J—




     Affirmed and Opinion Filed February 27, 1998




                                               In The

                                   QJmiri of Appeals
                           JRfilf iBtstrtrt sf Gkxas at lallas
                                          No. 95-01456-CR
                                          No. 95-01457-CR



                                    JAMES RHYMES, Appellant

                                                 V.


                                 THE STATE OF TEXAS, Appellee


                             On Appeal from the 282nd District Court
                                     Dallas County, Texas
                        Trial Court Cause Nos. F94-42944-S; F94-42945-S


                                          OPINION

                         Before Justices Lagarde, Whittington, and Roach
                                   Opinion By Justice Lagarde

            The jury convicted appellant James Rhymes of murder and aggravated assault and

     assessed punishment at life confinement on the murder charge and ten years' confinement

     on the aggravated assault charge. In a single point of error, appellant contends that the

     evidence is factually insufficient to support each conviction. Because we conclude that the

     evidence was factually sufficient to support each conviction, we overrule appellant's point
of error and affirm the trial court's judgments.

                                    Factual Background

       Earl Douglas was married to Shandra Rodgers, but the two did not live together.
Shandra told Earl that someone in her housing project did not want him coming to visit their
daughter at Shandra's apartment. On the day of the shootings, Earl called Shandra's

apartment and Isaac "Mike-Mike" Harris answered the phone. Earl asked Mike-Mike if he

was the person who did not want Earl coming to Shandra's apartment. The two men had

an argument and Earl told Mike-Mike to "come over if he had something to say."

       Approximately two hours later, Mike-Mike and Michael Hall drove to Earl's house.

Earl was sitting on the front porch with his nephew, L.V. Green, his niece, Senaquia
Douglas, and her boyfriend, Travis Gilmore. Mike-Mike and Hall got out of the car,

walked up to the porch, and lifted their shirts. Each had a handgun tucked into the

waistband of his pants. Mike-Mike and Hall returned to the car and drove off but returned

a few minutes later, on foot, along with appellant. As the three approached Earl's house,

they called Earl a coward, trying to instigate a fight. Earl walked to the sidewalk in front

of his home and said, "Well, we need to go on and get this over with ... put down your

heat." Mike-Mike gave his gun to appellant and appellant tucked it into the waistband of

his pants. Earl described the gun he saw Mike-Mike hand appellant as chrome and an

automatic.


      Mike-Mike and Earl began to fight in the street. Appellant was standing behind Earl



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during the fight. Hall joined in the fight and Earl was knocked to the ground. Mike-Mike

and Hall started kicking Earl in the head. During the fight, Earl saw appellant holding a

gun in his hands. While on the ground, Earl saw L.V. and Travis start walking toward him.

Then, just before he lost consciousness, Earl heard four or five gunshots from behind and

saw Travis and L.V. get shot, but did not see who fired the shots. Travis died at the scene,

and L.V., who was shot in the leg, was hospitalized.

       L.V. testified that during the fight between Earl and Mike-Mike, Earl fell to the

ground. Hall then joined in the fight. L.V. moved to intervene on Earl's behalf. As he did

so, L.V. saw Travis get shot.      L.V. turned around to see who was shooting and saw

appellant standing right behind him holding a gun and firing. L.V. testified that he could

not see what kind of gun appellant was holding but that he saw the chrome and the fire

from the barrel as it discharged. L.V. heard a total of four or five shots in rapid succession,

one of which struck him in the knee.


       Senaquia was on the porch when Mike-Mike and Hall initially drove up. When they

drove off she went into the house. When they returned with appellant, she was still inside

the house but observed the fistfight through the screen door. Senaquia saw appellant with

a gun in his hand. She testified somewhat inconsistently that she could not recall if she saw

him firing the weapon, but she nevertheless saw something red coming out of the barrel.

She also saw appellant turn and run from the scene.

       Shandra, Earl's estranged wife, testified that Mike-Mike and his girlfriend lived with




                                              -3-
her in a housing project. Hall lived next door to Shandra. On the day of the shootings,

Mike-Mike reported that Earl had called looking for a fight and that he was going to Earl's
and beat him up. Shandra then went to a neighbor's apartment. From the neighbor's

apartment, Shandra saw Mike-Mike and Hall return and enter her apartment with a third
man. Shandra returned to her apartment and saw appellant sitting on the couch, holding

a gun, and saying that he had started shooting because Travis and L.V. were about to
intervene in the fight. According to Shandra, appellant said he just started shooting and
"didn't care which way or who he shot." Shandra described the gun appellant was holding
as a "silver chrome-plated gun." Shandra later identified a picture of a revolver as the type

of weapon appellant was holding.

       Robert Poole, a firearm and toolmark examiner for the Southwestern Institute of

Forensic Sciences, testified that he examined two bullets recovered from Travis's body, two

bullets recovered from the scene, and one bullet apparently recovered from Travis's leg.

After microscopic examination and comparison, Poole determined that all five bullets were
fired from the same weapon and the weapon was either a .38 or a .380 revolver. A .380
 semi-automatic could not fire a .38 bullet. In Poole's opinion, a lay person could not tell

 the difference between a revolver and a semi-automatic by the sound of the firing of the

 weapon.

                                     Standard of Review


        Appellant contends the evidence is factually insufficient to prove he shot Travis and


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++S




      L.V. In reviewing factual sufficiency, we do not view the evidence in the light most

      favorable to the prosecution. Clewis v. State, 922 S.W.2d 126, 134-35 (Tex. Crim. App.

      1996). We set aside the verdict, however, only if it is so contrary to the overwhelming

      weight of the evidence as to be clearly wrong and unjust. We remain deferential to avoid

      substituting our judgment for the factfinder's. Id. at 133-36. We will not reweigh the

      evidence and set aside the verdict merely because we believe a different result is more

      reasonable. Id. at 135. Thus, we review the factfinder's weighing of the evidence and can

      disagree with the factfinder's conclusion, but we exercise our jurisdiction only to prevent a

      manifestly unjust result. Id. at 132-33.

                                                 Discussion


             Appellant contends the evidence is factually insufficient to prove he was the shooter

      because the record shows he possessed a different type of gun than the one used to shoot

      Travis and L.V., that he was never actually seen firing the gun he possessed, and that

      another person could have been the shooter. We disagree with each contention.
             The testimony of the ballistics expert established that the same weapon, either a .38

      or .380 revolver, was used to shoot both Travis and L.V. Appellant notes that Earl

       described the weapon that Mike-Mike handed appellant as an automatic rather than
       revolver. Although L.V. did not see Mike-Mike hand appellant his weapon, L.V. testified
       that Mike-Mike carried an automatic weapon. The evidence does not establish that the

       weapon Mike-Mike gave to appellant was necessarily the weapon used in the shooting.


                                                     -5-
<+4




       Appellant could have had his own weapon just as Mike-Mike and Hall did. L.V. testified

       that he could not see what type of gun appellant was shooting, but he did see the chrome
      handle and sparks coming from the barrel as it discharged. Furthermore, neither Earl nor
      L.V. is an expert in weaponry. Thus, even if they misidentified the weapon as an automatic,
      that fact alone would not lead us to conclude that the evidence was factually insufficient.
      Instead, it is just one piece of evidence for the factfinder to weigh.
             We also disagree with the contention that appellant was not seen firing the weapon.
      L.V. testified that he saw Travis get shot, he turned around and saw appellant holding agun
      and watched him fire a few more shots. Although Senaquia testified she was uncertain

      whether she actually saw appellant firing the gun, she maintained she did see him holding
      the gun in the air with something red coming from the end of the barrel, and she saw
      appellant running from the scene. Although Earl did not see appellant firing the weapon,
      he did see appellant in possession of a weapon. Further, Shandra testified that appellant,
      Mike-Mike, and Hall returned to her apartment after the shooting. Appellant was holding
      the revolver and admitted he began shooting when he saw L.V. and Travis move to

      intervene in the fight between Earl and Mike-Mike. Shandra's testimony is consistent with
      L.V. who testified that he was shot after he sought to intervene in the fight. In light of all
      the evidence, we conclude that there is factually sufficient evidence to support a rational
      factfinder's conclusion that appellant was the shooter.

            Appellant's theory that someone else could have been the shooter is not supported



                                                   -6-
by the record. There is no evidence that someone other than appellant was discharging a
weapon or that appellant did not discharge a weapon. The evidence was undisputed that
appellant was at the scene, in possession of a weapon, and fled the scene following the
shooting. Eyewitnesses identified appellant as the shooter and appellant admitted the
shooting to a third person. Appellant's theory that someone else could have been the
shooter, without evidence to support it, cannot sustain a factual sufficiency challenge.
                                         Conclusion


         For the reasons set forth above, we conclude the verdict in each case is not so

contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.
Accordingly, we overrule appellant's sole point of error and affirm the judgments of the trial
court.




                                                                           r^zi^y

Do Not Publish
Tex. R. App. P. 47
951456F.U05




                                            -7-
                                                                    S>7 - //3 Cd



                            Qfourt at Appeals
                     iHfty Ststrbt of GLexus at Saiias
                                 No. 05-95-01456-CR

JAMES RHYMES, Appellant                     Appeal from the 282nd District Court of
                                            Dallas County, Texas. (Tr.Ct.No F94-
                                            42944-S).
                                            Opinion delivered by Justice Lagarde,
THE STATE OF TEXAS, Appellee                Justices Whittington and Roach also
                                            participating.

                                      JUDGMENT


AFFIRMED ^ ^ C°UrtS °Pini°n °f *** ^ ^ judgment of the triaI court *

Judgment entered February 27, 1998.



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