                            NUMBER 13-03-00411-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

LEVIYAS JAMAIL CLAYTON,                                                      Appellant,

                                            v.

THE STATE OF TEXAS,                                                         Appellee.


   On appeal from the 183rd District Court of Harris County, Texas.


               MEMORANDUM OPINION ON REMAND
       Before Chief Justice Valdez and Justices Yañez and Garza
          Memorandum Opinion on remand by Justice Garza
       Appellant, Leviyas Jamail Clayton, was convicted of murder and sentenced to thirty

years’ imprisonment. See TEX . PENAL CODE ANN . § 19.02(b) (Vernon 2003). On original

submission, we found that the evidence adduced at trial was legally insufficient to sustain

Clayton’s conviction. See Clayton v. State, 169 S.W.3d 254 (Tex. App.–Corpus Christi

2005), rev’d, 235 S.W.3d 772 (Tex. Crim. App. 2007). The Texas Court of Criminal

Appeals reversed, holding that the evidence met the standard for legal sufficiency. See

Clayton v. State, 235 S.W.3d 772, 782 (Tex. Crim. App. 2007). We now consider on

remand whether the evidence was factually sufficient to prove that Clayton committed
murder. Because we find that the evidence was factually sufficient, we affirm the judgment

of the trial court.

                                      I. BACKGROUND

       While driving near the entrance of Houston’s Brock Park in the early afternoon of

June 14, 2001, Houston Animal Control employee Angela Davis observed a pickup truck

lose control in front of her and overturn into a ditch. Davis and her partner stopped their

vehicles and provided assistance. About ten to twenty minutes after they stopped, Davis

noticed something moving inside the park; upon further investigation, she discovered a

man, James Playonero, covered in blood and apparently suffering from several gunshot

wounds. Playonero attempted to communicate, but Davis could not understand his

mumbling. Although Davis called the police for assistance, Playonero died before any

medical attention could be rendered. Davis testified at trial that, from the time she stopped

to assist the driver of the truck that veered off the road to the time she went to investigate

the movement in the park, she did not see or hear any other people or vehicles enter or

exit the park.

       Davis further testified that she found Playonero lying on the ground near a white

1995 Toyota Avalon, which had its trunk and rear door open; the vehicle appeared to have

rolled up against a tree. A trail of blood leading from the car indicated that Playonero had

crawled out of the rear passenger compartment of the Avalon and collapsed where he was

found. Upon further investigation of the Avalon, police discovered that the gearshift was

in neutral and the ignition was in the accessory position. The police also found a tire iron

on the front seat, which they suspected had been wedged against the accelerator so that

the car would propel itself into the trees, and a wad of charred paper lodged in the fuel tank

filler neck, indicating that someone had tried to destroy the car by igniting the tank. The

vehicle’s back seat and rear floorboard were soaked with blood, and a moderate amount

of blood was found on the vehicle’s exterior.

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        Roger Milton, M.D., an assistant medical examiner with the Harris County Medical

Examiner’s Office, testified at trial that Playonero was shot eight times at close range and

died within five to ten minutes after suffering the wounds. Milton also testified that it was

impossible for Playonero to have lived for twenty to thirty minutes after receiving those

gunshot wounds.

        Sergeant Boyd Smith of the Houston Police Department, who was one of the first

police officers to arrive at the scene, testified that he suspected that Playonero’s murder

was the result of a drug deal gone bad. He based this opinion on the fact that both

Playonero and Angel Ayala, the owner of the vehicle, were Colombian, and because of the

nature of Playonero’s wounds.1

        Al Padilla, an investigator with the Houston Police Department, testified that he

identified fingerprints on the Avalon belonging to Playonero, Clayton, and Ayala.2 The

fingerprints belonging to Clayton were found on the Avalon’s steering wheel and gearshift,

as well as on the center console between the car’s front seats. Clayton’s prints were

caused by his touching the steering wheel, gearshift, and center console with Playonero’s

blood on his hands.

        Officer Jesus Sosa of the Houston Police Department was assigned to investigate

Playonero’s death. Officer Sosa testified that his investigation produced no evidence

directly linking Clayton to Playonero other than the bloody fingerprints found at the crime

scene. No eyewitnesses were identified, and no murder weapon was found. However, a

warrant was issued for Clayton’s arrest eight days after Clayton was identified through the

bloody fingerprints.
        1
            Sergeant Sm ith testified as follows regarding Playonero’s gunshot wounds:

        The fact that he was shot in both legs, twice in both legs, once in the forearm , once through
        and through in the flesh and the stom ach, shot in the penis, shot in the m iddle of the back
        of the neck, they were torturing him or trying to get inform ation or getting inform ation from
        som ething over a bad drug deal.
        2
          Ayala was initially investigated for the m urder, but was ultim ately cleared of suspicion after he
inform ed a police officer that he had loaned the car to Playonero on the m orning of June 14 and was at hom e
alone when Playonero was shot.
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       Sosa testified that he and his partner attempted to locate Clayton for a week after

the warrant was issued. Sosa testified that he advised Clayton’s grandmother, mother,

girlfriend, and father’s girlfriend about the outstanding warrant. Clayton was not arrested

until he was stopped for a traffic violation in March 2002, some eight months after the

incident at Brock Park.

       Clayton, testifying in his defense, stated that he drove to Brock Park on the morning

of June 14 in order to meet an acquaintance, Tiffany Woods. Clayton testified that, as he

approached the entrance to the park, he observed a blue car exit the park at a high rate

of speed. He testified that, upon entering the park, he looked for Woods but did not find
her; he did, however, find the white Avalon with Playonero’s left hand hanging outside the

rear passenger compartment of the vehicle. Clayton then described what he did next:

       Q.     [Defense counsel] When you got up to the vehicle, what else, if
              anything, did you notice at the vehicle?

       A.     [Clayton] That there was a man in the backseat.

       Q.     A man laying in the backseat?

       A.     Yes, sir.

       Q.     What did you notice about the man?

       A.     That he was full of blood, sir.

       Q.     When you noticed this man in the backseat full of blood, what did you
              do?

       A.     I reached out and touched him, sir.

       Q.     What did – why did you touch him?

       A.     Because he was mumbling, and I couldn’t understand what he was
              saying.

       Q.     After you reached and touched the man, did you do anything else as
              far as the car is concerned?

       A.     Yes, sir.


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       Q.      What did you do?

       A.      I ran around the driver’s side of the door. I got in the car and I tried
               to put the car in reverse, but the gravel around the car was – where
               the ground was wet and the mud was, the car wouldn’t move.

       Clayton testified that he then saw a pickup truck, traveling at a high rate of speed,

veer off the road and overturn in a nearby ditch. Clayton testified that he panicked at that

point, got out of the Avalon, returned to his car, and left the park, passing the Animal

Control officers’ vehicles as he departed. Clayton then returned to the house that he

shared with his grandmother. On cross-examination, Clayton admitted that he did not call

the police or tell anyone else about what he had seen. He testified that he did not know

about the warrant until his arrest on a traffic violation eight months later.

       After trial, a jury convicted Clayton of murder and sentenced him to thirty years’

imprisonment. Clayton appealed his conviction, and this Court found that the evidence

was legally insufficient to support the jury’s verdict, relying primarily on Solomon v. State,

49 S.W.3d 356, 361 (Tex. Crim. App. 2001) (mere presence is not enough to prove guilt)

and Medina v. State, 7 S.W.3d 633, 637 (Tex. Crim. App. 1999) (failing to notify authorities

of a crime is not enough to prove guilt). See Clayton, 169 S.W.3d at 258. The court of

criminal appeals reversed, noting that the amount of blood found on Clayton’s fingerprints,

along with Davis’s testimony that no other vehicles left the park, Clayton’s sudden flight

from the crime scene, and his failure to turn himself in to police on the arrest warrant,

constituted legally sufficient circumstantial evidence to support a finding of guilt. See

Clayton, 235 S.W.3d at 780. We now consider whether the evidence was factually

sufficient to sustain the jury’s guilty verdict.

                                         II. DISCUSSION

A.     Standard of Review

       When reviewing the factual sufficiency of the evidence to support a conviction, we

view all the evidence in a neutral light, favoring neither party. Watson v. State, 204 S.W.3d

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404, 414 (Tex. Crim. App. 2006); Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App.

2005). We then ask (1) whether the evidence supporting the conviction is so weak that the

fact-finder’s determination is clearly wrong and manifestly unjust, or (2) whether conflicting

evidence so greatly outweighs the evidence supporting the conviction that the fact-finder's

determination is manifestly unjust. Watson, 204 S.W.3d at 414-15, 417; Johnson v. State,

23 S.W.3d 1, 11 (Tex. Crim. App. 2000). To reverse under the second ground, we must

determine, with some objective basis in the record, that the great weight and

preponderance of all the evidence contradicts the verdict. Watson, 204 S.W.3d at 417.

A factual sufficiency review requires the reviewing court to consider all of the evidence.

Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006).

       In determining whether the evidence is factually insufficient to support a conviction,

it is not enough that this Court “harbor a subjective level of reasonable doubt to overturn

[the] conviction.” Id. We cannot conclude that a conviction is clearly wrong or manifestly

unjust simply because we would have decided differently than the jury or because we

disagree with the jury's resolution of a conflict in the evidence. Id. We may substitute our

judgment for that of the jury on credibility and weight questions, “albeit only to a very limited

degree.” Marshall, 210 S.W.3d at 625. We will reverse a verdict of guilty on a factual

sufficiency challenge only when we can say, with some objective basis in the record, that

the great weight and preponderance of the evidence contradicts the jury’s verdict. Watson,

204 S.W.3d at 417. We must give due deference to the fact-finder’s determinations,

particularly those determinations concerning the weight and credibility of the evidence.

Johnson, 23 S.W.3d at 9.

       To support a conviction for murder, the State had to prove that Clayton (1)

intentionally or knowingly caused Playonero’s death by shooting him with a firearm or (2)

intended to cause serious bodily injury and committed an act clearly dangerous to human

life that caused Playonero’s death by shooting him with a firearm. See TEX . PENAL CODE

ANN . § 19.02(b); Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim. App. 2003).
                                           6
B.      Analysis

        The evidence at trial established the following circumstances without dispute:

Clayton was present inside the Avalon shortly after Playonero was shot; Clayton fled the

scene when he saw a pickup truck overturn in his vicinity; Clayton did not inform the

authorities about what he had seen; and the warrant for his arrest was outstanding for eight

months before Clayton was detained. Clayton’s explanation for his presence in the Avalon

was that he was trying to save Playonero’s life by pulling his vehicle out of the mud, but

Clayton could not explain to the jury why it was necessary for him to commandeer

Playonero’s vehicle in order to accomplish that. Further, Clayton could not explain why it
was necessary to touch Playonero’s hand, nor could he explain how touching Playonero’s

relatively clean hand resulted in the accumulation of blood on Clayton’s hands sufficient

to transfer bloody fingerprints to the steering wheel, gearshift, and center console. Finally,

Clayton could not explain why, if he was attempting to save Playonero’s life, he failed to

take the extra life-saving step of notifying the police of Playonero’s condition after he had

fled the scene.3

        In a prosecution based on circumstantial evidence, it is not necessary that every fact

point directly and independently to the guilt of the accused; rather, the cumulative effect

of all the incriminating facts may be sufficient to warrant a conclusion of guilt. See Hooper

v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); Guevara v. State, 152 S.W.3d 45, 49

(Tex. Crim. App. 2004). Here, weighing Clayton’s dubious story against the cumulative

force of the incriminating circumstantial evidence, and giving due deference to the jury’s

determinations as to the weight of the evidence and the credibility of witnesses, we cannot

say that the evidence offered at trial, as a whole, clearly revealed that the conviction was

inappropriate. See Johnson, 23 S.W.3d at 8, 9.
        3
          W e note that the only evidence tending to establish a m otive for Clayton to m urder Playonero was
Sergeant Boyd’s testim ony that he believed Playonero’s death was the result of a drug deal gone bad.
However, although m otive is a significant circum stance indicating guilt, Guevara v. State, 152 S.W .3d 45, 50
(Tex. Crim . App. 2004), it is not an elem ent of m urder and need not be proved to support a m urder conviction.
Lerma v. State, 632 S.W .2d 893, 895 (Tex. App.–Corpus Christi 1982, pet. ref’d) (citing Garcia v. State, 495
S.W .2d 257 (Tex. Crim . App. 1973)).
                                                       7
       After considering all of the evidence adduced at trial, we conclude that the jury’s

verdict is not so contrary to the weight of the evidence as to be clearly wrong or manifestly

unjust. Watson, 204 S.W.3d at 414-15, 417. Accordingly, we find that there was factually

sufficient evidence to support the verdict.

                                      III. CONCLUSION

       The judgment of the trial court is affirmed.



                                                         _______________________
                                                         DORI CONTRERAS GARZA,
                                                         Justice

Do not publish.
TEX .R.APP.P. 47.2(b)
Opinion delivered and filed
this the 5th day of June, 2008.




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