Michael Jerome Williams v. State ( 2001 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Michael Jerome Williams

Appellant

Vs.                   No. 11-99-00319-CR B Appeal from Dallas County

State of Texas

Appellee

The jury convicted Michael Jerome Williams of murder and assessed his punishment at 17 years imprisonment and a fine of $7,500. We affirm.

In his first and second points of error, appellant challenges the legal and factual sufficiency of the evidence to support the verdict.  Specifically, appellant claims that the evidence is both legally and factually insufficient to show that he intentionally or knowingly killed the victim.

When an appellant raises both legal and factual sufficiency challenges, we first evaluate the legal sufficiency.  Clewis v. State, 922 S.W.2d 126, 133 (Tex.Cr.App.1996).  We review all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319 (1979); Clewis v. State, supra at 132. In reviewing the factual sufficiency of the evidence, we conduct a neutral review of the trial court=s findings and determine whether the proof of guilt is so weak as to undermine the confidence in the jury=s determination or whether the proof of guilt is heavily outweighed by contrary proof.  Johnson v. State, 23 S.W.3d 1, 11 (Tex.Cr.App.2000).

Around 10:00 p.m., Billy Joe Dye went to a friend=s house to check on the victim.  Dwight Hill, Jr. was at the friend=s house, and he told Dye that the victim was in the kitchen.  Dye went into the kitchen where the victim was slicing meat.  Dye had a heated conversation with the victim.  Appellant came into the kitchen where he and Dye began to scuffle.  The victim stood next to Dye during the scuffle.  Appellant pulled a gun and pointed it at Dye.  Dye tried to knock the gun away from appellant, but appellant fired the gun and shot the victim in the head and killed her. Appellant left the scene immediately following the killing.

We have reviewed the entire record, and the evidence is both legally and factually sufficient to support the verdict.  It appears to this court that appellant=s theory is that the killing was not intentional or knowing.  The jury was not obligated to believe appellant=s theory that the killing was neither intentional or knowing.  Murder is a result-oriented offense.  See Cook v. State, 884 S.W.2d 485, 490 (Tex.Cr.App.1994).  Appellant must intend that death result or have been aware his conduct was reasonably certain to cause death.  See Cook v. State, supra at 490.  AA specific intent to kill can be inferred from the use of a deadly weapon.@  Wilson v. State, 948 S.W.2d 21, 24 (Tex.App. B Eastland 1997, pet=n ref=d).  Here, appellant used a deadly weapon in the offense.  Moreover, A[t]he intent to kill may be inferred from the nature of the injury inflicted and flight from the scene.@  Wilkerson v. State, 881 S.W.2d 321, 324 (Tex.Cr.App.1994); Wilson v. State, supra at 24.   In this case, appellant left the scene immediately after he shot and killed the victim.

The jury apparently chose to believe the State=s theory and to reject appellant=s theory that he did not intentionally or knowingly kill the victim.  The evidence as well as the permitted inferences are sufficient to sustain the verdict.  See Edwards v. State, 344 S.W.2d 687, 689 (Tex.Cr.App.1961). The first and second points of error are overruled.

In his third point of error, appellant challenges the application of law to the facts in the jury charge pertaining to voluntary conduct and transferred intent.  Appellant claims that he was entitled to instructions on voluntary conduct and transferred intent. 

Appellant objected to the jury charge and requested an instruction on voluntary conduct.  Here, there is no error because appellant submitted no evidence to raise the issue of voluntariness.  Moreover, if there was error, when error has been properly preserved, to obtain a reversal based on an omitted instruction, appellant must show the error is Anot harmless.@  Almanza v. State, 686 S.W.2d 157, 171 (Tex.Cr.App.1985).  A jury instruction on voluntariness is appropriate when requested Aif the admitted evidence raises the issue of the conduct of the actor not being voluntary.@  Brown v. State, 955 S.W.2d 276, 280 (Tex.Cr.App.1997).  Appellant made a clearly physical body movement by pulling on the trigger to fire the gun.  Appellant put forth no evidence that the firing of the gun which killed the victim was involuntary.  Even if it was error that no instruction was given in the jury charge on voluntariness, the error is harmless.  The trial court correctly determined that appellant was not entitled to a jury instruction on voluntariness.

Appellant made no objection or request for an instruction on transferred intent.  In this case, we find that the trial court did not err in not including an instruction on transferred intent; the jury could have convicted appellant without considering transferred intent.  Moreover, if there was error, a reversal may only be obtained when the error is fundamental, causing appellant to suffer Aegregious harm@ from a trial that was unfair and not impartial.  Almanza v. State, supra at 171.  Appellant has not shown a fundamental error that rendered his trial unfair and not impartial in connection with his contention that the jury could find transferred intent from his alleged desire to stop a fight between Dye and the victim.  Because appellant suffered no egregious harm from the omission of an instruction on transferred intent, the trial court correctly determined that appellant was not entitled to such an instruction.  Point of Error No. 3 is overruled.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

JUSTICE

October 18, 2001

Do not publish.  See TEX.R.APP.P. 47.3(b).

Panel consists of:  Arnot, C.J., and

Wright, J., and McCall, J.