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Bateman, Phernell Dion v. State ( 2004 )


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  • Affirmed and Opinion filed June 22, 2004

    Affirmed and Opinion filed June 22, 2004.

     

    In The

     

    Fourteenth Court of Appeals

    ____________

     

    NO. 14-03-00150-CR

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    PHERNELL DION BATEMAN, Appellant

     

    V.

     

    THE STATE OF TEXAS, Appellee

     

      

     

    On Appeal from the 208th District Court

    Harris County, Texas

    Trial Court Cause No. 935,180

     

      

     

    O P I N I O N

    Appellant, Phernell Dion Bateman was convicted by a jury of murder and sentenced to 40 years incarceration in the Texas Department of Criminal Justice, Institutional Division.  In twenty issues, appellant claims the evidence is legally and factually insufficient to support his conviction and the trial court erred in overruling his motion to suppress.  We affirm.


                                                    I. Background

    On January 13, 2001, the complainant, Mosa Maimane, arrived at the Top Flight night club with Bruce Joseph and Monte Harris around midnight. Joseph was on the dance floor while Maimane and Hall sat at a table.  While Joseph was on the dance floor, the DJ started calling out the names of neighborhoods. Joseph testified that when the DJ called out ABraeswood,@ appellant was walking towards him, Athrowing up a neighborhood sign,@ and he pushed appellant away from him.  However, Joseph later testified that he never had any physical contact with appellant, but only put his arms out to keep appellant from getting too close to him.  According to Joseph, appellant left the dance floor, made a phone call, and walked out of the club.  Joseph did not see appellant again until after the club had closed, when he, Harris, and Maimane attempted to leave the premises. 

    Upon leaving the club, Joseph and Maimane leaned against a car in the parking lot waiting for Harris to finish his conversation with a woman.  Joseph testified that he saw appellant on the driver=s side of his car putting on a jacket and a hat; appellant was looking at him.  Joseph did not see appellant display a weapon, but it appeared to him that appellant was Afixing to do something to [him].@  Joseph saw appellant get in his car. 

    When Harris finished his conversation, Joseph and Maimane got in Harris=s car.  Harris was in the driver=s seat, Joseph was in the front passenger seat, and Maimane was in the back seat behind the driver.  They were getting ready to leave when appellant=s car pulled up next to their car.  The passenger window of appellant=s car rolled down and Joseph saw the passenger.  When Joseph heard shots, he ducked down. Harris tried to drive away when he heard the shots.  The first shot shattered the passenger window.  Joseph and Harris heard about six or seven shots. 


    Immediately after the shooting, appellant=s vehicle drove away.  Joseph got out of the car and called 911.  Harris was shot in the leg and was transported to the hospital by ambulance.  Joseph realized something was wrong with Maimane when the paramedics looked inside the car, but never rendered any treatment.  Maimane died of a gunshot wound to the back of the head. 

    Joseph gave a statement to the police later that morning after the shooting. During the investigation, he viewed two photo spreads at the police station.  Joseph picked out appellant=s photo as the person he saw in the night club and who later was driving the car that pulled along side of him at the time of the shooting. The second photo spread contained the photo of the passenger in appellant=s car. Joseph was not able to identify the passenger.

              Harris saw the passenger in appellant=s car holding the gun.  Harris was not able to identify appellant in the lineup or the photo spread, but he was able to identify the co-defendant, Aaron Nollie, as the passenger from a photo spread. 

    Aaron Nollie pled to guilty to the murder of Maimane and is serving a 35-year prison sentence in the Texas Department of Corrections.  At appellant=s trial Nollie testified that he and appellant were friends. Nollie saw appellant at the club that night; they had arrived separately.  Nollie was standing at the bar when appellant came up to him and told him Ahe had got into it with some dudes.  He was fixing to leave and go get his gun.@ Nollie told appellant, Athat=s on you,@ and appellant left the club. 

    Nollie next saw appellant about 45 minutes later when appellant told him that his gun was in the car.  Nollie walked out to the car with appellant.  The gun looked like a machine gun.  Appellant and Nollie got in the car and drove to the other side of the parking lot.  They sat in the car and talked.  Appellant told Nollie that Ahe was going to do what he had to do.@ When three males were coming out of the club, appellant pointed and showed Nollie the car they were getting into. Nollie recognized one of the guys as a regular at the club.  Appellant told Nollie that Ahe got into it with some dudes.  They was throwing signs.  He threw up some signs and they began to argue.@ Appellant wanted to shoot them, but Nollie told him not to do that because there were a lot of people in front of the club who would have seen him. 


    Nollie and appellant saw a female get into the car with the three guys.  According to Nollie, after the female got out of the car, appellant, who was driving, pulled up on the left side the other car. The window of appellant=s car was already rolled down some because Nollie had been smoking a cigarette.  Appellant Aslammed@ the car into park, slid over to Nollie=s side, and began shooting at the other car.  Appellant then slid back over to his seat, put the car in drive, and drove away.

    Nollie told appellant to drop him off at his house.  Nollie had already given the keys to his car to a friend and that friend had left the club in Nollie=s car prior to the shooting.  Nollie did not call the police, but he told a friend=s girlfriend what had happened.  A month later, appellant came to Nollie=s house to get his friend to break down the gun so he could hide it.

    After Nollie pled guilty to shooting Maimane, the prosecutor talked to him about testifying in appellant=s case.  Nollie denied shooting Maimane and owning the gun.  Nollie later found out that appellant had identified him as the shooter.

    Landis Robinson testified that on January 13, 2001, he was at the apartment of his friend, Changa, at the Natchez Apartments with several other people, including appellant.  Appellant left Changa=s apartment to go to the club.  Robinson was asleep on the couch when appellant returned to Changa=s apartment at 3:00 or 4:00 a.m.  Robinson Acould tell that [appellant] had a very active night.@  Appellant was not Ahis normal self@; he was nervous and mad.  According to Robinson, appellant said AKilled the motherf-----s B we killed the motherf------s.@ 

    According to Robinson, appellant said he was at the club when A[t]hey was throwing up their hoods.@  Appellant was throwing up the sign for Southwest Houston when a Adude walked up and slapped his hands down and put Hiram Clarke in his face.@  Appellant said he was about to get into fight when Nollie broke it up.  Appellant went outside to get his assault rifle from his car and was going to return to the club, but Nollie told him not to. 


    Robinson further testified that appellant said he got in the car; Nollie was driving. They waited for the guys to come out of the club, and then appellant started shooting, and they drove off. Robinson stated that when an article about the shooting appeared in the newspaper appellant stated, AWell, I didn=t do it, you know, [Nollie] did it.  I was driving.@  Appellant told Robinson that he would have to watch him because Robinson was from Hiram Clarke, the same area as the victims.  Appellant also stated, AI=m through fighting.  Anybody I have a problem with, I=m going to blow them away.@

    On January 22, 2001, Detective James Bozeman received a call from an auto theft detective that a jail inmate had information concerning the shooting.  Robinson gave Bozeman and his partner, P.T. Yochum, a statement and relayed what he knew about the night of the shooting.  Bozeman and Yochum were then able to develop leads on Nollie, appellant, and the vehicle used in the shooting.

    Robinson called Bozeman on January 27, 2001, and told him the car involved in the shooting was at the Natchez Apartments.  Bozeman and Yochum went with Robinson to the apartment complex that day. Robinson showed them the car that was involved in the shooting.

    Because Bozeman was out of town on January 28, 2001, Sergeant James Ramsey was asked to assist Yochum in this investigation.  Ramsey received information that there was a gold Cutlass, which was involved in the shooting, located at the Natchez Apartments. Ramsey instructed Yochum to go to the apartment complex to see if the vehicle was still there.  Ramsey told Yochum to call him if he located the vehicle; Ramsey would then start work on obtaining a search warrant for the vehicle.

    Yochum called Ramsey and told him that he had located the gold Cutlass, but there was a black Cutlass parked next to it and several individuals were moving back and forth between the two vehicles.  It appeared to Yochum that something was being removed from the gold Cutlass and placed in the black Cutlass.  Yochum believed both vehicles were about to leave.  Ramsey instructed Yochum to call for some uniformed units to help him secure the vehicles and the individuals around them.  When Ramsey arrived at the scene, four individuals were being detained separately in four patrol cars. 

    Appellant admitted to Yochum that he owned both vehicles and claimed he was planning to sell the gold Cutlass.  Ramsey asked appellant if he would give his consent to search the two vehicles and explained to appellant that he was not obligated to give his consent.  Appellant told Ramsey he was the owner of both vehicles and gave his consent to search.  Ramsey had the gold Cutlass vehicle towed to an HPD examination building, and the black Cutlass photographed, inventoried of its contents, and towed.  No gun or ammunition was found in the black Cutlass, but a bill of sale indicating that the gold Cutlass had been sold to appellant was recovered.  Appellant was transported to the police station.

    Ramsey also obtained written consent from appellant to search his room at his grandparents= house.  Ramsey met with appellant=s grandmother, who also gave written consent.  The police did not find any weapons or ammunition in appellant=s room. 

    On February 22, 2001, Bozeman and Yochum talked to appellant=s grandmother and grandfather at their house.  Later that day, appellant=s grandmother called Bozeman and Yochum, stating that she wanted to bring appellant in; she brought appellant in and they interviewed him. Appellant gave a verbal statement, which was not recorded.  Yochum showed appellant a photo spread, which included a photo of Aaron Nollie. Appellant identified Nollie as the shooter.  Appellant told them he was the driver.  Appellant was cooperative and was free to leave. 


    The police recovered a spent shell casing from the parking lot of the club and another shell casing from underneath the backseat of the gold Cutlass.  A bullet was recovered from complainant during the autopsy.  Mohamed Al-Mohamed, an HPD firearms examiner, examined the two spent shell casings and determined that the two casings were fired from the same gun.  Based on the general rifling characteristics, Al-Mohamed determined the bullet recovered from the complainant=s body was fired from a High Point, and the casings could have come from a High Point 9mm Luger pistol or rifle. 

    Appellant testified that he saw Nollie at the club on January 13, 2001.  The club DJ was yelling, Aput your hoods up in the air.@  The dance floor was crowded.  Appellant did not recognize Joseph as having been on the dance floor and he did not have any altercations with anyone on the dance floor that night. 

    Appellant walked outside by himself about five minutes before the club closed to use the phone.  Appellant agreed to give Nollie a ride home.  Appellant went to his car and put on his coat and hat.  Appellant did not complain to Nollie about any problems with anyone in the club.  Appellant started to drive away when Nollie told him to stop; appellant stoppedCNollie rolled down the window, pulled out a gun, and started shooting.  After the shooting stopped, Nollie said, Adrive, drive, go, go, go, go, go, go!@ Appellant drove away.  Nollie had not given appellant any indication of why he wanted appellant to stop.  Appellant had not seen Nollie with a gun that evening before the shooting. 

    Appellant drove to his mother=s house, left his car there, and had a friend drop him off at the Natchez Apartments.  Appellant spoke to Robinson, but never told him that he shot at the other car; instead, he told Robinson that Nollie had shot at someone in a car.  He told Robinson that if the police asked him about the murder, he Awas going to give [Nollie] up.@

    Appellant testified that he did not aid, assist, direct, or solicit Nollie to shoot at the other car; nor did he provide Nollie with a gun.  Appellant stated that he purchased the gold Cutlass on January 9, 2001, and was scheduled to finish paying for the vehicle on January 12, 2001. Appellant claimed that did not tell Yochum or Ramsey that he planned to sell the gold Cutlass and keep the black Cutlass. 


                                             II. Motion to Suppress

    In his seventeenth through twentieth issues, appellant complains the trial court abused its discretion in overruling his motion to suppress.  A trial court=s ruling on a motion to suppress is reviewed under an abuse of discretion standard.  Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999).  In a hearing on a motion to suppress, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony.  State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). Because the trial court observes the demeanor and appearance of the witnesses, it may believe or disbelieve all or any part of a witness= testimony, even if that testimony is controverted.  Id.  When, as in this case, the trial court does not file findings of fact, we view the evidence in the light most favorable to the trial court=s ruling and assume the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record.  Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000). 

    Prior to the start of trial, the trial court conducted a hearing on appellant=s motion to suppress.  At the hearing, Yochum testified that on January 28, 2001, he received information that a gold-colored, two-door Oldsmobile Cutlass Supreme, with Texas license plate number AWTK 44D,@ which had been involved in this case, was located at an apartment complex.  Sergeant James Ramsey told Yochum that if the car were at the apartment complex, he would start drawing up a search warrant.  Yochum located the gold Cutlass; however, he also observed several men standing around it and another black vehicle parked next to it.  The hoods and trunks of both vehicles were open. It appeared to Yochum that the men were moving items from the gold Cutlass to the black car.  Yochum was concerned that they were losing or were going to lose evidence in a murder case. 


    Yochum called Ramsey and described what he had observed.  Ramsey advised Yochum to call for patrol officers to assist him in detaining everyone around the gold Cutlass and in seizing the vehicle.  With weapons drawn, the police ordered everyone to lie down on the ground.  All the individuals were handcuffed and separated.  Appellant was placed in the back seat of a patrol car.  Appellant admitted that he was the owner of the gold Cutlass. 

    When Ramsey arrived at the scene, he took appellant out of the patrol car and removed the handcuffs.  Appellant told Ramsey that they were switching a battery from one car to the other. Ramsey had appellant sign two consent to search formsCone for the gold Cutlass and one for the black vehicle. Ramsey explained to appellant the content of the consent forms and told him he was under no obligation to sign them. Ramsey than allowed appellant to read the consent forms.  Appellant did not appear to be intoxicated, but was alert, coherent, and cooperative. Ramsey did not make any threats or promises to appellant in order to obtain his signature.  Nor did Ramsey have his weapon drawn. 

    Officers Carlos Miller and Alberto Elizondo, who witnessed the consent to search forms, were standing about 10 feet behind Ramsey while he discussed the forms with appellant.  Miller and Elizondo confirmed that Ramsey did not threaten appellant, make appellant any promises, or have his weapon drawn.  Like Ramsey, Miller and Elizondo did not make any threats or promises, and did not have their weapons drawn.  Miller and Elizondo both testified that appellant was given time to read the forms and appeared to understand them. 

    After appellant=s consent to search had been obtained, the gold Cutlass was towed to the HPD examination building.  Appellant was transported to the HPD central jail facility.  Appellant gave a statement and was then placed back into detention.  After the police interviewed the other individuals who had been detained in the parking lot of the apartment complex, appellant participated in a video lineup. Appellant was released without being charged.  On January 30, 2001, a search warrant was obtained. 


                                              A.  Investigatory Detention

    Appellant argues he was arrested when he was handcuffed and because there was no probable cause to arrest him, the trial court erred in not suppressing the shell casing and bill of sale recovered from his vehicles and any statements he made while in custody.  The State argues appellant was not arrested when he was handcuffed, but was merely detained for further investigation. 

    An arrest occurs when a person=s liberty of movement is restricted or restrained.  Amores v. State, 816 S.W.2d 407, 411 (Tex. Crim. App. 1991).  An investigative detention occurs when the police stop and briefly detain an individual to ascertain his identity, the reason for being in the area, or other such similar inquiry.  Id. at 412. 

    Handcuffing or ordering a suspect to lie down before questioning does not necessarily convert an investigative detention into an arrest.  Goldberg v. State, 95 S.W.3d 345, 360 (Tex. App.CHouston [1st Dist.] 2002, pet. ref=d), cert. denied, __ U.S. __, 124 S. Ct. 1436 (2004); Nargi v. State, 895 S.W.2d 820, 822 (Tex. App.CHouston [14th Dist.] 1995), pet. dism=d, improvidently granted, 922 S.W.2d 180 (Tex. Crim. App. 1996).  The Texas Court of Criminal Appeals has rejected the notion that there is a Abright-line@ rule that mere handcuffing always constitutes an arrest. Rhodes State, 945 S.W.2d 115, 118 (Tex. Crim. App. 1997). 

    Whether an individual is under arrest is not to be determined solely by the opinion of the arresting officer; instead, the officer=s opinion is a factor to consider in addition to facts and circumstances of the detention.  Amores, 816 S.W.2d at 412.  Law enforcement officers may use such force as is reasonably necessary to effect the goal of the stop: investigation, maintenance of the status quo, or officer safety.  Rhodes, 945 S.W.2d at 117.  Reasonableness must be judged from the perspective of a reasonable officer, rather than with the advantage of hindsight.  Id. at 118.  Moreover, allowances must be made for the fact that officers must make quick decisions under tense, uncertain, and rapidly changing circumstances.  Id.


    An investigative detention implies that the obtrusive act is for the purpose of actually investigating.  Burkes v. State, 830 S.W.2d 922, 925 (Tex. Crim. App. 1991).  Thus, where no investigation is conducted, the detention cannot be considered investigatory and rises to the level of an arrest.  Id. 

    In Goldberg, an officer was dispatched to a residence to seize a vehicle in a murder investigation.  95 S.W.3d at 360.  Appellant arrived at the house and approached the officer.  Id. at 356.  At that time, the officer was clearly conducting an investigation when the appellant arrived in a different vehicle and approached him.  Id. 360.  When the appellant responded that he was the person the officer was seeking, the officer handcuffed him.  Id. at 356.  The court of appeals held that it was reasonable, in light of the fact that a brutal murder had just occurred, for the officer to handcuff the appellant for the officer=s own safety while attempting to determine whether the appellant had been driving the vehicle that day and to continue to detain the appellant while he completed his investigation of the scene.  Id. at 360.

    In Hilla v. State, the police arrived at the house where appellant was believed to be and observed the car identified as having been involved in an assault parked at the house.  832 S.W.2d 773, 778 (Tex. App.CHouston [1st Dist.] 1992, pet. ref=d). When the police approached the front door and knocked, they received no response even though they could hear voices inside.  Id. When the police entered the house, they handcuffed appellant and told him to lie down on the floor.  Id. at 777B78.  The court observed that in order to continue the investigation, the police needed to secure their own safety and that of the others in the house.  Id. at 778.  The court further observed that a violent assault had occurred, resulting in a murder, and based on the presence of the car, it was likely that some of the suspects could be in the house.  Id. The court held that based on the facts and circumstances, appellant was subject only to an investigative detention, not an arrest.  Id.


    Here, Yochum testified that the gold Cutlass was the focus of the investigation. Yochum went to the apartment complex to locate the gold Cutlass.  However, when Yochum arrived at the scene, he observed what appeared to be several individuals moving things from the suspect vehicle to another vehicle.  Yochum believed the vehicles were about to leave, and he was concerned they were going to lose evidence in the murder case. Ramsey instructed Yochum to call for uniformed patrol units to detain everyone until he could arrive.  Given that appellant=s vehicle had been identified as being in involved in a murder, it was reasonable for Yochum to handcuff appellant for safety reasons while securing the scene for further investigation.  See Goldberg, 95 S.W.3d at 360; Hilla, 832 S.W.2d at 778. 

                                              B.  Reasonable Suspicion

    Having determined that appellant=s detention was an investigatory detention rather than an arrest, we next consider whether appellant=s investigatory detention was based upon reasonable suspicion.  Before a detention is justified, the officer must possess reasonable suspicion to detain the suspect, i.e., the officer must have specific, articuable facts, which, in light of his experience and general knowledge, together with rational inferences from those facts, would reasonably warrant the intrusion on the freedom of the citizen stopped for investigation.  Gurrola v. State, 877 S.W.2d 300, 302 (Tex. Crim. App. 1994).  The articuable facts Amust create some reasonable suspicion that some activity out of the ordinary is occurring or has occurred, some suggestion to connect the detainee with the unusual activity, and some indication the unusual activity is related to crime.@  Garza v. State, 771 S.W.2d 549, 558 (Tex. Crim. App. 1989).  There need only be an objective basis for the stop; the subjective intent of the officer is irrelevant.  Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001).

    The determination of reasonable suspicion is made by considering the totality of the circumstances.  Id. In conducting the totality of the circumstances determination, the reviewing court uses a bifurcated standard of review: (1) giving almost total deference to a trial court=s determination of historical facts and application of law to fact questions that turn on credibility and demeanor, and (2) reviewing de novo application of law to fact questions that do not turn on credibility and demeanor.  Id. In other words, we give almost total deference to the trial court=s determination of the actual facts and review de novo whether those facts are sufficient to give rise to reasonable suspicion.  Id. 

    The gold Cutlass had been identified as having been involved in the murder of Maimane. It appeared to Yochum that items were being removed from that vehicle and it was going to be moved from the parking lot of the apartment complex.  Appellant admitted to Yochum that he owned the gold Cutless.  Under these circumstances, it was reasonable for Yochum to suspect that appellant was involved in the shooting and to detain him for further investigation. 

                                                 C.  Consent to Search

    We next consider whether appellant=s consent to the search of the gold Cutlass was voluntary. Consent to search is one of the well-established exceptions to the constitutional requirements of both a warrant and probable cause.  Guevara v. State, 97 S.W.3d 579, 582 (Tex. Crim. App. 2003).  However, to be a valid exception, such consent must be voluntary.  Reasor v. State, 12 S.W.3d 813, 817 (Tex. Crim. App. 2000).  Consent is not established by showing nothing more than acquiescence to a claim of lawful authority.  Carmouche, 10 S.W.3d at 331.  The trial court A>must [assess] the totality of all the surrounding circumstancesCboth the characteristics of the accused and the details of the interrogation.=@  Reasor, 12 S.W.3d at 818 (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)). ABy looking at the circumstances leading up to the search, the reaction of the accused to pressure, and any other factor deemed relevant, a trial court can determine whether the statement of consent was given voluntarily.@  Id. Thus, the validity of a consent to search is a question of fact to be determined from all the circumstances.  Guevara, 97 S.W.3d at 582.  Under the Texas Constitution, the State must prove the voluntariness of consent by clear and convincing evidence.  Reason, 12 S.W.3d at 818. 


    Ramsey had removed the handcuffs before discussing the consent to search forms with appellant.  Neither Ramsey nor the other officers had their weapons drawn.  Ramsey did not coerce, threaten, or promise appellant anything in order to obtain his consent.  Ramsey gave appellant time to read the consent to search forms and explained that he was under no obligation to sign the forms.  Appellant did not appear to be intoxicated, but, instead, was alert, coherent, and cooperative. 

    Considering all the circumstances, we conclude that the State proved by clear and convincing evidence that appellant consented voluntarily to the search of both vehicles.  The trial court did not abuse its discretion in denying appellant=s motion to suppress the shell casing and the bill of sale for the gold Cutlass Supreme. Appellant=s seventeenth through nineteenth issues are overruled. 

                                                D.  Custodial Statement

    In his twentieth issue, appellant complains that the trial court abused its discretion in overruling his motion to suppress his custodial statement to the police as the fruit of his warrantless arrest.  Although appellant filed a pretrial motion to suppress his written and oral statements, at the beginning of the hearing on appellant=s motion to suppress evidence, appellant=s trial counsel expressly stated to the trial court that appellant was waiving any challenge to his statement given while in custody:

    . . . I also filed a motion to suppress any written statements or oral confessions, motions before this Court.  I=m advising the Court right now that we are waiving that motion.  We have decided to withdraw our challenge to my client=s statement that was given while in custody. 

    Consequently, the trial court never ruled on appellant=s motion to suppress his written and oral statements.  Appellant waived this issue and may not raise this complaint on appeal. Tex. R. App. P. 33.1.  Appellant=s twentieth issue is overruled. 


                                               III. Legal Sufficiency

    In his first through sixteenth issues, appellant challenges the legal and factual sufficiency of the evidence supporting his conviction for murder. When reviewing the legal sufficiency of the evidence, we must view the evidence in a light most favorable to the verdict and determine whether 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, 319 (1979); Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999).  In conducting this review, we do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure that the jury reached a rational decision.  Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993). 

    The jury is the sole judge of the facts, the credibility of the witnesses, and the weight to be given the evidence.  Beckham v. State, 29 S.W.3d 148, 152 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).  Therefore, the jury may believe or disbelieve all or part of any witness= testimony.  Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000).  Reconciliation of any conflicts in the evidence falls within the exclusive province of the jury.  Id. 

    A person commits the offense of murder if he:

    (1) intentionally or knowingly causes the death of an individual; [or]

    (2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual.

    Tex. Pen. Code Ann. ' 19.02(b)(1), (2) (Vernon 2003). 

    The indictment accordingly alleged, in relevant part: 


    . . . PHERNELL DION BATEMAN, hereafter styled the Defendant, heretofore on or about JANUARY 13, 2001, did then and there unlawfully, intentionally and knowingly cause the death of MOSA MAIMANE, hereinafter styled the Complainant, by shooting the Complainant with a deadly weapon, namely, a FIREARM.

    . . . PHERNELL DION BATEMAN, hereinafter styled Defendant, heretofore on or about JANUARY 13, 2001, did then and there unlawfully intend to cause serious bodily injury to MOSA MAIMANE, hereinafter called the Complainant, and did cause the death of the Complainant by intentionally and knowingly committing an act clearly dangerous to human life, namely, BY DISCHARGING A FIREARM INTO A VEHICLE OCCUPIED BY THE COMPLAINANT. 

    Under the court=s charge in this case, the jury could find appellant guilty of murder under any one of eight theories:

    (1) appellant, acting alone, intended to cause the death of complainant;

    (2) appellant, acting as a party to the offense with Nollie, intended to cause the death of complainant;

    (3) appellant, acting alone, intended to cause serious bodily injury to complainant, resulting in death;

    (4) appellant, acting as a party to the offense with Nollie, intended to cause serious bodily injury to complainant, resulting in death;

    (5) appellant, acting alone, intended to cause the death of Bruce Joseph, but caused the death of complainant;

    (6) appellant, acting as a party to the offense with Nollie, intended to cause the death of Bruce Joseph, but caused the death of complainant;

    (7) appellant, acting alone, intended to cause bodily injury to Bruce Joseph, but caused the death of complainant; and

    (8) appellant, acting as a party to the offense with Nollie, intended to cause serious bodily injury to Bruce Joseph, but caused the death of complainant.

                                                     A.  Specific Intent

    In his first and second points of error, appellant asserts the evidence is legally insufficient to show that he intentionally or knowingly caused the death of complainant, acting either as principal or as a party.  In this third and fourth points of error, appellant claims the evidence is legally insufficient to show that he intended to cause serious bodily injury to complainant by intentionally or knowingly committing an act clearly dangerous to human life by discharging a weapon in the vehicle occupied by complainant and causing complaint=s death, acting either as principal or as a party. 

    AA person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.@  Tex. Pen. Code Ann. ' 6.03(a) (Vernon 2003).  An accused=s intent can be inferred from his acts, words, and conduct. Henderson v. State, 825 S.W.2d 746, 749 (Tex. App.CHouston [14th Dist.] 1992, pet. ref=d) (citing Dues v. State, 634 S.W.2d 304, 305 (Tex. Crim. App. 1982)). A specific intent to kill may also be inferred from the use of a deadly weapon.  Id. (citing Moreno v. State, 755 S.W.2d 866, 868 (Tex. Crim. App. 1988)).  A handgun is a deadly weapon per se.  Id. (citing Tex. Pen. Code Ann. ' 1.07(a)(11)(A)).  Thus, the use of a deadly weapon infers the specific intent to kill unless in the manner of its use it is reasonably apparent that death or serious bodily injury could not result.  Vuong v. State, 830 S.W.2d 929, 934 (Tex. Crim. App. 1992); Godsey v. State, 719 S.W.2d 578, 580B81 (Tex. Crim. App. 1986).  Moreover, if a deadly weapon is used in a deadly manner, the inference is almost conclusive that the defendant intended to kill.  Adanandus v. State, 866 S.W.2d 210, 215 (Tex. Crim. App. 1993) (quoting Godsey, 719 S.W.2d at 581). 


    Firing a gun in the direction of an individual is an act which is clearly dangerous to human life.  Forest v. State, 989 S.W.2d 365, 368 (Tex. Crim. App. 1999) (holding testimony that appellant only intended to shoot victim Ain the butt@ established appellant intended to cause serious bodily injury and, thus, establishing that appellant was guilty of murder under section 19.02(b)(2)); Harrell v. State, 659 S.W.2d 825, 827 (Tex. Crim. App. 1983) (holding appellant=s testimony that he shot deceased, but only intended to hit him in arm, established that appellant intended to cause serious bodily injury to deceased and committed act clearly dangerous to human life); Juarez v. State, 961 S.W.2d 378, 384 (Tex. App.CHouston [1st Dist.] 1997, pet. ref=d) (holding that where appellant intentionally fired at car he knew was occupied even though he did not point gun Astraight towards them,@ was evidence that appellant intended to cause serious bodily injury and committed an act clearly dangerous to human life causing victim=s death under section 19.02(b)(2)).  Section 9.02(b)(2) does not require the State to prove a specific intent to kill.  Harrell, 659 S.W.2d at 827.[1]  Proof of the culpable state of mind is usually proved by circumstantial evidence. Henderson, 825 S.W.2d at 749; Warren v. State, 797 S.W.2d 161, 164 (Tex. App.CHouston [14th Dist.] 1990, pet. ref=d). 

    Nollie testified that appellant had told him that Ahe had got into it with some dudes@ and he was going to leave to get his gun.  A while later, appellant returned and told Nollie he had a gun in his car.  Nollie saw what looked like a machine gun in appellant=s car. Appellant pointed to three males and told Nollie that he had a problem with them.  According to Nollie, appellant said he wanted to shoot them. Nollie testified that appellant was driving across the parking lot when he Aslammed@ the car into park, slid over to the passenger seat, began shooting at the other car. 

    Robinson testified that he heard appellant say Awe killed the motherf-----s.@ Appellant told Robinson he went outside to get his assault rifle after Aa dude walked up and slapped his hands down and put Hiram Clarke in his face,@ but Nollie told him not to go into the club with the rifle.

    Reviewing the evidence in the light most favorable to the jury=s verdict, we conclude a rational jury could have found appellant shot and intentionally killed Maimane or that appellant intended to cause Maimane serious bodily injury and committed an act clearly dangerous to human life by discharging a weapon into the car Maimane occupied, thereby causing his death.

                                                  B.  Law of the Parties

    Under the law of the parties, the State is able to enlarge a defendant=s criminal responsibility to acts in which he may not be the principal actor.  Goff v. State, 931 S.W.2d 537, 544 (Tex. Crim. App. 1996).  Section 7.02 of the Texas Penal Code provides with respect to law of the parties, in relevant part:

    (a) A person is criminally responsible for an offense committed by the conduct of another if:

     

                                                        *        * *

    (2) 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.

    Tex. Pen. Code Ann. '7.02(a)(2) (Vernon 2003). 

    Thus, to prove that the accused acted as a party to an offense, the State must prove that the accused acted with the intent to promote or assist in the commission of the offense by soliciting, encouraging, directing, aiding, or attempting to aid the other person in its commission.  Martin v. State, 753 S.W.2d 384, 385 (Tex. Crim. App. 1988).  A>In determining whether the accused participated as a party, the court may look to 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 do the prohibited act.=@  Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994) (quoting Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985)).  Party status may be proved by circumstantial evidence. Id.  Mere presence at the scene of the offense does not establish guilt as a party to the offense.  Porter v. State, 634 S.W.2d 846, 849 (Tex. Crim. App. 1982).  Presence at the scene, however, is a circumstance tending to prove guilt which, when combined with other facts, may suffice to show that the accused was a participant.  Valdez v. State, 623 S.W.2d 317, 321 (Tex. Crim. App. 1979).  Moreover, while flight alone will not support a guilty verdict, evidence of flight from the scene of the offense is a circumstance from which an inference of guilt may be drawn.  Id. 


    Appellant admitted that he was driving the car and Nollie was the shooter. Appellant testified that after Nollie had stopped shooting, he sped a away from the parking lot of the club. Thus, appellant was at the scene of the shooting, drove the car involved in the shooting, and fled with the alleged shooter from the scene.  Under these circumstances, the jury could infer that appellant was acting with Nollie in the commission of the offense by either intentionally killing Maimane or in intending to cause Maimane serious bodily injury and committing an act clearly dangerous to human life, causing Maimane=s death.  See Flores v. State, 491 S.W.2d 144, 146 (Tex. Crim. App. 1973) (holding evidence that defendant was outside of bar with co-defendant shortly before shooting, that appellant was driver of car that pursued deceased, and that fatal shot came from direction of car which appellant was driving was sufficient to conclude defendant was acting with another in commission of murder). Appellant=s first through fourth issues are overruled.

                                                  C.  Transferred Intent

    In his fifth, sixth, seventh, and eighth issues, appellant claims the evidence is legally insufficient to support his conviction based on the law of transferred intent.  Under the theory of transferred intent, a person is criminally responsible for causing a result if the only difference between what actually occurred and what he desired, contemplated, or risked is that a different person or property was injured, harmed, or otherwise affected.  Tex. Pen. Code Ann. ' 6.04(b)(2) (Vernon 2003).  For example, the defendant intends to shoot one person, but misses and strikes another.  Martinez v. State, 844 S.W.2d 279, 282 (Tex. App.CSan Antonio 1992, pet. ref=d).  The intent to harm the intended victim transfers to the actual victim and the defendant is guilty just as if he had struck the intended victim.  Id.  Section 6.04(b)(2) evinces a legislative policy to make a defendant, who acts with the specific intent to kill, criminally responsible for the consequences of his voluntary acts.  Norris v. State, 902 S.W.2d 428, 437 (Tex. Crim. App. 1995).

    Joseph testified that while he was on the dance floor, he had to put his arms out to keep appellant from getting too close as the DJ was calling out neighborhoods and appellant was Athrowing up a neighborhood sign.@ Joseph also testified that appellant was looking at him in the club parking lot and appeared to him that appellant was Afixing to do something to [him].@ Viewing the evidence in the light most favorable to the verdict, a rational jury could conclude that appellant, either as principal or as a party, could have intended to shoot Joseph, but shot Maimane instead, killing him.  Appellant=s fifth through eighth issues are overruled.

                                           IV. Factual Insufficiency

    In his ninth through sixteenth issues, appellant challenges the factual sufficiency of the evidence supporting his conviction for murder under any of the eight theories under which the jury could have convicted him. 


    When reviewing claims of factual insufficiency, it is our duty to examine the jury=s weighing of the evidence.  Clewis v. State, 922 S.W.2d 126, 133, 134 (Tex. Crim. App. 1996). There are two ways in which evidence can be factually insufficient:  (1) the evidence is so weak as to be clearly wrong and manifestly unjust, or (2) the finding of a vital fact is so contrary to the great weight and preponderance of the evidence as to be clearly wrong.  Zuliani v. State, 97 S.W.3d 589, 593 (Tex. Crim. App. 2003).  Determining which standard applies depends upon whether the complaining party had the burden of proof at trial.  Id.  If the complaining party did not have the burden of proof, then the Amanifestly unjust@ standard applies.  Id.  On the other hand, if the complaining party had the burden of proof, then the Aagainst the great weight and preponderance@ standard applies.  Id. Under the Texas Court of Criminal Appeals= modified approach, if the defendant challenges the factual sufficiency of the elements of the offense, even though the State had the burden of proof, we must review the evidence using both standards.  Id.  Thus, when reviewing factual sufficiency challenges, we must determine Awhether a neutral review of all of the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury=s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.@  Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). 

    Appellant primarily complains that the State=s case was Abuilt upon the testimony of convicted felons and a confessed killer, Aaron Nollie, who would say and do anything in order to avoid incarceration and/or to retaliate for Appellant=s cooperation with police.@  Appellant also asserts the testimony of Nollie, Robinson, and Joseph Ais simply not credible.@

    The evidence showed that Nollie pled guilty to and was serving a 35-year prison sentence for the murder of Maimane.  Nollie also had two other felony convictions for unauthorized use of a motor vehicle and possession of a controlled substance.  The evidence also showed Robinson was in custody for 90 days as a condition of probation in Harris County for aggravated assault at the time of appellant=s trial, and had been on probation in Fort Bend County for aggravated assault in 1997.  There was no evidence at trial that Joseph has any criminal record. 

    Appellant testified that he did not recognize Joseph as having been on the dance floor on the night of the shooting.  Appellant further testified that Nollie was the shooter and he did not know Nollie had a gun with him that night or that Nollie had planned to shoot anyone.  The jury heard evidence that appellant had three prior convictions for theft, one conviction for possession of a controlled substance, and two convictions for possession with intent to deliver, and was on parole at the time of the shooting.

    The jury was free to believe or disbelieve the testimony of any witness and to reconcile any conflicts in the testimony.  Margraves, 34 S.W.3d at 919.  The jury apparently did not believe appellant=s testimony as to his role in the shooting.  Considering all the evidence, we do not find it so weak as to be clearly wrong and manifestly unjust.  Appellant=s ninth through sixteenth issues are overruled. 


    Accordingly, the judgment of the trial court is affirmed.

     

     

     

     

    /s/      J. Harvey Hudson

    Justice

     

     

     

     

    Judgment rendered and Opinion filed June 22, 2004.

    Panel consists of Justices Yates, Anderson, and Hudson.

    Do Not Publish C Tex. R. App. P. 47.2(b).

     

     

     

     

     

     


    [1]  Current Section 19.02(b)(2) was formerly found at Section 19.02(a)(2) of the Texas Penal Code. Act of June 14, 1973, 62nd R.S., ' 1, 1973 Tex. Gen. Laws 1123, amended by Act of June 19, 1993, 73rd Leg., R.S., ch. 900, ' 1.01, 1993 Tex. Gen. Laws 3613.