

Opinion issued March 29, 2012.

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-11-00083-CR
———————————
Justin Hambrick, Appellant
V.
The State of
Texas, Appellee

 

 
On Appeal from the 177th Judicial District Court 
Harris County, Texas

Trial Court Case No. 1233964
 

 
O P I N I O N
          A
jury found appellant, Justin Hambrick, guilty of the offense of felony murder[1] and assessed his punishment
at confinement for forty years.  In his
sole issue, appellant contends that the evidence is legally insufficient to support
his conviction.
          We
affirm.
Background
          Van
Cypress testified that on August 1, 2009, he was at his brother’s apartment
watching a movie along with his mother, girlfriend, and brother’s friend,
Vincent Sanders.  Cypress and Sanders
planned to go to a bar and later return to the apartment.  As they were preparing to leave, Cypress
noticed a “suspicious” car pull up in front of the apartment complex.  The car contained appellant and another man,
later identified as Eddie Williams. 
Cypress decided to “[w]ait about ten minutes” before leaving because
“these guys just passed by in the car and something [did not] feel right.”  After ten to fifteen minutes, Cypress and
Sanders left the apartment, and Cypress noticed appellant and Williams standing
in the apartment complex’s laundry room. 
Williams asked Cypress, “You know where I can get any weed at?”  When Cypress replied that he did not, Williams
and appellant both brandished firearms.  Cypress
“pulled [Sanders] out of the way” and ran between two nearby cars.  Cypress then attempted to run away from the
scene but was struck by several bullets, causing him to fall to the ground.  When the gunshots had subsided, Cypress got
up and noticed that Williams had been shot and was lying on the ground.  Appellant grabbed Williams’s firearm and
“tried to shoot at [Cypress] some more,” but the firearm “jammed.”  Cypress then ran into a nearby convenience
store, where a police officer noticed his injuries and called for emergency
assistance.
Cypress was transported to Hermann
Memorial Hospital, where he received treatment for five gunshot wounds.  A detective interviewed Cypress, who explained
that he was not previously acquainted with appellant or Williams.  Cypress also stated that neither he nor
Sanders were carrying firearms that night, and he identified, from a
photospread, appellant and Williams as his assailants.  On cross-examination, Cypress admitted that
he had previously been convicted of the offense of carrying a firearm without a
license.  
Sanders testified that Cypress was
the younger brother of his “best friend,” Chris Banks, but Cypress was “more of
an acquaintance than a good friend.” 
Because of his close relationship with Banks, Sanders wanted to become
better acquainted with Cypress, so they decided to go to a bar together.  After Cypress had left the apartment and walked
into the parking lot, he returned to the apartment, explaining that it looked
“suspicious” outside, and he asked if Sanders was carrying a firearm.  Sanders stated that he did not have a firearm,
and they opted to wait “about five minutes” before leaving.  On their way to Sanders’s car, they passed
two men, one of whom asked, “Y’all know where the weed at?”  Sanders replied that they did not, and he and
Cypress continued walking to Sanders’s car.  Cypress then touched his shoulder and said,
“Hey, Vincent, get down, get, down.” 
When Sanders turned around, he saw both men holding firearms, heard “two
sets of shots” from both men, and noticed that Cypress had been shot several
times.  Sanders took cover behind a car,
and one of the men told Sanders, “It’s not for you.”  After the shooting subsided, Cypress ran to a
nearby convenience store while Sanders called for emergency assistance from his
cellular telephone.  On
cross-examination, Sanders admitted that he possessed marijuana at the time of
the shooting and had intended to sell it later.
Houston Police Department (“HPD”)
officer D.C. Lambright, a crime scene investigator, testified that he was asked
to investigate appellant’s car after the shooting.  Lambright discovered a firearm and a “knit
ski mask” on the back seat of the car, and he noted that the firearm was
“unloaded” with “no rounds” and “no magazine.” 
Lambright swabbed the firearm for DNA evidence and attempted to “lift
any possible fingerprints.”  
HPD officer M. Miller testified
that he was dispatched to Memorial Hermann Southwest Hospital to investigate a
potential homicide, where he found the body of Williams, who was deceased.  Miller interviewed appellant and Antoine
Porter, who had transported Williams to the hospital.  Appellant then took Miller to the car that he
had driven to the hospital.  On their way
to the car, Miller saw a red ski mask “discarded on the ground in the parking
lot,” which appellant admitted belonged to him. 
Appellant told Miller that “they were at an unknown apartment complex in
an unknown part of town when [Williams] . . . saw somebody” who did not like
him.  Appellant stated that this person “opened
fire on them,” but Miller noticed numerous “inconsistencies” between
appellant’s and Porter’s accounts of the shooting.  Appellant gave Miller consent to search his
car, which Miller had transported to a “more secure facility.”
The next day, Miller received
information “linking up a case that was similar to” his investigation
concerning Williams, and he then interviewed William Banks, Cypress’s
brother.  Miller recovered from the
apartment complex where Cypress had been shot a videotape recording, which
revealed that appellant’s car entered the apartment complex “just before”
Cypress was shot.  Miller determined that
Cypress and Williams had been shot during the same incident, so he visited
Cypress at the Hermann Memorial Southwest Hospital in order to interview him.  Cypress identified appellant and Williams as
his assailants in two separate photospreads. 
Miller was then contacted by Williams’s mother, and he asked her to call
appellant and record the telephone call. 
Miller, who was present during the telephone call, heard appellant say,
“I told you I think it came from my tool,” which Miller interpreted to mean that
appellant had shot Williams.  Miller also
noticed that appellant’s version of the events recounted to Williams’s mother
“was completely different from” from his original statement to Miller.  For example, appellant told Williams’s mother
that Cypress and Sanders were unarmed.  Miller also explained that police officers recovered
a second firearm from a dumpster located in between the scene of the shooting
and Hermann Memorial Southwest Hospital.
          On
cross-examination, Miller explained that, although Cypress identified appellant
as having been at the scene of the shooting, he mentioned that appellant “was
not . . . who was shooting at him.”  
Miller admitted that he never tested Williams or appellant for “gunshot
residue” and Sanders was never able to identify appellant in a photospread.
          Williams’s
mother, Yvette Williams, testified that Williams and appellant had been friends
since the sixth grade.  After she learned
that her son had been shot and killed, she eventually called HPD to inquire whether
she could help with the investigation.  A
detective suggested that she call appellant and record the conversation, and
she complied.  The prosecutor then
offered Yvette’s recorded telephone conversation with appellant into
evidence.  In the conversation, appellant
said, “I think it came from my tool,” and Yvette understood “tool” to mean a
firearm.  Appellant also told her that
the other men involved did not have firearms and he had disposed of his and
Williams’s firearms after the shooting. 
          Dr.
Sara Doyle, a medical examiner at the Harris County Institute of Forensic
Sciences, testified that she performed an autopsy on Williams’s body, which
revealed that he had suffered from “a gunshot wound that involved his right arm
and his torso.”  Doyle determined that
the bullet “entered through the back of his right arm, came out the back of his
right arm and reentered the right side of his back.”  From this analysis, Doyle opined that the
bullet came from Williams’s right side “slightly from his back to front.”      
          Appellant
testified that he had known Williams, who was his “best friend,” for about
seven years.  Prior to the shooting,
appellant met with Williams and Porter, intending to purchase marijuana.  The men drove to a nearby apartment complex,
where Williams claimed that “he knew somebody” who sold marijuana.  Williams determined that the person that he
knew was not at the apartment complex at that time, so the men stopped in the
apartment complex parking lot to determine where they should go next.  At that time, they saw Cypress “standing at
the corner,” and, when Williams asked Cypress if he knew someone who sold
marijuana, Cypress answered affirmatively. 
Cypress then went into an apartment and returned with Sanders.  Williams again asked if they sold marijuana,
but “one thing led to another and [Cypress and Sanders] started shooting.”  When appellant noticed that Williams had been
shot, he asked Porter to assist him in carrying Williams to the car and transporting
him to a hospital.  Later, he received a
call from Yvette Williams, and, when she appeared angry that appellant did not
do enough to help her son, appellant, in an effort to console her, claimed that
he had a firearm, Cypress and Sanders were not carrying firearms, and he had
accidentally shot Williams.  On
cross-examination, appellant admitted that Williams was carrying a firearm at
the apartment complex.
Standard of Review
We review the legal sufficiency of the evidence “by
considering all of the evidence in the light most favorable to the prosecution”
to determine whether any “rational trier of fact could have found the essential
elements of the offense beyond a reasonable doubt.”  Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S. Ct.
2781, 2788–89 (1979).  Our role is that
of a due process safeguard, ensuring only the rationality of the trier of
fact’s finding of the essential elements of the offense beyond a reasonable
doubt.  See Moreno v. State, 755 S.W.2d 866, 867 (Tex.
Crim. App. 1988).  We give deference to
the responsibility of the fact finder to fairly resolve conflicts in testimony,
to weigh evidence, and to draw reasonable inferences from the facts.  Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).  However, our duty requires us to “ensure that
the evidence presented actually supports a conclusion that the defendant
committed” the criminal offense of which he is accused.  Id.  
 
 
 
Sufficiency of the Evidence
  In his sole issue, appellant argues that the
evidence is legally insufficient to support his conviction because the State
did not “prove that Williams’s death was ‘in furtherance’ of the underlying
aggravated assault of Van Cypress.”
A person commits the
offense of felony murder if the person “commits or attempts to commit a felony,
other than manslaughter, and in the course of and in furtherance of the
commission or attempt, or in immediate flight from the commission or attempt, he
commits or attempts to commit an act clearly dangerous to human life that
causes the death of an individual.”  Tex. Penal Code Ann. § 19.02(b)(3)
(Vernon 2011).  A person commits the
offense of aggravated assault if the person intentionally, knowingly, or
recklessly causes serious bodily injury to another or uses or exhibits a deadly
weapon during the commission of the assault. 
Id. § 22.02(1), (2) (Vernon
2011).  
Here, the indictment
alleged that appellant 
did then and there unlawfully,
intentionally and knowingly COMMIT the felony offense of AGGRAVATED ASSAULT by
intentionally and knowingly caus[ing] bodily injury to VAN CYPRESS by using a
deadly weapon, namely, A FIREARM, and while in the course of and furtherance of
the COMMISSION OF said offense did COMMIT an act clearly dangerous to human
life, to-wit: SHOOTING EDWARD WILLIAMS WITH A FIREARM and did thereby cause the
death of EDWARD WILLIAMS.
 
At trial, Cypress
testified that both Williams and appellant brandished firearms and opened fire
on him.  This evidence satisfies the
elements of the underlying felony of aggravated assault.  See
id. § 22.01(1) (Vernon 2011); Davis v. State, 177 S.W.3d 355, 359
(Tex. App.—Houston [1st Dist.] 2005, no pet.) (stating conviction may be based
on testimony of single eyewitness).  In
regard to the shooting of Williams, Cypress and Sanders testified that they
were not carrying firearms, and a firearm was recovered from appellant’s
car.  Williams’s wound was consistent
with the fatal shot being fired “slightly from [Williams’s] back.”  And, appellant, in his telephone conversation
with Yvette Williams, stated that a bullet from his firearm struck Williams,
and he admitted that Cypress and Sanders were not carrying firearms.  Although appellant testified that these
comments were made in an effort to console Williams’s mother, the jury was
entitled to disbelieve this part of his testimony and believe his admissions.  See
Williams, 235 S.W.3d at 750.  From
this evidence, the jury could have reasonably concluded that appellant
committed an “act clearly dangerous to human life” as alleged in the
indictment.
Appellant argues that his
shooting of Williams could not have been done “in furtherance” of the
aggravated assault of Cypress as alleged in the indictment because it could not
have “further[ed] the aggravated assault.” 
He asserts that “by accidentally shooting his best friend, who was
assisting him in the offense, it hampered his commission of the underlying
assault.”  However, section 19.02(b)(3)
requires only that one commit, “in furtherance” of the underlying felony, some
“act clearly dangerous to human life that results in the death of an individual,”
not that the individual’s death be “in furtherance” of the felony.  Tex.
Penal Code Ann. § 19.02(b)(3). 
The jury could have reasonably found that appellant, as explained by him
in his telephone conversation with Yvette Williams, accidentally shot Williams
though intending to shoot Cypress and Sanders. 
This “shooting” of a firearm was clearly done “in furtherance” of the
aggravated assault of Cypress as alleged in the indictment.  It is irrelevant that appellant did not
intend to shoot Williams or that the ultimate result of his action, i.e., the
death of Williams, did not “further” the aggravated assault of Cypress.  See Bigon
v. State, 252 S.W.3d 360, 366 (Tex. Crim. App. 2008) (holding that
defendant’s driving in lane of oncoming traffic was done “in furtherance” of
driving while intoxicated offense despite defendant’s argument that this did
not “advance or promote” the commission of the underlying felony); Lomax v. State, 233 S.W.3d 302, 305
(Tex. Crim. App. 2007) (stating that purpose of felony murder statute is “to
make a person guilty of an ‘unintentional’ murder when he causes another
person’s death during the commission of a felony”).  Accordingly, we hold that the evidence is
legally sufficient to support appellant’s conviction for the offense of felony
murder.
We overrule
appellant’s sole issue.
 
 
Conclusion
          We
affirm the judgment of the trial court.  
 
 
                                                                   Terry
Jennings
                                                                   Justice

 
Panel
consists of Justices Jennings, Massengale, and Huddle.
Publish.  Tex.
R. App. P. 47.2(b).




[1]           See
Tex. Penal Code Ann. § 19.02(b)(3) (Vernon
2011).


