Marcus Edward Gay v. State ( 2007 )

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Opinion issued November 1, 2007



  In The

Court of Appeals

For The

First District of Texas

NO. 01–06–00713–CR

MARCUS EDWARD GAY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause No. 1009376

MEMORANDUM OPINION

          A jury convicted appellant, Marcus Edward Gay, of capital murder for committing a murder in the course of committing a robbery. See Tex. Pen. Code Ann. § 19.03(a)(2) (Vernon Supp. 2006). The State did not seek the death penalty. The trial court assessed punishment at confinement for life.

          In three issues, appellant contends that (1) the trial court erred by admitting hearsay testimony; (2) the trial court erred by refusing to instruct the jury on the lesser-included offense of murder; and (3) the evidence is legally and factually insufficient to support his conviction.

          We affirm.

Background

          In 2004, at the time of the incident, the complainant, Doris Sergent, was sharing an apartment with her then 19-year-old son, Tyler Sergent. In the evenings after work, the complainant usually kept to her bedroom and did not socialize when Sergent brought friends to the apartment. Appellant, also age 19, was one of Sergent’s friends and frequently visited Sergent at the apartment.

           Appellant and Sergent shared an interest in rap music. In late November 2004, appellant contacted Sergent, seeking money to buy computer equipment for music production. Sergent told appellant that he would give appellant $50.00 and a microphone when Sergent received his paycheck on Friday, December 3, 2004. Appellant and Sergent agreed to meet at Sergent’s apartment at 6:00 p.m. that Friday.

          On Friday, December 3, 2004, Sergent left work and drove to pick up another friend, Thomas Keller, who was to spend the evening working on music with Sergent and appellant. At Keller’s house, Sergent and Keller became engrossed in watching a news program and were delayed. At 6:30 p.m., Sergent received a phone call from the complainant, stating that appellant was at the apartment and asking whether Sergent had forgotten about meeting with appellant. Sergent told the complainant to tell appellant to “sit tight” and to play Sergent’s PlayStation video games for awhile.

          Sergent and Keller left Keller’s home at 7:00 p.m. While en route to Sergent’s apartment, Sergent called the complainant twice but never received an answer. At approximately 7:45 p.m., Sergent and Keller arrived at Sergent’s apartment and found the complainant lying deceased on the living room floor. Her face was covered with blood and a telephone cord was wrapped around her neck. Sergent and Keller ran around the apartment looking for appellant, determined that he was gone, and called the police.

          Sergent went down to the police station and gave a statement. When he returned, he noticed that his PlayStation console was missing. Sergent searched the apartment to determine if anything else was missing and saw that video games and movies were missing from the chest of drawers in his bedroom. In addition, a knife that the complainant kept behind the pillows on her bed was missing. Sergent’s computer, monitor, and microphones had not been taken.

          Officer R. Gutierrez, a Houston Police Department investigator, testified that the complainant’s throat was cut very deeply and that the attack appeared to have started in the bedroom and moved into the living room. Blood spatter located in the complainant’s bedroom indicated that she had been struck at least twice with an object while in her bedroom and that there had been a struggle. Blood was found on the bed, pillows, and sheets. Blood on the carpeting led out of the complainant’s bedroom and toward the living room, where blood spatter was found on the coffee table and the couch. Officer Gutierrez explained that blood transfer found around the complainant’s ankles indicated that the complainant most likely had been subdued by the assailant while she tried to escape. The complainant had the telephone in her hand and the cord had been pulled from the main base of the telephone.

          Officer Gutierrez testified that there were also bloody footprints leading from the living room back to Sergent’s bedroom. It was determined that the footprints did not merely result from Sergent and Keller having run around the apartment looking for appellant at the time they discovered the complainant. There was blood transfer on the door and door jamb of Sergent’s room. Blood was also found on the cords that had been connected to the PlayStation in Sergent’s room. There was no blood found on the dresser from which the games and movies had been taken.

          On December 4, 2004, the day after the incident, Sergeant C. Douglas of the Houston Police Department conducted a videotaped interview of appellant, which was subsequently admitted into evidence at trial. In his statement, appellant admitted that he had gone to Sergent’s apartment on the evening of December 3, 2004. Appellant stated that the complainant told him that Sergent was not home and that he should wait in Sergent’s room and play on the computer. Appellant stated that the complainant then came into Sergent’s room without any clothes on and attempted to force herself upon appellant. Appellant stated that, when he refused, the complainant threatened him by saying that Sergent and a friend were on the way to “get” him. Appellant stated that the complainant grabbed him from behind in a “bear hug” and that appellant “bumped her into the wall” to force her to release him. Appellant stated that the complainant fell, then got up and went into her room, put on a big shirt, and got on the telephone.

          Appellant stated that he picked up an object that looked like a paper weight and threw it at the complainant, and that the complainant came out of her room and again said that Sergent was on the way to get him. According to appellant, he hit her again, and the complainant fell on the living room floor. Appellant stated that he then went into the kitchen, grabbed a knife, and cut the complainant “around her neck area.” When asked why he cut the complainant, appellant responded, “I really don’t know man.” Sergeant Douglas probed whether appellant was upset with Sergent for having been late, and appellant denied having been upset.

          Appellant also admitted that he took the PlayStation game console and six games from Sergent’s room. Appellant stated that he sold these items to a person on the street for $50 as he was walking away from the apartment. Appellant said that he threw the knife and paper weight into a bayou.

          The police recovered the stolen PlayStation games and movies at a pawn shop. The evidence showed that appellant pawned seven games and a set of DVD movies the day after the incident and bought a microphone at the same time. The police recovered bloody sweat pants, tennis shoes, and tee shirt, and a microphone and video game cables from appellant’s house.

          At trial, the trial court denied appellant’s request that the jury be charged on the lesser-included offense of murder.

Hearsay Testimony

          In his first issue, appellant contends that the trial court erred by admitting inadmissible hearsay. Specifically, appellant contends that Sergent’s testimony that the complainant told him over the telephone at 6:30 on the evening of the incident that appellant was waiting at the apartment constituted inadmissible hearsay.

A.      Standard of Review and Applicable Law

We review a trial court’s ruling on the admissibility of testimony for an abuse of discretion. Salazar v. State, 38 S.W.3d 141, 153–54 (Tex. Crim. App. 2001). We will uphold the trial court’s decision unless it lies outside the zone of reasonable disagreement. Id.

          Hearsay is “a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tex. R. Evid. 801(d). Hearsay statements are inadmissible except as provided by statute or other rule. Tex. R. Evid. 802; see Tex.R. Evid. 803 (providing exceptions). An extrajudicial statement that is offered for the purpose of showing what was said rather than for proving the truth of the matter stated therein, does not constitute hearsay. Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim. App. 1995); Gonzales v. State, 190 S.W.3d 125, 133–34 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d).

          The erroneous admission of a hearsay statement constitutes non-constitutional error that is subject to a harm analysis. See Tex. R. App. P. 44.2(b); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). Non-constitutional error must be disregarded unless it affected a substantial right of the defendant. Tex. R. App. P. 44.2(b); Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001). A substantial right is affected when the error had a substantial and injurious effect in determining the verdict. Johnson, 43 S.W.3d at 4. A conviction should not be overturned for such error if this court, after examining the record as a whole, has fair assurance that the error did not influence the trial court or had but a slight effect. See Johnson, 967 S.W.2d at 417.

B.      Analysis

          Appellant complains of the following colloquy that took place during the State’s direct examination of Sergent:

          State:           Okay. And while you were picking up Thomas, did you get a phone call from somebody?

          [Sergent]:    I got a phone call from my mother. That’s on the way to [Keller’s] house.

          State:           Tell the jury about the phone call.

          [Sergent]:    My mother called me and she asked me did I forget—

          Defense:      Objection to what she asked as hearsay.

          [Sergent]:    What?

          State:           Your honor, I don’t believe it’s for the truth of the matter asserted. I believe it’s the reason for his actions.

          Court:          Overruled.

          [Sergent]:    Okay. She called me asking me did I forget that Marcus was here. I told her, No. I told her to tell him to sit put [sic] and play the game. I will be back.

          Although appellant objected the first time that the contents of the conversation was raised in the testimony, the complainant’s statement that appellant was at the apartment came in at additional times during direct examination of Sergent without objection. In addition, Keller testified, without objection, that Sergent told him that the complainant had called and said that appellant was waiting at his apartment. Further, defense counsel elicited this same testimony from Sergent during cross-examination as follows:

          [Defense]:   Let me go back. I don’t want to put words in your mouth. You tell me, if you know, about what time it was the last time you talked to your mom that night.

          [Sergent]:    The last time I talked to my mother is when she called me, indicating that [appellant] was at the house. That was the last time I spoke to her.

          [Defense]:   Okay. Now, do you have an idea, just for the jury’s sake, about what time that would have been?

          [Sergent]:    Between 6:30 to 7:00.

          . . . .

          [Defense]:   Okay. And you told your mother—if I understand this correctly, you told your mother to tell [appellant] to sit tight?

          [Sergent]:    Yes.

          [Defense]:   Play some games and you’d be there shortly?

          [Sergent]:    Yes, sir.

          To preserve error for appellate review, appellant was required to timely object each time the testimony was brought in. See Tex. R. App. P. 33.1; Tex. R. Evid. 103(a)(1). Because appellant permitted the contents of the complainant’s statement to come in without objection, appellant has waived the issue. See Tex. R. App. P. 33.1.

          Accordingly, we overrule appellant’s first point of error.

Lesser-Included Instruction

          In his second point of error, appellant contends that the trial court erred by refusing to instruct the jury on the lesser-included offense of murder. Appellant contends that he was entitled to the instruction because the State failed to prove that he committed the murder during the course of committing a robbery. Specifically, appellant contends that the evidence does not show that he formed the intent to take property from the complainant at or before the time he killed her; rather, the evidence shows that the taking was an afterthought.

          A defendant is entitled to an instruction on a lesser-included offense if (1) the lesser offense is a lesser-included offense of the charged offense and (2) there is some evidence 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. Guzman v. State, 188 S.W.3d 185, 188 (Tex. Crim. App. 2006).

          Under prong one, we compare the elements of the charged offense, as modified by the indictment, with the elements of the lesser offense that might be added to the jury charge. Id. We compare the elements of both offenses to determine whether, in proving the offense as charged, the State necessarily had to prove all the elements of the lesser offense, plus something more.” Id. at 189 & n.7 (applying Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 2006)). If prong one is met, we then consider, under prong two, whether there is some evidence from which a jury rationally could find that, if defendant is guilty, he is guilty only of the lesser offense. Id. At this step of the analysis, “the evidence must establish the lesser-included offense as a valid, rational alternative to the charged offense.” Hall v. State, 225 S.W.3d 524, 536 (Tex. Crim. App. 2007).

          Here, the elements of capital murder, as alleged in the indictment, are that (1) the defendant, (2) while in the course of committing and attempting to commit a robbery of [complainant], (3) intentionally caused the death of [the complainant] by cutting [the complainant] with a deadly weapon, namely, a knife. See Tex. Pen. Code Ann. § 19.03(a)(2). The elements of the lesser offense of murder are (1) the defendant; (2) intentionally or knowingly; (3) causes the death of an individual. Id. § 19.02(b)(1) (Vernon 2003).

          The first prong of the test is met because the Texas Court of Criminal Appeals has recognized that intentional murder is a lesser included offense of capital murder. Robertson v. State, 871 S.W.2d 701, 706 (Tex. Crim. App. 1993). Hence, appellant was entitled to a charge on the lesser-included offense if prong two is met, that is, if there is some evidence in the record that would a permit a jury rationally to find that, if guilty, appellant was only guilty of the lesser offense of murder. See Guzman, 188 S.W.3d at 189.

          Here, to support the charge of capital murder, the State was required to prove that appellant’s intent to rob the complainant was formed before or at the time of the murder. See Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). Proof that a robbery occurred as an afterthought and unrelated to the murder does not support a charge of capital murder. Id. If the requisite intent to commit a robbery was formed prior to or at the time of the murder, the element of appropriation may occur after the murder. Nelson v. State, 848 S.W.2d 126, 132 (Tex. Crim. App. 1993).

          We consider whether there is some evidence that would permit a jury rationally to find that appellant had not formulated an intent to rob the complainant before or as he killed her. See Robertson, 871 S.W.2d at 706. If there is some evidence which negates the aggravating element of the greater offense or if the evidence of such aggravating element is so weak that a rational jury might interpret it in such a way as to give it no probative value, then appellant was entitled to a charge on the lesser included offense. See id.

          First, appellant contends that “the habits of the complainant could be interpreted as supporting a finding that appellant took [Sergent’s] video game equipment . . . as an afterthought.” Appellant contends that, because the complainant normally stayed in her room, “it would not have been necessary for [appellant] to use force against the complainant, let alone deadly force, in order for him to have removed [Sergent’s] video game equipment from the apartment.” Appellant does not explain in his brief why this point shows that appellant, if guilty, was only guilty of murder. His point seems to go more to whether appellant intended a murder at the time of the robbery. The issue is whether appellant possessed the requisite intent to take the console, games, and movies at or before the time he committed the murder. See Conner, 67 S.W.3d at 197.

          Second, appellant contends that the evidence that he did not ransack the apartment or take other specific items, namely, a microphone in Sergent’s room or the complainant’s purse, supports that he took the “video game equipment” only as an afterthought. The State was required to show that the murder was committed “in the course of committing or attempting to commit a robbery.” See Tex. Pen. Code Ann. § 19.03(a)(2). Thus, even evidence of an attempt to commit a robbery would suffice. As such, the statute does not require that the State show an actual appropriation of any property, let alone specific items. See Bustamante v. State, 106 S.W.3d 738, 740 (Tex. Crim. App. 2003). Moreover, the evidence shows that appellant knew that Sergent and Keller were on their way to the apartment. The evidence that appellant did not take the time to ransack the apartment or look for other items to steal does not negate the aggravating element—that he intended to take the video games, console, and movies at the time he killed the complainant. See Robertson, 871 S.W.2d at 706; Castillo v. State, 221 S.W.3d 689, 693–94 (Tex. Crim. App. 2007) (concluding that existence of money and jewelry left behind in victim’s possession does not negate that murder was in course of robbery) .

          The evidence shows that appellant took seven video games and a boxed set of DVD movies from the third drawer of a chest in Sergent’s room. Sergent testified that these items were in the drawer and the drawer was closed when he went to work on the morning of the incident. The drawer was open when Sergent returned after the murder. The evidence shows that appellant’s hands were bloody when he went back to Sergent’s room after the murder. However, the evidence shows that there was no blood found on the drawer or chest. A jury rationally could conclude that appellant removed the seven video games and the boxed set of DVD movies, intending to take them, prior to committing the murder. See Nelson, 848 S.W.2d at 131. We cannot conclude that “the evidence of such aggravating element is so weak that a rational jury might interpret it in such a way as to give it no probative value.” See Robertson, 871 S.W.2d at 706.

          Appellant has not demonstrated that there is evidence from which a jury rationally could find that, if defendant is guilty, he is guilty only of the lesser offense. Guzman, 188 S.W.3d. at 189. We cannot conclude that the evidence establishes the lesser-included offense of murder “as a valid, rational alternative to the charged offense.” See Hall, 225 S.W.3d at 536.

          Accordingly, we overrule appellant’s second point of error.

           Sufficiency of the Evidence

          In his remaining four points of error, appellant argues that the evidence was legally and factually insufficient to support his conviction. Specifically, appellant contends that the evidence is insufficient to show (1) that he formed the intent to steal the video games and console prior to committing the murder and (2) that he appropriated property that belonged to the complainant.

A.      Standards of Review

          A legal sufficiency challenge requires us to determine whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Parker v. State, 192 S.W.3d 801, 804 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). Although our analysis considers all of the evidence presented at trial, we may not re-weigh the evidence and substitute our judgment for that of the fact-finder. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).

          We begin the factual sufficiency review with the presumption that the evidence supporting the jury’s verdict is legally sufficient. Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). When conducting a factual-sufficiency review, we view all of the evidence in a neutral light. See Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997). We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson, 23 S.W.3d at 10–11. Under the first prong of Johnson, “[we] cannot conclude that a conviction is ‘clearly wrong’ or ‘manifestly unjust’ simply because, on the quantum of evidence admitted, we would have voted to acquit had [we] been on the jury.” Watson v. State, 204 S.W.3d 404, 416–17 (Tex. Crim. App. 2006). Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury’s resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury’s verdict. Id.

          When conducting a factual sufficiency review, we must discuss the evidence that, according to appellant, most undermines the jury’s verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). The fact-finder alone determines what weight to give contradictory testimonial evidence because that question depends on how the fact-finder evaluates credibility and demeanor. Cain, 958 S.W.2d at 407–08. As the determinor of the credibility of the witnesses, the fact-finder may choose to believe all, some, or none of the testimony presented. Id. at 407 n. 5.

B.      Applicable Law

          A person commits capital murder if he commits murder as defined under Section 19.02(b)(1) and, inter alia, the person intentionally commits the murder in the course of committing or attempting to commit . . . robbery.” Tex. Pen. Code Ann. § 19.03(a)(2). A person commits murder if he “intentionally or knowingly causes the death of an individual.” Id. § 19.02(b)(1) (Vernon 2003). A person commits robbery if, in the course of committing theft, as defined in Chapter 31, and with intent to obtain or maintain control of property, he intentionally, knowingly, or recklessly causes bodily injury to another, or intentionally or knowingly places another in fear of imminent bodily injury or death. Id. § 29.02(a). Theft is the unlawful appropriation of property with the intent to deprive the owner of the property. Tex. Pen. Code Ann. § 31.03 (Vernon Supp. 2006).

          A person acts intentionally with respect to a result of his conduct when it is his conscious objective or desire to engage in the conduct or to cause the result. Tex. Pen. Code Ann. § 6.03(a) (Vernon 2003). A jury may infer intent from a defendant’s acts, words, and conduct; from the nature of the crime; and from the wounds inflicted on the victim. Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002); McGee v. State, 923 S.W.2d 605, 608 (Tex. App.—Houston [1st Dist.] 1995, no pet.).

C.       Legal Sufficiency

           In his third and fifth points of error, appellant contends that the evidence is legally insufficient to support his conviction. Specifically, appellant contends that the State failed to prove (1) that he formed the intent to take the video game equipment before or at the time of the murder, rather than as an afterthought, and (2) that he unlawfully appropriated property of the complainant.

           1.       Formation of intent to rob

           Here, the State presented evidence that appellant intentionally caused the death of the complainant. The evidence shows that appellant admitted that he struck the complainant in the head with a paperweight and then cut her neck with a butcher knife. The evidence shows that wound he inflicted was very deep and that a tremendous amount of blood loss occurred. In addition, the evidence shows that appellant wrapped a telephone cord around the complainant’s neck. From this evidence, the jury could infer that appellant intended to kill the complainant. See Hart, 89 S.W.3d at 64; McGee, 923 S.W.2d at 608.

           As discussed above, for a murder to constitute a capital murder committed in the course of a robbery, the intent to rob must be formulated before or at the time of murder. Herrin v. State, 125 S.W.3d 436, 441 (Tex. Crim. App. 2002). Proof that the robbery was an afterthought and unrelated to the murder is not sufficient. Id.

           The evidence shows that, at 6:00 p.m. on December 3, 2004, appellant went to an apartment shared by the complainant and Sergent expecting money and a microphone from Sergent. When appellant arrived, Sergent was not at the apartment. The complainant called Sergent at 6:30 p.m. and reminded him that appellant was there. Sergent told the complainant to tell appellant to “sit tight” and play Sergent’s videogames. The evidence shows that Sergent and Keller arrived at Sergent’s apartment at approximately 7:45 p.m. and found the complainant deceased on the living room floor. Sergent discovered that video games and movies were missing. Evidence that property was discovered missing at the time the victim’s body was discovered supports an inference that the murder was committed in the course of the robbery. See Roberts v. State, 220 S.W.3d 521, 526 (Tex. Crim. App. 2007) (citing Cooper v. State, 67 S.W.3d 221, 223 (Tex. Crim. App. 2002)).

           Appellant admitted that he killed the complainant and that, immediately afterward, he took video games and a console from the complainant’s apartment. The evidence shows that appellant pawned seven video games, a console, and a boxed set of DVD movies the day after the incident. The evidence also shows that appellant purchased a microphone from the pawn shop at the same time. From this evidence, the jury rationally could have inferred that appellant intended to steal the video games and console. See Cooper, 67 S.W.3d at 223–24 (reaffirming inference that murder is committed in course of committing robbery when robbery occurs immediately after murder); Hart, 89 S.W.3d at 64; McGee, 923 S.W.2d at 608.

           The evidence shows that appellant took the seven video games and boxed set of DVD movies from the third drawer of a chest in Sergent’s room. Sergent testified that these items were in the drawer, that the drawer was closed when he went to work on the morning of the incident, and that the drawer was open when Sergent returned after the murder. The evidence shows that appellant’s hands were bloody when he went back to Sergent’s room after the murder. However, the evidence shows that there was no blood found on the drawer or chest. From this evidence, the jury rationally could infer that appellant’s intent to steal video games and boxed set of DVD movies was formed prior to committing the murder. See Hart, 89 S.W.3d at 64; McGee, 923 S.W.2d at 608.

           Viewing the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found beyond a reasonable doubt that appellant formed the intent to rob the complainant prior to the time he committed the murder. See Johnson, 23 S.W.3d at 7.

           2.       Appropriation of property of the complainant

           Appellant contends that the State failed to prove that he unlawfully appropriated property belonging to the complainant because the complainant was not the owner of the video game equipment. Appellant contends that the property he took belonged to Sergent.

           A person commits robbery if, in the course of committing theft, as defined in Chapter 31, and with intent to obtain or maintain control of property, he intentionally, knowingly, or recklessly causes bodily injury to another, or intentionally or knowingly places another in fear of imminent bodily injury or death. See Tex. Pen. Code Ann. § 29.02(a). A person commits theft “if he unlawfully appropriates property with intent to deprive the owner of property.” See Tex. Pen. Code Ann. § 31.03.

           The definitional portion of the jury charge provided that “‘[a]ppropriation’ and ‘appropriate,’ as those terms are used herein, mean to acquire or otherwise exercise control over property other than real property.” In addition, “[a]ppropriation of property is unlawful if it is without the owner’s effective consent.” The jury was instructed that “owner” means a person who has title to the property, possession of property, or a greater right to possession of the property than the actor. See Tex. Pen. Code Ann. § 1.07(35) (Vernon Supp. 2006). In addition, “possession” means actual care, custody, control, or management of the property. See id. § 1.07(39).

           Under the statutory definitions given in the jury charge, the complainant was the “owner” of the video game equipment if she had a greater right to possession of the items than appellant. See Threadgill v. State, 146 S.W.3d 654, 663–64 (Tex. Crim. App. 2004). The evidence shows that the items at issue belonged to her son, Sergent, and that they were kept in Sergent’s room, in the complainant’s apartment. Appellant stated in his statement, that was admitted into evidence, that he “got their Playstation.”

          Viewing the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found beyond a reasonable doubt that the complainant had a greater right to possess her son’s video games, console, and movies than did appellant. See Threadgill, 146 S.W.3d at 664. We hold that the evidence is legally sufficient to support the jury’s verdict. See Johnson, 23 S.W.3d at 7.

          Accordingly, we overrule appellant’s third and fifth points of error.

D.      Factual Sufficiency

          In his fourth and sixth points of error, appellant argues that the evidence is factually insufficient to support his conviction. Specifically, appellant contends that the evidence fails to show (1) that he formed the intent to take the video game equipment before or at the time of the murder, rather than as an afterthought, and (2) that he appropriated property of the complainant.

          As fully discussed above, the State presented legally sufficient evidence that appellant formed the intent to rob the complainant prior to the time he committed the murder.

          Appellant contends that the evidence is factually insufficient to show that he formed the intent to take the video game equipment and movies before or at the time of the murder, rather than as an afterthought, because

[t]he circumstances are as such that a rational jury might have inferred that the appellant caused the death of the complainant in order to unlawfully appropriate the video game equipment and DVDs. However, the circumstances are also as such that it was unlikely that the complainant would have even noticed, let alone put up any kind of a struggle, had the appellant merely walked out with the property.

          This factor, even if true, does not render the evidence factually insufficient.

          Appellant also contends that the evidence is factually insufficient to show that he appropriated property of the complainant. As discussed above, the evidence shows that the complainant had greater right of possession in the property than did appellant. See Alexander v. State, 753 S.W.2d 390, 392 (Tex. Crim. App. 1988). No evidence showed that appellant had any right to possess the stolen items.

          Viewing all of the evidence in a neutral light, we cannot conclude that the evidence is so weak that the verdict is clearly wrong and manifestly unjust or that the verdict is against the great weight and preponderance of the evidence. See Johnson, 23 S.W.3d at 9–10. We hold that the evidence is factually sufficient to support the jury’s verdict.

          Accordingly, we overrule appellant’s fourth and sixth points of error.

Conclusion

We affirm the judgment of the trial court.



Laura Carter Higley

Justice

Panel consists of Justices Taft, Hanks, and Higley.

Do not publish. See Tex. R. App. P. 47.2(b).