Gary Ray Ince v. State ( 2010 )

NO. 07-09-0011-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
FEBRUARY 18, 2010
____________________________
GARY RAY INCE A/K/A GARY SIRMONS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
____________________________
FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;
NO. 57,375-A; HONORABLE RICHARD DAMBOLD, JUDGE
___________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Appellant, Gary Ray Ince, appeals his conviction for the offense of murder and
sentence, enhanced by a prior felony conviction, of 15 years incarceration in the
Institutional Division of the Texas Department of Criminal Justice. We affirm.
Background
On August 16, 2007, appellant and Wayne Harvel Talbert were alone together in
appellant’s garage residence. During the evening, Talbert was shot in the head and
died. Appellant’s and the State’s theories of the events leading to Talbert’s death vary
greatly and will be addressed in analysis of appellant’s appellate issues.
By four issues, appellant challenges the legal and factual sufficiency of the
evidence to support his conviction for the offense of murder. As applicable to the
offense for which appellant was tried, a person commits the offense of murder if he
intentionally or knowingly causes the death of an individual. TEX. PENAL CODE ANN. §
19.02(b)(1) (Vernon 2003); Hall v. State, 137 S.W.3d 847, 852 (Tex.App.--Houston[1st
Dist.] 2004, pet. ref’d). Appellant’s issues specifically challenge the intentional or
knowing element and the causation element. However, appellant’s argument does not
isolate how the evidence was insufficient to prove these elements. Rather, appellant’s
argument simply contends that the evidence was legally and factually insufficient to
support his conviction. As such, we will combine our analysis of appellant’s issues to
determine whether the evidence was legally sufficient to support his conviction and, if
so, whether the evidence was factually sufficient to support his conviction.
As appellant challenges both the legal and factual sufficiency of the evidence, we
are required to conduct an analysis of the legal sufficiency of the evidence first and,
then, only if we find the evidence to be legally sufficient, do we analyze the factual
sufficiency of the evidence. See Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App.
1996).
Legal Sufficiency
In assessing the legal sufficiency of the evidence, we review all the evidence in
the light most favorable to the verdict to determine whether any rational trier of fact
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could have found the essential elements of the offense beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Ross v.
State, 133 S.W.3d 618, 620 (Tex.Crim.App. 2004). In conducting a legal sufficiency
review, an appellate court may not sit as a thirteenth juror, but rather must uphold the
jury’s verdict unless it is irrational or unsupported by more than a mere modicum of
evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988).
In the present case, it is undisputed that, when Talbert was shot, only appellant
and Talbert were present. Further, there was testimony presented that appellant
suspected that Talbert had previously stolen some of appellant’s property. The people
that discovered Talbert after he had been shot testified that it appeared that he had
been “beat up,” which leads to a reasonable inference that appellant and Talbert had
been in a physical altercation prior to Talbert being shot. Blood splatter evidence
suggested that Talbert was sitting on appellant’s bed at the time that he was shot and
evidence of the trajectory of the bullet suggests that the gun was being fired by
someone in a standing position. Additionally, evidence of where the gun was found and
the fact that there were no fingerprints on the gun allow a reasonable inference that
appellant took the time to clean and conceal the gun after Talbert was shot. After
considering all of the evidence presented in the light most favorable to the verdict, we
cannot say that the jury acted irrationally in finding beyond a reasonable doubt that
appellant intentionally or knowingly caused the death of Talbert. As such, we overrule
appellant’s first and third issues.
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Factual Sufficiency
When an appellant challenges the factual sufficiency of the evidence supporting
his conviction, the reviewing court must determine whether, considering all the evidence
in a neutral light, the jury was rationally justified in finding the appellant guilty beyond a
reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006).
In performing a factual sufficiency review, we must give deference to the fact finder’s
determinations if supported by evidence and may not order a new trial simply because
we may disagree with the verdict. See id. at 417. As an appellate court, we are not
justified in ordering a new trial unless there is some objective basis in the record
demonstrating that the great weight and preponderance of the evidence contradicts the
jury’s verdict. See id. Additionally, an appellate opinion addressing factual sufficiency
must include a discussion of the most important evidence that appellant claims
undermines the jury’s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003).
However, when a defendant’s version of the facts conflicts with other evidence, it is the
jury’s prerogative to judge the credibility of the evidence and to ascribe the weight to be
given to the evidence. Jones v. State, 944 S.W.2d 642, 647-48 (Tex.Crim.App. 1996).
Appellant’s factual sufficiency challenge is predicated on his version of the facts,
specifically, his contention that Talbert being shot was an accident. While appellant
testified that he did not remember how Talbert was shot, appellant’s defensive theory
was that he tripped while retrieving the gun, dropped the gun, and the gun fired when it
struck the ground. Appellant’s defensive theory was not directly precluded by the
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evidence.1 However, the evidence addressed above is sufficient to allow reasonable
minds to differ as to whether appellant intentionally shot and killed Talbert. It is the
jury’s prerogative to resolve inconsistencies in the evidence. See id. That appellant
presented a plausible version of the event that differed from the version presented by
the State does not render the evidence insufficient. See Anderson v. State, 701 S.W.2d
868, 872 (Tex.Crim.App. 1985). After considering all the evidence in a neutral light, we
conclude that the jury was rationally justified in finding appellant guilty of murder beyond
a reasonable doubt. As such, we overrule appellant’s second and fourth issues.
Conclusion
Having overruled each of appellant’s issues, we affirm the judgment of the trial
court.
Mackey K. Hancock
Justice
Do not publish.
1
While the evidence suggests that Talbert was sitting on the bed and was shot
by someone in a standing position, the pathologist expert did opine that it is possible
that the gunshot wound could have been the result of the gun discharging after having
been dropped, firing, and the bullet striking Talbert as he was looking down. Further,
that the gun had a defect that would allow it to fire when the back of the hammer was
struck directly with a significant force was also confirmed by the evidence. While
appellant’s defensive theory is not precluded by the evidence, we must remain mindful
that the factual determinations of how Talbert was shot were for the jury to decide.
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