Bahrami, Shawn Ali v. State ( 1998 )

Opinion issued March 19, 1998
In The
(flamt of Ramada
For The
ifiiret Etetritt of @12er
NO. 01-96-00520~CR
SHAWN ALI BAHRAMI, Appeliant
V.
THE STATE OF TEXAS, Appeilee
On Appeal from the 230th District Court _
Harris County, Texas
Trial Court Cause No. 685791
O P I N I O N
Shawn Ali Bahrami, the appellant, appeais from his conviction of attempted
capital murder. We affirm.
On the evening of January 29, 1995, three young men pushed their way into
the house where Yvonne Sledge lived with her chiidren. The men shot Yvonne, her son
Brandon, her daughter Candace, and their cousin Darryl Provo. Brandon and Darryl were
transported by Life Flight to the hospital, and Yvonne and Candace were transported by
ambulance.
The appellant was indicted for the attempted capital murder of Yvonne and
Darryl. He pied not guilty, was convicted by the jury, and was sentenced by the trial
court to 40—years confinement.
Does the Indictment State An Offense?
In point of error one, the appellant claims the indictment did not state an
offense against the laws of Texas. The appellant seems to argue that the legislature did
not intend for the Texas attempted offense statute1 to be applied to the section of the
capital murder statute that makes the murder of two or more people during the same
. . . . . 2
cnmmai transaction a capltal crime.
1 (a) A person commits an offense if, with specific intent to
commit an offense, he does an act amounting to more than mere
preparation that tends but fails to effect the commission of the
offense intended.
(b) If a person attempts an offense that may be aggravated, his
conduct constitutes an attempt to commit the aggravated offense if
an element that aggravates the offense accompanies the attempt.
* =I= *
(d) An offense under this section is one category tower than the
offense attempted. . ..
Tex. PENAL Coon §15.01 (1998).
(a) A person commits an offense if he commits murder as
defined under Section 19.02(b)(l) and :
**$
h.)
(7) the person murders more than one person:
(A) during the same criminal transaction; or
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weight of the evidence as to be clearly unjust. As the soie trier of fact, the jury was free
to disbelieve the appellant’s witnesses. We find the evidence facmaliy sufficient to
support the conviction.
We overrule points of error two and three.
We affirm the trial court’s judgment.
WWW
Michol O’Connor
Justice
Before Justices Cohen, O’Connor, and Andeli.
Do not publish. TEX. R. APP. P. 47.
El
The appellant admits there is no case law supporting this argument. The
appellant makes a policy argument--the purposes of the multiple-murder capital murder
statute are not furthered by allowing the prosecution for attempted multipie~murder
capital murder. He claims no legislative purpose is served by raising the punishment
ievei one grade by prosecuting a defendant for attempted multiple-murder capital murder,
especially when a trial court may cumulate a defendant’s sentences in particularly
heinous cases.
There is nothing in the capital murder statute to indicate the multipie-
murder provision should be treated differently from the other capital murder scenarios.
See Johnson v. State, 853 S.W.2d 527, 534 (Tex. Crim. App. 1992) (holding law of
parties applies to multipie-murder capital murder); Rabboni v. State, 847 S.W.2d 555,
558 (Tex. Crim. App. 1992) (law of parties applied to capital murder committed during
felony robbery). Neither is there anything in the attempted offense statute to indicate it
should not be applied to subsection 7 of the capital murder statute. We conclude that the
prosecution for attempted capital murder of multiple people does not thwart public policy
or legislative intent. See Johnson, 853 S.W.2d at 534; see also Moreno v. State, 755
S.W.2d 866, 866 (Tex. Crim. App. 1988) (defendant convicted of attempted capital
murder of police officer). We conclude that prosecuting a defendant for attempted
multiple-murder capital murder serves the same purpose as prosecuting a defendant for
(B) during different criminal transactions but the murders are
committed pursuant to the same scheme or course or
conduct...
attempted capital murder under the other sections of section 19.03. See Norris v. State,
902 S.W.2d 428, 438 (Tex. Crim. App. 1995) (legislature intended to aggravate
punishment for multiple murders, thus allowing imposition of death penalty); Corwin v.
State, 870 S.W.2d 23, 28 (Tex. Crim. App. 1993) (legislature meant for muitiple-murder
capital murder statute to include serial murders).
We overrule point of error one.
Sufficiency of the Evidence
In point of error two, the appellant argues the evidence was legally
insufficient to support his conviction. In point of error three, he claims the evidence was
factually insufficient.
A. The Jury Charge & the Law of Parties
The appellant argues the jury charge gave the jury only two choices, neither
of which was supported by the evidence. The appellant admits the evidence shows he
shot Darryl and Houston shot Yvonne. Because the evidence does not show that the
appellant himself shot both Yvonne and Darryl or that another person shot both victims,
the appellant claims the evidence is insufficient to support the verdict. We disagree.
The jury charge included an explanation of the law of parties, which allows
a party to an offense to be convicted if the offense is committed (l) by his own conduct,
(2) by the conduct of a party for whom he is criminally responsible, or (3) by both. TEX.
PENAL CODE §7.01(a) (1998). However, the application paragraph of the charge omitted
TEX. PENAL CODE §19.03(a) (1998).
the third provision that would allow the jury to convict the appellant if it found the
offense was committed by both the appellant and another person.
The jury charge read as follows:
All persons are parties to an offense who are guilty of acting
together in the commission of the offense. A person is
criminally responsible as a party to an offense if the offense
is committed by his own conduct, by the conduct of another
for which [sic] he is criminally responsible, or by both.
A person is criminally responsible for an offense committed
by the conduct of another if, acting with intent to promote or
assist the commission of the offense, he solicits, encourages,
directs, aids, or attempts to aid the other person to commit the
offense. Mere presence alone will not constitute one party to
an offense.
Now, if you find from the evidence beyond a reasonable
doubt that the [appellant] did then and there unlawfully
and intentionally with the specific intent to commit the
offense of capital murder of Yvonne Sledge and Darryl
Provo, do an act or if you find from the evidence beyond a
reasonable doubt that another person or persons did then
and there unlawfully, intentionally with the specific intent to
commit the offense of capital murder of Yvonne Sledge and
Darryl Provo, do an act and that the [appellant], with the
intent to promote or assist the commission of the offense, if
any, solicited, encouraged, directed, aided or attempted to
aid another person or persons to commit the offense, if he did,
then you will find the [appellant] guilty as charged in the
indictment. -
(Emphasis added).
When evaluating the sufficiency of the evidence, we measure it against a
hypothetically correct jury charge for the offense. Malik v. State, 953 S.W.2d 234, 240
(Tex. Crim. App. 1997). A proper charge in this case would have allowed the jury to
convict the appellant if it found any of the following: (1) the appellant shot both victims,
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(2) another person shot both victims, and the appellant acting as a party to the shootings,
or (3) the appeiiant shot Darryl and acted as a party to the shooting of Yvonne. Upon
reviewing the evidence, it appears the jury must have read the third choice into the
charge. We will review the evidence as if the charge had included the third Option.
B. Legal Sufficiency Standard of Review
The evidence is legaily sufficient if, when viewed in the light most
favorable to the verdict, a rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. Jackson v. Virginia, 443 US. 307, 319, 99 S. Ct.
2781, 2789 (1979); Short v. State, 874 S.W.2d 666, 667 (Tex. Crim. App. 1994); Green
v. State, 891 S.W.2d 289, 297 (Tex. App.—-chston [lst Dist] 1994, pet. ret‘d).
We may not sit as a thirteenth juror and disregard or reweigh the evidence.
Moreno, 755 S.W.2d at 867; Reece v. State, 878 S.W.2d 320, 325 (Tex. App.--Houston
[lst Dist] 1994, no pet). If there is evidence that establishes guilt beyond a reasonable
doubt, and if the trier of fact believes that evidence, we are not in a position to reverse the
judgment on sufficiency of evidence grounds. Moreno, 755 S.W.2d at 867; Reece, 878
S.W.2d at 325. The jury, as the trier of fact, is the sole judge of the credibility of
witnesses. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Reece, 878
S.W.2d at 325. The jury may believe or disbelieve ail or any part of a witnessls
testimony. Sharp, 707 S.W.2d at 614; Smith v. State, 789 S.W.2d 419, 420 (Tex. App--
Houston [lst Dist] 1990, pet. ref‘d). A jury may believe a witness even though his
testimony is contradicted. Sharp, 707 S.W.2d at 614; Reece, 878 S.W.2d at 325.
C. Factual Sufficiency Standard of Review
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When reviewing factual sufficiency, we review all of the evidence, both
favorable and unfavorable, and set aside the verdict only if it is so contrary to the
overwhelming weight of the evidence as to be clearly wrong. Clewis v. State, 92?.
S.W.2d 126, 129 (Tex. Crim. App. 1996); Peoples v. State, 928 S.W.2d 112, 118 (Tex.
Appml-Iouston [lst Dist] 1996, pet. ref’d). We do not View the evidence in the light
most favorable to the verdict, as we do when reviewing legal sufficiency challenges.
Clewz's, 922 S.W.2d at 129; Peoples, 928 S.W.2d at 118.
D. Analysis
Brandon Sledge testified his sister, Candace, had her 16th birthday party at
the Sledge house on the night of January 28, 1995. Brandon saw the appeiiant at the
party with a group of boys, including George Houston and Alton Jackson. When the
party broke up, the boys did not want to leave and words were exchanged. The boys
finaiiy left when someone fired gunshots into the air. The police came to the Sledge
house to investigate the gunfire.
The next night, the Sledge family along with Darryl Provo, a cousin,
watched the Superbowl at the Sledge house. Shortly after nine o’clock, after the game
was over, Yvonne’s parents, John and AV. Delaspour, dropped in for a visit. Yvonne
had just had an operation and her parents had promised to check on her. They went into
her bedroom to see her. Brandon, Candace, and Darryl went upstairs to sleep. The next
thing Brandon remembered was waking up and seeing the appellant and Jackson, both
holding shotguns. The appellant and Jackson ordered the three to come downstairs.
They went downstairs and sat on the stairs. Yvonne, Brandon’s mother, came out of the
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back bedroom, and Houston shot her in the hip. Brandon tried to go to her, and Houston
shot him in the face. After he was shot in the face, Brandon heard a lot of shooting and
felt a second shot in his leg, coming from the direction of the appellant.
Brandon stated in the initial police report that the three men were masked,
but at trial he explained that the appellant wore a hooded sweatshirt that was tightly tied
under his chin. Brandon testified he could still see the appellant’s face.
John Delaspour testified that about 9:30 or 9:45 pm. that night, a young
man rang the doorbell. When Delaspour answered the door, a young man, in a rough
tone, asked if Candace was home. Delaspour told the man she was out and closed the
door. As he tried to deadbolt the door, it was forced open and three young men carrying
shotguns rushed into the house. Houston told Delaspour to get down on his knees, but
Deiaspour refilsed. Houston then told Jackson to hold Delaspour, and Jackson shoved his
shotgun into Delasponr’s ribs, pushing him up against the wall. Houston kept his shotgun
trained on Delaspour while Jackson and the appellant ran upstairs. Jackson shouted that
- Candace, Brandon, and Darryl were upstairs, and Houston yelled to bring them
downstairs. Yvonne came out of her room, saw what was happening, shoved her mother
back into the bedroom, and told her to call the police. Yvonne came out and asked the
men to put the guns down. Houston told her to shut up and shot her in the hip. She fell
to the ground and Brandon stood and yelled for her. Houston turned and shot Brandon in
the face. The appellant then shot Darryl. Darryl started to crawl up the stairs, and the
appellant shot him again. Delaspour thought Brandon and Darryl were both hit the
second time by the same shot fired by the appellant. Jackson shot Candace in the thigh.
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Jackson put his gun against Delaspour’s rib cage and, when Houston told him to “blow
him away,” he pulled the trigger, but the gun did not fire. The three men panicked and
ran out the front door.
In the initial police report, Deiaspour said the three black men who
committed the assault were ail masked. At trial, he said the police officer taking the
statement must have assumed he meant the appeilant was wearing a bandana over his
face, but that the appeilant wore a hooded sweatshirt and DelaSpour could still see his
face. Deiaspour also said he thought the appellant was Hispanic, not black, and that his
statement was wrong.
Candace Sledge testified the appellant, Jackson, and Houston were at her
party and argued with one of her uncles. The next night, she said she was awakened by
the appellant and Jackson, both carrying shotguns. The appellant and Jackson forced her
to go downstairs with Brandon and Darryl, Where Houston waited. She said Houston
made some reference to a gang to which he belonged. When her mother ran out, Houston
shot her. The appellant then shot Darryl in the foot, and Brandon was shot in the face.
Jackson shot Candace in the leg and thigh. After she was shot, she remembered hearing
more gunshots.
Candace said the appeliant wore a sweatshirt tied tight around his face, but
that she saw his face. On the night of the attack, she told the police three black men
committed the assault, but that one was Eight-skinned.
Deputy Rodgers of the Harris County Sheriff’s Department testified that he
arrived at Yvonne‘s house and saw four people who appeared to have been shot with a
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shotgun. The two women were shot in the leg area, one of the men was shot in the face
and maybe the chest, and the other was shot in the foot and the arm. He said Candace
told him three black men had committed the attack. He was told by another deputy that
one of the men was lighter-skinned. The four victims and John were shown photographic
lineups and all three suspects were identified.
The appellant’s aunt, Cheryl Reborn, testified the appellant was at her
house watching the Superbowl until 9:35 on the night of the attack. Tony Williams also
testified the appellant was at Raborn’s house until 9:35 the night of the attack. Two
witnesses testified that they saw the appellant at five or 10 minutes past 10:00 pm. on
January 29, 1995, and he acted normal and did not have any blood on him. The appellant
testified he was at Raborn’s house all day and went straight home at about 10:05 pm. He
denied going to the Sledge house and shooting anyone.
On rebuttal, the State called a schoolmate of the appellant’s who testified
that on January 30, 1995, she heard the appellant say that he had done a “kick—door” the
night before. The witness explained that a “kick-door” is going to someone’s house and
forcing your way in with your foot.
Reviewing the evidence against a “proper charge that would have allowed
conviction if the appellant and another person acted together and both committed the
offense, we find ample evidence to support the guilty verdict. Viewed in the light most
favorable to the verdict, the evidence is legally sufficient to support the conviction. Even
when all the evidence is viewed for factual sufficiency without the prism of the light most
favorable to the verdict, we do not find that the jury’s verdict was contrary to the great
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