State, 253 S.W.3d 699, 704-05

(Tex.Crim.App. 2008). If the verdict is set aside, the court of appeals’s opinion should

clearly explain how the evidence supporting the verdict is too weak on its own or how the

contradicting evidence so greatly outweighs the evidence in support of the verdict. See id.

Further, if a court of appeals upholds a verdict, it is required to consider the most important

evidence that the appellant claims undermines the jury's verdict and explain why it does

not have the persuasive force that the party believes is sufficient to overturn the verdict.

See Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003).


       Next, under a factual sufficiency standard, we must consider all of the evidence in

a neutral light to determine whether a jury was rationally justified in finding guilt beyond a

reasonable doubt. See Watson, 204 S.W.3d at 415. However, 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). Appellant’s contention does not focus on evidence that would

exculpate him, but rather insists that the contradictory description of the clothes, the lack

of DNA finding on the bandana and cap as well as the uncertainty in the testimony as to

which hand the shooter held the gun serve to provide sufficient reasonable doubt as to his


                                              5
conviction. However, we disagree with appellant’s claim and do not believe it has the

persuasive force to undermine the jury’s verdict.


       Appellant focuses on the testimony and physical evidence that is inconclusive, yet

does not address evidence that the jury could have believed. Although the description of

the clothes were different between witnesses, the jury was in the position to evaluate the

credibility of the witnesses as well as the weight to give such evidence. See id. The jury

also could have given more weight to the DNA evidence found along the route versus the

inconclusive DNA evidence in the cap or the lack of DNA evidence on the bandana.

Finally, the jury could have given more weight to the fact that Beeson and Mercedes were

able to pick appellant out of the photospread and less weight to the fact that the other

witnesses were not able to pick anyone as the shooter in the photospread. Having

reviewed the record, we conclude that the record does not clearly reveal that a different

result is appropriate and, therefore, we will defer to the jury’s determination as to the weight

of the evidence and the credibility of the witnesses. Hence, we conclude that, viewing all

of the evidence in a neutral light, the jury was rationally justified in finding appellant guilty

beyond a reasonable doubt. See Watson, 204 S.W.3d at 415. We overrule appellant’s

second issue.


Conclusion


       For the foregoing reasons, we affirm the trial court.


                                            Mackey K. Hancock
                                                Justice
Do not publish.




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