Affirmed and Memorandum Opinion filed February 20, 2014.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-12-00971-CR
                               NO. 14-12-01011-CR

             FRANKIE RAYSHAWN HILL-TURNER, Appellant
                                         V.

                       THE STATE OF TEXAS, Appellee

              On Appeal from the 434th Judicial District Court
                          Fort Bend County, Texas
          Trial Court Cause Nos. 10-DCR-056063 & 10-DCR-056064

                 MEMORANDUM                      OPINION


      Appellant Frankie Rayshawn Hill-Turner was convicted by a jury of murder
and aggravated robbery. The jury sentenced him to 55 years’ confinement for
murder and 20 years for aggravated robbery (to be served concurrently). In his sole
issue, appellant contends the evidence is insufficient to support the jury’s implicit
rejection that appellant acted in self defense when he shot the complainant. We
affirm.

               I.     FACTUAL AND PROCEDURAL BACKGROUND

       The Complainant’s Testimony

       Trevis McCarty, the complainant in the aggravated robbery charge, testified
that he knew Robert Hall, the complainant in the murder charge, because McCarty
supplied Hall with drugs to sell. McCarty met appellant when Hall and appellant
were with a mutual friend, Danielle, who asked McCarty to provide two cigarettes
dipped in PCP, known as sherms. McCarty drove to Danielle’s house, left the
sherm cigarettes, and drove home. A few days later appellant arranged to trade a
diamond bracelet for two more sherm cigarettes. McCarty met appellant at
appellant’s house and gave appellant two sherm cigarettes plus ten dollars in
exchange for the bracelet.

       On the night of the offense McCarty and Hall were “hanging out” at
McCarty’s home. Appellant phoned McCarty and asked to purchase one ounce of
PCP, which McCarty called a “strac.” McCarty told appellant that the bracelet
appellant had traded for drugs earlier in the week was not made with real
diamonds. Appellant agreed to reimburse McCarty for the earlier purchase of
sherm cigarettes, and agreed to pay for the ounce of PCP. McCarty agreed to go to
appellant’s house to conduct the transaction, then drive Hall home.

       McCarty had $678 in cash from a previous drug sale. He placed $78 in cash
in the top pocket of his shorts. He was wearing cargo shorts, which had lower
pockets near his knees. He placed $600 and a one ounce bottle of PCP in the lower
left pocket. In the other lower pocket, he placed another one ounce bottle of PCP.
McCarty’s wallet was in his left back pocket, and his mobile phone was clipped to
his belt.


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      McCarty and Hall left McCarty’s home in McCarty’s car. When McCarty
and Hall arrived at appellant’s home, appellant got in the car and asked McCarty to
drive away from his home. Appellant explained that he and his girlfriend had been
arguing and he was afraid she might call the police. McCarty drove to a nearby
convenience store and purchased cigarettes. All of the men got back in the car with
McCarty in the driver’s seat, Hall in the front passenger seat, and appellant riding
in the rear passenger seat behind Hall. As they drove back toward appellant’s
house, appellant told McCarty to turn on a street approximately one block before
the street on which appellant lived. McCarty testified that as he turned on that
street he saw a white Cadillac and remarked that it might be the same white
Cadillac that was parked in front of appellant’s house earlier. McCarty said at that
point appellant “got suspicious and he shot me.”

      McCarty stopped the car and tried to get out; appellant walked to the driver’s
door, pulled McCarty out of the car, and hit him in the head with the gun. McCarty
testified that Hall also stepped out of the car. Appellant then held the pistol to
McCarty’s head and demanded to know where the PCP was located. McCarty told
appellant the PCP was in the car even though it was in his pocket. McCarty hoped
that appellant would leave him alone and McCarty could get back in the car and
escape. Appellant took McCarty’s phone and his wallet and searched McCarty’s
top pocket, but did not find anything. Appellant and Hall then got back in the car
and drove away. McCarty eventually flagged down a vehicle and asked the driver
to phone 911. McCarty testified that neither he, nor Hall, had a gun, and there was
no gun in the front seat of the car.

      Appellant’s Statement

      Appellant gave a statement to police officers in which he stated that he,
McCarty, and Hall drove to the store to buy cigarettes. After McCarty purchased

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cigarettes they got back in the car with McCarty driving, Hall in the front
passenger seat, and appellant in the rear passenger seat. Appellant claimed that
McCarty turned on the wrong street, and appellant attempted to give McCarty
directions to his house. At that moment, according to appellant, McCarty abruptly
stopped the car and reached for a gun with his left hand. Appellant grabbed the gun
from McCarty’s hand and immediately began firing. Hall reached over the front
seat to try to get the gun. Appellant jumped out of the car and hit McCarty in the
head several times with the gun. Appellant then jumped back in the car and drove
away. He abandoned the car, left it running, and ran home. Appellant stated that
Hall was still inside the car when he ran home. Appellant told police he left the gun
at the scene and burned his shirt that was covered with blood.

      Police Investigation

      Houston police officer Salim Howze responded to the 911 call. After talking
with the individual who made the call, Howze searched for appellant’s car. He
found the car nearby, still running with the driver’s door open. He observed a body
near the front passenger side tire. Detective Kevin Tolls, who responded to the
scene where the car was found, testified that the car was still running, the body was
near the car, and appeared to have been dragged. The car appeared as if someone
had searched it.

      Clay Davis, a criminalist with the Houston Police Department, testified that
there was a mixture of DNA in the vehicle from McCarty, Hall, and appellant.
Davis further testified that the DNA tested from the blood on the front passenger
seat headrest was consistent with Hall’s profile, and was inconsistent with
McCarty or appellant’s profile.

      Richard Bolton, an investigator with the Houston Police Department,
testified that he investigated the robbery–homicide and determined that the white
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Cadillac was not involved in the incident. Bolton arrested appellant and took his
statement. The gun was never recovered.

      Blood-Spatter Expert Testimony

      Christopher Duncan, the State’s blood-spatter expert, testified that he was
contacted by the Houston Police Department to conduct an analysis of blood
spatter in the car. Duncan spoke with the investigating officers, reviewed the
offense report and the autopsy report, and reviewed scene photographs. He
hypothesized that one of the victims was shot while seated in the front driver’s
seat, and that after the driver was shot he exited the vehicle. It also appeared
someone had gotten into the seat after the victim had been removed. It did not
appear that a person had been shot while sitting in the passenger seat. Duncan
opined that the second person who was injured was “in or around the doorway of
the back right side of the vehicle.” Duncan saw nothing in the physical evidence
that would contradict McCarty’s version of events. Duncan testified that the blood
on the passenger side headrest could have come from McCarty, the driver. He also
testified that, according to the blood-spatter evidence, Hall most likely was shot
when a part of his body was outside the car.

      Louis Akin, the defendant’s blood-spatter expert, hypothesized that
appellant was sitting in the rear passenger seat when he fired the shots. It appeared
Hall dove from the front seat toward the back seat to “go after” the gun as
appellant had reported. Akin testified that whoever left the blood on the passenger
headrest would most likely not have survived. Akin compared gum found on the
bottom of Hall’s shoe with smeared gum on the floor of the front passenger side of
the car. He testified that the two pieces of gum and the way they were positioned
was consistent with appellant’s statement that Hall leapt from the front seat to the
back seat as appellant described.

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      Appellant was convicted of murder and aggravated robbery. In a single
issue, appellant argues the evidence is insufficient to support the jury’s implicit
rejection that he acted in self defense when he shot McCarty and Hall.

                        II.      STANDARD OF REVIEW

      In evaluating the legal sufficiency of the evidence, we view all of the
evidence in the light most favorable to the prosecution to determine whether any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Laster v. State,
275 S.W.3d 512, 517 (Tex. Crim. App. 2009). Because the factfinder views the
evidence first-hand, the factfinder is in the best position to resolve conflicts in
testimony, weigh the evidence, and draw reasonable inferences from the evidence.
See Jackson, 443 U.S. at 319; Laster, 275 S.W.3d at 517 (“[U]nlike the
factfinder—who can observe facial expressions and hear voice inflections first-
hand—an appellate court is limited to the cold record.”). We presume that the
factfinder resolved any conflicts in favor of the verdict and must defer to that
resolution, as long as it is rational. Jackson, 443 U.S. at 326. “After giving proper
deference to the factfinder’s role, we will uphold the verdict unless a rational
factfinder must have had reasonable doubt as to any essential element.” Laster, 275
S.W.3d at 517.

                              III.      ANALYSIS

      To obtain a conviction for murder, the State was required to prove that
appellant (1) intentionally or knowingly caused the death of an individual; or (2)
intended to cause serious bodily injury and committed an act clearly dangerous to
human life that resulted in the death of an individual. Tex. Penal Code §
19.02(b)(1)–(2). A person is justified in using force against another when and to the
degree he reasonably believes the force is immediately necessary to protect himself
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against the other’s use or attempted use of unlawful force. Tex. Penal Code §
9.31(a). A person is justified in using deadly force: (1) if he would be justified in
using force under section 9.31 of the Texas Penal Code; and (2) when and to the
degree he reasonably believes the deadly force is immediately necessary to protect
himself against the other’s use or attempted use of unlawful deadly force. Id. §
9.32(a)(1), (2)(A).

      In resolving the sufficiency of the evidence issue, we look not to whether the
State presented evidence that refuted appellant’s self-defense testimony, but rather
we determine whether after viewing all the evidence in the light most favorable to
the prosecution, any rational trier of fact would have found the essential elements
of murder beyond a reasonable doubt and also would have found against appellant
on the self-defense issue beyond a reasonable doubt. See Saxton v. State, 804
S.W.2d 910, 914 (Tex. Crim. App. 1991); Hernandez v. State, 309 S.W.3d 661,
665 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d). Defensive evidence that is
merely consistent with the physical evidence at the scene of the alleged offense
will not render the State’s evidence insufficient since the credibility determination
of such evidence is solely within the jury’s province and the jury is free to accept
or reject the defensive evidence. Saxton, 804 S.W.2d at 914.

      Appellant admitted shooting both McCarty and Hall after grabbing the gun
from McCarty. McCarty testified that appellant shot him, stole his wallet and
phone, and attempted to steal the PCP. Appellant contends that it was unreasonable
for the jury to reject his argument that he acted in self defense. Appellant argues
that McCarty was not a credible witness and the defense’s theory is supported by
the physical evidence. Specifically, appellant contends the blood evidence revealed
that Hall was most likely not outside of the vehicle when he was shot as the State’s
expert opined. The jury heard conflicting testimony from McCarty and appellant as

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to how the offenses occurred. They also heard conflicting hypotheses from experts
about how the offenses could have occurred. The jury was free to believe
McCarty’s testimony as to how the events occurred. The blood spatter experts
offered hypotheses as to where the bodies might have been positioned, but the fact
that appellant’s theory is supported by his expert witness does not render the
State’s evidence insufficient. See Saxton, 804 S.W.2d at 914.

      Any alleged inconsistencies in the witnesses’ testimony concern the
credibility and weight to be given their testimony. See Lancon v. State, 253 S.W.3d
699, 705–07 (Tex. Crim. App. 2008). To the extent the testimony is inconsistent,
the jury as the trier of fact had the ultimate authority to determine the credibility of
witnesses and the weight to be given to their testimony. See Tex. Code Crim. Proc.
art. 38.04; Garcia v. State, 919 S.W.2d 370, 382 n. 6 (Tex. Crim. App. 1996). Any
inconsistencies in the testimony should be resolved in favor of the jury’s verdict in
a legal-sufficiency review. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App.
1988); Draper v. State, 335 S.W.3d 412, 415 (Tex. App.—Houston [14th Dist.]
2011, pet. ref’d).

      Considering all of the evidence in the light most favorable to the verdict, we
conclude the evidence is sufficient to support the jury’s implicit rejection of
appellant’s claim of self defense. We overrule appellant’s sole issue on appeal and
affirm the judgment of the trial court.




                                          /s/       Tracy Christopher
                                                    Justice

Panel consists of Justices Boyce, Christopher, and Brown.
Do Not Publish — Tex. R. App. P. 47.2(b).

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