                                                                                       ACCEPTED
                                                                                  07-17-00047-CR
                                                                      SEVENTH COURT OF APPEALS
                                                                                AMARILLO, TEXAS
                                                                                 8/2/2017 3:07 PM
                                                                                 Vivian Long, Clerk


                         No. 07-17-00047-CR

                                                                  FILED IN
            In the Court of Appeals for the Seventh      Judicial
                                                           7th COURT OF APPEALS
                                                             AMARILLO, TEXAS
                           District of Texas               8/2/2017 3:07:59 PM
                                                                VIVIAN LONG
                                                                   CLERK
                            In Amarillo, Texas
                           ___________________

                        Alfredo Suarez Jr., Appellant,

                                      v.

                        The State of Texas, Appellee.
                          ___________________

Appeal from Cause Number CR-16C-064 from the 222nd Judicial District Court of
          Deaf Smith County, Texas, Honorable Roland Saul Presiding
                           ___________________

                           Brief for the Appellee
                           ___________________


                                   Chris Strowd
                                   Assistant Criminal District Attorney
                                   235 East Third, Room 401
                                   Hereford, Texas 79045
                                   Telephone: (806) 364-3700
                                   Facsimile: (806) 363-7039
                                   cstrowd@deafsmithcounty.texas.gov
                                   State Bar No. 19425400
                                           Table of Contents
                                                                                                            Page

Statement Regarding Oral Argument …………………………………………iii

Table of Authorities…...…………………………….………………..……..…iii

Statement of the Case ...……………………………….………….…………….2

Statement of Facts.………...…………………………….………..………….8–8

Summary of the Argument …….…………………………………………….9–10

Argument and Authorities:

  Reply to Point of Error One: Viewing the evidence in the light most favorable to
  the prosecution, a rational trier of fact could have found the essential elements of
  the crime of aggravated assault with a deadly weapon beyond a reasonable
  doubt……………………………………………………………...………..10–12

  A. After viewing the evidence in the light most favorable to the prosecution,
     any rational trier of fact could have found that Suarez was the person who
     intentionally, knowingly, or recklessly shot Reyes and Torres with a firearm
     beyond a reasonable doubt…………………………………………….12–13

  B. After viewing the evidence in the light most favorable to the prosecution,
     any rational trier of fact could have found that Suarez shot Reyes and Torres,
     using a deadly weapon, to-wit: a firearm, beyond a reasonable
     doubt.......................................................................................................14–15

Prayer………………………………………………….………..……….…….15

Certificate of Compliance...…………………………………………………...16

Certificate of Service…………………………………………………….…….16




                                                        ii
                     Statement Regarding Oral Argument

      That State is not requesting oral argument.

                              Table of Authorities

Cases:                                                               Page


Barnes v. State, 876 S.W.2d 316 (Tex.Crim.App. 1994)…………………..….…11

Clayton v. State, 235 S.W.3d 772 (Tex.Crim.App. 2007)………………………..10

Curry v. State, 30 S.W.3d 394 (Tex.Crim.App. 2000)…………………..……….12

Fields v. State, 932 S.W.2d 97 (Tex.App.—Tyler 1996, pet. ref’d)…..………….14

Guevara v. State, 152 S.W.3d 45 (Tex.Crim.App. 2004)…………….…………..13

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed. 560
(1979)………...………………………………………………………..…........10, 13

Lancon v. State, 253 S.W.3d 699 (Tex.Crim.App. 2008)…………………….…..15

Lee v. State, 239 S.W.3d 873 (Tex.App.—Waco 2007, pet. ref’d)……………….12

Malik v. State, 953 S.W.2d 234 (Tex.Crim.App. 1997)…………………………..11

Pendleton v. State, No. 07-15-00108-CR (Tex.App.—Amarillo
2015, no pet.) (not designated for publication)……………………………….11, 12

Welch v. State, 993 S.W.2d 690 (Tex.App.—San Antonio 1999, no pet.)……….15


Statutes, Codes, and Rules:

TEX. R. APP. P. 3.2 (West 2003)………………………..…………….................1

TEX. R. EVID. ANN. 702 (Vernon Supp. 2016)…………………………….......14


                                        iii
              In the Court of Appeals for the Seventh Judicial
                             District of Texas
                              ___________________

                               No. 07-17-00047-CR

                           Alfredo Suarez Jr., Appellant,

                                         v.

                           The State of Texas, Appellee.

                              ___________________

Appeal from Cause Number CR-16C-064 from the 222nd Judicial District Court of
          Deaf Smith County, Texas, Honorable Roland Saul Presiding
                           ___________________

                              Brief for the Appellee
                              ___________________


To the Honorable Justices of the Court of Appeals:

    COMES NOW the State of Texas, in the above-entitled and numbered cause,

and respectfully submits this Reply Brief. Based on Rule 3.2 of the Texas Rules of

Appellate Procedure, the parties will be referred to by their real names. Citation to

the Clerk’s Record will be “C” and a page number and citation to the Reporter’s

Record will be first to the volume number, then “R,” followed by page number(s).




                                          1
                               Statement of the Case

     Alfredo Suarez Jr., appellant, was charged in a two-count indictment with the

offenses of aggravated assault with a deadly weapon. (C. 4–5). These offenses

were alleged to have occurred on the same day, and the deadly weapon for each

was described in the indictment as a firearm. Id. The indictment also included

enhancement paragraphs that, if true, would raise the level of offense from a

second-degree felony to a first. Id.

     When the case was called for trial, both parties announced ready. (3 R. 14).

The jury returned guilty verdicts for the indicted charges. (C. 53). And Suarez

pleaded true to the enhancement paragraphs. (5 R. 52–53). Having elected the jury

to assess punishment, they returned a verdict of 15 years’ and 5 years’ confinement

on count one and two, respectively, finding the enhancement paragraphs true. (C.

40, 54–59). Notice of appeal was timely filed on January 20, 2017. (C. 41).

                                 Statement of Facts

1. Gunfire at the Cowboy Car Wash.

     On the evening of February 8, 2016, Luis Reyes (Reyes), the victim alleged in

count one, was at his house working on his truck along with Omero Torres

(Torres), the victim alleged in count two. (3 R. 203; 4 R. 116; C. 4). Afterwards,

Reyes agreed to drive Torres into town to his father’s home. (4 R. 117). They left

together in Reyes’s gray Mitsubishi Eclipse—Reyes was driving and Torres was

                                         2
riding in the passenger seat. (3 R. 204, 206). Before dropping Torres off, they

stopped at a dollar store and Reyes bought glass cleaner and towels. (4 R. 117).

They then drove to the Cowboy Car Wash to clean the interior of Reyes’s vehicle.

(3 R. 203–04; 4 R. 118). At the car wash, Reyes parked his vehicle by a vacuum

cleaner station. (3 R. 136; 7 R. State’s 31-B).

     While at the vacuum cleaner station, Reyes heard Torres state, “Here is –

Tejano is coming. Let’s get out of here. Let’s get out of here.” (4 R. 119).

Sometime earlier, “Tejano” had threatened to kill Reyes. (4 R. 115). At the time

of this earlier threat, Reyes was standing outside his residence and “Tejano” was in

a green pickup. Id. Reyes, however, did not drive away from the car wash because

he claimed to not be afraid of “Tejano.” (4 R. 119).

     “Tejano” was identified by Reyes and Torres to be Suarez. (3 R. 119–23, 125,

201; 4 R. 18, 113). Torres stated in court that he knows Suarez as “Tejano.” (3 R.

201). Daniel Garcia, a Hereford Police Department officer, also knew that Suarez

went by the name “Tejano.” (3 R. 169–70).

     Reyes recognized Suarez as the driver of the green Ford pickup. (4 R. 123).

Suarez was alone in the vehicle and stopped by Reyes’s vehicle. (4 R. 119–20).

When Suarez got out of his pickup, Reyes saw that he had a gun in his hand as he

walked up to Reyes’s vehicle. (4 R. 119–20, 123–25). Next, Reyes heard a loud




                                          3
noise and felt pain. (4 R. 120–21). Reyes then heard Suarez state that the next time

he would kill him. Id.

    Meanwhile across the street at the Fast Stop convenience store, Savannah Soto

(Soto), a clerk, heard a pop that sounded like fireworks and saw a Ford pickup

pulling away from the car wash. (3 R. 223–26). A man then entered the store and

claimed to have been shot and wanted her to call the police. Id. He told her that he

was with a friend and that he thought his friend was dying. (3 R. 226–27). When

Soto saw blood, she realized it was not a prank and called 911. Id. The 911 call

she made was at approximately 8:34 P.M.—she told the 911 operator that a person

had been shot at the car wash next to Fast Stop. (3 R. 30-31; 7 R. State’s 1). After

Soto reported the shooting, the man left the store and walked back towards the car

wash. (3 R. 229).

    Reyes drove Torres to the Hereford Regional Medical Center (HRMC)

emergency room because he was bleeding from his arm. (4 R. 126). Instead of

staying at the hospital with Torres, Reyes drove home. (4 R. 127–28). Surveillance

cameras at the hospital recorded Torres being dropped off from a small gray

vehicle and Torres entering the emergency room lobby. (7 R. State’s 2).

    At HRMC, Torres was initially assessed by Rita San Miguel (San Miguel), a

registered nurse. (3 R. 37, 40). While being assessed, he repeatedly told San

Miguel that he had been shot. (3 R. 40, 42–43). San Miguel noticed that he was


                                         4
bleeding from his arm from what she described as entry and exit wounds. (3 R.

46). The injury appeared to her to be a gunshot wound. Id. Dr. Earl Chase, an

emergency room physician, described the trauma to Reyes’s arm as a penetrating

injury to the right forearm that was consistent with a gunshot wound. (3 R. 102,

106–08). After the initial medical treatment at HRMC, Torres was transferred to

Northwest Texas Hospital in Amarillo. (3 R. 45).

    Later, Reyes was brought by ambulance from his residence to the HRMC

emergency room. (3 R. 46; 4 R. 59–61). He had what appeared to be a gunshot

injury to his face. Id. The medical records for Torres and Reyes were admitted into

evidence. (3 R. 41–42; 7 R. State’s 36 & 37). The paramedic who treated Reyes at

his residence stated in the medical records that Reyes’s injury was a gunshot

wound to the face, but that the incident had occurred at a different location while

Reyes was sitting in his vehicle. (4 R. 55–56; 7 R. State’s 36). Reyes told the

paramedic that while he was sitting in his vehicle, he looked towards the driver’s

side window before being shot in the face with a pistol. (3 R. 54).

    Once Reyes arrived at the emergency room, he was treated by Dr. John

Thomas Gregg, a surgeon who headed the trauma team at HRMC. (4 R. 89–92).

He described Reyes’s injury as a penetrating injury that disrupted teeth and

fractured the underlying top of his mandible. Id. According to Dr. Gregg, the

injury to Reyes was consistent with a gunshot wound. (4 R. 95). And based on the


                                          5
severity of this injury, Reyes too was transferred to Northwest Texas Hospital for

further medical treatment. (4 R. 94).

2. The trail to Alfredo Suarez Jr.

    The Cowboy Car Wash was equipped with surveillance cameras, and the

police accessed the video recordings of this incident. (3 R. 153). Segments of

these recordings were played in court. (3 R. 153–55; 7 R. State’s 31-B). In the

video, Reyes’s car is seen parked next to a vacuum cleaner station. (3 R. 136, 155–

57; 7 R. State’s 31-B). The camera then recorded a green Ford pickup driving

along the front of Reyes’s parked vehicle and stopping next to it; the driver of this

vehicle is then seen on the video getting out and approaching the driver’s side door

of Reyes’s vehicle. (3 R. 155–57; 7 R. State’s 31-B). This same person is also

seen leaning in towards Reyes’s vehicle. Id. Next, Torres is seen getting out of

Reyes’s vehicle from the passenger side and quickly walking towards the Fast Stop

convenience store. Id. While Torres is walking away, he is seen on the video

shaking his right arm and looking over his left shoulder in the direction of Reyes’s

parked vehicle. (7 R. State’s 31-B). The camera also captured the driver of the

green Ford pickup getting back into his vehicle and driving away as Reyes’s

vehicle remained at the vacuum cleaner station. Id.

    The police photographed the crime scene, including the blood trail that led

from the car wash to the convenience store. (3 R. 130; 7 R. State’s 62–63, 66, 70–


                                          6
82, 93–120; 8 R. 121–30, 132–33). Blood was also discovered inside Reyes’s

vehicle along with a human tooth. (4 R. 83, 85–86; 7 R. State’s 26-A). A firearm

was never recovered; however, bullet fragments were discovered in various

locations at and near the vacuum cleaner station where Reyes had parked his car

that evening. (3 R. 158–59; 4 R. 67, 70–72, 74–77). These fragments were marked

and photographed in their location by the police. (4 R. 72–73; 8 R. 169–76, 178–

81).

       When Reyes arrived home that evening, he told his wife that “Tejano” had hit

him. (4 R. 130). While in the emergency room, he identified “El Tejano” as the

person responsible for his injuries. (4 R. 31). And while he was in the hospital in

Amarillo, Kirsten Williams, a Hereford police officer that was not directly

involved in the investigation, presented to Reyes a photographic lineup that

consisted of six photographs. (3 R. 119–23). Reyes identified the photograph of

Suarez as the person responsible for shooting him. (3 R. 119–23; 4 R. 133, 135).

His level of certainty in this identification was 100%. (3 R. 125).

       The investigation was furthered when Martin Hood (Hood), a Texas Ranger,

met with Torres to get a recorded statement from him concerning this incident. (3

R. 175–76). During this meeting, Torres appeared to be afraid and in hiding. (4 R.

10, 14). Hood showed him a photographic lineup. (3 R. 178–80). Although Torres




                                          7
was reluctant to cooperate, he selected the photograph of Suarez from the lineup,

indicating a level of certainty of 100%. (3 R. 178–80; 4 R. 18).

    The police attempted to identify and locate the green Ford pickup that was

used by the shooter. Officer Garcia went to Suarez’s residence. (3 R. 181–82).

Parked at this residence was a green Ford pickup. Id. Officer Garcia took

photographs of this vehicle, which were admitted at trial. (3 R. 182–83; 7 R.

State’s 136–37). This vehicle was registered to Suarez’s father. (3 R. 184). It

was further described as a green, extended cab Ford pickup with a gold or copper

stripe; it had a Whiteface Ford sticker just below the tailgate handle, a toolbox in

its bed, and damage to its left rear fender. (3 R. 184–86). In officer Garcia’s

opinion, the pickup parked at Suarez’s residence was the same one that was used

during the shooting and captured on the car wash video. (3 R. 186–87). Erik

Huerta, a Deaf Smith County deputy, testified that he had seen Suarez driving the

same green Ford pickup that was recorded on the car wash video. (4 R. 43). And

Hereford Police Department corporal Somchai Thongngoen testified that in the

past, he had conducted a traffic stop on Suarez while he was driving a green,

extended cab Ford pickup. (3 R. 88–89). Further, in his opinion, the pickup on the

car wash video appeared to be the same one driven by Suarez during the traffic

stop. (3 R. 89–91).




                                          8
                            Summary of the Argument

    The evidence was legally sufficient to support the conviction of Suarez in

count one and two of the indictment for the offense of aggravated assault with a

deadly weapon. Reyes, the victim alleged in count one, identified Suarez by the

street name “Tejano.” During the investigation, Reyes selected Suarez from a

photographic lineup as the one responsible for his injuries. Reyes also identified

Suarez in court as the person who injured him. Reyes saw Suarez with a pistol in

his hand as he approached his vehicle at the car wash on the evening of the

shooting. Torres, the victim alleged in count two, also selected Suarez from a

photographic lineup conducted during the investigation. He too testified in court

that he knew Suarez as “Tejano.” The vehicle used by the shooter was the same

vehicle that had been previously used by Suarez. This same vehicle was parked at

Suarez’s residence after the shooting.

    A firearm was used by Suarez to cause the injuries to Reyes and Torres. The

penetrating injuries to both Reyes and Torres were described by medical

professionals as being consistent with gunshot wounds. Bullet fragments were

found by the police at the crime scene. That evening, a clerk at a nearby

convenience store heard a pop that sounded like fireworks. And Reyes and Torres

both claimed to have been shot. The evidence, viewed in the light most favorable

to the verdict, supports the conclusion that a rational juror could find beyond a


                                          9
reasonable doubt that Suarez committed the offenses with a deadly weapon as

alleged in the indictment.

                             Argument and Authorities

    Reply to Point of Error One: Viewing the evidence in the light most
favorable to the prosecution, a rational trier of fact could have found the
essential elements of the crime of aggravated assault with a deadly weapon
beyond a reasonable doubt.

     Under point of error one, Suarez essentially argues that the evidence was

legally insufficient to connect him to a firearm and to the shooting. (Appellant’s

brief at 27–28). The State asserts that there was ample evidence to identify Suarez

as the perpetrator of these offenses.

     In applying the legal sufficiency standard set out in Jackson v. Virginia, “the

relevant question is whether, after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt. Clayton v. State, 235 S.W.3d 772, 778

(Tex. Crim. App. 2007) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.

2781, 61 L.Ed. 560 (1979) (emphasis in original). This standard accounts for the

fact finder’s duty “to resolve conflicts in the testimony, to weigh the evidence, and

to draw reasonable inferences from basic facts to ultimate facts.” Id. “Therefore,

in analyzing legal sufficiency, [the court] determines whether the necessary




                                          10
inferences are reasonable based upon the combined and cumulative force of all the

evidence when viewed in the light most favorable to the verdict.” Id.

     The review of “all the evidence includes evidence that was properly and

improperly admitted.” Id. “When the record supports conflicting inferences, the

[court] presumes that the fact finder resolved the conflicts in favor of the

prosecution and therefore defer to that determination.” Id. “Direct and

circumstantial evidence are treated equally: circumstantial evidence is as probative

as direct evidence in establishing the guilt of an actor, and circumstantial evidence

alone can be sufficient to establish guilt.” Id. The fact finder is the sole judge of

the credibility of the witnesses and of the weight to be afforded their testimony.

Barnes v. State, 876 S.W.2d 316, 321 (Tex.Crim.App. 1994).

      “The sufficiency standard set forth in Jackson is measured against a

hypothetically correct jury charge.” Pendleton v. State, No. 07-15-00108-CR at 7

(Tex. App.—Amarillo 2015, no pet.) (not designated for publication); see Malik v.

State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically correct

jury charge will accurately state the law, is authorized by the indictment, will not

increase the State’s burden of proof nor restrict the State’s theories of liability, and

will adequately describe the offense for which the defendant was tried. Id. The

statutory elements of the offense as supplemented by the charging instrument is the




                                           11
law as authorized by the indictment. Pendleton v. State, No. 07-15-00108-CR at 7;

Curry v. State, 30 S.W.3d 394, 404 (Tex.Crim.App. 2000).

     In the instant case, the indictment charged Suarez with intentionally,

knowingly, or recklessly causing bodily injury to Luis Reyes and Omero Torres by

shooting them with a firearm. (C. 4). On appeal, Suarez has not complained of the

trial court’s charge, nor any other element of the charged offense other than

identity and the use of a firearm.

A. After viewing the evidence in the light most favorable to the prosecution,
   any rational trier of fact could have found that Suarez was the person who
   intentionally, knowingly, or recklessly shot Reyes and Torres with a
   firearm beyond a reasonable doubt.

     In Lee v. State, the court found that the evidence was legally sufficient to

show that the defendant was the person who shot the victim, as an element of

aggravated assault, because the victim identified the defendant from a

photographic lineup and identified the defendant as the shooter at trial. 239 S.W.3d

873, 878 (Tex. App.—Waco 2007, pet. ref’d).

     In the instant case, there was both direct and circumstantial evidence that

established the identity of the shooter. Suarez was identified by Reyes and Torres

from photographic lineups. Each knew Suarez by the street name “Tejano.” Reyes

consistently stated that “Tejano” was responsible for his injury. Even officer




                                          12
Garcia knew that Suarez went by the name “Tejano.” In court, Reyes identified

Suarez as the shooter.

     The vehicle used in the shooting, and captured on the car wash video, was

shown to have been driven in the past by Suarez. This same vehicle was

discovered parked at Suarez’s residence after the shooting. And Suarez had

threatened to kill Reyes before the shooting took place.

     While Torres refused to identify Suarez in court as the shooter, the jury was

entitled to weigh and judge the credibility of Torres, fairly resolve conflicts in

testimony, weigh all the evidence, and draw reasonable inferences from basic facts

to ultimate facts. Jackson v. Virginia, 443 U.S. at 318–19, 99 S. Ct. 2781, 61

L.Ed.2d 560 (1979). In short, the jury was free to disregard Torres’s trial

testimony in favor of his pretrial identification of Suarez and accept Reyes’s

testimony along with the other evidence that established Suarez’s identity as the

shooter. Each fact need not point directly and independently to the defendant’s

guilt, as long as the cumulative effect of all the incriminating facts is sufficient to

support the conviction. Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App.

2004). Reyes and Torres were both injured inside the vehicle because of the

shooting at the car wash. Suarez was identified as that shooter. After viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential element of identity beyond a reasonable doubt.


                                           13
B. After viewing the evidence in the light most favorable to the prosecution,
   any rational trier of fact could have found that Suarez shot Reyes and
   Torres, using a deadly weapon, to-wit: a firearm, beyond a reasonable
   doubt.

    The use of expert testimony is admissible if it will help the jury understand the

evidence or determine a fact in issue. Fields v. State, 932 S.W.2d 97, 108 (Tex.

App.—Tyler 1996, pet. ref’d); see TEX. R. EVID. ANN. 702 (Vernon Supp.

2016). “An expert witness is one who will testify to matters requiring ‘scientific,

technical, or other specialized knowledge.’” Id. The expert’s qualifications may be

based on his “knowledge, skill, experience, training, or education.” Id. Suarez has

not challenged Dr. Chase or Dr. Gregg’s expertise in the field of medicine.

    The testimony of Dr. Chase and Dr. Gregg, as fact and expert witnesses,

helped the jury understand the nature of the injury to Reyes and Torres. The

testimony of paramedic Nathaniel Miller also assisted the jury in this regard. The

doctors described each injury as penetrating and consistent with a gunshot wound.

Reyes testified that he was shot. Bullet fragments were found at the scene of the

crime by officers Garcia and Ruland. The clerk at the Fast Stop stated that she

heard a loud pop that sounded like fireworks. Torres told the clerk that he had

been shot. As noted above, the probative value of direct and circumstantial

evidence is the same. In the instant case, both types of evidence were present. The

jury was free to believe Dr. Chase and Dr. Gregg and concluded that the injuries


                                         14
were gunshot wounds. The jury was also free to believe that the bullet fragments

that were recovered by the police at the crime scene were the same ones that had

been used in a firearm that ultimately caused the injuries to Reyes and Torres. It is

within the exclusive purview of the jury to determine the credibility of the

witnesses and the weight to be given their testimony. Lancon v. State, 253 S.W.3d

699, 707 (Tex. Crim.App. 2008). A jury is entitled to accept one version of the

facts and reject another, or reject any part of a witness’s testimony. Id. The jury

also maintains the power to draw reasonable inferences from basic facts to ultimate

facts. Welch v. State, 993 S.W.2d 690, 693 (Tex. App.—San Antonio 1999, no

pet.). After viewing this evidence in the light most favorable to the prosecution,

any rational trier of fact could have found the essential element that a deadly

weapon, to-wit: a firearm, was used by Suarez to shoot Reyes and Torres beyond a

reasonable doubt.

                                       Prayer

     Because the cumulative evidence supported a rational juror’s finding that

Suarez was guilty of aggravated assault with a deadly weapon as alleged in count

one and two of the indictment, the State prays the Court overrule Suarez’s point of

error and affirm the judgment of the trial court.




                                          15
                                       Respectfully submitted,


                                       /s/ Chris Strowd
                                       Chris Strowd
                                       Assistant Criminal District Attorney
                                       235 East Third, Room 401
                                       Hereford, Texas 79045
                                       Telephone: (806) 364-3700
                                       Facsimile: (806) 363-7039
                                       Email: cstrowd@deafsmithcounty.texas.gov
                                       State Bar No. 19425400


                            Certificate of Compliance

      The undersigned certifies that according to the Microsoft Word count
tool, this document contains 4,166 words.


                                       /s/ Chris Strowd
                                       Assistant Criminal District Attorney
                                       Deaf Smith County, Texas


                                  Certificate of Service

      This is to certify that a true and correct copy of the above and foregoing
Brief for the State has been served on W. Brooks Barfield Jr., attorney for
appellant, by placing a copy into the United States mail addressed to P.O. Box
308, Amarillo, Texas 79105, on August 2, 2017.

                                       /s/ Chris Strowd
                                       Chris Strowd




                                         16
                                                                                                                  Page 1




Caution
As of: Aug 02, 2017

                      ODELL BARNES, JR., Appellant v. THE STATE OF TEXAS, Appellee

                                                        No. 71,291

                                   COURT OF CRIMINAL APPEALS OF TEXAS

                                   876 S.W.2d 316; 1994 Tex. Crim. App. LEXIS 21


                                              February 9, 1994, Delivered

SUBSEQUENT HISTORY:                 [**1] As Amended           appellant's conviction, as well as the jury's finding of
March 21, 1994.                                                future dangerousness. The court also rejected appellant's
Rehearing denied by, 03/23/1994                                assertion that the trial court erred in sustaining a prose-
Writ of certiorari denied Barnes v. Texas, 513 U.S. 861,       cutorial challenge for cause to a jury venireperson where
115 S. Ct. 174, 130 L. Ed. 2d 110, 1994 U.S. LEXIS 6187        the person was a perfect example of a vacillating veni-
(1994)                                                         reman on the death penalty issue. The court found no
Writ of habeas corpus denied, Certificate of appealability     error in the admission of six photographs of the victim,
denied Barnes v. Johnson, 184 F.3d 816, 1999 U.S. App.         holding that their probative value was not outweighed by
LEXIS 17458 (5th Cir. Tex., 1999)                              the danger of unfair prejudice. In addition, the court
                                                               found no error in the denial of appellant's reasonable
PRIOR HISTORY:             Appeal from LUBBOCK                 doubt instruction even though recent precedent required
County on Change of Venue from WICHITA County                  such an instruction because the precedent was only to be
                                                               applied prospectively. The court also found no error in
DISPOSITION:         Finding no reversible error, we af-       the placement of the burden of proving mitigating factors
firm the judgment of the trial court.                          on appellant because neither legislation nor the constitu-
                                                               tion required the prosecution to negate mitigating cir-
CASE SUMMARY:                                                  cumstances.

                                                               OUTCOME: The court affirmed appellant's capital
PROCEDURAL POSTURE: Appellant sought review                    murder conviction, rejecting his arguments that the evi-
of his conviction of capital murder pursuant to Tex. Pe-       dence did not support his conviction, that the trial court
nal Code Ann. § 19.03(a)(2), entered in the Lubbock            erred in sustaining a prosecutorial challenge for cause,
County Court (Texas), asserting that the evidence was          that photographs were improperly admitted, that his rea-
insufficient to sustain his conviction and sentence, and       sonable doubt instruction was improperly refused, and
that the trial court committed various error relating to       that the burden of proving mitigating factors was im-
jury selection, evidence admission, and jury instruction,      properly placed upon him.
inter alia.
                                                               LexisNexis(R) Headnotes
OVERVIEW: Appellant was convicted of capital mur-
der after he stabbed and beat his victim in the course of a
robbery or burglary, then shot her point blank through
the head. He appealed, asserting various error. The court      Criminal Law & Procedure > Appeals > Standards of
affirmed. It first found the evidence sufficient to sustain    Review > Substantial Evidence > General Overview
                                                                                                                 Page 2
                                876 S.W.2d 316, *; 1994 Tex. Crim. App. LEXIS 21, **


Evidence > Procedural Considerations > Weight &               [HN5] In reviewing the sufficiency of the evidence at the
Sufficiency                                                   punishment phase, an appellate court views the evidence
[HN1] In reviewing a sufficiency question, an appellate       in the light most favorable to the verdict and determine
court must view the evidence in the light most favorable      whether any rational trier of fact could make the finding
to the verdict and determine whether any rational trier of    beyond a reasonable doubt. The burden is on the state to
fact could have found the essential elements of the crime     prove punishment issues beyond a reasonable doubt. Tex.
beyond a reasonable doubt. Where the state's case is          Code Crim. Proc. Ann. art. 37.071(c).
based on circumstantial evidence and was tried prior to
the 1991 decision abandoning the exclusion of the rea-
sonable hypothesis standard, an appellate court will use      Criminal Law & Procedure > Sentencing > Imposition
the exclusion of reasonable hypotheses approach as the        > Factors
method for analyzing sufficiency. It is not necessary that    Evidence > Scientific Evidence > Psychiatric & Psy-
every fact point directly and independently to a defend-      chological Evidence
ant's guilt. It is enough if the conclusion is warranted by   [HN6] A jury is permitted to consider a variety of factors
the combined and cumulative force of all the incriminat-      when determining whether a defendant will pose a con-
ing circumstances.                                            tinuing threat to society. Among those factors are: the
                                                              circumstances of the capital offense, including the de-
                                                              fendant's state of mind and whether he was working
Criminal Law & Procedure > Appeals > Standards of             alone or with other parties; the calculated nature of the
Review > General Overview                                     defendant's acts; the forethought and deliberateness ex-
Evidence > Procedural Considerations > Weight &               hibited by the crime's execution; the existence of a prior
Sufficiency                                                   criminal record, and the severity of the prior crimes; the
[HN2] In reviewing the evidence, it is proper to consider     defendant's age and personal circumstances at the time of
the events that occurred before, during, and after the        the offense; whether the defendant was acting under du-
commission of an offense.                                     ress or the domination of another at the time of the of-
                                                              fense; psychiatric evidence; and character evidence. This
                                                              list is not exhaustive.
Criminal Law & Procedure > Juries & Jurors > Prov-
ince of Court & Jury > General Overview
Criminal Law & Procedure > Witnesses > Credibility            Criminal Law & Procedure > Sentencing > Imposition
Evidence > Procedural Considerations > Weight &               > Factors
Sufficiency                                                   [HN7] In its determination of special issues, a jury is
[HN3] The jury is the exclusive judge of the credibility      entitled to consider all the evidence presented at the
of witnesses and of the weight to be given their testimo-     guilt/innocence phase of the trial, in addition to the evi-
ny.                                                           dence presented at the punishment phase. The circum-
                                                              stances of the offense and the events surrounding are
                                                              sometimes sufficient in themselves to sustain a yes an-
Criminal Law & Procedure > Appeals > Standards of             swer to the second special issue regarding future dan-
Review > Substantial Evidence > General Overview              gerousness.
Evidence > Procedural Considerations > Weight &
Sufficiency
[HN4] An appellate court must hold the evidence suffi-        Criminal Law & Procedure > Criminal Offenses >
cient if the exculpatory aspects of an appellant's version    Homicide > Murder > General Overview
of events necessarily contradict or conflict with inculpa-    Criminal Law & Procedure > Accusatory Instruments
tory inferences drawn from other circumstantial evidence      > Indictments > General Overview
presented by the state, and when all the evidence viewed      [HN8] An indictment need not allege the constituent
in the light most favorable to the verdict would rationally   elements of the aggravating feature which elevates mur-
support a jury verdict of guilt to a degree of confidence     der to capital murder.
beyond a reasonable doubt.

                                                              Criminal Law & Procedure > Juries & Jurors > Chal-
Criminal Law & Procedure > Appeals > Standards of             lenges to Jury Venire > General Overview
Review > General Overview                                     Criminal Law & Procedure > Trials > Judicial Discre-
Evidence > Procedural Considerations > Weight &               tion
Sufficiency
                                                                                                                 Page 3
                                876 S.W.2d 316, *; 1994 Tex. Crim. App. LEXIS 21, **


[HN9] Where more than 100 jurors are called for regular       cumstances unique to each individual case should also be
service, the decision to grant a special venire is within     considered.
the discretion of the trial court. Tex. Code Crim. Proc.
Ann. art. 34.01.
                                                              Criminal Law & Procedure > Witnesses > Presentation
                                                              Criminal Law & Procedure > Jury Instructions > Par-
Criminal Law & Procedure > Juries & Jurors > Chal-            ticular Instructions > General Overview
lenges to Jury Venire > Death Penalty > General Over-         [HN14] Error in admitting improper testimony may be
view                                                          corrected by a withdrawal and an instruction to disregard
[HN10] In a capital case, the state is entitled to jurors     unless it appears the evidence is clearly calculated to
who will impartially consider and decide the facts and        inflame the minds of the jury and is of such character as
conscientiously apply the law as charged by the court.        to suggest the impossibility of withdrawing the impres-
                                                              sion produced on their minds.

Criminal Law & Procedure > Juries & Jurors > Chal-
lenges to Jury Venire > Bias & Prejudice > General            Criminal Law & Procedure > Search & Seizure >
Overview                                                      Search Warrants > Affirmations & Oaths > General
Criminal Law & Procedure > Juries & Jurors > Chal-            Overview
lenges to Jury Venire > Equal Protection Challenges >         [HN15] Generally, incorporating the appendices to an
General Overview                                              affidavit by reference is preferred. It does not invariably
[HN11] Tex. Code Crim. Proc. Ann. art. 35.14 provides         follow that absent such an incorporation the affidavit
a vehicle with which to exclude potential jurors that an      must fail.
advocate believes are prejudiced against his cause. These
peremptory challenges may be made for any reason so
long as they are not exercised in a racially discriminatory   Criminal Law & Procedure > Search & Seizure >
manner. Tex. Code Crim. Proc. Ann. art. 35.261.               Search Warrants > Affirmations & Oaths > General
                                                              Overview
                                                              [HN16] Affidavits for search warrants must be tested and
Criminal Law & Procedure > Juries & Jurors > Chal-            interpreted by magistrates and courts in a common sense
lenges to Jury Venire > Death Penalty > General Over-         and realistic fashion.
view
Criminal Law & Procedure > Juries & Jurors > Per-
emptory Challenges > General Overview                         Criminal Law & Procedure > Jury Instructions > Par-
Criminal Law & Procedure > Sentencing > Capital               ticular Instructions > Reasonable Doubt
Punishment > Death-Qualified Jurors                           [HN17] Although a definitional instruction of the term
[HN12] Subject to the constraints of Tex. Code Crim.          reasonable doubt is now required by recent case law, this
Proc. Ann. art. 35.261, a party need not assign a reason      holding is applied prospectively only.
for exercising his peremptory strikes, even where the
discernable purpose of the strike is to exclude a prospec-
tive juror who is not in favor of the death penalty.          Criminal Law & Procedure > Trials > Continuances
                                                              Criminal Law & Procedure > Trials > Defendant's
                                                              Rights > Right to Fair Trial
Evidence > Demonstrative Evidence > Photographs               Criminal Law & Procedure > Witnesses > Presentation
Evidence > Relevance > Confusion, Prejudice & Waste           [HN18] If a witness's name is not furnished a defendant
of Time                                                       before trial despite a court order, any error in allowing
[HN13] A court may consider many factors in determin-         that witness to testify over a claim of surprise is made
ing whether the probative value of evidence is substan-       harmless by defendant's failure to object or move for a
tially outweighed by the danger of unfair prejudice.          continuance.
These factors include: the number of exhibits offered,
their gruesomeness, their detail, their size, whether they
are in color or black and white, whether they are             Criminal Law & Procedure > Sentencing > Capital
close-up, and whether the body depicted is clothed or         Punishment > Bifurcated Trials
naked. A court, however, should not be limited by this        Criminal Law & Procedure > Sentencing > Guidelines
list. The availability of other means of proof and the cir-   > Adjustments & Enhancements > Criminal History >
                                                              General Overview
                                                                                                                      Page 4
                                  876 S.W.2d 316, *; 1994 Tex. Crim. App. LEXIS 21, **


Criminal Law & Procedure > Sentencing > Imposition
> Evidence                                                       Criminal Law & Procedure > Juries & Jurors > Jury
[HN19] A trial court may admit any evidence it deems             Nullification > Jury Instructions
relevant to sentencing at the punishment phase of a capi-        Criminal Law & Procedure > Jury Instructions > Par-
tal murder trial.                                                ticular Instructions > General Overview
                                                                 Criminal Law & Procedure > Sentencing > Capital
                                                                 Punishment > Mitigating Circumstances
Criminal Law & Procedure > Trials > Judicial Discre-             [HN24] In instances where mitigating evidence is pre-
tion                                                             sented, all that is constitutionally required is a vehicle by
Criminal Law & Procedure > Sentencing > Imposition               which the jury is able to consider and give effect to the
> General Overview                                               mitigating evidence relevant to a defendant's back-
Evidence > Procedural Considerations > Exclusion &               ground, character, or the circumstances of the crime.
Preservation by Prosecutor                                       This vehicle commonly takes the form of a jury nullifi-
[HN20] That a defendant committed another crime while            cation instruction or a fourth special issue.
already on probation for other offenses has a bearing on
the question of whether he would pose a future danger to
society. Tex. Code Crim. Proc. Ann. art. 37.071(b)(2).           Criminal Law & Procedure > Sentencing > Capital
                                                                 Punishment > Mitigating Circumstances
                                                                 [HN25] It is not unconstitutional to place a burden on a
Criminal Law & Procedure > Appeals > Standards of                defendant to establish sufficient mitigating circumstances
Review > Abuse of Discretion > Evidence                          by a preponderance of the evidence.
Evidence > Procedural Considerations > Exclusion &
Preservation by Prosecutor
[HN21] Absent a clear abuse of discretion, a trial court's       Criminal Law & Procedure > Sentencing > Capital
ruling on the admission of evidence will not be dis-             Punishment > Mitigating Circumstances
turbed.                                                          [HN26] Neither legislation nor constitution places a
                                                                 burden of proof upon the state to negate the existence of
                                                                 mitigating evidence.
Criminal Law & Procedure > Appeals > Standards of
Review > General Overview                                        COUNSEL: For Appellant: Reginald R. Wilson, Wichi-
Evidence > Procedural Considerations > Exclusion &               ta Falls, Tx. Marty Cannedy, Wichita Falls, Tx.
Preservation by Prosecutor
[HN22] A trial court need never sort through challenged          For Appellee: Barry L. Macha, D. A. & John W. Brash-
evidence in order to segregate the admissible from the           er, Asst. D. A., Wichita Falls, Tx. Robert Huttash, State's
excludable, nor is a trial court required to admit only the      Attorney, Austin, Tx.
former part or exclude only the latter part. If evidence is
offered and challenged which contains some of each, a            JUDGES: EN BANC. McCormick, Baird
trial court may safely admit it all or exclude it all, and the
losing party, no matter who he is, will be made to suffer        OPINION BY: PER CURIAM
on appeal the consequences of his insufficiently specific
offer or objection.                                              OPINION

                                                                  [*319] OPINION
Evidence > Hearsay > Rule Components > Nonverbal
                                                                      Appellant was convicted of the offense of capital
Conduct
                                                                 murder under V.T.C.A. Penal Code, § 19.03 (a)(2). The
Evidence > Procedural Considerations > Exclusion &
                                                                 offense originated in Wichita County, where appellant
Preservation by Prosecutor
                                                                 was indicted. Pursuant to defense motion, venue was
Evidence > Procedural Considerations > Rulings on
                                                                 changed to Lubbock County. The jury answered the spe-
Evidence
                                                                 cial issues affirmatively and punishment was assessed
[HN23] A trial court is not required, in the face of a
                                                                 accordingly at death. Article 37.071(b), V.A.C.C.P. 1
global hearsay objection, to cull through a defendant's
                                                                 Appeal to this Court is automatic. Article 37.071(h).
pen packet and exclude whatever particular matters he
                                                                 Appellant raises fifteen points of error. We will affirm.
may find there that meet that description. Tex. R. Crim.
Evid. 103(a)(1).
                                                                                                                  Page 5
                                  876 S.W.2d 316, *; 1994 Tex. Crim. App. LEXIS 21, **


        1     Unless otherwise indicated, all references to      and Wednesday, November [*320] 29th. The gun was
        articles are to those in the Texas Code of Crimi-        fully loaded at that time. Wilson had suggested Bass
        nal Procedure.                                           keep the gun in her bedroom.

 [**2] Sufficiency of the Evidence.                                     3    The transaction papers filled out when Wil-
                                                                        lie Bass purchased the gun list the gun's serial
     In his fourth point of error, appellant contends that
                                                                        number as NB003602. The gun recovered by the
the evidence is insufficient to establish his guilt. In his
                                                                        police, see text post, bears the same serial num-
fifth point of error, he asserts that the evidence is insuffi-
                                                                        ber.
cient to establish any of the aggravating circumstances
required to raise murder to a capital offense, in this case,           Bass' bedroom was found in disarray. Dresser
burglary or robbery. 2 He further argues the evidence is         drawers had been moved and some pulled out. The con-
insufficient to show appellant intended to cause the death       tents of two purses had been dumped out onto the bed.
of Helen Bass.                                                   Bass' checkbook was on the floor. A coin purse was
                                                                 found open. A jewelry box was open and appeared to
        2     In appellant's indictment it was alleged he        have been gone through. An identification card and per-
        committed murder in the course of committing             sonal papers belonging to Bass were found outside near
        burglary, robbery, and aggravated sexual assault.        her chain-link fence. Approximately $ 200 cash was also
        V.T.C.A. Penal Code, § 19.03(a)(2). At trial,            found in the home.
        however, the trial court instructed the jury as to
                                                                      Johnny Ray Humphrey, appellant's co-worker, had
        the aggravating offenses of robbery and burglary
                                                                 been with appellant at approximately [**5] 10:00 p.m.
        only.
                                                                 on November 29th, when he dropped appellant off near
      The evidence at trial established the following:           his home. Appellant was wearing dark-colored coveralls.
Bass returned home from work at approximately 11:30              At approximately 10:30 p.m., Robert Brooks, a neighbor,
p.m. on November 29, 1989. The next day, Nary Barnes,            saw appellant in Bass' yard. Appellant hurdled Bass'
appellant's mother and Bass' friend, went to Bass' home          wooden fence, fell down, and rolled into the street. Ap-
to pick her up for work. No one answered the door. After         pellant then got up and went back over Bass' chain-link
[**3] arriving at work Barnes became concerned and               fence. 4 Brooks testified appellant was wearing dark
phoned Sharon Mergerson, Bass' neighbor and                      green or blue coveralls and a stocking cap. Between 2:00
ex-sister-in-law, to check on the situation. Mergerson           a.m. and 3:00 a.m. on November 30th, Patrick Williams
immediately went to Bass' home. Upon arrival, she no-            saw appellant with a gun and wearing coveralls at the
ticed a back door had been forcibly kicked in. She found         Holliday Creek Apartments. The apartments are near
Bass' body at approximately 4:00 p.m. Mergerson went             Bass' home.
home and phoned the police.
                                                                        4     Bass had both a wooden and a chain-link
     Bass died of a .32-caliber gunshot wound to the
                                                                        fence on different parts of her property.
head. Time of death was estimated to be in the early
morning hours of November 30th. She was found naked                    After work on November 30th, Humphrey, appel-
and beaten in her bedroom. Aside from the gunshot                lant, and Joseph Barnes, appellant's brother, stopped by
wound, Bass had been stabbed twice, hit with a                   the Barnes' home. Appellant stated he had "confiscated"
.22-caliber rifle, and struck in the head with a blunt ob-       a gun from his father and wished to sell it. Appellant
ject. A knife covered with blood was discovered in Bass'         went to his bedroom, retrieved the gun from under his
kitchen. A bloody lamp with a dent in the base was               bed, and gave it to Humphrey. Humphrey later sold [**6]
found in Bass' bedroom, along with a .22-caliber rifle           the gun to Williams. Humphrey identified the gun at trial
that had been broken in half. The police discovered the          as the one he obtained from appellant.
lamp's mate in another bedroom of the home. Mergerson
                                                                      Williams testified that the gun that he bought from
testified that the lamps had been recently purchased. A
                                                                 Humphrey on the afternoon of November 30th was the
box for a .32-caliber handgun was also found. However,
                                                                 same one he had seen appellant with earlier the same
no gun was recovered at the scene.
                                                                 day. He further stated that a bullet was missing from the
     Bass did own a .32-caliber handgun. Willie Bass, Jr.,       gun when he purchased it. Williams later returned the
her son, bought her the handgun in April, 1988. 3 Malrie         gun to Humphrey's sister, Deborah Ann, when he learned
Wilson, Bass' friend, saw [**4] the gun in her posses-           of the murder. Deborah Ann then turned the gun over to
sion on the morning of November 29th. Wilson had                 the police. Willie Bass identified the gun as the one he
shown Bass how to load the weapon and was attempting             had given his mother.
to familiarize her with it on Monday, November 27th,
                                                                                                                  Page 6
                                 876 S.W.2d 316, *; 1994 Tex. Crim. App. LEXIS 21, **


     The police recovered dark green coveralls from Jo-        Ct. 1428, 79 L. Ed. 2d 752 (1984). It is enough if the
seph Barnes' car. Joseph told the officers that the cover-     conclusion is warranted by the combined and cumulative
alls belonged to appellant. 5 Humphrey testified that the      force of all the incriminating circumstances. Id.
coveralls were the same coveralls he had seen appellant
wearing on the evening of November 29th. Blood later                  7         Geesa v. State, 820 S.W.2d 154
removed from the coveralls by a forensic serologist was               (Tex.Cr.App. 1991)
determined to be type 0 blood, which was the same as
                                                                     [**9] Appellant contends that the presence of his
Bass'. Appellant has type A blood. The forensic serolo-
                                                               fingerprint on the lamp does not show he had ever been
gist testified that fifty percent of all African-Americans
                                                               in decedent's home unlawfully. 8 He argues the presence
have type 0 blood. 6 The blood on the coveralls, however,
                                                               of his fingerprint was not unusual because he had helped
also had genetic markers consistent with Bass' blood.
                                                               do repair work on Bass' home three years before and
                                                               Bass had allowed appellant to have a party in another
         5     Joseph testified that he believed the cover-
                                                               building on her property. Appellant's mother testified
         alls actually belonged to his father, but that ap-
                                                               that appellant had done work for Bass a few weeks be-
         pellant "wore them all the time."
                                                               fore her death. Appellant cut down some limbs and
 [**7]
                                                               looked for a leak in the back of the house. There is evi-
         6    Bass was an African-American.
                                                               dence, however, that the lamps were purchased shortly
      Larry Fletcher, a firearms examiner, testified the       before Bass' death, and were kept in a front bedroom.
bullet removed from Bass' head was the same type that
would be fired from the .32-caliber revolver in evidence.             8      Appellant also argues that his presence out-
When comparing the fatal bullet to a test bullet fired                side of a house thirty minutes before a crime oc-
from the revolver, Fletcher could not make a positive                 curs does not lead ineluctably to his guilt. Fur-
determination whether or not the fatal bullet was fired               ther, he argues that the footprint on the check-
from this exact pistol, because it sustained too much                 book and blood on the coveralls are inconclusive
damage on impact. However, there were other consisten-                pieces of evidence. [HN2] In reviewing the evi-
cies between the test bullet and the one removed from                 dence it is proper to consider the events that oc-
Bass.                                                                 curred before, during, and after the commission
                                                                      of the offense. (emphasis added). Thompson v.
     Dr. Jeffrey Barnard, Chief Medical Examiner of
                                                                      State, 697 S.W.2d 413, 416 (Tex. Cr. App. 1985).
Dallas County, performed the autopsy. Barnard testified
                                                                      It is enough if the conclusion of guilt is warranted
that Bass' injuries were consistent with having been
                                                                      by the combined and cumulative force of all the
caused by the handgun, lamp, broken rifle, and knife
                                                                      incriminating circumstances.         Russell, 665
recovered by the police. James Cron, a fingerprint and
                                                                      S.W.2d at 776.
footprint expert, testified that appellant's fingerprint ap-
peared on the lamp. Further, he stated that the shoeprint             [**10] Appellant next argues that Humphrey fab-
pattern found on the back of Bass' checkbook matched           ricated his testimony and implicated appellant in order
the shoe pattern on appellant's shoes. Cron admitted that      "to avoid his own date with the hangman." Appellant
millions of shoes with that pattern have been produced.        supports this hypothesis with the following evidence at
                                                               trial: Marquita Mackey testified that she saw Humphrey
      [*321] [HN1] In reviewing a sufficiency [**8]
                                                               at 5:00 p.m. on November 30, 1989, wearing a pair of
question, we must view the evidence in the light most
                                                               blood-stained dark coveralls. Humphrey had the gun
favorable to the verdict and determine whether any ra-
                                                               with him at the time and he delivered it to Williams in
tional trier of fact could have found the essential ele-
                                                               her presence. She also stated that she later saw the cov-
ments of the crime beyond a reasonable doubt. Jackson
                                                               eralls thrown behind a local playhouse. Nary Barnes tes-
v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed.
                                                               tified appellant arrived home between 11:45 and 11:50
2d 560 (1979); Butler v. State, 769 S.W.2d 234, 238 (Tex.
                                                               p.m. on November 29th and did not leave the house until
Cr. App. 1989). Because the State's case is based on cir-
                                                               the next morning, although she admits that she was
cumstantial evidence and was tried prior to this Court's
                                                               asleep for part of that time. Joseph Barnes testified that
decision in Geesa, 7 we will use the "exclusion of rea-
                                                               appellant did not go into his home on November 30th
sonable hypotheses" approach as the method for analyz-
                                                               and retrieve the gun. He testified that Humphrey got a
ing sufficiency. Garrett v. State, 682 S.W.2d 301, 304
                                                               paper sack from his own home and then traded it with
(Tex. Cr. App. 1984), cert. denied, 471 U.S. 1009, 105 S.
                                                               someone at the Holliday Creek Apartments.
Ct. 1876, 85 L. Ed. 2d 168 (1985). It is not necessary that
every fact point directly and independently to the de-              [HN3] The jury is the exclusive judge of the credi-
fendant's guilt. Russell v. State, 665 S.W.2d 771, 776         bility of witnesses and of the weight to be given their
(Tex. Cr. App. 1983), cert. denied, 465 U.S. 1073, 104 S.      testimony. Lafoon v. State, 543 S.W.2d 617, 620 (Tex.
                                                                                                                   Page 7
                                 876 S.W.2d 316, *; 1994 Tex. Crim. App. LEXIS 21, **


Cr. App. 1976). Appellant's argument that Humphrey                  [HN5] In reviewing the sufficiency of the evidence
was the real perpetrator of the crime [**11] was appar-        at the punishment phase, we again view the evidence in
ently rejected by the jury. [HN4] We must hold the evi-        the light most favorable to the verdict and determine
dence sufficient if the exculpatory aspects of appellant's     whether any rational trier of fact could make the finding
version of events necessarily contradict or conflict with      beyond a reasonable doubt. See Stoker v. State, 788
inculpatory inferences drawn from other circumstantial         S.W.2d 1, 7 (Tex. Cr. App. 1989), cert. denied, 498 U.S.
evidence presented by the State, and when all the evi-         951, 111 S. Ct. 371, 112 L. Ed. 2d 333 (1990). The bur-
dence viewed in the light most favorable to the verdict        den was on the State to prove the punishment issues be-
would rationally support a jury verdict of guilt to a de-      yond a reasonable doubt. Article 37.071(c). [HN6] A
gree of confidence beyond a reasonable doubt. Gunter v.        jury is permitted to consider a variety of factors when
State, 858 S.W.2d 430, 439 (Tex. Cr. App.), cert. denied,      determining whether a defendant will pose a continuing
U.S. , 114 S. Ct. 318, 126 L. Ed. 2d 265 (1993). Girard        threat to society. Among those factors are:
v. State, 631 S.W.2d 162, 164 (Tex. Cr. App. 1982). The
combined and cumulative force of all the incriminating                   1. the circumstances of the capital of-
circumstances leads us to conclude that there was suffi-              fense, including the defendant's state of
cient evidence for any rational trier of fact to conclude             mind and whether he was working alone
beyond a reasonable doubt that appellant was guilty                   or with other parties;
[*322] of capital murder, and to exclude every other
reasonable hypothesis except for that of guilt. Russell,              2. [**14] the calculated nature of the
supra, at 776; Johnson v. State, 803 S.W.2d 272, 280                  defendant's acts;
(Tex. Cr. App. 1990), cert. denied,    U.S. , 111 S. Ct.
                                                                          3. the forethought and deliberateness
2914, 115 L. Ed. 2d 1078 (1991), overruled on other
                                                                      exhibited by the crime's execution;
grounds, Heitman [**12] v. State, 815 S.W.2d 681
(1991).                                                                   4. the existence of a prior criminal
                                                                      record, and the severity of the prior
     Appellant separately contends that the State offered
                                                                      crimes;
no evidence to prove appellant intended to cause Bass'
death. The record shows that Dr. Barnard, testified the                    5. the defendant's age and personal
gunshot wound sustained by Bass was a "contact                        circumstances at the time of the offense;
wound." He stated a contact wound occurs when the
barrel of a gun is in contact or almost in contact with the                6. whether the defendant was acting
victim's skin at the time the gun is fired. Further evidence          under duress or the domination of another
was brought in showing that the gun had been fired                    at the time of the offense;
through two pillows placed closely to Bass' head. Her                      7. psychiatric evidence; and8. char-
head had also been wrapped in a shirt after the beatings,             acter evidence.
but prior to the gunshot wound. Dr. Bernard testified this
would prevent blood from splattering. The jury could
infer that the firing of the gun through two pillows and a      Keeton, 724 S.W.2d at 61. As appellant admits, this list
shirt would muffle the sound of the shot and prevent           is not exhaustive.
blood from splattering. Further, the jury could infer that
appellant would not fire a gun at such a close range to             Appellant argues that the evidence produced at trial
Bass' head unless he intended to kill her. Viewing the         did not show that appellant's killing of decedent was
evidence in the light most favorable to the verdict, we        calculated or deliberate. He contends that the State's evi-
conclude that a rational jury could have accepted these        dence at the punishment phase did not show that his past
inferences and from them found the element of intent           crimes were violent because no one was hurt and, in one
beyond reasonable doubt. See Jackson v. Virginia, 443          instance, the gun used was not real. He further notes that
U.S. [**13] at 319. We overrule points of error four           the record is bare of psychiatric evidence. He asserts that
and five.                                                      the fact that he came from a broken and abusive home
                                                               and that he was capable of remorse over his past mis-
     Appellant's eighth point of error contends that the       deeds should weigh in his favor.
evidence was insufficient for the jury to make an affirm-
ative finding that he would be a "continuing threat to              [HN7] In its determination of the special issues, the
society." Article 37.071(b)(2) (second special issue). He      jury was entitled to consider all the evidence presented
argues that of the eight factors listed in Keeton v. State,    [**15] at the guilt/innocence phase of the trial, in addi-
724 S.W.2d 58, 61 (Tex. Cr. App. 1987), most should be         tion to the evidence presented at the punishment phase.
decided in his favor.                                          Valdez v. State, 776 S.W.2d 162, 166-67 (Tex. Cr. App.
                                                               1989), cert. denied, 495 U.S. 963, 110 S. Ct. 2575, 109 L.
                                                                                                                    Page 8
                                 876 S.W.2d 316, *; 1994 Tex. Crim. App. LEXIS 21, **


Ed. 2d 757 (1990). The circumstances of the offense and        probability that appellant would be a continuing threat to
the events surrounding [*323] are sometimes suffi-             society. Appellant's eighth point of error is overruled.
cient in themselves to sustain a "yes" answer to the sec-
ond special issue. See Vuong v. State, 830 S.W.2d 929,         Guilt/Innocence Phase
935 (Tex. Cr. App.), cert. denied,     U.S. , 113 S. Ct.
                                                                    In his thirteenth point of error, 10 appellant complains
595, 121 L. Ed. 2d 533 (1992); Stoker, 788 S.W.2d at 7.
                                                               that the trial court erred in failing to quash the indict-
The evidence in the instant case revealed that appellant
                                                               ment. Because appellant was charged with murder in the
murdered Bass in the course of robbery or burglary. She
                                                               course of a burglary, he believes that fair notice dictates
was beaten and stabbed, and then shot point blank
                                                               that the State should have been required to "allege bur-
through the head in a calculated fashion. Although we
                                                               glary with intent to commit . . . theft or a felony offense."
hesitate to conclude this evidence alone would support a
finding of future dangerousness, there was more.
                                                                      10    The remaining points of error will be ad-
     At the punishment phase of trial, the State intro-               dressed in the order in which they occurred at tri-
duced evidence of various extraneous offenses. Appel-                 al.
lant was convicted of the following: (1) in February,
                                                                     [**18] Appellant acknowledges that we have re-
1987, appellant broke into a home, hit the female resi-
                                                               peatedly held that [HN8] an indictment need not allege
dent over the head with an iron, threatened her with a
                                                               the constituent elements of the aggravating feature which
gun, threatened to [**16] kill her daughter, sexually
                                                               elevates murder to capital murder. Beathard v. State, 767
assaulted her, and then burglarized the home; (2) on May
                                                               S.W.2d 423, 431 (Tex. Cr. App. 1989) (need not allege
18, 1987, appellant, using a gun to threaten the employ-
                                                               the constituent elements of burglary); Marquez v. State,
ees, robbed a Golden Fried Chicken restaurant; (3) three
                                                               725 S.W.2d 217, 236 (Tex. Cr. App.), cert. denied, 484
days later on May 21, 1987, appellant, again using a gun,
                                                               U.S. 872, 108 S. Ct. 201, 98 L. Ed. 2d 152 (1987) (ag-
robbed a McDonald's restaurant; and (4) on January 20,
                                                               gravated sexual assault); Hammett v. State, 578 S.W.2d
1988, while on probation for the previous offenses, ap-
                                                               699, 708 (Tex. Cr. App. 1979), cert. denied, 448 U.S.
pellant robbed a Domino's Pizza, using a toy gun to
                                                               725, 100 S. Ct. 2905, 65 L. Ed. 2d 1086 (1980) (rob-
threaten an employee. In each of these instances, appel-
                                                               bery). He raises no novel argument to persuade us to
lant threatened, essentially, to "blow [the victims'] brains
                                                               revisit these holdings. Point of error thirteen is overruled.
out" 9 if they did not cooperate with him. On November
15, 1989, in an unadjudicated offense, appellant at-                By way of his twelfth point of error, appellant con-
tempted to choke and sexually assault an acquaintance          tends that the trial court erred in denying his request for
who was nine months pregnant at the time. Appellant            special venire, after having earlier granted same. Prose-
threatened to kill her if she would not stop screaming.        cution of this cause originated in Wichita County before
The woman managed to get away.                                 Judge Driver. Prior to change of venue to Lubbock
                                                               County, Judge Driver granted appellant's motion for a
       9    Specifically, in each offense, appellant stat-     special [*324] venire. Article 34.01. Appellant argues
       ed, respectively: (1) "Do not look at me. If you        that Judge Driver should not have rescinded the original
       look at me I'm going to kill you. I will blow your      order without his permission.
       fucking brains out. If you look at me I will kill
       you"; (2) he would "blow [her] mind out"; (3) if              [**19] Following the change of venue, trial com-
       the manager did not give him all the money, he          menced on March 25, 1991. Appellant objected when
       would "blow [her] fucking brains out"; and (4) "If      Judge Driver, who had been assigned to Lubbock County
       you don't hurry up and open that safe, I'm going        for the duration of the case, began to select venirepersons
       to pop a cap on you."                                   from the regular jury panel rather than a special venire.
                                                               In overruling his objection, Judge Driver quoted Article
      [**17] Despite appellant's assertions, the record        34.01 which leaves the empanelment of a special venire
shows he repeatedly threatened to kill others during his       to the discretion of the trial court where more than 100
previous offenses and did harm his victims on more than        jurors have been summoned for regular service.
one occasion. It was not necessary for the State to but-
tress its case on future dangerousness with psychiatric             At trial, the State and appellant stipulated to the fol-
testimony. Narvaiz v. State, 840 S.W.2d 415, 425 (Tex.         lowing: Wichita County does not have continuous jury
Cr. App. 1992), cert. denied,   U.S. , 113 S. Ct. 1422,        weeks. It is general practice not to summon more than
122 L. Ed. 2d 791 (1993).; Huffman v. State, 746 S.W.2d        100 jurors per week. Because of this practice, the method
212, 224 (Tex. Cr. App. 1988). Considering the record as       to obtain jurors for a capital case in Wichita County is by
a whole, we conclude there was sufficient evidence to          a special venire procedure. In Lubbock County, a capital
support the jury's affirmative finding that there was a        case is generally heard by regular jurors summoned for
                                                               service the week a capital case is set for trial. For the
                                                                                                                   Page 9
                                 876 S.W.2d 316, *; 1994 Tex. Crim. App. LEXIS 21, **


week of March 25th, 625 jurors were summoned for reg-                      You could make that answer based
ular jury service in Lubbock County. Of those sum-                     upon the evidence?
moned, 264 appeared for service and 125 were assigned
                                                                            A Yes. I would have to, you know - -
to the instant case.
                                                                       the evidence.
     The State also offered into evidence a letter dated
March 13, 1991, from Judge William R. Shaver [**20]
of Lubbock County to Judge Driver. The letter confirms          But on redirect Brown again insisted that no matter how
that "it is agreeable with you [Judge Driver] for us to         much evidence the prosecutors could put on [**22] she
handle the Central Jury Pool in the usual method; . . . ."      would still automatically answer "no" to one or more of
Appellant admitted to having reviewed the letter in the         the special issues in order to give the defendant a second
judge's chambers, although he never agreed or disagreed         chance. Brown repeated her contradictory answers on
with the procedure. The trial court subsequently re-            subsequent recross and redirect. The trial court then
scinded the previous order and overruled appellant's mo-        granted the State's challenge for cause. Defense counsel
tion for special venire.                                        objected to Brown's excusal.
     [HN9] Because more than 100 jurors were called for              [HN10] In a capital case, the State is entitled to ju-
service the week of appellant's trial, the decision to grant    rors who will impartially consider and decide the facts
a special venire was within the discretion of the trial         and conscientiously apply the [*325] law as charged
court. Article 34.01. Therefore, we will defer to the trial     by the court. Perillo, 758 S.W.2d at 577; Adams v. Tex-
court's ruling. Id. Point of error twelve is overruled.         as, 448 U.S. 38, 45, 100 S. Ct. 2521, 65 L. Ed. 2d 581
                                                                (1980). We agree with appellant that venireman Brown
     In his ninth point of error, appellant maintains that
                                                                at times stated that she could set aside her personal feel-
the trial court erred in sustaining the State's challenge for
                                                                ings and answer the special issues based upon the evi-
cause of prospective juror Brown because of her personal
                                                                dence. However, she just as firmly maintained that she
opinion regarding the death penalty. Specifically, he ar-
                                                                would ignore the evidence no matter how great and an-
gues that her testimony indicates that she could set aside
                                                                swer "no" to at least one of the special issues in order to
her disfavor of capital punishment and answer the special
                                                                avoid the death penalty. When presented with a record
issues based on the evidence presented to her.
                                                                such as this, we must afford great deference to the trial
     Brown is the quintessential "vacillating venireman."       court's discretion in deciding whether a venireman
Perillo v. State, 758 S.W.2d 567, 576 n.10 (Tex. [**21]         should be excused on the basis of an inability to follow
Cr. App. 1988), cert. denied, 492 U.S. 925, 109 S. Ct.          the law. Article 37.071; Perillo, 758 S.W.2d at 577. Alt-
3263, 106 L. Ed. 2d 608 (1989). During voir dire, after         hough [**23] some of Brown's answers indicated that
the State explained the function of the special issues          she could answer the special issues in accordance with
during the punishment phase, see Article 37.071, Brown          the evidence, the record contains sufficient testimony to
stated that she could not answer the special issues "yes"       the contrary to hold that the trial court could reasonably
knowing that the death penalty would be imposed. She            have found that her testimony as a whole indicated that
further stated that she would answer "no" to avoid the          she would not have been able to perform her duties as a
result even if the evidence supporting a "yes" answer was       juror. Perillo, 758 S.W.2d at 577; Wainwright v. Witt,
overwhelming. The State then challenged Brown for               469 U.S. 412, 420, 105 S. Ct. 844, 83 L. Ed. 2d 841
cause.                                                          (1985). 11 Since there is sufficient support in the record,
                                                                we hold that the trial court did not err in granting the
     On cross voir dire, Brown continued to reiterate her       State's challenge for cause. Appellant's ninth point of
opposition to the death penalty. However, after appealing       error is overruled.
to her sense of duty as a juror, defense counsel was able
to elicit the following:                                               11      Compare Riley v. State,     S.W.2d   (
                                                                       No. 69,738, (Tex. Cr. App., delivered November
           BY [DEFENSE COUNSEL]:                                       10, 1993) (1993 Tex. Crim. App. LEXIS 178,
            Q That once you heard the evidence,                        *10-*11) (venireman did not at any time state
       that, you know, you felt very strongly that                     that he would not follow the law).
       Question Number one should be answered                         By way of point of error ten, appellant complains
       "Yes," Question Two should be answered                   that the trial court erred in allowing the State to use a
       "Yes," and if it was appropriate and sub-                peremptory challenge against prospective juror [**24]
       mitted Question Three answered the                       Green because of her views on the death penalty. Appel-
       same.                                                    lant contends that it is a violation of his Sixth and Four-
                                                                teenth Amendment rights under the United States Con-
                                                                                                                 Page 10
                                876 S.W.2d 316, *; 1994 Tex. Crim. App. LEXIS 21, **


stitution for the State to utilize a peremptory strike to     outweighed by the danger of unfair prejudice, confusion
exclude a prospective juror who is not in favor of the        of the issues, or misleading the jury, or by considerations
death penalty. 12 We disagree.                                of undue delay, or needless presentation of cumulative
                                                              evidence. Rule 403, supra; Long, 823 S.W.2d at 271,
       12     Appellant relies on Brown v. Rice, 693 F.       citing Montgomery v. State, 810 S.W.2d 372, 389 (Tex.
       Supp. 381 (W.D.N.C. 1988), to support his argu-        Cr. App. 1991) (Opinion on Rehearing).
       ment. Brown has since been reversed in part by
                                                                   [HN13] A court may consider many factors in de-
       Brown v. Dixon, 891 F.2d 490 (4th Cir. 1989),
                                                              termining whether the probative value of evidence is
       cert. denied, 495 U.S. 953, 110 S. Ct. 2220, 109
                                                              substantially outweighed by the [**27] danger of unfair
       L. Ed. 2d 545 (1990).
                                                              prejudice. These factors include: the number of exhibits
      [HN11] Article 35.14 provides a vehicle with            offered, their gruesomeness, their detail, their size,
which to exclude potential jurors that an advocate be-        whether they are in color or black and white, whether
lieves are prejudiced against his cause. These peremptory     they are close-up, and whether the body depicted is
challenges may be made for any reason so long as they         clothed or naked. Long, 823 S.W.2d at 272. A court,
are not exercised in a racially discriminatory manner.        however, should not be limited by this list. The availabil-
Article 35.261; Batson v. Kentucky, 476 U.S. 79, 106 S.       ity of other means of proof and the circumstances unique
Ct. 1712, 90 L. Ed. 2d 69 (1986). [HN12] Subject to the       to each individual case should also be considered.
constraints of Article 35.261, we have held that a party
                                                                    Appellant does not explain why he believes the
need not assign [**25] a reason for exercising his per-
                                                              photographs were inflammatory except to note that they
emptory strikes, even where the discernable purpose of
                                                              "were especially gruesome in their detailed and vivid
the strike is to exclude a prospective juror who is not in
                                                              depiction of the murder scene and Ms. Bass's subsequent
favor of the death penalty. Hernandez v. State, 819
                                                              autopsy." State's exhibits 37 and 38 are 8" X 10" color
S.W.2d 806, 818 (Tex. Cr. App. 1991), cert. denied,
                                                              photographs of decedent as she appeared at the scene of
U.S. , 112 S. Ct. 2944, 119 L. Ed. 2d 568 (1992); May
                                                              the crime. State's exhibit 37 is a close-up of decedent's
v. State, 738 S.W.2d 261, 267-68 (Tex. Cr. App.), cert.
                                                              shirt-wrapped head and depicts the injury to her eye.
denied, 484 U.S. 872, 108 S. Ct. 206, 98 L. Ed. 2d 158
                                                              State's exhibit 38 shows the upper-portion of decedent,
(1987). We overrule appellant's tenth point of error.
                                                              laying face down. The photo shows the impression
     In his second point of error, appellant complains        wounds in her left shoulder and the direction the blood
about the admission of six photographs depicting Bass as      flowed from the initial head injuries. Although the pho-
she appeared at the crime scene and her wounds as             tographs are gruesome and detailed, they are not en-
viewed at the autopsy. Appellant specifically complains       hanced in any way and portray no more [**28] than the
the probative value of State's Exhibits 37, 38, 39, 68, 69,   injuries inflicted. See Narvaiz, 840 S.W.2d at 429. The
and 70 is greatly outweighed by their prejudicial effect.     trial court did not err in admitting these photographs.
     At trial, appellant objected to the admission of              State's exhibits 68, 69, and 70 are 8" X 12" color
State's exhibit 39 only on the basis of repetition. Since     photographs of decedent at the coroner's office. State's
his trial objection does not comport with the issue raised    exhibit 68 shows Bass nude and face down on the exam-
on appeal, he has preserved nothing for our review.           ining table. The body has been cleaned of the dried
Thomas v. State, 723 S.W.2d 696, 700 (Tex. Cr. App.           blood. The exhibit gives an overall view of the various
1986); Johnson, 803 S.W.2d at 293. Therefore, we will         injuries Bass received prior to the gunshot. State's exhibit
address appellant's argument [**26] only as to the re-        69 is a close-up of the head injuries. Bass' hair has been
maining five exhibits. Appellant does not challenge the       shaved from around the injuries in order to depict their
relevancy of these exhibits.                                  shape. The exhibit was used during trial to show the
                                                              semi-circular injury that was believed to have been
    Appellant cites Burdine v. State, 719 S.W.2d 309,
                                                              caused by the lamp upon which appellant's fingerprint
316 (Tex. Cr. App. 1986), cert. denied, 480 U.S. 940, 107
                                                              was found. State's exhibit 70 is the only photo of the stab
S. Ct. 1590, 94 L. Ed. 2d 779 (1987), to argue that the
                                                              wound to Bass' neck.
photographs were submitted by the State purely to "in-
flame the passion of the jury." The Texas Rules of                 It is doubtful the State's case would have been ren-
Criminal Evidence, however, have since modified Bur-          dered significantly less persuasive without the introduc-
dine. See Tex. R. Cr. Evid. 401, 402, and 403; see also       tion of these photographs. Testimony was presented at
Long v. State, 823 S.W.2d 259, 271 (Tex. Cr. App. 1991),      trial regarding the cause of death and the effect of the
[*326] cert. denied,    U.S. , 112 S. Ct. 3042, 120 L.        blows to decedent. However, the photographs "are not, in
Ed. 2d 910 (1992). Our review is limited to determining       our estimation, so horrifying or appalling that a juror of
whether the probative value of the photos is substantially    normal sensitivity would necessarily encounter difficulty
                                                                                                                    Page 11
                                 876 S.W.2d 316, *; 1994 Tex. Crim. App. LEXIS 21, **


[**29] rationally deciding the critical issues of this case           The State's line of questioning immediately prior to
after viewing them." Fuller v. State, 829 S.W.2d 191, 206       Wilson's statement was referring to the location of evi-
(Tex. Cr. App. 1992), cert. denied,     U.S. , 113 S. Ct.       dentiary items prior to the offense. Appellant [**31]
2418, 124 L. Ed. 2d 640 (1993). Further, as regards the         argues that Wilson's statement about "what had been
nudity in State's exhibit 68, the photo is not so vulgar or     taking place in Wichita Falls" would naturally lead the
indecent as to draw attention away from the wounds that         jury to believe that other criminal activity similar to facts
are the focus of the exhibit.                                   in this case had been happening in the area and that ap-
                                                                pellant was responsible for those episodes too. However,
     We are not persuaded that the danger of unfair prej-
                                                                Wilson's statement was general and did not refer to ap-
udice substantially outweighed the probative value of the
                                                                pellant in any way. Viewing the nonresponsive answer in
above photographs. Therefore, we hold that the trial
                                                                context, we find that neither the question nor Wilson's
court committed no error in admitting the exhibits. Point
                                                                response was "clearly calculated to inflame the minds of
of error two is overruled.
                                                                the jury." Waldo, 746 S.W.2d at 752. We hold that the
      In his third point of error, appellant argues that the    trial court's instruction to disregard cured any error. The
trial court erred in not granting a mistrial after a nonre-     point of error is overruled.
sponsive answer was given by a witness. Appellant refers
                                                                      In his first point of error, appellant asserts that the
to a portion of witness Wilson's testimony where he
                                                                trial court erred in admitting the fruits of a search carried
stated he told Bass to keep a gun by her bed "because of
                                                                out pursuant to an invalid search warrant. Specifically,
what had been taking place in Wichita Falls." Appellant
                                                                he argues that because the attached appendices to the
alleges that this statement was so inflammatory and
                                                                search warrant affidavit were not incorporated by refer-
prejudicial that the trial court's instruction to the jury to
                                                                ence into the body of the affidavit, the search warrant
disregard was insufficient, and that his request for a mis-
                                                                was not supported by probable cause. Appellant con-
trial should have been granted.
                                                                cedes that if the appendices were incorporated, the search
     [HN14] Error in admitting [**30] improper testi-           warrant would probably be valid.
mony may be corrected by a withdrawal and an instruc-
                                                                     The search warrant incorporates the affidavit by ref-
tion to disregard unless it appears the evidence is clearly
                                                                erence. Attached [**32] to the sworn-to and signed
calculated to inflame [*327] the minds of the jury and
                                                                affidavit are appendices A and B. Each appendix is enti-
is of such character as to suggest the impossibility of
                                                                tled "Affidavit for evidence search warrant." Neither
withdrawing the impression produced on their minds.
                                                                appendix is itself signed or individually sworn to. Nor
Waldo v. State, 746 S.W.2d 750, 752 (Tex. Cr. App.
                                                                does the affidavit expressly incorporate the appendices
1988). Here the arguable testimony occurred as follows:
                                                                by reference.
           BY [PROSECUTION]:                                         [HN15] Generally, incorporating the appendices to
                                                                an affidavit by reference would be preferred. It does not
       Q OK. I think I just have one last area of               invariably follow that absent such an incorporation the
       questioning, Mr. Wilson.                                 affidavit must fail. Cf. U.S. v. Beaumont, 972 F.2d 553,
                                                                561 (5th Cir. 1992), cert. denied, Beaumont v. U.S.,
           With regard to the revolver, the
                                                                U.S. , 113 S. Ct. 1953, 123 L. Ed. 2d 657 (1993) (a
       .32-caliber, did you make any suggestion
                                                                warrant does not necessarily fail absent incorporation by
       to Mrs. Bass as to where to keep that
                                                                reference of the affidavit); see also Commonwealth v.
       weapon?
                                                                Truax, 397 Mass. 174, 490 N.E.2d 425, 431 (1986) (af-
            A Yes, I did sir.                                   fidavit valid even though pages attached to warrant were
                                                                not signed or sworn to). The Supreme Court has cau-
           Q And where did you suggest or
                                                                tioned that "[HN16] affidavits for search warrants . . .
       recommend that she keep the weapon?
                                                                must be tested and interpreted by magistrates and courts
           A Well, sir, I recommended to her to                 in a common sense and realistic fashion." U. S. v. Ven-
       keep it on the stand near her bed there,                 tresca, 380 U.S. 102, 109, 85 S. Ct. 741, 13 L. Ed. 2d 684
       because of what had been taking place in                 (1965).
       Wichita Falls.
                                                                    There was testimony elicited at a motion to suppress
                                                                hearing conducted during trial [**33] that the issuing
                                                                magistrate essentially considered the attached appendices
When appellant objected, the trial court sustained the
                                                                as part and parcel of the warrant affidavit. The appen-
objection and instructed the jury to disregard the state-
                                                                dices are physically attached to the affidavit, and the
ment. Appellant then moved for mistrial, but his request
                                                                matter contained therein is an obvious continuation of
was denied.
                                                                                                                   Page 12
                                 876 S.W.2d 316, *; 1994 Tex. Crim. App. LEXIS 21, **


that paragraph of the affidavit setting forth the basis for     cation of Geesa to cases tried after it was handed down,
probable cause. The magistrate even suggested a handful         and we do not address that question here. 14 He contends
of changes to appendix A before he signed the warrant.          only that because he preserved error, he should be ex-
These changes were made by hand and initialed by both           cepted from the prospective-only rule. But to hold that a
the magistrate and the affiant. 13 Under these unusual          change in the law will have only a prospective applica-
circumstances it is apparent that the magistrate consid-        tion is essentially to hold that there was no error previ-
ered the affiant's oath to extend not [*328] only to            ously to preserve. Points of error six and seven are over-
matters contained on the face of the affidavit page, but        ruled.
also to the information contained in the attached appen-
dices. The trial court could reasonably have concluded                 14     This Court has seen a number of arguments
that the appendices were implicitly incorporated within                in recent months that our prospective-only hold-
the affidavit. Appellant's first point of error is overruled.          ing in Geesa was in error, under the rationale of
                                                                       Harper v. Virginia Department of Taxation, 509
       13    At the suppress ion hearing appellant ar-                 U.S.      , 113 S. Ct. 2510, 125 L. Ed. 2d 74
       gued the magistrate thus abandoned his detached                 (1993). Appellant makes no such argument here,
       and neutral status. He does not reiterate this ar-              however, and in fact cites only Geesa itself in
       gument, however, on appeal.                                     support of this point of error.
      [**34] In his sixth and seventh points of error,
                                                                 [**36] Punishment Phase
appellant contends that the trial court erred by denying
his requested jury instruction on "reasonable doubt" in              In appellant's fifteenth point of error, he contends
both the guilt/innocence and punishment phases of trial.        that the trial court erred in permitting three punish-
He argues that because he requested an instruction simi-        ment-phase witnesses to testify because their names were
lar to the one required in Geesa v. State, supra, the hold-     not on the State's witness lists. On appeal, he further ob-
ing in that case should be given retroactive application to     jects that the testimony resulted in surprise.
his case. During both phases of trial, appellant requested
                                                                     [HN18] If a witness' name is not furnished a de-
the following definition:
                                                                fendant before trial despite a court order, any error in
                                                                allowing that witness to testify over a claim of surprise is
          A reasonable doubt is based upon rea-
                                                                "made harmless" by defendant's failure to object or move
       son and common sense, and not the mere
                                                                for a continuance. Youens v. State, 742 S.W.2d 855, 860
       possibility of guilt. A reasonable doubt is
                                                                (Tex. App. - Beaumont 1987, pet. ref'd), citing Hubbard
       the kind of doubt that would make a rea-
                                                                v. State, 496 S.W.2d 924, 926 (Tex. Cr. App. 1973). In
       sonable person hesitate to act. Proof be-
                                                                the instant case, appellant objected 15 but failed to move
       yond a reasonable doubt, therefore, must
                                                                for a continuance in order to interview the witnesses or
       be proof of such convincing character that
                                                                determine the matters about which they were to testify.
       a reasonable person would not hesitate to
                                                                Having failed to do so, he "cannot now be heard to com-
       act and rely on it.
                                                                plain." Hubbard v. State, supra. We overrule appellant's
                                                                fifteenth point of error.
Appellant now argues that because his definition essen-
                                                                       15     Appellant did not object on the basis of
tially tracks the one required by Geesa, 820 S.W.2d at
                                                                       surprise during trial. Therefore, nothing was pre-
162, and because he preserved error by requesting the
                                                                       served for review on that point. See Thomas, 723
definition, that Geesa should; be applied retroactively to
                                                                       S.W.2d at 700.
his case.
                                                                      [**37] In point of error fourteen, appellant com-
     We find appellant's argument unpersuasive. At the
                                                                plains that the trial court erred in allowing extraneous
time appellant was tried, it was not a requirement that the
                                                                documents to be admitted as part of appellant's pen
trial court define [**35] "reasonable doubt." Goss v.
                                                                packet. During the punishment phase of trial, appellant's
State, 826 S.W.2d 162, 169 (Tex. Cr. App. 1992), cert.
                                                                pen packet was admitted into evidence. Included in the
denied,     U.S. , 113 S. Ct. 3035, 125 L. Ed. 2d 722
                                                                packet was a motion to revoke probation, [*329] an
(1993); McGinty v. State, 723 S.W.2d 719, 720-21 (Tex.
                                                                order issuing an arrest warrant, and an arrest warrant for
Cr. App. 1986). [HN17] Although we have subsequently
                                                                cause numbers 24,599-C and 24,371-C. Appellant con-
held that a definitional instruction of the term is required,
                                                                tends that these documents contain "extraneous hearsay
we declared in Geesa that this holding would be applied
                                                                material" and the "jury could interpret these documents
prospectively only. Geesa, supra, at 165; Goss, supra,
                                                                to be a comment on the weight of the evidence by the
at 169. Appellant does not argue we erred to limit appli-
                                                                court in the jury's mind." We disagree.
                                                                                                                      Page 13
                                  876 S.W.2d 316, *; 1994 Tex. Crim. App. LEXIS 21, **


     We address first that part of appellant's multifarious      commonly referred to as the Penry instruction. See Penry
argument that the motion to revoke, the order, and the           v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d
warrant were "extraneous." [HN19] The trial court may            256 (1989). Specifically, he complains that the trial court
admit any evidence it deems relevant to sentencing at the        did not place the burden of proof on the State to negate
punishment phase of a capital murder trial. Felder v.            the mitigating circumstances.
State, 848 S.W.2d 85, 98 (Tex. Cr. App. 1992), cert. de-
nied,     U.S. , 114 S. Ct. 95, 126 L. Ed. 2d 62 (1993).                 16     The jury was instructed, in part:
Appellant argues that the above documents were not
necessary or required in order to prove the prior convic-                           When you deliberate on the
tions because the indictments, judgments, and sentences                          questions posed in the special is-
[**38] were all admissible for that purpose. Appellant                           sues, you are to consider mitigat-
overlooks, however, that the trial court may have deemed                         ing circumstances, if any, sup-
them relevant to one of the special issues. [HN20] That                          ported by the evidence presented
appellant committed another crime while already on                               in both phases of the trial, whether
probation for other offenses has a bearing on the question                       presented by the state or the de-
of whether he would pose a future danger to society.                             fendant.
Article 37.071(b)(2). It was within the trial court's dis-
                                                                                      ****
cretion to determine if the documents had relevance to
either of the special issues. [HN21] Absent a clear abuse                             If you find that there are mit-
of discretion, the trial court's ruling will not be disturbed.                   igating circumstances in this case,
Id.                                                                              you must decide how much weight
                                                                                 they deserve, if any, and thereaf-
     As for appellant's contention that the motion to re-
                                                                                 ter, give effect answering the issue
voke, the order issuing the arrest warrant, and the war-
                                                                                 under consideration. If you deter-
rant itself were all hearsay, we note that appellant did not
                                                                                 mine, when giving effect to the
object specifically that these documents were hearsay.
                                                                                 mitigating evidence, if any, that
Instead he made what he himself characterized at trial as
                                                                                 the appropriate punishment for the
a "general" objection that the entire pen packet was
                                                                                 defendant, based on his back-
hearsay. In Jones v. State, 843 S.W.2d 487, at 492
                                                                                 ground, character or the circum-
(Tex.Cr.App. 1992), we opined:
                                                                                 stances of this case, should be a
                                                                                 life sentence rather than a death
            [HN22] The trial court need never sort
                                                                                 sentence, you are instructed to
        through challenged evidence in order to
                                                                                 answer "no" to at least one of the
        segregate the admissible from the ex-
                                                                                 special issues.
        cludable, nor is the trial court required to
        admit only the former part or exclude only
        the latter part. If evidence [**39] is of-
                                                                         Whether this is an adequate Penry instruction is
        fered and challenged which contains some
                                                                         not before us. See, however, Rios v. State, 846
        of each, the trial court may safely admit it
                                                                         S.W.2d 310, 316 (Tex. Cr. App. 1992), cert. de-
        all or exclude it all, and the losing party,
                                                                         nied,   U.S. , 113 S. Ct. 1946, 123 L. Ed. 2d
        no matter who he is, will be made to suf-
                                                                         651 (1993).
        fer on appeal the consequences of his in-
        sufficiently specific offer or objection.                      [**40] [HN24] In instances where mitigating evi-
                                                                 dence is presented, all that is constitutionally required is
                                                                 a vehicle by which the jury is able to consider and give
Appellant does not now contend that the entire pen pack-         effect to the mitigating evidence relevant to a defendant's
et was hearsay. [HN23] The trial court was not required,         background, character, or the circumstances of the crime.
in the face of a global hearsay objection, to cull through       Penry, 492 U.S. at 329; Johnson v. Texas, 509 U.S.            ,
the pen packet and exclude whatever particular matters           [*330] 113 S. Ct. 2658, 2667, 125 L. Ed. 2d 290 (1993)
he may find there that meet that description. See Tex. R.        In Texas, this vehicle commonly takes the form of a jury
Cr. Evid. 103(a)(1). Appellant's fourteenth point of error       nullification instruction, as in the instant case, or a fourth
is overruled.                                                    special issue. See Fuller, 829 S.W.2d at 209 (jury nulli-
                                                                 fication charge), State v. McPherson, 851 S.W.2d 846,
    Finally, in his eleventh point of error appellant con-
                                                                 847-50 (Tex. Cr. App. 1992) (fourth special issue).
tends the trial court erred in its instruction during the
punishment phase regarding mitigating evidence, 16
                                                                                                               Page 14
                                876 S.W.2d 316, *; 1994 Tex. Crim. App. LEXIS 21, **


     Neither this Court nor the Texas legislature has ever          decide whether mitigating circumstances never-
assigned a burden of proof on the issue of mitigating               theless warrant a life sentence. However, neither
evidence. See Article 37.071. 17 The Eighth and Four-               Subsection (c) nor Subsection (e) itself expressly
teenth Amendments do not require that a burden be                   assigns a particular burden of proof on the issue
placed on the State. In a plurality opinion, the United             of mitigation. It might be argued, although we
States Supreme Court in Walton v. Arizona affirmatively             certainly have no occasion here to hold, that
declined to "adopt as a constitutional imperative a rule            Subsection (c) implicitly assigns the burden of
that would require the court to consider the mitigating             proof to the beneficiary of a finding of "sufficient
circumstances claimed by a defendant unless the State               mitigating . . . circumstances to warrant that a
negated [**41] them by a preponderance of the evi-                  sentence of life . . . be imposed." Cf. Arnold v.
dence." 497 U.S. 639, at 650, 110 S. Ct. 3047, at 3055,             State, 786 S.W.2d 295, at 298 (Tex. Cr. App.
111 L. Ed. 2d 511, at 526 (1990) (plurality opinion). The           1990) (State has burden of proof to establish
plurality in Walton further held that [HN25] it is not un-          harmless error under Tex. R. App. P. 81(b)(2), as
constitutional to place a burden on the defendant to es-            beneficiary of the error). That, of course, would
tablish sufficient mitigating circumstances by a prepon-            be the defendant. But at the time of appellant's
derance of the evidence. Id. U.S. at 649-651, S.Ct. at              trial there was no statutory authority for a Penry
3055-56, L. Ed. 2d at 525-27. Because [HN26] neither                instruction of any kind, much less a legislative
legislation nor constitution places a burden of proof upon          assignment of burden of proof, either express or
the State to negate the existence of mitigating evidence,           implied.
we refuse to fault the trial court for failing to give the
                                                                  [**42] Finding no reversible error, we affirm the
jury such an instruction. Therefore, appellant's eleventh
                                                             judgment of the trial court.
point of error is overruled.
                                                                 PER CURIAM
       17     Currently, Article 37.071 mandates that a
       jury that finds beyond a reasonable doubt, as re-         (Delivered: February 9, 1994)
       quired by Subsection (c), that the special issues         EN BANC
       under Subsection (b) should be answered affirm-
       atively must go on pursuant to Subsection (e) to          McCormick, P.J. and Baird, J.
                                                                                                                  Page 1




Caution
As of: Aug 02, 2017

                      LEVIYAS JAMAIL CLAYTON, Appellant v. THE STATE OF TEXAS

                                                     NO. PD-1311-05

                                   COURT OF CRIMINAL APPEALS OF TEXAS

                                   235 S.W.3d 772; 2007 Tex. Crim. App. LEXIS 1385


                                               October 10, 2007, Delivered

NOTICE:        PUBLISH                                         properly consider the combined and cumulative force of
                                                               the evidence and view the evidence in the light most fa-
SUBSEQUENT HISTORY: On remand at Clayton v.                    vorable to the jury's guilty verdict. The argument that
State, 2008 Tex. App. LEXIS 4098 (Tex. App. Corpus             there were more bloody prints than were justified by
Christi, June 5, 2008)                                         defendant's explanation supported an inference that he
                                                               was lying and provided incremental circumstantial evi-
PRIOR HISTORY: [**1]                                           dence that he was the shooter. Other incriminating cir-
   ON STATE'S PETITION FOR DISCRETIONARY                       cumstances included defendant's flight, his failure to
REVIEW FROM THE THIRTEENTH COURT OF                            report the shooting to animal-control officers who were
APPEALS HARRIS COUNTY.                                         near the scene, his failure to turn himself into police on
Clayton v. State, 169 S.W.3d 254, 2005 Tex. App. LEXIS         an arrest warrant, and the timing of events, which sup-
3439 (Tex. App. Corpus Christi, 2005)                          ported an inference that defendant was with the victim at
                                                               the time of the shooting.
CASE SUMMARY:
                                                               OUTCOME: The court reversed the judgment of the
                                                               court of appeals and remanded the case to that court for
PROCEDURAL POSTURE: A jury found defendant                     consideration of defendant's factual sufficiency claim.
guilty of murder under Tex. Penal Code. Ann. § 19.02(b)
(1994). The Thirteenth Court of Appeals Harris County,         LexisNexis(R) Headnotes
Texas, reversed and entered a judgment of acquittal,
holding that the evidence was legally insufficient to
support the jury's verdict. The court granted further re-
view.                                                          Criminal Law & Procedure > Appeals > Standards of
                                                               Review > Substantial Evidence > General Overview
OVERVIEW: Defendant testified that he discovered the           Evidence > Procedural Considerations > Circumstan-
victim in the backseat of a car covered in blood and that      tial & Direct Evidence
he left after trying and failing to move the car. In finding   [HN1] When the Texas Court of Criminal Appeals re-
the evidence legally insufficient, the court of appeals        views a court of appeals's application of the Jackson le-
reasoned in part that defendant's bloody fingerprints were     gal sufficiency standard, the relevant question is whether,
not evidence that he was with the victim before the            after viewing the evidence in the light most favorable to
shooting. On further review, the court held that the court     the prosecution, any rational trier of fact could have
of appeals incorrectly applied the Jackson standard when       found the essential elements of the crime beyond a rea-
considering the circumstantial evidence by failing to          sonable doubt. This standard accounts for the factfinder's
                                                                                                                  Page 2
                               235 S.W.3d 772, *; 2007 Tex. Crim. App. LEXIS 1385, **


duty to resolve conflicts in the testimony, to weigh the      County, Texas. Her partner, who was following behind
evidence, and to draw reasonable inferences from basic        her in another car, also stopped. Approximately ten to
facts to ultimate facts. Therefore, in analyzing legal suf-   twenty minutes after the truck veered off the road, Davis
ficiency, the court determines whether the necessary in-      looked into the park and noticed something moving. She
ferences are reasonable based upon the combined and           went to investigate and discovered James Playonero,
cumulative force of all the evidence when viewed in the       covered in blood and suffering from several gunshot
light most favorable to the verdict. The court's review of    wounds. Davis called the police for help. Although
all of the evidence includes evidence that was properly       Playonero attempted [**2] to speak to Davis, she could
and improperly admitted. When the record supports con-        not understand what he was saying because he was
flicting inferences, the court presumes that the factfinder   mumbling. Playonero died before the ambulance ar-
resolved the conflicts in favor of the prosecution and        rived--approximately ten minutes after he was discov-
therefore defers to that determination. Direct and cir-       ered. According to Davis, between the time she stopped
cumstantial evidence are treated equally: Circumstantial      to assist the driver of the truck that veered off the road
evidence is as probative as direct evidence in establish-     and the time she went to investigate the movement in the
ing the guilt of an actor, and circumstantial evidence        park, she did not hear any gunshots or see any other peo-
alone can be sufficient to establish guilt.                   ple or vehicles.
                                                                   Davis discovered Playonero near a 1995 Toyota Av-
                                                              alon, which Playonero had borrowed from a friend
Criminal Law & Procedure > Criminal Offenses >
                                                              named Angel Ayala earlier that morning. The car ap-
Miscellaneous Offenses > Fleeing & Eluding > Con-
                                                              peared to have rolled into a tree and was stuck in the
sciousness of Guilt
                                                              mud. The gear-shift was in neutral, and the ignition was
Evidence > Procedural Considerations > Circumstan-
                                                              in the accessory position. Police suspected that a tire iron
tial & Direct Evidence
                                                              found in the front seat of the car had been wedged
[HN2] A factfinder may draw an inference of guilt from
                                                              against the accelerator so the car could propel itself into
the circumstance of flight.
                                                              the trees. Based on the discovery of a wad of burned pa-
                                                              per lodged in the gas manifold, police also concluded
COUNSEL: For APPELLANT: Kurt B. Wentz, Hou-
                                                              that someone had tried to set the car on fire by igniting
ston, TX.
                                                              the gas tank.
For STATE: Bridget Holloway, ASSISTANT DIS-                        An assistant medical examiner with the Harris
TRICT ATTORNEY, Houston, TX.                                  County Medical Examiner's Office testified that Play-
                                                              onero was shot at close range and that Playonero died
JUDGES: KEASLER, J., delivered the opinion of the             within five to ten [**3] minutes after suffering the
Court in which KELLER, PRICE, WOMACK, JOHN-                   wounds. He also stated that, based on his training and
SON, HERVEY, HOLCOMB, and COCHRAN, JJ.,                       experience, there was no possible way that Playonero
joined. MEYERS, J., did not participate.                      could have lived for twenty [*775] to thirty minutes
                                                              after receiving those wounds.
OPINION BY: KEASLER
                                                                   The evidence at trial showed that there was a signif-
                                                              icant amount of blood inside the car and a moderate
OPINION
                                                              amount on the outside of the car. A latent-fingerprint
      [*774] A jury found Leviyas Jamail Clayton              examiner with the Houston Police Department testified
guilty of the murder of James Playonero. The Thirteenth       that he identified prints belonging to Playonero, Ayala,
Court of Appeals held that the evidence was legally in-       and Clayton. He testified that he identified three sets of
sufficient to support the jury's verdict. 1 We disagree and   prints, stamped in blood--one on the middle console, one
reverse the judgment of the court of appeals.                 on the gear shift, and one on the steering wheel. These
                                                              prints belonged to Clayton. The prints identified as be-
        1 Clayton v. State, 169 S.W.3d 254, 255 (Tex.         longing to Playonero and Ayala were not bloody.
        App.-Corpus Christi 2005).
                                                                   Sergeant Boyd Smith, one of the first homicide of-
                                                              ficers on the scene, testified that there were no witnesses
Facts
                                                              at the park who saw Playonero get shot. Although bullet
     On June 14, 2001, Angela Davis, an employee with         fragments were discovered in the car, there were no bul-
City of Houston Animal Control, stopped to render as-         let holes inside the car. Sergeant Smith believed that
sistance when the truck in front of her veered off the road   Playonero was shot both in and outside the car and that
into a ditch near the entrance to Brock Park in Harris        the shooting did not take place in the park because there
                                                                                                                   Page 3
                               235 S.W.3d 772, *; 2007 Tex. Crim. App. LEXIS 1385, **


were no shell-casings found outside the car. He suspect-                  They didn't execute him. An execu-
ed [**4] that Playonero's murder involved a drug deal                tion is a gunshot wound to the head and
when he learned that Ayala and Playonero were Colum-                 that's it. This guy was hurt.
bian and because of the nature of Playonero's gunshot
                                                                          ...
wounds. Referring to the wounds, Sergeant Smith stated:
                                                                           Not one of the wounds was a
          The fact that he was shot in both legs,                    life-threatening injury. It's possible that
       twice in both legs, once in the forearm,                      the final or finishing touch to the back of
       once through and through in the flesh and                     the [*776] neck was going to be the ul-
       the stomach, shot in the penis, shot in the                   timate, but whoever [**6] shot him in
       middle of the back of the neck, they were                     the back of the neck messed that up too.
       torturing him or trying to get information
       or getting information from something
       over a bad drug deal.                                  Finally, offering another factor that supported his theory,
                                                              Officer Sosa pointed to the car, noting that it had been
                                                              covered in blood.
     Jesus Sosa, an officer with the Homicide Division,            Officer Sosa also testified that he eliminated Ayala
was assigned to investigate Playonero's death. Clayton        as a suspect when he interviewed Ayala to determine his
became the focus of his investigation based on the print      involvement. Ayala told Officer Sosa that he was at
identification. After Officer Sosa obtained an arrest war-    home alone when Playonero was shot.
rant for Clayton in mid-July, he first attempted to find
Clayton at his grandmother's house, which was located             The police never recovered a firearm linked to the
three to four miles from Brock Park. He also tried to lo-     shooting.
cate Clayton at his girlfriend's apartment and the homes           Clayton was the only defense witness. He testified
of various relatives. Despite Officer Sosa's efforts, Clay-   that he went to the park on June 14th about a quarter
ton was not arrested until he was stopped for a traffic       before noon to meet a woman he had met at a nightclub
violation in March 2002, some eight months later.             two weeks earlier. Immediately before he entered the
    Explaining what his investigation revealed, Officer       park, he saw a blue car exiting at a high rate of speed. He
Sosa testified that he did [**5] not speak with any wit-      did not see any other cars in the park when he first ar-
nesses who saw Clayton in the park on June 14th or who        rived. But when he was half-way into the park, he no-
witnessed Clayton shoot Playonero. He also testified that     ticed a white Avalon wrecked in front of a tree with the
he did not interview any witnesses who could connect          engine running and the rear passenger's door open.
Clayton to Playonero.                                         Clayton got out of his car and walked toward the car. He
                                                              saw Playonero lying in the backseat covered in blood.
     Concurring with Sergeant Smith's opinion about           With both hands, Clayton grasped Playonero's left hand
why Playonero had been murdered, Officer Sosa testified       for a few seconds and, in response, Playonero began to
that, based on his investigation, he believed that Play-      mumble but Clayton did not understand what he was
onero was conducting a drug transaction in the park and       [**7] saying. Clayton then got in the driver's seat, sat on
that the deal had "gone bad." During his investigation,       the tire iron, and "tried to put the car in reverse, but the
Officer Sosa verified his initial suspicions about Play-      gravel around the car was - - where the ground was wet
onero's involvement with drugs. He stated that Play-          and the mud was, the car wouldn't move." Although he
onero's wife told him that Playonero was involved in the      tried to move the car two times, the tires just spun. Dur-
drug business and that he would disappear for several         ing direct examination by his attorney, Clayton stated
days at a time and return with money. In furtherance of       that he did not remember touching the console of the car
his theory, Officer Sosa also referred to Playonero's         but that he did remember touching the gear-shift handle
wounds:                                                       and the steering wheel. According to Clayton, the
                                                              gear-shift was in the drive position before he moved it,
          The way he was shot, the manner in                  and when the car would not move, he put the gear-shift
       which he was shot, the wounds he re-                   in neutral and turned the engine off. Clayton then saw a
       ceived, to me somebody wanted to hurt                  truck veer off the road outside of the park; he panicked,
       him.                                                   got in his car, and left the park. As he left the park, he
                                                              saw two animal control trucks parked behind the truck
            ...
                                                              that veered off the road across the street. Clayton then
                                                              headed to the house that he shared with his grandmother.
                                                                                                                  Page 4
                               235 S.W.3d 772, *; 2007 Tex. Crim. App. LEXIS 1385, **


     On cross-examination, the prosecutor challenged                    Q. And the man's still alive as you're
Clayton's testimony about his attempts to move the Ava-             leaving, right?
lon out of the mud:
                                                                         A. Yes, [**9] sir.
          Q [Prosecutor]. [Y]ou got the car in                            Q. And you can tell that it's serious
       reverse. You're spinning the tires in the                    life-threatening injuries, correct?
       mud, and no mud gets thrown on that
       front fender; [**8] is that correct? You                          A. Yes, sir.
       saw the picture. There's no mud on it?                           Q. And those animal control officers
            A [Clayton]. There's no mud on that                     are right there. Can you help me? You
       car in the picture.                                          don't go up to them?

            Q. Now I want you to look at this                            ...
       picture again. You notice on this front tire                      A. Sir, I was scared. I just left.
       that the mud is only half way kind of, al-
       most half moon shape on the tire?                                Q. You were scared of the animal
                                                                    control officers?
            A. Yes, sir.
                                                                         A. I was scared when I heard the
            Q. And you said that when you first                     truck flip over. I didn't know what was
       walked up to this car, it was stuck down                     going on, sir.
       in the mud, right? It was stuck?
            A. Yes, sir.
            Q. What we're looking at here, if                     And when the prosecutor questioned him about
       that's the mud line, where the car was                whether he called 911 when he got home, Clayton ad-
       stuck in the mud on that tire.                        mitted that he did not call and stated that he went to his
                                                             room, sat on his bed for a while thinking about what he
           Defense Counsel: Judge, I object.                 had seen, and cried for a few minutes. Although Clayton
       He's asking him to speculate again.                   testified that he often confided in his grandmother, he
                                                             stated the he did not tell her about what he had seen even
           Prosecutor: He's there, Judge, he
                                                             though she was there when he came home. Finally, when
       should know.
                                                             asked by the prosecutor if any of his family members
            ...                                              told him that the police had a warrant for his arrest,
                                                             Clayton stated that he did not know about the warrant
           Court: All right. You give me a
                                                             until he was arrested during the traffic stop in March.
       chance to rule. He can answer it if he
       knows.
                                                             Procedural History
            Q [Prosecutor]. You see what I'm
                                                                  The jury convicted Clayton of murder 2 and sen-
       talking about right here, all the mud caked
                                                             tenced him to thirty years' imprisonment. Clayton ap-
       on the tire right there?
                                                             pealed his conviction, claiming "that the evidence was
            A. Yes, sir.                                     legally and factually [**10] insufficient to prove he
                                                             committed murder." 3 Without addressing Clayton's fac-
           [*777] Q. That's the mud from                     tual sufficiency claim, the Thirteenth Court of Appeals
       where the car was stuck in the mud, right?            held that the evidence was legally insufficient, reversed
            A. Yes, sir.                                     the trial court's judgment, and entered a judgment of ac-
                                                             quittal. 4

The prosecutor also questioned Clayton about why he                 2    TEX. PENAL CODE. ANN. § 19.02(b)
left the park without telling either of the animal control          (Vernon 1994).
officers about Playonero:                                           3 Clayton, 169 S.W.3d at 255.
           Q [Prosecutor]. You'd have to agree it's                 4 Id.
        a pretty heinous crime, a pretty bad crime,               Considering Clayton's bloody prints first, the court
        right?                                               of appeals stated that the bloody prints "are not evidence
            A [Clayton]. Yes, sir.                           that [Clayton] was with the victim before the shooting,
                                                                                                                   Page 5
                               235 S.W.3d 772, *; 2007 Tex. Crim. App. LEXIS 1385, **


and an inference to that effect can be reached only by         mulative force of all the evidence when viewed in the
first assuming that appellant was the perpetrator of the       light most favorable to the verdict." 13 Our review of "all
murder and then working backwards." 5 The court con-           of the evidence" includes evidence that was properly and
cluded that the prints only proved that Clayton was at the     improperly admitted. 14 When the record supports con-
crime scene after Playonero was shot and that Clayton's        flicting inferences, we presume that the factfinder re-
presence after the murder is not enough to prove guilt. 6      solved the conflicts in favor of the prosecution and
                                                               therefore defer to that determination. 15 Direct and cir-
       5 Id. at 258.                                           cumstantial evidence are treated equally: "Circumstantial
       6 Id. (citing Solomon v. State, 49 S.W.3d 356,          evidence is as probative as direct evidence in establish-
       361 (Tex. Crim. App. 2001); Medina v. State, 7          ing the guilt of an actor, and circumstantial evidence
       S.W.3d 633, 641 (Tex. Crim. App. 1999); Miles v.        alone can be sufficient to establish guilt." 16
       State, 918 S.W.2d 511, 515 (Tex. Crim. App.
       1996)).                                                        10 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d
                                                                      560 (1979).
     Next, the court noted that an individual's failure to
                                                                      11 Id. at 319 (emphasis [**13] in original).
notify law-enforcement officials about a crime is not
                                                                      12 Id.
enough to prove guilt. 7 The court then focused [**11]
                                                                      13 Hooper v. State, 214 S.W.3d 9, 16-17 (Tex.
on proof of motive. While observing that motive is
                                                                      Crim. App. 2007).
[*778] not an element of murder, the court stated that
                                                                      14 Conner v. State, 67 S.W.3d 192, 197 (Tex.
"when identity is called into question, as it is here, proof
                                                                      Crim. App. 2001).
of motive might be the glue that holds the entire case
                                                                      15 Jackson, 443 U.S. at 326.
together." 8 The court pointed to the absence of any evi-
                                                                      16 Hooper, 214 S.W.3d at 13.
dence connecting Clayton to Playonero and then deter-
mined that drug-deal-gone-bad theory was unreliable,                After a thorough review of the record and the opin-
stating, "Such strained speculation is far too weak and        ion below, we hold that the court of appeals incorrectly
attenuated a connection to prove a motive sufficient to        applied the Jackson standard when considering the cir-
establish beyond a reasonable doubt [Clayton's] identity       cumstantial evidence supporting Clayton's conviction.
as the murderer." 9                                            The court failed to properly consider the combined and
                                                               cumulative force of the evidence and view the evidence
       7 Id. (citing Medina, 7 S.W.3d at 641).                 in the light most favorable to the jury's guilty verdict.
       8 Id. (citing Guevara v. State, 152 S.W.3d 45,          The court did not consider all of the evidence in its suffi-
       50 (Tex. Crim. App. 2004); King v. State, 29            ciency analysis and, in conducting its cursory review of
       S.W.3d 556, 565 (Tex. Crim. App. 2000)).                the evidence, the court improperly used a di-
       9 Id.                                                   vide-and-conquer approach, systematically isolating and
                                                               then discounting the evidence supporting Clayton's con-
     We granted review to determine whether the Thir-
                                                               viction. Giving proper deference to the jury's verdict,
teenth Court of Appeals erred in its legal sufficiency
                                                               [*779] we find the evidence legally sufficient to sustain
analysis and erred in holding that the evidence was le-
                                                               Clayton's conviction.
gally insufficient to support Clayton's murder conviction.
We conclude that it did and remand this case to the court           The jury was presented with two conflicting theo-
of appeals for consideration of Clayton's factual suffi-       ries--the State's and Clayton's. The jury was able to as-
ciency claim.                                                  sess the credibility and demeanor of the witnesses who
                                                               testified at trial. And most importantly, the jury was able
Law and Analysis                                               to assess [**14] Clayton's credibility and demeanor
                                                               when he explained the presence of his bloody prints in
     [HN1] When we review a court of appeals's applica-
                                                               the Avalon. From the guilty verdict, it is clear that the
tion of the legal sufficiency standard set out in Jackson v.
                                                               jury rejected Clayton's exculpatory explanation. With
[**12] Virginia, 10 "the relevant question is whether, after
                                                               these things in mind, we consider the evidence in the
viewing the evidence in the light most favorable to the
                                                               light most favorable to the verdict.
prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable             We begin with Clayton's bloody prints. When evalu-
doubt." 11 This standard accounts for the factfinder's duty    ating the legal sufficiency in burglary cases, we have
"to resolve conflicts in the testimony, to weigh the evi-      said that "the fingerprints of an accused, which neces-
dence, and to draw reasonable inferences from basic            sarily must have been made at the time of the burglary,
facts to ultimate facts." 12 Therefore, in analyzing legal     are sufficient to sustain a conviction without further
sufficiency, we "determine whether the necessary infer-        identification evidence." 17 In burglary cases, fingerprints
ences are reasonable based upon the combined and cu-           constitute direct evidence of the ultimate fact to be
                                                                                                                    Page 6
                                235 S.W.3d 772, *; 2007 Tex. Crim. App. LEXIS 1385, **


proved--illegal entry. 18 In this case, the ultimate fact to    additional piece of incriminating circumstantial evi-
be proved is the identity of Playonero's killer. 19 Clayton's   dence. And, in this case, an inference of guilt based on
bloody prints do not constitute direct evidence of the          flight was heightened by the obvious conflict between
ultimate fact to be proved--that Clayton shot Playonero.        Clayton's stated [**17] reason for fleeing the park and
The prints establish only that Clayton was at the crime         his explanation accounting for the presence of the bloody
scene some time after Playonero was shot. Therefore, the        prints. Although the court of appeals accurately deter-
court of appeals correctly concluded that the prints,           mined that Clayton's failure to inform authorities about
standing alone, do not sufficiently establish that Clayton      Playonero is not enough to establish guilt, 21 the court
shot Playonero. However, the prints constitute circum-          disregarded this circumstance as it related to the incon-
stantial evidence [**15] and, by considering the prints         gruity between Clayton's testimony accounting for the
in isolation, the court failed to recognize their signifi-      bloody prints and his flight. Explaining the presence of
cance when considered with the remaining circumstantial         his prints, Clayton testified that, after discovering Play-
evidence admitted at Clayton's trial.                           onero bloody in the backseat of the car, he was con-
                                                                cerned and tried to move the car to get help for Play-
       17 Phelps. v. State, 594 S.W.2d 434, 435 (Tex.           onero. Clayton stated that he spent two minutes trying to
       Crim. App. 1980) (quoting Dues v. State, 456             remove the car from the mud but that he was unsuccess-
       S.W.2d 116, 117 (Tex. Crim. App. 1970)).                 ful because the tires would spin in the mud. Yet, contrary
       18 Eiland v. State, 509 S.W.2d 596, 598 (Tex.            to his stated objective, Clayton testified that he quickly
       Crim. App. 1974).                                        abandoned his efforts to help Playonero:
       19 See id.
                                                                         Q [Prosecutor]. You hear the crash,
     In addition to establishing Clayton's presence at the
                                                                       what do you do?
crime scene after Playonero was shot, the bloody prints
provide an additional, incremental piece of circumstan-                    A [Clayton]. I get in my car and
tial evidence that support an inference that Clayton was               leave.
the shooter. During the State's closing argument, the
                                                                           Q. What about the man in the
prosecutor used the quantity of bloody prints to discredit
                                                                       backseat of the car? Did anyone help him?
Clayton's explanation and further its trial theory. Direct-
ing the jury's attention to a photograph of Playonero's                    A. I was trying to help him; but when
body, the prosecutor stated that Playonero's hands "were               I heard the truck flip over, I didn't know
fairly clean." Reminding the jury that Clayton testified               what to do.
that he only grasped one of Playonero's hands, the pros-
                                                                           Q. You're going to leave the park to
ecutor argued, "That's not enough blood on the man's
hand to be able to leave it behind to be able to leave that            go get him help?
many prints. And to leave that much blood on the center                    A. I was just trying to get away, sir.
console, gear shift, door, didn't [**16] happen." In con-              [**18] Get away from there, that's it.
sidering the evidence relied on by the prosecutor, a ra-
tional juror could infer that Clayton lied about the extent                Q. So you had decided to stop help-
of his involvement with Playonero and therefore lied                   ing this man and you're just leaving.
about his involvement in Playonero's death. And, when                  You're done with it. You can't get the car
considered with Sergeant Smith's testimony about the                   out. You're on your own, Buddy, I'm
unlikelihood that Playonero was shot at the crime scene,               leaving; is that correct?
a juror could rationally infer that, in order to dispose of                 A. Yes, sir.
the evidence, Clayton drove Playonero to the park in the
Avalon after he was shot. Indeed, such an inference
would be consistent with Davis's statement that she did         Clayton also admitted that he failed to stop and tell the
not see any vehicles leave the park when she was assist-        animal-control officers about Playonero even though
ing the driver of the truck outside of the park's exit as       they were just across the street from the park's exit as-
well as the medical examiner's testimony that Playonero         sisting the truck driver. Indeed, Clayton conceded that he
would be able to live for only five to ten minutes after        failed to call 911 or notify anyone about Playonero after
sustaining the gunshot wounds.                                  he left the park. In short, Clayton's sudden flight does not
     [*780] We have recognized that [HN2] a fact-               comport with Clayton's "Good Samaritan" explanation
finder may draw an inference of guilt from the circum-          for the presence of the prints. Additionally, Clayton's
stance of flight. 20 Clayton's flight from the park, which      "Good Samaritan" explanation was also inconsistent with
the court of appeals failed to consider, constitutes an         evidence showing that there was no mud thrown on the
                                                                front fender of the Avalon. Therefore, a rational juror
                                                                                                                 Page 7
                               235 S.W.3d 772, *; 2007 Tex. Crim. App. LEXIS 1385, **


considering Clayton's explanation could draw a strong         opined that, based on his investigation and his review of
inference of guilt based on his flight from the park.         the crime scene photos and the autopsy report and pho-
                                                              tographs, Playonero's murder was likely drug-related. In
       20 Hardesty v. State, 656 S.W.2d 73, 78 (Tex.          offering [**21] his opinion, Officer Sosa emphasized
       Crim. App. 1983); Jones v. State, 481 S.W.2d           the nature of Playonero's wounds, the fact that Playonero
       900, 902 (Tex. Crim. App. 1972).                       was left for dead, the fact that the car was covered in
       21 Clayton, 169 S.W.3d 258.                            blood, and the fact that someone tried to burn the car in
                                                              an effort to destroy evidence. Sergeant Smith offered the
     Similar to flight, although a marginally less incul-
                                                              same opinion. Based on his training and experience, his
patory piece of circumstantial evidence, is Clayton's fail-
                                                              investigation at the park, the nature of Playonero's
ure [**19] to turn himself into police on the arrest war-
                                                              wounds, and the fact that Playonero was Columbian,
rant. The warrant was issued eight days after Clayton
                                                              Sergeant Smith theorized that it was a drug-related kill-
was identified through the bloody prints. Officer Sosa
                                                              ing. A juror considering the testimony of Officer Sosa
testified that he and his partner tried to locate Clayton
                                                              and Sergeant Smith could rationally infer that Play-
over the course of a week after the warrant was issued.
                                                              onero's murder was drug-related. Even though the court
He testified that he informed Clayton's grandmother,
                                                              of appeals gave short-shrift to the circumstantial evi-
mother, girlfriend, and father's girlfriend about the war-
                                                              dence supporting the State's theory, its ultimate conclu-
rant. He also stated that Clayton's attorney contacted his
                                                              sion about the evidentiary value of the proof of motive
partner on July 30th about the warrant. Clayton denied
                                                              was correct. Because there was no evidence of a prior
knowing about the warrant until he was arrested the fol-
                                                              relationship between Clayton and Playonero and no evi-
lowing March, eight months after the warrant was issued.
                                                              dence that Clayton was involved with drugs, the circum-
When the prosecutor [*781] asked Clayton where he
                                                              stantial evidence of motive was insufficient to establish
had been during the eight months, Clayton said he had
                                                              Clayton's identity as Playonero's killer; it only provided
been at his grandmother's house, mother's house, father's
                                                              the jury with an explanation for Playonero's death. As a
house, and girlfriend's house. A rational juror consider-
                                                              result, a juror weighing this evidence could not rationally
ing this evidence, could infer that Clayton knew about
                                                              [**22] draw an inference of guilt from this evidence
the warrant and intentionally avoided apprehension. As
                                                              alone.
with the circumstance of flight, under the specific facts
of this case, a juror could reasonably draw an inference           Finally, we consider the timing of the events sur-
of consciousness of guilt based on Clayton's failure to       rounding Playonero's death. As stated above, Clayton's
turn himself into authorities.                                own testimony, together with his bloody prints, establish
                                                              that he was with Playonero in the park after Playonero
     When considering motive, the court of appeals cor-
                                                              was shot. Clayton testified that he was with Playonero
rectly recognized that although [**20] motive is not an
                                                              for at least two to three minutes after Playonero was shot.
element of murder, 22 it may be a circumstance that is
                                                              Referring to Playonero's neck injury, the medical exam-
indicative of guilt. 23 Noting that there was no evidence
                                                              iner testified: "I think that five to ten minutes would be
connecting Clayton to Playonero, the court stated that
                                                              the outer limit of how long [Playonero] would have been
Officer Sosa's theory that the murder was drug-related
                                                              able to survive this type of injury." Davis testified that
because of Playonero's involvement in dealing drugs did
                                                              Playonero [*782] died in her arms approximately ten
not "prove a motive sufficient to establish beyond a rea-
                                                              minutes after she discovered him, which was approxi-
sonable doubt" that Clayton shot Playonero. In reaching
                                                              mately fifteen to twenty minutes after the truck veered
this conclusion, however, the court failed to
                                                              off the road. She stated that she did not see anyone enter
acknowledge all of the circumstantial evidence that sup-
                                                              or leave the park and did not hear any gunshots while she
ported the State's theory that Playonero's murder was
                                                              was assisting the truck driver. She also testified that she
drug-related.
                                                              did not see anyone else in the park when she discovered
                                                              Playonero.
       22 Id. (citing Ates v. State, 21 S.W.3d 384, 390
       (Tex. App.-Tyler 2000, no pet.); Reeves v. State,           In resolving the conflicting testimony offered by
       969 S.W.2d 471, 479 (Tex. App.-Waco 1998, pet.         Davis and the medical examiner about how long Play-
       ref'd)).                                               onero survived after being shot, a rational juror could
       23 Id. (citing Guevara v. State, 152 S.W.3d 45,        reasonably place Clayton in Playonero's [**23] pres-
       50 (Tex. Crim. App. 2004); King v. State, 29           ence at the time of the shooting. Playonero had, at most,
       S.W.3d 556, 565 (Tex. Crim. App. 2000)).               a survival time of ten minutes after he was shot in the
                                                              neck. Given Davis's testimony that Playonero lived for
     The State's theory rested on more than Officer Sosa's
                                                              some time after she discovered him and the evidence
testimony about Playonero's involvement with drugs.
                                                              indicating that no one other than Clayton was with Play-
Drawing on his training and experience, Officer Sosa
                                                                                                                 Page 8
                                235 S.W.3d 772, *; 2007 Tex. Crim. App. LEXIS 1385, **


onero during the final minutes of his life, it is rational to       Because we hold that the court of appeals erred in
infer that Clayton was with Playonero when he was shot.         holding that the evidence was legally insufficient to
And when considered with the combined and cumulative            support Clayton's conviction for murder, we reverse the
force of the incriminating circumstantial evidence dis-         judgment of the court of appeals and remand this case so
cussed above, we hold that a rational juror could find,         the court can consider Clayton's factual sufficiency
beyond a reasonable doubt, that Clayton was responsible         claim. 24
for killing Playonero.
                                                                       24    Watson v. State, 204 S.W.3d 404 (Tex.
     After reviewing the evidence under the Jackson
                                                                       Crim. App. 2006).
standard, we hold that the evidence is legally sufficient
to support the jury's guilty verdict.                               DATE DELIVERED: October 10, 2007
                                                                    PUBLISH
Conclusion
                                                                                                               Page 1




Questioned
As of: Aug 02, 2017

                          STEVEN TROY CURRY, Appellant v. THE STATE OF TEXAS

                                                      NO. 1521-99

                                   COURT OF CRIMINAL APPEALS OF TEXAS

                                    30 S.W.3d 394; 2000 Tex. Crim. App. LEXIS 87


                                          September 20, 2000, Date Delivered

PRIOR HISTORY:     [**1] FROM THE EIGHTH                      sufficiency of the evidence should have been measured
COURT OF APPEALS, HARRIS COUNTY.                              by using a hypothetically correct jury charge including
                                                              the deleted language. Applying that standard, the court
DISPOSITION:          Affirmed.                               held that the evidence supported the conviction.

CASE SUMMARY:                                                 OUTCOME: Conviction affirmed because even though
                                                              trial court erred in granting the State's motion to amend
                                                              indictment, since language it sought to delete was not
PROCEDURAL POSTURE: Criminal appellant and                    mere surplusage, a proper sufficiency analysis using a
State petitioned for discretionary review from a court of     hypothetically correct jury charge conducted with that
appeals (Texas) holding that the trial court erred in         language included showed the evidence was sufficient to
granting State's motion to amend indictment against ap-       support the conviction.
pellant to delete phrase that appellant used and threat-
ened to use deadly force, a firearm, after appellant was      LexisNexis(R) Headnotes
charged with aggravated kidnapping.

OVERVIEW: Criminal appellant was charged with ag-
gravated kidnapping. At trial, the victim testified appel-    Criminal Law & Procedure > Accusatory Instruments
lant and two other individuals forced him into a car and      > Accusatory Instruments Generally > Contents > Suf-
beat him. The victim originally told police appellant had     ficiency
a gun, but denied saying that at trial. The State's indict-   Criminal Law & Procedure > Accusatory Instruments
ment initially included the language that appellant com-      > Accusatory Instruments Generally > Due Process
mitted the kidnapping by using and threatening to use         Criminal Law & Procedure > Accusatory Instruments
deadly force, namely, a firearm. Over objection, after the    > Indictments > Due Process
State rested its case it moved to delete that phrase. The     [HN1] Both the U.S. Constitution and the Texas Consti-
motion was granted. On appeal, the court held the ruling      tution guarantee an accused the right to be informed of
on the deletion was error, but that the evidence was suf-     the nature and cause of the accusation against him. The
ficient to support appellant's conviction. Both parties       charging instrument must convey sufficient notice to
petitioned for discretionary review. The court affirmed       allow the accused to prepare a defense. The legislature
the appellate court's ruling upholding the conviction. The    has provided some guidance as to the adequacy of notice
court held that since the language was not mere surplus-      through ch. 21 of the Code of Criminal Procedure. In
age, but described the manner or means of the abduction,      particular, Tex. Code Crim. P. Ann. art. 21.03 provides
it should not have been deleted. The court then held the
                                                                                                                  Page 2
                                 30 S.W.3d 394, *; 2000 Tex. Crim. App. LEXIS 87, **


that everything should be stated in an indictment which        [HN6] Abduction adds to "restraint" the intent to prevent
is necessary to be proved.                                     liberation in one of two ways: either by secreting or by
                                                               the use or threat of deadly force. Tex. Penal Code §
                                                               20.01(2). An essential element of abduction is that the
Criminal Law & Procedure > Accusatory Instruments              defendant intended to prevent the liberation of the com-
> Indictments > Contents > Sufficiency                         plainant.
[HN2] An indictment is generally sufficient to provide
notice if it follows the statutory language. But tracking
the language of the statute may be insufficient if the stat-   Criminal Law & Procedure > Trials > Burdens of
utory language is not completely descriptive, so that          Proof > Prosecution
more particularity is required to provide notice. For ex-      Criminal Law & Procedure > Jury Instructions > Par-
ample, when a statute defines the manner or means of           ticular Instructions > Use of Particular Evidence
commission in several alternative ways, an indictment          [HN7] A hypothetically correct jury charge is one which
will fail for lack of specificity if it neglects to identify   accurately sets out the law, is authorized by the indict-
which of the statutory means it addresses. On the other        ment, does not unnecessarily increase the State's burden
hand, the State need not plead evidentiary matters.            of proof or unnecessarily restrict the State's theories of
                                                               liability, and adequately describes the particular offense
                                                               for which the defendant was tried. This list is not neces-
Criminal Law & Procedure > Accusatory Instruments              sarily exhaustive.
> Indictments > Contents > Surplusage
[HN3] Allegations not essential to constitute the offense,
and which might be entirely omitted without affecting          Criminal Law & Procedure > Criminal Offenses >
the charge against the defendant, and without detriment        Crimes Against Persons > Kidnapping > General Over-
to the indictment are treated as mere surplusage, and may      view
be entirely disregarded. The exception to that rule is         [HN8] The language of the aggravated kidnapping stat-
when the unnecessary matter is descriptive of that which       ute alleges that a defendant acted toward the victim with
is legally essential to charge a crime. Extra language is      the intent to either (1) hold him for ransom or reward; (2)
descriptive of an element of the offense if it defines the     use him as a shield or hostage; (3) facilitate the commis-
offense more narrowly, places it in a specific setting, or     sion of a felony or the flight after the attempt or commis-
describes the method by which it was committed. Such           sion of a felony; (4) inflict bodily injury on him or vio-
language must be proven as alleged, even though need-          late or abuse him sexually; (5) terrorize him or a third
lessly stated.                                                 person; or (6) interfere with the performance of any gov-
                                                               ernmental or political function. Tex. Penal Code §
                                                               20.04(a).
Criminal Law & Procedure > Grand Juries > Proce-
dures > Return of Indictments > Motions to Quash
Criminal Law & Procedure > Accusatory Instruments              Criminal Law & Procedure > Verdicts > Inconsistent
> Indictments > General Overview                               Verdicts
[HN4] Whether an indictment fails to charge an offense         Criminal Law & Procedure > Appeals > Standards of
at all is an entirely different issue from whether the in-     Review > General Overview
dictment fails to provide adequate notice and is therefore     Evidence > Procedural Considerations > Weight &
subject to a motion to quash.                                  Sufficiency
                                                               [HN9] In reviewing the sufficiency of the evidence, an
                                                               appellate court must view the evidence in the light most
Criminal Law & Procedure > Criminal Offenses >                 favorable to the verdict and determine whether any ra-
Crimes Against Persons > Kidnapping > Elements                 tional trier of fact could have found the essential ele-
[HN5] The Texas Penal Code does not merely describe            ments of the offense beyond a reasonable doubt. An ap-
circumstances in which an abduction is unlawful; it de-        pellate court resolves inconsistencies in the testimony in
fines an abduction as a restraint accompanied by an in-        favor of the verdict.
tent to prevent liberation. Tex. Penal Code § 20.01(2).

                                                               Criminal Law & Procedure > Criminal Offenses >
Criminal Law & Procedure > Criminal Offenses >                 Crimes Against Persons > Kidnapping > General Over-
Crimes Against Persons > Kidnapping > General Over-            view
view
                                                                                                                 Page 3
                                  30 S.W.3d 394, *; 2000 Tex. Crim. App. LEXIS 87, **


Criminal Law & Procedure > Criminal Offenses >                     Williams then testified that he never told the police
Weapons > Use > Simple Use > Elements                         that Curry had a gun, that Curry had gotten out of the
[HN10] An abduction is a continuous, ongoing event.           car, or that Curry had threatened him. The State im-
There is no time limit for an abduction.                      peached Williams' credibility with the statements that he
                                                              had      previously    made      to  the    police.    On
COUNSEL: Charles Freeman, Houston.                            cross-examination, Williams testified that he had no rec-
                                                              ollection of anything he said to anyone from the time he
Jeffrey L. Van Horn, First. Assist. St. Att., Austin.         was thrown in the car until the time he awoke at the hos-
                                                              pital. On [**3] re-direct examination, Williams admit-
JUDGES: Keasler, J., delivered the opinion of the             ted that, after the incident, he was placed in a holdover
Court, in which McCormick, P.J., and Mansfield, Keller,       cell with Curry and had been concerned for his safety.
Price, Holland, and Womack, J.J., joined. Johnson, J.,        Later in the trial, Williams got back on the stand and
delivered a dissenting opinion in which Meyers, J.,           testified [*397] that Curry was not the person who
joined.                                                       kidnapped him and beat him up.
                                                                  Williams was found by emergency medical techni-
OPINION BY: Keasler
                                                              cians in a warehouse district. He was tied up with his
                                                              pants around his ankles and was shaking uncontrollably.
OPINION
                                                              He was hospitalized for a dislocated knee and elbow,
    [*396] ON APPELLANT'S AND STATE'S PE-                     trauma to the head, and gross instability.
TITIONS FOR DISCRETIONARY REVIEW
                                                                   Tracy Jacobs testified that he saw Curry that night
     The State's indictment of Steven Curry charged him       getting out of a similar-looking car and holding a gun.
with aggravated kidnapping "by using and threatening to       Curry shot and killed another individual, then returned to
use deadly force namely, a firearm." Over Curry's objec-      the car and the car drove off. Other testimony revealed
tion, the trial court permitted the State to delete this      that Curry's home had been burglarized the day before.
phrase after trial began. We must decide whether the trial    The burglars had broken into his home by breaking down
court erred in allowing this deletion, and whether a suffi-   the door. Curry suspected that Williams was responsible
ciency analysis should include this allegation. We con-       for the burglary. Williams was a petty thief who routine-
clude that once the State made this allegation, it had to     ly sold stolen jewelry at the Spices Club. He had several
prove it. We also conclude that the sufficiency of the        theft convictions.
evidence must be analyzed by using this phrase. And in
                                                                   Curry presented an alibi defense. John McCalep tes-
conducting this analysis, we find the evidence sufficient
                                                              tified that he was working on Curry's front door from
to support Curry's conviction.
                                                              about 5 p.m. to about 11 p.m. that [**4] night. He testi-
                                                              fied that Curry was either in the apartment or nearby the
FACTS
                                                              entire time. Curry testified similarly.
     Jetterson Williams testified that he was in the park-
                                                                   The State refuted that testimony with the testimony
ing lot of the Spices Nightclub at about 8 p.m. when
                                                              of Cynthia Floyd, Curry's girlfriend at the time. She tes-
Curry and two other individuals "put" him into a car and
                                                              tified that she was at the apartment the entire time while
drove off. He [**2] testified that he did not want to be
                                                              McCalep was working on the door, but Curry left the
in the car. While in the car, Curry beat him up with his
                                                              apartment around 7 or 8 p.m. and never returned. She
hands. Curry twisted Williams' knee and arm and
                                                              also testified that Curry told her to say that she was with
punched Williams in the head. Williams did not recall
                                                              him that evening.
the length of the beating, whether the car made any
stops, whether Curry said anything to him, or whether
                                                              PROCEDURAL BACKGROUND
Curry got a gun at any time. Williams admitted previ-
ously telling the police that Curry had dragged him to the         The State indicted Curry for aggravated kidnapping.
car, that Curry and the other men had beaten him with a       The indictment alleged that Curry "abducted Jetterson
brick, that Curry had tied him up and put a plastic bag       Williams . . . without his consent, with intent to prevent
over his face, that Curry had gone by a friend's house and    his liberation by using and threatening to use deadly
obtained a .38 pistol, that Curry had exited the car at one   force namely, a firearm, on [Williams] and with intent to
point and Williams had heard three gunshots, and that         inflict bodily injury on [Williams] and to terrorize [Wil-
Curry had forbidden Williams to tell to anyone what had       liams] and to violate and abuse [Williams] sexually."
happened.
                                                                  After the State rested its case, it moved to delete the
                                                              phrase "by using and threatening to use deadly force
                                                                                                                   Page 4
                                 30 S.W.3d 394, *; 2000 Tex. Crim. App. LEXIS 87, **


namely, a firearm, on [Williams]" from the indictment.        Rather than "losing" the allegation it deleted, it essen-
The trial court granted that motion over Curry's objec-       tially retained that allegation and added the alternative
tion.                                                         definition of abduction, giving it the opportunity to prove
                                                              either one in order to obtain a conviction. By deleting the
     On appeal, the court of appeals held that it was error
                                                              words it did, the State actually broadened the scope of
under Art. 28.10(b) for [**5] the trial court to grant the
                                                              the offense alleged so as to include both theories of ab-
State's motion, and the error harmed Curry. 1 On Curry's
                                                              duction. This is not like a standard "abandonment,"
sufficiency point, the court of appeals held that the evi-
                                                              which results in the State limiting its theories at trial. We
dence was sufficient to convict. 2 Curry filed a petition
                                                              will refer to the deletion of the phrase in this case as a
for discretionary review in which he argued that the court
                                                              modification of the indictment, rather than an abandon-
of appeals erred in its sufficiency analysis by failing to
                                                              ment.
apply Malik v. State. 3 We agreed and remanded the case
to the court of appeals to reconsider Curry's sufficiency         Legal Background
point in light of Malik. 4
                                                              [HN1] Both the U.S. Constitution and the Texas Consti-
       1 Curry v. State, 966 S.W.2d 203, 205-06 (Tex.         tution guarantee an accused the right "to be informed of
       App. -- El Paso 1998).                                 the nature and cause of the accusation" against him. 8 The
       2 Id. at 207.                                          charging instrument must convey sufficient notice to
       3 953 S.W.2d 234 (Tex. Crim. App. 1997).               allow the accused to prepare a defense. 9 The Legislature
       4 Curry v. State, 975 S.W.2d 629 (Tex. Crim.           [**8] has provided some guidance as to the adequacy of
       App. 1998).                                            notice through Chapter 21 of the Code of Criminal Pro-
                                                              cedure. 10 In particular, Art. 21.03 provides that "every-
     On remand, the court of appeals again found that the
                                                              thing should be stated in an indictment which is neces-
trial court's ruling on the State's motion to amend the
                                                              sary to be proved." 11
indictment was error and the error harmed Curry. 5 In its
sufficiency analysis, the court concluded that it was
                                                                     8 U.S. CONST., AMEND. VI.; TEX. CONST.
"bound by the theory alleged in the indictment as
                                                                     Art. I, § 10.
amended." 6 Since [**6] neither the jury charge given
                                                                     9 State v. Mays, 967 S.W.2d 404, 406 (Tex.
nor the amended indictment required proof that Curry
                                                                     Crim. App. 1998).
used a firearm, the court found the evidence sufficient to
                                                                     10      Ferguson v. State, 622 S.W.2d 846, 849
support a conviction. 7
                                                                     (Tex. Crim. App. 1981) (op. on reh'g).
                                                                     11 TEX. CODE CRIM. PROC. Art. 21.03.
       5 Curry v. State, 1 S.W.3d 175, 177-79 (Tex.
       App. -- El Paso 1999).                                      [HN2] An indictment is generally sufficient to pro-
       6 Id. at 181.                                          vide notice if it follows the statutory language. 12 But
       7 Ibid.                                                tracking the language of the statute may be insufficient if
                                                              the statutory language is not completely descriptive, so
     Both the State and Curry filed petitions for discre-
                                                              that more particularity is required to provide notice. 13
tionary review, from which we [*398] granted three
                                                              For example, when a statute defines the manner or means
grounds. The State, through the State Prosecuting Attor-
                                                              of commission in several alternative ways, an indictment
ney and the Harris County District Attorney, contends
                                                              will fail for lack of specificity if it neglects to identify
that the phrase at issue in the indictment was surplusage,
                                                              which of the statutory means it addresses. 14 [**9] On
unnecessary to the indictment, so the State was permitted
                                                              the other hand, the State need not plead evidentiary mat-
to "abandon" the language even after trial began. Curry
                                                              ters. 15
argues that the court of appeals erred in its sufficiency
analysis, because under Malik, the hypothetically correct
                                                                     12 Olurebi v. State, 870 S.W.2d 58, 62 (Tex.
jury charge would have included the phrase which the
                                                                     Crim. App. 1994).
State was improperly allowed to abandon. Since the res-
                                                                     13 Ibid.
olution of Curry's claim depends on our resolution of the
                                                                     14 Mays, 967 S.W.2d at 407.
State's contention, we address the State's claim first.
                                                                     15 Berg v. State, 747 S.W.2d 800, 809 (Tex.
     [**7] MODIFICATION OF INDICTMENT                                Crim. App. 1984) (op. on reh'g).
    Initially, we note that this case does not really in-
volve an "abandonment" of an allegation. The State was        Not every list of alternatives in a statute will constitute a
permitted to delete its specific allegation regarding the     "manner or means" of committing the offense. For ex-
type of abduction it sought to prove. As a result, it was     ample, in Thomas v. State, we held the State need not
permitted at trial to prove either definition of abduction.   allege which statutory definition of "owner" it seeks to
                                                                                                                 Page 5
                                 30 S.W.3d 394, *; 2000 Tex. Crim. App. LEXIS 87, **


prove in a theft case. 16 We reached this conclusion be-       setting, or describes the method by which it was com-
cause the term "owner" did not "go to an act or omission       mitted." 29 Such language "must be proven as alleged,
of the defendant." 17 Similarly, we held the State need not    even though needlessly stated." 30
further define the phrase "without effective consent," as
[*399] that phrase did not constitute an act or omission              26 526 S.W.2d 799 (Tex. Crim. App. 1975).
on the part of the defendant. 18 In contrast, in Ferguson v.          27 Id. at 802.
State, we held the State did need to allege, in the face of           28 Ibid.
a motion to quash, which method of delivery it sought to              29    Upchurch v. State, 703 S.W.2d 638, 641
prove [**10] in a delivery of controlled substance                    (Tex. Crim. App. 1985).
prosecution. 19 This was because delivery was "the act by             30 Id. at 640, citing Burrell, 526 S.W.2d at
the [defendant] which constituted the criminal conduct."              802.
20

                                                                    It is important to distinguish two concepts. [HN4]
       16 Thomas v. State, 621 S.W.2d 158, 164 (Tex.           Whether an indictment fails to charge an offense at all is
       Crim. App. 1981) (op. on reh'g).                        an entirely different issue from whether the indictment
       17 Ibid.                                                fails to provide adequate notice and is therefore subject
       18 Id. at 161.                                          to a motion to quash. 31 We are concerned today only
       19 Ferguson, 622 S.W.2d at 850-51.                      with what the indictment must allege to provide notice to
       20 Id. at 850.                                          the defendant.

     More recently, in Saathoff v. State, 21 we extended              31    Olurebi, 870 S.W.2d at 62 n.5.
the concept beyond acts and omissions to conduct. 22
There, we held that the State must allege, in the face of a     [**13] Application
motion to quash, which type of intoxication it seeks to
prove in a prosecution for involuntary manslaughter. 23             To determine whether the phrase in this case was
The State argued that intoxication was not an act or           surplusage, we review our cases on surplusage. The vast
omission, but merely a condition. We held the State in-        majority of our surplusage cases involve language that is
terpreted the concept of "act or omission" too narrowly. 24    not derived from any statute. In those cases, the language
We concluded that "if the prohibited conduct is statuto-       at issue is either unnecessary language that need not be
rily defined to include more than one manner or means          proved 32 or descriptive language that must [*400] be
of commission," the State must allege, upon timely re-         proved even though needlessly alleged. 33
quest, [**11] which manner or means it seeks to es-
tablish. 25                                                           32 Eastep v. State, 941 S.W.2d 130, 135 (Tex.
                                                                      Crim. App. 1997) (abandonment of some appro-
       21 891 S.W.2d 264 (Tex. Crim. App. 1994).                      priations in theft indictment permissible where
       22 TEX. PENAL CODE § 1.07(a)(10) (conduct                      aggregate value of remaining appropriations was
       means an act or omission and its accompanying                  still over $ 20,000); Swope v. State, 805 S.W.2d
       mental state).                                                 442 (Tex. Crim. App. 1991) (State need not al-
       23 891 S.W.2d at 267.                                          lege, to provide notice, acts defendant charged as
       24 Id. at 266.                                                 party committed which constituted manner or
       25 Ibid.                                                       means in which he solicited, encouraged, di-
                                                                      rected, or aided primary actor); Mays v. State,
     Sometimes the State alleges evidentiary matters in               726 S.W.2d 937, 941-42 (Tex. Crim. App. 1986)
its indictment which are not "necessary to be proved"                 (allegation of conduct of another person was sur-
under Art. 21.03. These allegations are considered "sur-              plusage and need not be proved because did not
plusage." In Burrell v. State, 26 we explained that "[HN3]            describe any conduct of defendant's); Upchurch,
allegations not essential to constitute the offense, and              supra (allegation that vehicle was "exempt" was
which might be entirely omitted without affecting the                 not descriptive of any element of offense of fail-
charge against the defendant, and without detriment to                ure to maintain financial responsibility so was
the indictment are treated as mere surplusage, and may                surplusage and need not be proved); Carberry v.
be entirely disregarded." 27 The exception to that rule is            State, 701 S.W.2d 255 (Tex. Crim. App. 1985)
when "the unnecessary matter is descriptive of that                   (excessive markings by bank on tenor of check
which is legally essential to charge a crime." 28 In Up-              alleged in forgery indictment were surplusage
church v. State, we explained that extra language is "de-             and need not be proved); Ex parte Williams, 622
scriptive" of an element [**12] of the offense if it "de-             S.W.2d 876, 877 (Tex. Crim. App. 1981) (allega-
fines the offense more narrowly, places it in a specific              tions in credit card abuse indictment that card
                                                                                                                Page 6
                               30 S.W.3d 394, *; 2000 Tex. Crim. App. LEXIS 87, **


      was "owned by complainant" and stolen "from                 484 (Tex. Crim. App. 1984) (allegation that de-
      complainant" were surplusage and need not be                fendant used instrument "known as a psycholog-
      proved, even though alleged); Hardie v. State,              ical stress evaluator" was descriptive of "instru-
      588 S.W.2d 936, 938-39 (Tex. Crim. App. 1979)               ment" element of offense, so once alleged, had to
      (allegation of culpable mental state was surplus-           be proved); Franklin v. State, 659 S.W.2d 831
      age and need not be proved where not an element             (Tex. Crim. App. 1983) (unnecessary allegation
      of offense); Smallwood v. State, 607 S.W.2d 911,            that defendant knew property was stolen from
      912 (Tex. Crim. App. 1979) (allegation in robbery           Elmer L. Herzberg was descriptive of stolen
      indictment that property stolen was "three pair             property element of offense, so once alleged, had
      women's slacks" was surplusage because property             to be proved); Windham v. State, 638 S.W.2d 486,
      taken not essential element of offense so need not          487 (Tex. Crim. App. 1982) (phrase "by shooting
      be proved, even though alleged); Green v. State,            at her with a gun" was allegation of act amount-
      578 S.W.2d 411 (Tex. Crim. App. 1979) (allega-              ing to more than mere preparation so had to be
      tion in criminal mischief indictment that property          proven); Garcia v. State, 595 S.W.2d 533 (Tex.
      was "seven miles north of Palo Pinto County"                Crim. App. 1980) (allegation that defendant did
      was unnecessary and not descriptive of what was             "take, steal, appropriate and carry away" was un-
      legally essential, so was surplusage, and need not          necessary but once alleged, had to be proved);
      be proved, even though alleged); Ferguson v.                Weaver v. State, 551 S.W.2d 419 (Tex. Crim. App.
      State, 572 S.W.2d 521, 524 (Tex. Crim. App.                 1977) (allegation that gun was a "Ruger" was de-
      1978) (word "copy" on tenor of security in in-              scriptive of deadly weapon element of offense, so
      dictment was surplusage and need not be proved              once alleged, had to be proved); Rowland v.
      because not descriptive of offense); Davis v.               State, 523 S.W.2d 676 (Tex. Crim. App. 1975)
      State, 532 S.W.2d 626 (Tex. Crim. App. 1976)                (allegation "on F.M. 1632" was descriptive of
      (allegation of money stolen in robbery was sur-             "upon a public highway" element of offense, so
      plusage and need not be proved where indictment             once alleged, had to be proved); Cohen v. State,
      also alleged automobile was stolen and robbery              479 S.W.2d 950, 951 (Tex. Crim. App. 1972) (al-
      prosecution did not require proof that all the              legation "in the 12,300 block of Westheimer
      property alleged was in fact stolen); Collins v.            Road" was unnecessary, but descriptive of "in the
      State, 500 S.W.2d 168, 169 (Tex. Crim. App.                 city of Houston, Texas," an element of offense,
      1973) (allegation of value "over $ 5.00" surplus-           so once alleged, had to be proved); McClure v.
      age, as statute only required value be below $              State, 296 S.W.2d 263, 163 Tex. Crim. 650 (1956)
      50.00); Malazzo v. State, 308 S.W.2d 29, 31, 165            (allegation "at the Alamo Cafe located at Cleve-
      Tex. Crim. 441 (1957) (allegation of value "in              land and Second Streets" was descriptive of loca-
      excess of $ 25" surplusage and need not be                  tion element of offense so once alleged, had to be
      proved).                                                    proved).
[**14]
                                                                 [**15] But in the case at hand, the language at is-
      33 Langston v. State, 855 S.W.2d 718, 721-22
                                                           sue comes directly from a statute, specifically, Penal
      (Tex. Crim. App. 1993) (allegation in trespass
                                                           Code § 20.01(2)(B). We only have a handful of surplus-
      case that property was "owned by Karen John-
                                                           age cases concerning statutory language. Some of those
      son" was unnecessary but once alleged, had to be
                                                           cases hold that statutory language [*401] must be
      proved, presumably because it was descriptive of
                                                           proved if alleged. 34 Others hold that excessive statutory
      property); Polk v. State, 749 S.W.2d 813, 816
                                                           language is surplusage and need not be proved. 35 The
      (Tex. Crim. App. 1988) (allegation that individual
                                                           State relies on this latter line of authority for its conten-
      was "unknown" to grand jurors was descriptive of
                                                           tion that the statutory language alleged here was sur-
      element of "another," so once alleged, had to be
                                                           plusage and need not have been proved.
      proved); Huffman v. State, 726 S.W.2d 155,
      156-57 (Tex. Crim. App. 1987) (allegation of
                                                                  34 Thomas v. State, 753 S.W.2d 688, 692 (Tex.
      "Black Hat Bar" was unnecessary but descriptive
                                                                  Crim. App. 1988) (allegation that owner did not
      of "licensed premises" so once alleged, had to be
                                                                  give his "assent in fact" was unnecessary but de-
      proved); Wray v. State, 711 S.W.2d 631, 634
                                                                  scriptive of element of lack of effective consent,
      (Tex. Crim. App. 1986) (allegation "by pointing
                                                                  so once alleged, had to be proved); Reynolds v.
      said deadly weapon at Mary Ann Henderson"
                                                                  State, 723 S.W.2d 685, 686-87 (Tex. Crim. App.
      was descriptive of element of threatening another
                                                                  1986) (statutory alternatives for type of restraint,
      with imminent bodily injury, so once alleged, had
                                                                  whether by moving victim from one place to an-
      to be proved); Clark v. State, 665 S.W.2d 476,
                                                                  other or confining victim, must be alleged in face
                                                                                                                 Page 7
                                 30 S.W.3d 394, *; 2000 Tex. Crim. App. LEXIS 87, **


       of motion to quash); Gibbons v. State, 652             State, is questionable. Porter does not conflict [**18]
       S.W.2d 413, 415 (Tex. Crim. App. 1983) (State          with Gibbons.
       must allege which type of abduction it seeks to
       prove in face of motion to quash), overruled in               38    Ibid.
       part, Adams v. State, 707 S.W.2d 900, 902-03                  39    Ibid.
       (Tex. Crim. App. 1986) (error does not result in              40    Thomas, 621 S.W.2d at 161.
       automatic reversal); Ferguson, 622 S.W.2d at
                                                                   The State also argues that Berg 41 conflicts with
       850-51 (State must allege which type of delivery
                                                              Gibbons. In Berg we stated that the term "appropriate"
       it seeks to prove in face of motion to quash).
                                                              need not be further defined. 42 The State contends that
 [**16]
                                                              "appropriate" and "abduct" are the same. We disagree.
       35 Berg, 747 S.W.2d at 809 (allegation that
                                                              Appropriation itself is not defined in the Penal Code.
       appropriation was "without owner's effective
                                                              Rather, the Code describes in which circumstances an
       consent" was not element of offense of theft so
                                                              appropriation is unlawful. 43 We explained in Berg that
       was surplusage and need not be proved, even
                                                              the "manner of acquisition or circumstances surrounding
       though alleged); Ward v. State, 642 S.W.2d 782,
                                                              the acquisition [*402] are merely evidentiary matters."
       783 (Tex. Crim. App. 1982) (false imprisonment         44
                                                                 We relied on McClain v. State. 45 In McClain, we ex-
       indictment need not allege that restraint was
                                                              plained that the manner of acquisition is irrelevant under
       "without consent"; that phrase is within definition
                                                              the Penal Code. 46 While earlier versions of the Code had
       of "restrain" and would be surplusage); Jackson
                                                              set out distinct theft offenses based on the manner of
       v. State, 633 S.W.2d 897, 899 (Tex. Crim. App.
                                                              acquisition, the current Code removes that focus entirely.
       1982) (allegation that habitation "was not then        47

       open to the public" was unnecessary in burglary
       indictment so need not be proved, even though                 41 Berg, 747 S.W.2d at 809.
       alleged).                                               [**19]
     We have already held contrary to the State's position           42 Ibid.; but see Coats v. State, 712 S.W.2d 520
with regard to this precise statute. In Gibbons, we held in          (Tex. Crim. App. 1986) (term appropriate must be
an aggravated kidnapping case that the State must allege,            defined); Coleman v. State, 643 S.W.2d 124 (Tex.
in the face of a motion to quash, which type of abduction            Crim. App. 1982), (same); Gorman v. State, 634
it seeks to prove. 36 The State argues that our holding in           S.W.2d 681 (Tex. Crim. App. 1982) (same).
Gibbons was incorrect, conflicts with Berg, Ward, and                43 TEX. PENAL CODE § 31.03(b).
Ex parte Porter, 37 and should be overruled. We disagree.            44 Berg, 747 S.W.2d at 809.
                                                                     45 687 S.W.2d 350 (Tex. Crim. App. 1985).
       36 Gibbons, 652 S.W.2d at 415.                                46 Id. at 353-55.
 [**17]                                                              47 Id. at 353.
       37     827 S.W.2d 324, 327 (Tex. Crim. App.                 The term "abduct" is different from "appropriate."
       1992) (op. on reh'g)                                   First, unlike "appropriate," "abduct" is defined in the
     In Porter, we held that the State need not allege        Penal Code. [HN5] The Penal Code does not merely de-
which definition of "forgery" it seeks to prove. The State    scribe circumstances in which an abduction is unlawful;
contends that "abduct" is no different than "forge." But      it defines an abduction as a restraint accompanied by an
Porter concerns the allegations the State must make in        intent to prevent liberation. 48 So the treatment of the
order for an indictment to allege an offense. It does not     terms "appropriate" and "abduct" in the Penal Code is
concern which allegations the State needs to make in          different. Second, there is no legislative history pertain-
order to provide notice. We did state that the particular     ing to the kidnapping statute similar to that of the theft
definition of forgery was merely an evidentiary matter. 38    statute. There has been no effort on the Legislature's part
But we also indicated that in the face of a motion to         to codify [**20] many different types of kidnapping
quash for lack of notice, the State would be required to      into a single statute. We conclude the rationale behind
make this allegation. 39 This reasoning seems to conflict     Berg and McClain is not applicable to the kidnapping
with Thomas's holding that evidentiary matters need not       statute.
be alleged even in the face of a motion to quash. 40 But
since the holding in Porter was that the indictment was              48    TEX. PENAL CODE § 20.01(2).
not fundamentally defective, the statements regarding              In Ward, the issue was whether informations charg-
notice are merely dicta. Porter's holding is irrelevant to    ing false imprisonment were fundamentally defective for
the issue before us, and its dicta, though it refutes the     failing to allege that the restraint was "without consent."
                                                              49
                                                                 In holding the informations were not defective, we
                                                                                                                    Page 8
                                 30 S.W.3d 394, *; 2000 Tex. Crim. App. LEXIS 87, **


stated that the phrase "without consent" was surplusage.       described the statutory alternatives here as the "peripher-
50
   This case is also distinguishable. First, "abduct" is       al aspects" of the act of entering. 61
conduct, but "without consent" is neither an act, omis-
sion, nor conduct. 51 So under Thomas, Ferguson, and                  57 TEX. PENAL CODE § 30.02(b).
Saathoff, "abduct" must be defined while "without con-                58 647 S.W.2d at 290.
sent" need not be.                                                    59 Ibid.
                                                                      60 Ibid.
       49 642 S.W.2d at 783.                                          61   41 GEORGE E. DIX & ROBERT O.
       50 Ibid.                                                       DAWSON, CRIMINAL PRACTICE AND
       51 See Thomas, 621 S.W.2d at 161 (allegation                   PROCEDURE § 20.119 (1995).
       of "without effective consent" in theft indictment
                                                                    [HN6] Abduction is different. It adds to "restraint"
       not act or omission of defendant).
                                                               the intent to prevent liberation in one of two ways: either
      [**21] More importantly, there are no statutory          by secreting or by the use or threat of deadly force. 62 An
alternative manner or means for the "without consent"          essential element of abduction is that the defendant in-
element of restraint. Restraint is defined as restricting a    tended to prevent the liberation of the complainant. 63
person's movement without consent while preventing his         Without this accompanying mental state, there is no ab-
liberation in either of two ways. 52 Restraint is not re-      duction; there is only restraint. The accompanying men-
straint unless it is without consent. Since there are no       tal state is what transforms mere restraint into abduction.
alternatives to "without consent," there would be no need      So there is nothing "peripheral" about this intent element.
for the State to make this allegation in an indictment to      The two alternative mental states provided in the statute
provide notice. It is a given under the statute that all re-   are [**24] the "manner or means" of engaging in the
straint is without consent. In contrast, the only thing        conduct of abduction.
"given" about an abduction is that it includes restraint.
The intent element is not a given, since there are two                62 TEX. PENAL CODE § 20.01(2).
statutory alternatives. So Ward is distinguishable.                   63 Carpenter v. State, 551 S.W.2d 724, 726
                                                                      (Tex.Crim.App. 1977).
       52    TEX. PENAL CODE § 20.01(1).
                                                                    The rationale in Marrs involved the specific defini-
    Although the State does not rely on Jackson or             tion of "enter" in the burglary statute. It did not set forth
Marrs v. State, 53 we note that they, too, are distinguisha-   any general principle of statutory construction. The Penal
ble. In Jackson, the State alleged in a burgla-                Code's definition of "enter" is simply not analogous to its
ry-of-a-habitation indictment that the habitation was "not     definition of "abduct."
then open to the public. [**22] " 54 This language ap-
                                                                    We have never before held that a statutory alterna-
pears in the portion of the statute criminalizing burglary
                                                               tive "manner or means" of engaging in an act, omission,
of a building, not a habitation. 55 We held the State did
                                                               or conduct constitutes surplusage. Indeed, we held the
not need to make the allegation and it was surplusage. 56
                                                               opposite in Gibbons, Reynolds, 64 and Ferguson. 65 We
This case is distinguishable because the statutory lan-
                                                               decline the State's invitation to create this new rule to-
guage at issue was not even an element of the offense
                                                               day. Instead, we reaffirm our decision in Gibbons and
which the State was seeking to prove.
                                                               hold that the State must allege, in the face of a motion to
                                                               quash, which type of abduction it seeks to prove in order
       53    647 S.W.2d 286 (Tex. Crim. App. 1983).
                                                               to give the defendant notice. The phrase "by using and
       54    633 S.W.2d at 898-99.
                                                               threatening to use deadly force namely, [**25] a fire-
       55    TEX. PENAL CODE § 30.02(a)(1).
                                                               arm" was not surplusage, and the trial court erred in al-
       56    633 S.W.2d at 899.
                                                               lowing the State to delete this phrase over Curry's objec-
     Finally, there is no conflict between Marrs and           tion after trial had begun.
Gibbons. We held in Marrs that "enter" need not be fur-
ther defined in a burglary indictment. "Enter" is defined             64 723 S.W.2d at 686-87 (State must allege, in
in the Penal Code as intruding any part of the body or                face of motion to quash, which statutory alterna-
intruding any physical object [*403] connected with                   tive manner or means of restraint it seeks to
the body. 57 We explained in Marrs that the "act" in-                 prove, whether by moving victim from one place
volved in entering is the intrusion. 58 The statutory alter-          to another or confining victim).
natives listed do not differentiate between methods of                65 622 S.W.2d at 850 (State must allege which
intrusion, because both are essentially [**23] the same.              type of delivery it seeks to prove in prosecution
59
   Both require the defendant to use his body, either di-             for delivery of controlled substance).
rectly or indirectly. 60 Professors Dix and Dawson have
                                                                                                                     Page 9
                                  30 S.W.3d 394, *; 2000 Tex. Crim. App. LEXIS 87, **


    Within its argument on this issue, the State urges us      court's charge, as measured against that indictment, did
to overrule the exception to the surplusage rule which         not require the jury to find that Curry used a firearm, the
provides that if a phrase is descriptive of an essential       court [**28] found it "irrelevant whether the evidence
element of the offense, it must be proved and cannot be        supported such a finding." 71
surplusage. But the phrase in this case was not merely
descriptive of an element of the offense; it was a manner              70    Id. at 181.
or means of committing an element of the offense. Since                71    Ibid.
the phrase here does not fall within the exception to the
surplusage rule, we need not (and should [**26] not)           Hypothetically Correct Jury Charge
decide whether to abandon the exception to the surplus-
                                                                    In considering the court of appeals' analysis, we look
age rule.
                                                               to Malik. Under Malik, sufficiency of the evidence is to
                                                               be measured against the hypothetically correct jury
SUFFICIENCY OF THE EVIDENCE
                                                               charge. [HN7] A hypothetically correct jury charge is
     We next address Curry's contention that the court of      one which "accurately sets out the law, is authorized by
appeals erred in its sufficiency analysis. In its original     the indictment, does not unnecessarily increase the
opinion, the court of appeals stated without elaborating       State's burden of proof or unnecessarily restrict the
that it agreed with Curry "that the record contains no . . .   State's theories of liability, and adequately describes the
evidence" that Curry abducted Williams "by using and           particular offense for which the defendant was tried." 72
threatening to use deadly force namely, a firearm." 66         This list is not necessarily exhaustive. 73
[*404] The court did not explain why it agreed with
Curry or give any rationale for its conclusion. It made                72    Malik, 953 S.W.2d at 240.
this statement without reciting the facts of the case or               73    Id. at 240 n.5.
examining any relevant caselaw. Nevertheless, the court
                                                                    Determining the "law" as "authorized by the indict-
held the evidence sufficient because it measured the evi-
                                                               ment" [**29] first requires that we determine which
dence against the jury charge given, and that charge did
                                                               indictment: the State's original indictment or the amend-
not require the jury to find that Curry abducted Williams
                                                               ed indictment. Since we have concluded the indictment
by using a firearm. 67 We remanded for the court to apply
                                                               was erroneously amended, the hypothetically correct jury
Malik. 68
                                                               charge must be one which is authorized by the original
                                                               indictment, not the amended indictment.
       66    966 S.W.2d at 207.
       67    Ibid.                                                  We believe the "law" as "authorized by the indict-
       68    975 S.W.2d at 630.                                ment" must be the statutory elements of the offense of
                                                               aggravated kidnapping as modified by the charging in-
     On remand, the court of appeals [**27] stated as
                                                               strument. That is to say, Curry's hypothetically correct
follows:
                                                               jury charge could not simply quote the language of the
     As we have found in our discussion of Curry's first       statute, instructing the jury to find Curry guilty if it found
point of error, Curry's remedy for error in amending the       that he abducted "another person," because the indict-
indictment after trial began is a new trial. The error is      ment specifically charges that Curry abducted Williams,
adequately addressed with this remedy and we need not          and the State was required to prove that element of the
fashion an additional remedy of acquittal based on fail-       offense.
ure of the evidence as measured under the original in-
                                                                    Similarly, the hypothetically correct jury charge
dictment. 69
                                                               could not simply track [HN8] the statute, alleging the
                                                               Curry abducted Williams "with the intent to [either] (1)
       69    1 S.W.3d at 180.
                                                               hold him for ransom or reward; (2) use him as a shield or
     We disagree. If the evidence is insufficient to sup-      hostage; (3) facilitate the commission of a felony or the
port Curry's conviction, the remedy is acquittal. That         flight after the attempt or commission of a felony; (4)
remedy is greater than simply granting Curry a new trial.      inflict bodily injury on him or violate or abuse him sex-
Curry's sufficiency point of error must be addressed,          ually; [**30] (5) terrorize him or a third person;
regardless of the fact that he has prevailed on his point of   [*405] or (6) interfere with the performance of any
error concerning an erroneous amendment of the indict-         governmental or political function." 74 The indictment
ment.                                                          specifically limited the State's allegations to options (4)
                                                               and (5). So in terms of "setting out the law" as "author-
     The court of appeals then briefly addressed Curry's
                                                               ized by the indictment," Curry's hypothetically correct
sufficiency point. It held that it was "bound by the theory
                                                               jury charge would have to instruct the jury that, to find
alleged in the indictment as amended." 70 Since the
                                                                                                                 Page 10
                                 30 S.W.3d 394, *; 2000 Tex. Crim. App. LEXIS 87, **


Curry guilty, they must find that he intentionally or              Here, the language at issue is a manner or means of
knowingly abducted Williams with the intent to inflict        an element of the offense. If the State failed to prove that
bodily injury on him, violate or abuse him sexually, or       manner or means, then there was an "actual failure in the
terrorize him.                                                State's proof of the crime." So under Malik, it follows
                                                              that this phrase must factor into a sufficiency [**33]
       74    TEX. PENAL CODE § 20.04(a).                      analysis. We conclude that Curry's hypothetically correct
                                                              jury charge would have instructed the jury to convict
     In that same vein, the "law" defines two different
                                                              Curry if it found that he intentionally or knowingly ab-
methods of "abduction," but the indictment alleges only
                                                              ducted Williams with the intent to prevent his liberation
one of those methods. So the hypothetically correct jury
                                                              by using or threatening to use deadly force namely, a
charge would have to include the phrase "by using and
                                                              firearm, on Williams and with intent to inflict bodily
threatening to use deadly force namely, a firearm." Cur-
                                                              injury on Williams or to terrorize Williams or to violate
ry's indictment would not "authorize" a conviction on
                                                              and abuse Williams sexually.
less than proof of this element, because this phrase is not
surplusage; once alleged, it had [**31] to be proved.
                                                              Application
     We next consider whether including that phrase op-
                                                                   We next consider whether the evidence was suffi-
erates to "unnecessarily increase the State's burden of
                                                              cient to convict Curry under this hypothetically correct
proof." The indictment charged that Curry abducted Wil-
                                                              charge. [HN9] [*406] In reviewing the sufficiency of
liams with intent to prevent his liberation by using and
                                                              the evidence, we must view the evidence in the light
threatening to use deadly force. Including the phrase "by
                                                              most favorable to the verdict and determine whether any
using and threatening to use deadly force namely, a fire-
                                                              rational trier of fact could have found the essential ele-
arm" in the hypothetically correct jury charge does not
                                                              ments of the offense beyond a reasonable doubt. 78 We
increase the State's burden of proof. Rather, it keeps the
                                                              resolve inconsistencies in the testimony in favor of the
State's burden of proof exactly the same. The State is
                                                              verdict. 79
simply required to prove what it alleged. In contrast, to
delete that phrase from the charge would result in a de-
                                                                     78 Jackson v. Virginia, 443 U.S. 307, 319, 99
crease in the State's burden of proof.
                                                                     S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979).
     Finally, we consider whether inclusion in the jury              79 Moreno v. State, 755 S.W.2d 866, 867 (Tex.
charge of the phrase "using and threatening to use deadly            Crim. App. 1988).
force namely, a firearm" would "adequately describe the
                                                                     [**34] Williams testified that around 8 p.m. Curry
particular offense for which [Curry] was tried." The of-
                                                              put him in a car against his will. He testified that Curry
fense for which Curry was tried was aggravated kidnap-
                                                              beat him up and broke his knee and arm. Though he later
ping. An "adequate" description of that offense, again,
                                                              testified that it was not Curry who took him and beat him
must mean an incorporation of the elements of the
                                                              up, the jury was free to find his initial testimony more
charging instrument. Without incorporating those ele-
                                                              credible. The State impeached Williams' credibility with
ments, the offense is not "adequately described." Here,
                                                              statements he had previously made to the police. The
the indictment specifically alleged that [**32] Curry
                                                              jury could have found that Williams was not an entirely
acted "by using and threatening to use deadly force
                                                              credible witness, but that some portions of his testimony
namely, a firearm." So in this case, an "adequate descrip-
                                                              were true while others were not.
tion of the offense" for which Curry was tried would
include this manner and means of abduction.                        Jacobs testified that he saw Curry that same night,
                                                              getting out of a similar-looking car, and holding a gun.
     Our conclusion comports with the rationale we ex-
                                                              He saw Curry shoot and kill someone, then return to the
pressed in Malik. There, the trial court charged the jury
                                                              car. Floyd testified that Curry left their apartment around
concerning the legality of the defendant's detention. 75
                                                              7 or 8 p.m. and did not return the entire evening. She also
We noted that this charge merely related to the admissi-
                                                              testified that Curry asked her to say that he was with her
bility of evidence, not to any "element of the offense." 76
                                                              that evening. The evidence also revealed that Curry sus-
We explained that a judgment of acquittal should be re-
                                                              pected that Williams was involved in the burglary of his
served for those instances in which there is an "actual
                                                              home. Although Curry and McCalep testified that Curry
failure in the State's proof of the crime." 77
                                                              was at the apartment the entire evening, the jury was free
                                                              to believe Floyd and disbelieve Curry and McCalep.
       75    953 S.W.2d at 235, 240.
       76    Id. at 240.                                          Based on this testimony, the jury could reasonably
       77    Ibid.                                            [**35] have believed that Curry restricted Williams's
                                                              movement without his consent and that Curry intended to
                                                                                                                  Page 11
                                 30 S.W.3d 394, *; 2000 Tex. Crim. App. LEXIS 87, **


inflict bodily injury on Williams or terrorize him. The
jury could have believed that Curry had a motive, in that      DISSENT
the jury could have believed that Curry wanted revenge
                                                                  Johnson, J., filed a dissenting opinion, in which
against Williams for the break-in. The jury also could
                                                               Meyers, J., joined.
have believed that Curry asked Floyd to lie for him be-
cause he had violated the law that evening.
                                                               DISSENTING OPINION
      The only remaining question is whether the jury ra-
                                                                     I agree with the majority that once the state alleged
tionally could have found that Curry restrained Williams
                                                               aggravated kidnapping "by using and threatening to use
with intent to prevent his liberation "by using or threat-
                                                               deadly force namely, a firearm," it was required to prove
ening to use deadly force namely, a firearm." We believe
                                                               that allegation. I also agree that the sufficiency of the
the jury could have reached this conclusion. [HN10] An
                                                               evidence must be analyzed using this allegation. Howev-
abduction is a continuous, ongoing event. 80 There is no
                                                               er, I respectfully dissent from the final disposition
time limit for an abduction. 81 So the abduction did not
cease once Williams was put in the car. It continued
                                                               In the instant case, the court of appeals concluded that
throughout the entire time he was in the car until he was
                                                               the hypothetically-correct jury charge did not include the
released in the warehouse district. Since Jacobs testified
                                                               phrase "by using and threatening to use deadly force
that he saw Curry with a gun that night, the jury could
                                                               namely, a firearm, on the Complainant." Curry v. State, 1
have believed that Curry had that gun and used it during
                                                               S.W.3d 175, 180-81 (Tex. App.--El Paso 1999). The ma-
the course of the abduction to prevent Williams' libera-
                                                               jority finds that this was error, and that the hypothetical-
tion. In addition, since Williams' credibility was [**36]
                                                               ly-correct jury charge would include this phrase. Ante,
impeached by the State, the jury was free to disbelieve
                                                               30 S.W.3d 394, 405. Thus, the court of appeals [**38]
Williams' testimony that Curry did not have a gun and
                                                               is found to have applied the wrong standard in its suffi-
that Curry did not threaten him. The jury reasonably
                                                               ciency analysis. The majority then performs its own suf-
could have believed that Williams denied these things at
                                                               ficiency analysis using the proper hypothetically-correct
trial because he was afraid of retribution from Curry.
                                                               jury charge. Ante, 30 S.W.3d 394, 404.
       80 Weaver v. State, 657 S.W.2d 148, 150 (Tex.                 Such action is inconsistent with our precedents See,
       Crim. App. 1983).                                       e.g., Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim.
       81 Ibid.                                                App. 1997) (judgment of court of appeals vacated and
                                                               cause remanded for that court to apply correct standard
     We deem the evidence sufficient for a rational jury
                                                               of review in analyzing sufficiency of the evidence);
to find that the State proved all the elements of the of-
                                                               Curry v. State, 975 S.W.2d 629 (Tex. Crim. App. 1998)
fense beyond a reasonable doubt.
                                                               (judgment of court of appeals vacated and cause re-
                                                               manded for reconsideration of defendant's sufficiency
CONCLUSION
                                                               claim in light of Malik); Blanco v. State, 962 S.W.2d 46
     We conclude that the phrase "by using and threaten-       (Tex. Crim. App. 1998) (judgment of court of appeals
ing to use deadly force namely, a firearm" was not sur-        vacated and cause remanded for reconsideration in light
plusage. The trial court erroneously permitted the State       of Malik). As we have previously stated, our jurisdiction
to delete this allegation over Curry's objection after trial   is limited to review of decisions by the courts of appeals.
had begun. The court of appeals has determined that this       Garcia v. State, 15 S.W.3d 533, 536-37 n.5 (Tex. Crim.
error [*407] harmed Curry, and we did not grant re-            App. 2000); see also TEX. CODE CRIM. PROC. 4.04, §
view of that issue. We therefore affirm the court of ap-       2; TEX. R. APP. P. 66.1. Because the court of appeals
peals' holding which grants Curry a new trial.                 did not apply the appropriate [**39] sufficiency analy-
                                                               sis, the majority's application of the appropriate standard
    We also find that Curry's hypothetically correct jury
                                                               is not a review of the court of appeals' decision; it is an
charge would [**37] have included the "deadly force"
                                                               application of that standard in the first instance. We
phrase, and that the evidence was sufficient to convict
                                                               should remand this cause and allow the court of appeals
Curry under such a charge. We affirm, albeit for different
                                                               to conduct the appropriate sufficiency analysis. To do
reasons, the court of appeals' holding that the evidence
                                                               otherwise is beyond our authority.
was sufficient to convict.
                                                                   Johnson, J.
    DATE DELIVERED: September 20, 2000
                                                                   Date delivered: September 20, 2000
DISSENT BY: Johnson
                                                                                                              Page 1




Caution
As of: Aug 02, 2017

                 JIMMIE FIELDS, JR., APPELLANT v. THE STATE OF TEXAS, APPELLEE

                                                 NO. 12-93-00283-CR

                       COURT OF APPEALS OF TEXAS, TWELFTH DISTRICT, TYLER

                                     932 S.W.2d 97; 1996 Tex. App. LEXIS 1372


                                              March 31, 1996, delivered
                                               March 31, 1996, filed

SUBSEQUENT HISTORY:                  [**1] Appellant's       consent to search. The court also found that certain evi-
Petition for Discretionary Review Refused September          dence was seizable under the plain view exception to the
18, 1996. Released for Publication November 15, 1996.        warrant requirement because the officer was lawfully in
                                                             the vehicle and it was immediately apparent that the evi-
PRIOR HISTORY:    APPEAL FROM THE 8TH                        dence was seizable evidence of a crime.
JUDICIAL DISTRICT COURT OF HOPKINS
COUNTY, TEXAS.                                               OUTCOME: The appellate court affirmed appellant's
                                                             conviction for possession of more than 400 grams of
DISPOSITION:          Affirmed.                              cocaine. The court found that the state proved that ap-
                                                             pellant exercised care, custody, control, or management
CASE SUMMARY:                                                over the cocaine found in the vehicle he was occupying,
                                                             and that appellant knew that the substance was cocaine
                                                             and, therefore, the evidence was legally sufficient to
PROCEDURAL POSTURE: Appellant challenged his                 support the conviction.
conviction, entered by the 8th Judicial District Court,
Hopkins County (Texas), for aggravated possession of         LexisNexis(R) Headnotes
more than 400 grams of cocaine.

OVERVIEW: Appellant was convicted of aggravated
possession of more than 400 grams of cocaine. The jury       Criminal Law & Procedure > Criminal Offenses >
assessed punishment at life imprisonment and a fine.         Controlled Substances > Possession > General Over-
Appellant raised numerous points of error on appeal. The     view
appellate court rejected appellant's contentions and af-     [HN1] See Tex. Health & Safety Code Ann. § 481.115
firmed his conviction. The court found that the evidence     (Supp. 1993).
was legally sufficient to support the conviction, that the
state proved that appellant exercised care, custody, con-
trol, or management over the cocaine found in the vehi-      Criminal Law & Procedure > Criminal Offenses >
cle he was occupying, and that appellant knew that the       Controlled Substances > Possession > General Over-
substance was cocaine. The court further found that the      view
trial court properly denied appellant's motion to suppress   [HN2] Possession is defined in Tex. Health & Safety
evidence because the officer had reasonable suspicion to     Code Ann. § 481.002(38) (Supp. 1993) as meaning actual
stop appellant and did not exceed the scope of appellant's   care, custody, control or management of the contraband.
                                                                                                                Page 2
                                  932 S.W.2d 97, *; 1996 Tex. App. LEXIS 1372, **




Criminal Law & Procedure > Appeals > Standards of           Criminal Law & Procedure > Pretrial Motions & Pro-
Review > Substantial Evidence > General Overview            cedures > Suppression of Evidence
Evidence > Procedural Considerations > Exclusion &          Criminal Law & Procedure > Appeals > Standards of
Preservation by Prosecutor                                  Review > Abuse of Discretion > General Overview
[HN3] In reviewing the legal sufficiency of the evidence,   [HN6] The appellate court must view the evidence of-
the appellate court must examine all of the evidence in     fered at a suppression hearing in the light most favorable
the light most favorable to the verdict to determine        to the trial court's ruling. The trial judge is the sole and
whether a rational trier of fact could have found the es-   exclusive factfinder at a hearing on a motion to suppress.
sential elements of the offense beyond a reasonable         On appeal, the court does not engage in its own factual
doubt. The standard of review is the same for both direct   review but decides whether the trial court's fact findings
and circumstantial evidence, and the state need not ex-     are supported by the record. If the findings are so sup-
clude every reasonable hypothesis other than the de-        ported, the court is not at liberty to disturb the trial
fendant's guilt.                                            court's findings, and, on review, the court addresses only
                                                            the question of whether the trial court improperly applied
                                                            the law to the facts. The totality of the circumstances
Criminal Law & Procedure > Criminal Offenses >              must be considered in determining whether the trial
Controlled Substances > Possession > Simple Posses-         court's findings are supported by the record, and those
sion > Elements                                             findings will not be disturbed absent a clear abuse of
Criminal Law & Procedure > Trials > Burdens of              discretion. If the trial court's decision is correct on any
Proof > Prosecution                                         applicable theory of law, it will be sustained.
[HN4] In order to establish the unlawful possession of a
controlled substance, the state must prove that the de-
fendant (1) exercised care, control, or management over     Criminal Law & Procedure > Search & Seizure >
the contraband, and (2) knew what he possessed was          Warrantless Searches > Investigative Stops
contraband. To establish control and knowledge of the       [HN7] Law enforcement officers are permitted to ask
cocaine, the state must prove more than that the defend-    questions of citizens. If the questioning results in a de-
ant was merely in the vicinity of the controlled sub-       tention, it must have been supported by reasonable sus-
stance; it must provide "affirmative links" between the     picion. This reasonable suspicion must be based upon
accused and the contraband, i.e., facts and circumstances   articulable facts suggesting that criminal activity may be
in addition to mere presence that raise a reasonable in-    taking place. In other words, there must be some level of
ference of the accused's knowledge and control of the       objective justification for making the stop beyond a mere
contraband.                                                 "hunch."


Criminal Law & Procedure > Criminal Offenses >              Criminal Law & Procedure > Jury Instructions > Par-
Controlled Substances > Possession > General Over-          ticular Instructions > Reasonable Doubt
view                                                        Criminal Law & Procedure > Jury Instructions > Re-
[HN5] A variety of factors may link an accused to con-      quests to Charge
traband; these include whether the contraband: (1) was in   Evidence > Procedural Considerations > Exclusion &
plain view; (2) was conveniently accessible to the ac-      Preservation by Prosecutor
cused; (3) was in a place owned by accused; (4) was in a    [HN8] Tex. Code Crim. Proc. Ann. art. 38.23 prohibits
car driven by accused; (5) was found on the same side of    the admission of any evidence obtained in violation of
the car as accused; (6) was found in an enclosed space;     the accused's rights and requires that in any case where
or (7) emitted an odor. Additional links include whether:   the legal evidence raises an issue under the rule, the jury
(8) paraphernalia to use the contraband was in view of or   shall be instructed that if it believes, or has a reasonable
found on the accused; (9) conduct of the accused indi-      doubt, that the evidence was obtained in violation of the
cated a consciousness of guilt; (10) the accused had a      provisions of the article, then and in such event, the jury
special relationship to the contraband; (11) occupants of   shall disregard any such evidence so obtained. Where a
the automobile gave conflicting statements about rele-      reasonable suspicion arises from articulable facts, an
vant matters; (12) the physical condition of the accused    officer is permitted to make a temporary investigation
indicated recent consumption of the contraband found in     detention. Where the facts relied upon by the state are
the car; and (13) affirmative statements connect the ac-    uncontroverted, their sufficiency is a question of law for
cused to the contraband.                                    the court.
                                                                                                                   Page 3
                                   932 S.W.2d 97, *; 1996 Tex. App. LEXIS 1372, **




                                                              Criminal Law & Procedure > Trials > Closing Argu-
Criminal Law & Procedure > Search & Seizure > Gen-            ments > Fair Comment & Fair Response
eral Overview                                                 Criminal Law & Procedure > Appeals > Reversible
Criminal Law & Procedure > Juries & Jurors > Prov-            Errors > General Overview
ince of Court & Jury > General Overview                       [HN14] The four areas of acceptable jury argument are:
Criminal Law & Procedure > Jury Instructions > Par-           (1) summation of the evidence, (2) reasonable deduction
ticular Instructions > Use of Particular Evidence             from the evidence, (3) answer to argument of opposing
[HN9] The trial court is required by Tex. Code Crim.          counsel, and (4) plea for law enforcement. For error to be
Proc. Ann. art. 38.23 to instruct the jury to disregard any   reversible, the comment, viewed in light of the record as
evidence illegally obtained when there is a fact issue as     a whole, must be extreme or manifestly improper, viola-
to the legality of the search and seizure.                    tive of a mandatory statute or must inject into the trial
                                                              new facts harmful to the accused. In arriving at its deci-
                                                              sion, an appellate court is to determine whether there is a
Criminal Law & Procedure > Search & Seizure >                 reasonable possibility that the comment made subject of
Warrantless Searches > Inventory Searches                     complaint might have contributed to the conviction or
Criminal Law & Procedure > Search & Seizure >                 the punishment assessed.
Warrantless Searches > Plain View
[HN10] Evidence will be admissible under the plain
view exception provided the evidence establishes that the     Criminal Law & Procedure > Trials > Closing Argu-
officer was lawfully on the premises, and it was immedi-      ments > General Overview
ately apparent that evidence was seizable evidence of a       Criminal Law & Procedure > Appeals > Reviewability
crime.                                                        > Preservation for Review > General Overview
                                                              [HN15] To preserve any error in jury argument for ap-
                                                              peal, counsel must have asserted a proper objection.
Criminal Law & Procedure > Search & Seizure >                 Moreover, the basis of complaint at trial is the only one
Search Warrants > Probable Cause > Personal                   that may be asserted on appeal.
Knowledge
Criminal Law & Procedure > Search & Seizure >                 COUNSEL: MONTSERRAT, ROBERT A.
Warrantless Searches > Plain View
[HN11] The "immediately apparent" prong of the plain          LONG, FRANK.
view analysis does not require actual knowledge of in-
criminating evidence. The focus is whether the officer        JUDGES: RAMEY, TOM (AUTHOR), HOLCOMB,
has probable cause to believe that the evidence discov-       CHARLES, HADDEN, ROBY
ered is associated with criminal activity.
                                                              OPINION BY: TOM B. RAMEY, JR.

Evidence > Testimony > Experts > General Overview             OPINION
[HN12] Expert testimony is admissible if it will help the
                                                                    [*100] A jury convicted Jimmie Fields, Jr.,
jury understand the evidence or determine a fact in issue.
                                                              ("Fields") of the offense of aggravated possession of
Tex. R. Crim. Evid. 702. An expert witness is one who
                                                              more than 400 grams of cocaine. The jury assessed pun-
will testify to matters requiring scientific, technical, or
                                                              ishment at life imprisonment and a $ 100,000 fine. Fields
other specialized knowledge. An expert may be qualified
                                                              appeals, raising eleven points of error. We will affirm.
to speak on such matters by virtue of his knowledge,
skill, experience, training, or education.                         Fields' sixth point of error challenges the legal suffi-
                                                              ciency of the evidence to support his conviction, and we
                                                              will address that point first. Fields asserts that the evi-
Evidence > Relevance > Relevant Evidence                      dence was insufficient because the State did not prove
Evidence > Scientific Evidence > Toxicology                   that he exercised care, custody, control or management
[HN13] The Texas Rules of Criminal Evidence define            over the cocaine found in the vehicle he was occupying,
relevant evidence as evidence having any tendency to          nor that he knew that the substance was cocaine.
make the existence of any fact that is of consequence to
the determination of the action more probable than it              Trooper Bruce Roberts ("Roberts"), a 19 year veter-
would be without the evidence. Tex. R. Crim. Evid. 401.       an with the Texas Department of Public Safety ("DPS"),
                                                              testified that on the afternoon of March 15, 1993, as he
                                                              entered the ramp [**2] onto Interstate 30 ("I-30"), a
                                                                                                                 Page 4
                                   932 S.W.2d 97, *; 1996 Tex. App. LEXIS 1372, **


beige/gold Lincoln Continental Towncar passed him at a        tance and placed Johnson under arrest for driving while
high rate of speed. Roberts, who was driving his DPS          license suspended. Shortly thereafter, Trooper Jeff
vehicle and accompanied by citizen observers Frank Bell       Maeker arrived, and Roberts informed him that he be-
and his niece, pursued the Lincoln. He clocked it at 61       lieved the occupants were transporting drugs in the Lin-
miles per hour in a 50 mile per hour zone where con-          coln. Roberts explained to Maeker that Johnson had been
struction was in progress. Once through the construction      acting extremely nervous, was shifting his weight from
area, Roberts activated his overhead flashing lights and      one side to the other, and would not look at him. Roberts
signalled the Lincoln to stop, which it did. As Roberts       stated, however, that Johnson said there were no drugs in
exited his vehicle, he noticed that [*101] the Lincoln        the Lincoln and that they could search the car if they
bore an Avis rental car sticker and that there were two       wanted to.
people in the vehicle. Roberts approached the driver,
                                                                   Roberts then informed Fields as to why they had ar-
later identified as Larry Johnson ("Johnson"), and asked
                                                              rested Johnson. He also asked Fields where they had
to see his driver's license; instead, Johnson handed him a
                                                              been. Fields told Roberts that they had been [**5] in
"Malibu Gran Prix" racing license. When Roberts asked
                                                              Grand Prairie looking for a site for his home. He then
him if he had a valid driver's license, Johnson appeared
                                                              attempted to show Roberts a set of plans. When asked if
nervous, moved his head around a lot, and stated that he
                                                              there were any drugs in the car, Fields replied "no" and
had one but he was not sure where it was. Johnson then
                                                              invited Roberts to search the Lincoln. When further
conducted a cursory search between the seats and
                                                              back-up support arrived, Roberts informed Fields and
reached for the glove box, explaining that he was looking
                                                              Johnson that he suspected that they were carrying drugs,
for his license. As Roberts waited, he noted that there
                                                              and they would take the Lincoln to the Hopkins County's
was no luggage in the car's interior. Unable to find his
                                                              Sheriff's Office to search it. Neither suspect protested.
[**3] license in the glove box, Johnson began to look
for it in the trunk. Roberts accompanied him to the rear           Bell then drove the Lincoln to the Sheriff's office
of the car. Upon opening the trunk, Roberts observed          where he and Trooper Boggs stayed with the vehicle
three items: a small sports bag, a garment bag, and a pair    while Roberts went with the vehicle occupants inside the
of silver-tipped boots. Johnson then began rifling            office. While Roberts was inside, he was notified by an-
through the sports bag. With regard to Johnson's search       other officer that drugs had been found under the hood of
of the first bag, Roberts testified: "Again, he was looking   the Lincoln. Roberts then went into the sally port, where
in it real rapidly. I don't see how he could have found       he was handed a bag that had been removed from the
anything if it was in there. He went through it real fast."   hood of the vehicle and which contained State's exhibits
Next, Johnson opened the garment bag which he stated          1-A, 1-B and 1-C. At trial, Roberts identified State's ex-
belonged to the passenger, Fields. When Roberts asked         hibit 2 as the same bag that had been removed from the
him why his license would be in the passenger's garment       Lincoln on March 15, 1993. Roberts also identified
bag, Johnson grew visibly more nervous.                       State's several exhibits as items found inside the Lincoln
                                                              during an inventory search.
     Johnson never found his license, so at Roberts' re-
quest, Bell, who had accompanied Roberts, took down                Exhibit 13, a container of air freshener, was identi-
Johnson's correct name and date of birth. Roberts testi-      fied as an [**6] item Roberts found under [*102] the
fied, however, that because Johnson was so nervous and        seat of the car the day following the arrests. With regard
stuttering so badly, it took Roberts quite awhile to get      to that exhibit, Roberts testified that because the Lincoln
Johnson's correct name and date of birth from him. Rob-       was to be picked up by the rental company, he had to
erts stated that it was obvious to him that something was     determine that all of the parties' belongings had been
wrong. When asked from where they had been travelling,        retrieved from the vehicle. These items consisted of two
Johnson informed Roberts that they had been in Grand          beepers--one of which may not have been in Roberts'
Prairie, [**4] Texas, for five days helping Johnson's         possession--two pagers which he already had in his pos-
uncle level a house. Roberts then approached Fields who       session, a radar detector, luggage and a pair of boots. He
produced a Tennessee Driver's License correctly identi-       further stated that in checking the vehicle's interior, he
fying him as Jimmie Fields, Jr. When asked, Fields in-        found the container of air freshener under the passenger's
formed Roberts that his girlfriend had rented the Lincoln     seat which had been occupied by Fields and which had
for them.                                                     not been listed on the vehicle inventory form. Roberts
                                                              thus testified that he retrieved the air freshener and pos-
     After talking with Fields, Roberts returned to his pa-
                                                              sibly one of two beepers that had been listed on the in-
trol vehicle to run computerized driver's license and
                                                              ventory along with the parties' luggage and boots. Rob-
criminal history checks on both men. From these inquir-
                                                              erts stated that because the duffle bag of drugs found
ies, Roberts learned that Fields' driver's license had been
                                                              under the hood had emitted a strong perfume smell, he
suspended; consequently, he called for back up assis-
                                                                                                                        Page 5
                                     932 S.W.2d 97, *; 1996 Tex. App. LEXIS 1372, **


deduced that the air freshener was the scent used to mask         would sell for approximately $ 60,000 wholesale in the
the drugs' odor and was thus evidence in the case.                Northeast Texas area. He further testified that at retail
                                                                  prices, that amount of cocaine would sell for as much as
     On cross-examination, Roberts testified that neither
                                                                  $ 900,000 on the street.
scales nor other drug paraphernalia was found [**7] in
the Lincoln, and neither suspect attempted to escape.                  Allen testified that through his work, he was familiar
Moreover, he testified that while Johnson was shaking             with the patterns and activities of people who transported
quite a bit, it was cold and misty outside while he was           narcotics. He then testified that characteristically, such
questioning the occupants.                                        people: (1) do not drive vehicles registered to them; (2)
                                                                  are deceptive as to their destination and the length of
    Frank Bell, a citizen who often rode with Roberts on
                                                                  time they will be travelling; (3) carry an inadequate
patrol, testified that after the arrest, at Roberts' direction,
                                                                  quantity of clothing for the number of occupants in the
he drove the Lincoln to the sally port of the Hopkins
                                                                  vehicle and their projected stay; (4) generally [*103]
County Jail. Bell testified that he neither put anything in
                                                                  display wealth while their stated employment would not
nor took anything out of the Lincoln, but he stated that
                                                                  support such wealth; (5) are generally very friendly; and
he was present when the drugs were found under the
                                                                  (6) carry electronic pagers. On cross-examination, how-
hood of the Lincoln.
                                                                  ever, Allen admitted that hundreds of thousands of peo-
      Ricky Jones, the canine narcotics officer for the           ple who are not drug traffickers drive rented vehicles and
Franklin County Sheriff, testified that on March 15,              carry pagers. He further testified that he had no personal
1993, the Hopkins County Sheriff's office requested his           knowledge [**10] as to whom the cocaine in evidence
assistance. In response to that request, he and Marko, the        here belonged. Additionally, Allen testified that drug
narcotics detection dog under his supervision, went to the        traffickers often carry a lot of money with them.
Hopkins County Sheriff's department. Upon their arrival,
                                                                       As its last witness, the State re-called Trooper Bruce
they were directed to the sally port to conduct a narcotics
                                                                  Roberts. On re-direct examination, Roberts testified that
search on a 1990 Lincoln. Marko, who is trained to de-
                                                                  Johnson informed him that he worked as a clerk for J &
tect the odor of marijuana and cocaine, "alerted" on the
                                                                  S Grocery. Following Roberts' testimony, the State rested
Lincoln at the area between the front tire and fender. In
                                                                  its case. Thereafter, Fields moved for an instructed ver-
response to the dog's reaction, Jones opened the Lin-
                                                                  dict based upon insufficient evidence. After hearing ar-
coln's hood and discovered a [**8] purple duffle bag,
                                                                  guments on the motion, the trial court denied the motion,
which had been placed on top of the engine. Inside the
                                                                  and the parties closed the evidence. The case was there-
duffle bag were two white towels, three packages of a
                                                                  after submitted to the jury on the court's charge, which
substance and then another towel between them. Jones
                                                                  contained instructions on the law of parties.
took the bag into his custody, borrowed a knife and stuck
it into one of the packages. When he extracted the knife,              The offense of aggravated possession of cocaine is
it was covered with a white powdery residue. Several              set forth in TEX. HEALTH & SAFETY CODE § 481.115
pictures of the packages and duffle bag were taken. Then          (Vernon Supp. 1993). That section provides:
Jones and another officer took the packages into the
Sheriff's office, weighed each and marked its weight on                      [HN1] (a) Except as authorized by this
the outside of the package. He then returned the packag-                 chapter, a person commits an offense if
es to the container and took more photographs. After-                    the person knowingly or intentionally
wards, Jones placed the packages in Roberts' custody.                    possesses a controlled substance listed in
Following this testimony, Jones identified State's exhib-                Penally Group 1, unless the person ob-
its 1-A, 1-B, and 1-C as the packages he had removed                     tained the substance directly from or un-
from the purple duffle bag.                                              der a valid prescription or order of a prac-
                                                                         titioner acting in the course of profession-
     Following Jones' testimony, Karen Shumate, a
                                                                         al practice.
chemist with the Texas DPS Crime Lab in Tyler, Texs,
identified State's exhibits 1-A, 1-B, and 1-C as the exhib-
its she received from Bruce Roberts. Shumate testified
                                                                  ...
that after receiving the exhibits, she tested and weighed
                                                                            (c) [**11] A person commits an ag-
them, and their combined weight was 3.00 kilograms or
                                                                         gravated offense if the person commits an
6.6 pounds. Shumate further testified that the three ex-
                                                                         offense under Subsection (a) and the
hibits [**9] contained 81 percent pure cocaine.
                                                                         amount of the controlled substance pos-
     As its next witness, the State called Keith Allen, a                sessed is, by aggregate weight, including
lieutenant with the DPS narcotics service. Allen testified               adulterants and dilutants, 28 grams or
that based upon his experience, 6.6 pounds of cocaine                    more.
                                                                                                                    Page 6
                                  932 S.W.2d 97, *; 1996 Tex. App. LEXIS 1372, **


             (d) An offense under subsection (c)             was found on the same side of the car as accused; (6)
       is:                                                   was found in an enclosed space; or (7) emitted an odor.
                                                             Additional links include whether: (8) paraphernalia to
                                                             use the contraband was in view of or found on the ac-
...                                                          cused; (9) conduct of the accused indicated a conscious-
          (2) punishable by confinement in the               ness of guilt; (10) the accused had a special relationship
       Texas Department of Corrections for life              to the contraband; (11) occupants of the automobile gave
       or for a term of not more than 99 years or            conflicting statements about relevant matters; (12) the
       less than 10 years, and a fine not to ex-             physical condition of the accused indicated recent con-
       ceed $ 100,000, if the amount of the con-             sumption of the contraband found in the car; and (13)
       trolled substance is, by aggregate weight,            affirmative statements connect the accused to the con-
       including adulterants and dilutants, 400              traband. Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App.
       grams or more.                                        - Houston [1st Dist.], 1994, pet ref'd).
                                                                  In the instant case, the following evidence linked
                                                             Appellant to the contraband: (1) inasmuch as the Lincoln
[HN2] Possession is defined in § 481.002(38) as mean-
                                                             had been rented by Fields' girlfriend, Bostik, Fields had
ing "actual care, custody, control or management" of the
                                                             had posession of the vehicle for the [**14] preceding
contraband.
                                                             five or more days while Fields & Johnson had been in
     [HN3] In reviewing the legal sufficiency of the evi-    Grand Prairie; (2) the drugs were found concealed be-
dence, this Court must examine all of the evidence in the    neath the closed hood of the Lincoln, and the hood latch
light most favorable to the verdict to determine whether a   was controlled from the interior of the car; (3) a can of
rational trier of fact could have found the essential ele-   air freshener was located under the seat occupied by
ments of the offense beyond a reasonable doubt. Jack-        Fields, and the air freshener odor matched the scent of
son v. Virginia, 443 U.S. 307 at 320, 61 L. Ed. 2d 560,      the contraband when found; (4) Fields untruthfully de-
99 S. Ct. 2781, 2789 (1979); Jones v. State, 833 S.W.2d      nied his prior drug offenses; (5) Fields and Johnson gave
118, 122 (Tex. Cr. App. 1992), cert denied, 507 U.S. 921,    conflicting stories as to their purpose for coming to Tex-
113 S. Ct. 1285, 122 L. Ed. [**12] 2d 678 (1993). The        as and activities while in Texas; (6) Fields carried an
standard of review is the same for both direct and cir-      inadequate amount of clothing for a five day trip; (7)
cumstantial evidence, and the State need not exclude         Fields exhibited unnatural equanimity and lack of con-
every reasonable hypothesis other than the defendant's       cern throughout the temporary detention and the subse-
guilt. Geesa v. State, 820 S.W.2d 154, 161 (Tex. Cr.         quent investigation.
App. 1991).
                                                                  Reviewing the evidence in the light most favorable
     [HN4] In order to establish the unlawful possession     to the verdict, we conclude that the evidence presented
of a controlled substance, the State must prove that the     provided an affirmative link from which the jury could
defendant (1) exercised care, control, or management         rationally find that Fields had control of the cocaine and
over the contraband, and (2) knew what he possessed          knew the cocaine was contraband. Accordingly, we
was contraband. Cude v. State, 716 S.W.2d 46, 47 (Tex.       overrule point of error six.
Cr. App. 1986); Hurtado v. State, 881 S.W.2d 738, 743
                                                                   In his first two points of error, Fields asserts that the
(Tex. App. - Houston [1st Dist] 1994, no pet.); Gonzales
                                                             trial court erred in overruling his motion to suppress the
v. State, 809 S.W.2d 778, 780 (Tex. App. - Houston [14th
                                                             fruits of the search of the Lincoln Towncar [**15]
Dist.] 1991, pet ref'd). To establish Field's control and
                                                             driven by Johnson, in which Fields was the only other
knowledge of the cocaine, the State must prove more
                                                             occupant. In point one, Fields contends that there were
than that he was merely in the vicinity of the controlled
                                                             no facts justifying an investigatory detention of Fields or
substance; it must provide "affirmative links" between
                                                             his arrest. In his second point, Fields asserts that Trooper
the accused and the contraband, i.e., facts and circum-
                                                             Bruce Roberts ("Roberts") exceeded the search consent
stances in addition to mere presence that raise a reasona-
                                                             that Fields gave him.
ble inference of the accused's knowledge and control of
the contraband. Hurtado, 881 S.W.2d at 743. In Gilbert            At the suppression hearing that preceded the com-
v. State, 874 S.W.2d 290, the First Court [**13] of Ap-      mencement of the guilt/innocence phase of the trial, only
peals cataloged [HN5] a variety of factors that may link     Roberts was called as a witness. His testimony at the
the accused to the contraband; these include whether the     suppression hearing tracked his subsequent testimony at
contraband: (1) was in plain view; (2) was conveniently      the guilt/innocence phase of the trial as previously de-
accessible to the accused; (3) was in a place owned by       scribed.
[*104] accused; (4) was in a car driven by accused; (5)
                                                                                                                     Page 7
                                   932 S.W.2d 97, *; 1996 Tex. App. LEXIS 1372, **


     In our consideration of these points, [HN6] we must      other words, there [**18] must be some level of objec-
view the evidence offered at the suppression hearing in       tive justification for making the stop beyond a mere
the light most favorable to the trial court's ruling. Laca    "hunch." Howe v. State, 874 S.W.2d 895, 900 (Tex. App.
v. State, 893 S.W.2d 171, 176 (Tex. App. - El Paso 1995,      - Austin 1994, no pet.). Here, the excessive speed of the
pet ref'd). The trial judge is the sole and exclusive fact-   car, the apparent extreme nervousness of the driver, his
finder at a hearing on a motion to suppress. Romero v.        suspended license, Fields' apparent possion of the vehicle
State, 800 S.W.2d 539 (Tex. Cr. App. 1990). On appeal,        (Fields stated that the overdue rental of the vehicle was
we do not engage in our own factual review but decide         to his absent girlfriend, Bostik), Roberts' knowledge that
whether the trial court's fact findings are supported by      (despite Fields' initial denial) Fields had a history of drug
the record. Laca, 893 S.W.2d at 177. If the findings are      offenses, the travellers' inconsistent versions of their re-
so supported, we are not at liberty to disturb [**16] the     cent activities, and the total circumstances surrounding
court's findings, and, on review, we address only the         the vehicle support the less demanding level of suspicion
question of whether the trial court improperly applied the    required for a temporary detention and the abbreviated
law to the facts. Romero, 800 S.W.2d at 543. The total-       inquiries of Fields. Fields' first point is overruled.
ity of the circumstances must be considered in determin-
                                                                   As to whether Roberts exceeded the alleged consent
ing whether the trial court's findings are supported by the
                                                              to search, the record reflects that Fields' consent followed
record, and those findings will not be disturbed absent a
                                                              his denial that there were any drugs in the Lincoln. It
clear abuse of discretion. Dancy v. State, 728 S.W.2d
                                                              appears that Roberts had informed Fields and Johnson
772, 777 (Tex. Cr. App. 1987), cert. denied, 484 U.S.
                                                              that he suspected that there were drugs in the Lincoln.
975, 108 S. Ct. 485, 98 L. Ed. 2d 484 (1987). If the trial
                                                              Fields' oral consent to the search was voluntary, not re-
court's decision is correct on any applicable theory of
                                                              quested by Roberts. In a separate conversation, Johnson
law, it will be sustained. Romero, 800 S.W.2d at 543.
                                                              also offered his consent to search [**19] the Lincoln for
     Johnson was arrested; he was charged with driving        drugs. No DPS written consent form was executed by
the Lincoln with a suspended driver's license. Fields was     either occupant. Roberts decided to move the Lincoln to
not removed, nor did he alight from the Lincoln until         the Sheriff's office for the search because the stop had
Roberts advised him after the consent to search was           been made on an interstate highway in a construction
granted that the search of the automobile would be per-       area and the weather was inclement. Neither Fields nor
formed at the Sheriff's office. Other than the movement       Johnson objected to the movement of their vehicle or the
of the Lincoln for the search, to which Fields did not        place or nature of the search. No limitation upon the
object, Fields' liberty or movement was [*105] not            search was expressed. Fields' second point of error is
restricted or restrained; thus there was no arrest. Amores    overruled.
v. State, 816 S.W.2d 407, 411 (Tex. Cr. App. 1991).
                                                                   In his third point of error, Fields complains that the
Fields [**17] was handcuffed for the purpose of trans-
                                                              trial court erred in denying his requested jury charge
porting him in the DPS vehicle to the Sheriff's office in
                                                              pursuant to [HN8] Article 38.23 of the TEX. CODE
accordance with department policy. Fields was arrested
                                                              CRIM. PROC., which prohibits the admission of any
only after the discovery of the large quantity of contra-
                                                              evidence obtained in violation of the accused's rights and
band under the hood of the Lincoln. There is no dispute
                                                              requires that:
in the record that this handcuffing procedure was re-
quired by departmental policy while Fields was in transit
                                                                        In any case where the legal evidence
in the DPS vehicle.
                                                                     raises an issue hereunder, the jury shall be
     Fields complains of the initial stop. The Lincoln had           instructed that if it believes, or has a rea-
been stopped for the offense of speeding. Most of Rob-               sonable doubt, that the evidence was ob-
erts' post-stop conversation involved the car's driver,              tained in violation of the provisions of this
Johnson. [HN7] Law enforcement officers are permitted                Article, then and in such event, the jury
to ask questions of citizens. Daniels v. State, 718                  shall disregard any such evidence so ob-
S.W.2d 702, 704 (Tex. Cr. App. 1986), cert. denied, 479              tained.
U.S. 885, 107 S. Ct. 277, 93 L. Ed. 2d 252 (1986), over-
ruled on other grounds, Juarez v. State, 758 S.W.2d 772,
780 (Tex. Cr. App. 1988). If Roberts' questioning result-     Where a reasonable suspicion arises from articulable
ed in the detention of Fields, it must have been supported    facts, an officer is permitted to make a temporary inves-
by reasonable suspicion. Terry v. Ohio, 392 U.S. 1, 19        tigation detention. Stone v. [**20] State, 703 S.W.2d
n.16, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). This rea-      652, 654-55 (Tex. Cr. App. 1986). Where the facts relied
sonable suspicion must be based upon articulable facts        upon by the State are uncontroverted, their sufficiency is
suggesting that criminal activity may be taking place. In
                                                                                                                    Page 8
                                    932 S.W.2d 97, *; 1996 Tex. App. LEXIS 1372, **


a question of law for the court. Rose v. State, 470             and White v. State, 729 S.W.2d 737, 739 (Tex. Cr. App.
S.W.2d 198, 200 (Tex. Cr. App. 1971).                           1987), the State sets forth the following three factors that
                                                                must be satisfied to allow admission of evidence under
     Fields offered no proof in the case; therefore, though
                                                                the plain view doctrine: (1) the officer must lawfully be
he objected at the suppression hearing to the search and
                                                                on the premises; (2) the discovery must be "inadvertent";
seizure, he offered no proof that any of the State's evi-
                                                                and (3) it is "immediately apparent" that the incriminat-
dence was obtained in violation of his rights. Neither did
                                                                ing evidence is seizable as evidence of a crime. Id. It
the cross-examination of the State's witness raise a fact
                                                                then asserts that "inadvertence" is the only factor seri-
issue or call into question the validity of the detention or
                                                                ously challenged by Fields, and argues that the evidence
the consent to the search and seizure of evidence. Fields
                                                                establishes that factor.
did not present any evidence [*106] to challenge the
State's assertion that the Lincoln was speeding, that                While the three-part test of Coolidge served as the
Johnson's license was suspended, that the vehicle was           standard for admissibility of evidence under the [**23]
rented by a third party, Fields' girffriend, which rental       plain view doctrine for many years, in 1990, the United
agreement had expired, that Fields had a criminal history       States Supreme Court modified these criteria by deleting
of drug transactions, or that both Fields and Johnson           the element of "inadvertence." Horton v. California, 496
consented to the search.                                        U.S. 128, 110 S. Ct. 2301, 2304, 110 L. Ed. 2d 112
                                                                (1990); see State v. Haley, 811 S.W.2d 597, 599 (Tex. Cr.
     [HN9] The trial court is required by Article 38.23 to
                                                                App. 1991). Thus, [HN10] the air freshener will be ad-
instruct the jury to disregard any evidence illegally ob-
                                                                missible provided the evidence establishes that Roberts
tained when there is a fact issue as to the legality of the
                                                                was lawfully in the Lincoln, and it was immediately ap-
search and seizure. Brooks v. State, [**21] 642 S.W.2d
                                                                parent that the air freshener was seizable evidence of a
791, 799 (Tex. Cr. App. 1982); Moreno v. State, 916
                                                                crime. Id.
S.W.2d 654 (Tex. App. - El Paso 1996). Here there is no
such question presented by the evidence. Absent some                 The evidence at trial with regard to Roberts' pres-
controversion of some of the critical evidence, the ruling      ence in the vehicle showed that after the initial search
of the trial court is sustained. Fields' third point of error   and inventory of the Lincoln, Roberts had it impounded
is overruled.                                                   in a secured yard, and he retained its key. Further, it was
                                                                the local law enforcement officers' policy to leave in-
      By his fourth point of error, Fields alleges that the
                                                                ventoried items inside the impounded vehicle. The fol-
trial court erred in admitting into evidence over his ob-
                                                                lowing morning, Roberts contacted the Lincoln's rental
jection the can of air freshener found in the Lincoln be-
                                                                agency, and informed it of the Lincoln's location. The
cause Trooper Roberts did not inadvertently find this
                                                                agency, in turn, informed Roberts that it would send
evidence but intentionally went looking for it. Fields
                                                                someone to obtain possession of the Lincoln that day.
claims that because Roberts returned to search the car
                                                                Because the Lincoln was being released, Roberts went to
again 24 hours after it had originally been inventoried
                                                                the impounded vehicle to locate and remove all personal
and searched, and without a warrant or probable cause,
                                                                effects and belongings from [**24] the vehicle. At that
both the search of the vehicle and the seizure of the air
                                                                time, Roberts had with him a copy of the Lincoln's in-
freshener were unreasonable under the Fourth Amend-
                                                                ventoried contents. Although Fields argues that every-
ment.
                                                                thing Roberts needed from the inventory was contained
    As his sole authority for this position, Fields cites       in the trunk, we cannot disregard Roberts' testimony that
Arizona v. Hicks, 480 U.S. 321, 323-24, 107 S. Ct. 1149,        department policy was to leave inventoried items in the
94 L. Ed. 2d 347 (1987). In Hicks, an officer seized sto-       locked [*107] vehicle, that he believed he may have
len stereo equipment found in an apartment during an            retrieved an inventoried beeper from inside the vehicle's
investigation related to a shot fired from that apartment.      interior, and that items other than those originally found
The court held that the seizure of the stereo [**22]            in the trunk were also contained on the inventory. From
equipment, being unrelated to the shooting crime under          the evidence presented, we thus hold that Trooper Rob-
investigation, was an unlawful seizure. In so holding, the      erts discovery of the air freshener inside the Lincoln was
court noted that before the plain view doctrine can be          lawful. See Haley, 811 S.W.2d at 599.
invoked, there must be probable cause to believe that the
                                                                     Having satisfied the first element of Coolidge, we
item in question is evidence of a crime.
                                                                must next determine whether in discovering the air
     The State, in turn, argues that this was not an un-        freshener, it was immediately apparent that Roberts had
lawful search of the vehicle and that the plain view doc-       discovered evidence of a crime. [HN11] The "immedi-
trine was designed to allow the seizure of evidence in          ately apparent" prong of the plain view analysis does not
this type of scenario. Citing Coolidge v. New Hampshire,        require actual knowledge of incriminating evidence.
403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971)           Texas v. Brown, 460 U.S. 730, 103 S. Ct. 1535, 75 L. Ed.
                                                                                                                    Page 9
                                   932 S.W.2d 97, *; 1996 Tex. App. LEXIS 1372, **


2d 502 (1983) (reasonable person standard applied to          Thus, the fact that he may have later compared [**27]
officer's knowledge regarding drugs transported in bal-       its odor with that contained in the duffle bag is inconse-
loons). "The focus is whether the officer [**25] has          quential. 1
probable cause to believe that the evidence discovered is
associated with criminal activity." Joseph v. State, 807              1 In response to the State's later question as to
S.W.2d 303, 308 (Tex. Cr. App. 1991).                                 whether the odor that "emanated or that comes
                                                                      out of" the air freshener can was the same as that
     In the instant case, Roberts testified that when the
                                                                      on the towels in the duffle bag, Roberts merely
duffle bag from underneath the hood was opened, he
                                                                      answered that it was. Thus, there is even some
noticed that it emitted a strong perfume odor. Then, the
                                                                      evidence that the container emanated an odor
next day, when Roberts saw the air freshener, he recalled
                                                                      without being sprayed.
the strong perfume smell that the duffle bag had emitted
and believed that the bag might have been sprayed with              Given the facts before us, we hold that the evidence
the air freshener found in the Lincoln. Thereafter, he        established it was immediately apparent to Roberts that
seized the container as evidence.                             the air freshener was seizable evidence in connection
                                                              with the posession offense. Fields' fourth point of error is
     In Hicks, unlike the instant case, on finding the ste-
                                                              overruled.
reo components, the equipment had to be moved and
serial numbers had to be checked before it was deter-              In his fifth point of error, Fields argues that the trial
mined that the equipment had been stolen. Moreover,           court erred in overruling his objection to Lieutenant Al-
those officers were in the defendant's apartment on an        len's testimony as to drug trafficker patterns and charae-
unrelated shooting crime. Here, on the other hand, the air    teristics because they were not relevant to the instant
freshener was seized in connection with the possession        case, and even if they were, their prejudicial effect out-
crime for which Fields had already been arrested. Joseph      weighed any probative value they might have had.
is likewise distinguishable from the instant case. In Jo-
                                                                   The State called Keith Allen, a lieutenant with the
seph, during execution of a search warrant in connection
                                                              D.P.S. narcotics service [**28] as an expert [*108]
with a case for possession of marijuana, officers seized
                                                              witness. [HN12] Expert testimony is admissible if it will
an [**26] envelope containing a greeting card. On ap-
                                                              help the jury understand the evidence or determine a fact
peal, the court noted that the record was devoid of evi-
                                                              in issue. TEX. R. CRIM. EVID. 702. An expert witness
dence showing that it was immediately apparent to the
                                                              is one who will testify to matters requiring "scientific,
police officer that the greeting card was evidence of a
                                                              technical, or other specialized knowledge." Id. An expert
crime. Only after the officer read the contents of the card
                                                              may be qualified to speak on such matters by virtue of
did he realize its incriminating nature. Joseph, 807
                                                              his "knowledge, skill, experience, training, or education."
S.W.2d at 309. Consequently, the Court found that the
                                                              Id. Allen's expertise in the area of investigation of nar-
card was the product of an unreasonable search and sei-
                                                              cotics crimes is not challenged by Appellant.
zure.
                                                                   As stated, Allen testified that based upon his expe-
     Here, unlike Joseph and Hicks, Trooper Roberts
                                                              rience, 6.6 pounds of cocaine would sell for approxi-
connected the air freshener with the duffle bag of cocaine
                                                              mately $ 60,000 wholesale in the Northesst Texas area,
upon discovering it. Fields argues in passing that Roberts
                                                              and that the same amount would sell for as much as $
had to have sprayed the air freshener before he recog-
                                                              900,000 on the street. Allen's testimony as to the value of
nized it as evidence. We disagree. At trial, Roberts testi-
                                                              the cocaine found in the duffle bag under the Lincoln's
fied as follows with regard to the air freshener's immedi-
                                                              hood is not challenged on appeal. Allen also testified,
ate connection with the duffle bag:
                                                              however, that through his work, he was familiar with the
                                                              patterns and characteristics of people who transport nar-
           When we retrieved the bag at the Sher-
                                                              cotics. He then testified over timely objections based on
       iff's Office, it had a strong smell, a per-
                                                              relevance and TEX. R. CRIM. EVID. 403 that the fol-
       fume scent on it. When I saw that [the air
                                                              lowing characteristics or patterns commonly existed
       freshener] in the car I thought that is what
                                                              among "people [**29] who would be traveling with
       they used to cover the scent. That is
                                                              quantities" of controlled substances and particularly co-
       something that is done when people haul
                                                              caine: they (1) do not drive vehicles registered to them;
       drugs. They use this to spray on their
                                                              (2) are deceptive as to their destination and the length of
       drugs to help mask or cover the scent.
                                                              time they will be travelling; (3) carry an inadequate
                                                              quantity of clothing for their projected stay, that often
                                                              being only one change of clothes between the individuals
                                                              that occupy the vehicle; (4) generally display wealth
                                                                                                                 Page 10
                                   932 S.W.2d 97, *; 1996 Tex. App. LEXIS 1372, **


while their stated employment would not support such          presence of drugs in an automobile under circumstances
wealth; (5) are generally very friendly; and (6) carry        like those here was often the result of team work, and
electronic pagers. On cross-examination, however, Allen       thus, tended to negate the possibility that either code-
admitted that hundreds of thousands of people who are         fendant was unaware of the contraband's presence under
not drug traffickers drive rented vehicles and carry pag-     the hood. Accordingly, the trial court did not abuse its
ers. He further testified that he had no personal             discretion in overruling [*109] Fields' objection as to
knowledge as to whom the cocaine in evidence belonged.        the relevance of Allen's testimony.
Additionally, Allen testified that drug traffickers often
                                                                   A finding of relevance, however, does not end our
carry a lot of money with them.
                                                              inquiry. We must next determine whether under rule 403,
     [HN13] The TEXAS RULES OF CRIMINAL EV-                   the probative value of Allen's testimony was outweighed
IDENCE define relevant evidence as "evidence having           by the danger of unfair prejudice. Fields relies on Stew-
any tendency to make the existence of any fact that is of     art v. State, 874 S.W.2d 752 (Tex. App. - Houston [1st
consequence to the determination of the action more           Dist.] 1994, pet. ref'd), to [**32] support his position
probable than it would be without the evidence." TEX.         that Allen's testimony was highly prejudicial. In Stewart,
R. CRIM. EVID. 401. Appellant cites Nelms v. State,           the appellant was arrested for possession of a small
834 [**30] S.W.2d 110 (Tex. App. - Houston [1st Dist.]        quantity of cocaine found in his motel room. At trial, the
1992, pet. ref'd) in support of his contention that Allen's   arresting officer was allowed to testify at length regard-
testimony was irrelevant. In Nelms, the appellant was         ing his knowledge of drug trafficker conduct allegedly in
arrested at a convenience store for posession of cocaine      order to establish his expertise regarding street level drug
after he was seen dropping two rocks of cocaine beside a      trafficking. During his testimony, the officer testified
video game. At the time of his arret, the appellant was       extensively about the meanings of various drug termi-
wearing a pager. At trial, two of the prosecution's wit-      nology and the purposes and uses of various types of
nesses, repeatedly testified over the appellant's objection   drug paraphernalia, some of which was found in the ap-
that the appellant was wearing a beeper and that almost       pellant's hotel room. 2 On appeal, the court found that the
all drug dealers wear beepers. On appeal, the court of        officer's "experience dealing with narcotics trafficking
appeals held:                                                 was relevant to his qualifications as an expert on the use
                                                              of drug paraphernalia. His testimony about the use of
          The testimony was inadmissible evi-                 drug paraphernalia was, in turn, relevant to the showing
       dence of extraneous criminal conduct un-               of knowing possession." Id., at 756. The court, however,
       der rule 404(b). This evidence invited the             concluded that the State had used the wrong line of ques-
       jury to convict appellant of possession                tioning to qualify the officer as an expert: "The State
       because he was a drug dealer in general?               should have qualified Officer Thane as an expert on the
       The evidence about drug dealing was not                usage of drug paraphernalia through testimony about his
       relevant to any issue in the case and was              arrests of suspects for drug possession, [**33] and
       calculated to prejudice the jury by refen-             through testimony of his training and education on the
       ing to extraneous matters for which ap-                subject. It should not have elicited testimony of his expe-
       pellant was not on trial. We hold it was               rience with drug dealers." Id. The court then concluded
       error to admit the evidence under rule                 that because the officer's testimony about the drug trade
       404(b).                                                may have interfered with the jury's deliberations on guilt,
                                                              the prejudicial effect of the officer's testimony out-
                                                              weighed is probative force. Id.
 Id. at 114.
                                                                     2 This is but one example of the detailed testi-
     Nelms is readily distinguishable from the instant
                                                                     mony the State elicited from Officer Thane dur-
case. First, the case at bar does not involve a rule 404(b)
                                                                     ing the Stewart trial:
objection. Furthermore, [**31] Allen's testimony did
not characterize Fields and Johnson as "drug dealers" nor
                                                                                 [OFFICER]: A known drug
did it lead the jury astray from the issue of possession.
                                                                             dealer is a phrase that we give to a
Instead, Allen's testimony succinctly presented various
                                                                             person that has been documented
factors common among persons transporting drugs via
                                                                             as a narcotics trafficker or dealer
automobile. This testimony coupled with Allen's testi-
                                                                             because of prior convictions of
mony on the wholesale and street values of 6.6 pounds of
                                                                             narcotics, arrests or information
cocaine was relevant to the issue of the parties'
                                                                             received and documented that he
knowledge that the drug was present under the hood.
                                                                             is actually trafficking in narcotics
From Allen's testimony, the jury could also glean that the
                                                                             at the present time.
                                                                                                                   Page 11
                                    932 S.W.2d 97, *; 1996 Tex. App. LEXIS 1372, **


                    [STATE]: Now, how is crack                  failing to sustain his objections during closing argument.
               or rock used?                                    The Court of Criminal Appeals has held that [HN14] the
                                                                four areas of acceptable jury [*110] argument are: (1)
                    [OFFICER]: Crack cocaine is
                                                                summation of the evidence, (2) reasonable deduction
               utilized by inhaling it or smoking
                                                                from the evidence, (3) answer to argument [**35] of
               it. The way that it is ingested into
                                                                opposing counsel, and (4) plea for law enforcement.
               the body is usually by utilizing a
                                                                Darden v. State, 629 S.W.2d 46, 52 (Tex. Cr. App. 1982);
               crack pipe. It is sometimes
                                                                Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Cr. App.
               smoked in marijuana cigarettes,
                                                                1973). For error to be reversible, the comment, viewed in
               which is called a 151 or, like, in
                                                                light of the record as a whole, must be extreme or mani-
               regular Marlboro cigarettes or
                                                                festly improper, violative of a mandatory statute or must
               Kool cigarettes. It can be intro-
                                                                inject into the trial new facts harmful to the accused.
               duced into the body that way.
                                                                Allridge v. State, 762 S.W.2d 146, 155 (Tex. Cr. App.
                     The way it's introduced is it's            1988), cert. denied, 489 U.S. 1040, 109 S. Ct. 1176, 103
               chipped up in real small pieces.                 L. Ed. 2d 238 (1989). In arriving at our decision, this
               Those pieces are put into the ciga-              Court is to determine whether there is a reasonable pos-
               rette or into the crack pipe, and                sibility that the comment made subject of complaint
               then the heat source is applied to               might have contributed to the conviction or the punish-
               it. It turns the crack from the solid            ment assessed. Id.
               form to a liquid form to a gas
                                                                      In his seventh point of error, Fields asserts that the
               form, and then it's inhaled into the
                                                                trial court erred in overruling his objection to the State's
               body, and then it goes from the
                                                                argument that he had the burden to put on witnesses. The
               lungs into the bloodstream.
                                                                prosecutor had argued that an unidentified individual
                    [STATE]: What is a tamping                  only referred to as "Uncle" could have been called to
               rod?[OFFICER]: A tamping rod is                  testify as to what Fields and Johnson had been doing the
               used--it's usually either a very                 preceding five days while they were in Dallas. The
               small stick, a toothpick, a piece of             State's reference to "Uncle" was in response [**36] to
               coat hanger, something that is very              Johnson's attorney's argument in which he listed on the
               small, cylinder in shape, that has               blackboard potential witnesses that had not been called
               got a point on it that can be used to            by the State. State's counsel had suggested that the list
               push down the piece of rock into                 could have been supplemented by adding "Uncle"; it was
               the crack pipe.        Stewart, 874              not argued that Fields had the burden or obligation to
               S.W.2d 752 at 754-55.                            summon this witness. Furthermore, Fields cites no au-
                                                                thority to support his contention on this point. 3 For these
                                                                reasons, we conclude there is no merit to the point and it
                                                                is overruled.
      [**34] In the instant case, the State presented no
such dissertation on drug use or trafficking. Instead,                 3 In his brief, Fields' entire presentation on this
Lieutenant Allen merely gave brief testimony as to his                 point is as follows:
ten and a half years' employment with the Department of
Public Safety and his involvement as Task Force Com-                               "During the guilt-innocence
mander over the Narcotics Task Force Unit, which en-                           phase of trial, the State argued that
forces narcotics laws in Hopkins, Wood, Rains, Camp,                           the defense had the burden to put
Franklin and Titus County. Having reviewed Allen's tes-                        on witnesses. (SF 375-376).
timony, we conclude that the instant case is readily dis-                      Counsel objected, the objection
tinguishable from Stewart, and that the probative value                        was overruled. (SF 375-376). This
of Allen's testimony outweighed any prejudicial effect it                      is reversible error.
might have had. Accordingly, the trial court did not
abuse its discretion in admitting the evidence.
     Having found Allen's testimony both relevant and                 Fields' eighth point complains that the State im-
probative on the issue of knowing possession, we over-          properly argued in the punishment phase of the trial that
rule Fields' fifth point of error.                              he was going to multiply the value of the cocaine. The
    In his seventh, eighth, ninth, tenth and eleventh           State's attorney stated:
points of error, Fields alleges that the trial court erred in
                                                                                                                 Page 12
                                   932 S.W.2d 97, *; 1996 Tex. App. LEXIS 1372, **


          The law says that you can't have more              On appeal, the court found the argument quoted above
       than four hundred grams [**37] of co-                 tended to greatly exaggerate the amount of marihuana
       caine and get less of a sentence than ten             found in appellant's possession. It then noted that alt-
       years. Four hundred grams is less than a              hough a "reasonable deduction from the evidence," the
       pound. These men chose to possess six                 exaggeration as to quantity and the conclusion that "they
       point six pounds of cocaine. They could               are not only smoking it, but probably giving it away or
       have chosen not to have any cocaine.                  selling [**39] it" were not justified by the evidence and
       They know what the consequences of vi-                thus constituted error.
       olating the laws are. They know that if
                                                                  For obvious reasons, Fields' case is distinguishable
       you violate the laws of Texas or Tennes-
                                                             from Turrentine. The argument here contains no exag-
       see or the Federal Government you get
                                                             geration and draws no conclusion that Fields intended to
       punished and you go to prison. But the
                                                             sell the cocaine. Instead, the State merely deduced from
       reward was great enough that they took
                                                             the evidence that since there was a severe penalty for
       the risk. The reward was great enough to
                                                             possessing such a large quantity of cocaine, Fields and
       be in possession of sixty-six thousand
                                                             Johnson must have been significantly rewarded for dar-
       dollars worth of cocaine that you can turn
                                                             ing to possess it. The State was not arguing that Fields
       into three hundred thousand dollars to
                                                             and Johnson were going to sell the cocaine themselves
       nine hundred thousand dollars.
                                                             for a large profit. The State's argument provides a rea-
                                                             sonable summation of the evidence of value followed by
                                                             a reasonable deduction from that evidence. See Layne v.
Attorneys for the defense objected to this argument on
                                                             State, 752 S.W.2d 690, 695 (Tex. App. - Houston [1st
the basis that there was no evidence that Fields or John-
                                                             Dist.] 1988, pet ref'd). Appellant's eighth point of error is
son were going to turn the cocaine into that amount of
                                                             overruled.
money. They also asserted that "this is a possession case,
not a delivery case." The trial court then overruled the         In his ninth point, Fields contends that the State im-
objection stating: "All right. The jurors will recall the    properly argued:
testimony as they recall it to be. Overrule your objec-
tions."                                                                If you folks want to go home tonight
                                                                    and sleep, if you want to be sleeping fif-
    On appeal, Fields argues that the State's argument
                                                                    teen years from now or twenty years from
was highly inflammatory since this was a possession and
                                                                    now or thirty years from now and know
not a delivery case. In support of his position, he cites
                                                                    that Mr. Fields and Mr. Johnson aren't
[**38] Turrentine v. State, 536 S.W.2d 219, 220 (Tex.
                                                                    able to be driving up and down the road
Cr. App. 1976). In that case, the appellants had been
                                                                    with their cocaine, you [**40] know
convicted of possessing 8.15 ounces of marijuana. In
                                                                    what you need to do.
Turrentine, during closing argument at the punishment
phase, the State commented:
                                                             The court overruled Fields objection that the argument
          Now, I don't smoke marihuana and I
                                                             "puts the jury in the position of a future alleged victim."
       assume you don't either, and there's no
                                                             He cites two precedents, both of which involved specific
       evidence about how much of the stuff it
                                                             direct victims of the respective offenses. Boyington v.
       would take to make a marihuana cigarette,
                                                             State, 738 S.W.2d 704 (Tex. App. - Houston [1st Dist.]
       but you can call for it and look at it if you
                                                             1985, no pet.); Everett v. State, 707 S.W.2d 638 (Tex. Cr.
       want it. I submit it's a reasonable deduc-
                                                             App. 1986). No such error is presented in this possession
       tion from the evidence there's enough ma-
                                                             case where there is no evidence of a victim at the time of
       rihuana to make a man and wife high and
                                                             the offense or in the future. We construe this argument as
       keep them high until the year 1990. I
                                                             one for law enforcement. The ninth point is overruled.
       submit this is more marihuana than this
       man and wife ever intended for their own                   By his tenth point of error, Fields asserts that the
       personal use, and it's a reasonable deduc-            following argument was improper:
       tion from the evidence that they are not
       only smoking [*111] it but probably                             You folks have got a hard job to do. Its
       giving it away or selling it.                                always hard to send somebody to prison.
                                                                    But did you hear one reason why you
                                                                    shouldn't? Did you hear one single reason
                                                                    why these two shouldn't go to prison? Did
                                                                                                                   Page 13
                                    932 S.W.2d 97, *; 1996 Tex. App. LEXIS 1372, **


       anybody's uncle or sister or girlfriend or               Defense counsel objected stating: "We will object to the
       mother --                                                prosecutor asking for a life sentence in that the commu-
                                                                nity expects that kind of sentence or that the children of
                                                                these [*112] jurors will benefit from assessing the
On appeal, Fields urges that this argument was improper         defendants. We object to that." On appeal, Fields argues
in the punishment phase because it suggests that Fields         that this is the same type of argument which resulted in a
had been abandoned by his family. At trial, however,            reversal in Cortez v. State, 683 S.W.2d 419, 420-21 (Tex.
Fields objected on the ground that the Defendants were          Cr. App. 1984). In Cortez, the State's attorney argued:
not [**41] required to call any witnesses and that the          "Now, the only punishment that you can assess that
State's argument shifted the burden and was contrary to         would be any satisfaction at all to the people of the
the charge.                                                     county would be life [imprisonment]." Id., at 420.
     [HN15] To preserve any error in jury argument for               The instant case is readily distinguishable from
appeal, counsel must have asserted a proper objection.          Cortez. Here, the State merely argued that if the jurors
Green v. State, 682 S.W.2d 271, 295 (Tex. Cr. App.              assessed the maximum sentence, they could be assured
1984), cert. denied, 470 U.S. 1034, 105 S. Ct. 1407, 84 L.      that they had made the right decision for themselves,
Ed. 2d 794 (1985). Moreover, the basis of complaint at          their community and the citizens of this State. Despite
trial is the only one that may be asserted on appeal.           Fields' counsel's attempt to recharacterize this argument
Miller v. State, 566 S.W.2d 614, 619 & 621 (Tex. Cr.            through his trial objection as an improper one, the State
App. 1978). In the instant case, Field's complaint on ap-       did not inappropriately argue the demands and expecta-
peal differs from that raised at trial. Consequently, the       tions of the community; it simply made a proper [**43]
point has not been preserved for review. Point ten is           plea for law enforcement. See Luna v. State, 461 S.W.2d
overruled.                                                      600, 601 (Tex. Cr. App. 1970) (holding no reversible
                                                                error in prosecutor's argument that "people that have
      By his eleventh point of error, Fields alleges that the
                                                                such ideas in this county in the future will be put on no-
trial court erred in overruling his objection to the State's
                                                                tice that the citizens of this county are not going to put
argument at punishment regarding community expecta-
                                                                up with it"); and Lawson v. State, 896 S.W.2d 828, 833
tion. At the conclusion of the State's closing argument,
                                                                (Tex. App. - Corpus Christi 1995, pet. ref'd) (holding that
the State's attorney argued:
                                                                argument requesting jury to "send a very strong message
                                                                to this man and everyone else in this community or
           Folks, you go upstairs and write down
                                                                whatever who thinks it's okay to get out there and poison
       life in that block where it says number of
                                                                the community with drugs" was proper plea for law en-
       years and write a hundred thousand dol-
                                                                forcement). Fields' eleventh and final point of error is
       lars fine where it says fine, and each and
                                                                overruled.
       everyone of you ought to be able to go
       home tonight knowing what you did was                        The judgment of the trial court is affirmed.
       right for yourself, your [**42] family,
                                                                    TOM B. RAMEY, JR.
       your children, and everybody in this
       community and across the State.                              Chief Justice
                                                                    Opinion delivered March 31, 1996.
                                                                                                                Page 1




Caution
As of: Aug 02, 2017

                      JAMES GEORGE GUEVARA, Appellant v. THE STATE OF TEXAS

                                                     NO. 0424-03

                                  COURT OF CRIMINAL APPEALS OF TEXAS

                                  152 S.W.3d 45; 2004 Tex. Crim. App. LEXIS 1750


                                             October 20, 2004, Delivered

SUBSEQUENT HISTORY:              [**1]                       dence lacked sufficiency in isolation, the consistency of
Rehearing denied by In re Guevara, 2005 Tex. Crim.           the evidence and the reasonable inferences drawn there-
App. LEXIS 50 (Tex. Crim. App., Jan. 12, 2005)               from were sufficient to support the verdict. The circum-
On remand at, Remanded by Guevara v. State, 2005             stances included his motive, specifically a long-standing
Tex. App. LEXIS 10128 (Tex. App. San Antonio, Dec. 7,        affair and his right to the wife's substantial retirement
2005)                                                        account on her death. He also made several false state-
                                                             ments to the authorities, took the mistress to a shooting
PRIOR HISTORY:           ON STATE'S AND APPEL-               range for practice, and ensured that he had an alibi for
LANT'S PETITIONS FOR DISCRETIONARY RE-                       the time of the murder. Shell-casing evidence connected
VIEW FROM THE FOURTH COURT OF APPEALS.                       him to the murder weapon. The court reversed the court
BEXAR COUNTY.                                                of appeals as to its decision under Tex. R. App. P. 44.2(b)
 Guevara v. State, 103 S.W.3d 549, 2003 Tex. App.            that defendant was harmed by the jury charge, which
LEXIS 960 (Tex. App. San Antonio, 2003)                      included a legal-duty theory, as well as an aiding theory.
                                                             In applying Tex. R. App. P. 44.2(b), the court of appeals
DISPOSITION:          Affirmed in part, reversed in part,    had relied on a case that dealt with error in the admission
and remanded.                                                of evidence. The court explained, however, that error in a
                                                             criminal jury charge was reviewed under Tex. Code
CASE SUMMARY:                                                Crim. Proc. Ann. art. 36.19, as interpreted by the court.

                                                             OUTCOME: The court reversed the judgment of the
PROCEDURAL POSTURE: Defendant was convicted                  court of appeals and remanded the case to that court to
of murder as a party to the offense, Tex. Penal Code Ann.    conduct a harm analysis under the appropriate standard.
§§ 7.02(a)(2), 19.02(b). On appeal, the Fourth Court of
Appeals, Bexar County, Texas, found that sufficient evi-     LexisNexis(R) Headnotes
dence supported the verdict, but reversed based on a ju-
ry-charge error. Defendant sought further review as to
the sufficiency of the evidence, and the State sought fur-
ther review as to the harm analysis on the jury-charge       Criminal Law & Procedure > Accessories > Aiding &
error.                                                       Abetting
                                                             [HN1] The Texas Penal Code provides three separate
OVERVIEW: Defendant was convicted as a party to his          ways by which a person can be criminally responsible for
mistress's murder of his wife based on circumstantial        the conduct of another. Tex. Penal Code Ann. § 7.02(a).
evidence. The court found that, while each piece of evi-     The first way encompasses a situation in which a person
                                                                                                                     Page 2
                                 152 S.W.3d 45, *; 2004 Tex. Crim. App. LEXIS 1750, **


causes an innocent person to engage in criminal conduct.
§ 7.02(a)(1). The second situation occurs when a person
solicits, encourages, directs, aids, or attempts to aid an-      Criminal Law & Procedure > Appeals > Standards of
other person in committing an offense. § 7.02(a)(2). The         Review > Substantial Evidence > General Overview
last situation allows a person to be convicted of a crime        Evidence > Procedural Considerations > Circumstan-
if he does not make a reasonable effort to prevent the           tial & Direct Evidence
commission of an offense when he has a legal duty to             Evidence > Relevance > Circumstantial & Direct Evi-
prevent the commission of that offense. § 7.02(a)(3).            dence
                                                                 [HN6] Circumstantial evidence is as probative as direct
                                                                 evidence in establishing the guilt of an actor. Circum-
Criminal Law & Procedure > Accessories > Aiding &                stantial evidence alone is sufficient to establish guilt.
Abetting                                                         Furthermore, the standard of review on appeal is the
[HN2] An appellate court refers to Tex. Penal Code §             same for both direct and circumstantial evidence cases.
7.02(a)(2) as the aiding theory of criminal responsibility
for the conduct of another.
                                                                 Criminal Law & Procedure > Appeals > Standards of
                                                                 Review > Substantial Evidence > General Overview
Criminal Law & Procedure > Accessories > Aiding &                [HN7] In reviewing the sufficiency of the evidence, an
Abetting                                                         appellate court should look at events occurring before,
[HN3] An appellate court refers to Tex. Penal Code §             during and after the commission of the offense and may
7.02(a)(3) as the legal-duty theory of criminal responsi-        rely on actions of the defendant which show an under-
bility for the conduct of another.                               standing and common design to do the prohibited act.
                                                                 Each fact need not point directly and independently to
                                                                 the guilt of the appellant, as long as the cumulative effect
Criminal Law & Procedure > Trials > Burdens of                   of all the incriminating facts are sufficient to support the
Proof > Prosecution                                              conviction.
[HN4] The Fourteenth Amendment's guarantee of due
process of law prohibits a criminal defendant from being
convicted of an offense and denied his liberty except            Criminal Law & Procedure > Appeals > Standards of
upon proof sufficient to persuade a rational fact finder of      Review > Substantial Evidence > General Overview
guilt beyond a reasonable doubt.                                 [HN8] The evidence is sufficient if the conclusion of
                                                                 guilt is warranted by the combined and cumulative force
                                                                 of all the incriminating circumstances.
Criminal Law & Procedure > Jury Instructions > Par-
ticular Instructions > Reasonable Doubt
Criminal Law & Procedure > Appeals > Reversible                  Evidence > Procedural Considerations > Circumstan-
Errors > Jury Instructions                                       tial & Direct Evidence
Evidence > Procedural Considerations > Weight &                  [HN9] Motive is a significant circumstance indicating
Sufficiency                                                      guilt. Intent may also be inferred from circumstantial
[HN5] In assessing the legal sufficiency of the evidence         evidence such as acts, words, and the conduct of the ap-
to support a conviction, an appellate court considers all        pellant.
the record evidence in the light most favorable to the
jury's verdict and determines whether, based on that evi-
dence and reasonable inferences therefrom, a rational            Evidence > Procedural Considerations > Circumstan-
jury could have found the accused guilty of all of the           tial & Direct Evidence
elements of the offense beyond a reasonable doubt. Fur-          [HN10] Attempts to conceal incriminating evidence,
thermore, when the trial court's charge authorizes the           inconsistent statements, and implausible explanations to
jury to convict on more than one theory, the verdict of          the police are probative of wrongful conduct and are also
guilty will be upheld if the evidence is sufficient on any       circumstances of guilt. Lies about an actor's relationship
one of the theories. The law does not require any further        with an accomplice are probative of unlawful acts.
speculation as to the guilt of the appellant. If, given all of
the evidence, a rational jury would necessarily entertain a
reasonable doubt as to the defendant's guilt, the due pro-       Criminal Law & Procedure > Accessories > Aiding &
cess guarantee requires that the court reverse and order a       Abetting
judgment of acquittal.
                                                                                                                  Page 3
                                152 S.W.3d 45, *; 2004 Tex. Crim. App. LEXIS 1750, **


[HN11] The Texas Penal Code does not require that a           19.02(b). And we hold that the correct standard of review
party actually participate in the commission of the of-       for jury-charge error is Article 36.19 of the Code of
fense to be criminally responsible. The Penal Code also       Criminal Procedure. [**2] We therefore affirm the
does not require that a party to the crime be physically      Court of Appeals on the former issue and reverse on the
present at the commission of the offense.                     latter.
                                                                  I. Facts and Procedural Background
Criminal Law & Procedure > Appeals > Standards of                  On May 26th, 1993, Minnie Salinas, the appellant's
Review > Substantial Evidence > General Overview              mistress, shot and killed Velia Guevara, the appellant's
Evidence > Procedural Considerations > Weight &               wife. Sometime before 9:00 a.m., Kathleen Cadena, the
Sufficiency                                                   property manager at the appellant's apartment complex,
[HN12] When multiple theories are submitted to a jury,        received a call from an answering service, which report-
the evidence is sufficient to support a conviction so long    ed several calls about a car with its lights on that be-
as the evidence is sufficient to support conviction for one   longed to the tenant in apartment 424, the appellant's
of the theories submitted to the jury.                        apartment. At 9:00 a.m., Cadena received another similar
                                                              call, and Shelley Selzor, the leasing agent, took another
                                                              call about fifteen minutes later. Cadena told Selzor to
Criminal Law & Procedure > Jury Instructions > Ob-            contact Velia.
jections
                                                                   Cadena said a woman, later identified as Minnie Sa-
Criminal Law & Procedure > Jury Instructions > Par-
                                                              linas, came by the office at about 8:45 a.m. The office
ticular Instructions > Use of Particular Evidence
                                                              was not yet open, so the woman returned between 9:15
Criminal Law & Procedure > Appeals > General Over-
                                                              and 9:30 a.m. The woman asked to use the phone. Ca-
view
[HN13] It is settled law in Texas that error in a criminal    dena offered the office phone, but the woman asked for a
jury charge is reviewed under Tex. Code Crim. Proc.           pay phone. Cadena directed the woman to the pay phone
Ann. art. 36.19.                                              at the back of the club house. The woman was gone for a
                                                              short time, and then came back through the leasing office
COUNSEL: For APPELLANT: Nancy B. Barohn, San                  without stopping. George Garza, the maintenance man,
Antonio, TX.                                                  also recalled [**3] seeing the woman. At about 10:00
                                                              a.m., Velia came to the leasing office to say her car lights
For STATE: Daniel Thornberry, ASSIST. DA, San An-             were not on. That was the last time she was seen alive.
tonio, TX.                                                        The appellant had left the apartment early that
                                                              morning and played golf until about 1:00 or 2:00 p.m.
JUDGES: PRICE, J., delivered the opinion of the court,        Then he spent the next three hours at the San Antonio
in which KELLER, P.J., and MEYERS, WOMACK,                    Light career services office pursuing prospective em-
JOHNSON, KEASLER, HOLCOMB, and COCHRAN,                       ployment opportunities. At about 4:00 p.m., he returned
JJ., joined. HERVEY, J., did not participate.                 to his apartment, where he found his wife inside the
                                                              apartment, lying dead on the hallway floor.
OPINION BY: PRICE
                                                                   During the trial, there was no dispute by either the
OPINION                                                       appellant or the State that Salinas was the principal actor
                                                              in the commission of the murder. There was also no dis-
      [*46] PRICE, J., delivered the opinion of the           pute that the appellant had an alibi for the time when
court, in which KELLER, P.J., and MEYERS,                     Velia was shot. Since the appellant had an alibi for the
WOMACK, JOHNSON, KEASLER, HOLCOMB,                            time of the murder, the State had to prove that he was
and COCHRAN, JJ., joined. HERVEY, J., did not                 criminally responsible for Salinas's actions in committing
participate.                                                  the murder.
     The appellant challenges his conviction for murder,           [HN1] The Texas Penal Code provides three sepa-
claiming that the evidence presented [*47] at trial was       rate ways by which a person can be criminally responsi-
insufficient to support his conviction as a party to the      ble for the conduct of another. 1 The first way encom-
offense. The State challenges the judgment of the Court       passes a situation in which a person causes an innocent
of Appeals with respect to the Court's harm analysis on       person to engage in criminal conduct. 2 The second situa-
jury-charge error. We conclude that the evidence was          tion occurs when a [**4] person "solicits, encourages,
legally sufficient to support the appellant's conviction      directs, aids, or attempts to aid" another person in com-
under Texas Penal Code Sections 7.02(a)(2) and                mitting an offense. 3 The last situation allows a person to
                                                                                                                  Page 4
                                152 S.W.3d 45, *; 2004 Tex. Crim. App. LEXIS 1750, **


be convicted of a crime if he does not make a reasonable             The Court of Appeals determined that the harm
effort to prevent the commission of an offense when he         analysis should be conducted under Texas Rule of Ap-
has a legal duty to prevent the commission of that of-         pellate Procedure 44.2(b). Under Rule 44.2(b), a
fense. 4                                                       non-constitutional error must be disregarded unless it
                                                               affects a defendant's substantial rights. Using this analy-
       1 TEX. PEN CODE § 7.02(a).                              sis, the Court of Appeals determined that the submission
       2 TEX. PEN. CODE § 7.02(a)(1).                          of the legal-duty theory [**7] affected appellant's sub-
       3 TEX. PEN. CODE § 7.02(a)(2). [HN2] We                 stantial rights, and therefore remanded the case for a new
       refer to this section as the "aiding" theory of         trial.
       criminal responsibility for the conduct of another.
                                                                    We granted both the State's and the appellant's peti-
       4 TEX. PEN. CODE § 7.02(a)(3). [HN3] We
                                                               tions for discretionary review to determine (1) whether
       refer to this section as the "legal-duty" theory of
                                                               the evidence presented was sufficient to support the ver-
       criminal responsibility for the conduct of another.
                                                               dict, (2) whether the Court of Appeals applied the correct
      [*48] The State relied on Section 7.02(a)(2) of the      harm analysis to the jury-charge error, and, if so, (3)
Penal Code to show that the appellant was criminally           whether the Court of Appeals erred in holding that the
responsible for Salinas's actions in murdering Velia. The      appellant was harmed. 7
State's theory of the case was that Salinas and the appel-
lant together plotted [**5] to kill Velia.                            7 The precise grounds upon which we granted
                                                                      review include whether the court of appeals erred
    There was no evidence presented at trial that sug-
                                                                      by: (1) performing a harm analysis of jury-charge
gested the State relied on the legal-duty theory to find the
                                                                      error by applying Rule 44.2(b) of the Rules of
appellant to be criminally responsible in the death of his
                                                                      Appellate Procedure instead of Article 36.19 of
wife. However, in the abstract portion of the jury charge,
                                                                      the Code of Criminal Procedure, as construed by
the party-liability instruction included both the aiding
                                                                      Almanza v. State; (2) reversing appellant's con-
language from Section 7.02(a)(2) and the legal-duty lan-
                                                                      viction because the jury might have convicted
guage from Section 7.02(a)(3). From the record, it ap-
                                                                      appellant on one erroneous theory of the offense
pears that neither the appellant nor the State requested or
                                                                      where there was sufficient evidence to sustain the
objected to the inclusion of the legal-duty language in the
                                                                      conviction under an alternative theory; and (3)
charge.
                                                                      finding that the State's evidence was legally suf-
     On direct appeal, the appellant challenged, inter alia,          ficient to support appellant's conviction where
the legal sufficiency of the evidence and the inclusion of            legal sufficiency necessarily depended upon a
the legal-duty language in the jury charge. The appellant             theory of conduct that was not unlawful or, alter-
argued that the inclusion allowed the jury to convict him             natively, upon the impermissible stacking of in-
for conduct that was not illegal since he had no legal                ferences.
duty to prevent the murder of his wife, and moreover, the
misstatement of the law deprived him of a fair and im-          [**8] II. Legal Sufficiency of the Evidence
partial trial.
                                                                   First, we address the appellant's assertion that the
      The Court of Appeals held the evidence presented at      evidence was legally insufficient to support the convic-
trial was legally sufficient to convict the appellant on the   tion due to the impermissible stacking of inferences,
aiding theory of being a party to an offense. 5 Therefore,     [*49] or alternatively, because the conviction rested on
the Court declined to address the sufficiency of the evi-      conduct which was not illegal. 8
dence under a legal-duty [**6] theory of liability.
                                                                      8 If the evidence is insufficient to sustain the
       5    Guevara v. State, 103 S.W.3d 549, 555 (Tex.               conviction, then we need not address the other
       App.-San Antonio 2003).                                        issues presented in the State's petition for discre-
                                                                      tionary review.
    In addressing the jury-charge error, the Court of
Appeals initially found it to be harmless. However, on             A. Standard of Review
the appellant's motion for rehearing, the Court of Ap-
peals en banc held that the error was harmful based on its     [HN4] The Fourteenth Amendment's guarantee of due
opinion in Bagheri v. State. 6                                 process of law prohibits a criminal defendant from being
                                                               convicted of an offense and denied his liberty except
       6      87 S.W.3d 657 (Tex. App.-San Antonio             upon proof sufficient to persuade a rational fact finder of
       2002), aff'd, 119 S.W.3d 755 (Tex. Crim. App.           guilt beyond a reasonable doubt. 9 [HN5] In assessing the
       2003).                                                  legal sufficiency of the evidence to support a conviction,
                                                                                                                    Page 5
                                 152 S.W.3d 45, *; 2004 Tex. Crim. App. LEXIS 1750, **


we consider all the record evidence in the light most fa-       the guilt of the appellant, as long as the cumulative effect
vorable to the jury's verdict and determine whether,            of all the incriminating facts are sufficient to support the
based on that evidence and reasonable inferences there-         conviction. 17
from, a rational jury could have found the accused guilty
[**9] of all of the elements of the offense beyond a                   16       Cordova v. State, 698 S.W.2d 107, 111
reasonable doubt. 10 Furthermore, when the trial court's               (Tex. Crim. App. 1985); Thompson v. State, 697
charge authorizes the jury to convict on more than one                 S.W.2d 413, 416 (Tex. Crim. App. 1985).
theory, as it did in this case, the verdict of guilty will be          17      Alexander v. State, 740 S.W.2d 749, 758
upheld if the evidence is sufficient on any one of the                 (Tex. Crim. App. 1987); Russell v. State, 665
theories. 11 The law does not require any further specula-             S.W.2d 771, 776 (Tex. Crim. App. 1983) [HN8]
tion as to the guilt of the appellant. If, given all of the            (The evidence is sufficient "if the conclusion [of
evidence, a rational jury would necessarily entertain a                guilt] is warranted by the combined and cumula-
reasonable doubt as to the defendant's guilt, the due pro-             tive force of all the incriminating circumstanc-
cess guarantee requires that we reverse and order a                    es.").
judgment of acquittal. 12
                                                                     [HN9] [*50] Motive is a significant circumstance
                                                                indicating guilt. 18 Intent may also be inferred from
       9    In re Winship, 397 U.S. 358, 362, 25 L. Ed.
                                                                [**12] circumstantial evidence such as acts, words, and
       2d 368, 90 S. Ct. 1068 (1970).
                                                                the conduct of the appellant. 19
       10     Jackson v. Virginia, 443 U.S. 307, 318-19,
       61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979); Ladd v.
                                                                       18    Harris v. State, 727 S.W.2d 537, 542 (Tex.
       State, 3 S.W.3d 547, 557 (Tex. Crim. App. 1999).
                                                                       Crim. App. 1987).
       11      Rabbani v. State, 847 S.W.2d 555, 558
                                                                       19    Patrick v. State, 906 S.W.2d 481, 487 (Tex.
       (Tex. Crim. App. 1992).
                                                                       Crim. App. 1995).
       12       Narvaiz v. State, 840 S.W.2d 415, 423
       (Tex. Crim. App. 1992) (emphasis added).                      The evidence demonstrated that the appellant had a
                                                                motive to kill his wife. The appellant was involved in a
     [**10] B. The Aiding Theory
                                                                long-standing affair with Salinas, which was consum-
     The appellant contends that the evidence was legally       mated three days before he married Velia. Three years
insufficient to convict him due to the impermissible            after the affair began, and one month before the murder,
stacking of inferences. The evidence used to convict the        Salinas issued an ultimatum to the appellant that they
appellant was solely circumstantial. However, the lack of       would separate "if something didn't happen by June."
direct evidence is not dispositive of the issue of a de-        The appellant was distressed over this, and stated that he
fendant's guilt. [HN6] Circumstantial evidence is as pro-       "didn't want to give Minnie [Salinas] up and couldn't
bative as direct evidence in establishing the guilt of an       think of a way to end it." The appellant apparently did
actor. 13 Circumstantial evidence alone is sufficient to        not want to divorce Velia because he did not want to
establish guilt. 14 Furthermore, the standard of review on      cause his family distress. 20 He and Salinas also talked
appeal is the same for both direct and circumstantial ev-       about getting married, but the appellant stated that he
idence cases. 15                                                "didn't see how it was possible." Velia had a substantial
                                                                [**13] retirement account that was to go to the appel-
       13     Templin v. State, 711 S.W.2d 30, 33 (Tex.         lant in the event of her death. Once the money was cer-
       Crim. App. 1986).                                        tain to go to the appellant, 21 Salinas and the appellant
       14     Miles v. State, 73 Tex. Crim. 493, 165 S.W.       almost immediately got married in Las Vegas. These
       567, 570 (Tex. Crim. App. 1914).                         facts show that the appellant had a strong motive for
       15      Carlsen v. State, 654 S.W.2d 444, 449            murdering his wife.
       (Tex. Crim. App. 1983); Freeman v. State, 654
       S.W.2d 450, 456 (Tex. Crim. App. 1983); Denby                   20 Apparently, the appellant's brother had re-
       v. State, 654 S.W.2d 457, 464 (Tex. Crim. App.                  cently gotten divorced. The appellant's parents
       1983); Wilson v. State, 654 S.W.2d 465, 471                     took the brother's divorce extremely hard. There-
       (Tex. Crim. App. 1983).                                         fore, the appellant said he did not want to put his
                                                                       parents through another divorce.
      [**11] [HN7] In reviewing the sufficiency of the
                                                                       21 Velia's family filed a civil suit to prevent
evidence, we should look at "events occurring before,
                                                                       appellant from receiving the retirement benefits,
during and after the commission of the offense and may
                                                                       due to his alleged involvement in her death. The
rely on actions of the defendant which show an under-
                                                                       civil suit was subsequently dropped so the crimi-
standing and common design to do the prohibited act." 16
                                                                       nal investigation would not be impeded.
Each fact need not point directly and independently to
                                                                                                                 Page 6
                                152 S.W.3d 45, *; 2004 Tex. Crim. App. LEXIS 1750, **


     [HN10] Attempts to conceal incriminating evidence,       100 should not be allowed to play on eighteen-hole golf
inconsistent statements, and implausible explanations to      courses because they slow everyone down. It had also
the police are probative of wrongful conduct and are also     been some period of time since the appellant had played
circumstances of guilt. 22 Lies about an actor's relation-    golf with Knauss, and on previous occasions, they played
ship with an accomplice are probative of unlawful acts.       only par-three courses or went to the driving range. The
[**14] 23                                                     jury could have reasonably concluded that the appellant
                                                              was attempting to manufacture an alibi so the police
       22     Graham v. State, 566 S.W.2d 941, 951            would not be able to connect him to the murder.
       (Tex. Crim. App. 1978); United States v. Ca-
                                                                   The police found two casings in the appellant's car
       no-Guel, 167 F.3d 900, 905 (5th Cir. 1999).
                                                              and a third casing on the couch in the appellant's apart-
       23    Hartson v. State, 59 S.W.3d 780, 788 (Tex.
                                                              ment that were all fired from the same gun. Velia was
       App.- Texarkana 2001, no pet.).
                                                              shot three times. The firearms expert testified that the
     The appellant made several false statements to the       casing found on the couch was probably ejected from the
authorities. When the appellant gave his first statement to   murder weapon when Velia was shot. Knauss testified
the police, he claimed that he and Velia had a good rela-     that the casings were not in the appellant's car earlier in
tionship with no problems and that no one else had any        the day during the golf outing. In addition, the police
problems with Velia. He mentioned Salinas's name in the       found a box of shell casings under some [**17] clothes
statement, but only as a person to whom he lent a gun,        in the appellant's closet, thirty of which matched the cas-
not as a person with whom he was having an affair, and        ings from the murder scene and the appellant's car. After
not a person whom he knew had a motive to kill Velia. It      the appellant discovered his wife's body, he had access to
was only after the police discovered his omissions and        both the apartment and his car before emergency per-
confronted him with them that he detailed his relation-       sonnel arrived. The appellant had opportunity to retrieve
ship with Salinas. The appellant later lied about his rela-   two casings from the crime scene and put them in his car,
tionship with Salinas during a deposition taken for a civil   hoping to conceal evidence. Presumably, he did not no-
case.                                                         tice the third casing which was found in an inconspicu-
                                                              ous location. The jury could reasonably conclude that the
     On the day of the murder, the appellant claimed that
                                                              shell-casing evidence connected the appellant to the
he dropped Salinas off [**15] at work at 6:30 am, but
                                                              murder weapon.
Salinas called in sick and did not arrive at work until
later in the day. The appellant explained that he had to           During the trial, the State claimed that Velia had
drive Salinas to work because she told him that her car       been lured from her apartment with a phone call so Sa-
had been stolen two days before the murder. However,          linas could surreptitiously enter the Guevara's apartment
Salinas rented a car five days before the murder. Then,       using a key from the appellant. There was no sign of
on the day of the murder, after the murder had occurred,      forced entry into the apartment, nor was anything stolen,
she extended her rental contract and switched to [*51]        despite the obvious presence of valuables. The lack of
a different rental vehicle. Later, when Salinas's car was     evidence of burglary suggested that the murder was
recovered, it showed no signs of having been stolen.          pre-meditated, not a robbery gone bad. Finally, the ap-
Based on the appellant's inconsistent statements, it would    pellant showed little to no emotion after discovering his
be reasonable for a jury to conclude that he attempted to     wife, nor did he appear to be upset at the crime scene.
mislead the police about driving Salinas to work and
                                                                   The appellant argues that in order to be convicted as
about her access to transportation.
                                                              a party to the [**18] murder, there must be proof that
     In addition to the evidence of motive and incon-         he was assisting in the commission of the offense at the
sistent statements, other evidence was presented that         time it was actually committed and that he had
suggested the appellant's complicity in the crime. One        knowledge that he was assisting in the commission of the
month before the murder, the appellant took Velia to a        offense. However, [HN11] the Penal Code does not re-
shooting range to practice firing a rented 9mm gun, the       quire that the party actually participate in the commis-
same caliber gun that was used in the murder. He also         sion of [*52] the offense to be criminally responsible.
told a friend, Paul Knauss, that he was researching how       24
                                                                 The Penal Code also does not require that a party to the
to make a silencer. The day of the murder, the appellant      crime be physically present at the commission of the
ensured that he had an alibi for the [**16] time of the       offense. 25
murder because he was playing golf with Knauss.
Knauss testified that it was out of character for the ap-            24    Cross v. State, 550 S.W.2d 61, 63-64 (Tex.
pellant to ask him to play golf. It was unusual because              Crim. App. 1977) (The defendant was criminally
Knauss was a bad golfer and appellant had, on previous               responsible as a party because he planned the
occasions, said that people who could not shoot under                robbery with the actual robbers, even though the
                                                                                                                  Page 7
                                152 S.W.3d 45, *; 2004 Tex. Crim. App. LEXIS 1750, **


       defendant did not actually participate in the rob-             27     Kitchens v. State, 823 S.W.2d 256, 258
       bery).                                                         (Tex. Crim. App.1991).
       25     Morrison v. State, 608 S.W.2d 233, 234
                                                                    [**21] III. The Jury Charge
       (Tex. Crim. App. 1980).
                                                                     The appellant argued in the Court of Appeals that,
     Based on the totality of the evidence, a jury could
                                                               because the jury charge included language that allowed
have reasonably concluded that the appellant was a par-
                                                               the jury to convict him based on either a legal-duty the-
ticipant in the murder of his wife and that he knew he
                                                               ory or an aiding theory, it is unknown under which theo-
was assisting in the offense. While each piece [**19] of
                                                               ry the jury convicted. Therefore, since the jury could not
evidence lacked sufficiency in isolation, the consistency
                                                               have legally convicted him on legal-duty theory, and
of the evidence and the reasonable inferences drawn
                                                               there is a possibility that they did, the appellant argues
therefrom were sufficient to support the verdict. There-
                                                               that the verdict cannot stand. So despite the fact that the
fore, after examining all the evidence in the case in the
                                                               conviction may be upheld under the aiding theory, we
light most favorable to the prosecution, we conclude that
                                                               still must decide if the error in the jury charge affected
a rational jury could have found all the elements proved,
                                                               the appellant's trial in such a way that his conviction
based on the aiding theory of party responsibility, be-
                                                               should be reversed. 28
yond a reasonable doubt.
                                                                      28 We do not address whether the inclusion of
C. The Legal-Duty Theory
                                                                      the legal-duty theory in the charge was error.
     The appellant alternatively alleges that his convic-
                                                                     [*53] The Court of Appeals applied Texas Rule of
tion was based on conduct that was not illegal. The ra-
                                                               Appellate Procedure 44.2(b) to the jury charge in its
tionale for this claim is that, because the appellant had no
                                                               harm analysis. On original submission, the Court of Ap-
legal duty to prevent his wife's murder, he could not be
                                                               peals held that the jury-charge error in this case was
convicted on a legal-duty theory of liability. Regardless
                                                               harmless because, although [**22] an erroneous theory
of whether the appellant had or did not have a legal duty
                                                               of culpability was submitted to the jury, there was suffi-
to prevent injury to his wife, 26 the evidence was suffi-
                                                               cient evidence to convict appellant under a valid theory.
cient to support the State's other theory of the case, that
                                                               The en banc Court of Appeals granted the appellant's
the appellant aided Salinas in murdering Velia. We have
                                                               motion for rehearing and reviewed its holding based on
consistently held that, [HN12] when multiple theories are
                                                               their decision in Bagheri v. State. 29 Based on its reason-
submitted to the jury, the evidence is sufficient to sup-
                                                               ing in Bagheri, the Court of Appeals applied Rule of Ap-
port a conviction so long as the evidence is sufficient to
                                                               pellate Procedure 44.2(b) and concluded that the error
support conviction for one of the theories submitted to
                                                               affected the appellant's substantial rights. The Court of
the jury. 27 [**20]
                                                               Appeals reversed the conviction. We must determine
                                                               whether the harm analysis used in Bagheri was the ap-
       26 While generally a spouse does not have a
                                                               propriate one under which the jury-charge error in this
       legal duty to prevent harm to the other spouse,
                                                               case should be reviewed.
       there can be circumstances under which one
       spouse could have a legal duty to the other. For
                                                                      29     87 S.W.3d 657 (Tex. App.-San Antonio
       example, if one spouse was a law enforcement
                                                                      2002), aff'd, 119 S.W.3d 755 (Tex. Crim. App.
       official, he or she would have a legal duty to
                                                                      2003).
       prevent a crime from being perpetrated on the
       other spouse. See Medrano v. State, 612 S.W.2d
       576, 578 (Tex. Crim. App. 1981). Another exam-          Bagheri involved a driving while intoxicated conviction
       ple could arise where one spouse is incapacitated       in which retrograde extrapolation evidence was errone-
       and the other spouse has legal guardianship of the      ously submitted to the jury. 30 The jury was charged with
       incompetent one. However, there was no evi-             alternative theories of intoxication: [**23] (1) absence
       dence presented in this case that the appellant and     of the normal use of mental or physical faculties and (2)
       his wife fell into any of these categories. The         a blood-alcohol concentration of 0.10. 31 It was unclear
       question of legal duty between spouses also arises      under which theory the jury convicted the defendant. 32
       in civil litigation. See Rampel v. Wascher, 845         Without the erroneous admission of evidence, one of the
       S.W.2d 918, 925 (Tex. App.-San Antonio 1992,            two theories could not legally have been the basis for a
       writ denied) ("spouses and other family members         conviction due to insufficient evidence.
       have no legal right of action against each other
       arising from failure to take affirmative action to             30     Id., at 659.
       prevent injury").
                                                                                                                  Page 8
                                152 S.W.3d 45, *; 2004 Tex. Crim. App. LEXIS 1750, **


       31 Under the version of Penal Code Section                     36      Bagheri v. State, 119 S.W.3d 755, 763
       49.01 in effect when Bagheri was arrested, a per-              (Tex. Crim. App. 2003).
       son could be shown to be intoxicated for (1) the               37 Ibid.
       impairment of physical or mental faculties or (2)              38 Ibid.
       having a blood-alcohol content over 0.10. That                 39      78 S.W.3d 352, 355 (Tex. Crim. App.
       section has been amended so that a person may                  2002).
       be shown to be intoxicated if he has a                         40     Bagheri, 119 S.W.3d at 763. We noted that
       blood-alcohol concentration of 0.08. Act of May                the issue in Bagheri was not whether the jury
       11, 1999, 76th Leg., R.S., ch. 234, § 1, 1999 Tex.             charge set out valid and proper means of commit-
       Gen. Laws 1082.                                                ting the offense, or whether there was sufficient
       32     Id., at 660.                                            evidence to prove one of the alleged means by
                                                                      which the appellant committed the offense, but
      In conducting a harm analysis in Bagheri, the Court
                                                                      instead whether the erroneous admission of evi-
of Appeals relied on Rule 44.2(b) of the Rules of Appel-
                                                                      dence affected the verdict. Id. at 762 n.5.
late Procedure. [**24] 33 According to Rule 44.2(b),
non-constitutional errors must be disregarded if the error          [**26] The Court of Appeals in the instant case
did not affect the appellant's substantial rights. "Substan-   used the same harm analysis as it did in its Bagheri
tial rights are not affected by the erroneous admission of     opinion. The harm analysis under Rule 44.2(b) was ap-
evidence 'if the appellate court, after examining the rec-     propriate in Bagheri because the issue involved the erro-
ord as a whole, has fair assurance that the error did not      neous admission of evidence and its effect on the jury's
influence the jury, or had but a slight effect.'" 34 The       deliberations.
Court of Appeals concluded that it could not tell whether
                                                                    This case is distinguishable from Bagheri. The is-
the erroneous admission of evidence "did not influence
                                                               sue in the appellant's case is whether an erroneous theory
the jury, or have but a slight effect," and therefore, held
                                                               in the jury charge affected the verdict, not whether the
the error to be harmful. 35
                                                               erroneous admission of evidence affected the verdict.
                                                               [HN13] It is settled law in Texas that error in a criminal
       33    Id., at 659.
                                                               jury charge is reviewed under Article 36.19 of the Code
       34    Solomon v. State, 49 S.W.3d 356, 365 (Tex.
                                                               of Criminal Procedure as interpreted by this Court in
       Crim. App. 2001).
                                                               Almanza v. State. 41 As a result, we hold that the Court of
       35    Bagheri, 87 S.W.3d 657 at 661.
                                                               Appeals erred in assessing harm under the standard
     We affirmed the lower court, holding that, although       found in Rule 44.2(b).
the Court of Appeals reached the correct conclusion in
Bagheri, its reasoning was flawed. 36 The Court of Ap-                41     686 S.W.2d 157 (Tex. Crim. App. 1985).
peals based their holding on the fact that the general ver-
dict made it impossible to determine which [**25] the-         III. Conclusion
ory the jury had relied on. 37 We stated that "this fact
                                                                    We hold that the Court of Appeals did not err in
alone is not determinative, because evidence to prove
                                                               holding that the evidence was legally sufficient to [**27]
intoxication under either definition is relevant to the sin-
                                                               support the conviction. We also hold that the Court of
gle question of whether [*54] the appellant was, in
                                                               Appeals erred in using Rule 44.2(b) as the standard by
fact intoxicated." 38 After reviewing the record for the
                                                               which to assess harm for the jury-charge error. As a re-
relevant factors outlined in Motilla v. State 39 and Solo-
                                                               sult of this holding, we need not address whether the
mon v. State, supra, we held that we could not determine
                                                               Court of Appeals erred in concluding that the appellant
whether the erroneous admission of evidence "prejudiced
                                                               was harmed. We reverse the judgment of the Court of
the jury's consideration of the other evidence or substan-
                                                               Appeals and remand the case to that Court to conduct a
tially affected their deliberation." 40
                                                               harm analysis under Code of Criminal Procedure 36.19.
                                                                                                                  Page 1




Warning
As of: Aug 02, 2017

                                           JACKSON v. VIRGINIA ET AL.

                                                       No. 78-5283

                                  SUPREME COURT OF THE UNITED STATES

                         443 U.S. 307; 99 S. Ct. 2781; 61 L. Ed. 2d 560; 1979 U.S. LEXIS 10

                                                March 21, 1979, Argued
                                                June 28, 1979, Decided

SUBSEQUENT HISTORY:                Petition for Rehearing     ized as sufficient to have led a rational trier of fact to
Denied October 1, 1979.                                       find guilt beyond a reasonable doubt stated a constitu-
                                                              tional claim cognizable in a federal habeas proceeding.
PRIOR HISTORY:      CERTIORARI TO THE                         Review of the record in the light most favorable to the
UNITED STATES COURT OF APPEALS FOR THE                        prosecution established a rational factfinder could readily
FOURTH CIRCUIT.                                               have found the inmate guilty beyond a reasonable doubt
                                                              of first degree murder under state law.
DISPOSITION:          580 F.2d 1048, affirmed.
                                                              OUTCOME: The judgment of the appellate court re-
CASE SUMMARY:                                                 versing the district court's order granting habeas corpus
                                                              relief to the inmate was affirmed.

PROCEDURAL POSTURE: Petitioner inmate was                     LexisNexis(R) Headnotes
convicted after a state bench trial of first degree murder.
The Court of Appeals for the Fourth Circuit reversed the
district court's grant of habeas corpus relief on the basis
that there was no evidence of premeditation because           Criminal Law & Procedure > Trials > Burdens of
some evidence existed that the inmate intended to kill the    Proof > Prosecution
victim. The inmate was granted certiorari.                    [HN1] The Constitution prohibits the criminal conviction
                                                              of any person except upon proof of guilt beyond a rea-
OVERVIEW: The inmate claimed that a federal habeas            sonable doubt.
court did not have to consider whether there was any
evidence to support his state court conviction, but had to
determine whether there was sufficient evidence. The          Criminal Law & Procedure > Criminal Offenses >
Court held that, assuming the procedural prerequisites        Homicide > Murder > Definitions > Malice
were satisfied, the inmate was entitled to habeas relief if   Criminal Law & Procedure > Criminal Offenses >
there was evidence that no rational trier of fact could       Homicide > Murder > Second-Degree Murder > Ele-
have found proof of guilt beyond a reasonable doubt.          ments
The Due Process Clause of the Fourteenth Amendment            Criminal Law & Procedure > Trials > Burdens of
protected a criminal defendant against conviction except      Proof > Prosecution
upon proof beyond a reasonable doubt of every fact nec-       [HN2] Under Virginia law, murder is defined as the un-
essary to constitute the crime charged. A state prisoner      lawful killing of another with malice aforethought. Pre-
who alleged the evidence could not be fairly character-       meditation, or specific intent to kill, distinguishes murder
                                                                                                                     Page 2
                                             443 U.S. 307, *; 99 S. Ct. 2781, **;
                                         61 L. Ed. 2d 560, ***; 1979 U.S. LEXIS 10

in the first from murder in the second degree. Proof of           Criminal Law & Procedure > Trials > Defendant's
this element is essential to conviction of the former of-         Rights > Right to Due Process
fense, and the burden of proving it clearly rests with the        [HN5] The Due Process Clause of the Fourteenth
prosecution.                                                      Amendment protects a defendant in a criminal case
                                                                  against conviction except upon proof beyond a reasona-
                                                                  ble doubt of every fact necessary to constitute the crime
Criminal Law & Procedure > Criminal Offenses >                    with which he is charged.
Homicide > Murder > First-Degree Murder > Elements
Criminal Law & Procedure > Criminal Offenses >
Homicide > Murder > Second-Degree Murder > Ele-                   Criminal Law & Procedure > Trials > Defendant's
ments                                                             Rights > Right to Due Process
Criminal Law & Procedure > Sentencing > Capital                   Criminal Law & Procedure > Appeals > Reversible
Punishment > General Overview                                     Errors > Jury Instructions
[HN3] The degrees of murder in Virginia are specified in          Evidence > Procedural Considerations > Weight &
Va. Code Ann. § 18.2-32 (1975). Murder, other than cap-           Sufficiency
ital murder, by poison, lying in wait, imprisonment,              [HN6] The Winship doctrine requires more than simply a
starving, or by any willful, deliberate, and premeditated         trial ritual. A doctrine establishing so fundamental a sub-
killing, or in the commission of, or attempt to commit,           stantive constitutional standard must also require that the
arson, rape, robbery, burglary or abduction is murder of          factfinder will rationally apply that standard to the facts
the first degree, punishable as a Class 2 felony. All mur-        in evidence. A "reasonable doubt," at a minimum, is one
der other than capital murder and murder in the first de-         based upon "reason." Yet a properly instructed jury may
gree is murder of the second degree and is punishable as          occasionally convict even when it can be said that no
a Class 3 felony. Class 2 felonies carry a term of 20 years       rational trier of fact could find guilt beyond a reasonable
to life. Va. Code Ann. § 18.2-10(b) (1975). The sentence          doubt, and the same may be said of a trial judge sitting as
for Class 3 felonies can range from 5 to 20 years. Va.            a jury. In a federal trial, such an occurrence has tradi-
Code Ann. § 18.2-10(c). Murder itself takes its definition        tionally been deemed to require reversal of the convic-
in Virginia from the common law.                                  tion. Under Winship, which established proof beyond a
                                                                  reasonable doubt as an essential of Fourteenth Amend-
                                                                  ment due process, it follows that when such a conviction
Constitutional Law > Bill of Rights > Fundamental                 occurs in a state trial, it cannot constitutionally stand.
Rights > Procedural Due Process > General Overview
Criminal Law & Procedure > Trials > Burdens of
Proof > Prosecution                                               Criminal Law & Procedure > Appeals > Standards of
Criminal Law & Procedure > Trials > Defendant's                   Review > General Overview
Rights > Right to Due Process                                     Criminal Law & Procedure > Habeas Corpus > Ap-
[HN4] It is axiomatic that a conviction upon a charge not         peals > General Overview
made or upon a charge not tried constitutes a denial of           [HN7] A federal court has a duty to assess the historic
due process. These standards no more than reflect a               facts when it is called upon to apply a constitutional
broader premise that has never been doubted in our con-           standard to a conviction obtained in a state court. For
stitutional system: that a person cannot incur the loss of        example, on direct review of a state-court conviction,
liberty for an offense without notice and a meaningful            where the claim is made that an involuntary confession
opportunity to defend. A meaningful opportunity to de-            was used against the defendant, the court reviews the
fend, if not the right to a trial itself, presumes as well that   facts to determine whether the confession was wrongly
a total want of evidence to support a charge will con-            admitted in evidence. The same duty obtains in federal
clude the case in favor of the accused. Accordingly, a            habeas corpus proceedings.
conviction based upon a record wholly devoid of any
relevant evidence of a crucial element of the offense
charged is constitutionally infirm. The "no evidence"             Criminal Law & Procedure > Habeas Corpus > Review
doctrine thus secures to an accused the most elemental of         > Standards of Review > General Overview
due process rights: freedom from a wholly arbitrary dep-          Evidence > Procedural Considerations > Weight &
rivation of liberty.                                              Sufficiency
                                                                  [HN8] The critical inquiry on review of the sufficiency
                                                                  of the evidence to support a criminal conviction must be
Criminal Law & Procedure > Trials > Burdens of                    not simply to determine whether the jury was properly
Proof > Prosecution                                               instructed, but to determine whether the record evidence
                                                                                                                    Page 3
                                            443 U.S. 307, *; 99 S. Ct. 2781, **;
                                        61 L. Ed. 2d 560, ***; 1979 U.S. LEXIS 10

could reasonably support a finding of guilt beyond a            applied with explicit reference to the substantive ele-
reasonable doubt. This inquiry does not require a court to      ments of the criminal offense as defined by state law.
ask itself whether it believes that the evidence at the trial
established guilt beyond a reasonable doubt. Instead, the
relevant question is whether, after viewing the evidence        Criminal Law & Procedure > Criminal Offenses >
in the light most favorable to the prosecution, any ration-     Homicide > Murder > Definitions > Deliberation &
al trier of fact could have found the essential elements of     Premeditation
the crime beyond a reasonable doubt.                            Criminal Law & Procedure > Scienter > Specific Intent
                                                                [HN12] Under Virginia law, premeditation need not exist
                                                                for any particular length of time, and an intent to kill
Criminal Law & Procedure > Appeals > Standards of               may be formed at the moment of the commission of the
Review > General Overview                                       unlawful act.
Evidence > Procedural Considerations > Weight &
Sufficiency
[HN9] A mere modicum of evidence may satisfy a "no              Criminal Law & Procedure > Habeas Corpus > Ap-
evidence" standard. Any evidence that is relevant -- that       peals > General Overview
has any tendency to make the existence of an element of         [HN13] A federal habeas corpus court faced with a rec-
a crime slightly more probable than it would be without         ord of historical facts that supports conflicting inferences
the evidence -- could be deemed a "mere modicum." But           must presume -- even if it does not affirmatively appear
it could not seriously be argued that such a "modicum" of       in the record -- that the trier of fact resolved any such
evidence could by itself rationally support a conviction        conflicts in favor of the prosecution, and must defer to
beyond a reasonable doubt.                                      that resolution.

                                                                DECISION:
Criminal Law & Procedure > Habeas Corpus > Custo-
                                                                     Appropriate standard of review in federal habeas
dy Requirement > Custody Determinations > Satisfac-
                                                                corpus proceedings resulting from claim of insufficient
tion of Custody
                                                                evidence to support state criminal conviction, held to be
Criminal Law & Procedure > Habeas Corpus > Custo-
                                                                proof of guilt beyond reasonable doubt as determined by
dy Requirement > In-Custody Requirement
                                                                rational trier of fact.
Criminal Law & Procedure > Habeas Corpus > State
Grounds > Independent & Adequate Principle
                                                                SUMMARY:
[HN10] Under 28 U.S.C.S. § 2254, a federal court must
entertain a claim by a state prisoner that he or she is be-           A criminal defendant was convicted after a bench
ing held in custody in violation of the Constitution or         trial in the Circuit Court of Chesterfield County, Virgin-
laws or treaties of the United States. A state prisoner who     ia, of first-degree murder. The defendant did not dispute
alleges that the evidence in support of his state convic-       at trial that he had in fact shot and killed the victim, but
tion cannot be fairly characterized as sufficient to have       rather argued that he had been too intoxicated at the time
led a rational trier of fact to find guilt beyond a reasona-    to form the specific intent necessary to sustain a convic-
ble doubt has stated a federal constitutional claim. Thus,      tion of murder in the first-degree. Under Virginia law,
assuming that state remedies have been exhausted and            premeditation, or specific intent to kill, is a necessary
that no independent and adequate state ground stands as         element of the first-degree murder offense, with the bur-
a bar, it follows that such a claim is cognizable in a fed-     den of proof being on the prosecution to prove such ele-
eral habeas corpus proceeding.                                  ment. After his contention was rejected by the trial judge
                                                                and a conviction resulted, the defendant ultimately
                                                                commenced a habeas corpus proceeding in the United
Criminal Law & Procedure > Habeas Corpus > Cog-                 States District Court of the Eastern District of Virginia.
nizable Issues > General Overview                               The District Court, applying the "no evidence" criterion
[HN11] In a challenge to a state criminal conviction            announced in Thompson v Louisville, 362 US 199, 4 L
brought under 28 U.S.C.S. § 2254, if the settled proce-         Ed 2d 654, 80 S Ct 624, which held that a conviction
dural prerequisites for such a claim have otherwise been        based upon a record wholly devoid of any relevant evi-
satisfied, the applicant is entitled to habeas corpus relief    dence of an element of the offense charged is unconstitu-
if it is found that upon the record evidence adduced at the     tional, found the record devoid of evidence of premedita-
trial that no rational trier of fact could have found proof     tion and granted the writ. The United States Court of
of guilt beyond a reasonable doubt. The standard must be        Appeals for the Fourth Circuit, applying the same crite-
                                                                rion, reversed, holding that there was some evidence that
                                                                                                                   Page 4
                                           443 U.S. 307, *; 99 S. Ct. 2781, **;
                                       61 L. Ed. 2d 560, ***; 1979 U.S. LEXIS 10

the defendant had intended to kill the victim (580 F2d         LAWYERS' EDITION HEADNOTES:
1048).
     On certiorari, the United States Supreme Court af-              LAW §840.3
firmed. In an opinion by Stewart, J., joined by Brennan,
                                                                   criminal conviction -- proof beyond reasonable
White, Marshall, and Blackmun, JJ., it was held that (1)
                                                               doubt --
in a habeas corpus proceeding arising out of a claim that
a person has been convicted in a state court upon insuffi-         Headnote:[1]
cient evidence, a federal court, rather than restricting its
inquiry merely to whether there is any evidence to sup-            The due process clause of the Federal Constitution
port the conviction, must consider whether there is suffi-     prohibits the criminal conviction of any person except
cient evidence to justify a rational trier of the facts to     upon proof of guilt beyond a reasonable doubt.
find guilt beyond a reasonable doubt, and therefore, in a
challenge to a state court conviction under 28 USCS                  CORPUS §17
2254, the applicant is entitled to habeas corpus relief,
assuming settled precedural prerequisites for such relief          criminal conviction -- sufficiency of evidence --
have otherwise been satisfied, if it is found that upon the    standard of review --
record evidence adduced at trial no rational trier of facts        Headnote:[2A][2B][2C][2D]
could have found proof of guilt beyond a reasonable
doubt in terms of the substantive elements of the criminal          In a habeas corpus proceeding arising from a claim
offense as defined by state law, and (2) viewed in the         that a person has been convicted in a state court upon
light most favorable to the prosecution, sufficient evi-       insufficient evidence, a federal court must consider
dence existed for a rational factfinder to conclude be-        whether there is sufficient evidence to justify a rational
yond a reasonable doubt that the criminal defendant in         trier of fact to find guilt beyond a reasonable doubt, and
the case at bar possessed the necessary intent and com-        should not restrict its inquiry to whether there is any ev-
mitted first-degree murder under the law of Virginia,          idence to support the conviction; accordingly, in a chal-
notwithstanding evidence that he had been intoxicated on       lenge to a state court conviction under 28 USCS 2254,
the day of the killing, since (a) uncontradicted evidence      the applicant is entitled to habeas corpus relief, assuming
established that the defendant had shot the victim twice,      settled procedural prerequisites for such a claim have
(b) the defendant himself admitted that the fatal shooting     otherwise been satisfied, if it is found that upon the rec-
had occurred only after he had first fired several shots       ord evidence adduced at trial no rational trier of fact
into the ground and then reloaded his gun, (c) the evi-        could have found proof of guilt beyond a reasonable
dence was clear that the two shots that killed the victim      doubt in terms of the substantive elements of the criminal
were fired at close and thus predictably fatal range by a      offense as defined by state law. (Stevens, J., Burger, Ch.
person who was experienced in the use of the murder            J., and Rehnquist, J., dissented from this holding.)
weapon, (d) immediately after the shooting the defendant
drove without mishap into another state, and (e) shortly             EVIDENCE §178
before the fatal episode, the defendant had publicly ex-
pressed an intention to have sexual relations with the               HOMICIDE §1
victim, whose body had been found partially unclothed.             element of premeditation -- Virginia law --
     Stevens, J., joined by Burger, Ch. J., and Rehnquist,         Headnote:[3]
J., concurring in the judgment, expressed the view that
the new rule of law established by the court--that it is            Under Virginia law, murder is defined as the un-
unconstitutional to convict any person, including an in-       lawful killing of another with malice aforethought; pre-
dividual found guilty beyond a reasonable doubt by a           meditation, or specific intent to kill, distinguishes murder
jury, a trial judge, and one or more levels of state appel-    in the first degree from murder in the second degree, and
late judges, except upon proof sufficient to convince a        proof of this element is essential to the conviction of the
federal judge that a rational trier of fact could have found   former offense, with the burden of proof on the matter
the essential elements of the crime beyond a reasonable        clearly resting upon the prosecution.
doubt--was unnecessary to the decision in the case at bar,
constituting an unwise act of lawmaking which would                  EVIDENCE §862
adversely affect the quality of justice administered by
federal judges.                                                      HOMICIDE §3

    Powell, J., did not participate.                               second degree murder -- voluntary intoxication --
                                                               Virginia law --
                                                                                                                     Page 5
                                           443 U.S. 307, *; 99 S. Ct. 2781, **;
                                       61 L. Ed. 2d 560, ***; 1979 U.S. LEXIS 10

    Headnote:[4A][4B]                                          existence of every element of the offense; accordingly, a
                                                               state prisoner who alleges that the evidence in support of
    Under Virginia law, voluntary intoxication, although
                                                               his state conviction cannot be fairly characterized as suf-
not an affirmative defense to second degree murder, is
                                                               ficient to have led a rational trier of fact to find guilt be-
material to the element of premeditation and may be
                                                               yond a reasonable doubt has stated a federal constitu-
found to have negated it.
                                                               tional claim.

      ERROR §831
                                                                      LAW §840.3
     criminal conviction -- availability of appeal -- Vir-
                                                                      EVIDENCE §982
ginia law --
                                                                   criminal conviction -- due process guarantee -- rea-
    Headnote:[5A][5B]
                                                               sonable doubt --
     Under Virginia law, there is no appeal as of right
                                                                   Headnote:[9]
from a criminal conviction; however, each petition for
writ of error under the applicable state statute is reviewed        The rule that no person, consistentely with due pro-
on the merits, and the effect of a denial is to affirm the     cess, may be convicted of a crime except upon proof of
judgment of conviction on the merits.                          guilt beyond a reasonable doubt requires also that the
                                                               factfinder will rationally apply that standard to the facts
                                                               in evidence, a "reasonable doubt" being, at a minimum,
      LAW §831.5
                                                               one based upon "reason."
    criminal conviction -- denial of due process --
    Headnote:[6]                                                      ERROR §1650.5
    A conviction upon a charge not made or upon a                     LAW §840.3
charge not tried constitutes a denial of due process.
                                                                   criminal conviction -- proof beyond reasonable
                                                               doubt -- federal and state trials --
      LAW §831.5
                                                                   Headnote:[10]
     criminal offense -- notice and opportunity to defend
                                                                    In a federal trial, reversal of a criminal conviction
-- due process --
                                                               rendered by a properly instructed jury, or judge sitting
    Headnote:[7]                                               without a jury, is required where no rational trier of fact
                                                               could find guilt beyond a reasonable doubt; similarly,
     A person cannot incur the loss of liberty for a crim-
                                                               when such a conviction occurs in a state trial, it cannot
inal offense without notice and a meaningful opportunity
                                                               constitutionally stand, since proof beyond a reasonable
to defend, and such opportunity, if not the right to trial
                                                               doubt is an essential of Fourteenth Amendment due pro-
itself, presumes as well that a total want of evidence to
                                                               cess.
support a charge will conclude the case in favor of the
accused; accordingly, a criminal conviction based upon a
record wholly devoid of any relevant evidence of a cru-               ERROR §77
cial element of an offense is constitutionally infirm, the
                                                                      TRIAL §299
most elemental of due process rights being freedom from
a wholly arbitrary deprivation of liberty.                          criminal case -- role of factfinder -- reasonableness
                                                               of verdict --
      LAW §840.3                                                   Headnote:[11A][11B]
    due process of law -- criminal conviction -- suffi-             While the factfinder in a criminal case may enter an
ciency of evidence --                                          unassailable but unreasonable verdict of not guilty--this
                                                               being the logical corollary of the rule that there can be no
    Headnote:[8A][8B]
                                                               appeal from a judgment of acquittal, even if the evidence
     As an essential of the due process guaranteed by the      of guilt is overwhelming--this power does not include a
Fourteenth Amendment, no person shall be made to suf-          power to enter an unreasonable verdict of guilty, the ap-
fer the onus of a criminal conviction except upon suffi-       plication of the beyond-a-reasonable-doubt standard to
cient proof, which is defined as the evidence necessary to     the evidence not being irretrievably committed to jury
convince a trier of fact beyond a reasonable doubt of the      discretion.
                                                                                                                     Page 6
                                           443 U.S. 307, *; 99 S. Ct. 2781, **;
                                       61 L. Ed. 2d 560, ***; 1979 U.S. LEXIS 10

                                                               found the essential elements of the crime beyond a rea-
                                                               sonable doubt.
      ERROR §213
      LAW §62
                                                                      LAW §62
    criminal case -- testing evidentiary sufficiency --
                                                                    motion for acquittal -- standard of inquiry --
    Headnote:[12A][12B]
                                                                    Headnote:[16A][16B]
     Evidentiary sufficiency in a criminal case may be
                                                                    In judging motions for acquittal in federal criminal
tested through a motion for judgment of acquittal and a
                                                               trials, a judge must require acquittal if reasonable jurors
post-verdict appeal from the denial of such a motion.
                                                               would necessarily have a reasonable doubt as to guilt.

      ERROR §806.5
                                                                      TRIALS §299
    Supreme Court review of criminal conviction --
                                                                    criminal -- responsibility of trier of fact --
constitutionality -- historic facts --
                                                                    Headnote:[17]
    Headnote:[13]
                                                                   In a criminal trial, it is the responsibility of the trier
     On direct review of a state court conviction where
                                                               of fact to fairly resolve conflicts in the testimony, to
the claim is made that an involuntary confession was
                                                               weigh the evidence, and to draw reasonable inferences
used against the defendant, the United States Supreme
                                                               from basic facts to ultimate facts.
Court will review the facts to determine whether the
confession was wrongly admitted in evidence, since a
federal court has a duty to assess the historic facts when            CORPUS §17
called upon to apply a constitutional standard to a con-
                                                                    federal court -- standard of review --
viction obtained in a state court.
                                                                    Headnote:[18A][18B]
      CORPUS §121                                                   The standard to be utilized by a federal habeas cor-
                                                               pus court in assessing a state prisoner's claim of convic-
    duty of court -- state criminal conviction --
                                                               tion in state court upon insufficient evidence--namely,
    Headnote:[14]                                              that there must be sufficient evidence for a rational trier
                                                               of the facts to find guilt beyond a reasonable
     In federal habeas corpus proceedings, a federal court
                                                               doubt--neither permits a court to make its own subjective
has a duty to assess the historic facts when called upon to
                                                               determination of guilt or innocence, nor requires scrutiny
apply a constitutional standard to a conviction obtained
                                                               of the reasoning process actually used by the factfinder,
in a state court.
                                                               the question of the constitutional sufficiency of the evi-
                                                               dence being wholly unrelated to the question of how
      ERROR §1463                                              rationally the verdict was actually reached.
     criminal conviction -- sufficiency of evidence --
critical inquiry --                                                   LAW §840.3
    Headnote:[15]                                                   proof beyond reasonable doubt -- relevant evidence
                                                               --
     On review of the sufficiency of the evidence to sup-
port a criminal conviction, the critical inquiry is not             Headnote:[19]
simply whether the jury was properly instructed, but also
                                                                    Evidence which has a tendency to make the exist-
whether the record evidence can reasonably support a
                                                               ence of an element of a crime slightly more probable
finding of guilt beyond a reasonable doubt; this inquiry
                                                               than it would be without the evidence (that is, "relevant"
does not, in preserving the factfinder's role as weigher of
                                                               evidence) cannot, by itself, rationally support a convic-
the evidence, require a court to ask itself whether it be-
                                                               tion of a crime beyond a reasonable doubt, as is required
lieves that the evidence at trial established guilt beyond a
                                                               by due process.
reasonable doubt, the relevant question being whether,
after viewing all the evidence in the light most favorable
to the government, any rational trier of fact could have              ERROR §1603
                                                                      LAW §840.3
                                                                                                                     Page 7
                                             443 U.S. 307, *; 99 S. Ct. 2781, **;
                                         61 L. Ed. 2d 560, ***; 1979 U.S. LEXIS 10

    harmless error -- jury instruction -- evidence -- due           Headnote:[24]
process of law --
                                                                     The constitutional necessity in a criminal trial of
    Headnote:[20A][20B]                                         proof of guilt beyond a reasonable doubt, as guaranteed
                                                                by due process, is not confined to those defendants who
     Failure to instruct a jury in a criminal case on the
                                                                are morally blameless; even a thief is entitled to claim
necessity of proof of guilt beyond a reasonable doubt can
                                                                that he has been unconstitutionally convicted and im-
never be harmless error, so that a defendant whose guilt
                                                                prisoned as a burglar.
was proven by overwhelming evidence would be denied
due process if the jury was instructed that he could be
found guilty on a mere preponderance of the evidence; a               EVIDENCE §991
defendant against whom there was but one slender bit of
                                                                    first-degree murder -- sufficiency of evidence --
evidence would likewise be denied due process upon
conviction even though the jury was properly instructed             Headnote:[25]
on the prosecution's burden of proof beyond a reasonable
doubt.                                                               Viewed in the light most favorable to the prosecu-
                                                                tion, sufficient evidence exists for a rational factfinder to
                                                                conclude beyond a reasonable doubt that a criminal de-
      CORPUS §17                                                fendant possessed the necessary intent, and therefore
                                                                committed first-degree murder under state law, notwith-
     habeas corpus claim -- sufficiency of evidence --
                                                                standing evidence that the defendant had been intoxicat-
state appellate court --
                                                                ed on the day of the killing, where (1) uncontradicted
    Headnote:[21A][21B]                                         evidence establishes that the defendant shot the victim
                                                                not once, but twice, (2) the defendant himself admitted
     The fact that a state appellate court, in gauging the
                                                                that the fatal shooting had occurred only after he had first
sufficiency of the evidence to support a criminal convic-
                                                                fired several shots into the ground and then reloaded his
tion, invoked the "proof beyond a reasonable doubt"
                                                                gun, (3) the evidence clearly shows that the two shots
standard, does not totally bar a properly presented claim
                                                                that killed the victim were fired at close, and thus pre-
by a state prisoner under 28 USCS 2254 alleging convic-
                                                                dictably fatal range by a person experienced in the use of
tion in a state court upon insufficient evidence, although
                                                                the murder weapon, (4) it had been shown that immedi-
such action by the state court is entitled to great weight.
                                                                ately after the shooting, the defendant drove without
                                                                mishap from the state where the murder took place to
      CORPUS §41                                                another state, and (5) shortly before the fatal episode, the
                                                                defendant had publicly expressed an intention to have
    function of writ -- state criminal trial --
                                                                sexual relations with the victim, whose body was found
    Headnote:[22]                                               partially unclothed.
     The federal writ of habeas corpus may be utilized to
correct the occasional abuse of federal constitutional                HOMICIDE §3
rights implicated in a state criminal trial which are not
                                                                    premeditation -- Virginia law --
vindicated in the course of state appellate review.
                                                                    Headnote:[26]
      COURTS §708                                                    Under Virginia law, premeditation need not exist for
                                                                any particular length of time, and an intent to kill may be
    challenge to evidentiary sufficiency -- state appellate
                                                                formed at the moment of the commission of the unlawful
court judgment -- federal courts --
                                                                act.
    Headnote:[23]
     A judgment by a state appellate court rejecting a                EVIDENCE §419
challenge to evidentiary sufficiency is entitled to defer-
                                                                    criminal case -- duty of prosecution --
ence by the federal courts, as is any judgment affirming a
criminal conviction.                                                Headnote:[27]
                                                                     The prosecution in a criminal case is not under an
      LAW §840.3                                                affirmative duty to rule out every hypothesis except that
                                                                of guilt beyond a reasonable doubt.
     proof beyond reasonable doubt -- scope of constitu-
tional protection --
                                                                                                                    Page 8
                                            443 U.S. 307, *; 99 S. Ct. 2781, **;
                                        61 L. Ed. 2d 560, ***; 1979 U.S. LEXIS 10

      CORPUS §120                                                    (c) In a challenge to a state conviction brought under
                                                                28 U. S. C. § 2254, which requires a federal court to en-
    conflicting inferences on record -- presumption in
                                                                tertain a state prisoner's claim that he is being held in
favor of prosecution --
                                                                "custody in violation of the Constitution or laws or trea-
    Headnote:[28]                                               ties of the United States," the applicant is entitled to ha-
                                                                beas corpus relief if it is found that upon the evidence
      A federal habeas corpus court, faced with a record of
                                                                adduced at the trial no rational trier of fact could have
historical facts that supports conflicting inferences, must
                                                                found proof of guilt beyond a reasonable doubt. Pp.
presume, even if it does not affirmatively appear in the
                                                                320-324.
record, that the trier of fact resolved any such conflicts in
favor of the prosecution, and must defer to that resolu-             2. A review of the record in this case in the light
tion.                                                           most favorable to the prosecution shows that a rational
                                                                factfinder could have found petitioner guilty beyond a
SYLLABUS                                                        reasonable doubt of first-degree murder under Virginia
                                                                law. Pp. 324-326.
       Petitioner was convicted of first-degree murder af-
ter a bench trial in a Virginia court, and his motion and
                                                                COUNSEL: Carolyn J. Colville, by appointment of the
petition in the state courts to set aside the conviction on
                                                                Court, 439 U.S. 1064, argued the cause pro hac vice and
the ground that there was insufficient evidence of pre-
                                                                filed briefs for petitioner.
meditation, a necessary element of first-degree murder,
were denied. He then brought a habeas corpus pro-
                                                                Marshall Coleman, Attorney General of Virginia, argued
ceeding in Federal District Court, which, applying the
                                                                the cause for respondents. With him on the brief was
"no evidence" criterion of Thompson v. Louisville, 362
                                                                Linwood T. Wells, Assistant Attorney General. *
U.S. 199, found the record devoid of evidence of pre-
meditation and granted the writ. Applying the same                     * Briefs of amici curiae urging affirmance were
criterion, the Court of Appeals reversed, holding that                 filed by George Deukmejian, Attorney General,
there was some evidence that petitioner had intended to                Jack R. Winkler, Chief Assistant Attorney Gen-
kill the victim.                                                       eral, Arnold O. Overoye, Assistant Attorney
    Held:                                                              General, and Eddie T. Keller, Willard F. Jones,
                                                                       and Jane K. Fischer, Deputy Attorneys General,
     1. A federal habeas corpus court must consider not                for the State of California; by Arthur K. Bolton,
whether there was any evidence to support a state-court                Attorney General, Robert S. Stubbs II, Executive
conviction, but whether there was sufficient evidence to               Assistant Attorney General, Don A. Langham,
justify a rational trier of fact to find guilt beyond a rea-           First Assistant Attorney General, John C. Wal-
sonable doubt. In re Winship, 397 U.S. 358. Pp. 313-324.               den, Senior Assistant Attorney General, and Su-
     (a) In re Winship presupposes as an essential of the              san V. Boleyn, Assistant Attorney General, for
due process guaranteed by the Fourteenth Amendment                     the State of Georgia; by Frank J. Kelley, Attorney
that no person shall be made to suffer the onus of a                   General, Robert A. Derengoski, Solicitor Gen-
criminal conviction except upon sufficient proof -- de-                eral, and Thomas L. Casey, Assistant Attorney
fined as evidence necessary to convince a trier of fact                General, for the State of Michigan; and for their
beyond a reasonable doubt of the existence of every ele-               respective States by Theodore L. Sendak, Attor-
ment of the offense. Pp. 313-316.                                      ney General, David A. Arthur, Deputy Attorney
                                                                       General, and Donald P. Bogard, of Indiana, Rob-
     (b) After In re Winship, the critical inquiry on re-              ert B. Hansen, Attorney General of Utah, Edward
view of the sufficiency of the evidence to support a                   G. Biester, Jr., Attorney General of Pennsylvania,
criminal conviction must be not simply to determine                    Paul L. Douglas, Attorney General of Nebraska,
whether the jury was properly instructed on reasonable                 and Chauncey H. Browning, Attorney General of
doubt, but to determine whether the record evidence                    West Virginia.
could reasonably support a finding of guilt beyond a
reasonable doubt. The relevant question is whether after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found        JUDGES: STEWART, J., delivered the opinion of the
the essential elements of the crime beyond a reasonable         Court, in which BRENNAN, WHITE, MARSHALL, and
doubt. The Thompson "no evidence" rule is simply inad-          BLACKMUN, JJ., joined. STEVENS, J., filed an opin-
equate to protect against misapplications of the constitu-      ion concurring in the judgment, in which BURGER, C.
tional standard of reasonable doubt. Pp. 316-320.               J., and REHNQUIST, J., joined, post, p. 326. POW-
                                                                                                                  Page 9
                                           443 U.S. 307, *; 99 S. Ct. 2781, **;
                                       61 L. Ed. 2d 560, ***; 1979 U.S. LEXIS 10

ELL, J., took no part in the consideration or decision of            That the petitioner had shot and killed Mrs. Cole
the case.                                                      was not in dispute at the trial. The State's evidence es-
                                                               tablished that [*310] she had been a member of the
OPINION BY: STEWART                                            staff at the local county jail, that she had befriended him
                                                               while he was imprisoned there on a disorderly conduct
OPINION                                                        charge, and that when he was released she had arranged
                                                               for him to live in the home of her son and daugh-
   [*309] [***567] [**2783]           MR. JUSTICE
                                                               ter-in-law. Testimony by her relatives indicated that on
STEWART delivered the opinion of the Court.
                                                               the day of the killing the petitioner had been drinking
       [***LEdHR1] [1] [***LEdHR2A] [HN1] The                  and had spent a great deal of time shooting at targets
Constitution prohibits the criminal conviction of any          with his revolver. Late in the afternoon, according to
person except upon proof of guilt beyond a reasonable          their testimony, he had unsuccessfully attempted to talk
doubt. In re Winship, 397 U.S. 358. The question in this       the victim into driving him to North Carolina. She did
case is what standard is to be applied in a federal habeas     drive the petitioner to a local diner. There the two were
corpus proceeding when the claim is made that a person         observed by several police officers, who testified that
has been convicted in a state court upon insufficient evi-     both the petitioner and the victim had been drinking.
dence.                                                         The two were observed by a deputy sheriff as they were
                                                               preparing to leave the diner in her car. The petitioner
    I
                                                               was then in possession of his revolver, and the sheriff
                                                               also observed a kitchen knife in the automobile. The
   [***LEdHR3] [3]The petitioner was convicted after a
                                                               sheriff testified that he had offered to keep the revolver
bench trial in the Circuit Court of Chesterfield [**2784]
                                                               until the petitioner sobered [***568] up, but that the
County, Va., of the first-degree murder of a woman
                                                               latter had indicated that this would be unnecessary since
named Mary Houston Cole. 1[HN2] Under Virginia law,
                                                               he and the victim were about to engage in sexual activity.
murder is defined as "the unlawful killing of another
with malice aforethought." Stapleton v. Commonwealth,               Her body was found in a secluded church parking lot
123 Va. 825, 96 S. E. 801. Premeditation, or specific          a day and a half later, naked from the waist down, her
intent to kill, distinguishes murder in the first from mur-    slacks beneath her body. Uncontradicted medical and
der in the second degree; proof of this element is essen-      expert evidence established that she had been shot twice
tial to conviction of the former offense, and the burden of    at close range with the petitioner's gun. She appeared not
proving it clearly rests with the prosecution. Shiflett v.     to have been sexually molested. Six cartridge cases
Commonwealth, 143 Va. 609, 130 S. E. 777;Jefferson v.          identified as having been fired from the petitioner's gun
Commonwealth, 214 Va. 432, 201 S. E. 2d 749.                   were found near the body.
                                                                      [***LEdHR4A] After shooting Mrs. Cole, the pe-
        1 [HN3] The degrees of murder in Virginia are
                                                               titioner drove her car to North Carolina, where, after a
        specified in Va. Code § 18.2-32 (1975) as fol-
                                                               short trip to Florida, he was arrested several days later.
        lows:
                                                               In a postarrest statement, introduced in evidence by the
             "Murder, other than capital murder, by poi-       prosecution, the petitioner admitted that he had shot the
        son, lying in wait, imprisonment, starving, or by      victim. He contended, however, that the shooting had
        any willful, deliberate, and premeditated killing,     been accidental. When asked to describe his condition
        or in the commission of, or attempt to commit,         at the time of the shooting, he indicated that he had not
        arson, rape, robbery, burglary or abduction . . . is   been drunk, but had been "pretty high." His [*311]
        murder of the first degree, punishable as a Class 2    story was that the victim had attacked him with a knife
        felony.                                                when he resisted her sexual advances. He said that he
                                                               had defended himself by firing a number of warning
            "All murder other than capital murder and
                                                               shots into the ground, and had then reloaded his revolver.
        murder in the first degree is murder of the second
                                                               The victim, he said, then attempted to take the gun from
        degree and is punishable as a Class 3 felony."
                                                               him, and the gun "went off" in the ensuing struggle. He
             Class 2 felonies carry a term of 20 years to      said that he fled without seeking help for the victim be-
        life. § 18.2-10 (b) (1975). The sentence for           cause he was afraid. At the trial, his position was that
        Class 3 felonies can range from 5 to 20 years, §       he had acted in self-defense. Alternatively, he claimed
        18.2-10 (c). Murder itself takes its definition in     that in any event the State's own evidence showed that he
        Virginia from the common law. Stapleton v.             had been too intoxicated to form the specific intent nec-
        Commonwealth, 123 Va. 825, 96 S. E. 801.               essary [**2785] under Virginia law to sustain a con-
                                                               viction of murder in the first degree. 2
                                                                                                                   Page 10
                                            443 U.S. 307, *; 99 S. Ct. 2781, **;
                                        61 L. Ed. 2d 560, ***; 1979 U.S. LEXIS 10

                                                                dence of premeditation and granted the writ. The Court
       2      [***LEdHR4A] Under Virginia law, vol-             of Appeals for the Fourth Circuit reversed the judgment.
       untary intoxication -- although not an affirmative       6
                                                                  The court noted that a dissent from the denial of certio-
       defense to second-degree murder -- is material to        rari in a case in this Court had exposed the question
       the element of premeditation and may be found to         whether the constitutional rule of In re Winship, 397 U.S.
       have negated it. Hatcher v. Commonwealth, 218            358, might compel a new criterion by which the validity
       Va. 811, 241 S. E. 2d 756.                               of a state criminal conviction must be tested in a federal
                                                                habeas corpus proceeding. See Freeman v. Zahradnick,
      The trial judge, declaring himself convinced beyond
                                                                429 U.S. 1111 (dissent from denial of certiorari). But
a reasonable doubt that the petitioner had committed
                                                                the appellate court held that in the absence of further
first-degree murder, found him guilty of that offense. 3
                                                                guidance from this Court it would apply the same "no
The petitioner's motion to set aside the judgment as con-
                                                                evidence" criterion of Thompson v. Louisville that the
trary to the evidence was denied, and he was sentenced
                                                                District Court had adopted. The court was of the view
to serve a term of 30 years in the Virginia state peniten-
                                                                that some evidence that the petitioner had intended to kill
tiary. A petition for writ of error to the Virginia Su-
                                                                the victim could be found in the facts that the petitioner
preme Court on the ground that the evidence was insuffi-
                                                                had reloaded his gun after firing warning shots, that he
cient to support the conviction was denied. 4
                                                                had had time to do so, and that the victim was then shot
                                                                not once but twice. The court also concluded that the
       3 When trial without a jury is had on a not
                                                                state trial judge could have found that the petitioner was
       guilty plea in Virginia, the court is to "have and
                                                                not so intoxicated as to be incapable of premeditation.
       exercise all the powers, privileges and duties
       given to juries . . . ." Va. Code § 19.2-257 (1975).
                                                                         5 The District Court correctly found that the
       4
                                                                         petitioner had exhausted his state remedies on
              [***LEdHR5A] There is no appeal as of                      this issue. See n. 4, supra.
       right from a criminal conviction in Virginia.                     6 The opinions of the District Court and the
       Saunders v. Reynolds, 214 Va. 697, 204 S. E. 2d                   Court of Appeals are not reported. The Court of
       421. Each petition for writ of error under Va.                    Appeals' judgment order is reported at 580 F.2d
       Code § 19.2-317 (1975) is reviewed on the mer-                    1048.
       its, however, and the effect of a denial is to affirm
       the judgment of conviction on the merits. Saun-
                                                                  [***LEdHR2A] We granted certiorari to consider the
       ders v. Reynolds, supra.
                                                                petitioner's claim that under In re Winship, supra, a fed-
             The petition for writ of error alleged that "the   eral habeas corpus court must [*313] consider not
       trial Court erred in finding the Petitioner guilty of    whether there was any evidence to support a state-court
       first-degree murder in light of the evidence in-         conviction, but whether there was sufficient evidence to
       troduced on behalf of the Commonwealth, and on           justify a rational trier of the facts to find guilt beyond a
       unwarranted inferences drawn from this evi-              reasonable doubt. 439 U.S. 1001.
       dence." The petitioner contended that an affir-
                                                                    II
       mance would violate the Due Process Clause of
       the Fourteenth Amendment. In its order denying                Our inquiry in this case is narrow. The petitioner
       Jackson's petition, the Virginia Supreme Court           has not seriously questioned any [**2786] aspect of
       stated it was "of [the] opinion that there is no re-     Virginia law governing the allocation of the burden of
       versible error in the judgment complained of . . .       production or persuasion in a murder trial. See Mul-
       ." Virginia law requires sufficiency claims to be        laney v. Wilbur, 421 U.S. 684; Patterson v. New York,
       raised on direct appeal; such a claim may not be         432 U.S. 197. As the record demonstrates, the judge sit-
       raised in a state habeas corpus proceeding. Pet-         ting as factfinder in the petitioner's trial was aware that
       tus v. Peyton, 207 Va. 906, 153 S. E. 2d 278.            the State bore the burden of establishing the element of
                                                                premeditation, and stated that he was applying the rea-
                                                                sonable-doubt standard in his appraisal of the State's ev-
                                                                idence. The petitioner, moreover, does not contest the
 [*312]      [***LEdHR5A] The [***569] petitioner
                                                                conclusion of the Court of Appeals that under the "no
then commenced this habeas corpus proceeding in the
                                                                evidence" rule of Thompson v. Louisville, supra, his
United States District Court for the Eastern District of
                                                                conviction of first-degree murder is sustainable.
Virginia, raising the same basic claim. 5 Applying the "no
                                                                [***570] And he has not attacked the sufficiency of the
evidence" criterion of Thompson v. Louisville, 362 U.S.
                                                                evidence to support a conviction of second-degree mur-
199, the District Court found the record devoid of evi-
                                                                der. His sole constitutional claim, based squarely upon
                                                                                                                    Page 11
                                             443 U.S. 307, *; 99 S. Ct. 2781, **;
                                         61 L. Ed. 2d 560, ***; 1979 U.S. LEXIS 10

Winship, is that the District Court and the Court of Ap-         by a preponderance of the evidence. [*315] Applying
peals were in error in not recognizing that the question to      [***571] that standard, the judge was satisfied that the
be decided in this case is whether any rational factfinder       juvenile was "guilty," but he noted that the result might
could have concluded beyond a reasonable doubt that the          well have been different under a standard of proof be-
killing for which the petitioner was convicted was pre-          yond [**2787] a reasonable doubt. In short, the record
meditated. The question thus raised goes to the basic            in Winship was not totally devoid of evidence of guilt.
nature of the constitutional right recognized in the Win-
                                                                      The constitutional problem addressed in Winship
ship opinion.
                                                                 was thus distinct from the stark problem of arbitrariness
    III                                                          presented in Thompson v. Louisville. In Winship, the
                                                                 Court held for the first time that [HN5] the Due Process
    A
                                                                 Clause of the Fourteenth Amendment protects a defend-
     This is the first of our cases to expressly consider the    ant in a criminal case against conviction "except upon
question whether the due process standard recognized in          proof beyond a reasonable doubt of every fact necessary
Winship constitutionally protects an accused against             to constitute the crime with which he is charged." 397
conviction except upon evidence that is sufficient fairly        U.S., at 364. In so holding, the Court emphasized that
to support a conclusion [*314] that every element of             proof beyond a reasonable doubt has traditionally been
the crime has been established beyond a reasonable               regarded as the decisive difference between criminal
doubt. Upon examination of the fundamental differences           culpability and civil liability. Id., at 358-362. See Davis
between the constitutional underpinnings of Thompson v.          v. United States, 160 U.S. 469; Brinegar v. United States,
Louisville, supra, and of In re Winship, supra, the answer       338 U.S. 160, 174; Leland v. Oregon, 343 U.S. 790; 9 J.
to that question, we think, is clear.                            Wigmore, Evidence § 2495, pp. 307-308 (3d ed. 1940).
                                                                 Cf. Woodby v. INS, 385 U.S. 276, 285. The standard of
   [***LEdHR6] [6] [***LEdHR7] [7][HN4] It is axi-               proof beyond a reasonable doubt, said the Court, "plays a
omatic that a conviction upon a charge not made or upon          vital role in the American scheme of criminal proce-
a charge not tried constitutes a denial of due process.          dure," because it operates to give "concrete substance" to
Cole v. Arkansas, 333 U.S. 196, 201; Presnell v. Geor-           the presumption of innocence, to ensure against unjust
gia, 439 U.S. 14. These standards no more than reflect a         convictions, and to reduce the risk of factual error in a
broader premise that has never been doubted in our con-          criminal proceeding. 397 U.S., at 363. At the same
stitutional system: that a person cannot incur the loss of       time, by impressing upon the factfinder the need to reach
liberty for an offense without notice and a meaningful           a subjective state of near certitude of the guilt of the ac-
opportunity to defend. E. g., Hovey v. Elliott, 167 U.S.         cused, the standard symbolizes the significance that our
409, 416-420. Cf. Boddie v. Connecticut, 401 U.S. 371,           society attaches to the criminal sanction and thus to lib-
377-379. A meaningful opportunity to defend, if not the          erty itself. Id., at 372 (Harlan, J., concurring).
right to a trial itself, presumes as well that a total want of
evidence to support a charge will conclude the case in             [***LEdHR8A] The constitutional standard recog-
favor of the accused. Accordingly, we held in the                nized in the Winship case was expressly phrased as one
Thompson case that a conviction based upon a record              that protects an accused against a conviction except on
wholly devoid of any relevant evidence of a crucial ele-         "proof beyond a reasonable doubt . . . ." In subsequent
ment of the offense charged is constitutionally infirm.          cases discussing the reasonable-doubt standard, we have
See also Vachon v. New Hampshire, 414 U.S. 478; Ad-              never departed from this definition of the rule or from
derley v. Florida, 385 U.S. 39; Gregory v. Chicago, 394          [*316] the Winship understanding of the central pur-
U.S. 111; Douglas v. Buder, 412 U.S. 430. The "no evi-           poses it serves. See, e. g., Ivan V. v. City of New York,
dence" doctrine of Thompson v. Louisville thus secures           407 U.S. 203, 204; Lego v. Twomey, 404 U.S. 477,
to an accused the most elemental of due process rights:          486-487; Mullaney v. Wilbur, 421 U.S. 684; Patterson v.
freedom from a wholly arbitrary deprivation of liberty.          New York, 432 U.S. 197; Cool v. United States, 409 U.S.
                                                                 100, 104. In short, Winship presupposes as an essential
     The Court in Thompson explicitly stated that the due
                                                                 of the due process guaranteed by the Fourteenth
process right at issue did not concern a question of evi-
                                                                 Amendment that no person shall be made to suffer the
dentiary "sufficiency." 362 U.S., at 199. The right es-
                                                                 onus of a criminal conviction except upon sufficient
tablished in In re Winship, however, clearly stands on a
                                                                 proof -- defined as evidence necessary to convince a trier
different footing. Winship involved an adjudication of
                                                                 of fact beyond a reasonable doubt of the existence of
juvenile delinquency made by a judge under a state stat-
                                                                 every element of the offense.
ute providing that the prosecution must prove the con-
duct charged as delinquent -- which in Winship would                 B
have been a criminal offense if engaged in by an adult --
                                                                                                                   Page 12
                                             443 U.S. 307, *; 99 S. Ct. 2781, **;
                                         61 L. Ed. 2d 560, ***; 1979 U.S. LEXIS 10

     Although several of our cases have intimated that                   8 The trier of fact in this case was a judge and
the fact-finder's application of the reasonable-doubt                    not a jury. But this is of no constitutional sig-
standard to the evidence may present a [***572] fed-                     nificance. The record makes clear that the judge
eral question when a state conviction is challenged, Lego                deemed himself "properly instructed."
v. Twomey, supra, at 487; Johnson v. Louisiana, 406                      9     A "reasonable doubt" has often been de-
U.S. 356, 360, the Federal Courts of Appeals have gen-                   scribed as one "based on reason which arises
erally assumed that so long as the reasonable-doubt in-                  from the evidence or lack of evidence." Johnson
struction has been given at trial, the no-evidence doctrine              v. Louisiana, 406 U.S. 356, 360 (citing cases).
of Thompson v. Louisville remains the appropriate guide                  For a discussion of variations in the definition
for a federal habeas corpus court to apply in assessing a                used in jury instructions, see Holland v. United
state prisoner's challenge to his conviction as founded                  States, 348 U.S. 121, 140 (rejecting contention
upon insufficient evidence. See, e. g., Cunha v. Brewer,                 that circumstantial evidence must exclude every
511 F.2d 894 (CA8). 7 We cannot agree.                                   hypothesis but that of guilt).
                                                                         10        [***LEdHR11A]          [***LEdHR12A]
        7 The Court of Appeals in the present case, of                   This, of course, does not mean that convictions
        course, recognized that Winship may have                         are frequently reversed upon this ground. The
        changed the constitutional standard in federal                   practice in the federal courts of entertaining
        habeas corpus. And the Court of Appeals for the                  properly preserved challenges to evidentiary suf-
        Sixth Circuit recently recognized the possible                   ficiency, see Fed. Rule Crim. Proc. 29, serves
        impact of Winship on federal habeas corpus in a                  only to highlight the traditional understanding in
        case in which it held that "a rational trier of fact             our system that the application of the be-
        could have found the defendant . . . guilty beyond               yond-a-reasonable-doubt standard to the evidence
        a reasonable doubt." Spruytte v. Koehler, affir-                 is not irretrievably committed to jury discretion.
        mance order, 590 F.2d 335. An even more recent                   To be sure, the factfinder in a criminal case has
        case in that court provoked a lively debate among                traditionally been permitted to enter an unassaila-
        three of its members regarding the effect of Win-                ble but unreasonable verdict of "not guilty." This
        ship upon federal habeas corpus. The writ was                    is the logical corollary of the rule that there can
        granted in that case, even though the trial record               be no appeal from a judgment of acquittal, even if
        concededly contained "some evidence" of the ap-                  the evidence of guilt is overwhelming. The
        plicant's guilt. See Speigner v. Jago, 603 F.2d                  power of the factfinder to err upon the side of
        1208.                                                            mercy, however, has never been thought to in-
                                                                         clude a power to enter an unreasonable verdict of
        [***LEdHR9] [9]               [***LEdHR10] [10]
                                                                         guilty. Carpenters & Joiners v. United States,
[***LEdHR11A]              [***LEdHR12A] [HN6] The
                                                                         330 U.S. 395, 408. Cf. Capital Traction Co. v.
[**2788] Winship doctrine requires more than simply a
                                                                         Hof, 174 U.S. 1, 13-14. Any such premise is
trial [*317] ritual. A doctrine establishing so funda-
                                                                         wholly belied by the settled practice of testing
mental a substantive constitutional standard must also
                                                                         evidentiary sufficiency through a motion for
require that the factfinder will rationally apply that
                                                                         judgment of acquittal and a postverdict appeal
standard to the facts in evidence. 8 A "reasonable doubt,"
                                                                         from the denial of such a motion. See generally
at a minimum, is one based upon "reason." 9 Yet a
                                                                         4 L. Orfield, Criminal Procedure Under the Fed-
properly instructed jury may occasionally convict even
                                                                         eral Rules §§ 29:1-29:29 (1967 and Supp. 1978).
when it can be said that no rational trier of fact could
find guilt beyond a reasonable doubt, and the same may
be said of a trial judge sitting as a jury. In a federal trial,       [***LEdHR13] [13] [***LEdHR14] [14][HN7] A
such an occurrence has traditionally been deemed to re-           federal court has a duty to assess the historic facts when
quire reversal of the conviction. Glasser v. United               it is called upon to apply a constitutional standard to a
States, 315 U.S. 60, 80; Bronston v. United States, 409           conviction obtained in a state court. For example, on
U.S. 352. See also, e. g., Curley v. United States, 81 U. S.      direct review of a state-court conviction, where the claim
App. D. C. 389, 392-393, 160 F.2d 229, 232-233. 10 Un-            is made that an involuntary confession was used against
der [***573] Winship, which established [*318]                    the defendant, this Court reviews the facts to determine
proof beyond a reasonable doubt as an essential of Four-          whether the confession was wrongly admitted in evi-
teenth Amendment due process, it follows that when such           dence. Blackburn v. Alabama, 361 U.S. 199, 205-210.
a conviction occurs in a state trial, it cannot constitution-     Cf. Drope v. Missouri, 420 U.S. 162, 174-175, and n.
ally stand.                                                       10. The same duty obtains in federal habeas corpus pro-
                                                                  ceedings. See Townsend v. Sain, 372 U.S. 293, 318;
                                                                                                                  Page 13
                                             443 U.S. 307, *; 99 S. Ct. 2781, **;
                                         61 L. Ed. 2d 560, ***; 1979 U.S. LEXIS 10

Brown v. Allen, 344 U.S. 443, 506-507 (opinion of                       tion"). This is now the prevailing criterion for
Frankfurter, J.).                                                       judging motions for acquittal in federal criminal
                                                                        trials. See generally 2 C. Wright, Federal Prac-
   [***LEdHR15]              [15]          [***LEdHR16A]                tice and Procedure § 467 (1969 and Supp. 1978).
[***LEdHR17] [17] [***LEdHR18A] After Win-                              12 Contrary to the suggestion in the opinion
ship[HN8] the critical inquiry on review of the suffi-                  concurring in the judgment, the criterion an-
ciency of the evidence to support a criminal conviction                 nounced today as the constitutional minimum re-
must be not simply to determine whether the jury was                    quired to enforce the due process right estab-
properly instructed, but to determine whether the record                lished in Winship is not novel. See, e. g., United
evidence could reasonably support a finding of guilt be-                States v. Amato, 495 F.2d 545, 549 (CA5)
yond a [**2789] reasonable doubt. 11 But this inquiry                   ("whether, taking the view [of the evidence] most
does not require a court to "ask [*319] itself whether it               favorable to the Government, a reasona-
believes that the evidence at the trial established guilt               bly-minded jury could accept the relevant evi-
beyond a reasonable doubt." Woodby v. INS, 385 U.S., at                 dence as adequate and sufficient to support the
282 (emphasis added). Instead, the relevant question is                 conclusion of the defendant's guilt beyond a rea-
whether, after viewing the evidence in the light most                   sonable doubt") (emphasis added); United States
favorable to the prosecution, any rational trier of fact                v. Jorgenson, 451 F.2d 516, 521 (CA10) (wheth-
could have found the essential elements of the crime                    er, "considering the evidence in the light most
beyond a reasonable doubt. See Johnson v. Louisiana,                    favorable to the government, there is substantial
406 U.S., at 362. This familiar standard gives full play to             evidence from which a jury might reasonably
the responsibility of the trier of fact fairly to resolve con-          find that an accused is guilty beyond a reasonable
flicts in the testimony, to weigh the evidence, and to                  doubt") (emphasis added). Glasser v. United
draw reasonable inferences from basic facts to ultimate                 States, 315 U.S. 60, 80, has universally been un-
facts. Once a defendant has been found guilty of the                    derstood as a case applying this criterion. See, e.
crime charged, the factfinder's role as weigher of the                  g., Harding v. United States, 337 F.2d 254, 256
evidence is preserved through a legal conclusion that                   (CA8). See generally 4 Orfield, supra n. 10, §
upon judicial review all of the evidence is to be consid-               29.28.
ered in the light most favorable to the prosecution. 12 The             13       [***LEdHR18A] The question whether
criterion [***574] thus impinges upon "jury" discre-                    the evidence is constitutionally sufficient is of
tion only to the extent necessary to guarantee the funda-               course wholly unrelated to the question of how
mental protection of due process of law. 13                             rationally the verdict was actually reached. Just
                                                                        as the standard announced today does not permit
        11                                                              a court to make its own subjective determination
                                                                        of guilt or innocence, it does not require scrutiny
               [***LEdHR16A] Until 1972, the Court of
                                                                        of the reasoning process actually used by the
        Appeals for the Second Circuit took the position
                                                                        factfinder -- if known. See generally 3 F. Whar-
        advanced today by the opinion concurring in the
                                                                        ton, Criminal Procedure § 520 (12th ed. 1975 and
        judgment that the beyond-a-reasonable-doubt
                                                                        Supp. 1978).
        standard is merely descriptive of the state of mind
        required of the factfinder in a criminal case and
        not of the actual quantum and quality of proof
        necessary to support a criminal conviction. Thus,         [*320]      [***LEdHR19] [19] [***LEdHR20A] That
        that court held that in a jury trial the judge need      the Thompson "no evidence" rule is simply inadequate to
        not distinguish between criminal and civil cases         protect against misapplications of the constitutional
        for the purpose of ruling on a motion for judg-          standard of reasonable doubt is readily apparent. [HN9]
        ment of acquittal. United States v. Feinberg,            "[A] mere modicum of evidence may satisfy a 'no evi-
        140 F.2d 592, 594. In United States v. Taylor,           dence' standard . . . ." Jacobellis v. Ohio, 378 U.S. 184,
        464 F.2d 240 (CA2), Feinberg was overruled,              202 (Warren, C. J., dissenting). Any evidence that is
        partly on the strength of Winship. The Taylor            relevant -- that has any tendency to make the existence of
        court adopted the directed-verdict criterion artic-      an element of a crime slightly more probable than it
        ulated in Curley v. United States, 81 U. S. App.         would be without the evidence, cf. Fed. Rule Evid. 401 --
        D. C. 389, 392-393, 160 F.2d 229, 232-233 (If            could be deemed a "mere modicum." But it could not
        "reasonable" jurors "must necessarily have . . . a       seriously be argued that such a "modicum" of evidence
        reasonable doubt" as to guilt, the judge "must re-       could by itself rationally support a conviction beyond a
        quire acquittal, because no other result is permis-      reasonable doubt. The [**2790] Thompson doctrine
        sible within the fixed bounds of jury considera-         simply fails to supply a workable or even a predictable
                                                                                                                     Page 14
                                             443 U.S. 307, *; 99 S. Ct. 2781, **;
                                         61 L. Ed. 2d 560, ***; 1979 U.S. LEXIS 10

standard for determining whether the due process com-            duplicate the work of the state appellate courts, will dis-
mand of Winship has been honored. 14                             serve the societal interest in the finality of state criminal
                                                                 proceedings, and will increase friction between the fed-
         14                                                      eral and state judiciaries. In sum, counsel for the State
                                                                 urges that this type of constitutional claim should be
                [***LEdHR20A] Application of the
                                                                 deemed to fall within the limit on federal habeas corpus
         Thompson standard to assess the validity of a
                                                                 jurisdiction identified in Stone v. Powell, 428 U.S. 465,
         criminal conviction after Winship could lead to
                                                                 with respect to Fourth Amendment claims. We disagree.
         absurdly unjust results. Our cases have indicated
         that failure to instruct a jury on the necessity of
                                                                   [***LEdHR21A] First, the burden that is likely to
         proof of guilt beyond a reasonable doubt can
                                                                 follow from acceptance of the Winship standard has, we
         never be harmless error. See Cool v. United
                                                                 think, been exaggerated. Federal-court challenges to the
         States, 409 U.S. 100. Cf. Taylor v. Kentucky,
                                                                 evidentiary support for state convictions have since
         436 U.S. 478. Thus, a defendant whose guilt was
                                                                 Thompson been dealt with under § 2254. E. g., Free-
         actually proved by overwhelming evidence would
                                                                 man v. Stone, 444 F.2d 113 (CA9); Grieco v. [*322]
         be denied due process if the jury was instructed
                                                                 Meachum, 533 F.2d 713 (CA1); Williams v. Peyton, 414
         that he could be found guilty on a mere prepon-
                                                                 F.2d 776 (CA4). A more stringent standard will expand
         derance of the evidence. Yet a defendant against
                                                                 the contours of this type of claim, but will not create an
         whom there was but one slender bit of evidence
                                                                 entirely new class of cases cognizable on federal habeas
         would not be denied due process so long as the
                                                                 corpus. Furthermore, most meritorious challenges to
         jury has been properly instructed on the prosecu-
                                                                 constitutional sufficiency of the evidence undoubtedly
         tion's burden of proof beyond a reasonable doubt.
                                                                 will be recognized in the state courts, and, if the state
         Such results would be wholly faithless to the
                                                                 courts have fully considered the issue of sufficiency, the
         constitutional rationale of Winship.
                                                                 task of a federal habeas court should not be difficult.
     C                                                           Cf. Brown v. Allen, 344 U.S., at 463. 15 [**2791] And
                                                                 this type of claim can almost always be judged on the
   [***LEdHR8A] [HN10] Under 28 U. S. C. § 2254, a               written record without need for an evidentiary hearing in
federal court must entertain a claim by a state prisoner         the federal court.
that he or she is being held in "custody in violation of the
Constitution or laws or treaties of the [*321] United                   15      [***LEdHR21A] The Virginia Supreme
States." Under the Winship decision, it is clear that a                 Court's order denying Jackson's petition for writ
state prisoner who alleges that the evidence in support of              of error does not make clear what criterion was
his state conviction cannot be fairly characterized as suf-             applied to the petitioner's claim that the evidence
ficient to have led a rational trier of fact to find guilt be-          in support of his first-degree murder conviction
yond a reasonable doubt has stated a federal constitu-                  was insufficient. See n. 4, supra. At oral ar-
tional claim. Thus, assuming that state remedies have                   gument, counsel for the petitioner contended that
been exhausted, see 28 U. S. C. § 2254 (b), and that no                 the Virginia sufficiency standard is not keyed to
independent and adequate state ground stands as a bar,                  Winship. Counsel for the State disagreed. Un-
see [***575] Estelle v. Williams, 425 U.S. 501;Francis                  der these circumstances, we decline to speculate
v. Henderson, 425 U.S. 536;Wainwright v. Sykes, 433                     as to the criterion that the state court applied.
U.S. 72;Fay v. Noia, 372 U.S. 391, 438, it follows that                 The fact that a state appellate court invoked the
such a claim is cognizable in a federal habeas corpus                   proper standard, however, although entitled to
proceeding. The respondents have argued, nonetheless,                   great weight, does not totally bar a properly pre-
that a challenge to the constitutional sufficiency of the               sented claim of this type under § 2254.
evidence should not be entertained by a federal district
                                                                         [***LEdHR22] [22]Second, the problems of fi-
court under 28 U. S. C. § 2254.
                                                                 nality and federal-state comity arise whenever a state
     In addition to the argument that a Winship standard         prisoner invokes the jurisdiction of a federal court to
invites replication of state criminal trials in the guise of §   redress an alleged constitutional violation. A challenge
2254 proceedings -- an argument that simply fails to             to a state conviction brought on the ground that the evi-
recognize that courts can and regularly do gauge the suf-        dence cannot fairly be deemed [***576] sufficient to
ficiency of the evidence without intruding into any le-          have established guilt beyond a reasonable doubt states a
gitimate domain of the trier of fact -- the respondents          federal constitutional claim. Although state appellate
have urged that any departure from the Thompson test in          review undoubtedly will serve in the vast majority of
federal habeas corpus proceedings will expand the num-           cases to vindicate the due process protection that follows
ber of meritless claims brought to the federal courts, will      from Winship, the same could also be said of the vast
                                                                                                                   Page 15
                                            443 U.S. 307, *; 99 S. Ct. 2781, **;
                                        61 L. Ed. 2d 560, ***; 1979 U.S. LEXIS 10

majority of other federal constitutional rights that may be     [**2792] rational trier of fact could have found proof of
implicated in a state criminal trial. It is the occasional      guilt beyond a reasonable [***577] doubt. 16
abuse that the federal writ of habeas corpus stands ready
to correct. Brown v. Allen, supra, at 498-501 (opinion                 16
of Frankfurter, J.).
                                                                              [***LEdHR2A] The respondents have
      [*323]        [***LEdHR23] [23]The respondents                   suggested that this constitutional standard will
have argued nonetheless that whenever a person con-                    invite intrusions upon the power of the States to
victed in a state court has been given a "full and fair                define criminal offenses. Quite to the contrary,
hearing" in the state system -- meaning in this instance               the standard must be applied with explicit refer-
state appellate review of the sufficiency of the evidence              ence to the substantive elements of the criminal
-- further federal inquiry -- apart from the possibility of            offense as defined by state law. Whether the
discretionary review by this Court -- should be fore-                  State could constitutionally make the conduct at
closed. This argument would prove far too much. A                      issue criminal at all is, of course, a distinct ques-
judgment by a state appellate court rejecting a challenge              tion. See Papachristou v. Jacksonville, 405 U.S.
to evidentiary sufficiency is of course entitled to defer-             156; Robinson v. California, 370 U.S. 660.
ence by the federal courts, as is any judgment affirming a
                                                                     IV
criminal conviction. But Congress in § 2254 has selected
the federal district courts as precisely the forums that are
                                                                  [***LEdHR25] [25]Turning finally to the specific
responsible for determining whether state convictions
                                                                facts of this case, we reject the petitioner's claim that
have been secured in accord with federal constitutional
                                                                under the constitutional standard dictated by Winship his
law. The federal habeas corpus statute presumes the
                                                                conviction of first-degree murder cannot stand. A re-
norm of a fair trial in the state court and adequate state
                                                                view of the record in the light most favorable to the
postconviction remedies to redress possible error. See
                                                                prosecution convinces us that a rational factfinder could
28 U. S. C. §§ 2254 (b), (d). What it does not presume
                                                                readily have found the petitioner guilty beyond a rea-
is that these state proceedings will always be without
                                                                sonable doubt of first-degree murder under Virginia law.
error in the constitutional sense. The duty of a federal
habeas corpus court to appraise a claim that constitution-
                                                                   [***LEdHR26] [26]There was no question at the trial
al error did occur -- reflecting as it does the belief that
                                                                that the petitioner had fatally shot Mary Cole. The cru-
the "finality" of a deprivation of liberty through the in-
                                                                cial factual dispute went to the sufficiency of the evi-
vocation of the criminal sanction is simply not to be
                                                                dence to support a finding that he had specifically in-
achieved at the expense of a constitutional right -- is not
                                                                tended to kill her. This question, as the Court of Ap-
one that can be so lightly abjured.
                                                                peals recognized, must be gauged in the light of applica-
                                                                ble Virginia law defining the element of premeditation.
   [***LEdHR24] [24]The constitutional issue presented
                                                                [HN12] Under that law it is well settled that premedita-
in this case is far different from the kind of issue that was
                                                                tion need not exist for any particular length of time, and
the subject of the Court's decision in Stone v. Powell,
                                                                that an intent to kill may be formed at the moment of the
supra.The question whether a defendant has been con-
                                                                commission of the unlawful act. Commonwealth v.
victed upon inadequate evidence is central to the basic
                                                                Brown, 90 Va. 671, 19 S. E. 447.From the circumstantial
question of guilt or innocence. The constitutional ne-
                                                                evidence in the record, it is [*325] clear that the trial
cessity of proof beyond a reasonable doubt is not con-
                                                                judge could reasonably have found beyond a reasonable
fined to those defendants who are morally blameless. E.
                                                                doubt that the petitioner did possess the necessary intent
g., Mullaney v. Wilbur, 421 U.S., at 697-698 (require-
                                                                at or before the time of the killing.
ment of proof beyond a reasonable doubt is not "[lim-
ited] to those facts which, if not proved, would wholly              The prosecution's uncontradicted evidence estab-
exonerate" the accused). Under our system of criminal           lished that the petitioner shot the victim not once but
justice even a thief [*324] is entitled to complain that        twice. The petitioner himself admitted that the fatal
he has been unconstitutionally convicted and imprisoned         shooting had occurred only after he had first fired several
as a burglar.                                                   shots into the ground and then reloaded his gun. The
                                                                evidence was clear that the two shots that killed the vic-
       [***LEdHR2A] We hold that [HN11] in a chal-
                                                                tim were fired at close, and thus predictably fatal, range
lenge to a state criminal conviction brought under 28 U.
                                                                by a person who was experienced in the use of the mur-
S. C. § 2254 -- if the settled procedural prerequisites for
                                                                der weapon. Immediately after the shooting, the peti-
such a claim have otherwise been satisfied -- the appli-
                                                                tioner drove without mishap from Virginia to North Car-
cant is entitled to habeas corpus relief if it is found that
                                                                olina, a fact quite at odds with his story of extreme in-
upon the record evidence adduced at the trial no
                                                                toxication. Shortly before the fatal episode, he had pub-
                                                                                                                       Page 16
                                             443 U.S. 307, *; 99 S. Ct. 2781, **;
                                         61 L. Ed. 2d 560, ***; 1979 U.S. LEXIS 10

licly expressed an intention to have sexual relations with            MR. JUSTICE STEVENS, with whom THE CHIEF
the victim. Her body was found partially unclothed.              JUSTICE and MR. JUSTICE REHNQUIST join, con-
From these uncontradicted circumstances, a rational fact-        curring in the judgment. The Constitution prohibits the
finder readily could have inferred beyond a reasonable           criminal conviction of any person except upon proof
doubt that the petitioner, notwithstanding evidence that         sufficient to convince the trier of fact of guilt beyond a
he had been drinking on the day of the killing, did have         reasonable doubt. Cf. ante, at 309. This rule has pre-
the capacity to form and had in fact formed an intent to         vailed in our courts "at least from our early years as a
kill the victim.                                                 Nation." In re Winship, 397 U.S. 358, 361.
     The petitioner's calculated behavior both before and             Today the Court creates a new rule of law -- one that
after the killing demonstrated that he was fully capable         has never prevailed in our jurisprudence. According to
of committing premeditated murder. His claim of                  the Court, the Constitution now prohibits the criminal
self-defense would have required the trial judge to draw         conviction of any person -- including, apparently, a per-
a series of improbable inferences from the basic facts,          son against whom the facts have already been found be-
prime among them the inference that he was wholly un-            yond a reasonable doubt by a jury, a trial judge, and one
interested in sexual [***578] activity with the victim           or more levels of state appellate judges -- except upon
but that she was so interested as to have willingly re-          proof sufficient to convince a federal [*327] judge
moved part of her clothing and then attacked him with a          that a "rational trier of fact could have found the essential
knife when he resisted her advances, even though he was          elements of the crime beyond a reasonable doubt." Ante,
armed with a loaded revolver that he had just demon-             at 319.
strated he knew how to use. It is evident from the rec-
                                                                      The adoption of this novel constitutional rule is not
ord that the trial judge found this story, including the
                                                                 necessary to the decision of this case. Moreover, I be-
petitioner's belated contention that he had been so intox-
                                                                 lieve it is an unwise act of lawmaking. Despite its chi-
icated as to be incapable of premeditation, incredible.
                                                                 merical appeal as a new counterpart to the venerable
                                                                 principle recognized in Winship, I am persuaded that its
                                                                 [***579] precipitous adoption will adversely affect the
 [*326]           [***LEdHR27] [27] [***LEdHR28]                 quality of justice administered by federal judges. For
[28]Only under a theory that the prosecution was under           that reason I shall analyze this new brainchild with some
an affirmative duty to rule out every hypothesis except          care.
that of guilt beyond a reasonable doubt could this peti-
                                                                      I shall begin by explaining why neither the record in
tioner's [**2793] challenge be sustained. That theory
                                                                 this case, nor general experience with challenges to the
the Court has rejected in the past. Holland v. United
                                                                 sufficiency of the evidence supporting criminal convic-
States, 348 U.S. 121, 140. We decline to adopt it today.
                                                                 tions, supports, much less compels, the conclusion that
Under the standard established in this opinion as neces-
                                                                 there is any need for this new constitutional precept. I
sary to preserve the due process protection recognized in
                                                                 shall next show that it is not logically compelled by ei-
Winship, [HN13] a federal habeas corpus court faced
                                                                 ther the holding or the analysis in In re Winship, supra.
with a record of historical facts that supports conflicting
                                                                 Finally, I shall try to demonstrate why the Court's new
inferences must presume -- even if it does not affirma-
                                                                 rule -- if it is not just a meaningless shibboleth -- threat-
tively appear in the record -- that the trier of fact resolved
                                                                 ens serious harm to the quality of our judicial system.
any such conflicts in favor of the prosecution, and must
defer to that resolution. Applying these criteria, we hold           I
that a rational trier of fact could reasonably have found
that the petitioner committed murder in the first degree              It is, of course, part of this Court's tradition that new
under Virginia law.                                              rules of law emerge from the process of case-by-case
                                                                 adjudication of constitutional issues. Widespread con-
    For these reasons, the judgment of the Court of Ap-          cern that existing constitutional doctrine is unjust often
peals is affirmed.                                               provides the occasion, and is sometimes even relied upon
                                                                 as a justification, for the exercise of such lawmaking
    It is so ordered.
                                                                 authority by the Court. Without entering the debate
     MR. JUSTICE POWELL took no part in the con-                 over the legitimacy of this justification for judicial ac-
sideration or decision of this case.                             tion, it is at least certain that it should not be the basis for
                                                                 dramatic -- indeed, for any -- constitutional lawmaking
CONCUR BY: STEVENS                                               efforts unless (1) those efforts are necessary to the deci-
                                                                 sion of the case at hand and (2) powerful reasons favor a
CONCUR                                                           change in the law. See Ashwander v. TVA, 297 U.S.
                                                                 288, 345-348 (Brandeis, J., concurring).
                                                                                                                    Page 17
                                           443 U.S. 307, *; 99 S. Ct. 2781, **;
                                       61 L. Ed. 2d 560, ***; 1979 U.S. LEXIS 10

        [*328] In this case, the Court's analysis fails on     bly involved legal issues masquerading as sufficiency
both counts. It has accordingly formulated a new con-          questions. 1 It is difficult to believe that the federal courts
stitutional principle under the [**2794] most danger-          will turn up more sufficiency problems than this on ha-
ous possible circumstances -- i. e., where the exercise of     beas review when, instead of acting as the first level of
judicial authority is neither necessitated nor capable of      [*330] review, as in the cases [**2795] studied, they
being limited by "the precise facts to which [the rule is      will be acting as the second, third, or even fourth level of
originally] to be applied," Liverpool, N. Y. & P. S. S. Co.    appellate review. In short, there is simply no reason to
v. Emigration Comm'rs, 113 U.S. 33, 39, nor even by            tinker with an elaborate mechanism that is now func-
some broader set of identifiable experiences with the evil     tioning well.
supposedly involved.
                                                                          1 In United States v. Tarr, 589 F.2d 55 (CA1
     Most significantly, the Court has announced its new
                                                                          1978), the court overturned one of two counts of
constitutional edict in a case in which it has absolutely
                                                                          which appellant was convicted because there was
no bearing on the outcome. The only factual issue at
                                                                          insufficient evidence to prove that he had the in-
stake is whether petitioner intended to kill his victim. If
                                                                          tent to aid and abet the unauthorized transfer of a
the evidence is viewed "in the light most favorable to the
                                                                          machinegun in violation of 26 U. S. C. § 5861 (e)
prosecution," ante, at 319 -- and, indeed, we may view it
                                                                          and 18 U. S. C. § 2. The court found "no evi-
through the eyes of the actual factfinder, whose observa-
                                                                          dence" that appellant had the requisite
tions about the evidence are recorded in the trial tran-
                                                                          knowledge. 589 F.2d, at 60.
script -- there can be only one answer to that question no
matter what standard of appellate review is applied. In                        In United States v. Whetzel, 191 U. S. App.
Part IV of its opinion, the Court accepts this conclusion.                D. C. 184, 589 F.2d 707 (1978), the court over-
There is, therefore, no need to fashion a broad new rule                  turned 2 of the 35 counts of appellant's conviction
of constitutional law to dispose of this squalid but rather               because "the Government failed to offer proof
routine murder case. Under any view, the evidence is                      that would permit a jury to reasonably infer that
sufficient.                                                               the merchandise [appellant] transported had a
                                                                          value of $ 5,000." Id., at 188, 589 F.2d, at 711.
     The Court's new rule is adopted simply to forestall
                                                                          However, the basis for this determination was
some hypothetical evil that has not been demonstrated,
                                                                          that the Government's valuation method, which
and in my view is not fairly demonstrable. Although the
                                                                          the trial court allowed the jury to consider, was
Judiciary has received its share of criticism -- principally
                                                                          legally erroneous. Similarly, in United States v.
because of the delays and costs associated with litigation
                                                                          Fearn, 589 F.2d 1316 (CA7 1978), the court
-- I [***580] am aware of no general dissatisfaction
                                                                          overturned the conviction based on a federal
with the accuracy of the factfinding process or the ade-
                                                                          nonconstitutional rule, which surely would not
quacy of the rules applied by state appellate courts when
                                                                          apply in habeas review of state convictions, "that
reviewing claims of insufficiency.
                                                                          a conviction must rest upon firmer ground than
     What little evidence the Court marshals in favor of a                the uncorroborated admission or confession of
contrary conclusion is unconvincing. See ante, at                         the accused." Id., at 1321. The court did not in-
317-318, n. 10. The Court is simply incorrect in imply-                   dependently analyze whether the uncorroborated
ing that there are a significant number of occasions when                 confession involved in that case could itself have
federal convictions are [*329] overturned on appeal                       allowed a rational trier of fact to find guilt be-
because no rational trier of fact could have found guilt                  yond a reasonable doubt.
beyond a reasonable doubt. The two opinions of this
                                                                     II
Court cited ante, at 317, stand for no such proposition.
In neither was a conviction reversed for insufficiency.             There is nothing in the facts of this case or, so far as
See Glasser v. United States, 315 U.S. 60; Bronston v.         the Court has demonstrated, in those of cases like it to
United States, 409 U.S. 352.                                   warrant today's excursion into constitutional rulemaking.
                                                               The Court instead portrays its rule as the logical corol-
     Moreover, a study of the 127 federal criminal con-
                                                               lary of the principle recognized in Winship regarding the
victions that were reviewed by the various Courts of
                                                               subjective state of mind that persons charged with the
Appeals and reported in the most recent hardbound vol-
                                                               responsibility of evaluating the credibility of evidence
ume of the Federal Reporter, Second Series, Volume
                                                               must possess before they find the [***581] defendant
589, reveals that only 3 were overturned on sufficiency
                                                               guilty in a criminal case. But an examination of Win-
grounds. And of those, one was overturned under a "no
                                                               ship reveals that it has nothing to do with appellate,
evidence" standard, while the other two, in which a total
                                                               much less habeas corpus, review standards; that the rea-
of only 3 out of 36 counts were actually reversed, argua-
                                                               soning used in that case to reach its conclusion with re-
                                                                                                                  Page 18
                                             443 U.S. 307, *; 99 S. Ct. 2781, **;
                                         61 L. Ed. 2d 560, ***; 1979 U.S. LEXIS 10

spect to the trier of fact does not support, and indeed                     "It is also important in our free society that
counsels against, the Court's conclusion with respect to                every individual going about his ordinary affairs
federal habeas judges; and that there is no necessary                   have confidence that his government cannot ad-
connection between the rule recognized in Winship and                   judge him guilty of a criminal offense without
the rule invented by the Court today.                                   convincing a proper factfinder of his guilt with
                                                                        utmost certainty." Ibid. (emphasis added).
     In distinct contrast to the circumstances of this case,
the facts of Winship presented "a case where the choice                      See also id., at 370 (Harlan, J., concurring)
of the standard of proof has made a difference: the [trial]             ("[A] standard of proof represents an attempt to
judge below forthrightly acknowledged that he believed                  instruct the factfinder concerning the degree of
by a preponderance of the evidence [in], but was not                    confidence our society thinks he should have in
convinced beyond a reasonable doubt" of, the juvenile's                 the correctness of factual conclusions for a par-
guilt. 397 U.S., at 369 (Harlan, J., concurring). Because               ticular type of adjudication") (emphasis added).
the trier of fact entertained such a doubt, this Court held
                                                                        Moreover, the mode of analysis employed in Win-
that the juvenile was constitutionally entitled to the same
                                                                 ship finds no counterpart in the Court's opinion in this
verdict that an adult defendant in a criminal case would
                                                                 case. For example, in Winship, the Court pointed out
receive. In so holding, the Court merely extended to
                                                                 the [**2796] breadth of both the historical and the
juveniles a protection that had traditionally been availa-
                                                                 current acceptance of the reasonable-doubt [***582]
ble to defendants in criminal trials in this Nation. Id., at
                                                                 trial standard. 3 In this case, by contrast, the Court
361.
                                                                 [*332] candidly recognizes that the Federal Courts of
     But nothing in the Winship opinion suggests that it         Appeals have "generally" rejected the habeas standard
also [*331] bore on appellate or habeas corpus proce-            that it adopts today. Ante, at 316. 4
dures. Although it repeatedly emphasized the function
of the reasonable-doubt standard as describing the requi-               3 The Court, relying on treatises that analyzed
site "subjective state of certitude" of the "factfinder," 2 it          the law in all 50 States as well as in the federal
never mentioned the question of how appellate judges                    system, determined both that the reasona-
are to know whether the trier of fact really was con-                   ble-doubt standard has prevailed at the trial level
vinced beyond a reasonable doubt, or, indeed, whether                   "at least from our early years as a Nation" and
the factfinder was a "rational" person or group of per-                 that it "is now accepted in common law jurisdic-
sons.                                                                   tions as the measure of persuasion by which the
                                                                        prosecution must convince the trier of all the es-
        2 In In re Winship, 397 U. S., at 364, the Court                sential elements of guilt." Id., at 361 (emphasis
        stated: "As we said in Speiser v. Randall, [357                 added). See also id., at 372 (Harlan, J., concur-
        U.S. 513,] 525-526: 'There is always in litigation              ring) ("It is only because of the nearly complete
        a margin of error, representing error in factfind-              and long-standing acceptance of the reasona-
        ing, which both parties must take into account.                 ble-doubt standard by the States in criminal trials
        Where one party has at stake an interest of trans-              that the Court has not before today had to hold
        cending value -- as a criminal defendant his lib-               explicitly that due process, as an expression of
        erty -- this margin of error is reduced as to him by            fundamental procedural fairness, requires a more
        the process of placing on the other party the bur-              stringent standard for criminal trials than for or-
        den of . . . persuading the factfinder at the con-              dinary civil litigation") (emphasis added).
        clusion of the trial of his guilt beyond a reasona-             4      The Court has undertaken no systematic
        ble doubt. Due process commands that no man                     analysis of the standards for reviewing the suffi-
        shall lose his liberty unless the Government has                ciency of the evidence that prevail either in state
        borne the burden of . . . convincing the factfinder             habeas corpus and other collateral proceedings or
        of his guilt.' To this end, the reasonable-doubt                in state appellate courts. What sources I have
        standard is indispensable, for it 'impresses on the             discovered suggest that "varied standards" are in
        trier of fact the necessity of reaching a subjective            use and that each is "subject to shifting and elas-
        state of certitude of the facts in issue.' Dorsen &             tic definitions." Winningham, The Dilemma of
        Rezneck, In Re Gault and the Future of Juvenile                 the Directed Acquittal, 15 Vand. L. Rev. 699,
        Law, 1 Family Law Quarterly, No. 4, pp. 1, 26                   705-706 (1962). See ALI Code of Criminal Pro-
        (1967)." (Emphasis added.)                                      cedure, Commentary on § 321, pp. 961-962
                                                                        (1930); Rules of Criminal Procedure 481 (c), 522
            Later on the same page, the Court added:
                                                                        (a) and commentary, 10 U. L. A. (1974).
                                                                                                                    Page 19
                                            443 U.S. 307, *; 99 S. Ct. 2781, **;
                                        61 L. Ed. 2d 560, ***; 1979 U.S. LEXIS 10

     The Winship court relied on nine prior opinions of                measured by the relatively strict appellate stand-
this Court that bore directly on the issue presented. 397              ard used by the Federal Courts of Appeals. Pre-
U.S., at 362. Here, the Court purportedly relies on two                sumably the incidence of errors that survive that
prior decisions, but as is pointed out, supra, at 329, nei-            first level of review is even smaller.
ther of these cases itself applied a "reasonable doubt"                7 Indeed, the Court makes light of Winship by
appellate standard to overturn a conviction, neither pur-              suggesting that, in the absence of its new habeas
ported to be interpreting the Constitution, and neither                procedure, the result of that case is simply "a trial
expressed any view whatsoever on the appropriate                       ritual." Ante, at 316-317. Far more likely in my
standard in collateral proceedings such as are involved in             view is that the Court's difficult-to-apply but
this case. 5 As the Court itself notes, we have instead                largely unnecessary rule will itself result in a
repeatedly endorsed the "no evidence" test, and have                   "collateral-attack ritual" that will undermine the
continued to do so after Winship was decided. Vachon                   integrity of both the state and federal judiciaries.
v. [*333] New Hampshire, 414 U.S. 478; Douglas v.                      See infra, at 336-339.
Buder, 412 U.S. 430; Gregory v. Chicago, 394 U.S. 111;
                                                                      [*334] Having failed to identify the evil against
Adderley v. Florida, 385 U.S. 39; Thompson v. Louis-
                                                                which the rule is directed, and having failed to demon-
ville, 362 U.S. 199. See also Clyatt v. United States, 197
                                                                strate how it follows from the analysis typically used in
U.S. 207, 222.
                                                                due process cases of this character, the Court places all
                                                                of its reliance on a dry, and in my view incorrect, syllo-
       5 It hardly bears repeating that habeas corpus is
                                                                gism: If Winship requires the factfinder to apply a rea-
       not intended as a substitute for appeal, nor as a
                                                                sonable-doubt standard, then logic requires a reviewing
       device for reviewing the merits of guilt determi-
                                                                judge to apply a like standard.
       nations at criminal trials. See generally Stone v.
       Powell, 428 U.S. 465. Instead, it is designed to              But, taken to its ultimate conclusion, this "logic"
       guard against extreme malfunctions in the state          would require the reviewing court to "ask itself whether
       criminal justice systems.                                it believes that the evidence at the trial established guilt
                                                                beyond a reasonable doubt." Woodby v. INS, 385 U.S.
      The primary reasoning of the Court in Winship is
                                                                276, 282 (emphasis added). The Court, however, rejects
also inapplicable here. The Court noted in that case that
                                                                this standard, as well as others that might be considered
the reasonable-doubt standard has the desirable effect of
                                                                consistent with Winship. For example, it does not re-
significantly reducing the risk of an inaccurate factfind-
                                                                quire the reviewing court to view just the evidence most
ing and thus of erroneous convictions, as well as of in-
                                                                favorable to the prosecution and then to decide whether
stilling confidence in the criminal justice system. 397
                                                                that evidence convinced it beyond a reasonable doubt,
U.S., at 363-364. See also id., at 370-372 (Harlan, J.,
                                                                nor whether, based on the entire record, rational triers of
concurring). In this case, however, it would be impos-
                                                                fact could be convinced of guilt beyond a reasonable
sible (and the Court does not even try) to demonstrate
                                                                doubt. Instead, and without explanation, it chooses a still
that there is an appreciable risk that a factfinding made
                                                                narrower standard that merely asks whether, "after view-
by a jury beyond a reasonable doubt, and twice reviewed
                                                                ing the evidence in the light most favorable to the
[***583] by a trial judge in ruling on directed verdict
                                                                prosecution, any rational trier of fact could have found
and post-trial acquittal motions and by one or more lev-
                                                                the essential elements of the crime beyond a reasonable
els of appellate courts on direct appeal, as well as by two
                                                                doubt." Ante, at 319. 8 It seems to me that if "logic" al-
federal habeas courts under the Thompson "no evidence"
                                                                lows [*335] [***584] this choice after Winship it
rule, is likely to be erroneous. 6 Indeed, the very premise
                                                                should also allow the presumption that the Court has
of Winship is that properly selected [**2797] judges
                                                                rejected -- that trial judges and juries will act rationally
and properly instructed juries act rationally, that the for-
                                                                and honestly in applying the reasonable-doubt standard,
mer will tell the truth when they declare that they are
                                                                at least so long as the trial is free of procedural error and
convinced beyond a reasonable doubt and the latter will
                                                                the record contains evidence tending to prove each of the
conscientiously obey and understand the reasona-
                                                                elements of the offense.
ble-doubt instructions they receive before retiring to
reach a verdict, and therefore that either factfinder will
                                                                       8 So far as I can determine, this standard first
itself provide the necessary bulwark against erroneous
                                                                       appeared in our jurisprudence in MR. JUSTICE
factual determinations. To presume otherwise is to
                                                                       STEWART's opinion dissenting from the Court's
make light of Winship. 7
                                                                       denial of certiorari in Freeman v. Zahradnick,
                                                                       429 U.S. 1111, 1112, 1113, 1114, 1116. At that
       6 As I discuss earlier, see supra, at 329, the in-
                                                                       time, it gave the impression of being somewhat
       cidence of factual error at the trial level in federal
                                                                       narrower than -- if only because it was stated
       courts appears to be exceedingly low, even when
                                                                                                                   Page 20
                                            443 U.S. 307, *; 99 S. Ct. 2781, **;
                                        61 L. Ed. 2d 560, ***; 1979 U.S. LEXIS 10

          quite differently from -- the test used by the        State court of competent jurisdiction." 28 U. S. C. § 2254
          Courts of Appeals in reviewing federal convic-        (d). See LaVallee v. Delle Rose, 410 U.S. 690. In any
          tions on direct appeal. See Curley v. United          case, to assign a single federal district judge the respon-
          States, 81 U. S. App. D. C. 389, 392-393, 160         sibility of directly reviewing, and inevitably supervising,
          F.2d 229, 232-233 (1947). Although the Court          the most routine work of the highest courts of a State can
          twice repeats the Freeman test, see ante, at 313,     only undermine the morale and the esteem of the state
          319, it now appears either to equate that standard    judiciary -- particularly when the stated purpose of the
          with the -- in my view -- broader federal di-         additional layer of review is to determine whether the
          rect-review standard, or to endorse both standards    State's factfinder [***585] is "rational." 9 Such conse-
          despite their differences. See ante, at 318, and      quences are intangible but nonetheless significant.
          nn. 11, 12.
                                                                       9 In the past, collateral review of state pro-
      Time may prove that the rule the Court has adopted
                                                                       ceedings has been justified largely on the grounds
today is the wisest compromise between one extreme
                                                                       (1) that federal judges have special expertise in
that maximizes the protection against the risk that inno-
                                                                       the federal issues that regularly arise in habeas
cent persons will be erroneously convicted and the other
                                                                       corpus proceeding, and (2) that they are less sus-
extreme that places the greatest faith in the ability of fair
                                                                       ceptible than state judges to political pressures
procedures to produce just verdicts. But the Court's
                                                                       against applying constitutional rules to overturn
opinion should not obscure the fact that its new rule is
                                                                       convictions. See, e. g., Bartels, Avoiding a
not logically compelled by the analysis or the holding in
                                                                       Comity of Errors, 29 Stan. L. Rev. 27, 30 n. 9
Winship or in any other precedent, or the fact that the
                                                                       (1976). Cf. Steffel v. Thompson, 415 U.S. 452,
rule reflects a new policy choice rather than the applica-
                                                                       464; Mitchum v. Foster, 407 U.S. 225, 242. But
tion of a pre-existing rule of law.
                                                                       neither of these justifications has any force in the
    III                                                                present context. State judges are more familiar
                                                                       with the elements of state offenses than are fed-
     The Court cautions against exaggerating the signifi-
                                                                       eral judges and should be better able to evaluate
cance of its new rule. Ante, at 321. It is true that in                sufficiency claims. Moreover, of all decisions
practice there may [**2798] be little or no difference                 overturning convictions, the least likely to be
between a record that does not contain at least some evi-
                                                                       unpopular and thus to distort state decisionmak-
dence tending to prove every element of an offense and a
                                                                       ing processes are ones based on the inadequacy
record containing so little evidence that no rational fact-
                                                                       of the evidence. Indeed, once federal courts
finder could be persuaded of guilt beyond a reasonable
                                                                       were divested of authority to second-guess state
doubt. Moreover, I think the Court is quite correct when               courts on Fourth Amendment issues, which are
it acknowledges that "most meritorious challenges to                   far more likely to generate politically motivated
constitutional sufficiency of the evidence undoubtedly
                                                                       state-court decisions, see Stone v. Powell, 428
will be recognized in the state courts." Ante, at 322.
                                                                       U.S. 465, a like result in this case would seem to
But this only means that the new rule will seldom, if ev-
                                                                       be a fortiori.
er, provide a convicted state prisoner with any tangible
benefits. It does not mean that the rule will have no                  [*337] The potential effect on federal judges is
impact on the administration of justice. On the contrary,       even more serious. Their burdens are already so heavy
I am persuaded that it will be seriously harmful both to        that they are delegating to staff assistants more and more
the state and federal judiciaries.                              work that we once expected judges to perform. 10 The
                                                                new standard will invite an unknown number of state
      [*336] The Court indicates that the new standard          prisoners to make sufficiency challenges that they would
to be applied by federal judges in habeas corpus pro-           not have made under the old rule. Moreover, because
ceedings may be substantially the same as the standard          the "rational trier of fact" must certainly base its deci-
most state reviewing courts are already applying. Ante,         sions on all of the evidence, the Court's broader standard
at 322. The federal district courts are therefore being         may well require that the entire transcript of the state
directed simply to duplicate the reviewing function that        trial be read whenever the factfinders' rationality is chal-
is now being performed adequately by state appellate            lenged under the Court's rule. 11 [**2799] Because this
courts. In my view, this task may well be inconsistent          task will confront the courts of appeals as well as district
with the prohibition -- added by Congress to the federal        courts, it will surely impose countless additional hours of
habeas statute in order to forestall undue federal inter-       unproductive labor on federal judges and their assistants.
ference with state proceedings, see Wainwright v. Sykes,        12
                                                                   The increasing volume [*338] of work of this char-
433 U.S. 72, 80 -- against overturning "a determination         acter has [***586] already led some of our most dis-
after a hearing on the merits of a factual issue, made by a     tinguished lawyers to discontinue or reject service on the
                                                                                                                Page 21
                                           443 U.S. 307, *; 99 S. Ct. 2781, **;
                                       61 L. Ed. 2d 560, ***; 1979 U.S. LEXIS 10

federal bench. 13 The addition of a significant volume               proceeding is held to determine the facts and law
[*339] of pointless labor can only impair the quality of             in a case, and the processes used in that proceed-
justice administered by federal judges and thereby un-               ing are fitted to the task in a manner not inferior
dermine "the respect and confidence of the community in              to those which would be used in a second pro-
applications of the . . . law." In re Winship, 397 U.S., at          ceeding, so that one cannot demonstrate that re-
364.                                                                 litigation would not merely consist of repetition
                                                                     and second-guessing, why should not the first
       10 For example, the heavy federal workload                    proceeding 'count'? Why should we duplicate
       has required the 13 regular and 7 senior judges on            effort? After all, it is the very purpose of the
       the Ninth Circuit to hire 30 staff attorneys and 33           first go-around to decide the case. Neither it nor
       law clerks to assist them in their labors.                    any subsequent go-around can assure ultimate
       11 Additional burdens will also be imposed if                 truth. If, then, the previous determination is to
       the Court's rule is extended to federal habeas                be ignored, we must have some reasoned institu-
       proceedings reviewing federal criminal trials, as             tional justification why this should be so.
       well as to ones reviewing state civil commitment
                                                                          "Mere iteration of process can do other kinds
       proceedings in which we have recently required
                                                                     of damage. I could imagine nothing more sub-
       at least the "clear and convincing" test to be ap-
                                                                     versive of a judge's sense of responsibility, of the
       plied as a matter of federal constitutional law.
                                                                     inner subjective conscientiousness which is so
       Addington v. Texas, 441 U.S. 418.
                                                                     essential a part of the difficult and subtle art of
            This Court's work load will also increase, of            judging well, than an indiscriminate acceptance
       course, when its certiorari docket expands to ac-             of the notion that all the shots will always be
       commodate the challenges generated by the                     called by someone else. Of course this does not
       Court's new rule. The effect will be even greater             mean that we should not have appeals. As we
       if the Court's opinion is read to require state ap-           shall see, important functional and ethical pur-
       pellate courts to apply the reasonable-doubt test             poses are served by allowing recourse to an ap-
       on direct review and to require this Court to apply           pellate court in a unitary system, and to a federal
       it when reviewing the decisions of those courts               supreme court in a federal system. The acute
       on certiorari.                                                question is the effect it will have on a trial judge
       12 Professor Bator has persuasively explained                 if we then allow still further recourse where these
       how the law of diminishing returns inevitably                 purposes may no longer be relevant. What
       makes it unwise to have duplicative review pro-               seems so objectionable is second-guessing merely
       cesses on the "merits" in criminal cases:                     for the sake of second-guessing, in the service of
                                                                     the illusory notion that if we only try hard enough
            "[If] a criminal judgment is ever to be final,
                                                                     we will find the 'truth.'" Bator, Finality in Crimi-
       the notion of legality must at some point include
                                                                     nal Law and Federal Habeas Corpus for State
       the assignment of final competencies to deter-
                                                                     Prisoners, 76 Harv. L. Rev. 441, 450-451 (1963).
       mine legality. But, it may be asked, why should
       we seek a point at which such a judgment be-                       See also F. James, Civil Procedure 518
       comes final? Conceding that no process can as-                (1965).
       sure ultimate truth, will not repetition of inquiry           13 The testimony of Griffin Bell at his confir-
       stand a better chance of approximating it? In                 mation hearings for Attorney General is particu-
       view of the awesomeness of the consequences of                larly relevant. When asked by Senator Scott of
       conviction, shouldn't we allow redetermination of             Virginia why he had earlier resigned from his
       the merits in an attempt to make sure that no error           seat on the Court of Appeals for the Fifth Circuit,
       has occurred?                                                 Judge Bell responded:
            "Surely the answer runs, in the first place, in               "I found it not to be a rewarding experience
       terms of conservation of resources -- and I mean              any longer. Whether it was because there was
       not only simple economic resources, but all of the            no more excitement after the 1960's, or whether it
       intellectual, moral, and political resources in-              was because the case load changed, but the work
       volved in the legal system. The presumption                   load was oppressive. I would not have minded
       must be, it seems to me, that if a job can be well            the work load, but the character of the cases
       done once, it should not be done twice. If one set            changed. It was almost like serving on a crimi-
       of institutions is as capable of performing the task          nal court. I did not want to do that any longer."
       at hand as another, we should not ask both to do              Hearings on the Prospective Nomination of Grif-
       it. The challenge really runs the other way: if a             fin B. Bell, of Georgia, to be Attorney General,
                                                                                                          Page 22
                                        443 U.S. 307, *; 99 S. Ct. 2781, **;
                                    61 L. Ed. 2d 560, ***; 1979 U.S. LEXIS 10

       before the Senate Committee on the Judiciary,
       95th Cong., 1st Sess., 27 (1977).                   28 USCS 2254
     For these reasons, I am unable to join the Court's
                                                           US L Ed Digest, Habeas Corpus 17
gratuitous directive to our colleagues on the federal
bench.
                                                           L Ed Index to Annos, Habeas Corpus
REFERENCES
                                                           ALR Quick Index, Habeas Corpus
39 Am Jur 2d, Habeas Corpus 62
                                                           Federal Quick Index, Habeas Corpus
10 Federal Procedural Forms L Ed, Habeas Corpus 36:11
et seq.
                                                                        Annotation References:
11 Am Jur Pl & Pr Forms (Rev), Federal Practice and
                                                           Lack of evidence supporting state conviction of criminal
Procedure, Forms 41 et seq.; 13 Am Jur Pl & Pr Forms
                                                           offense as violation of federal due process. 15 L Ed 2d
(Rev), Forms 2181 et seq.
                                                           889; 80 ALR2d 1362.
20 Am Jur Trials 1, Federal Habeas Corpus Practice
                                                                                                                 Page 1




Positive
As of: Aug 02, 2017

                           FERNANDO LANCON, Appellant v. THE STATE OF TEXAS

                                                      NO. 0182-07

                                   COURT OF CRIMINAL APPEALS OF TEXAS

                                   253 S.W.3d 699; 2008 Tex. Crim. App. LEXIS 640


                                                May 14, 2008, Delivered

NOTICE:        PUBLISH                                        was presented to the jury and the jury was to decide upon
                                                              the credibility of the testimony. The court of appeals
SUBSEQUENT HISTORY: On remand at Lancon v.                    tried to satisfy the requirement with the proclamation
State, 2008 Tex. App. LEXIS 8517 (Tex. App. San An-           that the testimony was unreliable. But it was as equally
tonio, Nov. 12, 2008)                                         plausible that those witnesses were telling the truth as it
                                                              was that they were lying when they testified. None of the
PRIOR HISTORY: [**1]                                          testimony definitively favored or contradicted the jury's
  ON STATE'S PETITION FOR DISCRETIONARY                       verdict. Because the jury was the sole judge of a wit-
REVIEW FROM THE FOURTH COURT OF AP-                           ness's credibility, and the weight to be given the testi-
PEALS WEBB COUNTY.                                            mony, it could choose to believe some testimony and
Lancon v. State, 220 S.W.3d 57, 2006 Tex. App. LEXIS          disbelieve other testimony.
11028 (Tex. App. San Antonio, 2006)
                                                              OUTCOME: The judgment of the court of appeals was
CASE SUMMARY:                                                 vacated and the case was remanded for the court of ap-
                                                              peals to consider the sufficiency of the evidence under
                                                              the standard set forth in Watson v. State.
PROCEDURAL POSTURE: Defendant was convicted
of murder, attempted murder, and deadly conduct. The          LexisNexis(R) Headnotes
Fourth Court of Appeals, Webb County (Texas) re-
manded the case for a new trial. The State filed a petition
for discretionary review.
                                                              Constitutional Law > Bill of Rights > Fundamental
OVERVIEW: The State argued that the court of appeals          Rights > Criminal Process > General Overview
incorrectly applied the factual-sufficiency standard of       Constitutional Law > Bill of Rights > Fundamental
review. The court of criminal appeals agreed. The court       Rights > Criminal Process > Right to Jury Trial
of appeals correctly stated the standard set forth in Wat-    Criminal Law & Procedure > Appeals > Standards of
son, but incorrectly applied the standard in conducting       Review > Substantial Evidence > Sufficiency of Evi-
the factual-sufficiency review. There was no physical         dence
evidence linking defendant to the crime, and the State's      [HN1] The Factual Conclusivity Clause of the Texas
evidence boiled down to the testimony of the witnesses        Constitution states that courts of appeals shall be conclu-
and police officers. The evidence presented by the de-        sive on all questions of fact brought before them on ap-
fense also consisted of testimony, including defendant,       peal or error. Tex. Const. art. V, § 6. This means that the
his family members, and his co-defendant. All of that         Texas Court of Criminal Appeals is not permitted to
                                                                                                                  Page 2
                                253 S.W.3d 699, *; 2008 Tex. Crim. App. LEXIS 640, **


conduct a de novo review of a court of appeals' factual       flicting evidence, the jury's verdict is against the great
sufficiency determination. However, the decision of the       weight and preponderance of the evidence.
court of appeals is not completely unreviewable, as the
question of whether the court of appeals applied the cor-
rect rule of law is a legal question. Therefore, review is    Criminal Law & Procedure > Juries & Jurors > Prov-
centered upon whether the court of appeals applied the        ince of Court & Jury > Credibility of Witnesses
correct standard of review and considered all of the rele-    Criminal Law & Procedure > Juries & Jurors > Prov-
vant evidence. The court of criminal appeals cannot           ince of Court & Jury > Weight of the Evidence
simply do its own factual-sufficiency analysis, it can        Criminal Law & Procedure > Appeals > Standards of
review only whether the court of appeals misapplied the       Review > Substantial Evidence > Sufficiency of Evi-
standard of review. In deciding whether the court of ap-      dence
peals applied the correct standard of review when it has      [HN4] Tex. Code Crim. Proc. Ann. art. 36.13 and 38.04
reversed for factual-insufficiency, the court of criminal     states that the jury is the exclusive judge of the facts and
appeals must also examine whether the court of appeals        of the weight given to testimony. Appellate courts should
carried out the judicially-imposed requirements for safe-     afford almost complete deference to a jury's decision
guarding a defendant's right to trial by jury. These safe-    when that decision is based upon an evaluation of credi-
guards include deference to the jury's verdict and an ex-     bility. The jury is in the best position to judge the credi-
amination of all of the evidence.                             bility of a witness because it is present to hear the testi-
                                                              mony, as opposed to an appellate court who relies on the
                                                              cold record.
Criminal Law & Procedure > Appeals > Standards of
Review > Substantial Evidence > Sufficiency of Evi-
dence                                                         Evidence > Hearsay > Exceptions > Present Sense Im-
[HN2] There are three basic ground rules that guide a         pression > General Overview
court of appeals in conducting a factual-sufficiency          [HN5] Present sense impression statements are consid-
analysis. First, the court of appeals must be cognizant of    ered exceptionally reliable because they are safe from
the fact that a jury has already passed on the facts and      error of memory and there is little or no time for a calcu-
must give due deference to the determinations of the          lated misstatement, therefore, they are excluded from the
jury. While the court of appeals may disagree with the        hearsay rule.
factfinder, it should afford the appropriate deference in
order to avoid substituting its judgment for that of the
jury. Second, the court of appeals' opinion should clearly    Criminal Law & Procedure > Juries & Jurors > Prov-
lay out and explain how the evidence supporting the ver-      ince of Court & Jury > Credibility of Witnesses
dict is too weak on its own, or state how the contradict-     Criminal Law & Procedure > Juries & Jurors > Prov-
ing evidence greatly outweighs evidence in support of         ince of Court & Jury > Weight of the Evidence
the verdict. This is particularly important because it as-    Criminal Law & Procedure > Appeals > Standards of
sists the Texas Court of Criminal Appeals in determining      Review > Substantial Evidence > Sufficiency of Evi-
whether the court of appeals applied the standard of re-      dence
view properly. Third, the appellate court should review       [HN6] An appellate court must give deference to a jury's
all of the evidence in a neutral light, as opposed to a le-   decision regarding what weight to give contradictory
gal-sufficiency review in which the evidence is viewed        testimonial evidence because the decision is most likely
in the light most favorable to the verdict. A verdict         based on an evaluation of credibility and demeanor,
should be set aside only if the evidence supporting the       which the jury is in the better position to judge.
verdict is so weak as to render the verdict clearly wrong
or manifestly unjust.                                         COUNSEL: For APPELLANT: J. Eduardo Pena, Lare-
                                                              do, TX.

Criminal Law & Procedure > Appeals > Standards of             For STATE: Norberto Cardenas, III, ASST. D.A., Lare-
Review > Substantial Evidence > Sufficiency of Evi-           do, TX; Jeffrey L. Van Horn, STATE'S ATTORNEY,
dence                                                         Austin, TX.
[HN3] There are two ways in which the evidence may be
insufficient. The first is that the evidence supporting the   JUDGES: MEYERS, J., delivered the opinion of the
verdict, though legally sufficient, is nonetheless too weak   Court, in which KELLER, P.J., KEASLER, HERVEY,
to support it. The second is that, when considering con-      and COCHRAN, JJ., joined. JOHNSON, J., filed a dis-
                                                                                                                 Page 3
                                253 S.W.3d 699, *; 2008 Tex. Crim. App. LEXIS 640, **


senting opinion, in which PRICE and HOLCOMB, JJ.,             of the car to fight Dominguez. A second person, holding
joined. WOMACK, J., dissented.                                a gun, also got out of the car. This second individual
                                                              fired two shots in the direction of Dominguez, Diaz, and
OPINION BY: MEYERS                                            Soliz, who were standing in front of the Soliz house.
                                                              When the shooting started, Dominguez ran toward the
OPINION                                                       back of the house, while Soliz and Diaz stayed in the
                                                              front yard. After firing two shots, the shooter jumped
 [*701] OPINION                                               back into the car, as did Villareal, and the car sped away.
                                                              This entire incident lasted for less than one minute.
     Appellant, Fernando Lancon, stood trial with two
                                                              While neither of the shots hit the three [*702] boys in
co-defendants, Alfonoso Villareal and Jorge Zuniga.
                                                              the front yard, one bullet went through the wall of the
Appellant was convicted of one count each for murder,
                                                              Soliz residence and hit and killed eleven-month-old Fed-
attempted murder, and deadly conduct. The jury assessed
                                                              erico Soliz III.
punishment at twenty-five years', fifteen years', and ten
years' confinement, respectively. Villareal was also               The first 911 call the police received was made at
found guilty, but Zuniga was acquitted. Appellant ap-         9:20 p.m. When the Detectives arrived at the scene at
pealed the convictions based on factual insufficiency of      9:30 p.m., they asked Dominguez who had shot at him,
the evidence to sustain his convictions, the failure of the   and Dominguez told them that the shooter was [**4]
prosecutor to disclose exculpatory evidence, and the im-      Appellant, a cousin of Villareal. A second 911 call was
proper admission of two photographs into evidence. The        received at 9:26 p.m., in which the caller said that the
court of appeals held that it was not an abuse of discre-     suspects might be at 1418 Kearney Street, the address at
tion to admit the two photographs into evidence, and that     which Appellant lived with his grandmother. Officers
Appellant failed to establish that it was reasonably prob-    were sent to the address, but they did not find Appellant
able that the outcome of the trial would have been dif-       or the maroon vehicle. While officers were at the scene
ferent had the prosecutor made a timely disclosure of         of the shooting, Dominguez saw Appellant drive by in a
[**2] the alleged exculpatory evidence. Lancon v. State,      white Cadillac and informed the officers. Roughly four
220 S.W.3d 57 (Tex. App. -- San Antonio, 2006)(mem.           minutes after that, Investigator Rodriguez noticed that
op.). The court of appeals also held that the evidence was    the white Cadillac had stopped in the street about a half a
factually insufficient to support the convictions and re-     block away from the scene. Police approached the Ca-
manded the case for a new trial. The State filed a petition   dillac and detained Appellant and Jorge Zuniga. Detec-
for discretionary review, which we granted to consider        tive Cantu administered gunshot-residue tests on both
whether the court of appeals correctly applied the factu-     Appellant and Zuniga and took the clothing that they
al-sufficiency standard of review. We determine that the      were wearing.
standard was not correctly applied. We vacate the judg-
                                                                   Dominguez and Diaz gave videotaped statements to
ment of the court of appeals and remand the case for the
                                                              the police. They were also shown photo lineups and
court of appeals to consider the sufficiency of the evi-
                                                              asked if Appellant was in the lineup. Both identified
dence under the standard set forth in Watson v. State, 204
                                                              Appellant correctly. Soliz also told police that Appellant
S.W.3d 404 (Tex. Crim. App. 2006).
                                                              was the shooter, but did not identify him in a lineup. Po-
                                                              lice were never able to locate the maroon vehicle, nor did
FACTS
                                                              they recover the weapon that was used in the shooting.
     We first lay out the undisputed facts of this case. On   Although Zuniga's gunshot-residue [**5] came back
June 11, 2003, Appellant's co-defendant, Alfonso Vil-         positive, Appellant's gunshot-residue test came back
lareal, was at his neighborhood recreation center. Anoth-     negative, so there was no physical evidence linking Ap-
er boy, Hector Dominguez, was also visiting the rec cen-      pellant to the crime.
ter with his friend, Daniel Diaz. While at the rec center,
                                                                   The rest of the facts surrounding the case are con-
Dominguez started a verbal altercation with Villareal.
                                                              tested, as Appellant claimed that his younger brother,
When the argument was over, Villareal made a phone
                                                              Eduardo, committed the crime. At trial, both Dominguez
call and was soon picked up in a maroon car. Shortly
                                                              and Diaz testified, as did three girls who were witnesses
thereafter, Dominguez and Diaz left the rec center and
                                                              to the shooting and several police officers and detectives.
[**3] began walking to Freddie Soliz's house, which was
                                                              Dominguez testified that Villareal exited the maroon
approximately one block away. When Dominguez and
                                                              vehicle and asked him if he wanted to fight, and when
Diaz arrived at the Soliz house, Freddie Soliz came out
                                                              Appellant got out of the car, Villareal ordered Appellant
to the sidewalk in front of the house to talk to the two
                                                              to shoot. Although Dominguez ran either when the gun
boys. A maroon or purple car with three people inside
                                                              was cocked or when the shooting began, he testified that
stopped in front of the Soliz house, and Villareal got out
                                                              he saw Appellant shoot the gun. He also stated that he
                                                                                                                  Page 4
                                253 S.W.3d 699, *; 2008 Tex. Crim. App. LEXIS 640, **


was shown three lineups on the night of the shooting. At      Fernandez's home and weapons were seized, although
first Dominguez testified that he did not recognize any-      [**8] none matched the murder weapon.
one, but he later stated that he identified Appellant.
                                                                   All three defendants, including Appellant, testified
When Dominguez was asked about the appearance of the
                                                              at trial. Appellant and Zuniga testified about the events
shooter, he first said that he didn't remember what the
                                                              leading up to their detention and said that they were to-
shooter was wearing, but moments later he said that Ap-
                                                              gether on that evening but that neither of them had been
pellant had been wearing a white shirt, blue shorts, and a
                                                              with Villareal or involved in the shooting. Appellant also
blue New York Yankees cap and had held the gun in his
                                                              testified that he and his brother, Eduardo, had been raised
right hand. [**6] Dominguez also admitted that he
                                                              in separate households, and he demonstrated that he was
smoked marijuana almost every day, including the day of
                                                              left-handed by signing his name in front of the jury. Vil-
the shooting. However, Dominguez testified that he was
                                                              lareal testified that Eduardo was the shooter, but that he
100% sure that Appellant was the shooter and not his
                                                              did not know that Eduardo had a gun and he did not or-
brother, Eduardo, whom Dominguez also knew.
                                                              der Eduardo to shoot at Dominguez and Diaz. Villareal
     Daniel Diaz testified that he knew Appellant be-         admitted that he fled to Mexico following the shooting.
cause he had seen him before, but that he did not know
                                                                   Additionally, several family members of Appellant
Villareal prior to the shooting. Diaz also said that he did
                                                              and Villareal testified, including Jose Gonzalez, the
not see who was driving the vehicle and that he identi-
                                                              cousin of Appellant, Eduardo, and Villareal, who testi-
fied Appellant and Villareal from lineups. The day after
                                                              fied that he was the driver and Eduardo was the shooter.
the shooting, Diaz identified Zuniga as the driver. Diaz
                                                              Gonzalez stated that he was told by his Aunt Lydia to
testified that the shooter was wearing a white shirt and
                                                              pick Villareal up at the rec center because Villareal was
pants, but no baseball cap. He also admitted on the stand
                                                              getting beaten up and Eduardo came along. Gonzalez
that, while he could not be positive that he smoked ma-
                                                              said that, after he and Eduardo picked up Villareal, they
rijuana the day of the shooting, it was possible because
                                                              were driving back home when Eduardo and Villareal
he often smoked marijuana.
                                                              jumped [**9] out of the car, argued with some boys on
     Kimberly Sanchez, a girl who was also at the rec         the street, and then Eduardo started shooting. Gonzalez
center on the day of the shooting, [*703] testified that      testified that he did not know that Eduardo had a gun and
she witnessed the argument between Dominguez and              that after the shooting he dropped both Eduardo and Vil-
Villareal. She said that, after the argument, she saw Vil-    lareal off at his aunt's house. He also said that he had not
lareal make a phone call and heard him ask for "Moiky,"       talked to Eduardo since that evening and thought that the
Appellant's nickname. Sanchez testified that she did not      police would arrest Eduardo because he heard that they
know who Moiky was or if Villareal even spoke to him          were looking for Villareal.
on the phone. [**7] She had left the rec center with her
                                                                   Gonzalez's mother, Ava Maria Gonzalez, testified
friends, Monica and Melissa Soliz, and had started
                                                              that she owned the maroon car and that her son had
walking to their house when she saw the maroon car stop
                                                              driven it on June 11. Mrs. Gonzalez admitted that when
in front of the Soliz house and saw someone in a white
                                                              she was questioned by the police, she told them that her
shirt get out of the car. Sanchez testified that when they
                                                              son had arrived home at 7:45 p.m. and had never left the
heard the gunshots, she and her friends ran back to the
                                                              house after that.
rec center.
                                                                   Several aunts of Appellant and Eduardo testified that
     The police officers and detectives testified about
                                                              on the day of the shooting and in the days after, they
their investigation of the case, including their arrival at
                                                              heard Eduardo confess that he had been the shooter, but
the scene and the lineups shown to Dominguez and Diaz.
                                                              that he thought he had shot one of the boys in front of the
Detective Cantu testified that his theory of what hap-
                                                              house. One aunt even [*704] told the police that she
pened in the 14 minutes between the first 911 call and
                                                              believed that Eduardo had wrapped the gun in a towel
Appellant and Zuniga driving by in the Cadillac was that
                                                              and hidden it, which resulted in the subsequent search of
the three men drove away from the shooting, Appellant
                                                              Lydia Fernandez's home. Villareal's mother, Yolanda,
dropped Villareal off, Appellant and Zuniga disposed of
                                                              testified that she also heard Eduardo admit to the shoot-
the car and their clothing, Appellant washed his hands,
                                                              ing on two separate [**10] occasions, and she gave
and then Appellant and Zuniga got in Appellant's white
                                                              Detective Cantu a statement about this five days after the
Cadillac to return to the scene. Detective Cantu admitted
                                                              shooting.
that he had no evidence to prove his theory. Detective
Cantu also testified about a search warrant that was exe-
                                                              COURT OF APPEALS DECISION
cuted at the home of Lydia Fernandez, an aunt of Vil-
lareal and Appellant. Several people were arrested at             On appeal, Appellant argued that the evidence to
                                                              support his conviction was factually insufficient, that the
                                                                                                                  Page 5
                                253 S.W.3d 699, *; 2008 Tex. Crim. App. LEXIS 640, **


prosecutor failed to disclose exculpatory evidence, and       a defendant's right to trial by jury. These safeguards in-
that the trial judge abused his discretion by admitting two   clude deference to the jury's verdict and an examination
photographs into evidence. The court of appeals deter-        of all of the evidence. Roberts v. State, 221 S.W.3d 659
mined that the evidence was factually insufficient to         (Tex. Crim. App. 2007).
support Appellant's convictions. The court also held that
                                                                   [HN2] There are three basic ground rules that guide
Appellant failed to show that it was reasonably probable
                                                              a court of appeals in conducting a factual-sufficiency
that the trial outcome would have been different had the
                                                              analysis. First, the court of appeals must be cognizant
exculpatory evidence been properly disclosed, and that it
                                                              [*705] of the fact that a jury has already passed on the
was not an abuse of discretion to admit the photographs
                                                              facts and must give due deference to the determinations
into evidence.
                                                              of the jury. While the court of appeals may disagree with
     In addressing its decision that the evidence was fac-    the factfinder, it should afford the appropriate deference
tually insufficient, the court laid out, verbatim, the        in order to avoid substituting its judgment for that of the
standard of review discussed in Watson. The court then        jury. Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App.
stated that its decision was based on the "objective unre-    1996). Second, the court of appeals' [**13] opinion
liability of Dominguez's and Diaz's testimony that Fer-       should clearly lay out and explain how the evidence
nando Lancon was the shooter coupled with the weight          supporting the verdict is too weak on its own, or state
and quantity of the evidence that the shooter was not         how the contradicting evidence greatly outweighs evi-
Fernando but Eduardo Lancon." Lancon v. State, 220            dence in support of the verdict. This is particularly im-
S.W.3d 57, 67 (Tex. App. -- San Antonio, 2006)(mem.           portant because it assists this Court in determining
[**11] op.). The court detailed the discrepancies in          whether the court of appeals applied the standard of re-
Dominguez's and Diaz's testimony and explained that           view properly. Third, the appellate court should review
their conflicting testimony, coupled with the unvarying       all of the evidence in a neutral light, as opposed to a le-
testimony of Appellant's defense witnesses, led them to       gal-sufficiency review in which the evidence is viewed
find that vacating Appellant's conviction and remanding       in the light most favorable to the verdict. Watson v. State,
the cause for a new trial was "necessary to arrest the oc-    204 S.W.3d 404, 415 (Tex. Crim. App. 2006). A verdict
currence of a manifest injustice." 220 S.W.3d at 68,          should be set aside only if the evidence supporting the
quoting Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim.          verdict is so weak as to render the verdict clearly wrong
App. 2000).                                                   or manifestly unjust. Cain, 958 S.W.2d at 406.

ANALYSIS                                                      Review of the Court of Appeals' Decision
                                                                    As we explained in Goodman v. State, 66 S.W.3d
Factual Sufficiency Review, Generally
                                                              283 (Tex. Crim. App. 2001), [HN3] there are two ways in
     [HN1] The Factual Conclusivity Clause of the Texas       which the evidence may be insufficient. The first is that
Constitution states that "[courts of appeals] shall be con-   the evidence supporting the verdict, though legally suffi-
clusive on all questions of fact brought before them on       cient, is nonetheless too weak to support it. The second is
appeal or error." TEX. CONST. art. V, §6. We have pre-        that, when considering conflicting evidence, the jury's
viously determined that this means that we are not per-       verdict is against the great weight and preponderance of
mitted to conduct a de novo review of a court of appeals'     [**14] the evidence. In this case, the court of appeals
factual sufficiency determination. Cain v. State, 958         vacated the conviction and remanded the cause for a new
S.W.2d 404, 408 (Tex. Crim. App. 1997). However, the          trial based upon the conflicting evidence.
decision of the court of appeals is not completely unre-
                                                                   To support this conclusion, the court of appeals ac-
viewable, as the question of whether the court of appeals
                                                              curately stated the standard of review and addressed all
applied the correct rule of law is a legal question. Id.
                                                              of the evidence. The court of appeals included a detailed
Therefore, our review is centered upon whether the court
                                                              description of the undisputed facts, as well as the evi-
of appeals applied the correct standard of review and
                                                              dence supporting and contrary to the conviction. Lancon,
considered [**12] all of the relevant evidence. We
                                                              220 S.W.3d at 59-67. However, the court of appeals
cannot simply do our own factual-sufficiency analysis,
                                                              failed to adhere to the three factual-sufficiency ground
we can review only whether the court of appeals misap-
                                                              rules described above.
plied the standard of review. Zuniga v. State, 144 S.W.3d
477, 482 (Tex. Crim. App. 2004). In deciding whether the           The majority of the evidence that the court of ap-
court of appeals applied the correct standard of review       peals points to is contradictory witness testimony, and
when it's reversed for factual-insufficiency, this Court      although the evidence is compelling, the jury is the sole
must also examine whether the court of appeals carried        judge of what weight to give such testimony. See [HN4]
out the judicially-imposed requirements for safeguarding      TEX. CRIM. PROC. CODE ANN. art. 36.13 and 38.04
                                                                                                                 Page 6
                               253 S.W.3d 699, *; 2008 Tex. Crim. App. LEXIS 640, **


(stating that the jury is the exclusive judge of the facts               [The State]: Okay. And what hap-
and of the weight given to testimony). Appellate courts             pened--what were your observations when you
should afford almost complete deference to a jury's deci-           got there to the house?
sion when that decision is based upon an evaluation of
                                                                         [Cantu]: The three individuals that were
credibility. The jury is in the best position to judge the
                                                                    there, one was Hector Dominguez, Fernando
credibility of a witness because it is present to hear the
                                                                    Soliz, and Daniel Diaz. Daniel Diaz, I want to say
testimony, as opposed to an appellate court [**15] who
                                                                    was in shock. He was just standing there. Fer-
relies on the cold record. See Marshall v. State, 210
                                                                    nando Soliz was screaming that the baby--the
S.W.3d 618, 625 (Tex. Crim. App. 2006).
                                                                    baby was shot. He was shot. I tried to calm him
     The court of appeals determined that Dominguez's               down. Hector Diaz [sic] was excited, you know.
and Diaz's testimony was "objectively unreliable," and              He was--I couldn't understand. They were all
concluded that it was not unreasonable to distrust their            talking at the same time.
eyewitness testimony given the circumstances surround-
                                                                        [The State]: Did you ask him at any--did you
ing the shooting. There were many inconsistencies with-
                                                                    ask him any questions?
in Dominguez's and Diaz's testimony, as well as incon-
sistencies between their testimony. Dominguez contra-                    [Cantu]: I asked him what happened and he
dicted himself several times. He testified that he did not          said that he got shot at, and then said--I told him--
remember what Appellant was wearing, and then mo-
                                                                         ***
ments later gave a description of the clothing.
Dominguez also had trouble describing his actions when                 [Cantu]: I told him, Who did this to you?
the shooting started, saying that he started running when           Who shot? And he said Fernando Lancon.
the gun was cocked, while still maintaining that he saw
Appellant actually pull the trigger when he was running                  ***
toward the back of the house with his back turned.                      [The State]: When you showed lineups to the
[*706] The descriptions given by Dominguez and Diaz                 witnesses how was Fernando Lancon identified?
were also inconsistent, with Dominguez declaring that he
remembered Appellant wearing a baseball cap and Diaz                     [Cantu]:  He    was      identified--Hector
testifying that the shooter was not wearing a baseball              Dominguez knew Fernando Lancon. Okay. He
cap. In addition, Kimberly Sanchez did not include a                already knew who he was, and--
baseball cap in her description of the [**16] shooter.                   ***
Both Dominguez and Diaz admitted to smoking mariju-
ana often, Dominguez even testified that he had smoked                  [Cantu]: So he knew who was at the scene,
marijuana on the day of the shooting. And Diaz admitted             and he mentioned at the time when I arrived that
on cross-examination that he might have mistaken Ap-                Fernando Lancon was the one who shot at him.
pellant for his brother, Eduardo. As part of the evidence         As we said before, there was no physical evidence
contrary to the verdict, the court of appeals explained      linking Appellant to the crime, and the State's evidence
that the testimony of the defense witnesses was con-         boiled [**18] down to the testimony of the witnesses
sistent, and that two of the witnesses admitted their own    and police officers. The evidence presented by the de-
complicity in the crime. However, the court of appeals       fense also consisted of testimony, including Appellant,
seems to have failed to consider evidence that supported     his family members, and his co-defendant. All of this
the jury's verdict. One example of this is Detective         was presented to the jury and the jury is to decide upon
Cantu's testimony that Dominguez said Appellant was          the credibility of the testimony. As we explained in State
the shooter mere minutes after the shooting. 1 As a matter   v. Johnson, 23 S.W.3d 1 (Tex. Crim. App. 2000), [HN6]
of law, evidence of this sort is considered especially       an appellate court must give deference to a jury's deci-
trustworthy given the surrounding circumstances. See         sion regarding what weight to give contradictory testi-
Rabbani v. State, 847 S.W.2d 555, 560 (Tex. Crim. App.       monial evidence because the decision is most likely
1992)(explaining that [HN5] present sense impression         based on an evaluation of credibility and demeanor,
statements are considered exceptionally reliable because     which the jury is in the better position to judge.
they are safe from error of memory and there is little or
no time for a calculated misstatement, therefore, they are        Under Watson, we further explained that there must
excluded from the hearsay rule).                             be an objective basis in the record in order to say that the
                                                             great weight and preponderance of the evidence contra-
       1 The following is Detective Cantu's testimony        dicts the jury's verdict. 204 S.W.3d at 417. The court of
       regarding his arrival [**17] on the scene:            appeals tries to satisfy this requirement with the procla-
                                                             mation that Dominguez's and Diaz's [*707] testimony
                                                                                                                     Page 7
                                 253 S.W.3d 699, *; 2008 Tex. Crim. App. LEXIS 640, **


is unreliable. But it is as equally plausible that              termining only whether the direct-appeal court properly
Dominguez and Diaz were telling the truth as it is they         applied 'rules of law.'" Roberts v. State, 221 S.W.3d 659,
were lying when they testified. It is for the jury to deter-    662-63 (Tex. Crim. App. 2007). Our disagreement with
mine if they believe that Dominguez and Diaz are lying          the court of appeals' factual-sufficiency decision is
or telling the truth. None [**19] of the testimony at trial     simply not a basis for reversing that decision.
definitively favors or contradicts the jury's verdict, it all
bears on credibility. Because the jury is the sole judge of            1 Watson v. State, 204 S.W.3d 404 (Tex. Crim.
a witness's credibility, and the weight to be given the                App. 2006). See also Marshall v. State, 210
testimony, it may choose to believe some testimony and                 S.W.3d 618, 625 (Tex. Crim. App. 2006).
disbelieve other testimony. See Margraves v. State, 34
                                                                     Although review of factual sufficiency has been,
S.W.3d 912, 919 (Tex Crim. App. 2000). A decision is
                                                                [**21] and continues to be, subject to much dispute, in
not manifestly unjust solely because the court of appeals
                                                                Watson a majority of this Court reiterated that, in order
would have resolved the conflicting evidence in a dif-
                                                                for an appellate court to reverse for factually insuffi-
ferent way. Watson, at 417.
                                                                ciency, it must be able to say, with some objective basis
                                                                in the record, that the great weight and preponderance of
CONCLUSION
                                                                the evidence contradicts the jury's guilty verdict. In this
     The court of appeals correctly stated the standard set     case, that is precisely what the court of appeals did. In its
forth in Watson, but incorrectly applied the standard in        section entitled "Evidence Contrary to the Verdict," it
conducting the factual-sufficiency review. Because the          detailed a great deal of evidence, which adequately pro-
evidence in the case was largely based on a determina-          vides that objective basis for overturning the jury's ver-
tion of the credibility of the witnesses, and the court of      dict. Lancon, 220 S.W.3d at 63-66. 2
appeals' factual-sufficiency review failed to defer to the
jury's verdict, we vacate the decision of the court of ap-             2     "These weaknesses and inconsistencies in
peals and remand this cause for the court to conduct a                 Dominguez's and Diaz's testimony certainly de-
factual sufficiency review in accordance with this opin-               tract from its reliability. But, standing alone,
ion.                                                                   these factors would not convince us that the evi-
                                                                       dence is factually insufficient to support the jury's
    Meyers, J.
                                                                       implicit finding that Fernando, rather than [his
    Delivered: May 14, 2008                                            brother] Eduardo, was the shooter. . . . But what
                                                                       does convince us that the evidence is factually
    Publish
                                                                       insufficient to support the jury's verdict is view-
                                                                       ing the eyewitnesses' testimony-complete with
DISSENT BY: JOHNSON                                                    the weaknesses, inconsistencies, and equivoca-
                                                                       tions outlined above-in light of the consistent,
DISSENT                                                                detailed testimony set [**22] forth above from
   JOHNSON, J., filed a dissenting opinion in which                    the defense witnesses, including two of the three
PRICE and HOLCOMB, JJ., joined.                                        participants who admitted their complicity in the
                                                                       shooting . . . and identified Eduardo Lancon as
    DISSENTING OPINION                                                 the shooter, and the aunts of both Eduardo and
     The court of appeals, after thoroughly [**20] re-                 Fernando . . ., each of whom testified that she
viewing all of the evidence in a neutral light, concluded              heard Eduardo admit to having been the shooter
that the jury's determination of guilt was "against the                moments after the shooting took place. Both fac-
great weight and preponderance of the evidence," and                   tors, taken together, convince us that reversing
therefore reversed the trial court's judgment and re-                  the judgment against Fernando Lancon and or-
manded the cause for a new trial. Lancon v. State, 220                 dering a new trial is 'necessary to arrest the oc-
S.W.3d 57 (Tex. App.--San Antonio 2006). Because I                     currence of a manifest injustice.'(Cite omitted.)"
believe that the court of appeals correctly stated and                 Other testimony indicated that the shooter, like
properly applied the standard of review, I dissent.                    Eduardo, was right-handed, while Fernando is
                                                                       left-handed.
     "The factual-conclusivity clause in Article V, § 6, of
the Texas Constitution, makes a direct-appeal court's                 [*708] The majority opinion asserts that, because
factual-sufficiency decision final and conclusive upon          the court of appeals determined that the testimony of two
this Court. Watson, 204 S.W.3d at 439. 1 This Court's           of the state's witnesses was objectively unreliable, it had
review of a direct-appeal court's factual-sufficiency deci-     "concluded that it was not unreasonable to distrust their
sion is limited by the factual-conclusivity clause to de-       eyewitness testimony given the circumstances surround-
                                                                                                                    Page 8
                                 253 S.W.3d 699, *; 2008 Tex. Crim. App. LEXIS 640, **


ing the shooting." Lancon v. State, No. PD-0182-07              viewing the factual sufficiency of evidence and effec-
(Tex. Crim. App. delivered          , 2008, slip op. at 12).    tively precludes any sufficiency review when the jury's
The court of appeals's opinion did not articulate any par-      decision is based upon an evaluation of credibility, which
ticular "distrust" of those witnesses, but rather deter-        virtually each and every jury verdict is to some extent.
mined, after reviewing all of the evidence in the requisite     "The legal and factual sufficiency standards both require
[**23] neutral light, that the jury's implicit finding in its   the reviewing court [*709] to consider all of the evi-
guilty verdicts that appellant, rather than his brother Ed-     dence. . . . The difference between the two standards is
uardo, was the shooter, was greatly outweighed by the           that the former requires the reviewing court to defer to
contrary evidence. It therefore concluded that the evi-         the jury's credibility and weight determinations while the
dence of appellant's guilt was factually insufficient.          latter permits the reviewing court to substitute its judg-
Lancon, 220 S.W.3d at 66-67. It reached this conclusion         ment for the jury's on these questions 'albeit to a very
after viewing the state's eyewitness testimony, complete        limited degree.'" Marshall v. State, 210 S.W.3d 618, 625
with weaknesses, inconsistencies, and equivocations,            (Tex. Crim. App. 2006)(quoting Watson at
which it detailed in its opinion, in light of the consistent,   417)(emphasis in original).
detailed testimony from the defense witnesses, which it
also detailed in its opinion. Id. at 68. It concluded "that            3 The majority [**25] opinion asserts that "it
reversing the judgment against [appellant] and ordering a              is equally plausible that [two of the state's wit-
new trial is 'necessary to arrest the occurrence of a mani-            nesses] were telling the truth as it is that they
fest injustice.'" Id., quoting Johnson v. State, 23 S.W.3d             were lying when they testified[,]" and that "it is
1, 9 (Tex. Crim. App. 2000).                                           for the jury to determine if they [sic] believe that
                                                                       [those two witnesses] are lying or telling the
     As the majority opinion concedes, "the court of ap-
                                                                       truth." Id., slip op. at 14.
peals accurately stated the standard of review and ad-
dressed all of the evidence" and "included a detailed de-            The analysis by the court of appeals is very much in
scription of the undisputed facts, as well as the evidence      line with our prior factual-sufficiency case law, and we
supporting and contrary to the conviction." Lancon v.           should respect its decision, especially in light of the fact
State, No. PD-0182-07, slip op. at 11). The majority also       that its factual-sufficiency decision is final and conclu-
notes that "[a]ppellate courts should afford almost             sive upon this Court pursuant our constitution's factu-
[**24] complete deference to a jury's decision when that        al-conclusivity clause. Because the court of appeals
decision is based upon an evaluation of credibility." 3 Id.     properly applied our rules of law and because this Court
But "almost complete" is not "complete" or "total," even        has no jurisdiction to re-evaluate factual sufficiency, I
when the jury's decision is based upon a credibility eval-      respectfully dissent.
uation. The majority opinion seems to say that, from now
                                                                    Filed: May 14, 2008
on, the level of deference due a jury's decision will be
total deference when the decision is based on an evalua-            Publish
tion of credibility. This eviscerates our case law for re-
                                                                                                                    Page 1




Positive
As of: Aug 02, 2017

                     SEDRICK TYRONE LEE, Appellant v. THE STATE OF TEXAS, Appellee

                                                     No. 10-06-00240-CR

                           COURT OF APPEALS OF TEXAS, TENTH DISTRICT, WACO

                                       239 S.W.3d 873; 2007 Tex. App. LEXIS 8407


                                           October 24, 2007, Opinion Delivered
                                            October 24, 2007, Opinion Filed

NOTICE:        PUBLISH                                           Ann. § 1.07(17)(A) (Supp. 2006), even though the gun
                                                                 was never recovered, because the victim testified that
SUBSEQUENT HISTORY: Petition for discretionary                   defendant used a gun and officers heard the gun shots
review refused by In re Lee, 2008 Tex. Crim. App. LEXIS          and observed a gun in the hands of the person chasing
206 (Tex. Crim. App., Feb. 6, 2008)                              the victim. The evidence was also legally sufficient to
                                                                 support a finding that defendant intentionally, knowing-
PRIOR HISTORY: [**1]                                             ly, or recklessly caused bodily injury by shooting a vic-
  From the 54th District Court McLennan County,                  tim. The jury could reasonably infer that the wound from
Texas. Trial Court No. 2004-1281-C.                              a bullet that entered the back of the victim's calf and ex-
                                                                 ited through the front caused the victim to suffer physical
DISPOSITION:          Affirmed.                                  pain from the injury.

CASE SUMMARY:                                                    OUTCOME: The court affirmed the trial court's judg-
                                                                 ment.

PROCEDURAL POSTURE: A jury of the 54th District                  LexisNexis(R) Headnotes
Court McLennan County, Texas, convicted defendant of
aggravated assault under Tex. Penal Code Ann. §§
22.02(a)(2), 22.01(a)(1) (Supp. 2006) and sentenced him
to 15 years in prison. Defendant appealed.                       Criminal Law & Procedure > Accusatory Instruments
                                                                 > Indictments > General Overview
OVERVIEW: Defendant argued that the issue of guilt               Criminal Law & Procedure > Trials > General Over-
was not joined because his plea of not guilty was not            view
entered before the jury. The court found that defendant          Criminal Law & Procedure > Appeals > Reviewability
did not preserve that issue because at no time did he ob-        > Preservation for Review > Requirements
ject to the trial court's failure to enter the plea before the   [HN1] Tex. Code Crim. Proc. Ann. art. 36.01 (2007)
jury or request that the indictment be read, a plea en-          requires that the indictment be read and the plea entered
tered, and the evidence reintroduced. The court also held        in the jury's presence. Tex. Code Crim. Proc. Ann. art.
that the victim's testimony was legally sufficient evi-          36.01 (2007). Otherwise, the issue of guilt is not joined.
dence to support the identification of defendant as the          This rule is intended to inform the accused of the charges
shooter. The evidence was also legally sufficient to sup-        against him, to inform the jury of the charge at issue, and
port a deadly weapon finding under Tex. Penal Code               to allow the jury to hear the defendant refute or admit the
                                                                                                                    Page 2
                                   239 S.W.3d 873, *; 2007 Tex. App. LEXIS 8407, **


charge. Failure to follow this rule may be corrected by        Criminal Law & Procedure > Criminal Offenses >
reading the indictment to the jury and entering the de-        Crimes Against Persons > Assault & Battery > General
fendant's plea, followed by the State's reintroduction of      Overview
the evidence or the parties stipulation to the evidence. If    [HN6] "Bodily Injury," in the context of criminal assault,
the error is discovered after trial, error is preserved        means physical pain, illness, or any impairment of phys-
through a motion for new trial, bill of exception, or mo-      ical condition. Tex. Penal Code Ann. § 1.07(a)(8) (Supp.
tion to arrest judgment.                                       2006).

                                                               COUNSEL: For APPELLANT/RELATOR: Richard G.
Criminal Law & Procedure > Accusatory Instruments              Ferguson, ATTORNEY at LAW, Waco, TX.
> Indictments > General Overview
Criminal Law & Procedure > Trials > General Over-              For APPELLEE/RESPONDENT: John W. Segrest,
view                                                           McLENNAN COUNTY DISTRICT ATTORNEY, Wa-
Criminal Law & Procedure > Appeals > Reviewability             co, TX.
> Preservation for Review > Requirements
[HN2] There are two relatively small categories of errors      JUDGES: Before Chief Justice Gray, Justice Vance, and
to which a contemporaneous objection is not required to        Justice Reyna. Chief Justice Gray concurs in the judg-
preserve error: violations of rights which are waivable        ment but a separate opinion will not be issued.
only and denials of absolute systemic requirements.
These errors may be raised for the first time on appeal. A     OPINION BY: FELIPE REYNA
complaint under Tex. Code Crim. Proc. Ann. art. 36.01
(2007) does not fit within these small categories; thus, an    OPINION
objection is required to preserve error.
                                                                     [*875] A jury convicted Sedrick Tyrone Lee of
                                                               aggravated assault and sentenced him to fifteen years in
                                                               prison. 1 On appeal, Lee argues that: (1) the issue of guilt
Criminal Law & Procedure > Appeals > Standards of
                                                               was not joined at trial; and (2) the evidence is legally
Review > Substantial Evidence > General Overview
                                                               insufficient to support his conviction. We affirm.
[HN3] Under legal sufficiency review, the court deter-
mines whether, after viewing all the evidence in the light
                                                                      1 Lee was also charged with attempted murder,
most favorable to the verdict, any rational trier of fact
                                                                      but the State elected to pursue the aggravated as-
could have found the essential elements of the offense
                                                                      sault charge alone.
beyond a reasonable doubt. The court does not resolve
any conflict of fact or assign credibility to the witnesses,
                                                               JOINDER OF GUILT
as this was the function of the trier of fact. Inconsisten-
cies in the evidence are resolved in favor of the verdict.         In his first issue, Lee contends that the issue of guilt
                                                               was not joined because his plea of "not guilty" was not
                                                               entered before the jury.
Criminal Law & Procedure > Criminal Offenses >
                                                                    [HN1] Article 36.01 of the Code of Criminal Proce-
Crimes Against Persons > Assault & Battery > Aggra-
                                                               dure requires that the indictment be read and the plea
vated Offenses > Elements
                                                               entered in the jury's presence. See TEX. CODE CRIM.
[HN4] A person commits aggravated assault if he inten-
                                                               PROC. ANN. art. 36.01 (Vernon 2007). Otherwise, the
tionally, knowingly, or recklessly caused bodily injury to
                                                               issue of guilt is not joined. See Martinez v. State, 155
another and used or exhibited a deadly weapon during
                                                               S.W.3d 491, 495 (Tex. App.--San Antonio 2004, no pet.).
commission of the assault. Tex. Penal Code Ann. §
                                                               This rule is intended to "inform the accused of the
22.02(a)(2) (Supp. 2006); Tex. Penal Code Ann. §
                                                               charges against him, to inform the jury of the charge
22.01(a)(1) (Supp. 2006).
                                                               [**2] at issue, and to allow the jury to hear the defendant
                                                               refute or admit the charge." Id. Failure to follow this rule
                                                               may be corrected by reading the indictment to the jury
Criminal Law & Procedure > Criminal Offenses >
                                                               and entering the defendant's plea, followed by the State's
Weapons > Definitions
                                                               reintroduction of the evidence or the parties' stipulation
[HN5] A firearm is a "deadly weapon." Tex. Penal Code
                                                               to the evidence. See Limon v. State, 838 S.W.2d 767,
Ann. § 1.07(a)(17)(A) (Supp. 2006).
                                                               768-69 (Tex. App.--Corpus Christi 1992, pet. ref'd) (cit-
                                                               ing Warren v. State, 693 S.W.2d 414, 416 (Tex. Crim.
                                                               App. 1985)). If the error is discovered after trial, error is
                                                               preserved through a motion for new trial, bill of excep-
                                                                                                                  Page 3
                                   239 S.W.3d 873, *; 2007 Tex. App. LEXIS 8407, **


tion, or motion to arrest judgment. See Martinez, 155               In Hervey v. State, we addressed a similar issue,
S.W.3d at 495 (citing Warren, 693 S.W.2d at 416).              namely whether "fundamental error was committed when
                                                               the indictment was not read to the jury prior to the trial
     At the beginning of the guilt/innocence phase, the
                                                               on punishment." 3 131 S.W.3d 561, 565 (Tex. App.--Waco
State read the indictment and the trial court asked for
                                                               2004, no pet.). We noted that [HN2] "[t]here are two
Lee's plea. Lee responded, "I plead the 5th, Your Honor."
                                                               relatively small categories of errors to which a contem-
Trial then proceeded to opening arguments. After the
                                                               poraneous objection is not [**5] required: violations of
State rested, the trial court made the following statement
                                                               'rights which are waivable only' and denials of 'absolute
outside the presence and hearing of the jury:
                                                               systemic requirements.'" Id. (quoting Aldrich v. State,
                                                               104 S.W.3d 890, 895 (Tex. Crim. App. 2003)). These
           Before you put anything else on the
                                                               errors may be raised for the first time on appeal. Id. An
       record there's one thing I -- when I asked
                                                               article 36.01 complaint does not fit within these small
       the defendant this morning how he plead,
                                                               categories; thus, an objection is required to preserve er-
       whether he plead guilty or not guilty, I
                                                               ror. See id. at 565-66 (citing Cantu v. State, 939 S.W.2d
       thought he said, not guilty, but I just didn't
                                                               627, 646 (Tex. Crim. App. 1996)); see also Cox v. State,
       hear [**3] it. The court reporter has told
                                                               422 S.W.2d 929, 930 (Tex. Crim. App. 1968) (absent an
       me and the parties that he said that he
                                                               objection, a violation of article 36.01 is waived); Robin-
       took the 5th Amendment. The court is en-
                                                               son v. State, No. 05-01-00702-CR, 2002 Tex. App. LEXIS
       tering a plea of not guilty on his behalf.
                                                               615, at *2 (Tex App.--Dallas Jan. 30, 2002, no pet.) (not
                                                               designated for publication) (argument that "trial court
                                                               committed fundamental error by failing to read the in-
The trial proceedings then continued.
                                                               dictment and accept appellant's plea in the presence of
     Because Lee did not object to the trial court's failure   the jury" not preserved for appeal in absence of objec-
to enter his plea before the jury, the State argues that Lee   tion); Hardin v. State, 951 S.W.2d 208, 211 (Tex.
has not preserved his complaint for appellate review. In       App.--Houston [14th Dist.] 1997, no pet.).
reliance on Turner v. State, Lee urges that "the reading of
the indictment to which a plea is then entered is a cate-             3 At voir dire on punishment, the trial court
gory-II [*876] right under Marin v. State" that must be               denied Hervey's request that the indictment be
expressly waived. See Turner, 897 S.W.2d 786, 787 (Tex.               read to the jury panel. See Hervey v. State, 131
Crim. App. 1995); see also Marin, 851 S.W.2d 275, 279                 S.W.3d 561, 565 (Tex. App.--Waco 2004, no pet.).
(Tex. Crim. App. 1993). However, Turner is distinguish-               [**6] On appeal, Hervey complained that the in-
able because it: (1) addresses the failure to read en-                dictment should have been read to the jury that
hancement paragraphs and receive a plea at any point                  was seated and he should have been allowed to
during the punishment phase; and (2) it predates the                  plead to the indictment. See id.
Court of Criminal Appeals' decision in Cain v. State in
                                                                    At no time did Lee object to the trial court's failure
which the Court held that "[e]xcept for [**4] certain
                                                               to enter his plea before the jury or request that the in-
federal constitutional errors labeled by the United States
                                                               dictment be read, a plea entered, and the evidence rein-
Supreme Court as 'structural,' no error, whether it relates
                                                               troduced. See Hervey, 131 S.W.3d at 565; see also
to jurisdiction, voluntariness of a plea, or any other
                                                               Cantu, 939 S.W.2d at 646; Cox, 422 S.W.2d at 930;
mandatory requirement, is categorically immune to a
                                                               Robinson, 2002 Tex. App. LEXIS 615, at *2; Hardin, 951
harmless error analysis." 2 See Turner, 897 S.W.2d at
                                                               S.W.2d at 211; Limon, 838 S.W.2d at 769. Any error
787; see also Cain, 947 S.W.2d 262, 264 (Tex. Crim.
                                                               could have been corrected had Lee timely called it to the
App. 1997).
                                                               trial court's attention. See Hervey, 131 S.W.3d at 565
                                                               (citing Cantu, 939 S.W.2d at 646). Lee could have pre-
       2     Because article 36.01 violations are not
                                                               served error after trial by filing a motion for new trial,
       structural, "decisions since Turner suggest that
                                                               bill of exception, or motion to arrest judgment, but did
       article 36.01 violations are subject to a harm
                                                               not do so. See Martinez, 155 S.W.3d at 495 (citing War-
       analysis." Hernandez v. State, 190 S.W.3d 856,
                                                               ren, 693 S.W.2d at 416). Accordingly, Lee [*877] has
       868 (Tex. App.--Corpus Christi 2006,no pet.); see
                                                               failed to preserve his complaint for appellate review; we
       Linton v. State, 15 S.W.3d 615, 620 (Tex.
                                                               overrule his first issue.
       App.--Houston [14th. Dist.] 2000, pet. ref'd)
       ("Because the failure to read enhancements para-
                                                               LEGAL SUFFICIENCY
       graphs and a defendant's plea to the jury is statu-
       tory error, the proper harm analysis is that for re-
       viewing non-constitutional error").
                                                                                                                  Page 4
                                   239 S.W.3d 873, *; 2007 Tex. App. LEXIS 8407, **


      Lee's second issue challenges the legal sufficiency             4 [HN4] A person commits aggravated assault
of the evidence to support his aggravated assault convic-             if he intentionally, knowingly, or recklessly
tion.                                                                 caused bodily injury to another and used or ex-
                                                                      hibited a deadly weapon during [**9] commis-
Standard of Review                                                    sion of the assault. TEX. PEN. CODE ANN. §
                                                                      22.02(a)(2) (Vernon Supp. 2006); TEX. PEN.
     [HN3] Under legal sufficiency review, we determine
                                                                      CODE ANN. § 22.01(a)(1) (Vernon Supp. 2006).
whether, [**7] after viewing all the evidence in the
light most favorable to the verdict, any rational trier of
                                                               Identity
fact could have found the essential elements of the of-
fense beyond a reasonable doubt. Curry v. State, 30                 The record contains conflicting evidence regarding
S.W.3d 394, 406 (Tex. Crim. App. 2000) (citing Jackson         whether Lee was the shooter. Harrison testified that Lee's
v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2789,       girlfriend had been living with Harrison's sister-in-law.
61 L. Ed. 2d 560 (1979)). We do not resolve any conflict       When Lee came looking for his girlfriend and "causing
of fact or assign credibility to the witnesses, as this was    trouble," Harrison asked him to leave. A few days later,
the function of the trier of fact. See Dewberry v. State, 4    Lee approached Harrison with a gun. A chase ensued
S.W.3d 735, 740 (Tex. Crim. App. 1999); see also               during which Lee fired several shots, one of which en-
Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App.         tered Harrison's calf. Detective Paul Hacker and Officer
1992); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim.        Matthew McCallister, while investigating an [*878]
App. 1991). Inconsistencies in the evidence are resolved       unrelated incident, observed a person chasing and shoot-
in favor of the verdict. Curry, 30 S.W.3d at 406; Matson,      ing at Harrison.
819 S.W.2d at 843.
                                                                    Harrison later identified the shooter as
                                                               "Choo-Choo," which led police to Lee. Harrison identi-
Procedural Challenge
                                                               fied Lee from a photographic lineup. Lee admitted that
     Lee contends that, presuming guilt was later joined       his nickname is "Choo-Choo," but testified that other
when the trial court entered a plea on Lee's behalf, the       people also have this nickname. Lee denied ever meeting
evidence was not reintroduced and the only other evi-          or shooting Harrison. Lee, who resided in Arlington at
dence before the jury is insufficient to establish aggra-      the time, testified that he could not have shot Harrison
vated assault. However, Lee did not request that the jury      because he had no transportation to Waco where the
disregard the previously admitted evidence, direct that        shooting occurred. He also denied knowing the girl that
the State be required to reintroduce the evidence, or ob-      Harrison identified as [**10] Lee's girlfriend. However,
ject to the [**8] trial court's failure to do so. See Limon,   the State produced recorded conversations made by Lee
838 S.W.2d at 769. Any complaint regarding the failure         from jail that instructed the listener to contact Lee's al-
to reintroduce evidence is not preserved for appeal. See       leged girlfriend. At trial, Harrison identified Lee as the
Limon, 838 S.W.2d at 769; see also Castillo v. State, 530      shooter. Detective Hacker testified that Lee's height and
S.W.2d 952, 954 (Tex. Crim. App. 1976). We have pre-           physique matched that of the shooter.
viously reached the same conclusion in an unpublished,
                                                                    As the sole judge of the weight and credibility of
memorandum opinion. See Laningham v. State, No.
                                                               witness testimony, the jury was entitled to disregard
10-06-00099-CR, 2007 Tex. App. LEXIS 5511, at *8-9
                                                               Lee's testimony and accept Harrison's. See Santellan v.
(Tex. App.--Waco July 11, 2007, no pet.) (not designated
                                                               State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997); see
for publication). Because this is a procedural issue unre-
                                                               also Perez v. State, 113 S.W.3d 819, 838 (Tex.
lated to sufficiency of the evidence, we will consider all
                                                               App.--Austin 2003, pet. ref'd). The evidence is legally
the admitted evidence when evaluating Lee's legal suffi-
                                                               sufficient to show that Lee was the person who shot Har-
ciency challenge. See Marshall v. State, 185 S.W.3d 899,
                                                               rison.
902 (Tex. Crim. App. 2006); see also Limon, 838 S.W.2d
at 769.
                                                               Deadly Weapon
Analysis                                                            [HN5] A firearm is a "deadly weapon." TEX. PEN
                                                               CODE ANN. § 1.07(a)(17)(A) (Vernon Supp. 2006).
    The indictment alleges that Lee "intentionally,
                                                               Although the gun was never recovered, Harrison testified
knowingly, or recklessly caused bodily injury to DAVID
                                                               that Lee shot him with a gun. Detective Hacker and Of-
HARRISON by shooting DAVID HARRISON, and the
                                                               ficer McCallister heard the gun shots and observed a gun
Defendant did then and there use or exhibit a deadly
                                                               in the hands of the person chasing Harrison. The evi-
weapon, to-wit: a firearm, during the commission of said
                                                               dence is legally sufficient to support a deadly weapon
assault." 4
                                                               finding.
                                                                                                               Page 5
                                 239 S.W.3d 873, *; 2007 Tex. App. LEXIS 8407, **


                                                                 In summary, the evidence is legally sufficient to
Bodily Injury                                               sustain Lee's conviction for aggravated assault with a
                                                            deadly weapon. Lee's second issue is overruled.
    [HN6] "Bodily Injury" means "physical pain, illness,
or any impairment of physical condition." TEX. PEN.
                                                            CONCLUSION
CODE ANN. § 1.07(a)(8) (Vernon Supp. [**11] 2006).
                                                                  Having overruled both of Lee's issues, we affirm the
     Harrison, Hacker, and McCallister all testified that
                                                            trial court's judgment.
Harrison had been shot. The bullet entered the back of
Harrison's calf and exited through the front of his calf.       FELIPE REYNA
Lee continued shooting even after striking Harrison,
                                                                Justice
forcing Harrison to continue running with an injured leg.
Photographs were admitted into evidence that reflect the        Before [**12] Chief Justice Gray,
gunshot wound. The jury could reasonably infer that the
                                                                Justice Vance, and
wound caused Harrison to suffer physical pain from the
injury. See Arzaga v. State, 86 S.W.3d 767, 778 (Tex.           Justice Reyna
App.--El Paso 2002, no pet.) ("the jury is permitted to
draw reasonable inferences from the evidence, including         (Chief Justice Gray concurs in the judgment but a
an inference that the victim suffered pain as a result of   separate opinion will not be issued)
her injuries") (citing Goodin v. State, 750 S.W.2d 857,         Affirmed
859 (Tex. App.--Corpus Christi 1988, pet. ref'd)). The
evidence is legally sufficient to support a finding that        Opinion delivered and filed October 24, 2007
Lee intentionally, knowingly, or recklessly caused bodily       Publish
injury to Harrison by shooting him.
                                                                                                                 Page 1




Questioned
As of: Aug 02, 2017

                        URFAN S. MALIK, Appellant v. THE STATE OF TEXAS, Appellee

                                                       NO. 472-96

                                   COURT OF CRIMINAL APPEALS OF TEXAS

                                   953 S.W.2d 234; 1997 Tex. Crim. App. LEXIS 60


                                             September 10, 1997, Delivered

SUBSEQUENT HISTORY:            [**1] Opinion on               ciency review. The sufficiency of the evidence was
Remand September 23, 1999, Reported at: 1999 Tex.             properly measured by elements of the offense as defined
App. LEXIs 7150.                                              by the hypothetically correct jury charge, which would
                                                              accurately set forth the law, be authorized by the indict-
PRIOR HISTORY:          Petition for Discretionary Re-        ment, not unnecessarily increase the State's burden of
view from the Fourteenth Court of Appeals. [HARRIS            proof, and adequately describe the particular offense
County].                                                      charged.

DISPOSITION:           Judgment vacated and cause re-         OUTCOME: The court granted the State's petition for
manded.                                                       discretionary review and vacated and remanded the deci-
                                                              sion of the lower court.
CASE SUMMARY:
                                                              LexisNexis(R) Headnotes

PROCEDURAL POSTURE: After defendant's con-
cealed weapon conviction was reversed by the Four-
teenth Court of Appeals, Harris County (Texas), the           Criminal Law & Procedure > Witnesses > Presentation
State filed a petition for discretionary review.              [HN1] If a witness was an accomplice to the crime on
                                                              trial, then his testimony must be corroborated. Tex. Code
OVERVIEW: After defendant's conviction for unlaw-             Crim. P. art. 38.14.
fully carrying a handgun was overturned, the State filed a
petition for discretionary review. The State disagreed
with the lower court's holding that legality of detention     Criminal Law & Procedure > Jury Instructions > Par-
was a proper part of a review of the sufficiency of the       ticular Instructions > Reasonable Doubt
evidence. Defendant contended that sufficiency of the         Evidence > Procedural Considerations > Weight &
evidence was measured by the jury charge and, even if         Sufficiency
erroneous, the State failed to object. The State contended    [HN2] Generally, the sufficiency standard is limited to
that it had, in fact, previously objected. The court vacat-   situations in which the increased burden upon the State
ed and remanded the lower court's decision. The jury          appears in the application paragraph of the charge. But,
instruction actually given concerning the legality of de-     the court also utilizes that standard when an abstract por-
fendant's detention should not have been used to measure      tion of the charge functions as a kind of application par-
the sufficiency of the evidence. The court directed the       agraph.
lower court to apply a new, correct standard for a suffi-
                                                                                                                     Page 2
                                  953 S.W.2d 234, *; 1997 Tex. Crim. App. LEXIS 60, **


                                                                 Hence, sufficiency of the evidence should be measured
Governments > Courts > Judicial Precedents                       by the elements of the offense as defined by the hypo-
[HN3] When a court's precedents appear to require it to          thetically correct jury charge for the case. Such a charge
stray far afield from the holding that originated a consti-      would be one that accurately sets out the law, is author-
tutional doctrine, the court should reexamine those prec-        ized by the indictment, does not unnecessarily increase
edents to determine their continuing validity. In con-           the state's burden of proof or unnecessarily restrict the
ducting such a reexamination, however, the court should          state's theories of liability, and adequately describes the
take into account the interests underlying the rule of stare     particular offense for which the defendant was tried. This
decisis. Often, it is better to be consistent than right. But,   standard can uniformly be applied to all trials, whether to
when a particular court-made rule does not produce con-          the bench or to the jury, whether or not the indictment is
sistency or the rule regularly produces results unantici-        facially complete, and regardless of the specific wording
pated by the constitutional doctrine on which it is based,       of the jury charge actually given.
then the court should be prepared to disavow the rule and
overrule the line of cases embodying the rule.
                                                                 Criminal Law & Procedure > Witnesses > Presentation
                                                                 [HN7] Although the accomplice witness rule is also a
Criminal Law & Procedure > Appeals > Standards of                mere rule of evidence, it is statutorily worded as a suffi-
Review > Substantial Evidence > General Overview                 ciency standard. Tex. Code Crim. P. art, 38.14. Insuffi-
Evidence > Procedural Considerations > Weight &                  cient corroboration of accomplice witness testimony
Sufficiency                                                      mandates a judgment of acquittal, assuming the witness
[HN4] Legal insufficiency means that the State's case            in question would be an accomplice as a matter of law
was so lacking that it should not have ever been submit-         under the hypothetically correct jury charge.
ted to the jury. Insufficiency means that the State's case
could be cured or satisfied only by the introduction of          COUNSEL: Jules L. Laird, Jr., Houston.
new evidence to prove, if possible, their theory of the
case.                                                            Rikke Burke Graber, Assist. DA, Carol M. Cameron,
                                                                 Assist. DA, Houston.

Criminal Law & Procedure > Jury Instructions > Par-              JUDGES: KELLER, J. MEYERS, J., concurs. Baird and
ticular Instructions > Elements of the Offense                   Overstreet, J.J, join in the concur.
Criminal Law & Procedure > Appeals > Standards of
Review > General Overview                                        OPINION BY: KELLER
[HN5] Due process prevents an appellate court from af-
firming a conviction based upon legal and factual                OPINION
grounds that were not submitted to the jury. However,
due process is not necessarily violated by affirming a            [*234] OPINION ON STATE'S PETITION FOR
conviction in which the jury charge contains extra, un-          DISCRETIONARY REVIEW
necessary elements that are not supported by the evi-
                                                                       A jury found appellant guilty of unlawfully carrying
dence. Appellate courts are not free to revise the basis on
                                                                 a weapon, namely, a handgun. The trial court assessed
which a defendant is convicted simply because the same
                                                                 punishment at 90 days confinement in the Harris County
result would likely obtain on retrial.
                                                                 Jail, probated for one year, and a $ 300 fine. The [*235]
                                                                 Fourteenth Court of Appeals reversed appellant's convic-
                                                                 tion with an order to the trial court to enter a judgment of
Criminal Law & Procedure > Accusatory Instruments
                                                                 acquittal. Malik v. State, 1994 Tex. App. LEXIS 2751,
> Indictments > Appellate Review
                                                                 No. C14-92-01293-CR (Tex. App.--Houston [14th Dist],
Criminal Law & Procedure > Trials > Burdens of
                                                                 delivered November 10, 1994)(unpublished). The Court
Proof > Prosecution
                                                                 of Appeals reasoned that the evidence was insufficient to
Evidence > Procedural Considerations > Weight &
                                                                 support appellant's conviction because the evidence was
Sufficiency
                                                                 insufficient to show reasonable suspicion to justify a
[HN6] No longer shall sufficiency of the evidence be
                                                                 traffic stop of appellant. Id. The State petitioned for dis-
measured by the jury charge actually given. Neverthe-
                                                                 cretionary review, and we vacated the Court [**2] of
less, measuring sufficiency by the indictment is an inad-
                                                                 Appeals opinion. Malik v. State, No. 1369-94 (Tex.
equate substitute because some important issues relating
                                                                 Crim. App., delivered March 29, 1995)(unpublished).
to sufficiency, such as the law of parties and the law of
                                                                 We held that the legality of the detention, an admissibil-
transferred intent, are not contained in the indictment.
                                                                 ity of evidence issue, was irrelevant to a sufficiency re-
                                                                                                                   Page 3
                                 953 S.W.2d 234, *; 1997 Tex. Crim. App. LEXIS 60, **


view, and we remanded the case to the Court of Appeals         when an abstract portion of the charge functions as a
to conduct a "correct" sufficiency review. Id. On remand,      kind of application paragraph. Arceneaux v. State, 803
the Court of Appeals held that the legality of the deten-      S.W.2d 267, 271 (Tex. Crim. App. 1990) In Arceneaux,
tion was a proper part of the sufficiency review because       the jury charge contained an instruction requiring the
a jury instruction concerning the issue was submitted.         jury to find "beyond a reasonable doubt that the exhibit
Malik v. State, No. C14-92-01293-CR (Tex.                      introduced in evidence by the State is cocaine" before the
App.--Houston [14th Dist], delivered February 15,              defendant could be convicted. Id. We held [**5] that,
1996)(unpublished).                                            by failing to object to the cocaine instruction, the State
                                                               assumed the (unnecessary) burden to offer a cocaine ex-
     The State has again petitioned for discretionary re-
                                                               hibit into evidence. Id. Because no cocaine exhibit had
view (which we granted), and it contends that: (1) in-
                                                               been introduced into evidence (the cocaine had been de-
cluding the detention issue in a sufficiency review is not
                                                               stroyed through testing), we found the evidence to be
appropriate because Jackson v. Virginia, 443 U.S. 307,
                                                               insufficient to support the conviction and ordered a
61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979) applies only to
                                                               judgment of acquittal. Id. at 271-272.
the elements of the criminal offense, and (2) even if there
were error, it is merely trial error because the instruction        As in Arceneaux, the present charge involves the use
was erroneous and the State objected to including the          of an application-type charge in connection with the ad-
detention issue in the jury charge. Appellant responds         mission of certain [*236] evidence. The relevant por-
that sufficiency of the evidence is measured by the jury       tion of the instruction reads as follows:
charge, [**3] citing Boozer v. State, 717 S.W.2d 608,
                                                                    If you fail to believe beyond a reasonable doubt that
610 (Tex. Crim. App. 1984), and he argues that the State
                                                               the defendant, URFAN S. MALIK, was driving his vehi-
failed to properly object to the erroneous jury instruction.
                                                               cle in a suspicious manner as if some activity out of the
We will reverse.
                                                               ordinary had occurred or that activity related to a crime
     The present issue arises out of a line of cases begin-    had occurred, then you are not to consider the pistol or
ning with Benson v. State, 661 S.W.2d 708 (Tex. Crim.          holster that was found in the defendant's car following
App. 1982)(opinion on State's second motion for r'hrg),        the stop by the deputy, and thereby find the defendant,
cert. denied, 467 U.S. 1219, 81 L. Ed. 2d 372, 104 S. Ct.      URFAN S. MALIK, not guilty.
2667(1984). In Benson, we held that the sufficiency of
                                                                    (Emphasis added). The present situation is in all
the evidence is measured by the indictment as incorpo-
                                                               relevant respects identical to Arceneaux. Although
rated into the jury charge. Id. at 715. We decided that the
                                                               Arceneaux involved evidence that was not admitted and
State's failure to object to an unnecessary narrowing, in
                                                               the [**6] present case involved evidence that arguably
the jury charge, of the description of an element of the
                                                               should not have been admitted, we do not find that to be
offense meant that the State was bound to prove the ele-
                                                               a significant distinction. Nor do we perceive a material
ment as described, and a failure to do so would result in
                                                               distinction between the Arceneaux instruction requiring
an acquittal due to insufficient evidence. Id. 715-716.
                                                               the admission of evidence before the jury can be permit-
Subsequently, in Boozer, we held that, by failing to ob-
                                                               ted to find guilt and the present instruction which re-
ject to an erroneously submitted accomplice witness in-
                                                               quires the jury to acquit if the evidence is illegally ob-
struction, the State acquiesced in an increase in its bur-
                                                               tained. In either case, the defendant's guilt turns, accord-
den of proof, requiring corroboration of testimony that
                                                               ing to instruction, upon the status of a particular piece of
would not have needed corroboration absent the instruc-
                                                               evidence. As we stated in Arceneaux, "the wording...of
tion. 1 717 S.W.2d at 610-612. These cases [**4] have
                                                               the charge may also authorize the trier of fact to reach or
spawned a line of decisions in which the sufficiency of
                                                               not reach the ultimate issue in the case." Id. at 271. (El-
the evidence is measured by the jury charge if that
                                                               lipsis and emphasis added).
charge is more favorable to the defendant than the law
requires and if the State fails to object.                          Arceneaux would appear to require an acquittal due
                                                               to insufficient evidence as the Court of Appeals has done
       1 [HN1] If a witness was an accomplice to the           unless we find that the instruction was erroneous and that
       crime on trial, then his testimony must be cor-         the State properly objected. But the State's contention
       roborated. See Texas Code of Criminal Proce-            that Jackson, by its wording, applies only to elements of
       dure, Article 38.14.                                    the offense is a cogent one. [HN3] When, as in the pre-
                                                               sent case, our precedents appear to require us to stray far
      [HN2] Generally, this sufficiency standard has been
                                                               afield from the holding that originated a constitutional
limited to situations in which the increased burden upon
                                                               doctrine, we [**7] should reexamine those precedents
the State appears in the application paragraph of the
                                                               to determine their continuing validity. In conducting
charge. Plata v. State, 926 S.W.2d 300, 304 (Tex. Crim.
                                                               such a reexamination, however, we should take into ac-
App. 1996). But, we have also utilized that standard
                                                                                                                  Page 4
                                 953 S.W.2d 234, *; 1997 Tex. Crim. App. LEXIS 60, **


count the interests underlying the rule of stare decisis:      original; other emphasis added). If an element to be
Often, it is better to be consistent than right. But, when a   proved is incorporated into the charge merely because
particular court-made rule does not produce consistency        the State failed to object, and hence, unnecessarily in-
and/or the rule regularly produces results unanticipated       creased its burden of proof, then that element cannot be
by the constitutional doctrine on which it is based, then      an "essential" element of the crime. The only answer to
we should be prepared to disavow the rule and overrule         this observation would be to claim that whether an ele-
the line of cases embodying the rule. With these consid-       ment is "essential" depends upon the wording of the par-
erations in mind, we now reexamine the court-made rule         ticular jury charge. But Jackson held that its standard is
established in the Benson/Boozer line of cases.                not concerned with the rationality of the verdict actually
                                                               rendered. Id. at 319 n. 13. See also Benson, 661 S.W.2d
     For its holding, Benson relied upon federal constitu-
                                                               at 717-718 (McCormick, J. dissenting). Moreover, Ben-
tional precedent. 2 We at least implied that our view
                                                               son's reliance upon Forman and Burks for the proposition
about measuring sufficiency by the jury charge was in-
                                                               that insufficient evidence means the case should never
herent in the Jackson standard. Benson, 661 S.W.2d at
                                                               have been submitted to the jury underscores the inappro-
714-715. We later expressly held that the Benson/Boozer
                                                               priateness of using the jury charge as a measurement
rule was based upon Jackson:
                                                               [**10] of sufficiency. If the case should never have
                                                               been submitted to the jury, that means there should not
       2 Boozer implied that the Benson/Boozer rule
                                                               have been a jury charge in the case. If the question is
       has a statutory basis by referencing a number of
                                                               whether a jury charge should even exist, how can the
       different statutes in a footnote before its citation
                                                               jury charge be the measurement of evidentiary suffi-
       to Benson. Boozer, 717 S.W.2d at 611 n. 5. Af-
                                                               ciency? See Boozer, 717 S.W.2d at 618-619 (Onion, P.J.
       ter reviewing those statutes, however, we find
                                                               dissenting)(impropriety of using charge to determine
       that none of them requires the rule formulated in
                                                               entitlement to instructed verdict where motion for in-
       Benson and Boozer.
                                                               structed verdict made before charge was given). Benson's
     [**8]                                                     further contention that insufficiency means the State's
                                                               case could be cured or satisfied only by the introduction
The Jackson standard is the foundation for all this Court's    of new evidence also undercuts the validity of the rule
later machinations concerning exactly what "standard"          announced in that case. If the charge unnecessarily in-
should be used to define error in a jury charge. The first     creased the State's burden of proof, then the State's case
such example was Benson, supra, in which the defendant         could be cured by merely altering the charge to eliminate
attacked the sufficiency of the evidence to sustain his        the unnecessary burden. Benson, 661 S.W.2d at 719
conviction for retaliation.                                    (McCormick, J. dissenting); Boozer, 717 S.W.2d at 613
                                                               (McCormick, J. dissenting).
Arceneaux, 803 S.W.2d at 269-270. In Benson, we also
                                                                     Further, the Supreme Court case of Forman, cited by
relied upon Forman v. United States, 361 U.S. 416, 4 L.
                                                               Benson in support of its holding, is completely incon-
Ed. 2d 412, 80 S. Ct. 481 (1980) and Burks v. United
                                                               sistent with the Benson/Boozer rule. In Forman, the jury
States, 437 U.S. 1, 57 L. Ed. 2d 1, 98 S. Ct. 2141 (1978)
                                                               charge erroneously required the jury to find [**11] a
for the proposition "that [HN4] legal insufficiency means
                                                               "subsidiary conspiracy" before convicting the defendant,
that the government's case was so lacking that it should
                                                               and the government failed to object. 361 U.S. at 422 &
not have ever been submitted to the jury." Benson, 661
                                                               424. See also, Stephens v. State, 806 S.W.2d 812, 821
S.W.2d at 715-716 (internal quotation marks omitted;
                                                               (Tex. Crim. App. 1990)(McCormick, P.J. dissenting),
emphasis in Benson). We further explained that "insuffi-
                                                               cert. denied, 502 U.S. 929, 116 L. Ed. 2d 289, 112 S. Ct.
ciency means that the State's case could be cured or sat-
                                                               350 (1991). No subsidiary conspiracy was ever proven.
isfied only by the introduction of new evidence to prove,
                                                               Forman, 361 U.S. at 424. See also Stephens, 806 S.W.2d
if possible, their theory of the case." Id. at 716 (emphasis
                                                               at 821. Nevertheless, the Supreme Court held that a
added).
                                                               judgment of acquittal was inappropriate, noting that:
     A review of the relevant precedents shows that the        "Here there was no lack of evidence in the record....The
federal constitutional cases relied upon in Benson and         jury was simply not properly instructed." Forman, 361
other cases as the foundation for the Benson/Boozer            U.S. at 426 (ellipsis inserted and internal quotation
[**9] rule do not in fact support that rule. Under Jack-       marks omitted). See also Stephens, 806 S.W.2d at 821.
son, the sufficiency review question is "whether, after        Forman viewed the more burdensome charge as mere
viewing the evidence in the light most favorable [*237]        trial error rather than a sufficiency of the evidence prob-
to the prosecution, any rational trier of fact could have      lem. In a concurring opinion, Justice Whittaker went
found the essential elements of the crime beyond a rea-        even further, opining that the trial error was harmless:
sonable doubt." 443 U.S. at 319 (emphasis on "any" in
                                                                                                                   Page 5
                                 953 S.W.2d 234, *; 1997 Tex. Crim. App. LEXIS 60, **


There being neither charge in the indictment nor evi-                 United States, 500 U.S. 257, 269-270 & 270 n. 8,
dence in the record of "subsidiary conspiracy," the re-               114 L. Ed. 2d 307, 111 S. Ct. 1807 (1991); Dunn
quested and obtained charge to the jury amounted to a                 v. United States, 442 U.S. 100, 60 L. Ed. 2d 743,
virtual direction to acquit. And if the jury, in obedience            99 S. Ct. 2190 (1979); Cole v. Arkansas, 333 U.S.
to that [**12] charge, had acquitted, its verdict would,              196, 201-202, 92 L. Ed. 644, 68 S. Ct. 514
of course, have ended the case. Therefore, petitioner, by             (1948). Perhaps recognizing this principle, the
requesting and inducing the court to give this erroneous              Fifth Circuit implied that the complete absence of
charge, got much more than he was entitled to under the               a parties instruction from the jury charge may
law. Yet, he claimed in the Court of Appeals that this                present constitutional problems. Brown, 937
very charge, because unsupported by evidence, was er-                 F.2d at 182. However, we do not believe that due
roneous and required an outright reversal....I realize there          process is necessarily violated by affirming a
is no profit in decrying a spent transaction, but I cannot            conviction in which the jury charge contains ex-
resist observing the obvious, namely, that in these cir-              tra, unnecessary elements that are not supported
cumstances, the law required affirmance of the judg-                  by the evidence. Moreover, the Supreme Court
ment....Petitioner, instead of complaining that he was                has indicated that the McCormick/Dunn/Cole rule
given only a new trial, should be thankful that his con-              does not bar retrial of a criminal defendant.
viction was not affirmed.                                             Dunn, 442 U.S. at 107 ("appellate courts are not
                                                                      free to revise the basis on which a defendant is
 361 U.S. at 429-430 (Whittaker, J. concurring)(ellipses              convicted simply because the same result would
inserted).                                                            likely obtain on retrial").
     Moreover, subsequent developments in federal case               [**15] The Benson/Boozer rule has been charac-
law regarding the Jackson standard have failed to lend         terized as "among the most controversial of the last dec-
any support to the reasoning of the Benson/Boozer line         ade." Mireles v. State, 901 S.W.2d 458, 466 (Tex. Crim.
of cases; in fact, the opposite has occurred. The Supreme      App. 1995)(Meyers, J. dissenting). The rule has been
Court has never imposed on any jurisdiction a require-         strongly criticized for being inconsistently applied.
ment to measure the sufficiency [*238] of the evi-             Jones v. State, 815 S.W.2d 667, 674 (Tex. Crim. App.
dence by the jury charge. Stephens, 806 S.W.2d at 820          1991)(McCormick, P.J. dissenting); Morrow v. State,
(McCormick, P.J. dissenting). Our research of the federal      753 S.W.2d 372, 382 (Tex. Crim. App. 1988)(Onion, P.J.
[**13] case law has failed to uncover any such re-             dissenting). Presiding Judge McCormick criticized the
quirement imposed by any of the federal circuits. In fact,     Court for being inconsistent on whether sufficiency of
the Fifth Circuit has held that the Benson/Boozer doc-         the evidence should be measured solely by the applica-
trine is not a rule of federal constitutional law. Brown v.    tion paragraph or by the charge as a whole. Jones, 815
Collins, 937 F.2d 175, 182 (5th Cir.), rehearing en banc       S.W.2d at 674. His criticism was on target, as this Court
denied, 945 F.2d 403 (1991). Instead, it is "a state pro-      has vacillated between the two positions. In Garrett v.
cedural nuance foreign to federal constitutional norms."       State, we held that evidentiary sufficiency should be
Id. at 181. In Brown, the jury charge contained general        measured by the entire charge rather than solely by the
instructions on the law of parties, and the evidence was       application paragraphs. 749 S.W.2d 784, 802-803 (Tex.
sufficient to convict the defendant as an accomplice. Id.      Crim. App. 1986)(opinion on State's Motion for Rehear-
at 182. But, the application paragraph of the charge re-       ing). At least one court of appeals relied upon that hold-
quired the jury to convict the defendant as the primary        ing, only to be reversed by this Court. Jones v. State,
actor, and the evidence was insufficient to support that       774 S.W.2d 7, 11-12 (Tex. App.--Dallas 1989), reversed,
theory. Id. Nevertheless, this variation between the evi-      815 S.W.2d 667 (Tex. Crim. [**16] App. 1991); Big-
dence and the charge did not rise to constitutional pro-       gins v. State, 824 S.W.2d 179, 180 (Tex. Crim. App.
portions. Id. The Fifth Circuit held that, under Jackson,      1992). To complicate matters further, we have held that
"we look merely to the substantive elements of the crim-       abstract portions of the charge that act like an application
inal offense as defined by state law, [citation omitted],      paragraph must be used in measuring evidentiary suffi-
not...to a state's procedural requirements." Id. at 181        ciency. Arceneaux, 803 S.W.2d at 271 (critical question
(emphasis in original; ellipsis inserted; bracketed materi-    is whether a paragraph "authorizes a conviction").
al replacing internal citation; [**14] internal quotation
                                                                   Consequently, the rule that evidentiary sufficiency is
marks omitted). 3
                                                               measured by the application paragraph of the charge has
                                                               been difficult to apply. We have reversed court of ap-
       3 We recognize that [HN5] due process pre-
                                                               peals decisions for failing to determine accurately what
       vents an appellate court from affirming a convic-
                                                               paragraphs of the charge are application paragraphs or
       tion based upon legal and factual grounds that
                                                               "authorize a conviction." Jackson v. State, 898 S.W.2d
       were not submitted to the jury. McCormick v.
                                                                                                                     Page 6
                                 953 S.W.2d 234, *; 1997 Tex. Crim. App. LEXIS 60, **


896, 899-900 (Tex. Crim. App. 1995); Arceneaux, 803             practice this Court has fashioned a maze of complex
S.W.2d at 271-272. The futility of these exercises be-          rules for different situations.
comes even more apparent in light of our recent observa-
tion that "it may well be that application paragraphs are              4 That is, it alleges all of the essential elements
an anachronism, and that jurors could perform just as                  of a criminal offense.
well without them." Plata, 926 S.W.2d at 304.
                                                                     In addition to producing uncertainty and incon-
     Former Presiding Judge Onion complained that the           sistency, the Benson/Boozer rule is inherently at odds
Benson/Boozer rule produced different [*239] meas-              with the purpose of the Jackson sufficiency standard. The
urements for evidentiary sufficiency depending upon             Jackson standard was established to ensure that innocent
whether the State or [**17] the defendant benefitted            persons would not be convicted. Jackson, 443 U.S. at
from the instructions given. If the jury charge requires        323 ("The question whether a defendant has been con-
more than the law requires, and the State fails to object,      victed upon inadequate evidence is central to the basic
then the State acquiesces in an increase in its burden of       question of guilt or innocence"). The Benson/Boozer rule
proof, and sufficiency of the evidence is measured by the       permits, and in fact contemplates, that persons who are
charge. Morrow, 753 S.W.2d at 381 n. 5 (Onion, P.J.             guilty of the crime charged and convicted by a jury may
dissenting). But, if the jury charge requires less than the     nevertheless be acquitted on appeal because the State
law requires, and the defendant fails to object, the de-        failed to object to an erroneous and/or unnecessary in-
fendant is not treated as having acquiesced in a lesser         struction favorable to the defendant. [**20] In es-
burden of proof, and sufficiency of the evidence is             sence, the rule permits the greatest form of relief in the
measured by the elements of the offense rather than the         criminal system -- an acquittal -- to be granted because
charge. Id. Presiding Judge Onion concluded that "there         the defendant received a windfall in the jury instructions.
appear[] to be different standards applied depending up-
                                                                     The Benson/Boozer rule is based upon a misinter-
on whose ox is gored." Id. The inconsistency with re-
                                                                pretation of federal constitutional precedent, results in
spect to measuring sufficiency is especially apparent
                                                                complex and inconsistent standards for reviewing suffi-
when comparing different scenarios involving a variance
                                                                ciency of the evidence, and is fundamentally at odds with
between the indictment and the jury charge. If the in-
                                                                the purpose behind the Jackson standard of sufficiency
dictment is facially complete, 4 and the jury charge un-
                                                                review. Therefore, we overrule the Benson/Boozer line
necessarily narrows the permissible bases for a convic-
                                                                of cases and abolish the standard of sufficiency review
tion or requires more proof than the indictment, then the
                                                                that they formulated. [HN6] No longer shall sufficiency
Benson/Boozer rule requires measuring the sufficiency
                                                                of the evidence be measured by the jury charge actually
of the evidence by the jury charge. Fisher [**18] v.
                                                                given. Nevertheless, we recognize that measuring suffi-
State, 887 S.W.2d 49, 55 (Tex. Crim. App. 1994). But, if
                                                                ciency by the indictment is an inadequate substitute be-
the indictment is facially complete, and the jury charge
                                                                cause some important issues relating to sufficiency -- e.g.
impermissibly broadens the permissible bases for con-
                                                                the law of parties and the law of transferred intent -- are
viction, sufficiency is measured by the indictment rather
                                                                not contained in the indictment. Boozer, 717 S.W.2d at
than the charge (or perhaps more precisely, by the jury
                                                                610 n. 4; [*240] Jones, 815 S.W.2d at 675 (McCor-
charge without the impermissible broadening language).
                                                                mick, P.J. dissenting). Hence, sufficiency of the evidence
Id. at 57. Further, if the indictment is facially incomplete,
                                                                should be measured by the elements of the offense as
then sufficiency of the evidence is measured by the jury
                                                                defined by the hypothetically correct jury charge for the
charge so long as the charge remains consistent with the
                                                                case. Such a charge would be one that accurately sets out
indictment and the controlling penal provision. Id. at
                                                                the law, is authorized by the [**21] indictment, does
57-58. And of course, sufficiency of the evidence can
                                                                not unnecessarily increase the State's burden of proof or
never be measured by the jury charge in a bench trial
                                                                unnecessarily restrict the State's theories of liability, and
because there is no jury charge. Stephens, 806 S.W.2d at
                                                                adequately describes the particular offense for which the
821 & 821 n. 4 (McCormick, P.J. dissenting). Instead of
                                                                defendant was tried. 5 This standard can uniformly be
producing one simple, coherent standard to measure the
                                                                applied to all trials, whether to the bench or to the jury,
sufficiency of the evidence, the Benson/Boozer rule has
                                                                whether or not the indictment is facially complete, and
spawned several standards, depending on the complete-
                                                                regardless of the specific wording of the jury charge ac-
ness of the indictment, whether the jury charge requires
                                                                tually given. Moreover, the standard we formulate today
more or less proof from the State than the indictment,
                                                                ensures that a judgment of acquittal is reserved for those
and whether the trial was to the bench or to the jury.
                                                                situations in which there is an actual failure in the State's
While these disparate standards may in theory be justi-
                                                                proof of the crime rather than a mere error in the jury
fied [**19] under the single, unified theory of measur-
                                                                charge submitted.
ing sufficiency by "the indictment as properly incorpo-
rated into the jury charge," Fisher, 887 S.W.2d at 57, in
                                                                                                                 Page 7
                                 953 S.W.2d 234, *; 1997 Tex. Crim. App. LEXIS 60, **


       5    This list is not necessarily exhaustive.          On appeal, appellant claimed the evidence was insuffi-
                                                              cient to support the jury's finding that appellant had been
     Turning to the present case, we find that the jury in-
                                                              driving in a suspicious manner. The Court of Appeals
struction concerning the legality of appellant's detention
                                                              noted that the legality of a detention is normally "irrele-
should not have been used to measure the sufficiency of
                                                              vant" for purposes of a sufficiency review, but decided to
the evidence. The legality of appellant's detention is not
                                                              "assume" the charge was [**24] correct and review the
an element of the offense charged but merely relates to
                                                              sufficiency of the evidence to support it. Upon reviewing
the admissibility of evidence. [**22] Moreover, a hy-
                                                              the evidence, the Court of Appeals determined it was
pothetically correct jury charge would not have made the
                                                              insufficient to support "the jury's determination that ap-
admissibility of a particular piece of evidence a precon-
                                                              pellant was driving his vehicle in a suspicious manner,"
dition for conviction. 6
                                                              reversed the judgment of the trial court, and ordered a
                                                              judgment of acquittal. Malik v. State, 1996 Tex. App.
       6 [HN7] Although the accomplice witness rule
                                                              LEXIS 607, *10, No. 14-92-01293-CR (Tex.
       is also a mere rule of evidence, and is not re-
                                                              App.--Houston [14th Dist.] Feb. 15, 1996)(opinion on
       quired under Jackson, see Brown, 937 F.2d at
                                                              remand)(unpublished).
       182 n. 12, it is statutorily worded as a sufficiency
       standard. See Texas Code of Criminal Procedure,            We granted the State's petition on the following
       Article 38.14. Nothing in this opinion changes the     ground for review:
       rule that insufficient corroboration of accomplice
                                                                   The Court of Appeals erred in failing to properly
       witness testimony mandates a judgment of ac-
                                                              apply the correct standard of review in analyzing the
       quittal -- assuming the witness in question would
                                                              sufficiency of the evidence and in reversing and re-
       be an accomplice as a matter of law under the
                                                              manding for an order of acquittal.The State argues the
       hypothetically correct jury charge.
                                                              Court of Appeals erred in its sufficiency analysis in two
     We vacate the opinion of the Court of Appeals and        respects: (1) Jackson v. Virginia does not apply here
remand this cause to that Court to apply the correct          since the legality of the detention is not one of the "ele-
standard of review in analyzing appellant's points of er-     ments of the offense"; and (2) since the State objected to
ror regarding the sufficiency of the evidence.                the charge, the [*241] issue should be treated as trial
                                                              error rather than a sufficiency problem, citing Ortega v.
    KELLER, J.
                                                              State, 668 S.W.2d 701 (Tex. Crim. App. 1983)(opinion on
   Judgment of Court of Appeals vacated; Cause re-            original submission) [**25] and Stephens v. State, 717
manded to Court of Appeals                                    S.W.2d 338, 341 (Tex. Crim. App. 1986).
    DELIVERED: September 10, 1997                                  The State is correct on its second argument. 1 In Or-
                                                              tega, we explained that when the trial court unnecessarily
CONCUR BY: MEYERS                                             increases the State's burden in the jury instructions and
                                                              the State objects to the increase, the matter should be
CONCUR                                                        viewed as trial error on appeal:

 [**23] CONCURRING OPINION                                           1 Addressing the second argument would re-
                                                                     solve the case and I therefore decline to comment
     The majority expressly "overrules the Ben-                      on the State's first argument.
son/Boozer line of cases," and describes that line of deci-
sions as holding that "the sufficiency of the evidence is          But once the [additional burden] is incorporated into
measured by the jury charge if that charge is more fa-        the court's instructions to the jury in such a way that the
vorable to the defendant than the law requires and if the     jury must find it before a verdict of guilt is authorized,
State fails to object." Majority opinion at 2. But in this    Article 36.13, V.A.C.C.P., it must be proved, or the ver-
case the State objected. Therefore the majority's holding     dict will be deemed "contrary to the law and evidence."
is dicta and I decline to join it. I concur in the judgment   See Article 40.03(9), V.A.C.C.P. In sum, there is no such
of the Court, however, because application of the con-        thing as "surplusage" in the part of the court's instruc-
trolling caselaw calls for a reversal of the judgment of      tions to the jury which authorizes a conviction, and if the
the Court of Appeals.                                         prosecutor believes that portion of the charge unneces-
                                                              sarily increases his burden of proof, it behooves [**26]
     The trial court erroneously included in the jury         him specially to request a charge which correctly allo-
charge an instruction on the legality of appellant's deten-   cates the burden placed on him by law. This is nothing
tion (whether or not appellant had been driving his vehi-
                                                              more than the course of law which is due before a person
cle in a suspicious manner, thereby justifying a stop).
                                                              may be deprived of liberty. Article 1.04, V.A.C.C.P.
The State objected at trial to the inclusion of the charge.
                                                                                                                       Page 8
                                 953 S.W.2d 234, *; 1997 Tex. Crim. App. LEXIS 60, **


And if the record reflects the prosecutor has pursued this             jury shall disregard any such evidence so ob-
course to protect his lawful obligations, but the trial court          tained.
has nevertheless refused the amendment to the indict-
                                                                             We have interpreted this provision as only
ment or submission of the requested charge, and the evi-
                                                                       requiring a charge thereunder "if there is a factual
dence is found insufficient to support the verdict because
                                                                       dispute as to how the evidence was obtained."
of the trial court's errors in this regard, those reviewable
                                                                       Thomas v. State, 723 S.W.2d 696, 707 (Tex. Crim.
rulings of the trial court found erroneous by the appellate
                                                                       App. 1986). In other words, a defendant is not en-
court constitute "trial error," and the State is free to pur-
                                                                       titled to a charge if the defendant does not con-
sue another prosecution. Cf. Burks v. United States, 437
                                                                       trovert or challenge the State's facts, as opposed
U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978); and Greene
                                                                       to the legal conclusions to be drawn from the
v. Massey, 437 U.S. 19, 98 S. Ct. 2151, 57 L. Ed. 2d 15
                                                                       facts. Id.
(1978).
                                                                      The State is exactly right. The instruction should
Ortega, 668 S.W.2d at 705 n.10. We further explained in         not have been given because there was no dispute about
Stephens that when the charge imposes a greater burden          the [**29] facts leading to the stop. By objecting to
on the State than placed upon it by the controlling stat-       charge, the State did not assume the greater burden. See
ute, and the State does not object to the increased burden,     Ortega, supra; Stephens, supra. The Court of Appeals
it can be assumed that the State voluntarily shouldered         erred in reversing and ordering a [*242] judgment of
that burden. But if the State objects [**27] to the great-      acquittal based upon insufficiency of the evidence as to
er burden, then the increased burden is not assumed by          the legality of the detention. This case should be reversed
the State so as to bar it from retrying the case if the evi-    due to trial error, and the State afforded the opportunity
dence is insufficient under the increased burden in the         to reprosecute. 4 Ortega, 668 S.W.2d at 705 n.10 (if State
charge. 2 Stephens, 717 S.W.2d at 341.                          objects to increased burden in charge and evidence is
                                                                found insufficient to support the verdict because of trial
       2 Judge Clinton best explained this notion in            court's error in this regard, "those reviewable rulings of
       concurring in the denial of the State's motion for       the trial court found erroneous by the appellate court
       rehearing in Boozer:                                     constitute 'trial error,' and the State is free to pursue an-
                                                                other prosecution").
             . . . in the event the State had objected to the
       trial court's unnecessarily increasing its burden of
                                                                       4 This rule is consistent with the Court's hold-
       proof, we would be in a position to point to the
                                                                       ings as to reprosecution of a lesser included of-
       accomplice witness charge and say, "that charge
                                                                       fense upon a finding on appeal of insufficiency of
       was erroneous just as the prosecutor argued,"
                                                                       the evidence on the aggravating element of the
       then hold that error was the direct cause of the
                                                                       greater offense. In Granger v. State, 850 S.W.2d
       reversal of the conviction and as such was "trial"
                                                                       513 (Tex. Crim. App. 1993), the defendant was
       charge error.
                                                                       convicted of capital murder, but on direct appeal,
             Boozer, 717 S.W.2d at 614 (Clinton, J.,                   we found the evidence insufficient as to the capi-
       concurring in denial of State's motion for leave to             tal element. The defendant claimed his subse-
       file motion for rehearing).                                     quent prosecution for murder was barred by dou-
                                                                       ble jeopardy. We disagreed. We explained that
     The State argues that an article 38.23 instruction is
                                                                       allowing the State to reprosecute placed the de-
required only if there is a factual dispute about how the
                                                                       fendant in the position he would have been in
evidence was obtained and there was no factual dispute
                                                                       absent the trial court's error in submitting the cap-
in this case. [**28] 3 The State objected to inclusion of
                                                                       ital charge. Because the evidence was only insuf-
the instruction.
                                                                       ficient as to the capital element, if the lesser in-
                                                                       cluded offense alone had gone to the jury, the
       3 Article 38.23(a) provides that no evidence
                                                                       defendant would have been convicted. We em-
       obtained in violation of the Constitutions or laws
                                                                       phasized, however, that had no charge been in-
       shall be admitted against the accused. Further,
                                                                       cluded on the lesser offense, the defendant could
            In any case where the legal evidence raises                not have been retried for that offense:
       an issue hereunder, the jury shall be instructed
                                                                            . . . We were careful to point out repeatedly
       that if it believes, or has a reasonable doubt, that
                                                                       in our opinion [in another case where a jury in-
       the evidence was obtained in violation of the pro-
                                                                       struction was not given on the lesser included of-
       visions of this Article, then and in such event, the
                                                                       fense at the first trial] that at the original trial, the
                                                                       State had chosen not to request an instruction on
                                                                                                               Page 9
                               953 S.W.2d 234, *; 1997 Tex. Crim. App. LEXIS 60, **


       the lesser included offense of rape. In other         son/Boozer doctrine which applies in this case. The State
       words, the State had, at the first trial, failed to   does not cite to Benson and Boozer, much less present an
       pursue the lesser included offense charge after       argument for overruling those opinions. It has always
       jeopardy attached to it and was, therefore, forev-    been my understanding that this Court should not strain
       er barred from prosecuting it again.                  to overrule precedent when not called for on the facts at
                                                             hand, but should wait for the appropriate case where the
           As the court correctly explained in [another
                                                             parties raise and have the opportunity to argue the issue,
       case] when faced with essentially the same facts:
                                                             and where the precedent to be overruled would be other-
            . . . the jury ... was not instructed on [the    wise be applicable and control the disposition of the case
       lesser offense]. It appears that the state simply     at hand. See Blanco v. State, No. 098-97 (State's pet.
       chose not to pursue a conviction for that offense,    granted April 30, 1997)(State urges Court to re-examine
       although the [defendant] was in jeopardy as to        Benson/Boozer). As a believer in the adversarial system,
       that offense. Had it so elected, the state could      I would wait for the appropriate case where the Court
       have requested the additional instruction [on the     could entertain the best arguments on the issue from both
       lesser offense]. Therefore, with respect to the       sides of the table before rendering a decision.
       [lesser] offense ..., the trial was abandoned or
                                                                 I concur in the judgment of the Court.
       aborted by the state without manifest necessity.
                                                                 MEYERS, J.
            Id. at 520(emphasis in original).
                                                                 Delivered September 10, 1997
     [**30] The majority does not mention the Court's
opinions in Ortega and Stephens, even though those cas-          Baird and Overstreet, J.J, join.
es provide an exception to application of the Ben-
                                                                                                                 Page 1




Caution
As of: Aug 02, 2017

                         James Norris WELCH, Appellant v. The STATE of Texas, Appellee

                                                   No. 04-97-00973-CR

                    COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

                                       993 S.W.2d 690; 1999 Tex. App. LEXIS 998


                                               February 17, 1999, Delivered
                                                 February 17, 1999, Filed

SUBSEQUENT HISTORY:                    [**1]    Motion for     to the evidence when it was offered, he waived his right
Rehearing Denied April 14, 1999.                               to complain about the admissibility of the DNA evidence
                                                               on appeal. The court also held that the lower court did
PRIOR HISTORY:        From the 226th Judicial District         not abuse its discretion when it declined to change venue
Court, Bexar County, Texas. Trial Court No.                    because prisoner failed to demonstrate that an impartial
97-CR-4415. Honorable Sid L. Harle, Judge Presiding.           jury could not have been selected with even a careful
                                                               voir dire. Convictions were affirmed.
DISPOSITION:          AFFIRMED.
                                                               OUTCOME: Appellant prisoner's convictions for ag-
CASE SUMMARY:                                                  gravated sexual assault and aggravated robbery were
                                                               confirmed. The court held that there was sufficient legal
                                                               evidence to support the convictions and prisoner waived
PROCEDURAL POSTURE: Appellant prisoner chal-                   his right to review regarding the admissibility of the
lenged his convictions for aggravated sexual assault and       DNA evidence because he failed to object to its admis-
aggravated robbery from the 226th Judicial District            sion at trial.
Court, Bexar County (Texas).
                                                               LexisNexis(R) Headnotes
OVERVIEW: Appellant prisoner contended that it was
error for him to have been convicted of aggravated sexu-
al assault and aggravated robbery. Prisoner argued that
the prosecution failed to produce evidence he was the          Criminal Law & Procedure > Appeals > Standards of
assailant. The court stated that prisoner, in effect, argued   Review > General Overview
that in-court identification by the victim was incredible      Evidence > Procedural Considerations > Weight &
because the victim was unable to identify him before           Sufficiency
taking the stand. The court held that credibility issues       [HN1] Reviewing the legal sufficiency of the evidence,
were for the jury, to decide and therefore prisoner's com-     the appellate court views all of the evidence in the light
plaint was without merit. Prisoner also contended that the     most favorable to the prosecution and inquire whether
DNA evidence was improperly admitted. The court not-           any rational trier of fact could have found the essential
ed that prisoner's counsel stated there was no objection       elements of the crime beyond a reasonable doubt. This
when the written report that confirmed prisoner's DNA          standard applies to direct and circumstantial evidence
matched the DNA sampled from the rape kit was offered.         alike.
The court stated that because prisoner had no objection
                                                                                                                Page 2
                                  993 S.W.2d 690, *; 1999 Tex. App. LEXIS 998, **




Evidence > Procedural Considerations > Circumstan-           Civil Procedure > Venue > General Overview
tial & Direct Evidence                                       Civil Procedure > Trials > Jury Trials > Jurors > Se-
[HN2] Identity may be established either through direct      lection > Voir Dire
or circumstantial evidence.                                  Criminal Law & Procedure > Juries & Jurors > Chal-
                                                             lenges to Jury Venire > Pretrial Publicity > Venue
                                                             Considerations
Criminal Law & Procedure > Appeals > Standards of            [HN8] A change of venue is required only where pretrial
Review > General Overview                                    publicity is so pervasive and prejudicial as to create a
[HN3] While reviewing the evidence, the appellate court      reasonable probability that an impartial jury cannot be
is mindful that the jury alone judges the weight and         empanelled even with the most careful voir dire.
credibility of the evidence. The jury also maintains the
power to draw reasonable inferences from basic facts to
ultimate facts.                                              Criminal Law & Procedure > Jury Instructions > Par-
                                                             ticular Instructions > Lesser Included Offenses
                                                             [HN9] A defendant is entitled to a jury charge on a lesser
Criminal Law & Procedure > Juries & Jurors > Prov-           included offense if (1) the lesser included offense is
ince of Court & Jury > General Overview                      subsumed in the proof necessary to establish the offense
[HN4] Credibility issues are for the jury, not the appel-    charged, and (2) some evidence in the record would
late court, to decide.                                       permit a jury rationally to find that the defendant, if
                                                             guilty, is guilty only of the lesser offense.

Evidence > Procedural Considerations > Exclusion &
Preservation by Prosecutor                                   Criminal Law & Procedure > Jury Instructions > Par-
Evidence > Procedural Considerations > Objections &          ticular Instructions > Lesser Included Offenses
Offers of Proof > Objections                                 [HN10] If a defendant presents no evidence, and no evi-
Evidence > Procedural Considerations > Rulings on            dence otherwise raises the issue of a lesser offense, a
Evidence                                                     charge is not required.
[HN5] When a defendant challenges the admissibility of
certain evidence in a hearing outside the presence of the
jury, he need not renew his objection when the evidence      Criminal Law & Procedure > Appeals > Standards of
is offered at trial in order to preserve his complaint for   Review > General Overview
review. Tex. R. Evid. 103(a)(1).                             [HN11] In reviewing a court's decision not to give a
                                                             charge on a lesser offense, the appellate court examines
                                                             all of the evidence presented at trial regardless of wheth-
Criminal Law & Procedure > Appeals > Reviewability           er it is credible, controverted, or conflicting. However,
> Waiver > General Overview                                  the evidence may not be plucked out of the record and
Evidence > Procedural Considerations > Exclusion &           examined in a vacuum.
Preservation by Prosecutor
Evidence > Scientific Evidence > DNA
[HN6] If at trial the defendant states he has no objection   Criminal Law & Procedure > Appeals > Standards of
when the evidence is offered, he waives his admissibility    Review > Abuse of Discretion > Evidence
complaint.                                                   [HN12] The appellate court reviews the trial court's deci-
                                                             sion to admit extraneous offense evidence with the abuse
                                                             of discretion standard.
Civil Procedure > Venue > General Overview
Criminal Law & Procedure > Juries & Jurors > Chal-
lenges to Jury Venire > Pretrial Publicity > Prejudice       Criminal Law & Procedure > Sentencing > Imposition
Criminal Law & Procedure > Appeals > Standards of            > Evidence
Review > Abuse of Discretion > Venue                         [HN13] Extraneous offense evidence may be offered
[HN7] The appellate court reviews the trial court's venue    during the sentencing phase to assist the jury in deter-
determination for an abuse of discretion. Thus, the ap-      mining punishment and is admissible as to any matter the
pellate court may not reverse the ruling unless it is un-    court deems relevant to sentencing, including but not
reasonable in light of the record evidence.                  limited to evidence of an extraneous crime or bad act that
                                                             is shown beyond a reasonable doubt by evidence to have
                                                                                                                 Page 3
                                   993 S.W.2d 690, *; 1999 Tex. App. LEXIS 998, **


been committed by the defendant. Tex. Code Crim. P.                  [*693] After the man left, Alice ran to Evelyn's
Ann. art. 37.07, § 3 (Supp. 1998).                            room and ordered her to call for help. While Alice waited
                                                              in Evelyn's room, Evelyn woke her father and called the
                                                              police. Officer Mendoza arrived at the Lopez home to
Evidence > Procedural Considerations > General                find Alice shaken and crying. He observed a pair of
Overview                                                      women's underwear near the front door and a wet spot on
[HN14] The appellate court bears in mind that while the       Evelyn's bed, which he thought might contain semen.
trial court maintains authority to decide threshold issues    After recording Alice's description of her attacker, Of-
of admissibility, the jury holds the power to decide          ficer Mendoza escorted the Lopezes to University Hos-
whether the State has met its burden of proof.                pital.
                                                                   Nurse practitioner Nancy Sugarek examined Alice.
COUNSEL: ATTORNEYS FOR APPELLANT: Kim-
                                                              Sugarek observed small ruptured blood vessels on Alice's
berly E. Young, San Antonio, TX.
                                                              back where her bra contacted her skin. Sugarek also
                                                              noted redness in the vaginal area. These observations,
ATTORNEYS FOR APPELLEE: Daniel Thornberry,
                                                              combined with Alice's apparent emotional state and ac-
Assistant Criminal District Attorney, San Antonio, TX.
                                                              count of the [**3] trauma, led Sugarek to conclude Al-
                                                              ice had been sexually assaulted. Sugarek also collected
JUDGES: Opinion by: Paul W. Green, Justice. Sitting:
                                                              hair and fluid samples for the rape kit.
Catherine Stone, Justice, Paul W. Green, Justice, Karen
Angelini, Justice.                                                 In the months following this incident, other sexual
                                                              assaults were reported in Alice's neighborhood. The po-
OPINION BY: PAUL W. GREEN                                     lice and media referred to the perpetrator of these crimes
                                                              as the "Southeast Side Rapist." Ultimately, Welch was
OPINION                                                       identified as Alice's attacker through tests comparing
                                                              DNA from the rape kit's vaginal swab to that found in
     [*692] A jury convicted James Welch of aggra-
                                                              Welch's blood. 1 In fact, the test results, combined with
vated sexual assault and aggravated robbery and sen-
                                                              those arising from other attacks in southeast Bexar
tenced him to life imprisonment plus a $ 10,000 fine. On
                                                              County, led authorities to suspect Welch was the serial
appeal, Welch complains about legal insufficiency, the
                                                              rapist.
admission of DNA evidence, the denial of a change of
venue, the absence of a jury instruction on a lesser in-
                                                                     1 Welch's blood was drawn during the investi-
cluded offense, and the admission of evidence of extra-
                                                                     gation of another sexual assault.
neous offenses during the punishment phase. We affirm.
                                                                   During trial, the State produced additional evidence
BACKGROUND                                                    to prove Welch robbed the Lopez home. During a search
                                                              of Welch's mother's dining room, where Welch had been
     On December 17, 1996 around 10:00 p.m., Alice
                                                              storing some of his belongings, police recovered a box
Lopez fell asleep on the sofa in the sitting area outside
                                                              cutter, Evelyn's black wallet and eyeliner, and several
her second-story bedroom. At approximately 1:00 a.m.,
                                                              items of dark clothing. Furthermore, officers [**4] on
she woke to find a stranger sifting through her belong-
                                                              pawn shop detail testified they located Alice's jewelry at
ings. When she asked him who he was, he motioned for
                                                              various pawnshops on the southeast side of town. Pawn
her to be quiet and to go over to him. Alice saw a sharp
                                                              slips indicated Welch pawned these items within days of
object in his hand, which she believed was a box cutter.
                                                              the attack at the Lopez home-- December 18, 1996 and
The stranger warned Alice not to speak or he would "cut
                                                              December 20, 1996.
her up."
     When Alice approached [**2] him, he dragged her          LEGAL SUFFICIENCY
downstairs to the living room where he forced her to
                                                                  In his second point of error, Welch argues the evi-
have sexual intercourse. While assaulting Alice, he or-
                                                              dence of his guilt is legally insufficient to sustain his
dered her to remove her rings and bracelets. After as-
                                                              conviction. He claims the trial court should have granted
saulting Alice, he ordered her not to move until he was
                                                              his motion for directed verdict because the State failed to
gone or he would kill her. He left with Alice's jewelry, as
                                                              produce evidence he was the assailant. In particular,
well as a black leather jacket belonging to Alice's
                                                              Welch contends neither Alice's in-court identification,
daughter Evelyn. The jacket contained Evelyn's wallet,
                                                              the stolen property, nor the DNA evidence proves he
keys, and an eyeliner pencil.
                                                              committed the sexual assault and robbery. The State, on
                                                              the other hand, argues "the cumulative evidence of ap-
                                                                                                                    Page 4
                                     993 S.W.2d 690, *; 1999 Tex. App. LEXIS 998, **


pellant's identity is overwhelming." We agree with the           [**7] 1991). Accordingly, the DNA results were some
State.                                                           evidence he committed the sexual assault.
     In [HN1] reviewing the legal sufficiency of the evi-
                                                                  In conclusion, all of this evidence supports the jury's
dence, we view all of the evidence in the light most fa-
                                                                 verdict. See Villalon v. State, 791 S.W.2d 130, 132 (Tex.
vorable to the prosecution and inquire whether any ra-
                                                                 Crim. App. 1990) (holding that evidence may not be iso-
tional trier of fact could have found the essential ele-
                                                                 lated for scrutiny but that all evidence must be consid-
ments of the crime beyond a reasonable doubt. Jackson
                                                                 ered). We therefore overrule Welch's second point of
v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S.
                                                                 error.
Ct. 2781 (1979); King v. State, 895 S.W.2d [**5] 701,
703 (Tex. Crim. App. 1995). This standard applies to
                                                                 ADMISSION OF DNA EVIDENCE
direct and circumstantial evidence alike. King, 895
S.W.2d at 703; McGoldrick v. State, 682 S.W.2d 573, 577               In his first point of error, Welch argues the trial
(Tex. Crim. App. 1985). Furthermore, [HN2] identity              court erred in admitting DNA test results that were sci-
may be established either through direct or circumstantial       entifically unreliable. In particular, he complains the
evidence. Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim.          State's DNA expert (1) deviated from the protocol re-
App. 1986); Krebsbach v. State, 962 S.W.2d 728, 734              quired for the test and (2) lacked expertise to sponsor the
(Tex. App.--Amarillo 1998, pet. ref'd).                          DNA evidence. The State maintains Welch failed to pre-
                                                                 serve these complaints for review because he stated he
     [HN3] While reviewing the evidence, we are mind-
                                                                 had "no objection" when the written DNA results were
ful that the jury alone judges the weight and credibility
                                                                 offered. We agree with the State.
of the evidence. Alvarado v. State, 912 S.W.2d 199, 207
(Tex. Crim. App. 1995). The jury also maintains the                   [HN5] When a defendant challenges the admissibil-
power to draw reasonable inferences from basic facts to          ity of certain evidence in a hearing outside the presence
ultimate facts. Hernandez v. State, 939 S.W.2d 692, 693          of the jury, he need not renew his objection when the
(Tex. App.--Fort Worth 1997, pet. ref'd).          [*694]        evidence is offered at trial in order to preserve his com-
Moreover, it is within the province of the jury to recon-        plaint for review. See TEX. R. EVID. 103(a)(1); Mora-
cile evidentiary conflicts. Bowden v. State, 628 S.W.2d          guez v. State, 701 S.W.2d 902, [**8] 904 (Tex. Crim.
782, 784 (Tex. Crim. App. 1982).                                 App. 1986). [HN6] However, if at trial the defendant
                                                                 states he has "no objection" when the evidence is offered,
     Although Welch complains the State produced no
                                                                 he waives his admissibility complaint. Moraguez, 701
proof he was the assailant, he acknowledges Alice iden-
                                                                 S.W.2d at 904. Counsel for Welch stated there was "no
tified him at trial. In effect, he argues the in-court identi-
                                                                 objection" when the State offered the written report con-
fication was incredible because Alice was unable to
                                                                 firming Welch's DNA matched the DNA sampled from
identify him before taking the [**6] stand. 2 [HN4]
                                                                 the rape kit to a certainty of 1/125,000,000. Thus, Welch
Credibility issues are for the jury, not this Court, to de-
                                                                 waived his right to complain about the admissibility of
cide. Accordingly, Welch's complaint is without merit.
                                                                 the DNA evidence. We therefore overrule his first point
                                                                 of error.
        2 Welch does not argue the identification pro-
        cedure at trial was impermissibly suggestive.
                                                                 VENUE
     Second, Welch argues his possession of Evelyn's
                                                                      Welch's third point of error challenges the court's
property, as well as his pawning of Alice's jewelry,
                                                                 denial of his request for a change of venue. Welch argues
proves only that he was in possession of stolen property.
                                                                 that extensive media coverage of the Southeast Side
This evidence, however, was also circumstantial proof
                                                                 Rapist story, combined with the news of his arrest for the
that he robbed the Lopezes. From this evidence, the jury
                                                                 crimes, before his trial deprived him of his right to an
could have believed Welch merely possessed stolen
                                                                 unbiased jury. The State maintains the trial court cor-
property or inferred that he stole it himself. By its ver-
                                                                 rectly denied the change because Welch failed to meet
dict, the jury indicated it inferred Welch robbed the
                                                                 his burden of proof. We agree with the State.
Lopezes of the property; we may not disturb its decision.
                                                                      [HN7] We review the trial court's venue determina-
    Finally, Welch claims the DNA evidence failed to
                                                                 tion for an abuse of discretion. McGinn v. State, 961
establish identity because it was scientifically unreliable
                                                                 S.W.2d 161, 163 (Tex. Crim. App. 1998). Thus, we may
and should not have been admitted. Regardless of
                                                                 not reverse the ruling unless it is unreasonable [*695]
whether this evidence was properly admitted, we must
                                                                 in light of the record evidence. [**9] Id. The occur-
consider it when reviewing for legal sufficiency. Rodri-
                                                                 rence of pretrial publicity creates no automatic presump-
guez v. State, 819 S.W.2d 871, 872 (Tex. Crim. App.
                                                                 tion of prejudice; jurors need not come to court com-
                                                                                                                 Page 5
                                   993 S.W.2d 690, *; 1999 Tex. App. LEXIS 998, **


pletely ignorant of the facts. Narvaiz v. State, 840          the stories or Welch being named as the suspect. Only
S.W.2d 415, 428 (Tex. Crim. App. 1992). Rather, [HN8]         one member stated he would be unable to set aside his
a change of venue is required only where pretrial public-     personal knowledge about the case, and he was excused
ity is "so pervasive and prejudicial as to create a reason-   for cause. Closer inspection of the voir dire dialogue
able probability that an impartial jury cannot be empan-      with the jury members eventually chosen reveals only
eled even with the most careful voir dire." Id.               two members had heard of Welch prior to trial. Four had
                                                              never heard the Southeast Side Rapist story, and six had
     At the venue hearing, Welch presented evidence of
                                                              heard the story but never heard of Welch.
television, radio, and print media coverage. James For-
syth, news division manager at WOAI radio, testified his           In light of all this evidence, we cannot say the trial
station provided extensive coverage of the story with         court abused its discretion in denying Welch's request for
emphasis of the crimes' effect on the community. Forsyth      a change of venue. Due process does not guarantee
estimated the majority of the stories aired near the time     Welch a jury completely ignorant of the facts of his case.
of the assaults and recalled Welch's name mentioned           [**12] Because Welch failed to demonstrate an impar-
only in conjunction with the news of his arrest. Finally,     tial jury could not be selected even with a careful voir
Forsyth recalled no coverage since Welch's arrest and         dire, we overrule his third point of error.
stated his belief that the level of publicity in this case
was not unusual. Dale Rankin, coordinating producer for       JURY INSTRUCTION ON LESSER-INCLUDED
KENS television, sponsored the transcript and video of        OFFENSE
approximately eighty new stories and press conferences.
                                                                  In his fourth point of error, Welch argues the trial
He recalled the bulk of the [**10] coverage aired while
                                                              court erred in denying his request for a jury instruction
the suspect was still at large and suggested this story
                                                              on the "lesser [*696] included offense" of misde-
received publicity out of concern for the safety of the
                                                              meanor theft because the evidence merely showed he
southeast Bexar County community. He was only
                                                              possessed stolen property. The State maintains the trial
vaguely familiar with Welch, recalling stories about
                                                              court properly denied Welch's request because the evi-
Welch's bond proceeding and the DNA test results. In
                                                              dence did not support it. We agree with the State.
sum, Rankin disagreed with the defense's position that
his station's coverage was inflammatory or biased against          [HN9] A defendant is entitled to a jury charge on a
Welch.                                                        lesser included offense if (1) the lesser included offense
                                                              is subsumed in the proof necessary to establish the of-
     A private investigator hired by Welch produced
                                                              fense charged, Aguilar v. State, 682 S.W.2d 556, 558
twenty-one newspaper articles printed in the San Antonio
                                                              (Tex. Crim. App. 1985); and (2) some evidence in the
Express-News. Only five of them mentioned Welch in
                                                              record "would permit a jury rationally to find" that the
connection with the Southeast Side Rapist, and the front
                                                              defendant, if guilty, is guilty only of the lesser offense,
page of one article displayed Welch's picture. The major-
                                                              Rousseau v. State, 855 S.W.2d 666, 673 (Tex. Crim. App.
ity of these articles were written around the time the at-
                                                              1993). [HN10] If a defendant presents no evidence, and
tacks occurred. Circulation of the paper for the period
                                                              no evidence otherwise raises the issue of a lesser offense,
from January through August 1997 ran approximately
                                                              a charge is not required. Aguilar, 682 S.W.2d at 558.
238,000 on weekdays and 387,000 on Sundays. In addi-
tion, the investigator stated he believed Welch's name             [HN11] In reviewing a court's [**13] decision not
was synonymous with the term Southeast Side Rapist.           to give a charge on a lesser offense, we examine all of
                                                              the evidence presented at trial, Lugo v. State, 667 S.W.2d
     Finally, Welch examined three criminal defense at-
                                                              144, 147 (Tex. Crim. App. 1984), regardless of whether it
torneys, all with extensive trial experience in Bexar
                                                              is credible, controverted, or conflicting, Hobson v. State,
County, who opined Welch could not get a fair trial in
                                                              644 S.W.2d 473, 477 (Tex. Crim. App. 1983). However,
the county. The State presented six affidavits [**11]
                                                              the evidence may not be "plucked out of the record and
asserting Welch could receive a fair trial in Bexar Coun-
                                                              examined in a vacuum." Godsey v. State, 719 S.W.2d
ty. Denying Welch's request, the trial court told him he
                                                              578, 584 (Tex. Crim. App. 1986).
could reassert his request at the close of jury selection.
    The exchange between counsel and venire during            1. Aggravated Sexual Assault
voir dire supports the State's contention that publicity
                                                                   With regard to the charge of aggravated sexual as-
about Welch did not rise to the level of prejudice that
                                                              sault, our inquiry ends with the first part of the test be-
would prevent him from securing an impartial jury. Alt-
                                                              cause the State did not have to prove Welch committed
hough approximately one-half of the panel stated they
                                                              misdemeanor theft to secure a conviction for aggravated
were exposed to media coverage of the Southeast Side
                                                              sexual assault. Compare TEX. PEN. CODE ANN. §
Rapist story, hardly any of them recalled any details of
                                                              22.021 with § 31.03 (Vernon 1994). See also Ramos v.
                                                                                                                Page 6
                                  993 S.W.2d 690, *; 1999 Tex. App. LEXIS 998, **


State, 865 S.W.2d 463, 465 (Tex. Crim. App. 1993) (rec-      cluding but not limited to . . . evidence of an extraneous
ognizing sexual assault as a lesser included offense);       crime or bad act that is shown beyond a reasonable doubt
Cunningham v. State, 726 S.W.2d 151, 153 (Tex. Crim.         by evidence to have been committed by the defendant[.]"
App. 1987) (recognizing indecency with a child as same).     TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3
Accordingly, the trial court did not err in denying          (Vernon Supp. 1998). Furthermore, [HN14] we [**16]
Welch's request with respect to the charge of aggravated     bear in mind that while the trial court maintains authority
sexual assault.                                              to decide threshold issues of admissibility, the jury holds
                                                             the power to decide whether the State has met its burden
    2. Aggravated Robbery
                                                             of proof. Mitchell, 931 S.W.2d at 953.
       [**14] The State was required, however, to prove
                                                                  During Welch's punishment hearing, the State made
theft to successfully convict Welch of aggravated rob-
                                                             a written proffer of how it would prove Welch sexually
bery. See Campbell v. State, 571 S.W.2d 161, 162 (Tex.
                                                             assaulted four other victims. 3 Welch objected, arguing
Crim. App. 1978). Therefore, Welch survives the first
                                                             the court should hold a hearing outside the jury's pres-
part of the test. Welch cannot pass the second part of the
                                                             ence to determine whether the State had proved these
test, however, because the jury could not have rationally
                                                             offenses beyond a reasonable doubt. The court denied
found Welch guilty only of theft.
                                                             this request, and the punishment phase proceeded. The
     The jury encountered substantial evidence upon          victims testified, and DNA evidence identifying Welch
which it could have based its verdict that Welch com-        as the assailant in all instances was admitted. The trial
mitted aggravated robbery. Alice identified him as the       court instructed the jury it could not consider the extra-
man who entered her home, exhibited a deadly weapon,         neous offenses unless it believed the State proved them
threatened her with imminent bodily injury, sexually         beyond a reasonable doubt. 4 Finally, outside the jury's
assaulted her, stole property from her home, and escaped.    presence, the trial court orally ruled it found the State's
DNA evidence confirmed Welch as the assailant. Finally,      written proffer satisfied article 37.07. 5
pawn shop receipts indicated Welch pawned most of the
stolen items.                                                       3 These victims included an eleven year-old
                                                                    girl, a seventy-four year-old woman, and a wom-
     On the other hand, the evidence did not demonstrate            an eight months pregnant.
Welch could be guilty only of theft. There was no evi-              4 Welch makes no complaint about the court's
dence Welch merely appropriated property without con-               charge as it relates to the extraneous offenses.
sent. See TEX. PEN. CODE ANN. § 31.03(b)(1) (Vernon
                                                              [**17]
1994). Furthermore, the evidence neither showed Welch               5 The court announced, "Also for the record . .
received the property from another nor indicated Welch              . I will find that the State did prove each and
knew the property was stolen by another. Id. §                      every extraneous offense beyond a reasonable
31.03(b)(2). Accordingly, [**15] Welch's fourth point               doubt pursuant to the written proffer that was
of error is overruled.                                              tendered at the beginning of the punishment pro-
                                                                    ceeding. So that is just a finding that I made at
ADMISSION OF EXTRANEOUS OFFENSE EVI-                                the beginning based upon the written proffer."
DENCE DURING PUNISHMENT
                                                                  The trial court's treatment of Welch's objection
     In his final point of error, Welch asserts the trial    complied with both the Code of Criminal Procedure's
court erred during the punishment phase by admitting         requirement regarding the burden of proof, as well as
evidence of extraneous offenses without first hearing the    Mitchell's mandate that the jury ultimately decide wheth-
evidence outside the jury's presence to determine wheth-     er the State met the burden. Welch supplies no authority
er the State proved those offenses beyond a reasonable       for the proposition that a court must hear evidence of
doubt. The State contends that its written proffer pre-      extraneous offenses outside the presence of the jury to
sented to the court, combined with the court's subsequent    determine admissibility during the punishment stage.
oral ruling, [*697] satisfied its statutory burden. We       Neither the statute nor precedent require a hearing. Con-
agree with the State.                                        tra Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim.
     [HN12] We review the trial court's decision to admit    App. 1995) (recognizing requirement of hearing, outside
extraneous offense evidence with the abuse of discretion     jury's presence, regarding a confession's voluntariness).
standard. Mitchell v. State, 931 S.W.2d 950, 953 (Tex.       Furthermore, even if the trial court erred, there was no
Crim. App. 1996). [HN13] Extraneous offense evidence         harm. See Mitchell, 931 S.W.2d at 954 (directing harm
may be offered during the sentencing phase to assist the     [**18] analysis where error found). Notably, Welch
jury in determining punishment and is admissible "as to      does not argue the State failed to prove the offenses be-
any matter the court deems relevant to sentencing, in-
                                                                                                          Page 7
                                993 S.W.2d 690, *; 1999 Tex. App. LEXIS 998, **


yond a reasonable doubt. We therefore overrule Welch's        Because we find the evidence legally sufficient and
final point of error.                                    the trial court's rulings correct, we affirm Welch's con-
                                                         viction.
     CONCLUSION
                                                              Paul W. Green, Justice
