Graham v. State , 1997 Tex. App. LEXIS 3893 ( 1997 )

OPINION

STOVER, Justice.

Indicted by a Jefferson County grand jury for the offense of attempted murder, appellant Donald Graham pleaded not guilty. A jury convicted Graham and sentenced him to ten years’ confinement in the Institutional Division of the Texas Department of Criminal Justice. Appellant appeals from the judgment and sentence below.

On August 12, 1992, while responding to a “shots fired/fight call,” Officer Carona saw a white El Camino leaving “the area of the call” at a high rate of speed. The officer stopped the El Camino from which four or five people exited; he performed a Terry search and found a 410 shotgun shell (live round) in Donald Graham’s pocket. Officer Carona also discovered a 410 gauge shotgun behind the El Camino’s seat. Graham was initially stopped on Gulfway Drive in Port Arthur, four blocks from the fight/shooting incident on 15th Street to which Officer Ca-rona was responding. In the presence of Officers Carona and Blanton, appellant responded to the taunting crowd that had gathered, “Yeah, I shot them. I wish I would have killed them.” As revealed by later testimony, the reference in appellant’s comment was to persons involved in a fight on 15th Street between Roy Snowden, appellant’s brother, and a group that included the complainant, Michael Alexander. According to Officer LeBoeuf, two persons, Michael Alexander and Derrick Cross, “had been shot by shotgun pellets” in the 900 block of East 15th Street. After the officers arrested and performed the Terry search on appellant, they put him in the patrol car and took him to the scene of the altercation.

In his account of the incident, Roshane Taylor, a passenger in the El Camino, testified Graham became aware that his (Graham’s) brother, Roy Snowden, had been involved in a fight. In an angry state, appellant drove to Mobile and 15th Streets, stopped his vehicle, jumped out, got his shotgun, and fired two times in the air. According to Taylor, Graham then moved forward “[tjowards where the crowd was.” Taylor then testified as follows:

Q [State] Okay. So, he fired these two shots. Where did he fire them towards?

A [Taylor] Towards down the street, in the middle of the street.

Q And what was in the middle of the street?

A A crowd of people.

Q So, he fired into the middle of the street where a crowd of people were.

A The same guys who jumped on his brother.

Q And you’re referring to Derrick Cross, Michael Alexander, Paul Alpough. Are you referring to those individuals?

A Yes, sir, I am.

After shooting twice in the air and twice towards the group of men, appellant then shot and hit a car. Before appellant left the scene, he fired one more shot into the air.

Taylor further testified he told Graham to “shoot them” [the guys who “had gotten into it” with appellant’s brother], but he “never told him [Graham] to kill none óf them.” According to Taylor, Roy Snowden was being attacked by several guys who had sticks, bricks, and bats. Taylor stated it was at that point he told Graham to “shoot those guys,” because it was necessary to protect Graham’s brother. Taylor said he heard Graham say he (Graham) was going to kill one of the guys who beat up Snowden. As a result of his involvement in the incident, Roshane Taylor was convicted of attempted murder.

While testifying at trial, appellant related similar facts about his arrival on the scene, as well as the fact that he shot his gun in the air to scare the “crowd” (attackers) away. Since the attackers continued to throw objects at his brother, Graham declared he next shot toward them in an attempt to scare them into the house. According to Graham’s testimony, he did not think he could hit anyone because of the distance between their location and his; neither did he intend to hurt or kill anyone when he fired his weapon. As did Roshane Taylor, appellant testified Taylor told him to shoot at the crowd. Graham did precisely that. He stated he shot the gun in order to “stop everything” and to protect his brother.

On appeal, appellant urges three points of error. The first two points concern alleged error in the court’s charge, and point of error three contends the evidence is insufficient to support a finding that appellant had the intent to Idll Michael Alexander.

We first consider the insufficiency of evidence point. When an appellant challenges both the legal and factual sufficiency of the evidence, an appellate court must first determine whether the evidence adduced at trial was legally sufficient to support the verdict. Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App.1996). The standard for reviewing the legal sufficiency of the evidence is “whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979). Accord Geesa v. State, 820 S.W.2d 154, 156-57 (Tex.Crim.App.1991).

If an appellate court determines the evidence is legally sufficient to support the verdict under the Jackson standard, the court may then proceed to a factual sufficiency review. See Clewis, 922 S.W.2d at 128. In conducting a factual sufficiency review, this Court must view all the evidence impartially and “set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.” Stone v. State, 823 S.W.2d 375, 381 (Tex.App.—Austin 1992, pet. ref'd, untimely filed.)

In the instant case, appellant was charged with attempted murder. A person commits the offense of attempted murder if, with the specific intent to cause the death of an individual, the person does an act amounting to more than mere preparation, but fails to effect the death of an individual. See Fuller v. State, 716 S.W.2d 721, 723 (Tex.App.-Corpus Christi 1986, pet. ref'd); Tex. Pen.Code Ann. § 15.01(a) (Vernon 1974 & Vernon Supp.1992);¹ Tex. Pen.Code ANN. § 19.02(a)(1) (Vernon 1989). Appellant’s complaint is that the evidence was insufficient to support a finding of an intent to Mil.

A specific intent to Mil is a necessary element of attempted murder. See Flanagan v. State, 675 S.W.2d 734, 741 (Tex.Crim.App.1982) (opinion on motion for rehearing); see also Fuller, 716 S.W.2d at 723. The intent to Mil may be inferred from the use of a deadly weapon unless it would not be reasonable to infer that death or serious bodily injury could result from the use of the weapon. See Adanandus v. State, 866 S.W.2d 210, 215 (Tex.Crim.App.1993), cert. denied, 510 U.S. 1215, 114 S.Ct. 1338, 127 L.Ed.2d 686 (1994); see also Godsey v. State, 719 S.W.2d 578, 580-81 (Tex.Crim.App.1986). A shotgun is a deadly weapon unless in the manner of its use it is shown to be otherwise. See Tex. Pen.Code Ann. § 1.07(a)(11) (Vernon 1974); see also Ex parte Franklin, 757 S.W.2d 778, 782-83 (Tex.Crim.App.1988); Lerma v. State, 679 S.W.2d 488, 493 (Tex.Crim.App.1982).

The record reveals that appellant, after he saw a group beating on his brother with bats, went home to get his shotgun and then returned to the scene of the fight. Although appellant testified he initially fired the 410 gauge shotgun twice into the air, he also testified he then fired the gun at the crowd in order to protect his brother. Roshane Taylor testified appellant was mad when appellant told Taylor to come with him and when they got in appellant’s El Camino to drive over to 15th Street, the scene of the altercation. As noted previously, Taylor also testified Graham told him he (Graham) was going to Mil one of the guys that had beaten up his brother. Taylor further declared he told Graham to shoot them (the ones beating up on Graham’s brother), which Graham proceeded to do. Although appellant declared at trial he did not intend to Mil anyone when he fired the gun at the crowd, we conclude a rational trier of fact could have found specific intent to Mil based on the testimony of Taylor and appellant and on appellant’s deliberate pointing and firing of the gun at the crowd.

It is axiomatic that the.witnesses’ credibility and the weight to be given their testimony are within the jury’s province. The jury may accept or reject all or any part of a witness’s testimony. See Adelman v. State, 828 S.W.2d 418, 421-23 (Tex.Crim.App.1992). The jury may infer an intent to kill from any facts in evidence which, to their minds, prove the existence of an intent to kill. Viewing the evidence in the light most favorable to the prosecution, a rational jury could have found appellant’s actions evidenced his intent to kill and, moreover, found the essential elements of the crime beyond a reasonable doubt.

Having determined the evidence was legally sufficient, we then examine all of the evidence without the prism of “in the light most favorable to the prosecution,” and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Clewis, 922 S.W.2d at 135. Having reviewed the evidence as set out above, we conclude that the verdict is not factually insufficient under the Clems standard. Point of error three is overruled.

In point of error one, appellant complains the trial court erred in denying his requested jury instruction on the lesser included offense of reckless conduct. The indicted offense was attempted murder. The charge included instructions on the lesser included offenses of aggravated assault and assault, but not on reckless conduct. Whether a charge on a lesser included offense is required is determined by a two-pronged test. First, we must determine whether the offense, i.e., reckless conduct, constitutes a lesser included offense; second, the lesser included offense must be raised by the evidence at trial. In other words, there must be some evidence which would permit a rational jury to find that, if guilty, the defendant is guilty only of the lesser offense. See Schweinle v. State, 915 S.W.2d 17, 18 (Tex.Crim.App.1996); see also Rousseau v. State, 855 S.W.2d 666, 672 (Tex.Crim.App.), cert. denied., 510 U.S. 919, 114 S.Ct. 313, 126 L.Ed.2d 260 (1993). The first prong of the test is met; reckless conduct is a lesser included offense of attempted murder. See Godsey, 719 S.W.2d at 584; see Tex. Pen. Code Ann. ss 15.02 (Vernon 1974), 19.02, 22.05 (Vernon 1989).

In considering the second prong of the test, we have reviewed the record to ascertain if there is some evidence that would permit a rational jury to find the appellant is guilty only of reckless conduct. Anything more than a scintilla of evidence from any source is sufficient to entitle a defendant to submission of the issue. See Bignall v. State, 887 S.W.2d 21, 23 (Tex.Crim.App.1994). A lesser included offense may be raised if evidence either (a) affirmatively refutes or negates an element establishing the greater offense, or (b) the evidence on the issue is subject to two different interpretations, and one of the interpretations negates or rebuts an element of the greater offense. See Schweinle, 915 S.W.2d at 19 (citing Saunders v. State, 840 S.W.2d 390 (Tex.Crim.App.1992)). In making this determination, we must review all the evidence presented at trial. See Bignall, 887 S.W.2d at 23. As explained in Bignall, a jury, as trier of fact, is entitled to believe all or part of the conflicting testimony proffered and introduced by either side. See Bignall, 887 S.W.2d at 24 (citing Bell v. State, 693 S.W.2d 434, 443 (Tex.Crim.App.1985)). Furthermore, a jury can selectively believe all or part of the evidence admitted at trial. Id. However, it is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense. There must be some evidence directly germane to a lesser included offense for the factfinder to consider before an instruction on a lesser included offense is warranted. Id

A person commits the offense of reckless conduct if he recklessly engages in conduct that places another in imminent danger of serious bodily injury. The definition of “recklessly” entails an actor being aware of, but consciously disregarding, a substantial and unjustifiable risk that a result will occur. The applicable statute on reckless conduct is as follows:

(a) A person commits an offense if he recklessly engages in conduct that places another in imminent danger of serious bodily injury.

(b) Recklessness and danger are presumed if the actor knowingly pointed a firearm at or in the direction of another whether or not the actor believed the firearm to be loaded.

(c) An offense under this section is a Class B misdemeanor.

Tex. Pen.Code Ann. § 22.05 (Vernon 1989).

In order for appellant to be convicted of attempted murder, the State must prove a higher mental culpable state than that required for reckless conduct; the State must prove he intentionally or knowingly intended to cause the death of the complainant. See Gentry v. State, 881 S.W.2d 35, 40 (Tex.App.—Dallas 1994, pet. ref'd); Tex. Pen. Code Ann. §§ 15.01(a), 19.02(a)(1).

There is no question that Graham knowingly pointed a firearm at or in the direction of another. He admits he did so, and others testified likewise. Therefore, under the statute, recklessness and danger are presumed. The issue is whether there is some evidence, more than a scintilla, that appellant was guilty only of reckless conduct.

We believe not. Appellant’s strategy at trial was to justify his conduct by relying on his testimony that he fired at the group because he had to protect his brother. However, the consequences of appellant’s intentional act of shooting at the “crowd,” which resulted in the wounding of Alexander, went well beyond the mere act of placing another in imminent danger, of serious bodily injury. See Johnson v. State, 915 S.W.2d 653, 659 (Tex.App.—Houston [14th Dist.] 1996, pet. ref'd). Once Graham discharged his gun and shot Alexander, the complainant was no longer merely in imminent danger of serious bodily injury. Alexander, in fact, sustained the wound which gave rise to indictment for attempted murder.

Appellant never contended his discharge of the gun was accidental or merely reckless. He admitted he deliberately pointed and fired the gun at the group. See Gilmore v. State, 871 S.W.2d 848, 852 (Tex.App.—Houston [14th Dist.] 1994, no pet.)(Since defendant aimed at the complainant when defendant fired the gun, the act was intentional, not reckless, and no instruction on reckless conduct was necessary.) Moreover, appellant was aware the gun was a deadly weapon, since he testified the 410 shotgun can kill. As noted previously in this opinion, a specific intent to kill may be inferred from Graham’s use of a deadly weapon unless in the manner of its use it is reasonably apparent that death or serious bodily injury would not result. See Godsey, 719 S.W.2d at 580-81; see also Burnett v. State, 865 S.W.2d 223, 230-31 (Tex.App.—San Antonio 1993, pet. ref'd). There is no evidence in the record to rebut the inference.

Furthermore, appellant’s testimony is not descriptive of thought or conduct that would allow a charge on reckless conduct. In response to defense counsel’s question as to whether he thought he could hit anyone because of the distance he was away from the crowd, he replied: “No, sir, that’s why I stayed as far back as I could.” If he had wanted to hurt someone, appellant stated, “I could have ran upon them” and fired. His testimony does not support a reckless mental state, as defined by Tex. Pen.Code Ann. § 6.03(c) (Vernon 1994):

(c) A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint, (emphasis added)

To fall within the confines of the culpable mental state of recklessness, appellant must produce some evidence that he was aware of the risk of killing or hitting someone. Since his testimony is to the contrary—namely that there was no risk of hitting anyone, appellant’s conduct could not have fallen within the definition of “reckless.”

We conclude appellant’s statement that he did not intend to kill cannot be plucked out of the record and examined in a vacuum. See Burnett, 865 S.W.2d at 230. Appellant’s actions progressed step by step from the initial firing into the air to the deliberate firing at the “crowd.” Even based on Graham’s testimony alone, the evidence established he intentionally fired into the crowd ostensibly to protect his brother. We find that appellant’s after-the-fact claim of no intent to kill raises an issue as to his culpable mental state only if it is taken alone and out of context. There is no affirmative evidence raising the issue of reckless conduct; nor is the evidence subject to differing interpretations. Indeed, appellant’s intentional conduct went well beyond that of the reckless conduct of Section 22.05.² The evidence does not support a rational inference by a jury that appellant was guilty only of reckless conduct. Consequently, appellant is not entitled to a jury instruction on reckless conduct. Point of error one is overruled.

In point of error two appellant contends the trial court erred in denying his requested instruction of recklessness to be included in the definition of the lesser included offense of aggravated assault. The purpose of including a definition of a word or term in the charge, of course, is to assist the jury in making its finding during the guilt-innocence phase and in determining the penalty, if any to be assessed. See Levy v. State, 860 S.W.2d 211, 213 (Tex.App.—Texarkana 1993, pet. ref'd). The charge included definitions of the culpable mental states of “intentionally” and “knowingly,” but not of “recklessness.” We conclude the trial court did not err in its refusal to include the definition of “recklessness” in the context for which appellant requested it.

As noted in our discussion of appellant’s point of error one, the trial court did not err in refusing appellant’s requested charge on the lesser included offense of reckless conduct, because that particular theory was not raised by the evidence and did not meet the test in Rousseau. The court did include instructions on the lesser included offenses of aggravated assault and assault. However, the fact that a defendant is entitled to a charge on a lesser offense, in this instance, aggravated assault, does not necessarily grant entitlement to a submission of all the various theories by which that lesser offense may be committed. See Sanford v. State, 634 S.W.2d 850, 852-53 (Tex.Crim.App.1982). “If the evidence does not raise a reckless assault under Sec. 22.01, it was not error to charge only on an intentional and knowing assault under Sec. 22.01.” Id. Consistent with our discussion in point of error one, we note that appellant’s own testimony, not to mention the testimony of all the other witnesses, fails to raise an issue on whether he recklessly caused bodily injury under Sec. 22.01, as that culpable mental state is defined in Tex. Pen.Code ANN. § 6.03(c) (Vernon 1974).

Even had the trial court erred in its refusal to include the requested definition in its charge, it was harmless. See Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1984); see Tex.Code Crim. Proc. Ann. art. 36.19 (Vernon 1981). The Court of Criminal Appeals has held that in the context of a defect in a lesser included offense instruction, conviction for the greater inclusive offense nullifies any possible harm that might be derived from the defective lesser included offense instruction. See Saunders v. State, 913 S.W.2d 564, 569-70 (Tex.Crim.App.1995). Point of error two is overruled.

The judgment and sentence of the trial court are affirmed.

AFFIRMED.

1 . All citations to the Texas Penal Code are to statutes in effect on the date of the offense, August 12, 1992.

2 . One court has held that Tex. Pen.Code Ann. § 22.05 covers that intent which falls short of harming another: that is, although no physical harm results, the acts are highly dangerous. See Mares v. State, 903 S.W.2d 419, 422 (Tex.App.—Eastland 1995, pet. ref'd). Thus, if injury results from the actor’s conduct, the act constitutes more than reckless conduct.