Kenneth Shaye Ervin v. State ( 2010 )

Opinion issued November 10, 2010.

In The

Court of Appeals

For The

First District of Texas

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No. 01-10-00054-CR

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KENNETH SHAYE ERVIN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 182nd District Court

Harris County, Texas

Trial Court Cause No. 1164612

O P I N I O N

          Appellant, Kenneth Shaye Ervin, appeals from a judgment sentencing him to life in prison for the murder of Quincy Sheppard.  See Tex. Penal Code Ann. § 19.02(b) (Vernon 2003).  In two issues, appellant contends that the evidence is legally and factually insufficient to support his conviction for murder.  Concluding the evidence is sufficient, we affirm.

Background

Ronald and Quincy Sheppard lived at their father’s apartment in southeast Houston.  At the time, Ronald was making a lot of money selling illegal drugs around the apartment complex, and appellant’s cousin did not want Ronald around.  One evening in April 2008, the Sheppard brothers walked on the street outside their apartment complex when appellant and appellant’s cousin directed vulgar words at them.  Appellant then pulled out a black, semiautomatic gun and fired approximately six bullets towards the Sheppard brothers as they ran away.

About two days later, the Sheppard brothers went outside their apartment complex to deliver illegal drugs to a customer.  Appellant and his cousin ran up to them.  Appellant pointed the same gun at them and demanded, “Give me the money and the marijuana.”  Ronald complied.  As the Sheppard brothers were leaving, appellant fired approximately five bullets at them.  The brothers again escaped uninjured.

Approximately two days after the theft, as the Sheppard brothers walked back to their apartment at night, Ronald looked back and saw appellant holding the same gun at his side.  Appellant said, “Don’t run now.”  Ronald tapped on Quincy’s shoulder, instructing him to run away.  Ronald then ran inside his father’s apartment, where he heard the sound of two gunshots fired outside.

At the same time, Walter Dixon was outside the apartment complex and heard the gunshots.  Dixon saw appellant quickly walking away from where the sound of the gunshot originated. Dixon saw appellant attempting to conceal something, which Dixon thought was a gun, in his pants.  Dixon perceived appellant to be panicked and in a hurry. When Dixon asked him, if he was okay, appellant answered, “No,” and left.

After hearing the gunfire, Ronald went to Quincy and stood nearby screaming, yelling, and crying hysterically.  Ronald told the police officers who arrived at the scene that appellant shot Quincy.  The police found Quincy lying unconscious on the ground; he had been shot in the arm and the chest and was pronounced dead at the scene.  The police recovered two fired .40 caliber cartridge casings from the crime scene.  In the subsequent investigation, police officers recovered two .40 caliber bullets from appellant’s girlfriend’s apartment.  This was the same caliber as the casings found at the scene of the shooting and the bullet fragments later recovered from Quincy’s body.

The day after Quincy’s death, Dixon saw appellant.  Appellant, who was with a couple of his friends, called Dixon to come over.  Appellant instructed one of his friends to “[a]sk [Dixon] about it.”  By “it,” Dixon understood appellant to be referring to the prior night’s shooting.  Dixon offered, “I don’t know nothing, and you shouldn’t be talking about it.”

In the days shortly after the shooting, Dixon was interviewed by the police, but he did not mention either seeing appellant on the night of the shooting or the conversation that occurred the day after.  Earning a reward for the tip, Dixon later contacted Crime Stoppers to report that he saw appellant on the night of the shooting.  Approximately two years later, in the week before trial, Dixon met with the prosecutor and disclosed for the first time the conversation with appellant that occurred the day after the shooting.

At trial, Dixon identified appellant as the man he saw leaving the crime scene on the night of the shooting.  Dixon testified that he knew appellant as “Teardrop.”  Appellant has a tattoo of teardrops near his left eye. At trial, Ronald also identified appellant as the shooter.  He testified that he knew appellant as “Ken Ken.”  Appellant, whose first name is Kenneth, has a tattoo on his left bicep that states, “Ken Ken hearts Arneshia.”

Appellant pleaded not guilty.  The jury found him guilty, found true a felony enhancement paragraph, and assessed his sentence.  Appellant filed a motion for new trial, which was overruled by operation of law. 

Sufficiency of the Evidence

In two issues, appellant contends that the circumstantial evidence is legally and factually insufficient to support his conviction for murder.  In his combined argument concerning both issues, appellant points out that there was no direct evidence, such as an eyewitness’s testimony, that he fired the two bullets that killed Quincy.  Appellant does not separately argue his legal- and factual-sufficiency challenges.

A.      Standard of Review

In light of the recent court of criminal appeals decision in Brooks v. State, we must determine what standard of review we will apply to an evidentiary-sufficiency challenge styled as a factual-sufficiency challenge.  See Brooks v. State, No. PD-0210-09, 2010 WL 3894613, at *1–14 (Hervey, J., joined by Keller, P.J., and Keasler and Cochran, JJ., plurality opinion), *14–21 (Cochran, J., joined by Womack, J., concurring), *22–25 (Price, J., joined by Meyers, Johnson, and Holcomb, JJ., dissenting) (Tex. Crim. App. Oct. 6, 2010).  Of the three opinions issued in Brooks, no opinion was joined by a majority of the judges.  Id. When an appellate court decides a case without issuing a majority opinion providing a single rationale explaining the result, the majority holding is the position taken by those members who concurred in the judgment on the narrowest grounds.  Haynes v. State, 273 S.W.3d 183, 186 (Tex. Crim. App. 2008) (quoting Marks v. United States, 430 U.S. 188, 193, 97 S. Ct. 990, 993 (1977)).  In Brooks, a majority of judges joined either the plurality or the concurring opinion. See Brooks, 2010 WL 3894613 at *1, *14.  Accordingly, the narrowest ground on which they agree constitutes the Brooks majority holding.  See Haynes, 273 S.W.3d at 186.

In Brooks, the plurality and the concurrence both agreed to overrule the court of criminal appeals’ prior holding in Clewis v. State that had applied separate standards of review for legal and factual sufficiency of the evidence challenges.  Brooks, 2010 WL 3894613, at *1, 15.  In Clewis, the court held that legal-sufficiency challenges are to be reviewed in the light most favorable to the verdict under the standard of review established by Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979), but that factual-sufficiency challenges are to be reviewed under a different, neutral, standard.  Clewis v. State, 922 S.W.2d 126, 132, 134 (Tex. Crim. App. 1996), overruled by Brooks, 2010 WL 3894613.^[1]  The plurality and concurring opinions in Brooks agree that the Jackson standard of review is the sole standard to be used for challenges concerning the sufficiency of the evidence to support each element of the offense and that a finding of insufficiency results in an order acquitting the appellant. See Brooks, 2010 WL 3894613, at *14, *17, *20, *22^[2]; see also Tibbs v. Florida, 457 U.S. 31, 41, 102 S. Ct. 2211, 2218 (1982).  This majority holding is the precedent of the court of criminal appeals. See Haynes, 273 S.W.3d at 186.

          As an intermediate court of appeals, we are bound to follow the precedent of the court of criminal appeals.  Purchase v. State, 84 S.W.3d 696, 701 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d); See Tex. Const. art. V, § 5(a) (court of criminal appeals is final authority for criminal law in Texas).  Although an intermediate appellate court’s decision “shall be conclusive on all questions of fact brought before them on appeal or error,” the court of criminal appeals has the authority to determine questions of law, including the standard of review that an intermediate appellate court must use in conducting factual review.  See Tex. Const. art. V, § 6(a) (providing for questions of fact to be resolved by intermediate appellate courts); Roberts v. State, 221 S.W.3d 659, 663 (Tex. Crim. App. 2007).^[3]  Determining that the Clewis standard should no longer be applied to review the factual sufficiency of the evidence, the Texas Court of Criminal Appeals establishes the Jackson standard for the review of factual-sufficiency challenges.  See Brooks, 2010 WL 3894613, at *14, *22.^[4] We are bound to follow the Brooks majority holding, and we, therefore, apply the Jackson sufficiency standard of review to complaints styled as legal or factual sufficiency challenges concerning the elements of a criminal offense.  See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789.  “It bears emphasizing that a rigorous and proper application of the Jackson v. Virginia legal-sufficiency standard is as exacting a standard as any factual-sufficiency standard (especially one that is ‘barely distinguishable’ or indistinguishable from a Jackson v. Virginia legal-sufficiency standard).”  Brooks, 2010 WL 3894613, at *11.

Under the Jackson standard, evidence is insufficient to support a conviction if, considering all the record evidence in the light most favorable to the verdict, no rational factfinder could have found that each essential element of the charged offense was proven beyond a reasonable doubt.  See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071 (1970); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).  Viewed in the light most favorable to the verdict, the evidence is insufficient under this standard in two circumstances:  (1) the record contains no evidence, or merely a “modicum” of evidence, probative of an element of the offense; or (2) the evidence conclusively establishes a reasonable doubt.  See Jackson, 443 U.S. at 314, 318 n.11, 320, 99 S. Ct. at 2786,  2789 n.11, 2789 (“That the Thompson [v. Louisville, 362 U.S. 199, 206, 80 S. Ct. 624, 629 (1960),] ‘no evidence’ rule is simply inadequate to protect against misapplications of the constitutional standard of reasonable doubt is readily apparent.  A mere modicum of evidence may satisfy a ‘no evidence’ standard . . . .  But it could not seriously be argued that such a ‘modicum’ of evidence could by itself rationally support a conviction beyond a reasonable doubt.”) (citations omitted); Laster, 275 S.W.3d at 518; Williams, 235 S.W.3d at 750. A hypothetical example of this second circumstance was described in Brooks:

The store clerk at trial identifies A as the robber.  A properly authenticated surveillance videotape of the event clearly shows that B committed the robbery.  But, the jury convicts A.  It was within the jury’s prerogative to believe the convenience store clerk and disregard the video.  But based on all the evidence the jury’s finding of guilt is not a rational finding.

Brooks, 2010 WL 3894613, at *11 (quoting Johnson v. State, 23 S.W.3d 1, 15 (Tex. Crim. App. 2000) (McCormick, P.J., dissenting) (emphasis in original).

If an appellate court finds the evidence insufficient under the Jackson standard, it must reverse the judgment and enter an order of acquittal.  See Tibbs, 457 U.S. at 41, 102 S. Ct. at 2218.  An appellate court determines whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).  In viewing the record, “[d]irect and circumstantial evidence are treated equally: ‘circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt.’”  Id. (quoting Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007)).  An appellate court presumes that the factfinder resolved any conflicting inferences in favor of the verdict and defers to that resolution. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778.  An appellate court also defers to the factfinder’s evaluation of the credibility of the evidence and weight to give the evidence.  See Williams, 235 S.W.3d at 750.

B.      Applicable Law to Establish Murder

A person commits murder if (1) he commits an act that causes the death of another, and (2) he intended or knew that death would result from the act, or he intended that serious bodily injury would result from the act and the act is clearly dangerous to human life. Tex. Penal Code Ann. § 19.02(b)(1)–(2).  Proof of a defendant’s motive to commit the charged offense is significant circumstantial evidence indicating guilt.  See Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004). 

C.      Analysis

          As emphasized by the Brooks plurality, we conduct “a rigorous and proper application” of the Jackson standard of review to determine whether the facts in the record are sufficient to establish murder beyond a reasonable doubt. See Brooks, 2010 WL 3894613, at *11; Pomier v. State, No. 14-09-00247-CR, 2010 WL 4132209, at *2 (Tex. App.—Houston [14th Dist.] Oct. 21, 2010, no. pet. h.).  The record includes circumstantial evidence linking appellant to the offense as well as evidence of his motive to kill appellant.  Appellant does not challenge the evidence establishing his identity as the person who twice shot at the Sheppard brothers, nor as the person seen holding a gun immediately before Quincy was shot.  Rather, his sole challenge concerns the evidence linking him to Quincy’s death. 

          Immediately before Quincy was shot, Ronald saw appellant holding the same gun that appellant had previously used to shoot at him and Quincy.  Appellant told the Sheppard brothers not to run.  When Ronald escaped into the safety of his father’s apartment, he heard two gunshots fire outside.  Ronald quickly went outside where he saw Quincy, who had been shot twice.

          A second witness, Dixon, also provides circumstantial evidence that appellant shot Quincy. Dixon heard the gunshots and saw appellant walking from where the sound originated.  Dixon thought appellant looked panicked as he attempted to conceal what Dixon believed to be a firearm.  The day after the shooting, appellant spoke with Dixon in the presence of appellant’s friend.  Appellant told his friend to ask Dixon about “it,” which Dixon believed referred to the shooting.  Furthermore, Quincy was killed with a firearm that used .40 caliber ammunition, and that type of ammunition was found in appellant’s girlfriend’s apartment.

Although appellant contends that the record does not show that he had a motive to murder Quincy, that is an inaccurate portrayal of the circumstances.  The jury could have rationally found that appellant had a motive to kill Quincy from the evidence that he fired at Quincy on two occasions during the week before Quincy was shot to death.  See Foy v. State, 593 S.W.2d 707, 709 (Tex. Crim. App. 1980) (evidence of prior offense committed against victim indicates existence of ill will or hostility towards victim and is circumstantial evidence of existence of motive for committing charged offense); Burton v. State, 762 S.W.2d 724, 727 (Tex. App.—Houston [1st Dist.] 1988, no pet.).

          Viewing the totality of the circumstances in the light most favorable to the verdict, we conclude that the jury could have rationally found each element of murder was proven beyond a reasonable doubt.  See Clayton, 235 S.W.3d at    779–81 (although insufficient standing alone, considered together circumstantial evidence that appellant was at crime scene moments after murder occurred, fled the crime scene, and had motive was sufficient under Jackson standard to establish guilt beyond reasonable doubt). Having applied the Jackson evidentiary-sufficiency standard of review to address appellant’s legal- and factual-sufficiency challenges, we hold the evidence is sufficient to establish murder.  See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Williams, 235 S.W.3d at 750.

Conclusion

          We affirm the judgment.

                                                                   Elsa Alcala

                                                                   Justice

Panel consists of Justices Jennings, Alcala, and Higley.

Publish.  Tex. R. App. P. 47.2(b).

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[1]           Under the Clewis standard of review, evidence was considered to be factually insufficient to support a verdict if, considering all the record evidence in a neutral light, (1) the evidence supporting the verdict is “too weak” to support the factfinder’s verdict, or (2) considering conflicting evidence, the factfinder’s verdict is against the great weight and preponderance of the evidence.  Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009) (appellate court finds evidence factually insufficient only when necessary to prevent manifest injustice); see also Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996), overruled by Brooks v. State, No. PD-0210-09, 2010 WL 3894613 (Tex. Crim. App. Oct. 6, 2010).  A determination of insufficiency under the Clewis standard results in a new trial but under the Jackson standard results in an order of acquittal. Clewis, 922 S.W.2d at 133–34; see Tibbs v. Florida, 457 U.S. 31, 41–42, 102 S. Ct. 2211, 2218 (1982).

[2]           The Brooks concurrence noted that that the factual-sufficiency standard announced in Meraz v. State, 785 S.W.2d 146, 154–55 (Tex. Crim. App. 1990), is nevertheless appropriate for review of issues, such as affirmative defenses, on which the defendant has burden of proof by preponderance of evidence.  See Brooks, 2010 WL 3894613, at *21.

[3]           Although it recognized that intermediate courts of appeal have conclusive fact jurisdiction under the Texas Constitution, the plurality opinion in Brooks explained that the court of criminal appeals has the exclusive authority to set the standard of review for those factual determinations that are done by intermediate courts.  Brooks, 2010 WL 3894613, at *13; see Tex. Const. art. V, § 5(b).  The plurality opinion quotes the following from the Clewis majority opinion:

Appellate fact jurisdiction . . . should not be confused with the appellate standard of review required to exercise that fact jurisdiction.  The state constitution, at most, says that an intermediate appellate court has conclusive fact jurisdiction in both civil and criminal cases.  It does not purport to set out the standard of review required to exercise that fact jurisdiction.

            Brooks, 2010 WL 3894613, at *13 (quoting Clewis, 876 S.W.2d at 431). We express no opinion concerning the viability of a challenge on the basis that the use of the Jackson sufficiency standard to conduct a factual-sufficiency review violates the Texas Constitution’s requirement that the decision by intermediate courts of appeal “shall be conclusive on all questions of fact brought before them on appeal or error.”  See Tex. Const. art. V, § 6(a).

[4]           We do not agree with recent intermediate courts of appeals decisions that suggest that the review of factual-sufficiency challenges is abolished after Brooks. See e.g., Hammons v. State, No. 06-10-00026-CR, 2010 WL 4241577, at *1 n.2 (Tex. App.—Texarkana Oct. 22, 2010, no pet. h.) (“Since the Texas Court of Criminal Appeals has abolished factual sufficiency review, we need not address the defendant’s challenge(s) to the factual sufficiency of the evidence.”); Gainey v. State, No. 08-08-00239-CR, 2010 WL 4259366, at *2 (Tex. App.—El Paso Oct. 27, 2010, no pet. h.) (“A factual sufficiency review is no longer appropriate            . . . .”); Castillo v. State, No. 08-08-00332-CR, 2010 WL 4117674, at *4 (Tex. App.—El Paso Oct. 20, 2010, no pet. h.) (purporting to follow Brooks by not “addressing the merits of [a]ppellant’s factual insufficiency argument”). We agree with the intermediate courts of appeals that have applied the Jackson standard of review to sufficiency challenges styled as factual-sufficiency challenges.  See e.g., Rosales v. State, No. 04-09-00498-CR, 2010 WL 4336171, at *2 (Tex. App.—San Antonio Nov. 3, 2010, no pet. h.) (“Based on Brooks, we will review the evidence in a light most favorable to the verdict for Rosales’s [legal and factual] sufficiency claims.”); Joaquin v. State, No. 05-09-00730-CR, 2010 WL 4244823, at *3 (Tex. App.—Dallas Oct. 28, 2010, no pet. h.); Pomier v. State, No. 14-09-00247-CR, 2010 WL 4132209, at *2 (Tex. App.—Houston [14th Dist.] Oct. 21, 2010, no pet. h.); Winningham v. State, No. 02-07-00389-CR, 2010 4138564, at *18 (Tex. App.—Fort Worth Oct. 21, 2010, no pet. h.); Walker v. State, No. 02-09-00209-CR, 2010 WL 4028439, at *1 (Tex. App.—Fort Worth Oct. 14, 2010, no pet. h.).