Ollie Berry v. State ( 1995 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-94-00117-CR



Ollie Berry, Appellant

v.

The State of Texas, Appellee



FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT NO. 0933671, HONORABLE MICHAEL LYNCH, JUDGE PRESIDING

PER CURIAM

A jury found appellant guilty of attempted murder. Act of May 8, 1975, 64th Leg., R.S., ch. 203, § 4, 1975 Tex. Gen. Laws 476, 478 (Tex. Penal Code Ann. § 15.01, since amended). The district court assessed punishment, enhanced by two previous felony convictions, at imprisonment for forty years. Appellant's only point of error is that the evidence is legally insufficient to sustain the conviction.

Michelle Presley lives across the street from LBJ High School in Austin. On the afternoon of July 7, 1993, she noticed a car parked in the school parking lot with several people inside. Around 6:00 p.m., Presley and her cousin, Faneicia Stewart, left Presley's house and drove away with Presley's boyfriend, Quincy Reese, in Reese's car. The car Presley had seen earlier that afternoon was still in the parking lot. Presley and Reese recognized appellant as the driver. As Reese's car pulled away from Presley's house, appellant's car followed.

With appellant in his car were Damion Dewitty, Terrence Clark, and Donald Green. At least two of appellant's three passengers had a firearm. According to appellant's statement to the police, he followed Reese's car at Green's request. A witness who was in a third vehicle that was temporarily between the cars driven by appellant and Reese testified that the four occupants of appellant's car were looking at Reese's car with "serious" expressions. This witness also described the reckless manner in which appellant drove in order to overtake Reese. After several blocks, appellant pulled his car beside Reese's. Several shots were fired into Reese's car from the back seat of appellant's car. One bullet struck Presley in the head. After the shots were fired, appellant rapidly drove away from the scene.

Appellant contends the State failed to prove that he had the specific intent to kill. See Flanagan v. State, 675 S.W.2d 734, 741 (Tex. Crim. App. 1984) (opinion on rehearing) (intent to kill is necessary element of attempted murder). While an intent to kill may be inferred from the use of a deadly weapon, Id. at 744, it is undisputed that appellant did not fire the shot that struck Presley.

The district court instructed the jury on the law of parties. Tex. Penal Code Ann. §§ 7.01, 7.02 (West 1994). The application paragraph of the court's charge authorized appellant's conviction for attempted murder on a finding that "either acting alone or as a party, . . . with the specific intent to commit the offense of murder, [he] did then and there attempt to cause the death of an individual, Michelle Presley, by shooting her with a firearm." Appellant did not object to the court's failure to more specifically apply the law of parties to the facts of the case and the charge is sufficient to authorize appellant's conviction on the theory that he was criminally responsible for the conduct of another. Chatman v. State, 846 S.W.2d 329, 332 (Tex. Crim. App. 1993).

A person is criminally responsible for an offense committed by the conduct of another if, acting with the intent to promote or assist the commission of the offense, he aids or attempts to aid the other person to commit the offense. Pen. Code § 7.02(a)(2). In determining whether a defendant participated in an offense as a party, the court may examine the events occurring before, during, and after the commission of the offense, and may rely on actions of the defendant which show an understanding and common design to commit the offense. Burdine v. State, 719 S.W.2d 309, 315 (Tex. Crim. App. 1986).

In determining the legal sufficiency of the evidence to support a criminal conviction, the question is whether, after viewing all 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. Jackson v. Virginia, 443 U.S. 307 (1979); Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991); Griffin v. State, 614 S.W.2d 155 (Tex. Crim. App. 1981). Appellant and his companions were repeatedly seen outside Presley's house on the afternoon in question. Appellant knew that Green and Dewitty were armed with pistols. When Presley, Stewart, and Reese left Presley's house and drove away, appellant and his companions followed. That this was not mere coincidence is apparent from the deliberate manner in which appellant followed and overtook Reese. After the shots were fired, appellant sped away. A rational trier of fact, viewing this evidence in the light most favorable to the verdict, could find beyond a reasonable doubt that one of appellant's passengers shot Presley with the intent to kill. The trier of fact could also rationally find that appellant intentionally aided the commission of this offense. See Romo v. State, 568 S.W.2d 298, 303-04 (Tex. Crim. App. 1978) (opinion on rehearing); Buitureida v. State, 684 S.W.2d 133, 144 (Tex. App.--Corpus Christi 1984, pet. ref'd) (affirming convictions as party to murder).

Appellant's point of error is overruled and the judgment of conviction is affirmed.

Before Chief Justice Carroll, Justices Aboussie and Jones

Affirmed

Filed: May 17, 1995

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