Byron Orrick Outlaw v. State ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-06-447-CR
BYRON ORRICK OUTLAW APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY
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MEMORANDUM OPINION 1
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A jury convicted Appellant Byron Orrick Outlaw of murder and assessed
his punishment at life confinement. In a single issue, Outlaw challenges the
factual sufficiency of the evidence to support his conviction, arguing that the
evidence is insufficient “to prove that [his] finger pulled the fatal trigger.” We
will affirm.
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… See T EX. R. A PP. P. 47.4.
On February 27, 2006, Ervin Flint, Jr. was shot while he was in front of
a residence located at 708 Eastside Drive in Wichita Falls. The bullet that
struck Flint ruptured his aorta, killing him. Police discovered multiple spent shell
casings at an automotive repair shop (“the garage”) located about 130 yards
from 708 Eastside Drive and a .30 caliber M1 carbine rifle in the trunk of a
vehicle that was parked inside the garage. Investigators determined that the
bullet that struck Flint and caused his death was fired from the .30 caliber rifle
and that the spent shell casings found in the garage had been fired from the
same .30 caliber rifle. Authorities indicted Outlaw for Flint’s murder after
further investigation, and a jury convicted him of the offense.
Outlaw concedes that the evidence is legally sufficient to support his
conviction. He challenges only the factual sufficiency of the evidence as it
pertains to identity.
When reviewing the factual sufficiency of the evidence to support a
conviction, we view all the evidence in a neutral light, favoring neither party.
Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006); Drichas v.
State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005). We then ask whether
the evidence supporting the conviction, although legally sufficient, is
nevertheless so weak that the fact-finder’s determination is clearly wrong and
manifestly unjust or whether conflicting evidence so greatly outweighs the
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evidence supporting the conviction that the fact-finder’s determination is
manifestly unjust. Watson, 204 S.W.3d at 414–15, 417; Johnson v. State, 23
S.W.3d 1, 11 (Tex. Crim. App. 2000). To reverse under the second ground,
we must determine, with some objective basis in the record, that the great
weight and preponderance of all the evidence, though legally sufficient,
contradicts the verdict. Watson, 204 S.W.3d at 417.
In determining whether the evidence is factually insufficient to support a
conviction that is nevertheless supported by legally sufficient evidence, it is not
enough that this court “harbor a subjective level of reasonable doubt to
overturn [the] conviction.” Id. We cannot conclude that a conviction is clearly
wrong or manifestly unjust simply because we would have decided differently
than the jury or because we disagree with the jury’s resolution of a conflict in
the evidence. Id. We may not simply substitute our judgment for the fact-
finder’s. Johnson, 23 S.W.3d at 12; Cain v. State, 958 S.W.2d 404, 407
(Tex. Crim. App. 1997). Unless the record clearly reveals that a different result
is appropriate, we must defer to the jury’s determination of the weight to be
given contradictory testimonial evidence because resolution of the conflict
“often turns on an evaluation of credibility and demeanor, and those jurors were
in attendance when the testimony was delivered.” Johnson, 23 S.W.3d at 8.
Thus, we must give due deference to the fact-finder’s determinations,
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“particularly those determinations concerning the weight and credibility of the
evidence.” Id. at 9.
An opinion addressing factual sufficiency must include a discussion of the
most important and relevant evidence that supports the appellant’s complaint
on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
A person commits murder if he (1) intentionally or knowingly causes the
death of an individual or (2) intends to cause serious bodily injury and commits
an act clearly dangerous to human life that causes the death of an individual.
T EX. P ENAL C ODE A NN. § 19.02(b)(1), (2) (Vernon 2003). A jury can infer
knowledge or intent from the acts, conduct, and remarks of the accused and
from the surrounding circumstances. LaPoint v. State, 750 S.W.2d 180, 182
(Tex. Crim. App. 1986); Nazemi v. State, 28 S.W.3d 806, 810 (Tex.
App.—Corpus Christi 2000, no pet.). Specific intent to kill may be inferred
from the use of a deadly weapon unless the weapon was used in such a
manner that it was reasonably apparent that death or serious bodily injury could
not have resulted. Godsey v. State, 719 S.W.2d 578, 580–81 (Tex. Crim.
App. 1986).
An accused’s guilt may be proved with direct or circumstantial evidence.
Smith v. State, 56 S.W.3d 739, 744 (Tex. App.—Houston [14th Dist.] 2001,
pet. ref’d). As fact-finder, the jury is entitled to draw reasonable inferences
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from circumstantial evidence to ultimate facts. Villani v. State, 116 S.W.3d
297, 303 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d). Identity of a
perpetrator can thus be proved by direct or circumstantial evidence; eyewitness
identification is not necessary. Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim.
App. 1986); Couchman v. State, 3 S.W.3d 155, 162 (Tex. App.—Fort Worth
1999, pet. ref’d).
The evidence shows that on February 27, 2006, Outlaw, a member of a
gang known as “KEP,” called Clifton Wiley, an acquaintance and former KEP
member, and told Wiley that he was coming to visit him at his residence. When
Outlaw arrived at Wiley’s house in his blue 1997 Grand Marquis, he said that
Raymond McKinney, a member of a rival gang known as the “Hoovas,” had just
shot at him. Orondae Malone, another member of the Hoova’s, confirmed
Outlaw’s account of the shooting. He testified that he was at 708 Eastside
Drive on February 27, 2006, with a number of other individuals, including
McKinney, and that someone at that location had fired a few gunshots at a dark
blue or green car, which he identified as belonging to Outlaw, when the car
drove by.
After telling Wiley that McKinney had just shot at him, Outlaw said, “I got
something that’s going to make these niggers quit playing with me.” Outlaw
opened the trunk of his car, and inside of the trunk was a black guitar case
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containing a rifle. Wiley told Outlaw that the rifle “was going to get him 100
years,” and Outlaw responded, “Well, whatever come with it, that’s what come
with it. These niggers are going to quit shooting at me.”
Outlaw and Wiley subsequently departed Wiley’s residence, drove past
708 Eastside Drive, and ended up at another residence on Patterson. Sometime
along the way, Wiley picked up his vehicle, an “ivory clear coat” or yellowish
colored Crown Victoria. While at the Patterson residence, Outlaw received a
text message from “Nikki,” an individual who has “friendships” with both the
KEP and Hoovas. Outlaw called Nikki and ended up speaking with McKinney,
Malone, or both. After the conversation, Outlaw grabbed the rifle and said,
“[T]his ain’t got nothing to do with y’all. This all on me . . .,” entered his car,
and left only to return ten or fifteen minutes later. After Outlaw returned, Wiley
told him that he had to leave, and Outlaw asked Wiley to drop him off at the
garage, which Wiley did.
After dropping Outlaw off at the garage, Wiley proceeded on his way
before deciding to turn around and return to the garage to warn Outlaw that he
observed other gang members nearby. Wiley parked his car so that the rear
faced the garage. As he opened the car door, he heard gunshots coming from
behind him and ducked down. According to Malone, who was at 708 Eastside
Drive, gunshots were fired at that residence about twenty to thirty minutes
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after Outlaw called Nikki and after Malone observed Wiley drive by nearby
Spudder Park in his “yellow cream car.” Malone, who was in front of the
residence with McKinney and Flint, observed “quite a few” gunshots strike the
house as he crawled in through the front door. After the shooting ended,
Malone exited the house and saw Flint lying on the ground. Over at the garage,
Outlaw, breathing hard and with nothing in his hands, came to Wiley’s car,
entered it, and told Wiley to drop him off at the Patterson residence. Flint died
as a result of the single-entry gunshot wound that he sustained.
Jeanette Newman and Robert Perry testified that they were at Spudder
Park on February 27, 2006, when they heard gunshots fired from the direction
of the garage, which had one of its doors open. They observed a person exit
the garage, close the door, and get into a yellowish colored car before the car
drove off. Perry identified Outlaw as the person who exited the garage just
after the shooting. According to Newman and the Wichita Falls police officer
who responded first to the shooting, it was sunny, clear outside, and still light
out when the shooting occurred.
Gary Van Cook, Jr. testified that Outlaw and Wiley stopped by his house
on February 27, 2006, in Outlaw’s blue Grand Marquis and that he observed
a rifle in the back seat of Outlaw’s car. Worth Culberson, who runs the garage
where Wiley had dropped off Outlaw just before the shooting, testified that he
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worked at the garage earlier that same day and that he had left open the trunk
of a white car in the garage before leaving.
Officer Greg Burt testified that he assisted with the process of collecting
evidence from the garage. Authorities found close to thirty spent .30 caliber
shell casings at the garage as well as a .30 caliber carbine rifle in the trunk of
the white car in the garage. Officer Siobian Callahan testified that she lifted a
fingerprint from the trunk of the white car located in the garage and where the
rifle was found and that the fingerprint matched Outlaw’s fingerprint.
Officer Charles Casillas testified that the bullet that killed Flint and a bullet
found at 708 Eastside Drive matched the .30 caliber rifle found at the garage.
A forensic firearms examiner testified that the bullet that struck Flint and
caused his death was fired from the .30 caliber rifle and that the spent shell
casings found in the garage had been fired from the same .30 caliber rifle.
Outlaw argues that the jury’s verdict is “clearly wrong and manifestly
unjust” because the testimony of the State’s witnesses is either “far-fetched,”
“potentially fraudulent,” “unilluminating,” or “explainable.” Outlaw arrives at
this conclusion by ignoring much of the evidence detailed above and by
pinpointing particular portions of the witnesses’ testimony in which defense
counsel skillfully attempted to raise doubts about Outlaw’s guilt. Outlaw
stresses that Officer W ade “received at least two different stories which
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indicated that someone other than [Outlaw] had shot at or had reason to shoot
at [Flint]”; that Culberson testified that “many people would go to his garage
to check [] the status of the roughly dozen cars that were being worked on at
his shop at that time,” thus implying that other people visited and had access
to the garage; that the medical examiner did not testify as to who and why Flint
was shot; that Malone had an argument on the phone with Outlaw, but that
Malone “never suggested that he had personal knowledge of who shot [Flint],
or why”; that Cook said “he saw [Outlaw] with a gun that looked like the gun
that shot [Flint]”; that Detective Kelly Brunson, who assisted with the
processing of 708 Eastside Drive, “provided testimony which established that
one of the three eyewitnesses [Perry] . . . was wildly inaccurate as to his
measurement of distances”; that Detective Burt “could not say how and under
what circumstances the fingerprint came to be on the [white] car, or when” and
that “there was—and is—no evidence that connects the fingerprint with the
crime”; that Officer Callahan “was unable to say when or under what
circumstances the fingerprint came to be” on the white car in the garage; that
neither Newman nor Perry could identify Outlaw in a photographic lineup; that
the firearms examiner could not say who fired the gun; that Newman had bad
eyesight and had been “drinking”; and that Perry’s estimation of the distance
between him and the garage on the day of the shooting was incorrect. Outlaw
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also points to evidence that Wiley wrote a few letters to the district attorney
while incarcerated indicating his desire to testify for the State, illuminating the
possibility that Wiley had an incentive to lie. Specifically, Wiley stated in a
letter, “I need to get to my wife and five children[,] sir[.] Just tell me who and
what you want[.]”
Outlaw’s analysis and conclusions readily conflict with the factual
sufficiency standard of review. As the State points out, Outlaw analyzes the
testimony of the State’s witnesses in isolation in order to arrive at his
conclusion that the evidence is factually insufficient to support his conviction.
The factual sufficiency standard of review, however, requires that we view all
the evidence in a neutral light, favoring neither party. Watson, 204 S.W.3d at
414. Outlaw’s analysis also disregards the requirement that we give deference
to the jury’s determinations, particularly those determinations concerning the
weight and credibility of the evidence, and the jury’s ability to draw reasonable
inferences from circumstantial evidence to ultimate facts. See Johnson, 23
S.W.3d at 8–9; Smith, 56 S.W.3d at 744. The jury, as the sole judge of the
credibility of the witnesses, was free to believe or disbelieve all or part of the
State’s witnesses’ testimony. Having found Outlaw guilty, the jury apparently
chose to believe much, if not all, of the State’s evidence tending to show that
Outlaw murdered Flint, and it was entitled to make reasonable inferences from
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the circumstantial evidence. And finally, that much of the State’s evidence is
circumstantial does not in and of itself render the evidence factually insufficient;
the State could have proved Outlaw’s identity as Flint’s murderer by direct or
circumstantial evidence, and proof of Outlaw’s identity through circumstantial
evidence is not subject to a more rigorous standard than is proof by direct
evidence, as both are equally probative. See Earls, 707 S.W.2d at 85; McGee
v. State, 774 S.W.2d 229, 238 (Tex. Crim. App. 1989).
The record demonstrates that the jury was rationally justified in finding
beyond a reasonable doubt that Outlaw murdered Flint. Examining all of the
evidence in a neutral light, favoring neither party, we hold that the evidence
supporting Outlaw’s identity as Flint’s murder is not so weak that the fact-
finder’s determination is clearly wrong or manifestly unjust. Nor does the
conflicting evidence—the evidence that Outlaw relies on—so greatly outweigh
the evidence supporting the conviction that the fact-finder’s determination is
manifestly unjust. See Watson, 204 S.W.3d at 414–15, 417; Johnson, 23
S.W.3d at 11.
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Accordingly, the evidence is factually sufficient to support Outlaw’s
conviction for murdering Flint. We overrule Outlaw’s sole issue and affirm the
trial court’s judgment.
PER CURIAM
PANEL: HOLMAN, DAUPHINOT, and GARDNER, JJ.
DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)
DELIVERED: August 21, 2008
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