                                                   6^-/5
                               IN THE   COURT OF   CRIMINAL APPEALS

                                             OF TEXAS

                                                                           COURT OF CRIMINAL APPEALS
       FILED IN
COURT OF CRIMINAL APPEALS
                                            PD-0649-15
                                                                               AUG 2 7 2015
       AUG 27 2015
                                                                           Abel Acosta, Clerk
     Abel Acosta, Clerk




         JASON EARL WOOLEY                                       APPELLANT/PETITIONER

         V.
                                                   §

                                                   §
         THE STATE OF TEXAS                                      APPELLEE/RESPONDENT
                                                   §




                          On Petition For Discretionary Review from

                 The Fourteenth Court of Appeals in No.l4-.06-O0088-CR

                          Affirming the Conviction in No.997,161 from

                  The 176th Judicial District of Harris County, Texas




                      APPELLANT'S PETITION FOR DISCRETIONARY REVIEW




                                                   JASON EARL WOOLEY
                                                   ELLIS I UNIT - TDC#1348672
                                                   1697 FM 980
                                                   HUNTSVILLE, TEXAS 77343
             STATEMENT REGARDING ORAL ARGUMENT




Appellant/Petitioner desires not to make oral argument
                   NAMES OF INTERESTED PARTIES


  Pursuant to TEX.R.APP.P. 38.1(a), Appellant submits that the

following are interested parties:


Jason Earl Wooley, Appellant- Pro se,
TDCJ-ID #1348672
Ellis Unit
1697 FM 980
Huntsville, Texas 77343

Honorable Brian Rains, Judge Presiding
176th District Court of Harris County,
1201 Franklin, 19th Floor
Houston, Texas 77002

Eileen Bogar, Assistant District Attorney
Trial Division
Harris County District Attorney's Office
1201 Franklin
Houston, Texas 77002
                         TABLE OF CONTENTS
                                                         PAGE


STATEMENT REGARDING ORAL ARGUMENT                        2
NAMES OF INTERESTED PARTIES                              3
TABLE OF CONTENTS                                \       4
INDEX OF AUTHORITIES                         '       -   5
STATEMENT OF THE CASE                                    6
ISSUES PRESENTED                                         7
STATEMENT OF FACTS                                       7,8
ARGUMENT AND AUTHORITIES ISSUE NO.l                      8,9
ARGUMENT AND AUTHORITIES ISSUE NO.2                      9
ARGUMENT AND AUTHORITIES ISSUE NO.3 & 4                  9
ARGUMENT AND AUTHORITIES ISSUE NO.5                      9
CONCLUSION AND PRAYER                                    10
CERTIFICATE OF SERVICE                                   10
                            INDEX OF AUTHORITIES


 UNITED STATES SUPREME COURT CASES                                   PAGE


 Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.2781,2789(1979) 9
 Cole v. Arkansas, 333 U.S. 196 (1948)                           9

 5TH CIR.   CASES

 Santellan v. Cockrell, 271 F.3d 190 (5th Cir. 2001)                 9


 TEXAS COURT OF CRIMINAL APPEALS CASES


 Malik v. State, 953 S.W.2d 234, 239-40 (Tex.Crim.App.1997)          8
 Wooley v. State, 273 S.W.3d 260, 271-73 (Tex.Crim.App. 2008)        8
 Lowry v. State, 692 S.W.2d 86,87 (Tex.Crim.App.1985)                8
 Johnson v. State, 673 S.W.2d 190, 194 (Tex.Grim.App.1984)           8
-'-Peddicord v. State, 942 S.W.2d 100, 103 (Tex.App.-Amarillo 1997   8
-'-Wooley v. State, 223 S.W.3d 732 (Tex.App.-Houston 2007           8
-'-Garcia v. State, 634 S.W.2d 888., 893 (Tex.App.-San Antonio 1982 9
 Brooks v. State, 323 S.W.3d 893, 894-95 (Tex.Crim.App.2010)         9

-''Texas Court of Appeals
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

   COMES NOW JASON EARL WOOLEY, Appellant, acting Pro se, and
files this petition/brief in support of my prayer that the judgment
of the Court of Appeals be vacated, and that I be granted a new
trial or punishment hearing or that the case be remanded to the

Court of Appeals for further review.


                      STATEMENT OF THE CASE


   Appellant was convicted by a jury of murder, upon a plea of
not guilty. The same jury found two enhancement paragraphs to

be true and assessed punishment at "forty [40] years confinement
in the Texas Department of Criminal Justice, Institutional Division.
Judgment was rendered January 11, 2006, by the 176th District

Court of Harris County, Texas, in Cause Number 997,161. The trial

court certified Appellant's right to appeal and Appellant gave
timely Notice of Appeal.

   Appellant's conviction was affirmed by a three-justice panel
of the Fourteenth Court of Appeals in a majority opinion delivered

May 1, 2007. Appellant filed a "Petitioner for Discretionary
Review" from the Court of Appeal's opinion. This Honorable Court

granted Appellant's petition for discretionary review. Appellant's
brief, pursuant to this Honorable Court's granting Appellant's
Petition for Discretionary Review is timely filed on August 15,2015,

by sending it via certified U.S. Mail #7013 1710 0001 0996 3411,

return receipt requested, addressed to the Clerk of the Court

of Criminal Appeals in Austin, Texas.
                         ISSUES   PRESENTED



1.   Did the appellate court error in finding that the trial court

     found Appellant guilty of murder beyond a reasonable doubt

     when none of the evidence proved the fatal shot came from

     Appellant's gun, and the State's witnesses testified that
     Appellant only fired,one shot into the.ground?

2.   Did the appellate court error in finding that the evidence

     was sufficient to support a conviction of murder?


3.   Did the appellate court error in affirming Appellant's conviction
     knowing that appellant's due-process rights were violated
     when the court of appeals affirmed the conviction under the

     unsubmitted theory that appellant aided " another " to murder
     the complainant?


4.   Did the appellate court error in finding that the State

     presented evidence from which the jury could have REASONABLY
     CONCLUDED APPELLANT SHOT AND KILLED THE COMPLAINANT?


5.   Did the appellate court error in finding that the Appellant's
     Federal due process wasftviolated when Appellant's conviction
     was affirmed based upon facts not submitted to the jury.


                        STATEMENT OF FACTS


     A jury found appellant, guilty of murder and sentenced him
to confinement for forty years in the TDCJ. The Court of Appeals
originally affirmed appellant's conviction, finding the evidence
was legally and factually sufficient when viewed using a hypotheti-

cally correct jury charge pursuant to Malik v. State, 953 S.W.2d

234, 239-40 (Tex.Crim.App. 1997). See Wooley v. State, 223 S.W.3d
732 (Tex. App.- Houston [14th Dist.j 2007, pet. granted). The
Court of Criminal Appeals reversed and remanded, holding that

this court's use of a hypothetically correct charge violated
appellant's federal due process rights by affirming the judgment

on a theory not submitted to the jury. See Wooley v. State, 273

S.W.3d 260, 271-73 (Tex. Crim. App. 2008). Then the Court of
Appeals again affirmed the trial court's verdict. Appellant filed
a writ of habeas corpus and proved to this Court that Counsel

had not provided appellant with notice of his right to file a

timely PDR. Thereafter, this Court granted appellant his right

to   file an out-of-time PDR.


                 ARGUMENT AND AUTHORITIES ISSUE N0.1


     The police could not determine which of the named suspects
fired the fatal shot or even which caliber gun caused the complainant's
death. The U.S. supreme court has held that it is a violation
of the due process clause of the U.S. Constitution 14th Amendment
to shift the burden of proof in a criminal case to the defendant.
Lowry v. State, 692 S.W.2d 86,87 (Tex.Crim.App.1985).
     It is incumbent on the State to prove every element of the

offense byond a reasonable doubt. This is true whether the State
is relying upon circumstantial or direct evidence. Johnson v.
State, 673 S.W.2d 190, 194 (Tex.Crim.App. 1984); See also Peddicord
v. State, 942 S.W.2d 100, 103 (Tex.App.-Amarillo 1997, no pet.).
   It is reversible error for the trial court, over the objection

of the defendant, to fail to charge upon the presumption of innocence.

Garcia v. State, 634 S.W.2d 888, 893 (Tex.App.-San Antonio 1982
no pet.).


               ARGUMENT AND AUTHORITIES ISSUE NO.2


   When the Court of Appeals made a finding that Appellant murdered

complaintant without supporting sufficient evidence did the Appellate

court error in violating Jackson v. Virginia; Brooks v. State,

323 S.W.3d 893, 894-95 (Tex.Crim.App. 2010)•Santellan v. Cockrell,
271 F.3d 190 (5th Cir. 2001).
               ARGUMENT AND AUTHORITIES   ISSUE NO.3 &   4

   Did the Appellate Court error by affirming Appellant's conviction
even knowing that the right to a jury trial is not satisfied

when the appellant's jury was provided a different theory and

instructions than was ever presented to the jury? Appellate courts

are not permitted to affirm convictions on any theory they please

simply because the facts necessary to support the theory were

presented to the jury. The Appellate Court violated Cole v.

Arkansas, 333 U.S. 196 (1948), by doing this.

               ARGUMENT AND AUTHORITIES ISSUE NO.5


   Did the Appellate Court error when denying Appellant's right
to due process under the federal constitution when it affirmed

appellant's conviction knowing that the facts used to obtain

the conviction had not been submitted to the jury?
                      CONCLUSION AND PRAYER


  WHEREFORE, PREMISES CONSIDERED, Appellant prays this Honorable

Court will vacate the judgment of the Court of Appeals, reverse •

Appellant's conviction so that a new trial be held or the case
be remanded for reconsideration. Additionally, Appellant prays

for all other relief deemed appropriate.


                                Respectfully submitted,



                                      EARL WOOLEY,;
                                 'PELLANT, PRO SE
                               "O.B. ELLIS UNIT
                                1697 FM 980
                                HUNTSVILLE, TEXAS 77343

                     CERTIFICATE OF SERVICE


   This is to certify that a true and correct original copy of the

foregoing has been mailed to the Clerk of the Texas Court of
Criminal Appeals by U.S. mail system, on this the /Q      day of
August 2015.


                                 ^SQN EARL WOOLEY,/l34,66/2
                                 PPELLANT, PRO SI




                               10
Affirmed and Memorandum Opinion on Remand filed October 22, 2009.




                                         In The


                     Jfamrteentlj Court of Appeals

                                 NO. 14-06-00088-CR



                        JASON EARL WOOLEY, Appellant

                                           V.


                         THE STATE OF TEXAS, Appellee



                      On Appeal from the 176th District Court
                              Harris County, Texas
                            Trial Court Cause No. 997,161



        MEMORANDUM                    OPINION             ON      REMAND

      A jury found appellant, Jason Earl Wooley, guilty of murder and sentenced him to
confinement for forty years in the Institutional Division of the Texas Department of
Criminal Justice. This court originally affirmed appellant's conviction, finding the
evidence was legally and factually sufficient when viewed using a hypothetically correct
jury charge pursuant to Malik v. State, 953 S.W.2d 234, 239-40 (Tex. Crim. App. 1997).
See Wooley v. State, 223 S.W.3d732 (Tex. App.-Houston [14thDist.] 2007, pet. granted).
The Court of Criminal Appeals reversed and remanded, holding that this court's use of a
hypothetically correct charge violated appellant's federal due process rights by affirming
the judgment on a theory not submitted to the jury. See Wooley v. State, 273 S.W.3d 260,
271-73 (Tex. Crim. App. 2008). Because we find that the evidence is sufficient to support
the verdict, we affirm.

                          Factual and Procedural Background

       An indictment charged appellant with murdering the complainant by shooting him
with a firearm.1 The State presented evidence from which a jury could rationally find that
appellant participated in an "ambush" of three unarmed men after luring them into a pool
hall parking lot. The attack began when appellant shot his 9-millimeter pistol into the
ground as two of the intended ambush victims approached him. The complainant waited in
a car in the parking lot. Immediately afterwards, other shots were heard coming from
different locations in the parking lot. Shots seemed to be coming from everywhere.
Appellant fired several more shots at the two men who had initially approached him. The
complainant was fatally wounded, and another victim was wounded but not killed.
Appellant and another person got into a car and drove off. The man accompanying
appellant was Pablo Velez, identified as one of the shooters. One 9-millimeter shell casing
matching appellant's pistol was recovered from the scene.

       The police investigation identified four potential suspects as the shooters. Only
appellant and Velez were identified by witnesses at trial as shooters. Police investigators
concluded that four shooters using at least three different caliber guns were involved in the
attack. Because the fatal bullet was not recovered, police could not determine which caliber
gun killed the complainant.'

       The jury was instructed that it could convict appellant as a principal or as a party to
Velez's actions in firing the fatal shot. The jury convicted appellant of murder "as charged
in the indictment." On appeal, appellant argued that the evidence is factually insufficient to
support his conviction. We decided that the submitted charge incorrectly applied the law of

       1 The facts surrounding the shooting are more fully described by the Court of Criminal Appeals.
See Wooley, 273 S.W.3d at 261-66.
parties based on the evidence in that it authorized appellant's conviction as a party upon a
finding that appellant aided only Velez in causing the complainant's death. A
hypothetically correct jury charge should have authorized appellant's conviction as a party
if the jury found that appellant aided Velez "or another person" in causing the
complainant's death.2 See id. Measured against this hypothetical party's charge, we found
the evidence factually sufficient to support a finding of appellant's guilt as a party. See
Wooley, 223 S.W.3d at 737-39.

        On petition for discretionary review, the Court of Criminal Appeals held that
although Malik applies to factual sufficiency reviews, appellant's federal due process rights
were violated when we affirmed appellant's conviction under the unsubmitted theory that
he aided "another" to murder the complainant. 273 S.W.3d at 271. The Court of Criminal
Appeals further held that this due process violation is not subject to a harm analysis. The
case was remanded so that we could determine whether the judgment may be affirmed on
the facts submitted to the jury based on the charge actually submitted, that is, whether
sufficient evidence supports the jury's verdict that appellant murdered the complainant
either as the principal actor or as a party to Velez's actions.

                                                Analysis

        When reviewing the legal sufficiency of evidence, we examine the evidence in the
light most favorable to the verdict 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, 319 (1979); Mason v. State, 905 S.W.2d 570, 574 (Tex. Crim. App. 1995).




         2 See Malik v. State, 953 S.W.2d 234, 239-40 (Tex. Crim. App. 1997) (holdingthat an erroneous
jury instruction is irrelevant to a sufficiency review and thata "hypothetically correct jury charge" should be
applied to the review).

         3 Appellant's due process claim challenged this court's review of both the legal and factual
sufficiency of the evidence. Therefore, we have reviewed the evidence for legal and factual sufficiency.
       In a factual sufficiency review, we consider all the evidence in a neutral light and
reverse if the evidence supporting the verdict is so weak that the verdict seems clearly
wrong and manifestly unjust, or the supporting evidence is outweighed by the great weight
and preponderance of the contrary evidence so as to render the verdict clearly wrong and
manifestly unjust. See Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006).

       Murder requires knowing or intentional conduct, which means either (a) a conscious
desire to engage in the conduct causing the result, or (b) an awareness that the conduct is
reasonably certain to cause the result. Tex. Penal Code Ann. § 19.02 (Vernon 2003); see
also Arnold v. State, 234 S.W.3d 664, 670 (Tex. App—Houston [14th Dist] 2007, no pet.)
(holding jury may presume intent to kill from use of a deadly weapon).

       The State presented evidence from which the jury could have reasonably concluded
appellant shot and killed the complainant. Appellant's firearm was not excluded as the
weapon firing the fatal shot. One fired bullet and fifteen spent shell casings collected at the
scene were admitted into evidence. Although only one shell casing was recovered from a
9-millimeter weapon, both crime scene officers testified that additional casings could have
been present immediately after the shooting, but they were removed from the scene before
officers could recover them. Witnesses saw appellant fire his weapon multiple times in the
parking lot. The complainant and another party to the ambush were both shot in the back
during the shoot-out. There was testimony that one or more of the shooters was "chasing
the victims" and that appellant followed the surviving shooting victim and continued to
shoot at him. The surviving victim was certain appellant shot him. The circumstances of
the ambush provide sufficient evidence that appellant intended to cause serious bodily
harm and that his actions were clearly dangerous to human life. There is no dispute that the
complainant died as a result of the shoot-out. Police investigators and another witness
described where the shooters stood and how they moved during the shooting. The crime
scene video and diagram of the location showed where shell casings and bloody clothing
were recovered. Based on these witnesses' descriptions of the shooting scene, the jury
could have reasonably concluded that appellant was the only person in a position to shoot
and kill the complainant.

       Alternatively, the evidence is legally and factually sufficient to support appellant's
conviction as a party.to Velez's actions. A person may be found guilty as a party to an
offense if he is criminally responsible for the conduct of the person who committed the
offense. Tex. Penal Code Ann. § 7.01(a) (Vernon 2003). A person is criminally responsible
for the offense committed by another's conduct if, acting with intent to promote or assist
the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the
other person to commit the offense. Id. § 7.02(a)(2). In making this determination, the fact
finder may look to events that occurred before, during, or after the offense, and may rely on
acts showing an understanding and common design. Ransom v. State, 920 S.W.2d 288, 302
(Tex. Crim. App. 1997). "An agreement of parties to act together in a common design can
seldom be proved by words, but reliance can often be had on the actions of the parties
showing an understanding and a common design to do a certain act." Wygal v. State, 555
S.W.2d 465, 469 (Tex. Crim. App. 1977). Therefore, participation in an enterprise may be
inferred from the circumstances and need not be shown by direct evidence. Id.; Thomas v.
State, 915 S.W.2d 597, 599 (Tex. App.-Houston [14th Dist] 1996, pet. ref d).

       We examine the record for evidence that would allow a rational juror to find beyond
a reasonable doubt that: 1) Pablo Velez, Jr. intentionally or knowingly caused the death of
complainant, or, intending to cause serious bodily injury to complainant, caused his death
by intentionally or knowingly committing an act clearly dangerous to human life; 2)
appellant had the intent to promote or assist the commission of the murder; and 3) appellant
solicited, encouraged, directed, aided or attempted to aid that person in the commission of
the murder.


       First, the evidence is legally sufficient to show that Velez intentionally shot and
killed the complainant or caused his death by intentionally or knowingly committing an act
clearly dangerous to human life. A witness identified Velez from a photo array as one of
the shooters.4 There was testimony that in addition to firing his weapon during the attack,
Velez chased down the intended victims. A police investigator described Velez's location
at the shooting scene and where the shells from his weapon were found. According to the
testimony of the witnesses, as well as the analysis of the investigating officers, the gunfire
appeared to be in the nature of an ambush. The circumstances of the shooting—a reckless
shoot-out without regard for the safety of people in the parking lot—provide sufficient
proof that the person who fired the fatal shot intended to kill or do serious bodily injury,
and it was undisputed that the gunshot wound received during the shootout caused the
complainant's death.

       Next, we determine whether the evidence is legally sufficient to establish that
appellant intended to promote or assist the murder. Even though, as appellant points out, no
direct evidence of a plan exists, circumstantial evidence showed a plan. Appellant and
Velez were known associates; both frequented the pool hall and may have worked there as
bouncers. Appellant challenged one of the ambush victims to a fist fight, thereby drawing
him to the pool hall. Immediately after appellant fired his first shot into the ground, more
gunfire was heard and seen coming from gunmen in the parking lot. Witnesses identified
Velez as one of the shooters. According to witness testimony, appellant followed two
individuals into the parking lot and fired multiple rounds at them as they fled. Appellant
was also seen leaving the scene of the crime in a Cadillac along with a gunman from the
parking lot, who was later identified as Velez. A police investigator testified that the
coordination of the gunmen showed that the ambush was planned. This evidence is legally
sufficient to allow a rational juror to conclude beyond a reasonable doubt that appellant




         4 Appellant has argued that the testimony from a police investigator that the surviving victim's
girlfriend (who he referred to as his "baby mama") identified Velez as a shooter should not be considered
because it was hearsay that the witness did not corroborate during her trial testimony. The detective's
testimony wasadmitted without objection, thejury waspermitted to weigh and consider its probative value,
and this court may consider it on review. See Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App.
App. 2005).
was involved with other gunmen as part of a coordinated attack without regard for the
safety of anyone who may been with them.

       The evidence is legally sufficient to show that appellant solicited, encouraged,
directed, aided or attempted to aid the murderer in the completion of the offense. Appellant
aided the ambush by having the message relayed that he wanted to fight one of the ambush
victims. Immediately following appellant's first shot, gunfire erupted from one or more
people already at the pool hall. Appellant furthered the ambush by shooting at the victims
in the parking lot. During, or shortly after, the shooting, appellant and Velez were seen
leaving in the same car. These facts are evidence that appellant actually aided the murderer.
The fact that other shots were not heard or seen until appellant fired the first shot toward
the ground suggests that he was aiding in the completion of the offense. All of this
evidence taken together would allow a rational juror to conclude beyond a reasonable
doubt that appellant did indeed aid or encourage the commission of the offense. The lack of
direct evidence of a plan or agreement does not overwhelm the circumstantial evidence that
appellant and Velez acted together pursuant to a plan. We hold the evidence was legally
sufficient to support a verdict of guilty based on appellant's participation as a party.

       Appellant presented no witnesses. Instead, he sought to cast doubt on the factual
sufficiency of the evidence by attempting to impeach the testimony of several witnesses
and by identifying inconsistencies in the evidence.5 His cross-examination of the State's
witnesses suggested that he fired only one initial shot into the ground just before the other
shooters started firing their weapons. To support his position, he pointed to the evidence
that the police recovered only one 9-millimeter shell casing at the scene. Appellant's
cross-examination of the State's witnesses also suggested that he could have been
misidentified as the one who got into the car with Velez just after the shooting stopped.



       5 An appellate opinion addressing factual sufficiency must include a discussion of the most
important evidence that appellant claims undermines thejury's verdict. Sims v. State, 99 S.W.3d 600, 603
(Tex. Crim, App. 2003).
       Appellant identified these specific inconsistencies in the evidence:

               The trial testimony of the girlfriend of the surviving victim that appellant and
               Velez left together conflicted with her statement to police, in which she said
               she did not see appellant leave.
               The girlfriend and her friend, another witness at trial, had drunk several
               alcoholic beverages that evening.
               There was very little evidence of a connection between appellant and Velez
               and no direct evidence that they had conversations or planned the shooting.
               There was no evidence showing appellant's connection to the other gunmen
               such that they would participate in the shooting.
               The surviving victim testified that he was shot in the back, when medical
               records indicate he was shot in the stomach.6
               The surviving victim had committed two robberies and was in prison at the
               time of appellant's trial.
                Testimony conflicted regarding whether the surviving victim took his shirt
                off in anticipation of a fist fight as he approached appellant in the parking lot.
               Appellant's gun was not linked to the shot that killed the complainant.

       The jury is the sole judge of the credibility of the witnesses and the weight to be
given to the witnesses' testimony. See Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim.
App. 1996). Unless the record clearly reveals that a different result is appropriate, an
appellate court must defer to the jury's determination concerning what weight to give
contradictory testimonial evidence because resolution often turns on an evaluation of
credibility and demeanor, and the jurors were in attendance when the testimony was
delivered. Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000).
        It is the jury's responsibility to resolve conflicts in the evidence. Losada v. State,
111 S.W.2d 305, 309 (Tex. Crim. App. 1986). The jury could have concluded that shooting
a gun in the general direction of a group of people, which included the complainant, was
reasonably certain to result in a death. See Rojas v. State, 171 S.W.3d 442, 447 (Tex.
App—Houston [14th Dist.] 2006, pet. refd) (finding the evidence legally and factually

        6 Therecords actually show the surviving victim hada "GSW to abdomen," anda drawing showed
the entrance wound in the lower right back, with the exit wound on the lower right front of the abdomen.
sufficient to support a capital murder conviction for killing a 4-year old when the defendant
fired in the direction of a group of people during a drive-by shooting, even though another
person was also seen firing his weapon).
       Appellant also argued the State failed to rule out other versions of events, primarily,
the possibility that either of the two other gunman could have fired the fatal shot. The State
is no longer required to negate every possible hypothesis to establish a defendant's guilt in
circumstantial evidence cases. See Geesa v. State, 820 S.W.2d 154, 162 (Tex. Crim. App.
1991) (en banc), rev'don other grounds, 938 S.W.2d 718 (Tex. Crim. App. 1996).
       When we view the evidence in a neutral light, which we must in a factual
sufficiency review, the great weight and preponderance of the evidence does not contradict
the jury's verdict. See Watson, 204 S.W.3d at 417. Therefore, we conclude that the
evidence is factually sufficient to sustain appellant's conviction.
                                        Conclusion

       Having determined that legally and factually sufficient evidence supports the jury's
verdict, we affirm the judgment of the trial court.




                                                  /s/     Adele Hedges
                                                          Chief Justice




Panel consists of Chief Justice Hedges and Justices Seymore and Sullivan.
Do Not Publish — Tex. R. App. P. 47.2(b).
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