                                                                          PD-1331&1332-15
              PD-1331&1332-15                                   COURT OF CRIMINAL APPEALS
                                                                                AUSTIN, TEXAS
                                                             Transmitted 10/16/2015 10:42:26 AM
                                                                Accepted 10/16/2015 2:44:04 PM
                                                                                 ABEL ACOSTA
                                                                                         CLERK

                               In the
               Court of Criminal Appeals of Texas

         Cause Nos. 01-14-00744-CR & 01-14-00745-CR
                               In the
          Court of Appeals for the First District of Texas
                            at Houston


                Cause Nos. 1326112 and 1383738
                     In the 248th District Court
                      Of Harris County, Texas


                   ARTAVIOUS DEON HOLLINS
                             Appellant

                                 v.



                     THE STATE OF TEXAS
                             Appellee


         PETITION FOR DISCRETIONARY REVIEW




                                         Casey Garrett
                                         4010 Bluebonnet, Ste. 204
                                         Houston, Texas 77025
                                         (713)228-3800
                                         Texas Bar No. 00787197
                                         Casey.garrett@sbcglobal.net




October 16, 2015
                    IDENTITY OF PARTIES AND COUNSEL


Appellant: Artavious Deon Hollins

Counsel for Appellant at Trial:
             Mr. T. B. Todd Dupont, II
              Texas State Bar No. 24004289
              3700 North Main Street
              Houston, Texas 77009
              713-682-1800
              Mr. Mike Driver
              Texas Bar No. 24069634
              402 Main, 4th Floor
              Houston, Texas 77002
              713-417-4809


Counsel for Appellant on Appeal:
             Casey Garrett
              4010 Bluebonnet, Suite 204
              Houston, Texas 77025
              Texas Bar No. 00787197
              713-228-3800
              Casey.garrett@sbcglobal.net

Counsel for the State at Trial:
              John Wakefield
              Assistant District Attorney
              Texas Bar No. 24054125
              1201 Franklin Street, Suite 600
              Houston, Texas 77002
              713-755-6881


Counsel for the State on Appeal:
              Harris County District Attorney's Office
              Appellate Division
              1201 Franklin, Suite 600
              Houston, Texas 77002
              (713)755-5800

Trial Judge: The Honorable Katherine Cabaniss
                       TABLE OF CONTENTS

TABLE OF CONTENTS                           3

INDEX OF AUTHORITIES                        4

STATEMENT REGARDING ORAL ARGUMENT           5

STATEMENT OF THE CASE                       5

STATEMENT OF PROCEDURAL HISTORY             5

QUESTIONS PRESENTED FOR REVIEW              6

REASONS FOR REVIEW                          6

PRAYER                                     11

CERTIFICATE OF SERVICE                     12
                           INDEX OF AUTHORITIES

Cases


Cantu v. State, 395 S.W.3d 202 (Tex. App.—Houston [1st Dist] 2012)   9

Forest v. State, 989 S.W.2d 365,368 (Tex. Crim. App. 1999)           9

Wiley v. State, 74 S.W.3d 399,405 (Tex. Crim. App. 2002)             7
                STATEMENT REGARDING ORAL ARGUMENT


       Oral argument would not be helpful to the resolution of this case.

                           STATEMENT OF THE CASE


       Mr. Artavious Hollins was charged by indictment with the felony offense of

murder (R.R.3 - 14). He was also indicted with the felony offense of tampering

with evidence (R.R.3 - 14). Mr. Hollins pled not guilty to both of the charges and

the cases were tried together before a jury (R.R.3 - 14). The jury found Mr.

Hollins guilty of murder and guilty of tampering with evidence (C.R. 308). The

jury assessed punishment at confinement for life in the Texas Department of

Criminal Justice, Institutional Division, in the murder case. The jury assessed

punishment at confinement for twenty-five years in the Texas Department of

Criminal Justice, Institutional Division, in the tampering case. Mr. Hollins filed

timely notice of appeal.



                  STATEMENT OF PROCEDURAL HISTORY


       The Court of Appeals filed a memorandum opinion affirming both

convictions on August 27, 2015. No motion for rehearing was filed. Pursuant to

Rule 68.2 of the Texas Rules of Appellate Procedure, this Petition for

Discretionary Review should be filed thirty days after the day the court of appeals

filed its opinion. A motion for extension of time was filed within fifteen days of

the due date.
                    QUESTIONS PRESENTED FOR REVIEW


           Is evidence sufficient to support a murder conviction when the
           witnesses for the State and the defense agree that the accused was not
           the aggressor, the accused repeatedly declined to fight with the
           complainant and retreated into his home, the complainant went into his
           home after instigating a yelling match with him, and the accused neither
           intended nor even knew the complainant had been shot?

           Is evidence sufficient to support a conviction for tampering when the
           testimony showed the accused discarded clothing and a weapon in close
           proximity to the location where the incident took place, and no
           evidence indicated by words or deeds that accused intended to conceal
           or alter evidence?




                               REASONS FOR REVIEW


       The decision of the court of appeals conflicts with applicable
       decisions of the Court of Criminal Appeals and the Supreme Court
       of the United States.



               APPELLANT'S FIRST QUESTION FOR REVIEW


           Is evidence sufficient to support a murder conviction when the
           witnesses for the State and the defense agree that the accused was not
           the aggressor, the accused repeatedly declined to fight with the
           complainant and retreated into his home, the complainant went into his
           home after instigating a yelling match with him, and the accused neither
           intended nor even knew the complainant had been shot?

       To sustain a conviction for murder the evidence must demonstrate that the


person (1) intentionally or knowingly (2) caused the death of an individual. Tex.

Penal Code Ann. sec. 19.02 (b) (1). 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." Tex.
Penal Code Ann. sec. 6.03(a); Wise, 364 S.W.3d at 903. A person acts knowingly

or with knowledge of the nature of his conduct or circumstances "when he is

aware of the nature of his conduct or that the circumstances exist." Tex. Penal


Code Ann. sec. 6.03(b).S.W.3d at 659-62; Wiley v. State, 74 S.W.3d 399, 405

(Tex. Crim. App. 2002).

       In the instant case, all the witnesses agreed, both the witnesses for the State

and the ones for the defense, that Shae instigated a conflict between Mr. Hollins

and Derrick Williams and Mr. Hollins repeatedly retreated into his apartment from

this conflict. Tranea Jones and Andre Lewis both testified that Mr. Hollins initially

got into a verbal argument with Shae, but he consistently retreated into his

apartment any time the argument escalated or any time it looked like someone was

trying to take it to the next level. All the witnesses agree that Shae called D over to

the complex to harass and Mr. Hollins and damage his apartment, and everyone

agreed Shae and D threw rocks, sticks and other items at the doors and windows of

the apartment, taunting him to come out. Lewis, Jones and Mr. Hollins all testified

that Mr. Hollins stayed securely inside his apartment on that occasion.

       On the day of the shooting, likewise all the witnesses' agree that Mr.

Hollins did not start or cause any arguments and that Shae, Williams and Lewis

were being aggressive toward Mr. Hollins. Mr. Lewis testified that every time Mr.

Hollins would begin to come out toward the courtyard and the other residents

began escalating the fight or walking toward him, he would immediately retreat

back into his home. Tranea Jones testified that Derrick Williams threatened to
"whoop his behind," and Mr. Hollins continued to retreat until eventually he began

saying things like, "well, come on, come on then," and eventually said, "come into

my house." Tranea Jones referred to this statement as an "invitation," but her

testimony made clear that she understood it to be in the nature of a dare, more of a

way to call the bluff of Derrick Williams and Andre Lewis by daring them to

follow Mr. Hollins into his own home. In fact, Tranea got Andre Lewis involved

because she could tell that Derrick Williams was pursuing the conflict and heading

toward Mr. Hollins' apartment.

      All the witnesses testified that there was a struggle for a gun inside Mr.

Hollins' apartment. Tranea Jones testified, "I was already around there because

when Artavious realized that he had shot Derrick -         because I don't think

Artavious knew he shot Derrick until he seen Derrick when Derrick said, "it didn't

have to go like this." (R.R.3 - 167). Mr. Hollins also testified he didn't know if

anyone was hurt when he ran away from the scene. He knew the gun had gone off,

and he knew Derrick Williams had fallen somewhere outside of his apartment, but

he was not aware that Derrick Williams had been shot.


      Despite the inconsistencies in testimony, the witnesses at trial made several

things clear: 1) Mr. Hollins was not the aggressor in any of the incidents at Casa

Nube Apartments; 2) Mr. Hollins repeatedly declined to fight with the neighbors

who were trying to instigate a conflict and instead retreated into his home; 3)

Derrick Williams and Andre Lewis went into his home in the midst of a yelling

match when at least one other resident believed a fight was about to start; and 4)


                                         8
Mr. Hollins did not intend to shoot or even know he'd shot Derrick Williams after

the tussle in his apartment.

       Firing a gun in the direction of an individual is an act clearly dangerous to

human life within the meaning of the murder statute. Forest v. State, 989 S.W.2d

365, 368 (Tex. Crim. App. 1999). Struggling for control of a gun, however, when

two aggressors have followed you into your own apartment after days of verbal

harassment and property damage, is not an act clearly dangerous to human life. In

Cantu v. State, 395 S.W.3d 202 (Tex. App.—Houston [1st Dist.] 2012), this Court

rejected the defendant's claims that the gun was accidentally discharged while he

tried to take it from the defendant. In that case, however, expert testimony showed

that the defendant had staged the evidence. In the instant case, by contrast, even

the State's own witnesses believed the gun accidentally discharged, and all the

witnesses agreed that the complainant and Mr. Hollins struggled for control of the

gun.


              APPELLANT'S SECOND QUESTION FOR REVIEW

           Is evidence sufficient to support a conviction for tampering when the
           testimony showed the accused discarded clothing and a weapon in close
           proximity to the location where the incident took place, and no
           evidence indicated by words or deeds that accused intended to conceal
           or alter evidence?


       The evidence must demonstrate that the person (1) knowing that an

investigation or official proceeding is pending or in progress (2) alters, destroys or

conceals any thing with intent to impair its availability as evidence. Tex. Penal

Code Ann. sec. 37.09(a). (West 2014). 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." Tex.

Penal Code Ann. sec. 6.03(a); Wise, 364 S.W.3d at 903. A person acts knowingly

or with knowledge of the nature of his conduct or circumstances "when he is

aware of the nature of his conduct or that the circumstances exist." Tex. Penal


Code Ann. sec. 6.03(b).

       Officer Christopher Castellani testified he was in pursuit of a man wearing

a white shirt and a black hat (R.R.3 - 48). He said another officer found a white

shirt and a black hat in a different location (R.R.3 - 48). He said later that day a

dog found a firearm in the bushes not far from where the shirt and hat were found

(R.R.3 - 54). The dog found a pink Palmer frame pistol with a black slide (R.R.3 -

71). The distance between the pistol and the clothing was a matter of seconds on

foot (R.R.3 - 71). A tank top style tshirt was found at the scene (R.R.3 - 94). All

the items were in the vicinity and very close to the apartment complex where the

shooting took place (R.R.3 - 101).

       The investigating officers found all of the evidence in locations very close

to where Mr. Hollins had been confronted by a group of angry neighbors. The

evidence merely showed that he discarded the evidence as he fled the scene, not

that he concealed or altered or otherwise attempted to prevent the investigation

from proceeding. To the contrary, investigators found a tank top next to the body

of Derrick Williams. The pistol in this case was found steps from where Mr.

Hollins' other clothing was found. The State was unable to demonstrate that Mr.


                                          10
Hollins concealed any evidence and unable to demonstrate that he intended to

conceal any evidence. The evidence at trial was legally insufficient to support a

conviction for tampering and the case should be reversed and Mr. Hollins should

be acquitted.




                                     PRAYER


       Appellant respectfully prays this Honorable Court to grant his petition for

discretionary review.




                                                 Respectfully submitted,



                                                     /s/ Casey Garrett
                                                 Casey Garrett
                                                 4010 Bluebonnet, Ste. 204
                                                 Houston, Texas 77025
                                                 (713)228-3800
                                                 Texas Bar No. 00787197




                                         11
                          CERTIFICATE OF SERVICE


      This is to certify that a copy of the foregoing instrument has been supplied

to the Harris County District Attorney's Office in accordance with the rules of

appellate procedure.




                                                   _/s/ Casey Garrett
                                                Casey Garrett
                                                4010 Bluebonnet, Ste. 204
                                                Houston, Texas 77025
                                                (713)228-3800
                                                Texas Bar No. 00787197




                                        12
                     In the
     Court of Criminal Appeals of Texas

Cause Nos. 01-14-00744-CR & 01-14-00745-CR
                   In the
Court of Appeals for the First District of Texas
                  at Houston




      ARTAVIOUS DEON HOLLINS
                  Appellant




          THE STATE OF TEXAS
                   Appellee


     CERTIFICATE OF COMPLIANCE




                               Casey Garrett
                               4010 Bluebonnet, Ste. 204
                               Houston, Texas 77025
                               (713)228-3800
                               Texas Bar No. 00787197
      This is the certify that the Petition for Discretionary Review filed in

the above-numbered cause has 2.042 words in compliance with Rule 9 of

the Texas Rules of Appellate Procedure.




                                                 _/s/ Casey Garrett
                                              Casey Garrett
                                              4010 Bluebonnet, Ste. 204
                                              Houston, Texas 77025
                                              (713)228-3800
                                              Texas Bar No. 00787197
                                     JUDGMENT


                                  Court of Appeals;
                             Jfirjst 3Btetrtct of Cexa*
                                   NO. 01-14-00744-CR


                       ARTAVIOUS DEON HOLLINS, Appellant

                                             V.


                           THE STATE OF TEXAS, Appellee

     Appeal from the 248th District Court of Harris County. (Tr. Ct. No. 1326112).

       This case is an appeal from the final judgment signed by the trial court on August
29, 2014. After submitting the case on the appellate record and the arguments properly
raised by the parties, the Court holds that the trial court's judgment contains no reversible
error. Accordingly, the Court affirms the trial court's judgment.

       The Court orders that this decision be certified below for observance.


Judgment rendered August 27, 2015.


Panel consists of Justices Jennings, Bland, and Brown. Opinion delivered by Justice
Jennings.
                                     JUDGMENT


                                  Court of gppeate
                             Jfir*t JBtetrtct of Cexaa
                                  NO. 01-14-00745-CR


                       ARTAVIOUS DEON HOLLINS, Appellant

                                             V.


                           THE STATE OF TEXAS, Appellee

     Appeal from the 248th District Court of Harris County. (Tr. Ct. No. 1383738).

      This case is an appeal from the final judgment signed by the trial court on August
29, 2014. After submitting the case on the appellate record and the arguments properly
raised by the parties, the Court holds that the trial court's judgment contains no reversible
error. Accordingly, the Court affirms the trial court's judgment.

       The Court orders that this decision be certified below for observance.


Judgment rendered August 27, 2015.

Panel consists of Justices Jennings, Bland, and Brown. Opinion delivered by Justice
Jennings.
Opinion issued August 27, 2015




                                 In The

                           Court of Appeals
                                 For The

                       $ tot JBtetrict of Cexa*

                           NO. 01-14-00744-CR
                           NO. 01-14-00745-CR



                ARTAVIOUS DEON HOLLINS, Appellant
                                   V.

                    THE STATE OF TEXAS, Appellee


                 On Appeal from the 248th District Court
                         Harris County, Texas
               Trial Court Case Nos. 1326112 and 1383738
                           MEMORANDUM OPINION


      A jury found appellant, Artavious Deon Hollins, guilty of the offenses of

murder1 and tampering with physical evidence.2 After finding true the allegations
in two enhancement paragraphs in each indictment that appellant had been twice

previously convicted of felony offenses, the jury assessed his punishment at

confinement for life for the offense of murder and twenty-five years for the offense

of tampering with physical evidence. The trial court ordered that the sentences run

concurrently, and it entered an affirmative finding that appellant used a deadly

weapon in the commission of the offense of murder. In three issues, appellant

contends that the evidence is legally insufficient to support his convictions and the

trial court erred in admitting certain testimony.

      We affirm.


                                    Background

      Tranea Jones testified that when she awoke in her apartment on the morning

of November 5, 2011, she heard the complainant, who lived in a nearby apartment

building, outside "laughing, drinking, and talking with 'Shae,'" her neighbor.

Appellant, who lived in the apartment below her, then came out of his apartment,

and he and the complainant "started yelling comments at each other."            This

1     See TEX. Penal Code Ann. § 19.02 (Vernon 2011); appellate cause no. 01-14-
      00744-CR; trial court cause no. 1326112.
2     See Tex. Penal Code Ann. § 37.09(a)(1) (Vernon Supp. 2014); appellate cause
      no. 01-14-00745-CR; trial court cause no. 1383738.
behavior continued off and on throughout the day. Eventually, Jones's boyfriend,
Andre Lewis, who lived with her, went downstairs to appellant's apartment to
diffuse the situation. Jones, who had followed Lewis, heard appellant, who was
standing inside his apartment with the front door open, tell the complainant and

Lewis to "come on" and "come in," "like he was going to use it for self-defense."

Jones then saw the complainant walk into appellant's apartment, where he began

"tussling" with appellant. Jones explained that although neither appellant nor

Lewis had a weapon, appellant "pulled a gun," which was "chrome" and "pink,"
from "behind his back," "cockfed] it," and said, "Man, you up in my house."

Jones then saw the complainant attempt to take the gun from appellant, heard a

"pop and click," and then saw the complainant come back outside and fall to the

ground.   Jones "didn't think" that appellant realized that he had shot the

complainant until he came out and saw him. The complainant then said, "It didn't

have to go like this." Appellant, who was in a white shirt and black hat, then

locked his apartment door and "ran off."

      Jones further explained that about a week before the shooting, appellant had

begun quarreling with his neighbors. On one occasion, two of her neighbors,

"Shae" and another neighbor, had thrown "wood boards and rocks" through

appellant's apartment windows. And they had kicked his door, trying to "lure"
appellant outside.   Jones recalled having seen a footprint on appellant's door

thereafter.


       Lewis testified that about a week before the shooting, he had intervened in a

disagreement between appellant and Jones and Shae. Appellant told Lewis that he

was "going to call his people."     And, thirty minutes later, when "cars started

pulling up" into the apartment complex, Lewis, believing that his life was in

danger, went to his apartment and put his "pistol" in his pocket. After "the cars"

left the apartment complex without incident, Lewis went to appellant, who was

standing outside, and told him to go back in his apartment and leave Jones and

Shae alone. Lewis explained that he had exhibited his handgun as he talked with

appellant.    At about 8:30 or 9:00 p.m., Shae's boyfriend, "D," arrived and

"bang[edj" on appellant's door, trying to get him to come outside. Lewis then

heard appellant open his door, exchange words with D, and then close the door.

Lewis then heard D, who was wearing Nike "Air Force 1" athletic shoes, kick

appellant's door. D also picked up a "log" and threw it through appellant's "patio

window." After appellant did not open the door, D left.

      On November 5, 2011, when Lewis heard appellant and the complainant

arguing, he went downstairs to intervene. Lewis did not have his handgun with

him at the time, and the complainant did not have a weapon. When appellant

"invited" Lewis and the complainant into his apartment, Lewis thought that
appellant wanted to talk. As soon as they were inside, however, appellant said,

"You in my house," and he pulled a "pink and chrome" handgun from his back,

"cock[ed] it," and began running at them.     After appellant hit the complainant's

face with the handgun, the complainant "grabbed" either the handgun or

appellant's "wrist" or "hand." The "gun went off," and the complainant ran out of

the apartment and fell to the ground.     Appellant then picked up the handgun,

locked his door, and "took off."

      Rafael Narvaez testified that on November 5, 2011, appellant came into his

second-hand clothing store and purchased a pair of shorts, a shirt, and tennis shoes.

Appellant changed into his new clothes and paid Narvaez for a ride to a nearby

shopping center.

      Houston Police Department ("HPD") Officer C. Castellani testified that on

November 5, 2011, he was dispatched to investigate the shooting of the

complainant. He received a description of the suspect as a "black male wearing a

white shirt [and] black hat."      When he arrived at the scene of the shooting,

Castellani learned that HPD officers had found, about a "tenth of a mile" away

from the scene, a "white button down shirt" and black baseball cap in a ditch next

to a building.

      HPD Officer M. Barnette, assigned to HPD's canine unit, testified that he

was dispatched to the scene of the shooting to locate appellant, who had fled. His
dog found, under a bush "30 feet" from the hat and shirt, a "pink Palmer frame

pistol with a black slide."

      HPD Officer A. Holmes testified that when he arrived at the scene at around


5:15 p.m., about two hours after the shooting, he found a "muddy" print of a right

shoe on the front door of appellant's apartment. He noted that there was "no mud

in the area" and the "footprint was dry." Although the print matched that of the

sole of the complainant's right shoe, which was a Nike "Air Jordan" athletic shoe,

it was also consistent with that of a Nike "Air Force 1" athletic shoe.    Holmes


further identified the recovered firearm as a "semi-automatic 9 millimeter pistol."

And he noted that a "spent casing was found in the chamber."

      S. Doyle, M.D., a medical examiner at the Harris County Institute of

Forensic Sciences, testified that her autopsy of the complainant's body revealed

that a bullet entered the left side of his chest under his armpit and exited on the

right side of his chest. The cause of his death was a "gunshot wound to the torso."

And, based on the wounds inflicted, she opined that the complainant was shot at

close range, meaning from "less than three feet away."

      Appellant testified that the week before the shooting, he had a disagreement

with his neighbor, Shae, because she, without his permission, had given his

telephone number to Jones. Appellant explained that Jones's boyfriend, Lewis,

was "extremely crazy jealous." While appellant was arguing with Shae, Jones
walked up.   Appellant then ended the discussion and went into his apartment.

Later that day, Lewis questioned appellant about the argument, "act[ed] like he

want[ed] to fight," and "displayed his little handgun."

      Later that evening, appellant heard a loud banging on his front door. When

he opened it, he saw Jones, Shae, Lewis, and a person that he had not seen before

standing outside his door. They told him to come outside, and, after he refused and

slammed his door, someone started throwing "bricks and sticks" through his

windows. Appellant then called for emergency assistance. Once law enforcement

officers arrived, however, he was unable to fully identify those involved by their

last names. Appellant and his wife then went to stay in a hotel for a few days.

      On the afternoon of November 5, 2011, appellant, having returned to his

apartment, saw Shae and "a bunch of people" standing around outside their

apartments after several of them had received eviction notices. Later, appellant

asked a neighbor to drive his wife to her appointment at a nail salon. As they were

leaving, the complainant approached appellant at his front porch and tried to say

something. When appellant told him to leave, the complainant responded, "Oh,

you think you tough, huh?" The complainant was "mad" and continued "making

statements" toward appellant. Appellant then saw his wife off and went back

inside his apartment.
      About an hour later, appellant heard a noise, but when he looked outside, he

did not see anything. He noted that although he had locked the gate to the fence

surrounding his front porch, he had not locked his front door. He then called a

friend, threw his cellular telephone on his couch, and went into a washroom.

When he came out, the complainant and Lewis were in his apartment. Appellant

emphasized that he had not "provoke[d]" or "invite[d]" the complainant and Lewis

to come into his apartment.       As appellant reached for his telephone, the

complainant "pulled out his gun," which appellant described as pink in color, and

"tried to hit" him with it. Appellant, who noted that both the complainant and

Lewis "had guns," "ended up snatching [the complainant's gun] away from him."

"After that, a loud bang went off."    The complainant and Lewis "backed out

together," and the "pink gun" landed on the ground.       Lewis then "slung" the

complainant to the ground and "took off."

      Appellant, afraid that Lewis was "going to go get somebody" to "come back

and kill [him]," "grabbed the firearm that was laying on the ground" and his

telephone, locked his front door, and ran. He admitted that while he was running,

he threw away his shirt, hat, and the firearm. Because he was afraid that he was

not going to "make it . . . down the street," he went into a second-hand clothing

store and purchased a new shirt, shorts, and shoes. He then paid the store owner to

drive him to a parking lot near his wife's nail salon. He and his wife then stayed
with a relative in Dallas until he was later arrested. Appellant explained that at the

time he fled, he did not know that the complainant had been shot. And he noted, "I

wasn't trying to shoot him, but I guess I did sho[o]t him." Appellant asserted that

he was "trying to protect" himself from the complainant.

                             Sufficiency of the Evidence

      In his second issue in cause number 01-14-00744-CR, appellant argues that

the evidence is "legally insufficient to support his conviction for murder" because

it does not establish that he intended to shoot the complainant. He asserts that

"even the State's own witnesses believed [that] the gun [had] accidentally

discharged." In his sole issue in cause number 01-14-00745-CR, appellant argues

that the evidence is legally insufficient to support his conviction for the offense of

tampering with physical evidence because it does not establish that he actually

concealed the handgun.      He asserts that the "evidence merely showed that he

discarded [it] as he fled the scene."

      We review the legal sufficiency of the evidence by considering all of the

evidence in the light most favorable to the jury's 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, 318-19, 99 S. Ct. 2781,

2788-89 (1979); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

Our role is that of a due process safeguard, ensuring only the rationality of the trier
of fact's finding of the essential elements of the offense beyond a reasonable

doubt. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). We

give deference to the responsibility of the fact finder to fairly resolve conflicts in

testimony, weigh evidence, and draw reasonable inferences from the facts.

Williams, 235 S.W.3d at 750. However, our duty requires us to "ensure that the

evidence presented actually supports a conclusion that the defendant committed"

the criminal offense of which he is accused. Id.

Murder


      A person commits the offense of murder if he (1) intentionally or knowingly

causes the death of an individual or (2) intends to cause serious bodily injury and

commits an act clearly dangerous to human life that causes the death of an

individual. Tex. Penal Code Ann. § 19.02(b) (Vernon 2011). Here, appellant

stood accused under both theories, and the trial court instructed the jury

accordingly. In response to the court's charge, the jury returned a general verdict

of guilty. When a trial court submits alternative theories of conviction to a jury,

and the jury returns a general verdict, we will uphold the verdict if the evidence is

sufficient to support any one of the alternative theories. See Sorto v. State, 173

S.W.3d 469, 472 (Tex. Crim. App. 2005).

       A person acts intentionally 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



                                          10
conduct or cause the result. Tex. Penal Code Ann. § 6.03(a) (Vernon 2011). A

person acts knowingly 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(b); Schroeder v.

State, 123 S.W.3d 398, 400 (Tex. Crim. App. 2003) ("Murder is a 'result of

conduct' offense, which means that the culpable mental state relates to the result of

the conduct, i.e., the causing of the death.").

      Proof of a mental state almost always depends upon circumstantial evidence.

Smith v. State, 56 S.W.3d 739, 745 (Tex. App.—Houston [14th Dist.] 2001, pet.

ref d). A jury may infer intent or knowledge from any facts that tend to prove its

existence, including the acts, words, conduct of the accused, and the method of

committing the offense. Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App.

2004); Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002). A 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.

Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). A firearm is a deadly

weapon per se. Tex. Penal Code Ann. § 1.07(a)(17)(A) (Vernon Supp. 2014).

      Here, Jones testified that appellant told the complainant and Lewis to come

into his apartment "like he was going to use it for self-defense."        After they

entered, appellant "pulled a gun" from "behind his back" and "cocked it." And

although appellant denied that the gun was his, he admitted that he held the gun



                                           11
from which the shot was fired that caused the complainant's death.           Dr. Doyle

testified that the complainant's death was caused by a bullet, shot from "less than

three feet away," entering the left side of his chest under his armpit and exiting

through the right side of his chest. The use of a deadly weapon, itself, constitutes

more than a "mere modicum" of evidence of intent to kill. Moreno, 755 S.W.2d at

868 n.3. And when, as here, "a deadly weapon is fired at close range, and death

results, the law presumes an intent to kill." See Childs v. State, 21 S.W.3d 631,

635 (Tex. App.—Houston [14th Dist.] 2000, pet. refd).

      Appellant asserts that although he fired the shot that killed the complainant,

the evidence shows that the shooting was not intentional.           First, "[a]ll of the

witnesses testified that there was a struggle for a gun inside [the complainant's]

apartment."    However, evidence of a struggle does not necessarily negate

deliberate conduct. See Turner v. State, 805 S.W.2d 423, 428 (Tex. Crim. App.

1991).   Notably, appellant's testimony reveals that it was "after" he had

"snatch[ed]" the handgun "away from" the complainant that "a loud bang went

off." This evidence supports an implied finding by the jury that appellant, at some

point, aimed the handgun at the complainant and fired. See Adanandus v. State,

866 S.W.2d 210, 231 n.19 (Tex. Crim. App. 1993) ("The fact that the struggle^

      Appellant does not contend that the evidence is legally insufficient to support the
      jury's implicit rejection of his self-defense claim. See Washington v. State, No.
      01-08-00140-CR, 2009 WL 40168, at *1 (Tex. App.—Houston [1st Dist] Jan. 8,
      2009) (mem. op., not designated for publication).

                                           12
occurred quickly does not amount to evidence that appellant did not have the intent

to cause the death of the deceased at the moment he aimed his gun and fired.").

      Further, appellant testified that after the shooting, he picked up the handgun

and ran from the scene, discarding it and his shirt and hat as he ran.      And he

immediately purchased new clothing and shoes and then went to Dallas and stayed

with a relative until he was arrested a month later. Evidence of flight and attempts

to cover up guilt are relevant to show a defendant's consciousness of guilt.

Clayton v. State, 235 S.W.3d 772, 780 (Tex. Crim. App. 2007) (holding factfinder

may draw inference of guilt from circumstance of flight); Robinson v. State, 236

S.W.3d 260, 267 (Tex. App.—Houston [1st Dist.] 2007, pet. refd) (holding

evidence of flight and intent to remain on run probative of consciousness of guilt);

Miller v. State, 177 S.W.3d 177, 184 (Tex. App.—Houston [1st Dist.] 2005, pet.

refd) (defendant's flight immediately after shooting and attempts to hide evidence

constituted circumstantial evidence of guilt).

      Appellant asserts that he "didn't know if anyone was hurt when he ran away

from the scene." He "knew the gun had gone off, and he knew [the complainant]

had fallen somewhere outside of his apartment, but he was not aware that [the

complainant] had been shot." Jones testified, however, that she "didn't think

[appellant] knew he shot" the complainant until he saw him outside the apartment

and the complainant said, "It didn't have to go like this." We must presume that


                                          13
the jury resolved any conflicting inferences in favor of the verdict and defer to that

resolution. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d

at 778.


      Although appellant testified that he did not intend to kill the complainant,

the jurors, as the exclusive judges of the facts, the credibility of the witnesses, and

the weight to be given their testimony, were free to believe or disbelieve all or any

part of appellant's testimony. See Sorto, 173 S.W.3d at 475; McKinny v. State, 76

S.W.3d 463, 468-69 (Tex. App.—Houston [1st Dist.] 2002, no pet.).

      Viewing all of the evidence in the light most favorable to the jury's verdict,

we conclude that a rational trier of fact could have reasonably found that appellant

intentionally or knowingly caused the death of the complainant. See Tex. Penal

Code Ann. § 19.02(b). Accordingly, we hold that the evidence is legally sufficient

to support appellant's conviction for the offense of murder.

      We overrule appellant's second issue in cause number 01-14-00744-CR.

Tampering with Physical Evidence

      A person commits the offense of tampering with physical evidence if he,

(1) knowing that an investigation or official proceeding is pending or in progress,

(2) alters, destroys, or conceals any "thing," (3) with intent to impair its verity,

legibility, or availability as evidence in the investigation or official proceeding.

Tex. Penal Code Ann. § 37.09(a)(1) (Vernon Supp. 2014).               This Court has



                                          14
explained that the term "pending," as used in the statute, means "impending, or

about to take place." Lumpkin v. State, 129 S.W.3d 659, 663 (Tex. App.—Houston

[1st Dist.] 2004, pet. refd). Although "conceal" is not defined in the Penal Code,

courts have held that it means to "hide" or to "removfe] from sight or notice." See

Rotenberry v. State, 245 S.W.3d 583, 588-89 (Tex. App.—Fort Worth 2007, pet.

refd); Hollingsworth v. State, 15 S.W.3d 586, 595 (Tex. App.—Austin 2000, no

pet.).

         Here, the State alleged that appellant, "knowing that an investigation was

pending," concealed a firearm "with intent to impair its availability as evidence in

the investigation." The record reveals that immediately after the shooting, the

complainant collapsed in front of appellant's apartment. Lewis testified that while

he was applying pressure to the complainant's gunshot wound, he called for

emergency assistance. Jones testified that when appellant saw the complainant "hit

the ground," he had a look of panic on his face. And he "ran in his house," "did

everything he had to do in seconds," then "locked his door, and . . . took off

running out the gate by the office." She noted that appellant was wearing a white

shirt and a hat.


         Officer Castellani testified that while he was "en route" to the scene of the

shooting, he received a description of the suspect as a "black male wearing a white

shirt [and] black hat." When he arrived at the scene, Officer Lozano told him that


                                           15
he had found a white "button down" shirt and black baseball cap in a ditch next to

a building, about a tenth of a mile away from the scene of the shooting. Officer

Barnette testified that his dog located, under a Ligustrum bush about thirty feet

away from the shirt and hat, a "pink Palmer frame pistol with a black slide." He

noted that none of the officers involved in the search had seen the handgun until

the dog alerted on it. And Officer Rodriguez noted that it was dusk and "at least

two officers" were in the ditch area before Barnette arrived with his dog.

Rodriguez opined that "somebody [had] intentionally put [the firearm] underneath

the bushes."


      Appellant himself testified that after the shooting, he ran away with the

handgun because a man had just been shot in his apartment and he knew that police

officers would be coming to the scene. However, he explained that he did not

"hide" the handgun under a bush. Rather, because "somebody was chasing" him,

he "just threw everything."

      Appellant argues that the evidence merely shows that he "discarded" the

handgun as he fled the scene, not that he "concealed" it, because it was found just a

few steps away from his hat and shirt. The jury was free, however, to take all of

the evidence into account and believe or disbelieve any portion of appellant's

testimony. See Sorto, 173 S.W.3d at 475. Again, we act only to ensure that the

jury reached a rational decision.      See Moreno, 755 S.W.2d at 867.           And



                                         16
"[circumstantial evidence is as probative as direct evidence in establishing the

guilt of an actor, and circumstantial evidence alone can be sufficient to establish

guilt." Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012).

      Based on the above evidence, the jury could have reasonably inferred that

appellant, knowing that Lewis had seen him shoot the complainant and had already

called for emergency assistance, and knowing that police officers were coming to

the scene, knew that an investigation was "impending, or about to take place." See

Tex. Penal Code Ann. § 37.09(a)(1); Lumpkin, 129 S.W.3d at 663.            Further,

because the handgun was found underneath a bush and only after a dog had

performed a search of the area, the jury could have reasonably inferred that

appellant concealed the handgun with intent to impair its availability as evidence.

See Tex. Penal Code Ann. § 37.09(a)(1); see also Bennett v. State, No. 14-02-

00647-CR, 2003 WL 21782524, at *2 (Tex. App.—Houston [14th Dist.] July 31,

2003, no pet.) (mem. op., not designated for publication) (noting officers'

discovery of contraband hidden in tree moss only after dog alerted to tree

constituted evidence of defendant's intent to conceal contraband).

      Viewing the evidence in the light most favorable to the jury's verdict, we

conclude that it could have reasonably found that appellant concealed the handgun.

Accordingly, we hold that the evidence is legally sufficient to support his




                                         17
conviction of the offense of tampering with physical evidence. See Tex. Penal

Code Ann. § 37.09(a)(1).

      We overrule appellant's sole issue in cause number 01-14-00745-CR.

                                Officer Testimony

      In his first issue in cause number 01-14-00744-CR, appellant argues that the

trial court erred in admitting Officer Holmes's testimony that the mud on

appellant's apartment door was dry because Holmes had "no way to determine,

either through science or experience or any other method available to mankind,

whether ... the shoe print. . . was old or new." See Tex. R. Evid. 602.

      We review a trial court's evidentiary rulings for an abuse of discretion.

Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). We will not disturb a

ruling if it lies within the zone of reasonable disagreement and is correct under any

theory of law applicable to the case. Winegarner v. State, 235 S.W.3d 787, 790

(Tex. Crim. App. 2007); Pena v. State, 441 S.W.3d 635, 644 (Tex. App.—Houston

[1st Dist.] 2014, pet. refd). A witness may testify to a matter only if evidence is

introduced sufficient to support a finding that the witness has personal knowledge

of the matter.   Tex. R. Evid. 602. Evidence to prove personal knowledge may

consist of the witness's own testimony. Id.

      Specifically, appellant complains of the following exchange:

      [State]:        Now let's—actually looking very closely at State's
                       17, what are we looking at there on the doorway?


                                         18
[Holmes]:        The dark spot is actually a muddy shoe print on the
                 door.


[State]:         Other than that muddy footprint on the doorway, was
                 there any damage to that door?

[Holmes]:        No.



[State]:         Let's take a closer look at the footprint. Now that
                 particular footprint, that is a close-up of the footprint
                 on the door?

[Holmes]:        Correct.

[State]:         It's very important, that day you were there what was
                 the temperature like?

[Holmes]:        It was cool and dry.

[State]:         Had it been raining?

[Holmes]:        No.


[State]:         Was there any wetness in the ground?

[Holmes]:        No.


[State]:         Any mud nearby?

[Holmes]:        No.




[State]:         Had that mudfootprint been therefor a while?

[Appellant]:     Objection, callsfor speculation.

[Trial Court]:   Sustained.



                                    19
      [State]:         Based on your expertise as a CSU officer who
                       has made scenes of these kinds and investigated
                       scenes ofall kinds ofcrimes, in your knowledge
                       ifyou have it based on training and experience
                       did you determine that this was old or not?

      [Appellant]:     Objection as to thatprint that day.

      [Trial Court]:   Overruled.

      [Holmes]:        It had been there long enough to dry which
                       typically means number ofhours ifnot days.

      [State]:         When you were at the scene, it was less than 30
                       minutes after the call for the shooting death had
                       been dropped, right?

      [Holmes]:        I got there at 5:15.

      [State]:         Okay. About an hour?

      [Holmes]:        Not quite two hours.



      [State]:         But at that point this was dry?

      [Holmes]:        Yes, sir.

(Emphasis added.)

      The record reveals that appellant objected to the State's question regarding

whether the "mud footprint had been there for a while" on the ground that it

"call[ed] for speculation," and the trial court sustained the objection. After the

State re-phrased its question, appellant stated, "Objection as to that print that day."

And the trial court overruled his objection.




                                              20
      To preserve error, a complaint must be "made to the trial court by a timely

request, objection, or motion that . . . state[s] the grounds for the ruling that the

complaining party sought from the trial court with sufficient specificity to make

the trial court aware of the complaint, unless the specific grounds were apparent

from the context." Tex. R. App. P. 33.1(a)(1)(A). If an objection is not specific,

nothing is presented for review. Pena v. State, 353 S.W.3d 797, 807 (Tex. Crim.

App. 2011). We hold that appellant's objection, "as to that print that day," was not

specific and therefore did not preserve error for review. See id.

      Further, to the extent that appellant asserts that the trial court erred in

admitting Holmes's testimony that the footprint "had been there long enough to

dry which typically means number of hours if not days," the record reveals that

appellant did not object to this statement.     Thus, nothing is preserved for our

review. See Tex. R. App. P. 33.1.


      We overrule appellant's first issue in cause number 01-14-00744-CR.




                                         21
                                   Conclusion


      We affirm the judgments of the trial court.




                                                Terry Jennings
                                                Justice


Panel consists of Justices Jennings, Bland, and Brown.

Do not publish. Tex. R. App. P. 47.2(b).




                                           22
