                                  NO. 07-09-0011-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                       PANEL B

                               FEBRUARY 18, 2010
                          ____________________________

                GARY RAY INCE A/K/A GARY SIRMONS, APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE
                          ____________________________

             FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;
             NO. 57,375-A; HONORABLE RICHARD DAMBOLD, JUDGE
                         ___________________________


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


                              MEMORANDUM OPINION


      Appellant, Gary Ray Ince, appeals his conviction for the offense of murder and

sentence, enhanced by a prior felony conviction, of 15 years incarceration in the

Institutional Division of the Texas Department of Criminal Justice. We affirm.

                                      Background


      On August 16, 2007, appellant and Wayne Harvel Talbert were alone together in

appellant’s garage residence. During the evening, Talbert was shot in the head and
died. Appellant’s and the State’s theories of the events leading to Talbert’s death vary

greatly and will be addressed in analysis of appellant’s appellate issues.


         By four issues, appellant challenges the legal and factual sufficiency of the

evidence to support his conviction for the offense of murder.        As applicable to the

offense for which appellant was tried, a person commits the offense of murder if he

intentionally or knowingly causes the death of an individual. TEX. PENAL CODE ANN. §

19.02(b)(1) (Vernon 2003); Hall v. State, 137 S.W.3d 847, 852 (Tex.App.--Houston[1st

Dist.] 2004, pet. ref’d).    Appellant’s issues specifically challenge the intentional or

knowing element and the causation element. However, appellant’s argument does not

isolate how the evidence was insufficient to prove these elements. Rather, appellant’s

argument simply contends that the evidence was legally and factually insufficient to

support his conviction. As such, we will combine our analysis of appellant’s issues to

determine whether the evidence was legally sufficient to support his conviction and, if

so, whether the evidence was factually sufficient to support his conviction.


         As appellant challenges both the legal and factual sufficiency of the evidence, 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).

                                     Legal Sufficiency


         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


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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).


       In the present case, it is undisputed that, when Talbert was shot, only appellant

and Talbert were present.        Further, there was testimony presented that appellant

suspected that Talbert had previously stolen some of appellant’s property. The people

that discovered Talbert after he had been shot testified that it appeared that he had

been “beat up,” which leads to a reasonable inference that appellant and Talbert had

been in a physical altercation prior to Talbert being shot.    Blood splatter evidence

suggested that Talbert was sitting on appellant’s bed at the time that he was shot and

evidence of the trajectory of the bullet suggests that the gun was being fired by

someone in a standing position. Additionally, evidence of where the gun was found and

the fact that there were no fingerprints on the gun allow a reasonable inference that

appellant took the time to clean and conceal the gun after Talbert was shot. After

considering all of the evidence presented in the light most favorable to the verdict, we

cannot say that the jury acted irrationally in finding beyond a reasonable doubt that

appellant intentionally or knowingly caused the death of Talbert. As such, we overrule

appellant’s first and third issues.




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                                    Factual Sufficiency


       When an appellant challenges the factual sufficiency of the evidence supporting

his conviction, the reviewing court must determine whether, considering all the evidence

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

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

In performing a factual sufficiency review, we must give deference to the fact finder’s

determinations if supported by evidence and may not order a new trial simply because

we may disagree with the verdict. See id. at 417. As an appellate court, we are not

justified in ordering a new trial unless there is some objective basis in the record

demonstrating that the great weight and preponderance of the evidence contradicts the

jury’s verdict. See id. Additionally, an appellate opinion addressing factual sufficiency

must include a discussion of the most important evidence that appellant claims

undermines the jury’s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003).

However, when a defendant’s version of the facts conflicts with other evidence, it is the

jury’s prerogative to judge the credibility of the evidence and to ascribe the weight to be

given to the evidence. Jones v. State, 944 S.W.2d 642, 647-48 (Tex.Crim.App. 1996).


       Appellant’s factual sufficiency challenge is predicated on his version of the facts,

specifically, his contention that Talbert being shot was an accident. While appellant

testified that he did not remember how Talbert was shot, appellant’s defensive theory

was that he tripped while retrieving the gun, dropped the gun, and the gun fired when it

struck the ground.     Appellant’s defensive theory was not directly precluded by the




                                              4
evidence.1 However, the evidence addressed above is sufficient to allow reasonable

minds to differ as to whether appellant intentionally shot and killed Talbert. It is the

jury’s prerogative to resolve inconsistencies in the evidence. See id. That appellant

presented a plausible version of the event that differed from the version presented by

the State does not render the evidence insufficient. See Anderson v. State, 701 S.W.2d

868, 872 (Tex.Crim.App. 1985). After considering all the evidence in a neutral light, we

conclude that the jury was rationally justified in finding appellant guilty of murder beyond

a reasonable doubt. As such, we overrule appellant’s second and fourth issues.


                                        Conclusion


         Having overruled each of appellant’s issues, we affirm the judgment of the trial

court.



                                                        Mackey K. Hancock
                                                             Justice



Do not publish.




         1
         While the evidence suggests that Talbert was sitting on the bed and was shot
by someone in a standing position, the pathologist expert did opine that it is possible
that the gunshot wound could have been the result of the gun discharging after having
been dropped, firing, and the bullet striking Talbert as he was looking down. Further,
that the gun had a defect that would allow it to fire when the back of the hammer was
struck directly with a significant force was also confirmed by the evidence. While
appellant’s defensive theory is not precluded by the evidence, we must remain mindful
that the factual determinations of how Talbert was shot were for the jury to decide.
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