Stedmon Dewberry v. State ( 2012 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
_________________________
No. 06-12-00025-CR
______________________________
STEDMON DEWBERRY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 5th Judicial District Court
Bowie County, Texas
Trial Court No. 11F0763-005
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
Found guilty by a jury for the murder of Latasha Antwine pursuant to Section 19.02(b)(2)
of the Texas Penal Code,1 and sentenced to fifty years’ confinement, Stedman Dewberry has
appealed his conviction.
On appeal, Dewberry raises one point of error, contending that there is legally
insufficient evidence to support the verdict. We affirm the trial court’s judgment.
Factual Background
A little after 6:00 p.m. on August 28, 2010, Christopher Daly picked up Stedmon
Dewberry in his car and drove to Grady T. Wallace Park in Texarkana. A car show had been
held at the park that day, and anywhere from fifty to several hundred people were present. After
Dewberry arrived at the park, there was a physical altercation between Dewberry and Brioni
Dansby, a person with whom Dewberry had a history of hostility and previous physical
encounters. During the altercation, Dansby knocked Dewberry down and the fight was broken
up.
After the fight, Daly drove Dewberry to an apartment, where they stayed for about five
minutes before returning to the park. As they returned to the park, Daly noticed that Dewberry
had a black and chrome semi-automatic handgun. As they arrived, Dewberry said he was “going
to take care of the shit.” Dewberry exited the automobile, walked to the front of it, said a few
words to Dansby, drew the gun, and began shooting at Dansby. Dansby, also armed, returned
1
The indictment also charged Dewberry with murder under the felony murder statute, Texas Penal Code
§ 19.02(b)(3), but that charge was not submitted to the jury. See TEX. PENAL CODE ANN. § 19.02(b)(3) (West
2011).
2
Dewberry’s fire. Dewberry hurried back into Daly’s car (which ended up with several bullet
holes in it) and they drove away. After the exchange of gunfire ceased, Dansby also got into a
car and left the park. In a display of remarkably poor marksmanship, neither Dewberry nor
Dansby was struck in the fusillade of bullets exchanged between them, despite the fact they were
apparently only several yards apart.
There was conflicting testimony whether Brandon Antwine (the brother of the shooting
victim) was also shooting at Dewberry that night. Paige Tasby was at the park that night with
friends and had been there for a couple of hours prior to the shooting. She testified that Dansby
and Brandon Antwine were both shooting at Dewberry that night and that they continued
shooting at the car in which Dewberry left the park. However, Joseph Hawkins and other
witnesses testified that only two people were shooting.
During the gunfight, an errant bullet struck Latasha Antwine, who was at the park with
her brother, Brandon. According to the medical testimony, the bullet entered the lower right side
of her back and exited on the left side of her abdomen, causing a wound which proved to be
mortal. There is conflicting testimony as to her location vis-à-vis the participants in the gunfight
at the time the fatal bullet was fired; some of the testimony placed her between the combatants
and some showed her to be located behind Dansby.
There is also some conflicting evidence regarding how many shots were fired. Tasby
testified that “a whole bunch” of shots were fired, “more than fifteen,” but Hawkins testified that
there were only about five shots fired. Only six shell casings, three of which were .40 caliber
3
casings and three of which were nine millimeter casings, and a part of one bullet were located at
the scene by police investigators.
The gun used by Dansby was a .40 caliber and the only ballistics tests conducted in this
case confirmed that the .40 caliber was fired at the park that night. There is conflicting evidence
regarding exactly what kind of gun Dewberry used in the shooting. Even though Dewberry said
in a statement to police that he had dropped his gun (which he said was a .22 caliber revolver) in
a ditch at the park as he fled the scene, his gun was never located.
Standard of Review
In evaluating legal sufficiency, we review all the evidence in the light most favorable to
the trial court’s judgment to determine whether any rational jury could have found the essential
elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex.
Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305
S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d). Our rigorous legal sufficiency
review focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at 917–18
(Cochran, J., concurring). We examine legal sufficiency under the direction of the Brooks
opinion, while giving deference to the responsibility of the jury “to fairly resolve conflicts in
testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate
facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at
318–19); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
Legal sufficiency of the evidence is measured by the elements of the offense as defined
by a hypothetically-correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
4
1997). The hypothetically-correct jury charge “sets out the law, is authorized by the indictment,
does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s
theories of liability, and adequately describes the particular offense for which the defendant was
tried.” Id.
Application
In his sole point of error, Dewberry contends that the evidence supporting his conviction
is legally insufficient.
Dewberry was charged with murder under the transferred intent doctrine, which holds a
person criminally responsible for causing a result if the only difference between what actually
occurred and what he desired, contemplated, or risked was that a different person was injured,
harmed, or otherwise affected. See TEX. PENAL CODE ANN. §§ 6.04(b)(2), 19.02(b)(2) (West
2011). “This statutory principle of ‘transferred intent’ is raised when there is evidence a
defendant with the required culpable mental state intends to injure or harm a specific person but
injures or harms a different person . . . .” Manrique v. State, 994 S.W.2d 640, 647 (Tex. Crim.
App. 1999) (McCormick, J., concurring). A classic example of the application of the transferred
intent doctrine is “the act of firing [a gun] at an intended victim while that person is in a group of
other persons. If the intended person is killed, the offense is murder. If a different person in the
group is killed, the offense is murder pursuant to Texas Penal Code § 6.04(b)(2) . . . .” Roberts
v. State, 273 S.W.3d 322, 330 (Tex. Crim. App. 2008) (addressing transferred intent in capital
murder case where requisite mental state was specific intent to kill); Chimney v. State, 6 S.W.3d
681, 700 (Tex. App.—Waco 1999, pet. ref’d). Under Section 6.04(b) of the Texas Penal Code, a
5
defendant can be held “criminally responsible” (i.e., guilty) for the death of another even if he
did not intend to harm the victim so long as he caused the actual victim’s death while acting with
the intent to kill a different person. TEX. PENAL CODE ANN. § 6.04(b) (West 2011).
Here, the indictment alleged that Dewberry “did then and there intentionally, with intent
to cause serious bodily injury to Brioni Dansby, commit an act clearly dangerous to human life,
namely, discharge a firearm at Brioni Dansby, which caused the death of Latasha Antwine.”
Employing the hypothetically-correct jury charge analysis, in order for the State to prove that
Dewberry was guilty of the victim’s murder as alleged, the State was required to prove that:
(1) Dewberry, (2) intended to cause serious bodily injury2 to Dansby, (3) committed an act
clearly dangerous to Dansby’s life, and (4) that act caused the victim’s death. TEX. PENAL CODE
ANN. §§ 6.04(b)(2), 19.02(b)(2).
Here, the first two elements of the analysis are undisputed. In various interviews with
police, Dewberry admitted having shot a gun at Dansby at the park that night. Dewberry
concedes in his brief that “[i]t is likely that the evidence is legally sufficient to show that
[Dewberry] intended to cause serious bodily injury to Dansby within the meaning of Texas Penal
Code § 19.02(b)(2).”
If a defendant “intentionally discharg[es] a firearm toward a group of people,” he
demonstrates that “he was aware that someone could be killed or that serious bodily injury could
result from his committing an act clearly dangerous to human life.” Pettigrew v. State, 999
2
“Serious bodily injury” means “bodily injury that creates a substantial risk of death or that causes death, serious
permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” TEX.
PENAL CODE ANN. § 1.07(46) (West Supp. 2012).
6
S.W.2d 810, 813 (Tex. App.—Tyler 1999, no pet.). Here, Dewberry fired a gun toward a group
of people, and therefore, he committed an act clearly dangerous to human life.
The primary element in dispute is whether there is legally sufficient evidence from which
a jury could find beyond a reasonable doubt that a shot fired by Dewberry caused Latasha’s
death. Here, the testimony was consistent that Dewberry and Dansby were shooting guns at one
another. The .40 caliber shell casings were found in the area where Dansby and Brandon’s car
was located, and the nine millimeter casings and a .40 caliber bullet fragment were found in the
area where witnesses placed Dewberry and Daly’s automobile. Dansby and Hawkins both
testified that Latasha was located behind Dansby (when viewed from Dewberry’s location) at or
near the time of the shooting. In an interview with Detective Scott Sartor, Demetrick Nard,
another eyewitness, also indicated that Latasha was behind Dansby. Sartor testified that all four
of the witnesses he interviewed were consistent that “the victim [was] right here behind Mr.
Dansby.” Three bloodstains3 were found on the ground behind Dansby in the same area where
witnesses remember having observed Latasha being located at that time.
The jury was free to believe the testimony that Dewberry used a semi-automatic handgun
and reject Dewberry’s statements that he had a .22 caliber revolver. Because the nine-millimeter
shell casings were found in the same location from which witnesses saw Dewberry shooting a
pistol, the jury could have reasonably inferred that the handgun Dewberry possessed was a nine-
millimeter semi-automatic. The jury could also have believed the evidence that Latasha was
located behind Dansby at the time of the gunfight, and the jury could likewise infer from the
3
There was no forensic evidence indicating whose blood it was or whether it was human blood.
7
police diagrams and the location of the bloodstains in relation to the shell casings that the victim
was in Dewberry’s line of fire. Similarly, the jury was free to reject Tasby’s testimony to the
contrary.
From these facts, the jury could have reasonably inferred that one of the shots Dewberry
fired in Dansby’s direction missed Dansby and struck Latasha, causing her death. Accordingly,
there is sufficient evidence supporting the verdict. We overrule this single point of error and
affirm the judgment of the trial court.
Bailey C. Moseley
Justice
Date Submitted: August 8, 2012
Date Decided: September 6, 2012
Do Not Publish
8