                                    NO. 07-05-0271-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL D

                                SEPTEMBER 12, 2006
                          ______________________________

                                JUSTIN SHAMIRE WHITE,

                                                                  Appellant

                                              v.

                                 THE STATE OF TEXAS,

                                                                  Appellee

                        _________________________________

              FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

                     NO. 44,526-A; HON. HAL MINER, PRESIDING
                        _______________________________

                                Memorandum Opinion
                          _______________________________

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

       Justin Shamire White appeals his conviction for murder. Through six issues, he

contends that the evidence was legally and factually insufficient to establish that he

intended to kill the victim, fired the handgun that caused the victim’s death, or possessed

the gun that cause the death. We overrule the issues and affirm the judgment.

       The jury was instructed that it could find appellant guilty of murder if it found that he

1) intentionally or knowingly caused the death of David Berliner, Jr. (Berliner) by shooting
at him, 2) caused the death of the victim by intending to cause the death of Bobby Hill or

Jerry Hill and by shooting either one of them thereby causing the death of Berliner, or 3)

intentionally or knowingly committed an act clearly dangerous to human life by discharging

a firearm while in the course of committing deadly conduct. Furthermore, the evidence of

record depicted that a fight occurred at a night club attended by appellant. Appellant was

then seen waving either a .380 or 9mm handgun in the air. Both the club’s bouncer and

manager apprehended appellant, moved him to the front door, and tossed him from the

establishment. Within seconds of their doing so, three to five gun shots were heard.

Furthermore, a bullet of a caliber akin to a .380 struck the outside of the front door (i.e. the

door through which appellant had just been removed). The door was purportedly made of

steel. Next, Berliner was found lying outside on the ground within feet of that door. He had

been shot in the head. The caliber of the bullet that struck him was .380.

       Shortly after the shots were fired, appellant approached a vehicle that was leaving

the club. He entered it with gun in hand and told the occupants that he thought he had just

shot either the club’s bouncer or manager.

       The investigating officers found five empty .380 caliber shell casings on the ground

in front of the club. One casing lay adjacent to Berliner. Two live rounds were also found

on the ground; they were of 9mm caliber. However, testimony indicated that a 9mm

firearm was capable of firing .380 caliber rounds.

       While evidence of record indicated that gun shots often rang out as patrons of the

club left, no one saw a weapon other than that possessed by appellant. Nor is there

evidence that any of the other 100 plus patrons at the bar had or fired a weapon. And,

concerning the 9mm rounds found on the ground, no one could assess the length of time

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they had been there. In other words, they could have been dropped by someone long

before the shooting.

       Given the evidence of 1) a fight within the bar, 2) appellant’s possession and display

of a .380 or 9 mm handgun, 3) appellant’s physical removal from the club, 4) the temporal

proximity between appellant’s removal and the shots being fired, 5) the similarity in caliber

between appellant’s handgun and the shells found on the ground, the bullet hole in the

front door, and the bullet which killed Berliner, 6) appellant’s comment that he believed that

he had just shot one of the two individuals that physically removed him from the club, 7)

an expended .380 caliber shell lying next to Berliner, and 8) the absence of any other

weapon sightings at the time, we conclude that the jury had some evidence upon which to

conclude beyond reasonable doubt that appellant intentionally killed Berliner or killed him

while intending to shoot and kill either the club bouncer or manager. That evidence, when

compared to the entire record, was neither weak nor overwhelmed.               Nor does the

controverting evidence cause us to question the integrity of the jury’s verdict given

appellant’s statement and possession of the sole gun seen.

       In short, the jury’s verdict is supported by both legally and factually sufficient

evidence. And, the judgment is affirmed.

                                                  Brian Quinn
                                                  Chief Justice

Do not publish.




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