Opinion issued November 21, 2017




                                      In The

                               Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-16-00505-CR
                            ———————————
                      DONALD D. BECKETT, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee



                   On Appeal from the 263rd District Court
                           Harris County, Texas
                       Trial Court Case No. 1462320


                          MEMORANDUM OPINION

      A jury convicted appellant, Donald Beckett, of murder and the trial court

assessed his punishment at 50 years’ confinement. In three related issues, appellant
contends that the evidence is legally and factually insufficient to support his

conviction. We affirm.

                                 BACKGROUND

      On March 3, 2015, the complainant, Isaac Tandoh, was waiting to get his hair

cut at the Chop Shop barbershop when a fight broke out in the parking lot. Tandoh’s

barber, Shannon Miller, went outside to break up the situation. Miller, a member of

the Black Disciples gang, knew both of the men involved in the altercation. Leon

Dupre Whiting, who was holding a gun, was a long-time friend of Miller, and Hasan

Matthews was a fellow Black Disciples gang member. Miller stood in front of

Matthews in an effort to diffuse the situation.

      As a result of Miller’s intervention, Whiting began apologizing and Matthews

left the scene. Miller then returned to the barbershop and resumed cutting Tandoh’s

hair. Whiting continued walking around the barbershop and apologizing to Miller.

While Miller was cutting Tahdoh’s hair, a man entered the barbershop and began

shooting and then left the premises when his weapon would not fire anymore. As a

result of the shooting, Miller was shot in the ankle, Whiting was shot in the abdomen,

and Tandoh lay dead on the floor.

      When first questioned by police, Miller denied knowing the shooter. Several

days later, however, he gave a photograph of appellant to police and identified




                                          2
appellant, a man he knew from his gang as “Hitman,” as the shooter. He later

identified appellant from a photograph line-up also. Appellant was soon arrested.

      During the investigation, the police learned that appellant’s wife, Tanesha

O’Neal, owned a red Suburban. Photographs of the crime scene showed a red

Suburban that matched the vehicle owned by appellant’s wife. Miller also testified

that appellant was known to drive a red Suburban.

      Police also linked appellant to the crime scene by showing that the phone that

he used on the night of the murder was accessing a cell tower that serviced the scene

of the crime. The same cell phone tower would not have been used to service calls

from appellant’s phone if he had been at his sister’s apartment, as he claimed in his

alibi.1 Records of the cell phone appellant used also showed that he received a call

from Matthews, the fellow Black Disciples gang member involved in the parking lot

altercation, at around 7:00 p.m., before the murder, and that appellant made a call to

Matthews at about 7:40 p.m., after the murder. Phone records also showed that he

and his wife spoke on the phone, even though they testified that they were together

at his sister’s birthday party the entire time.




1
      Appellant testified that he was not at the barbershop that night, but was at a birthday
      party for his sister at her apartment. His wife, sister, and her husband supported his
      alibi. Although he told police, when questioned, that he drove the red Suburban to
      the birthday party, at trial he testified that he rode with his mother.
                                             3
      At trial, Miller, the barber, testified that he decided to tell the police about

appellant’s involvement in the shooting because he and Tandoh, an innocent

bystander, had been shot. He admitted that had Whiting been the only victim, he

probably would not have said anything to police. He explained that Whiting had

disrespected the Black Disciples by confronting Matthews in the parking lot with a

gun. Essentially, the State’s theory of the case was that someone in the Black

Disciples—likely Matthews—had called the gang’s “Hitman” to take retribution on

Whiting for disrespecting Matthews, and that, in exacting that retribution, appellant

shot not only Whiting, but also Miller and Tandoh.

      At trial, the State also presented recordings of jailhouse telephone calls that

appellant made. During one call, someone told appellant that “this wouldn’t have

happened if people wouldn’t have called you up there.” The caller further stated,

“[T]hey just told Hitman to do this and he threw away his life.” Appellant stopped

the caller from further comments with an admonition that the calls were being

recorded. In another phone call from the jail, appellant apologized to another of the

barbers, although he claimed that the apology was related to money that he owed the

barber, not the shooting.




                                          4
                      SUFFICIENCY OF THE EVIDENCE

      In his first issue, appellant challenges the sufficiency of the evidence to

identify him as the perpetrator, arguing that “there was at best a mere modicum of

evidence to support a conclusion that Appellant was the shooter.”

Standard of Review

      In reviewing the legal sufficiency of the evidence to support a criminal

conviction, a court of appeals determines whether, after viewing the evidence in the

light most favorable to the verdict, the trier of fact was rationally justified in finding

the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Brooks v. State, 323 S.W.3d 893,

895 (Tex. Crim. App. 2010). We measure the evidence “by the elements of the

offense as defined by the hypothetically correct jury charge for the case.” Malik v.

State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). As the exclusive judge of the

facts, the jury may believe or disbelieve all or any part of a witness’s testimony.

Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). We presume that

the factfinder resolved any conflicting inferences in favor of the verdict, and we

defer to that resolution. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. On appeal,

we may not re-evaluate the weight and credibility of the record evidence and thereby

substitute our own judgment for that of the factfinder. Williams v. State, 235 S.W.3d

742, 750 (Tex. Crim. App. 2007). We review factual-sufficiency-of-the-evidence

                                            5
challenges under the same appellate standard of review as that for legal sufficiency

challenges. See Brooks, 323 S.W.3d at 912–13, 917–18, 922–24, 926–28.

Sufficiency-of-the-Evidence Review

      The State must prove beyond a reasonable doubt that the defendant is the

person who committed the charged offense. Johnson v. State, 673 S.W.2d 190, 196

(Tex. Crim. App. 1984), overruled on other grounds by Geesa v. State, 820 S.W.2d

154 (Tex. Crim. App. 1991). Identity may be proved by direct or circumstantial

evidence. Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. App. 1986).

      Here, the State presented both direct and circumstantial evidence of

appellant’s guilt. First, Miller identified appellant, a man he knew, as the shooter.

He also identified appellant from a photographic line-up. Miller’s identification is

sufficient to support appellant’s conviction for murder. Aguilar v. State, 468 S.W.2d

75, 77 (Tex. Crim. App. 1971) (holding testimony of one eyewitness is sufficient to

support a jury’s verdict); Walker v. State, 180 S.W.3d 829, 832–33 (Tex. App.—

Houston [14th Dist.] 2005, pet. ref’d) (holding same).

      However, there was also circumstantial evidence of appellant’s identity as the

shooter. Appellant was known to drive a red Suburban; his wife owned a red

Suburban. A red Suburban matching that owned by O’Neal was photographed in the

parking lot the night of the murder.




                                         6
      Appellant claimed to be at his sister’s apartment for a birthday party the night

of the murder. Phone records showed that if he were at his sister’s apartment, as he

claimed, the cell phone tower that serviced the calls he received and made that night

would not have been involved. Also, cell phone records showed that, just before the

murder, appellant received a phone call from the fellow gang member, Matthews,

who had been involved in the earlier parking lot altercation. Shortly after the

murder, appellant made a phone call to Matthews. And, in the jailhouse conversation

appellant had indicated that the caller believed that “[the shooting] wouldn’t have

happened if people wouldn’t have called you up there.”

      From this direct evidence—Miller’s identification—and circumstantial

evidence regarding the cell phone records, red Suburban, and jailhouse phone calls,

the jury could have concluded beyond a reasonable doubt that appellant was the

person who shot Tandoh. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789.

Accordingly, we overrule appellant’s first issue.

Factual Sufficiency

      In issues two and three, appellant contends that:

      This Court has the authority under the Texas Constitution to conduct a
      factual sufficiency review by weighing the evidence in a neutral light,
      and Appellant has a Constitutional right to such review[; and]

      [t]he state appellate courts deny meaningful review in criminal appeals
      by misapplication of Jackson v. Virginia to factual sufficiency review.



                                          7
      Because both issues request that we conduct a factual sufficiency review, we

address them together.

      Appellant acknowledges Brooks v. State, in which the Court of Criminal

Appeals discontinued factual sufficiency review, holding that the standard of review

established in Jackson v. Virginia applied to all sufficiency challenges. See Jackson,

443 U.S. at 318–19, 99 S. Ct. at 2788–89; Dobbs v. State, 434 S.W.3d 166, 170 (Tex.

Crim. App. 2014); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010)

(plurality opinion). Appellant argues that Brooks was wrongly decided, citing a

provision of the Texas Constitution stating that the decisions of the courts of appeals

are “conclusive” on all questions of fact. TEX. CONST. art. V, § 6(a). He argues

applying the Jackson standard to his factual sufficiency challenge denies him the

due process guaranteed to him by the federal constitution. See U.S. CONST. amend.

XIV, § 1.

      This Court considered and rejected appellant’s arguments in Kiffe v. State, in

361 S.W.3d 104, 109–10 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d); see also

Cozart v. State, Nos. 01-15-01007-CR and 01-15-01008-CR, 2017 WL 3910696

(Tex. App.—Houston [1st Dist.] Sept. 7, 2017, no pet) (mem. op., not designated for

publication), Tan v. State, No. 01-15-00511-CR, 2016 WL 3542255, at *3, (Tex.

App.—Houston [1st Dist.] June 28, 2016, pet. ref’d) (mem. op., not designated for

publication). In Kiffe, this Court explained that, while the intermediate appellate

                                          8
courts have final jurisdiction over all questions of fact, the applicable standard of

review is a question of law that is determined by Texas Court of Criminal Appeals

precedent. Id. Therefore, we apply the Jackson standard to factual insufficiency

claims. See Martinez v. State, 327 S.W.3d 727, 730 (Tex. Crim. App. 2010); Brooks,

323 S.W.3d at 912; Kiffe, 361 S.W.3d at 109–10.

      Having determined that there is sufficient evidence under the Jackson

standard of review, and declining to conduct a separate factual sufficiency review,

we overrule issues two and three.

                                 CONCLUSION

      We affirm the trial court’s judgment.




                                               Sherry Radack
                                               Chief Justice

Panel consists of Chief Justice Radack and Justices Higley and Bland.

Do not publish. TEX. R. APP. P. 47.2(b).




                                           9
