                                MEMORANDUM OPINION
                                        No. 04-10-00798-CR

                                      Keith Dwayne EVANS,
                                             Appellant

                                                 v.

                                       The STATE of Texas,
                                             Appellee

                     From the 226th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2009CR11014A
                              Honorable Sid L. Harle, Judge Presiding

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Karen Angelini, Justice
                  Sandee Bryan Marion, Justice
                  Phylis J. Speedlin, Justice

Delivered and Filed: March 14, 2012

AFFIRMED

           A jury found appellant, Keith Dwayne Evans, guilty of capital murder. The State sought

the death penalty, but the jury assessed punishment at life without parole. We affirm.

                                         BACKGROUND

           Trial testimony established that the victim, Mohammed Omar, was working behind the

counter at the convenience store he owned on the evening of August 2, 2009. Leon Bailey, a

stocker working in the store, testified he saw three men run into the store the night of the
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apparent robbery. Bailey testified one man pulled the hood on his sweatshirt to obscure his

identity and the other two had on masks. He said the shorter man with the hooded sweatshirt,

later identified as appellant, turned in the direction of Omar and fired a gun twice while the other

two men stood at the door. Bailey testified he saw Omar go down on the floor. The three men

immediately left the store, and Bailey testified he went over to Omar and saw him lying in a pool

of blood. Bailey said he ran out of the store and called the police at a gas station nearby. The

medical examiner testified at trial that Omar died from a gunshot wound.

       Javier Espinoza lived down the street from the convenience store and testified that prior

to the shooting that evening, he saw three suspicious men park a truck in the area and run

towards the store.     Espinoza testified he continued to watch them because they were

inappropriately dressed in sweatshirts in warm summer weather. He said he saw one of the men

open the door of the store. He saw another man, later identified as appellant, step inside and

shoot Omar. Espinoza stated that he called out to his wife to call the police while he watched the

three men leave the store and run back past his house to the parked truck. Another neighbor had

already given the truck’s license plate and description to police; Espinoza’s wife gave the police

a description of the men and the direction the truck was headed.

       Officer Daniel Mireles responded to the police call and testified he was travelling in the

same direction as the truck when he saw a sweatshirt lying in the road, later identified as

belonging to appellant. After stopping to collect the sweatshirt, Officer Mireles then continued

to drive in the truck’s direction and eventually he saw a truck matching the description of the

vehicle appellant was driving. He then verified the license plate number on the truck and

testified that he conducted a stop of the vehicle. According to Officer Mireles, appellant jumped




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out of the truck, ran towards the back of the vehicle, and threw himself on the ground. Officer

Mireles then arrested appellant.

                            SUFFICIENCY OF THE EVIDENCE

       In his first issue on appeal, appellant contends the evidence is legally insufficient to

support his conviction for capital murder because it does not establish he intentionally caused

Omar’s death. In a sufficiency challenge, we review all the evidence in the light most favorable

to the jury’s verdict to determine whether any rational jury could have found the essential

elements of the charged offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893,

899, 912 (Tex. Crim. App. 2010). We defer to the jury’s credibility and weight determinations

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

testimony. Id. at 899.

       At trial, the jury charge included both an instruction on capital murder and an instruction

on the lesser-included offense of felony murder. “The distinguishing element between felony

murder and capital murder is the intent to kill.” Fuentes v. State, 991 S.W.2d 267, 272 (Tex.

Crim. App. 1999). Capital murder includes an intentional murder committed in the course of a

robbery. Id. Intent is most often proven through circumstantial evidence surrounding the crime,

and a jury can infer intent from a defendant’s conduct, including his acts and words. Conner v.

State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). On the other hand, felony murder is an

unintentional murder committed in the course of a felony. Fuentes, 991 S.W.2d at 272.

       Appellant contends he was guilty only of felony murder and not capital murder because

he did not intend to kill Omar. Appellant points to his own testimony in which he asserts

robbery was his only objective and the murder was never anticipated. Appellant claims he did

not own the gun that was used in the shooting and he was only handed the weapon by one of his



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cohorts in the parking lot right before they entered the store. Appellant testified that he only

fired in the direction of Omar after he saw Omar retrieve a weapon of his own. Appellant

explained at trial that he was frightened after seeing Omar’s weapon and only fired the shots to

get away.

       Nonetheless, after a review of the record, we believe the jury was presented with ample

evidence to support its ultimate finding of capital murder. The jury watched the convenience

store’s surveillance video, which shows appellant coming in the door, raising the weapon, and

firing in Omar’s direction. This video also shows appellant looking at Omar and firing the

weapon a second time before he was pulled out the door by his cohorts. As a result, the jury

could infer the requisite intent to cause death from appellant’s use of a deadly weapon in a

deadly manner—thereby rejecting the felony murder instruction. Godsey v. State, 719 S.W.2d

578, 580–81 (Tex. Crim. App. 1986) (“The specific intent to kill may be inferred from the use of

a deadly weapon, unless in the manner of its use it is reasonably apparent that death or serious

bodily injury could not result.”). Furthermore, appellant’s use of a deadly weapon in a deadly

manner raises an inference of intent to kill. Id. at 581; Adanandus v. State, 866 S.W.2d 210, 215

(Tex. Crim. App. 1993).

       Additionally, Espinoza’s testimony contradicts appellant’s claim that he was handed the

weapon right before entering the store—Espinoza testified he saw appellant pull the gun out of

his pants. As a result, the jury could have found appellant’s trial testimony was not credible and

rejected appellant’s claim that the shooting was not intentional because of the inconsistency in

his testimony as compared to Espinoza’s. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.

Crim. App. 2000) (“The jury is the exclusive judge of the credibility of witnesses and of the

weight to be given testimony, and it is also the exclusive province of the jury to reconcile



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conflicts in the evidence.”). Further, although appellant claims he had no intent to kill Omar

prior to entering the store, “[t]here is no requirement in the case of capital murder committed in

the course of a robbery, that the intent to cause death be premeditated or formulated prior to the

commission of the robbery.” Rousseau v. State, 855 S.W.2d 666, 674 (Tex. Crim. App. 1993).

Instead, “[t]he offender must have only formulated an intent to cause death when he actually

commits the murder.” Id. Also, the jury could have rejected appellant’s claim that the shooting

was just a “reaction” to appellant seeing Omar’s weapon because the trial testimony established

that appellant fired not one, but two shots in Omar’s direction.

       Thus, although appellant claimed he did not intentionally shoot Omar, there was ample

evidence from which the jury could infer he intentionally caused Omar’s death. After viewing

the evidence in the light most favorable to the verdict and because the jury is the sole judge of

the witnesses’ credibility and the weight to be given their testimony, we conclude a rational trier

of fact could have found appellant intentionally murdered Omar, thereby rejecting the instruction

on felony murder.

                                       JURY SELECTION

       In his second issue on appeal, appellant contends the trial court erred in refusing to permit

the retroactive exercise of a peremptory strike. After the individual voir dire examination of a

potential juror, both parties accepted that person as juror number three.            Then, following

examination of the entire venire and after the jury was selected, appellant requested on two

different occasions that he be permitted to retroactively exercise a peremptory challenge against

juror number three. The trial court refused both requests and stated:

               Okay, and basically, what you’re asking to do is go back retroactively and
       use the strike and whether it’s provided for constitutionally or not, we’ve been in
       this process [for a month]. If I did it for you, the State still has two strikes left and
       that would open it up to them and we’ve already told these people they are on the

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           jury and they have made arrangements and both sides accepted that individual
           back then.

           We first note that a trial court has wide discretion over the voir dire process. Bridge v.

State, 726 S.W.2d 558, 564 (Tex. Crim. App. 1986); see also Valle v. State, 109 S.W.3d 500,

504 (Tex. Crim. App. 2003) (“Trial courts have broad discretion to control the conduct of jury

selection.”). Additionally, the Legislature has prescribed the procedure for challenges for cause

and peremptory strikes by the parties in a capital case. TEX. CODE CRIM. PROC. ANN. art. 35.13

(West 2011). The relevant statute reads, “A juror in a capital case in which the state has made it

known it will seek the death penalty, held to be qualified, shall be passed for acceptance or

challenge first to the state and then to the defendant. Challenges to jurors are either peremptory

or for cause.” Id. Under this procedure, “the defendant must exercise peremptory challenges

upon the examination of individual prospective jurors without the opportunity to evaluate the

panel as a group.” Janecka v. State, 739 S.W.2d 813, 833 (Tex. Crim. App. 1987). This

“scheme for jury selection in capital murder cases is not violative of state or federal due process

or equal protection.” Id. at 834. Accordingly, we conclude the trial court did not err in denying

appellant an untimely peremptory challenge because the trial court followed the statutory

procedure throughout jury selection. Robison v. State, 888 S.W.2d 473, 484 (Tex. Crim. App.

1994), cert. denied, 515 U.S. 1162 (1995).

                                      ADMISSIBILITY OF EVIDENCE

           In his last issue on appeal, appellant argues the trial court erred by overruling his

objection that the State’s slow-motion version of the video of the shooting and the still-frame

photographs, all recorded by the store surveillance camera, violate Texas Rule of Evidence 403

and should not have been shown to the jury. 1 Appellant claims the slow-motion version of the


1
    Appellant does not dispute the relevancy or the authentication of the video or the photographs.

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video and the photos do not accurately depict the events that occurred because they only capture

a still frame or picture every tenth of a second. 2 As a result, appellant asserts the slower version

of the video and the still-frame shots are not conclusive on the issue of whether appellant

“‘lunged’ forward and how much time elapsed from the time [Omar] pulled a weapon out toward

[appellant], because it would not record a brief stop that took place within .10 seconds.”

         We review a trial court’s ruling on the admission of evidence under an abuse of

discretion standard and we will not reverse absent a clear abuse of discretion. Apolinar v. State,

155 S.W.3d 184, 186 (Tex. Crim. App. 2005). If the trial court’s decision to admit the evidence

lies within the zone of reasonable disagreement, then we will uphold the decision. Id.

         During the State’s case-in-chief, the State offered into evidence as State’s exhibit 1A, a

videotape of the murder created from the surveillance camera at the convenience store on the

night of the shooting. 3 The video is divided into four quadrants, each containing a different

camera angle and all four playing simultaneously throughout the video. The video plays in real-

time speed and contains the timing and minutes of the shooting. The State then offered into

evidence State’s exhibits 2 and 3 which depict the same events in State’s exhibit 1A. However,

the video in each of these exhibits was not divided into quadrants but, rather, each depicted a

single camera angle on the full screen. Additionally, the speed in these exhibits was slowed.

The State also offered into evidence approximately fourteen photographs retrieved from the

surveillance camera that showed the same shots as recorded on the videos. Appellant made




2
 Appellant also asserts the video may have been altered by the State when it was converted from digital format and
saved on a DVD and later to a flash drive; however, there is nothing to indicate the State manipulated or altered the
digital recording made by the surveillance camera.
3
  The camera records a still frame or picture in increments of a tenth of a second. As a result, the surveillance
camera does not record full motion video.


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several objections to the videos and the pictures, which the trial court overruled. The jury was

shown all three videos and the photos.

           Our review of the videotapes and pictures indicates that all of these exhibits depict the

exact same event from the same surveillance system—the moments before, during, and after

Omar’s murder. The jury viewed all three videos and saw the pictures that were developed

directly from the camera shots taken by the surveillance video. All of this amounted to the jury

viewing the exact same event from the same surveillance system. 4

           Further, the jury was well aware that the video recorded in tenth of a second increments

because the witness who installed the camera testified at trial that the video system is “what they

call 10th of a second recording.” This witness also testified that the pictures and video admitted

into evidence from the surveillance camera recorded a time “slightly beyond” the previous

image. As a result, the jury, as factfinder, could make their own inferences as to what took place

during the brief tenth of a second between each frame. Benavides v. State, 763 S.W.2d 587,

588–89 (Tex. App.—Corpus Christi 1988, pet. ref’d) (determining a jury can “draw reasonable

inferences and make reasonable deductions from the evidence as presented to it within the

context of the crime”).

           Appellant has not established how the slower version videos and the pictures are more

prejudicial than the real-time video. Thus, we cannot say the trial court’s decision to admit the

slow-motion videos and single-frame photos lies outside the zone of reasonable disagreement

and, therefore, we must uphold the trial court’s decision. See Apolinar, 155 S.W.3d at 186.

Accordingly, we conclude the trial court did not abuse its discretion by admitting the videotapes

and photos.



4
    Appellant does not challenge the real-time video or the cumulativeness of the evidence on appeal.

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                                        CONCLUSION

       We overrule appellant’s issues on appeal and affirm the judgment of the trial court.


                                                    Sandee Bryan Marion, Justice

Do not publish




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