                                   MEMORANDUM OPINION
                                Nos. 04-09-00620-CR & 04-09-00621-CR

                                          Danielle DEROVEN,
                                               Appellant

                                                    v.

                                          The STATE of Texas,
                                                Appellee

                        From the 290th Judicial District Court, Bexar County, Texas
                           Trial Court Nos. 2008-CR-7466A & 2008-CR-7467A
                              The Honorable George Allen, Judge Presiding 1

Opinion by:         Rebecca Simmons, Justice

Sitting:            Karen Angelini, Justice
                    Phylis J. Speedlin, Justice
                    Rebecca Simmons, Justice

Delivered and Filed: December 1, 2010

AFFIRMED

           On November 24, 2010, this court issued an opinion and judgment that mistakenly failed

to reference a companion case. This court’s opinion and judgment dated November 24, 2010

are, therefore, withdrawn, and a new opinion and judgment are substituted. These appeals arise

from the conviction of Danielle Deroven for two counts of murder. Deroven contends that the



1
    Sitting by assignment.
                                                                  04-09-00620-CR & 04-09-00621-CR


evidence is factually insufficient to sustain his conviction. We affirm the judgments of the trial

court.

                                         BACKGROUND

         The facts of this case concern the exchange of several rounds of gunfire from automatic

weapons outside of Stacy’s Sports Bar. As a result of this exchange, two brothers, Demetris

Keno and Eugene “Emil” Keno, who frequented the bar, were shot to death.

         On August 25, 2007, Demetris and Emil visited Stacy’s in the early morning hours with

their friends Jamie Garnett, Arthur Randall, and Sexie Gardner. Deroven and his acquaintances,

including Frank Dotson, Henry Lee “Little Henry” Allmond, and Little Henry’s father, “Big

Henry,” were also at Stacy’s. Around 1:00 a.m., a fight erupted in the bar, and Little Henry was

hit with a pool stick. After security guards at Stacy’s threw Little Henry out of the bar, he went

to Dotson’s car to get a gun.      Demetris, Emil, and Arthur Randall exited the bar shortly

thereafter.

         Before the fight broke out, Jamie Garnett, who had imbibed several drinks and used

cocaine, exited the bar to smoke marihuana and sell drugs in the parking lot. After she returned

to the bar, she saw evidence of the fight and then went back outside where she joined Demetris,

Emil, and Arthur Randall. An argument between Demetris and Big Henry ensued in the parking

lot, but appeared to de-escalate. Moments later, however, shots were fired across the parking lot.

Demetris, Emil, and Garnett fell to the ground among several parked cars for cover. While on

the ground, Garnett and Emil planned their escape back inside. When they started to get up, a

man came from around the corner of a parked car carrying a MAC-11 handgun. The man shot

Emil twice, and then shot both Demetris and Emil as they lay on the ground.




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       Several other witnesses heard the “massive amount” of gunfire in the parking lot.

Among these witnesses was Rene Allen, who was the head of security at Stacy’s. He looked out

the window and saw Little Henry, Frank Dotson, and Deroven, all regulars at Stacy’s, holding

and shooting guns.

       Deroven was charged by indictment for the murders of Demetris and Emil, and entered a

plea of not guilty. At the conclusion of the trial, the jury convicted him on both counts. Deroven

now challenges the sufficiency of the evidence to support his conviction.

                                SUFFICIENCY OF THE EVIDENCE

       Deroven’s sole issue on appeal is that the evidence is factually insufficient to support his

conviction. More specifically, Deroven argues that the evidence is insufficient to connect him to

the deaths of Demetris and Emil. Since this case was submitted, the distinction between factual

and legal sufficiency review was abolished in Brooks v. State, No. PD-0210-09, 2010 WL

3894613, at *1 (Tex. Crim. App. Oct. 6, 2010). Thus, to address Deroven’s contention, we

review the legal sufficiency of the evidence under the standard provided in Jackson v. Virginia,

443 U.S. 307 (1979). See Brooks, 2010 WL 3894613, at *1.

       In reviewing the sufficiency of the evidence, an appellate court examines “the evidence in

the light most favorable to the prosecution” and determines whether “any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443

U.S. at 319 (emphasis in original); Sells v. State, 121 S.W.3d 748, 753–54 (Tex. Crim. App.

2003). We do not substitute our judgment for that of the jury. Dewberry v. State, 4 S.W.3d 735,

740 (Tex. Crim. App. 1999). “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

conflicts in the evidence.” Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000); see



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also TEX. CODE CRIM. PROC. ANN. art. 38.04 (West 1979).             Furthermore, we “resolv[e]

inconsistencies in the testimony in favor of the verdict.” Moreno v. State, 755 S.W.2d 866, 867

(Tex. Crim. App. 1988).

       The Texas Penal Code defines murder as intentionally or knowingly causing the death of

an individual. TEX. PENAL CODE ANN. § 19.02(b)(1) (West 2003). The State may prove the

identity of a perpetrator of a murder by either direct or circumstantial evidence. See Earls v.

State, 707 S.W.2d 82, 85 (Tex. Crim. App. 1986). Jamie Garnett testified that she saw Deroven

shoot repeatedly at Emil. Though Deroven argues that Garnett’s testimony is unreliable because

she was drinking alcohol, ingesting cocaine, and smoking marihuana that evening, the jury, as

the “exclusive judge of the credibility of witnesses and of the weight to be given testimony,”

could have believed Garnett’s testimony. See Wesbrook, 29 S.W.3d at 111. Rene Allen, the

head of security at Stacy’s, also saw Deroven holding and shooting a gun. Additionally, another

witness, LaToya Blanton, testified that Deroven told her that he owned a MAC-11 that he had

used to shoot at the Keno brothers at the bar that night. Edward Wallace, a forensic scientist who

works at the Bexar County Crime Lab, testified that he tested all of the bullet fragments from the

bodies of Demetris and Emil, and determined that they were all fired by the same MAC-11

handgun. Because the witness’s testimony sufficiently linked Deroven to the deaths of both

Demetris and Emil, the evidence is sufficient to support the jury’s verdict. See Jackson, 443

U.S. at 319; Sells, 121 S.W.3d at 753–54.




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                                       CONCLUSION

         Because an eyewitness testified to seeing Deroven shooting one of the victims and

because other testimony supported that the same shooter shot both victims, the evidence is

sufficient to support Deroven’s conviction. We, therefore, affirm the judgments of the trial

court.

                                              Rebecca Simmons, Justice

DO NOT PUBLISH




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