                                                                         PD-0486-15
                                                        COURT OF CRIMINAL APPEALS
                     PD-0486-15                                         AUSTIN, TEXAS
                                                        Transmitted 5/4/2015 8:51:09 AM
                                                          Accepted 5/4/2015 3:24:30 PM
               NO. ____________________                                  ABEL ACOSTA
           IN THE COURT OF CRIMINAL APPEALS                                      CLERK




KEVIN ANTONIO OWENS                         PETITWNER

VS.

THE STATE OF TEXAS                           RESPONDENT


       On appeal from cause number 14-14-00109-CR in the
      Fourteenth Court of Appeals and cause number 1316170
        in the 248th District Court of Harris County, Texas

          PETITION FOR DISCRETIONARY REVIEW




                                             KEN GOODE
                                             P.O.Box 590947
                                             Houston, Texas 77259
                                             (409) 779-3631
                                             State Bar # 08143200
                                             Goodedkc@msn.com


           May 4, 2015
                                                                       i




                          IDENTIFICATION OF THE PARTIES

Randy Allen Segura                            Petitioner
1OCJ-ID
Huntsville, Texas

Skip Cornelius                                Trial Defense Attorney
2028 Buffalo Terrace,
Houston, Texas

Justin Wood                                   Trial Prosecutor
1201 Franklin
Houston, Texas

Hon. Katherine Cabaniss                        Trial Judge
1201 Franklin
Houston, Texas

Ken Goode                                      Appellate Attorney
P.O. Box 590947
Houston, Texas

Devon Anderson                                 Appellate D.A.
1201 Franklin
Houston, Texas
             STATEMENT REGARDING ORAL ARGUMENT

Petitioner waives oral argument.
                                                 TABLE OF CONTENTS

Statement of the Case.............................................................................                      1

Statement of Procedural History..............................................................                           1

Ground for Review

                WHETHER THE COURT OF APPEALS ERRED BY NOT EXAMINING
                THE TOTALITY OF THE EVIDENCE IN ITS REVIEW OF THE LEGAL
                             SUFFICIENCY OF THE EVIDENCE

Argument......................................................................................................              2

Prayer for Relief..............................................................................................             3

Certificate of Word Count Compliance                             ....................................................       3

Certificate of Service                                                                                                      4
                                     INDEX OF AUTHORITIES

CASES

Conner v. State,
  67 S.w.3d 192 (Tex. Crim. App. 2001) .......................................... .   2

Guzman v. State,
  955 S.W.2d 85 (Tex. Crim. App. 1997) ...................................... .       3

Herrin v. State,
  125 S.w.3d 436 (Tex. Crim. App. 2002) .......................................       2
TO THE HONORABLE COURT OF CRIMINAL APPEALS:

     Comes Now Kevin Antonio Owens, petitioner, and files this petition for

discretionary review and in support shows as follows:

                            STATEMENT OF THE CASE


     Petitioner was charged by indictment with the offense of capital murder.

Petitioner pleaded not guilty, and proceeded to jury trial. Petitioner was found

guilty as charged and punishment was set by the court at life without parole.

                     STATEMENT OF PROCEDURAL HISTORY


     In an unpublished opinion dated April 28, 2015 the Fourteenth Court of

Appeals affirmed the conviction and sentence.

     No motion for rehearing was filed.
                              GROUND FOR REVIEW




          WHETHER THE COURT OF APPEALS ERRED BY NOT EXAMINING
          THE TOTALITY OF THE EVIDENCE IN ITS REVIEW OF THE LEGAL
          SUFFICIENCY OF THE EVIDENCE.



                                   ARGUMENT

          On appeal petitioner argued that the evidence was insufficient to prove

that he formed the intent to rob the complainant before or at the time of the

murder.

         Although the evidence was conflicting on the issue, the lower court failed

to discuss evidence in the record that suggested that petitioner's intent to rob the

complainant was an afterthought.

      For a murder involving a theft or attempted theft to constitute a capital

murder committed in the course of a robbery, the intent to rob must be

formulated before or at the time of the murder. Conner v. State, 67 S.W.3d 192

(Tex. Crim. App. 2001).

     Proof that the robbery or attempted robbery was committed as an

afterthought is not sufficient. Herrin v. State, 125 S.W.3d 436 (Tex. Crim. App.

2002).




                                         2
      An appellate court must consider the totality of evidence in the record.

Guzman v. State, 955 5.W.2d 85 (Tex. Crim. App. 1997).

     The lower court's opinion is at odds with precedent from this court, thus

warranting review.

                               PRAYER FOR RELIEF


               WHEREFORE, petitioner prays that his ground for review be

         granted and that this Court reverse the decision of the lower court.




                                            Respectfully submitted,


                                             /5/_ _ _ _ _ _ __
                                             KEN GOODE
                                             P.O. Box 590947
                                             Houston, Texas 77259
                                             (409) 779-3631; 5BN 08143200
                                             Goodedkc@msn.com


                  CERTIFICATE OF WORD COUNT COMPLIANCE


     Relying on the word count function in the word processing software used to

produce this document I certify that the number of words used in this petition for

discretionary review is 700.

                                             /5/_ _ _ _ _ _ _ __
                                             KEN GOODE


                                        3
                              CERTIFICATE OF SERVICE

        I certify that a true and correct copy of the foregoing was delivered to the

State and the State Prosecuting Attorney this 1st day of May 2015 by first class

mail.




                                                  /5/_ _ _ _ _ _ __
                                                  KEN GOODE




                                          4
Affirmed and Memorandum Opinion filed April 28, 2015.




                                       In The

                    lJ1our!eeut4 <!tOUr! of Appeals

                              NO. 14-14-00109-CR


                    KEVIN ANTONIO OWENS, Appellant

                                        V.

                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 248th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1316170

                 MEMORANDUM                      OPINION

      A jury convicted appellant Kevin Antonio Owens of capital murder
committed in the course of a robbery, and he was sentenced to life without parole.
See Tex. Penal Code Ann. §§ 12.31(a)(2), 19.03. In two issues, appellant contends
the evidence is legally insufficient and the trial court erred by admitting evidence
of an extraneous offense. We affIrm.
                      I.     SUFFICIENCY OF THE EVIDENCE

       In his fIrst issue, appellant contends the evidence is legally insufficient to
support the jury's verdict because the evidence does not establish beyond a
reasonable doubt that appellant formed the intent to rob the complainant before or
at the time ofthe murder.

       "In determining whether the evidence is legally sufficient to support a
conviction, a reviewing court must consider all of the evidence in the light most
favorable to the verdict and determine whether, based on that evidence and
reasonable inferences therefrom, a rational fact fInder could have found the
essential elements of the crime beyond a reasonable doubt." Whatley v. State, 445
S.W.3d 159, 166 (Tex. Crim. App. 2014) (quotation omitted); see also Jackson v.
Virginia, 443 U.S. 307, 318-19 (1979). In reviewing historical facts that support
conflicting inferences, we must presume that the jury resolved any such conflicts in
the State's favor, and we must defer to that resolution. Whatley, 445 S.W.3d at
166.   "[A]n inference is a conclusion reached by considering other facts and
deducing a logical consequence from them." Id (alteration in original) (quotation
omitted).

       Appellant was charged with capital murder by intentionally committing a
murder in the course of committing or attempting to commit a robbery. See Tex.
Penal Code Ann. § 19.03(a)(2). The State had the burden to prove beyond a
reasonable doubt that appellant formed the intent to rob before or at the time of the
murder. See Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). "Proof
of robbery committed as an afterthought and unrelated to a murder is not sufficient
evidence of capital murder." Id However, evidence is legally sufficient to prove
the intent to rob if "the jury could rationally conclude beyond a reasonable doubt
that the defendant formed the intent to obtain or maintain control of the victim's

                                          2
    property either before or during the commission of the murder." Jd.; see also Tex.
    Penal Code Ann. § 29.02 (robbery requires "intent to obtain or maintain control of
    the property"). A jury may infer the defendant's intent to rob based on the conduct
    and words of the defendant. See Conner, 67 S.W.3d at 197; McGee v. State, 774
    S.W.3d 229, 234 (Tex. Crim. App. 1989); see also Guevara v. State, 152 S.W.3d
    45, 50 (Tex. Crim. App. 2004) ("Intent may be inferred from circumstantial
    evidence such as acts, words, and the conduct ofthe appellant.").

          Here, the jury heard evidence that the decedent, Fusham Zhang, owned
    several condominium units and rented them out to tenants. In the past, appellant
    had been one of Zhang's tenants, but appellant was living with his girlfriend across
    the hall from Zhang around the date of the murder. Appellant's girlfriend testified
    that appellant believed Zhang owed him money. She testified that appellant ''was
    upset and he wanted his money back."

          On the day of the murder, Zhang was with two new tenants in their
    apartment when he poured water through the screened-in patio onto some bushes.
    Some of the water splashed appellant, and appellant got upset. Appellant started
    yelling at Zhang about the water, but appellant then started saying that Zhang owed
    appellant money. Appellant pulled a large butcher knife from his pocket, cut
    through the screened-in patio, and pulled Zhang outside. Appellant said he would
    kill Zhang. Multiple witnesses testified that appellant was arguing with Zhang
    about money. One of the tenants testified that appellant told Zhang that Zhang
    owed appellant $2,500; the other tenant testified it was "around like 2,000, in that
    range."

          Two other witnesses were walking down the sidewalk when the
    confrontation began.   One of them testified that she saw Zhang and appellant
    argumg.    Appellant was holding Zhang and asked, "Where's the money?"

                                             3




•                                                                                          •
'.

Appellant was "ruffling [Zhang's] pockets trying to go in his pocket." It was
"clear" to this witness that appellant ''was trying to rob him." She saw appellant
with the knife. Zhang was pleading for his life. Multiple witnesses heard Zhang
 saying that he did not have any money. Then, appellant stabbed Zhang in the neck,
 killing him. After threatening to kill several witnesses, appellant fled. He was
 apprehended later that day when he returned to the condominium complex.

       In Hen'in v. State, the Court of Criminal Appeals held that evidence of the
 defendant's belief that the decedent owed him money, coupled only with the fact
                                  .
 that the decedent's wallet was missing, was insufficient to prove an intent to rob.
 See 125 S.W.3d 436, 442--43 (Tex. Crim. App. 2002). But here, there is ample
 evidence that appellant intended to rob Zhang. Appellant was demanding money
 from Zhang and "ruffling" through Zhang's pockets immediately before the
 murder. This evidence is sufficient for a rational jury to find beyond a reasonable
 doubt that appellant formed the requisite intent to rob Zhang before or during the
 murder.    See Conner, 67 S.W.3d at 198 (evidence sufficient to prove the
 defendant's attempt to rob when a witness heard a man say "give me all your
 money" and saw the defendant shoot the decedent, although there was no evidence
 that money was taken from the decedent's cash register); see also McGee, 774
 S.W.2d at 234 (suggesting that the "talisman of an intent to steal" would have been
 the appellant demanding money from the decedent before attacking him).

       Appellant's first issue is overruled.

                           II.    ADMISSION OF EVIDENCE

       In his second issue, appellant contends that the trial court erred by permitting
 Houston Police Department Officer lola Simpson to testify about appellant's
 resisting arrest and assault on her after the murder. Citing Rule 403 of the Texas


                                           4
Rules of Evidence, appellant argues that the probative value of the testimony was
substantially outweighed by its prejudicial effect. See Tex. R. Evid. 403. 1

       We review a trial court's decision to admit evidence for an abuse of
discretion. See Moses v. State, 105 S.W.3d 622,627 (Tex. Crim. App. 2003). We
must affmn so long as ''the trial court's ruling was within the zone of reasonable
disagreement." Id. We give deference to a trial court's decision under Rule 403
that "the probative value of evidence is not outweighed by the danger of unfair
prejudice." Id. Under the rule, a trial court must balance two factors against four
others:

       (1)    the inherent probative force of the proffered item of evidence;
              and
       (2)    the proponent's need for that evidence.
                                            versus
       (3)    any tendency of the evidence to suggest a decision on an
              improper basis;
       (4)    any tendency of the evidence to confuse or distract the jury
              from the main issues;
       (5)    any tendency of the evidence to be given undue weight by a
              jury that has not been equipped to evaluate the probative force
              of the evidence; and
       (6)    the likelihood that presentation of the evidence will consume an
              inordinate amount of time or merely repeat evidence already
              admitted.

Gigliobianco v. State, 201 S.W.3d 637,641--42 (Tex. Crim. App. 2006). The rule
presumes that the probative value of relevant evidence exceeds any danger of
unfair prejudice, and a trial court should exclude evidence "only when there is a



       1 At the time of appellant's trial, Rule 403 stated: "Although relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless
presentation of cumulative evidence." Tex. R. Evid. 403 (1998, amended 2015).

                                               5
'clear disparity between the degree of prejudice of the offered evidence and its
probative value.'" Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009).

        Officer Simpson testified that she received a dispatch call to respond to a
stabbing. She saw appellant near the crime scene and attempted to detain him as a
possible suspect. Appellant was compliant at first, but when she attempted to cuff
him for officer safety, he spun aroillld with a large butcher knife and told her he
was not going to jail. She identified State's Exhibit 35 as the knife? Simpson
grabbed appellant's arm and struggled with him. She pleaded, "Please don't stab
me with this knife." He said, "Just let me go," and she responded, "I can't do
that." He tried to get her gun, so she tried to do a "side arm, hip shoot," but he
pushed her arm and she missed. During the struggle, the magazine clip came out
of the gun, and she thought ''this guy is trying to kill me for real." He pushed her
and then fled as she fell backwards .. She :f"Ired at him again but missed, and she fell
to the ground, injuring her hip, elbow, and arm. Appellant escaped custody at that
time.

        Turning to the first factor identified above, Simpson's testimony was highly
probative to establish guilt.       The testimony showed appellant's spatial and
temporal proximity to the murder scene, his flight from apprehension by police,
and his possession of the murder weapon. See, e.g., Palomo v. State, 352 S.W.3d
87, 90-91 (Tex. App.-Houston [14th Dist.] 2011, pet. ref'd) (circumstantial
evidence of guilt includes proximity to the murder scene near the time of the
murder, flight from police, and possession of the murder weapon). In particular,
the evidence of the aggravated assault upon Simpson during appellant's flight
shows the lengths to which he was willing to go to escape apprehension for the


      2 Other witnesses identified State's Exhibit 35 as the knife appellant used to murder
Zhang. It was found in an apartment complex near the murder scene.

                                            6
murder, thus evidencing a consciousness of guilt. Under the second factor, we
note that the State's case was strong, and the State did not necessarily need
Simpson's testimony: four eyewitnesses to the murder identified appellant in open
court, and other extraneous bad-act evidence was adduced (such as appellant's
kidnaping and threatening the lives of the the two tenants who had been present
with Zhang during the murder).

        Under the remaining four factors, we note that extraneous offense evidence
IS   inherently prejudicial and generally creates a risk that jurors will make a
decision on an improper basis. See, e.g., Abdnor v. State, 871 S.W.2d 726, 738
(Tex. Crim. App. 1994); Plante v. State, 692 S.W.2d 487, 494 (Tex. Crim. App.
1985). However, here the evidence did not have a strong tendency to confuse or
distract the jury, particularly in light of the fact that the evidence did not consume
an inordinate amount oftime or merely repeat evidence already admitted. Simpson
was one of fifteen witnesses, and her testimony was relatively brief. The jury was
properly instructed in the charge on the use of extraneous offense evidence, so the
jury was equipped to evaluate the evidence.

        On balance, we cannot conclude that the trial court abused its discretion by
admitting this evidence. There is not a clear disparity favoring exclusion.

        Appellant's second issue is overruled.




                                           7
                               ill.   CONCLUSION

     Having overruled both of appellant's lssues, we affirm the trial court's
judgment


                                      /s/       Sharon McCally
                                                Justice

Panel consists of Chief Justice Frost and Justices Boyce and McCally.
Do Not Publish-Tex. R. App. P. 47.2(b).




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