Jordan Quentin Wilson v. State ( 2016 )

Opinion issued October 11, 2016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-15-00799-CR
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JORDAN QUENTIN WILSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 177th District Court
Harris County, Texas
Trial Court Case No. 1408418
MEMORANDUM OPINION
Jordan Wilson shot and killed Toyurean Young but argued at trial that the
shooting was unintentional. A jury convicted him of murder and sentenced him to
50 years’ confinement.1 He argues that (1) legally insufficient evidence exists to
1
See TEX. PENAL CODE ANN. § 19.02.
support his murder conviction and (2) the trial court erred by denying his request
for a jury question on the lesser-included offense of manslaughter. We affirm.
Background
Wilson and Young had been members of the same street gang and the same
rap music “clique,” which Young ran. Wilson left Young’s clique and began
making rap videos under another “clique” name. According to a mutual friend,
after Wilson left Young’s group, the two had an argument through social media—
specifically Twitter—over whose rap was better. During this argument, Wilson and
Young talked about fighting each other and videotaping the fight.
Shortly after their online exchange, Wilson and Young saw each other in a
McDonalds parking lot and agreed to walk to a nearby apartment complex to fight.
They “set up the fight” and began punching each other. Ten minutes into the
fistfight, Young yelled that Wilson had a gun. Young stopped fighting and walked
back to the McDonalds. Wilson followed.
Back at the McDonalds, Young announced that Wilson was “getting in [his]
pockets” as if he “want[s] to do something.” The two exchanged words, then
Young shouted a profane disparagement of Wilson’s rap group. At that moment,
the two men were standing five to seven feet from each another. Within “four or
five” seconds, Wilson shot at Young. Young was shot once in his lower back and a
second time in his arm. He died the next day from his injuries.
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Wilson’s trial theory was not that someone else shot Young. It was that he
shot him but he did so only as “an afterthought” and without intent to kill.
According to Wilson, because he did not have the intent to kill Young, the crime
was no more than manslaughter.
Several witnesses testified that they saw the fistfight, but no one saw the
actual shooting. Joshua Agboso, who knew both Wilson and Young, testified that
he was there, saw Wilson and Young fight, heard Young yell disparagements at
Wilson, and, when his back was turned to the two men, heard gunshots. He
testified that he did not see Wilson shoot Young and did not know what Wilson
was thinking or intending when he did it. On cross-examination, Wilson’s attorney
impeached Agboso with an earlier statement he had given to police, telling them,
“I know that he didn’t mean to kill him,” and, “[Wilson] probably just shot [at
Young] to scare him.”
Based on Agboso’s earlier statements to police investigators, Wilson
requested a jury question on the lesser-included offense of manslaughter. The trial
court denied the request, charging the jury only on the offense of murder. The jury
found Wilson guilty of murder and assessed punishment of 50 years’ confinement.
Wilson appeals his conviction.
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Legally Sufficient Evidence
Wilson argues that the evidence is legally insufficient to support his
conviction for murder because it conclusively establishes a reasonable doubt that
he intentionally or knowingly caused Young’s death.
A. Standard of review
We review sufficiency of the evidence using the standard enunciated in
Jackson v. Virginia, 443 U.S. 307, 317−20, 99 S. Ct. 2781, 2788–89 (1979). See
Brooks v. State, 323 S.W.3d 893, 898–912 (Tex. Crim. App. 2010). Under that
standard, “the relevant question 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.” See Jackson, 443 U.S.
at 319, 99 S. Ct. at 2789; Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App.
2009). We consider all reasonable inferences that may be drawn from the evidence
in making our determination, including all direct and circumstantial evidence.
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
Evidence is insufficient in four circumstances: (1) no evidence exists that is
probative of an element of the offense in the record; (2) only a “modicum” of
evidence exists that is probative of an element of the offense; (3) the evidence
conclusively establishes a reasonable doubt; and (4) the alleged acts do not
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establish the criminal offense charged. See Jackson, 443 U.S. at 314–15, 320;
Britain v. State, 412 S.W.3d 518, 520 (Tex. Crim. App. 2013).
The jury has the exclusive role of evaluating the facts, the credibility of the
witnesses, and the weight a witness’s testimony should be given. Penagraph v.
State, 623 S.W.2d 341, 343 (Tex. Crim. App. [Panel Op.] 1981); Jaggers v. State,
125 S.W.3d 661, 672 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). The jury
may choose to believe all, some, or none of a witness’s testimony. See Davis v.
State, 177 S.W.3d 355, 359 (Tex. App.—Houston [1st Dist.] 2005, no pet.). And
the jury alone must reconcile any conflicts in the evidence. Wyatt v. State, 23
S.W.3d 18, 30 (Tex. Crim. App. 2000).
Under the Jackson standard, we defer to the factfinder “to resolve conflicts
in the testimony, to weigh the evidence, and to draw reasonable inferences from
basic facts to ultimate facts.” Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton,
235 S.W.3d at 778. If there are conflicts in the evidence, we must presume the
factfinder resolved the conflicts in favor of the verdict and defer to that
determination, as long as it is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at
2793. If the evidence is insufficient, we must reverse and enter an order of
acquittal. See Tibbs v. Florida, 457 U.S. 31, 41, 102 S. Ct. 2211, 2218 (1982).
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B. Evidence is legally sufficient
Wilson contends that the evidence is insufficient to support his conviction
for murder. First, he argues that the State presented no evidence that he had a
specific intent to kill Young. But “the specific intent to kill may be inferred from
the use of a deadly weapon.” Cavazos v. State, 382 S.W.3d 777, 384–85 (Tex.
Crim. App. 2012) (overruling legal-sufficiency challenge based on evidence that
defendant “pull[ed] out a gun, point[ed] it at someone, [and] pull[ed] the trigger
twice”). The jury received evidence that Wilson stood five to seven feet from
Young, fired two shots at Young from close range, and struck Young from behind
in his upper body with both shots, causing his death. This evidence supports the
jury’s implicit finding that Wilson acted intentionally or knowingly. Id. This is
legally sufficient evidence to support his conviction for murder.
Second, Wilson argues that there was contradictory evidence—namely that
Agboso told the police that Wilson did not intend to kill Young and probably just
shot at him to scare him. In a legal-sufficiency review, we do not weigh
contradictory evidence or evaluate witness credibility. Penagraph, 623 S.W.2d at
343. We must presume that the jury resolved any conflict in the evidence in favor
of its verdict. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Penagraph, 623
S.W.2d at 343 (“A jury is entitled to accept one version of the facts and reject
another or reject any of a witness’[s] testimony.”). Contradictory evidence will not
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diminish the legal sufficiency of the evidence that supports the verdict. See
Penagraph, 623 S.W.2d at 343.
We overrule Wilson’s legal-sufficiency issue.
Refused Jury Question on Manslaughter
Wilson next argues that the trial court erred by denying his request for a jury
question on the lesser-included offense of manslaughter. He argues that Agboso’s
testimony was “some evidence” from which a rational jury could acquit Wilson of
the greater offense of murder and convict him of the lesser-included offense of
manslaughter. The State responds that Agboso’s testimony was “mere
speculation,” “does not support a finding of recklessness,” and “does not rise to the
level that would convince a rational jury to find that if [Wilson] was guilty, he was
guilty only of the lesser-included offense of manslaughter.”
A. Applicable law
To determine whether a defendant is entitled to a jury charge on a lesser-
included offense, we follow a two-step process: (1) “the lesser included offense
must be included within the proof necessary to establish the offense charged” and
(2) “some evidence must exist in the record that would permit a jury rationally to
find that if the defendant is guilty, he is guilty only of the lesser offense.” Rousseau
v. State, 855 S.W.2d 666, 672–73 (Tex. Crim. App. 1993) (emphasis removed).
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The first prong is satisfied because manslaughter is a lesser-included offense of
murder. Cavazos, 382 S.W.3d at 384.
To meet the second prong, “[i]t is not enough that the jury may disbelieve
crucial evidence pertaining to the greater offense. Rather, 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.” Skinner
v. State, 956 S.W.2d 532, 543 (Tex. Crim. App. 1997). While “it does not matter
whether the evidence is strong, weak, unimpeached or contradicted,” the evidence
must be affirmative evidence directly relevant to the lesser offense and support a
rational conclusion that the defendant is guilty of only the lesser offense. Bignall v.
State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994).
The “only difference” between murder and manslaughter is the mental state
required for the offenses. Cavazos, 382 S.W.3d at 384. The mental state required
for a murder conviction is “intentionally” or “knowingly,” while the mental state
for manslaughter is “recklessly.” Compare TEX. PENAL CODE ANN. § 19.02
(murder) with § 19.04 (manslaughter). A defendant acts recklessly if he “is aware
of but consciously disregards a substantial and unjustifiable risk that . . . the result
will occur . . . [such that the actor’s disregard of the risk] 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.” Id. § 6.03(c).
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Thus, to satisfy the second prong to be entitled to a lesser-included-offense
question on manslaughter, there must be “some affirmative evidence that [the
defendant] did not intend to cause serious bodily injury when he shot the victim”
and “some affirmative evidence from which a rational juror could infer that [the
defendant] was aware of but consciously disregarded a substantial and unjustifiable
risk that death would occur as a result of his conduct,” in other words, that he acted
recklessly. Cavazos, 382 S.W.3d at 385. “Meeting this threshold requires more
than mere speculation—it requires affirmative evidence that both raises the lesser-
included offense and rebuts or negates an element of the greater offense.” Id.
B. Agboso’s assertions were speculation, not affirmative evidence
When asked whether Wilson intended to kill Young, Agboso testified, “I
don’t know. . . . I didn’t know what he was thinking.” Wilson established on cross-
examination that Agboso previously told the investigating officers, “I know that he
didn’t mean to kill him,” and, “[Wilson] probably just shot [at Young] to scare
him.” But these statements cannot be plucked from the record, isolated from the
rest of the testimony and other evidence, and viewed in a vacuum to support
submission of a lesser offense. See Godsey v. State, 719 S.W.2d 578, 584 (Tex.
Crim. App. 1986); Shannon v. State, No. 08-13-00320-CR, 2015 WL 6394922,
at *9 (Tex. App.—El Paso Oct. 21, 2015, no pet.); Arnold v. State, 234 S.W.3d
664, 671–72 (Tex. App.—Houston [14th Dist.] 2007, no pet.). We must review the
9
entire record to determine whether a rational jury could have concluded that
Wilson did not act intentionally. See Shannon, 2015 WL 6394922, at *9 (citing
Mathis v. State, 67 S.W.3d 918, 926 (Tex. Crim. App. 2002)).
Agboso’s other testimony establishes that his statements were no more than
speculation: Agboso never saw Wilson’s gun, never saw Wilson use the gun, and
provided no basis for his theory that the shooting was only to scare Young. Agboso
testified that he only knew about the gun because Young mentioned it as he ended
the fistfight at the apartments. Agboso did not see Wilson pull out his gun just
before he shot Young. Nor did he see Wilson actually shoot Young—either time.
Agboso explained that his back was turned to both men when he heard the first
gunshot. After hearing that gunshot, he immediately ran into the McDonalds
because he was afraid of being shot by Wilson—whom he knew to be the only
person with a weapon. He did not see Wilson fire the second shot. After hearing
both shots, he hid from Wilson in the McDonalds.
Agboso’s actions during the shooting were consistent with his statements
that he feared being shot by Wilson; they do not support a theory that the shooting
was accidental or without intent to kill. There is no evidence that Wilson told
Agboso after the shooting it was an accident or that he intended something other
than to shoot Young when he pulled out his gun and fired it twice in Young’s
direction while standing only a body-length away. There is no evidence of why
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Agboso once made the statements to the police that it was only to scare Young and
not intended to kill him. Nor is there any evidence to support a conclusion that
Agboso had any factual basis for his assertions when he made them. All of
Agboso’s other testimony indicates that he viewed the shooting as a threat, not as
an accident.
Because Agboso did not witness Wilson’s efforts to shoot Young or receive
any indication from Wilson of what his intentions were when he decided to elevate
the conflict from a consensual fistfight to a shooting, Agboso’s assertions were
nothing more than speculation—a point he acknowledged when he later testified,
“I didn’t know what he was thinking.” See Gross v. State, 380 S.W.3d 181, 188
(Tex. Crim. App. 2012) (defining “speculation” as “the mere theorizing or
guessing about the possible meaning of the facts and evidence” and, by contrast,
defining “inference” as “a conclusion reached by considering . . . facts and
deducing a logical consequence from them”); cf. Cavazos, 382 S.W.3d at 384
(stating that “specific intent to kill may be inferred from the use of a deadly
weapon”).
Speculation is not affirmative evidence that will support submission of a
lesser-included-offense question. Cavazos, 382 S.W.3d at 385 (“Meeting [the
lesser-included-offense] threshold requires more than mere speculation—it
11
requires affirmative evidence . . . .”). Agboso’s statements are insufficient to
warrant a jury question on manslaughter.
C. No other affirmative evidence of recklessness
Wilson points to no other affirmative evidence that he acted only recklessly.
There was no evidence that he inadvertently drew his gun or squeezed the trigger.
There was no evidence about the direction he aimed his weapon that might have
suggested that he intended to miss Young with his shots. In short, there was no
affirmative evidence supporting the conclusion that he was guilty of manslaughter
and not murder. The evidence, instead, was that Wilson and Young fought, Young
disparaged Wilson’s rap clique, and, moments later, Wilson shot Young twice with
a deadly weapon while standing only a few feet away.
Because the record contains no affirmative evidence that Wilson acted only
recklessly in causing Young’s death, the trial court did not err by denying his
request for a jury question on manslaughter. See Cavazos, 382 S.W.3d at 385
(requiring affirmative evidence that defendant did not intend to cause serious
bodily injury when he shot and affirmative evidence that defendant acted only
recklessly to warrant question on lesser-included offense); see also Forest v. State,
989 S.W.2d 365, 367 (Tex. Crim. App. 1999) (stating that lesser-included offense
must be “valid, rational alternative” to charged offense) (citing Arevalo v. State,
943 S.W.2d 887, 889 (Tex. Crim. App. 1997)).
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We overrule this issue.
Conclusion
We affirm Wilson’s conviction.
Harvey Brown
Justice
Panel consists of Justices Jennings, Keyes, and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).
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