                                             COURT OF APPEALS
                                          EIGHTH DISTRICT OF TEXAS
                                               EL PASO, TEXAS


                                                          §
    BOBBY O’DELL CLARK,                                                      No. 08-11-00136-CR
                                                          §
                                       Appellant,                                Appeal from the
                                                          §
    v.                                                                         109th District Court
                                                          §
    THE STATE OF TEXAS,                                                   of Andrews County, Texas
                                                          §
                                       Appellee.                                   (TC# 5604)
                                                          §


                                                    OPINION

           Bobby O’Dell Clark appeals from the trial court’s judgment convicting him of murder and

sentencing him to 99 years’ imprisonment.1 By one issue, Clark contends that the evidence is

insufficient to support his conviction because the State failed to prove he possessed the intent to

kill.2 We affirm.

                                                  INTENT TO KILL

           Clark does not dispute that he shot and killed Paul Adair. He does, however, dispute that

he possessed the intent required to convict of him murder under Section 19.02(b)(1) of the Penal

Code, which provides that “[a] person commits [murder] if he . . . intentionally or knowingly

causes the death of an individual . . . .” TEX.PEN.CODE ANN. § 19.02(b)(1)(West 2011).

Clark argues that he did not possess the intent required to convict him of murder because he meant

to scare Adair, not kill him. We disagree.

1
    The State did not file a brief in response.
2
  In his brief, Clark makes reference to another possible issue. Specifically, he points out that a member of the jury
had a son who ran around with the victim. Clark, however, did not object at trial and did not brief this “complaint” on
appeal, and thus, has failed to preserve error for review. See TEX. R. APP. P. 33.1(a); 38.1(i).
                                        Standard of Review

       In Brooks v. State, the Court of Criminal Appeals abandoned factual sufficiency review in

those cases where the burden of proof is beyond a reasonable doubt. Brooks v. State, 323 S.W.3d

893, 894-95 (Tex.Crim.App. 2010)(finding no meaningful distinction between the legal and

factual sufficiency standards and no justification for retaining both standards, therefore overruling

the factual sufficiency review adopted in Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App.

1996)). The legal sufficiency standard articulated in Jackson v. Virginia, 443 U.S. 307, 319, 99

S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979), is the only standard a reviewing court applies in

determining whether the evidence is sufficient to support a conviction. Brooks, 323 S.W.3d at

894-95. Therefore, we will review the evidence under the Jackson legal sufficiency standard and

determine whether the evidence is sufficient to support the challenged elements beyond a

reasonable doubt. See id., citing Jackson, 443 U.S. at 319, 99 S.Ct. at 2789.

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

the evidence in the light most favorable to the verdict to determine whether, based on that evidence

and reasonable inferences therefrom, a rational juror could have found the essential elements of the

offense beyond a reasonable doubt. Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007),

quoting Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2788-89. Under a legal sufficiency review, we

may not substitute our judgment for that of the jury, who is the exclusive judge of the facts, the

credibility of the witnesses, and the weight to be given to the evidence. Williams v. State, 235

S.W.3d 742, 750 (Tex.Crim.App. 2007). We therefore defer to the jury’s resolution of these

issues and to its responsibility to draw reasonable inferences from basic facts to ultimate facts.

Hooper, 214 S.W.3d at 13, citing Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2788-89. In resolving


                                                 2
what the facts are and what reasonable inferences may be drawn from them, the jury may accept

one version of the facts and reject another, and it may reject any part of a witness’s testimony, even

if uncontradicted. See Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000), overruled

on other grounds, Laster v. State, 275 S.W.3d 512 (Tex.Crim.App. 2009); Henderson v. State, 29

S.W.3d 616, 623 (Tex.App.--Houston [1st Dist.] 2000, pet. ref’d).

                                          Applicable Law

       To sustain Clark’s murder conviction under Section 19.02(b)(1), the evidence must

establish that Clark possessed the specific intent to kill Adair. Roberts v. State, 273 S.W.3d 322,

331 n.11 (Tex.Crim.App. 2008); Flanagan v. State, 675 S.W.2d 734, 741 (Tex.Crim.App. [Panel

Op.] 1984)(op. on reh’g). Whether Clark possessed the intent to kill Adair was a question of fact

for the jury to determine. Brown v. State, 122 S.W.3d 794, 800 (Tex.Crim.App. 2003).

       In determining whether Clark possessed the intent to kill Adair, the jury was permitted to

use its collective common sense and apply common knowledge and experience and to rely upon

any evidence that it believed proved the existence of that intent. Brown, 122 S.W.3d at 800;

Rodriguez v. State, 90 S.W.3d 340, 355 (Tex.App.--El Paso 2001, pet. ref’d). It was therefore

proper for the jury to rely upon circumstantial evidence such as Clark’s acts, words, and conduct to

infer that he possessed the intent to kill. Laster, 275 S.W.3d at 524; Guevara v. State, 152 S.W.3d

45, 50 (Tex.Crim.App. 2004). Likewise, it was proper for the jury to rely upon Clark’s use of a

deadly weapon – the gun – to infer that he possessed the intent to kill. This is because when a

defendant uses a deadly weapon in a deadly manner, i.e., by firing a gun at close range, the law

presumes intent to kill and this inference is almost conclusive. Brown, 122 S.W.3d at 800-01;

Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996); Womble v. State, 618 S.W.2d 59, 64


                                                  3
(Tex.Crim.App. 1981); Watkins v. State, 333 S.W.3d 771, 781 (Tex.App.--Waco 2010, pet. ref’d).

If, however, the jury believed that Clark’s use of the gun could not have resulted in death or serious

bodily injury, it would have been impermissible for it to infer that Clark possessed the intent to kill

Adair when he fired his gun at close range. Brown, 122 S.W.3d at 800-01; Jones, 944 S.W.2d at

647; Flanagan, 675 S.W.2d at 741.

                                              Discussion

        When viewed in the light most favorable to the verdict, the circumstances surrounding

Adair’s death support a rational finding that Clark acted with the specific intent to kill Adair. As

set forth above, the jury was permitted to rely on Clark’s own words and acts to infer that he

intended to kill Adair. Clark testified that he “thought about going over [to Adair’s house] and

shooting [Adair]” because he was mad at Adair for stealing money from him. Clark also testified

that he told his wife that he was going to drive over to Adair’s house to kill him. According to

Clark, as he sat in his truck, he retrieved his gun, placed it on the seat, and stuck “a bunch” of shells

in his pocket. While driving to Adair’s house, Clark continued to harbor thoughts of killing

Adair, though he testified that when he was halfway to Adair’s house, he realized “I ain’t no

murderer” and resolved not to shoot Adair. As the exclusive judge of the credibility of the

witnesses, the jury could have chosen not to believe that Clark had second thoughts about killing

Adair. See Williams, 235 S.W.3d at 750.

        It was also permissible for the jury to rely upon the manner in which Clark used his gun to

infer that he possessed the intent to kill Adair. Clark testified that he shot Adair at close range

when Adair was “right on top of [him]” with a baseball bat. Clark admitted to pulling the trigger

while jerking the gun upward in Adair’s direction. While Clark testified that he did not know if


                                                   4
the bullet would strike Adair and was surprised to discover that it had, the jury was justified in

concluding that Clark’s use of the gun under these circumstances was a “manner of use” in which

death or serious bodily harm was a likely result.

         Clark contends that the jury could not have reasonably inferred that he possessed the intent

to kill Adair when he fired his gun at close range, because his testimony that he meant simply to

scare Adair “was the only direct evidence . . . as to [his intent]” and “was not contradicted.”3

Given the evidence presented, the jury was free to believe that Clark intended to kill Adair

notwithstanding his testimony to the contrary. See Margraves, 34 S.W.3d at 919; Henderson, 29

S.W.3d at 623. That the jury chose not to believe Clark was within its exclusive province, and in

conducting our legal sufficiency review, we are prohibited from re-evaluating the weight and

credibility of Clark’s testimony or substituting our judgment for that of the jury. See Williams,

235 S.W.3d at 750.

         We conclude that the evidence is legally sufficient to support the jury’s finding that Clark

possessed the specific intent to kill Adair. Accordingly, we overrule Clark’s single issue.

                                                 CONCLUSION

         The judgment of the trial court is affirmed.



November 14, 2012
                                                       CHRISTOPHER ANTCLIFF, Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.

(Do Not Publish)


3
  Clark’s assertion that he meant simply to scare Adair is contradicted by his own testimony. Clark testified that he
“was hoping the blast would scare [Adair] off.” However, minutes earlier, Clark testified that “[he] didn’t try to shoot
at [Adair] to scare him or slow him down or anything like that.”
                                                           5
