Andre Djuna Hubert v. State ( 2014 )

AFFIRM; and Opinion Filed March 4, 2014.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-01084-CR
ANDRE DJUNA HUBERT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 194th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F11-60671-M
OPINION
Before Justices Bridges, Fillmore, and Lewis
Opinion by Justice Fillmore
Andre Djuna Hubert was convicted of murder. Hubert pleaded true to an enhancement
paragraph of the indictment, and the jury assessed punishment of forty-five years’ imprisonment.
Hubert raises six points of error on appeal. In his first four points of error, he asserts he is
entitled to a new punishment trial because the State mistakenly indicated to the jury that he was
previously convicted of aggravated robbery and drug trafficking, and he is entitled to findings of
fact and conclusions of law relating to those points of error. In his fifth and sixth points of error,
Hubert contends the trial court erred by instructing the jury that he could receive good conduct
credit prior to serving one-half of his sentence, and the evidence was insufficient to establish he
intentionally shot the victim. We affirm the trial court’s judgment.
Background
On October 3, 2011, Hubert shot Nicholas “H” Hosey. Hosey died several hours later on
the morning of October 4, 2011. Hubert was indicted for murder.
At trial, Dallas County medical examiner Chester Gwin testified Hosey was shot at 11:45
p.m. on October 3, 2011. Hosey lived for several hours after being shot and was pronounced
dead at 6:36 a.m. on October 4, 2011. The autopsy report indicated Hosey was shot in the back
and the bullet exited through his chest, the cause of death was the gunshot wound to the back,
and the manner of death was homicide. Gwin testified that a firearm is a deadly weapon and
shooting someone with a firearm can cause serious bodily injury and is clearly dangerous to
human life. According to Gwin, if a person with his chest to the ground was shot in the back by
a person standing above him, the bullet trajectory could be the same as the trajectory of the bullet
through Hosey. He also testified that a person laying on the ground and holding the ankles of the
person firing the gun could have sustained the gunshot wound that killed Hosey.
Crystal “Breezy” Alexander testified that Hubert was her boyfriend in September and
October of 2011. At that time, she was a crack addict. She had received money in settlement of
a personal injury matter, and Hubert’s gun was purchased with the proceeds from the settlement
“to keep them from being robbed.” The remainder of the settlement was spent on crack cocaine.
In October 2011, she and Hubert lived in her car.
“The Cut” is an area where several auto mechanic shops are located on Harry Hines
Boulevard in Dallas, Texas. Alexander testified this was an area where people “hang out,” use
drugs, including crack cocaine, and engage in prostitution and other crimes. She had been to The
Cut a couple of times with Hubert. While at The Cut, Hubert would converse with Hosey,
Gilbert Smith, and Marcel Antoine “Big Baby” Lugen. Alexander testified she was at The Cut
on October 3 and 4, 2011.
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According to Alexander, early in the morning of October 3, 2011, she found a cell
phone in a parking lot. She offered to sell the phone to Smith for $20. Smith was working on
Hosey’s car at the time and Smith told Alexander that once he finished working on the car and
received payment for the repair work from Hosey, he would pay Alexander for the phone.
Alexander allowed Smith to keep the cell phone because she believed he would eventually pay
her for it. However, Hosey “paid” Smith for the work on his car with crack cocaine instead of
cash, and Smith smoked the crack cocaine. According to Alexander, although her agreement to
sell the cell phone was with Smith, Hosey got “wrapped up in it” because Smith was to pay
Alexander for the phone when Hosey paid him for the repair work on his car.
It upset Hubert that Alexander was not paid right away for the phone. Hubert was also
upset because Hosey and Smith were “blowing us off” throughout the day regarding payment for
the phone, either by not answering their phones when Hubert and Alexander telephoned them or
by answering and saying “not right now.” Alexander testified she spoke by phone with Hosey a
couple of times on the day of the offense. In the last phone conversation, Hosey told her and
Hubert, “Go on and meet me so we can handle this ‘cause I am tired of dealing with y’all.”
Hours after that conversation, Hubert and Alexander were still trying to reach Smith by phone.
Hubert was becoming increasingly upset because he was not getting “his” money for the cell
phone.
Alexander and Hubert drove to The Cut to meet Hosey. Alexander believed they were
going there to get the cell phone, money for the cell phone, or crack cocaine. Hubert had a silver
.357 Magnum handgun with him. He was upset and yelling at Alexander, blaming her for giving
the cell phone to Smith without getting the cash. Alexander testified Hubert never told her he
was going to The Cut to shoot Hosey. Hubert parked Alexander’s car in the back of The Cut and
got out of the car with his gun. Lugen yelled down the alley, “They are here. Tell Hosey they
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are here.” Alexander told Hubert, “We don’t need to do this. We need to turn around.
Something is not right.” Alexander stayed in her car. Hubert went into a shop where some
Hispanic males were sitting, and she saw him showing the gun to the men. Alexander thought
Hubert was trying to sell the gun to them. At the time of the shooting, she and Hubert needed
money and had talked about selling the gun.
Alexander got out of the car to get something to wipe her face. James Alexander “Ghost
Face” McCoy approached Alexander and asked if she or Hubert had any money on them. She
told him to talk to “her man” and pointed to Hubert. McCoy then talked to Hubert, and she saw
them walking away further down into the dark alley, and she lost sight of them. Two men then
approached her and started beating her. While that was happening, she heard a gunshot, and the
men who were attacking her ran away.
Alexander then saw Hubert walking back. He told her to get in the car. As he was
getting into the car, Hubert set the gun on his lap. He was acting panicked and was breathing
hard and shaking. His knee, elbow, and hand were scraped, blood was running down his leg, and
Alexander saw bruises. Hubert said, “It was self-defense, it was self-defense, Crystal. I shot
H[osey].” Hubert told Alexander that when he went “back there,” McCoy, Lugen, Smith, and
Hosey were together, and they circled around him. Hubert told her that he and Hosey started
fighting, and as he got on top of Hosey, he fired his gun. Hubert told Alexander that “he got
jumped,” but did not say anything about anyone being robbed. Hubert drove away very fast.
According to Alexander, Hubert stopped by his father’s apartment and told him what had
happened. Alexander later drove to a friend’s house in Oak Cliff and stayed there for about a
day and a half. Hubert was arrested six to nine days later. Alexander was with him when he was
arrested; they were living in her car.
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Lugen testified at trial. At the time of trial, he was incarcerated for convictions in 2011
for unauthorized use of a motor vehicle and theft. He testified his criminal history went back to
1998, with convictions for robbery, burglaries, and theft.
Lugen testified Hosey was a close friend he had known since 2009. Hosey had lost his
job driving a truck, and he resorted to selling drugs. Lugen met Hosey through drug
transactions. Hosey would come to The Cut to do mechanic work. Lugen had known Smith for
a while and looked out for him as a friend. He did not know McCoy personally. Hubert would
come through The Cut occasionally in the year and a half before the shooting.
The morning of October 3, 2011, Lugen saw Hubert sleeping in the passenger side of
Alexander’s car parked in an alley of The Cut. Lugen had a conversation with Alexander who
was trying to sell a cell phone for “like fifty bucks.” About an hour later, Lugen had a
conversation with Hubert because Lugen wanted “to get a hit” from Hubert. Lugen saw
Alexander give the cell phone to Smith. Smith told Alexander he was going to buy the phone,
but Smith then “went around” trying to sell the cell phone for fifty dollars. No one would buy
the cell phone because it was a type of phone that was normally sold for twenty to twenty-five
dollars. Hosey had given Smith some crack cocaine. The cocaine was in payment for the repair
Smith made to Hosey’s van. Hosey never had possession of the cell phone; Smith traded the cell
phone to another drug dealer for some crack cocaine.
According to Lugen, Hubert and Alexander came to The Cut four to five times that day
and were asking about payment for the phone. Around 8:00 p.m., Hubert drove into The Cut,
stopped, jumped out of the vehicle with a gun in his hand, and walked to the backside of The Cut
where Hosey normally parked. Hubert did not locate Hosey’s car there. Hubert got back into
Alexander’s car and drove away. Hosey was across the street from The Cut. Lugen went to
warn him that Hubert “is looking for you with a pistol.” Hosey told Lugen that Hubert had just
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called him on the phone and told Hosey to meet him in the alley of The Cut, because he wanted
to “buy something from me.” McCoy, a passenger in Hosey’s vehicle, told Hosey they should
get a pistol. Lugen thought McCoy was just “basically fronting,” or acting tough. Lugen never
knew Hosey to carry a gun. Lugen testified McCoy and Hosey left to get Hosey’s pit bull.
Around 11:00 p.m. or midnight, Lugen was in front of El Cristal, a bar located at The
Cut. Lugen and Smith were attempting to break into cars on Harry Hines Boulevard, intending
to sell what they stole for money or crack cocaine. Hosey and his dog came around the corner at
The Cut where Lugen was “playing lookout” while Smith broke into cars. Lugen told Hosey that
he was “hitting a lick,” meaning he was in the process of committing crime in order to buy drugs
from Hosey. Lugen told Hosey, “Look man, you don’t even supposed to be here right now. The
man is looking for you with a pistol.” Hosey told Lugen that after Lugen finished breaking into
cars, Hosey had drugs to supply him.
Lugen testified Hubert came around the corner. He walked up to Lugen and pointed the
gun at him and said, “I ought to shoot you” for warning Hosey. Lugen told Hubert, “If you are
going to shoot, shoot. Other than that, get the gun out of my face.” Hosey was sitting on a
concrete parking barrier, and Hubert turned and pointed the gun in Hosey’s face. Hosey
hesitated for a second, leaped up, grabbed Hubert around his midsection, and reached for the
gun. At that point, they were struggling while standing. Hubert was trying to get into a position
to hit Hosey on the side of the head with the gun. Hubert slammed Hosey to the ground. Hubert
remained standing while Hosey, lying flat on the ground, wrapped his arms around Hubert’s
ankles. Hosey’s dog was trying to attack Hubert. Hubert was slinging the gun at the dog, and
the dog, trying to avoid being hit by the gun, was jumping back and forth over Hosey. Lugen
told Hubert to put the gun down.
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According to Lugen, Smith heard the yelling. Smith came across Harry Hines Boulevard
to The Cut, grabbed the dog and pulled him back, and told Hubert to put the gun down. Lugen
and Smith told Hubert to “square up and flight [Hosey] like a real man” and to let Hosey get up.
Hosey was still on the ground holding on to Hubert’s ankles, and Hubert was trying to
pull his leg up and out of Hosey’s grip. Lugen testified that Hubert leaned back and shot Hosey
in the back. During the struggle, Hubert was not on the ground, and Lugen does not know how
injuries to Hubert’s knees, elbows, and hands were sustained. Lugen testified that it was not an
accident that Hubert pulled the trigger of the gun. After shooting Hosey, Hubert told Lugen,
“That could have been you.”
Lugen yelled for Smith to call 9-1-1. While Smith went to call 9-1-1, Lugen stayed with
Hosey. Hosey had in his possession crack cocaine valued at about fifty dollars, money, keys to
his car, and his cell phone. Lugen took the crack cocaine, because he did not want it to be found
in Hosey’s possession. Later, Lugen smoked the crack cocaine he took from Hosey’s pocket.
The police took Lugen to the police station. Lugen acknowledged his testimony at trial
did not match what he had told the police when taken to the station. There, Lugen told the police
he did not know anything about the cell phone. Although he actually did know about the cell
phone at the time, he did not want to bring up “all the other stuff.” Lugen told the police that
Smith and McCoy were trying to take Hosey’s wallet. Lugen indicated he did not know whether
Hubert was trying to shoot Hosey. Lugen also told the police he did not believe Hubert shot
Hosey intentionally, but later changed his view when he thought about Hubert saying the victim
“could have been” Lugen.
McCoy testified at trial. McCoy was serving a jail sentence at the time of trial. He had
criminal convictions for aggravated robbery, aggravated robbery with a deadly weapon, and two
convictions for possession of a controlled substance.
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McCoy had known Hubert from “the street” since 2006. He had known Hosey for about
a year before the shooting. McCoy and Hosey would “hustle the block” selling crack cocaine.
McCoy had never seen Hosey use crack cocaine. At the time of the shooting, McCoy knew
Lugen from “the street,” but he had not known him for long. McCoy also knew Smith from “the
street,” but he did not like Smith because he felt “he was a snake” and was “always up to
something shady.”
McCoy had heard about the cell phone. Hosey told him the matter was over “thirty-five
dollars of crack.” According to McCoy’s testimony, Smith owed Hubert twenty-five dollars.
Hosey was to have given Smith twenty-five dollars that Smith would then give to Hubert.
Instead, Hosey gave Smith some crack cocaine, which Smith smoked.
On the night of October 3, 2011, Hosey picked up McCoy. They went to “reup,”
meaning “score some crack to sell.” Hosey received a phone call from Hubert. McCoy grabbed
the phone from Hosey. Hubert said Hosey owed him some money. McCoy told Hubert he
needed to be “addressing” Smith, because Smith was the one with the cell phone. McCoy gave
Hosey back his cell phone, and Hosey hung up the phone. Later, Hubert called back again.
According to McCoy, Hubert was not being aggressive on the phone.
After speaking with Hubert on the phone, Hosey felt he needed a gun and asked if
McCoy knew where they could get a gun. They went to McCoy’s aunt’s house to get a gun, but
she would not give a gun to McCoy.
Hosey and McCoy returned to The Cut. Hosey’s pit bull was with them. The pit bull
slept in Hosey’s car and had been with them all day. McCoy testified that if anyone “messed
with” Hosey, Hosey’s girlfriend, or McCoy, the dog would help defend them. When they
arrived at The Cut, Hubert was not there. Lugen was outside stealing “Cadillac converters” with
Smith. Lugen told Hosey and McCoy that Hubert was looking for Hosey and that Hubert had a
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pistol. McCoy testified that both he and Hosey had each bought four grams of crack cocaine
when they went to “reup,” and before the shooting, McCoy had sold crack cocaine for about
sixty dollars. Neither McCoy, Hosey, nor Lugen had a gun with them that night, and they did not
intend to rob Hubert.
Fifteen to twenty minutes later, Hubert arrived and Alexander was with him. McCoy
thought he could intervene. He went to the “back” where Hubert was speaking with a group of
Hispanic males in a mechanic shop. McCoy saw Hubert loading the gun with bullets while
Hubert was speaking with the men. McCoy told Hubert, “don’t go around” to the front of the
building, “just chill.” According to McCoy, Hubert said, “I want my money. All I want is my
money, then I am gone. I ain’t tripping.” A portion of McCoy’s interview by the police after the
shooting was played for the jury. McCoy, who was alone in the room, said aloud, “Don’t go
back there, they are going to rob you.” He testified at trial that when he said that, he was talking
to himself about how he felt the “situation at hand . . . had played out.” He testified he was not
describing a conversation he had with Hubert.
According to McCoy, Hubert walked to the front of the buildings. Initially McCoy
testified Hubert did not say anything to Lugen. However, he then testified Hubert told Lugen, “I
ought to kill you for snitching.” Hubert then asked Hosey where his money was. Hosey told
Hubert he did not owe him any money. Hosey was sitting down and Hubert was standing over
him. Hubert had his gun in his hand. Hubert and Hosey began to struggle over the gun. The pit
bull tried to jump on Hubert. Hosey fell, and when he did, he grabbed Hubert around his waist.
Hubert was trying to keep from being bitten by the dog. When Hubert fired the gun, Hosey was
holding Hubert’s ankles. Hubert was trying to step out of Hosey’s grasp and dodge the dog at
the same time. According to McCoy, Hubert was trying to step over Hosey to keep from falling
when the gun went off. After the gun fired, Hubert did not threaten anyone else. He walked
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away. To McCoy, Hubert appeared surprised to have shot Hosey. McCoy testified he felt
Hubert was not really trying to shoot Hosey. Smith and Lugen went through Hosey’s pockets
and got Hosey’s drugs and money. They did not take Hosey’s wallet, which also had some
money in it. McCoy remained with Hosey, and later went to the hospital with him.
McCoy spoke to the police that evening and again a day or two later. McCoy indicated
he told the police that Hubert told Lugen prior to the shooting that “I ought to kill you for
snitching.” McCoy also told the police that Hubert shot Hosey. McCoy testified that he did not
tell the police that he thought the shooting was an accident.
Detective Scott Sayers of the Homicide Unit of the Dallas Police Department testified.
Sayers interviewed Hubert on October 13, 2011, and the videotape of that police interview was
played for the jury. After Hubert was interviewed, he was booked into jail and placed under
arrest for murder.
Sayers testified that Hubert went to The Cut with a gun. In Hubert’s police interview,
Hubert never mentioned anyone else having a gun. Hubert said he went to The Cut and McCoy
told him, “They are going to rob you.” Hubert initially told Sayers that McCoy had given him
the gun, but later acknowledged he had purchased the gun sometime prior to the incident. In the
interview, Hubert told Sayers that he put the gun in Lugen’s face and told Lugen he was wrong
“to set me up.” According to what he told Sayers in the interview, Hubert then demanded his
twenty-five dollars from Hosey. Hubert stated Hosey slammed him to the ground twice, and
twice Hubert was able to get back to a standing position. Hubert said after he got up the second
time and while Hosey was on the ground, Hosey tried to grab him, and that was when he shot
him. Hubert said he shot Hosey because Hosey kept charging him. Hubert stated he dropped the
gun and left. Hubert told Sayers that he knew Hosey was trying to rob him when Hosey tried to
reach into Hubert’s pockets while they were struggling and because, when he got back to
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Alexander’s car after shooting Hosey, he learned Alexander had been attacked by two men who
tried to rob her at the same time. Hubert told Sayers that “they deserved what they got,” and “I
was getting my twenty-five dollars.”
Sayers testified Hubert never said in the interview that the gun discharged accidentally or
that he did not mean to shoot Hosey. Hubert told Sayers that when he confronted Hosey with the
gun, Hosey tried to tackle him. In describing how Hosey grabbed him and threw him to the
ground, Hubert showed Sayers the scars on his legs where he had been injured. Sayers believed
there was a struggle. It appeared to Sayers that during the struggle, Hubert had been knocked to
the ground such that his legs were skinned and left visible scars nine days later.
Sayers testified that in the interview, Hubert tried to make it seem he was just going to
The Cut to make it “all right with his friends” and found out they were trying to rob him. By the
end of the interview, it became apparent to Sayers that Hubert wanted to get his twenty-five
dollars for the cell phone. After talking to Hubert, it appeared to Sayers that Hubert went into
that situation with a loaded handgun when no one else had a gun, and Hubert could have left the
scene but did not.
The jury found Hubert guilty of murder as charged by indictment. The jury then assessed
punishment.
At the punishment phase of the trial, Willie Washington of the Dallas County Sheriff’s
Department testified regarding records of Hubert’s prior convictions. Hubert had been
previously convicted of possession of cocaine, convicted three times of burglary of a building,
and convicted of driving while his license had been suspended.
Hubert’s stepfather, Marvin Foots, testified at the punishment phase of the trial. He
stated that Hubert and Alexander came to his apartment the night of the shooting. Foots saw
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scars and Hubert said he had been in a scuffle. Hubert did not tell Foots he had murdered
anyone.
Hubert testified in the punishment phase of trial. Hubert was thirty-nine years old at the
time of trial. He had completed an eleventh grade education. He had been convicted of the prior
criminal offenses of possession of cocaine, robbery, three burglaries, and driving while his
license was suspended.
Hubert testified he did not intentionally take the life of Hosey. According to Hubert,
when he drove in the alley of The Cut, McCoy told him “they were going to rob me.” Hubert
carried a gun, and he did not believe “they” knew he had a gun. Hubert testified the gun went off
because he and Hosey were struggling and Hosey’s dog was in the way. When asked why he did
not walk away from the situation before the shooting, he said he was not thinking. Hubert
testified he did not feel he did anything wrong. He stated “they” did wrong, and he “was
defending his life, too.”
Hubert pleaded true to the enhancement paragraph of the indictment. The jury assessed
punishment of forty-five years’ imprisonment. Hubert filed this appeal.
Questions Regarding Criminal History
In his first two points of error, Hubert asserts he is entitled to a new trial on punishment
because the trial court erred in denying his motion for mistrial when the State, “through want of
due diligence,” mistakenly indicated Hubert had been previously convicted of aggravated
robbery and a drug trafficking offense.
Background
During the punishment phase of the trial, the State began questioning Hubert regarding
items listed on the notice of extraneous offenses the State filed prior to trial. The State’s notice
listed two offenses in 1990 and fifteen offenses between 1997 and 2006. The first two items on
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the notice were a 1990 “transport/sale narcotics” offense in Los Angeles, California, and a 1990
aggravated robbery with a deadly weapon offense in Dallas County, Texas. The State asked
Hubert the following two questions regarding the 1990 offenses listed on the notice of
extraneous offenses:
The State: Mr. Hubert, in 1990 you were convicted of transporting, selling
narcotics in Los Angeles [sic] California; isn’t that right?
Hubert: I was a kid then.
The State: Okay. In 1990, you were convicted of aggravated robbery with a
deadly weapon in Dallas County?
Hubert: I was not convicted.
Hubert’s counsel then asked to approach the bench, and a discussion ensued outside the
presence of the jury. Hubert’s counsel objected to the State questioning Hubert regarding
aggravated robbery and drug trafficking convictions because it was improper and the State had
failed to exercise due diligence in ascertaining whether those matters resulted in convictions.
Hubert’s counsel argued that if the State could not justify in good faith their allegations, Hubert
was entitled to a mistrial. Hubert’s counsel orally requested the trial court make findings of fact
and conclusions of law regarding whether the State had a good-faith belief after exercising due
diligence that Hubert had been convicted of drug trafficking and aggravated robbery in 1990.
The trial court inquired of the State concerning its basis for asking those questions. The State
advised the trial court that it had relied on National Crime Information Center (NCIC)
information in filing the notice of extraneous offenses. The State advised the trial court that it
had initially believed Hubert had been convicted in 1990 of drug trafficking and aggravated
robbery, but acknowledged that it had made a mistake and had misspoken with regard to whether
Hubert had been convicted in those cases.
After the discussion outside the presence of the jury, the trial court instructed the jury “to
disregard the questions asked by the State with respect to the delivery charge occurring in Los
Angeles and the question regarding the aggravated robbery offense.” Hubert’s counsel objected
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that the instruction was inadequate to overcome prejudice and harm to Hubert and moved for a
mistrial, which the trial court denied.
Standard of Review
We review a trial court’s denial of a mistrial under an abuse of discretion standard. See
Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003); Dooley v. State, 65 S.W.3d 840,
841 (Tex. App.—Dallas 2002, pet. ref’d). Mistrial is appropriate only for “highly prejudicial and
incurable errors.” Simpson, 119 S.W.3d at 272 (citing Wood v. State, 18 S.W.3d 642, 648 (Tex.
Crim. App. 2000)). “Only in extreme circumstances, where the prejudice is incurable, will a
mistrial be required.” Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). Granting a
mistrial is appropriate when error is “so prejudicial that expenditure of further time and expense
would be wasteful and futile.” Id.; see also Simpson, 119 S.W.3d at 272.
Our review of “[w]hether a mistrial should have been granted involves most, if not all, of
the same considerations that attend a harm analysis. Archie v. State, 221 S.W.3d 695, 700 (Tex.
Crim. App. 2007) (quoting Hawkins v. State, 135 S.W.3d at 77). We balance three factors: (1)
the severity of the misconduct, (2) curative measures employed by the trial court, and (3)
certainty of the punishment assessed. See Archie, 221 S.W.3d at 700; Mosley v. State, 983
S.W.2d 249, 259 (Tex. Crim. App. 1998). In balancing these factors, we examine the particular
facts and circumstances of the case. See Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App.
1999); Hernandez v. State, 805 S.W.2d 409, 414 (Tex. Crim. App. 1990). “The asking of an
improper question will seldom call for a mistrial, because, in most cases, any harm can be cured
by an instruction to disregard.” Wood, 18 S.W.3d at 648 (quoting Ladd, 3 S.W.3d at 567).
When a trial court instructs the jury to disregard an improper comment or question, we presume
the jury will follow the court’s instruction unless the remark or comment was so prejudicial or
extreme that the instruction was incapable of removing the harm. Gardner v. State, 730 S.W.2d
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675, 696 (Tex. Crim. App. 1987); see also Wood, 18 S.W.3d at 648 (“A mistrial is required only
when the improper question is clearly prejudicial to the defendant and is of such character as to
suggest the impossibility of withdrawing the impression produced on the minds of the jurors.”)
(quoting Ladd, 3 S.W.3d at 567). A prompt instruction to disregard will ordinarily cure any
prejudice associated with an improper question and answer, even one regarding extraneous
offenses. Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000); see also Marshall v.
State, 210 S.W.3d 618, 628–29 (Tex. Crim. App. 2006).
Analysis
On appeal, the State acknowledges the question regarding a 1990 conviction of
aggravated robbery was improper, noting Hubert was charged with aggravated robbery with a
deadly weapon in 1990, but the Grand Jury returned a “no-bill” and Hubert therefore was neither
indicted nor convicted. The State further acknowledges the question regarding a 1990 conviction
for transporting or selling narcotics was also improper. According to the State, Hubert’s
response that he “was a kid then” and the evidence regarding Hubert’s birthdate “show” Hubert
would have been seventeen years of age at the time of the 1990 California proceedings and,
because he was under the age of eighteen, those proceedings would have been in juvenile court
and could not have resulted in a “conviction.” See CAL. WEL. & INST. CODE § 602(a) (2002)
(“Except [for murder and certain sex offenses], any person who is under the age of 18 years
when he or she violates any law of this state . . . is within the jurisdiction of the juvenile court,
which may adjudge such person to be a ward of the court. . . .”). However, the State asserts the
trial court’s instruction to the jury to disregard the questions was effective to cure any prejudice,
and a mistrial was not warranted.
Prior to trial, the State provided Hubert with notice pursuant to article 37.07, section 3(g)
of the code of criminal procedure of its intent to introduce extraneous offenses, including the
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aggravated assault and drug-trafficking matters that are at issue here. The problem with the
questions posed to Hubert by the State was that they referred to a conviction in connection with
each of the 1990 “extraneous offenses.” Following Hubert’s objection, the State promptly
informed the trial judge it had misspoken in referring to these matters as convictions. The State
did not return to the subject matter after Hubert objected, and did not mention the 1990 cases in
its punishment phase closing argument. We conclude the prosecutor’s misstatement imbedded in
the two questions did not constitute flagrant misconduct. See Archie, 221 S.W.3d at 700.
The trial court promptly instructed the jury to disregard the two questions posed to
Hubert by the State. The trial court stated to the jury, “[Y]ou are instructed to disregard the
questions asked by the State with respect to the delivery charge occurring in Los Angeles, and
the question regarding the aggravated robbery offense.” The curative instruction provided by the
trial judge to the jury was clear, direct, and appropriate. See id.
The jury had already convicted Hubert of murder. During the punishment phase, the jury
heard evidence that Hubert had been previously convicted of possession of cocaine, robbery,
three burglaries, and driving with a suspended license. The jury heard evidence that Hubert
stated “they” got what they deserved, as well as Hubert’s testimony that he did not feel he had
done anything wrong. Hubert had pleaded true to the enhancement paragraph of the indictment,
and the range of punishment was fifteen years to ninety-nine years or life imprisonment. See
TEX. PENAL CODE ANN. § 12.42(c)(1) (West Supp. 2013). Despite the State’s argument that the
jury assess punishment at “the top” of the punishment range, the jury assessed punishment of
forty-five years’ imprisonment, less than half of a ninety-nine year sentence the jury could have
imposed and closer to a punishment of fifteen years’ imprisonment for which Hubert’s counsel
argued. After reviewing the record, we conclude that due to the strength of the State’s
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punishment case, it is likely the same punishment would have been assessed regardless of the
two improper questions at issue. See Archie, 221 S.W.3d at 700.
Conclusion
We agree the two questions posed by the State to Hubert concerning the 1990
“extraneous offenses” were improper. Nevertheless, we cannot conclude the questioning Hubert
complains of was so clearly calculated to inflame the minds of the jury or of such damning
character as to suggest it would be impossible to remove the harmful impression from the jury’s
mind or rendered ineffective the trial court’s instruction to disregard. See Moore v. State, 999
S.W.2d 385, 406 (Tex. Crim. App. 1999); Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App.
1992). We conclude there was a reasonable basis for the trial court to believe its instruction to
disregard was effective and cured any prejudicial effect the State’s questions would have had.
Accordingly, the trial court did not abuse its discretion in denying Hubert’s motion for mistrial,
and we resolve Hubert’s first and second points of error against him.
Cumulative Error
In his third point of error, Hubert asserts the trial court erred in denying his motion for a
mistrial, and he is entitled to a new trial on punishment because of the “combined and
cumulative impact” from the State’s “improper statements” that Hubert had been convicted of
aggravated robbery and drug trafficking in 1990. We cannot agree.
Hubert approaches this issue as one of cumulative harm resulting from the State’s two
questions concerning the 1990 “extraneous offenses.” In support of his argument, Hubert cites
Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999), for the proposition that a
number of errors may be found harmful in their cumulative effect. However, “a harm analysis is
employed only when there is error, and ordinarily, error occurs only when the trial court makes a
mistake.” Archie, 221 S.W.3d at 669 (quoting Hawkins, 135 S.W.3d at 76–77). Here, the trial
–17–
court responded to the objection of the defense by instructing the jury to disregard the State’s
questions concerning the 1990 drug trafficking and aggravated robbery cases. “The only adverse
ruling—and thus the only occasion for making a mistake—was the trial court’s denial of the
motion for mistrial. Under those circumstances, the proper issue is whether the refusal to grant
the mistrial was an abuse of discretion.” Id. We have already resolved that issue against Hubert.
Accordingly, we also resolve Hubert’s third point of error against him.
Findings of Fact and Conclusions of Law
In his fourth point of error, Hubert asserts he is entitled to findings of fact and
conclusions of law, and he requests leave to revise his appellate points of error and argument
concerning the due diligence exercised by the State in ascertaining a basis for its questions to
Hubert regarding the 1990 drug trafficking and aggravated assault cases. Hubert requests that, if
his first three points of error are resolved against him “on the basis of the existing record,” this
Court abate this appeal in order for the trial court to make findings of fact and conclusions of law
regarding the information available to the State when it questioned Hubert regarding the 1990
cases and the information that subsequently became available to demonstrate that the State was
incorrect concerning a basis for its questions.
As discussed above, the State acknowledges it was mistaken and “misspoke” when
questioning Hubert with regard to the 1990 cases. The trial court questioned the State regarding
how it had obtained information regarding the 1990 cases prior to its curative instruction to the
jury. While we question whether abatement of this appeal in order for the trial court to make
findings of fact and conclusions of law as requested by Hubert is proper, we need not address
that issue. Our resolution of Hubert’s first three points of error was not dependent upon evidence
relating to “the mental state of the prosecutor” or whether the State “consciously disregarded any
pertinent information.” Accordingly, we resolve Hubert’s fourth point of error against him.
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Jury Charge
In his fifth point of error, Hubert asserts the trial court erred by instructing the jury in the
punishment charge that he could receive good conduct credits prior to serving one-half of his
sentence. Hubert argues the trial court’s punishment jury charge egregiously harmed him
“because the jury rendered a 45-year sentence based on its misinformed belief about the
existence [of] law providing for good conduct time.” Hubert argues the erroneous instruction
“made the case for punishment clearly and significantly more persuasive,” because the parole
eligibility instruction gave the jury the misleading impression that good conduct credit could
result in Hubert becoming eligible for parole in less time than actually permitted by law. The
State acknowledges the instruction was incorrect and internally inconsistent, with the phrases
“plus any good conduct time earned” and “without any consideration of good conduct time”
contradicting one another. However, the State asserts Hubert was not egregiously harmed by the
erroneous instruction.
During the punishment phase of the trial, the trial court gave the following parole
eligibility instruction:
Under the law applicable in this case, if the defendant is sentenced to a term of
imprisonment, he will not become eligible for parole until the actual time served
plus any good conduct time earned equals one-half of the sentenced imposed or
thirty (30) years, whichever is less, without any consideration of good conduct
time. Eligibility for parole does not guarantee that parole will be granted.
(Emphasis added.). The italicized language in the trial court’s jury charge is incorrect because
the jury had previously found Hubert guilty of murder, and a person convicted of murder may
not count good conduct time toward parole eligibility. The following language should have been
made a part of the jury’s charge on punishment in lieu of the language quoted previously in this
paragraph:
Under the law applicable in this case, if the defendant is sentenced to a term of
imprisonment, the defendant will not become eligible for parole until the actual
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time served equals one-half of the sentence imposed or 30 years, whichever is
less, without consideration of any good conduct time the defendant may earn. . . .
Eligibility for parole does not guarantee that parole will be granted.
TEX. CODE CRIM. PROC. ANN. art. 37.07 § 4(a) (West Supp. 2013); see also TEX. GOV’T CODE
ANN. § 508.145(d)(1) (West Supp. 2013) (inmate serving a sentence for murder “is not eligible
for release on parole until the inmate’s actual calendar time served, without consideration of
good conduct time, equals one-half of the sentence or 30 calendar years, whichever is less”).
We agree that the parole eligibility instruction given by the trial court was erroneous
since it did not comply with article 37.07, section 4(a), of the code of criminal procedure. A
defendant convicted of murder in Texas is not permitted to count any earned “good conduct
time” toward parole eligibility. See TEX. GOV’T CODE ANN. § 508.145(d)(1). To the extent the
trial court’s instruction suggests differently and is not the proper, statutorily required charge, the
instruction is a misstatement of the applicable law. In addition, the trial court’s use of the phrase
“plus any good conduct time earned” is internally inconsistent with the subsequent phrase of the
jury charge “without any consideration of good conduct time,” which modifies the explanation of
parole eligibility contained in article 37.07, section 4(a).
Hubert did not object to the erroneous jury charge. Accordingly, we reverse only if the
error was so egregious and created such harm that it denied Hubert a fair and impartial trial. See
Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). Any harm that was inflicted by
the erroneous charge must be “assayed in light of the entire jury charge, the state of the evidence,
including the contested issues and weight of the probative evidence, the argument of counsel,
and any other relevant information revealed by the record of the trial as a whole.” Almanza v.
State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984); see Ngo, 175 S.W.3d 738, 750 n.48 (Tex.
Crim. App. 2005). The degree of harm demonstrated by the appellant must be actual, not merely
theoretical. Almanza, 686 S.W.2d at 174. “Jury-charge error is egregiously harmful if it affects
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the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive
theory.” Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007) (citing Hutch v. State,
922 S.W.2d 166, 171 (Tex. Crim. App. 1996)). Egregious harm is a difficult standard to meet
and must be determined on a case-by-case basis. See Ellison v. State, 86 S.W.3d 226, 227 (Tex.
Crim. App. 2002).
Here, a number of factors mitigate against a finding of egregious harm. First, the jury’s
assessment of punishment was less than the maximum allowed under the law. See Shavers v.
State, 985 S.W.2d 284, 292 (Tex. App.—Beaumont 1999, pet. ref’d). The jury assessed
punishment of forty-five years’ imprisonment, when the range of punishment available was
fifteen years to ninety-nine years or life imprisonment. See TEX. PENAL CODE ANN.
§ 12.42(c)(1).
Second, in addition to the erroneous parole eligibility instruction, the jury was provided
in the punishment phase the statutory instructions explaining good conduct time and parole:
Under the law applicable to this case, the defendant, if sentenced to a term
of imprisonment, may earn time off the sentence 1 imposed through the award of
good conduct time. Prison authorities may award good conduct time to a prisoner
who exhibits good behavior, diligence in carrying out prison work assignments,
and attempts at rehabilitation. If a prisoner engages in misconduct, prison
authorities may also take away all or part of any good conduct time earned by the
prisoner.
It is also possible that the length of time for which the defendant will be
imprisoned might be reduced by the award of parole.
See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 4(a). The jury was also given mitigating or
curative instructions in the paragraphs following the instruction containing the erroneous
language:
1
The instruction contained in section 4(a) of article 37.07 refers to “the period of incarceration,” rather than “the sentence.” See TEX. CODE
CRIM. PROC. ANN. art. 37.07 § 4(a).
–21–
It cannot accurately be predicted how the parole law and good conduct
time might be applied to this defendant if he is sentenced to a term of
imprisonment, because the application of these laws will depend on decisions
made by prison and parole authorities.
You may consider the existence of parole law and good conduct time.
However, you are not to consider the extent to which good conduct time may be
awarded to or forfeited by this particular defendant. You are not to consider the
manner in which the parole law may be applied to this particular defendant.
In determining the punishment in this case, you are not to discuss among
yourselves how long the Defendant will be required to serve any sentence you
decide to impose. Such matters come with [sic] the exclusive jurisdiction of the
Board of Pardons and Paroles of the State of Texas, and are no concern of yours.
See id.; Ross v. State, 133 S.W.3d 618, 624 (Tex. Crim. App. 2004); see also Igo v. State, 210
S.W.3d 645, 647 (Tex. Crim. App. 2006).
The trial court’s parole instructions informed the jury that Hubert may be released from a
prison sentence early because of good conduct time or parole, but that one cannot predict how
parole law and the award of good conduct time may be applied to him. Further, the jury was
explicitly instructed that although it could consider the existence of parole law and good conduct
time, it could not consider the manner in which parole law or the award of good conduct time
may be applied to Hubert specifically. See Igo, 210 S.W.3d at 647. 2 Absent evidence to the
contrary, we presume jurors understood and followed the court’s instructions in the jury charge.
See Taylor v. State, 332 S.W.3d 483, 492 (Tex. Crim. App. 2011). The jury charge contained the
specific statutory admonition that they were not to consider the extent to which good conduct
time may be awarded to or forfeited by Hubert or to consider the manner in which the parole law
may be applied to Hubert. “Nothing in the record suggests that the jury discussed, considered or
tried to apply (despite the judicial admonition not to apply) what they were told about good
conduct time and parole.” Ross, 133 S.W.3d at 624 (quoting Luquis v. State, 72 S.W.3d 355, 367
(Tex. Crim. App. 2002)). The jury did not send out any notes or questions expressing confusion
2
See Ortega v. State, No. 03-11-00546-CR, 2012 WL 5974094, at *3 (Tex. App.—Austin Apr. 17, 2013, pet. ref’d) (mem. op., not
designated for publication).
–22–
about the parole instruction or indicating the possible application of good conduct time or the
parole law to Hubert. See id. 3
During closing argument, neither party referenced the erroneous instruction that, while
internally inconsistent, suggested in part that good conduct time could affect Hubert’s parole
eligibility. Instead, the State focused on requesting the jury to consider punishment “at the top”
of the punishment range, meaning life imprisonment. Conversely, Hubert’s counsel argued the
jury should consider the minimum sentence of fifteen years’ imprisonment. We further note that
during voir dire, Hubert’s counsel prevailed on the trial court to allow him to address punishment
and parole eligibility, and he accurately advised the venire panel:
I’m gonna talk to you because one of the instructions that you would get to in the
area . . . when you get to the punishment . . . [b]ecause you’re gone [sic] get a
charge that tells you that a person will be required to serve 50 percent of whatever
sentence you give them before they would ever become eligible for parole.
Okay? It will go on to tell you that the decision as to whether or not that person
makes parole—50 percent just means it would be eligible to be considered,
doesn’t mean that he’s gonna get it. It tells you that, that decision will be made
by somebody else at a later time, has nothing to do with the personnel in the court
involved in this case, and it will tell you in the next paragraph that you cannot
consider for any purpose, whatsoever, what you were just told about in the
preceding paragraphs. The charge will tell you that you’re not allowed to use that
information to try to go back and try to multiply or add and subtract and do all
that ciphering where you go back there and try to guess for yourself how long the
person would do on the sentence that you assess. . . . As the Court’s instructions
tell you, the decision whether or not someone ever makes parole is made by
somebody down the road years later. You don’t go back there and say well, since
he’ll be eligible in ten years, we’ll give him 20 because we know he can get out in
ten. You don’t do that. The jury should assess only the sentence that you think is
appropriate, and then you allow the people in that agency to determine how much
he would actually serve. Does everybody understand that?
Finally, the evidence relating to guilt-innocence and punishment was strong. The record
provides a basis for the jury’s assessment of punishment without suggesting harm from the
erroneous charge. The evidence established Hubert was upset that neither Smith nor Hosey had
3
See Powell v. State, No. 05-12-01158-CR, 2013 WL 3951621, at *3 (Tex. App.—Dallas Aug. 1, 2013, no pet.) (mem. op., not designated
for publication).
–23–
paid Alexander for the cell phone sold to Smith. The day of the shooting, Hubert went to The
Cut several times and was seen by Lugen in possession of a gun and looking for Hosey, which
prompted Lugen to warn Hosey that Hubert was looking for him and had a gun. When Hubert
came to The Cut the night of the shooting, he left Alexander’s car carrying his .357 Magnum
handgun and McCoy saw Hubert loading the gun prior to encountering Hosey. The evidence
was undisputed that no one else Hubert encountered that night was carrying a gun. When Hubert
encountered Lugen, he put his gun in Lugen’s face and told him he should shoot Lugen for
“snitching” to Hosey. Hubert then put his gun in Hosey’s face. There is no evidence Hosey was
reaching for the gun or had his hands on the gun at the time Hubert fired it. Rather, the evidence
showed that, after struggling with Hosey and while Hosey was face-down on the ground, Hubert
stepped or leaned backward in the process of freeing himself from Hosey’s grip on his ankles
and fired the gun into Hosey’s back. Lugen testified he believed the shooting was intentional,
particularly given that, as Hubert left the scene, he told Lugen “That could have been you.”
Hubert did not tell the police the shooting was an accident. Hubert told the police when he was
interviewed a number of days after the offense that “they got what they deserved,” and he
wanted to get his money. Indeed, at the punishment phase of the trial Hubert said he did not feel
he had done anything wrong. Although Hubert told the police “they” intended to rob him that
night, Hubert made no explanation for coming to The Cut armed when he was looking for
Hosey. With regard to his criminal history, Hubert had been previously convicted of possession
of cocaine, robbery, three burglaries, and driving while his license was suspended.
The factors discussed above mitigate against a finding of egregious harm. Hubert did not
receive the maximum sentence available. The jury charge contained curative or mitigating
instructions. The parole instruction explained the possibility, not certainty, that Hubert’s prison
sentence may be reduced by good conduct time or parole eligibility and, further, clearly
–24–
admonished the jury not to consider the extent to which the parole law or good conduct time
might be applied to him. No reference to good conduct time or parole eligibility was mentioned
by either party during punishment phase arguments. There is no evidence in the record that the
jury attempted to apply parole law or good conduct time when assessing Hubert’s sentence.
Under the standards necessary to show egregious harm, we conclude that the erroneous
parole eligibility instruction did not deprive Hubert of a fair and impartial trial or affect the very
basis of the case, deprive him of a valuable right, or vitally affect a defensive theory. See
Stuhler, 218 S.W.3d at 719. Based on our review of the entirety of the record, we conclude that
egregious harm has not been shown, and we resolve Hubert’s fifth point of error against him.
Evidence of Intent
In his sixth point of error, Hubert asserts the evidence was insufficient to establish he
intentionally shot Hosey. According to Hubert, the evidence established he “acted recklessly or
at most showed a mere modicum of proof on the element of intent.” The State responds that the
evidence was sufficient to prove Hubert acted intentionally, and, even if the evidence was
insufficient to prove he acted intentionally, Hubert would not be entitled to reversal of his
conviction because the evidence was sufficient to prove he acted knowingly.
We review the sufficiency of the evidence under the standard set out in Jackson v.
Virginia, 443 U.S. 307 (1979). Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013).
We examine all the evidence in the 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, 443 U.S. at 319; Matlock, 392 S.W.3d at 667. This standard recognizes “the
responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443
U.S. at 319; see also Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011). The jury,
–25–
as the fact finder, is entitled to judge the credibility of the witnesses, and can choose to believe
all, some, or none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d 459,
461 (Tex. Crim. App. 1991). We defer to the jury’s determinations of credibility, and may not
substitute our judgment for that of the fact finder. Jackson, 443 U.S. at 318–19; Brooks v. State,
323 S.W.3d 893, 899–900 (Tex. Crim. App. 2010) (plurality op.); King v. State, 29 S.W.3d 556,
562 (Tex. Crim. App. 2000) (in conducting legal sufficiency analysis, appellate court “may not
re-weigh the evidence and substitute our judgment for that of the jury”).
Hubert was indicted for murder under penal code sections 19.02(b)(1) and (2) as follows:
[Hubert] did unlawfully then and there intentionally and knowingly cause the
death of NICHOLAS HOSEY, an individual, hereinafter called deceased, by
SHOOTING THE DECEASED WITH A FIREARM, a deadly weapon.
And further did unlawfully then and there intend to cause serious bodily injury to
NICHOLAS HOSEY and did then and there commit an act clearly dangerous to
human life, to-wit: by SHOOTING THE DECEASED WITH A FIREARM, a
deadly weapon, and did thereby cause the death of NICHOLAS HOSEY, an
individual.
In the guilt-innocence phase jury charge, the jury was instructed to find Hubert guilty of murder
as charged in the indictment if the jury found Hubert knowingly or intentionally caused Hosey’s
death or if Hubert intended to cause serious bodily injury and committed an act clearly
dangerous to human life by shooting Hosey with a firearm, a deadly weapon. The jury found
Hubert guilty of murder as charged in the indictment.
“A person acts intentionally, or with intent, with respect . . . to a result of his conduct
when it is his conscious objective or desire to engage in the conduct or cause the result.” TEX.
PENAL CODE ANN. § 6.03(a) (West 2011). Murder is a “result of conduct” offense. Cook v.
State, 884 S.W.2d 485, 490 (Tex. Crim. App. 1994). “That is, the accused must have intended
the result, death, or have been aware that his conduct was reasonably certain to cause that result.”
Guzman v. State, 20 S.W.3d 237, 240 (Tex. App.—Dallas 2000), rev’d on other grounds, 85
–26–
S.W.3d 242 (Tex. Crim. App. 2002). “A person acts knowingly, or with knowledge, with
respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause
the result.” TEX. PENAL CODE ANN. § 6.03(b).
The specific intent to kill may be inferred from the use of a deadly weapon, unless the
manner of its use makes it reasonably apparent that death or serious bodily injury could not have
resulted. Flanagan v. State, 675 S.W.2d 734, 741 (Tex. Crim. App. 1984) (op. on reh’g); see
also TEX. PENAL CODE ANN. § 1.07(a)(17)(A) (West Supp. 2013) (“deadly weapon” means a
firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or
serious bodily injury). “Naturally, the most obvious cases and the easiest ones in which to prove
a specific intent to kill, are those cases in which a firearm was used and was fired or attempted to
have been fired at a person.” Godsey v. State, 719 S.W.2d 578, 581 (Tex. Crim. App. 1986). If a
deadly weapon, such as a pistol, is used in a deadly manner, an intent to kill is presumed.
Livingston v. State, 739 S.W.2d 311, 337 (Tex. Crim. App. 1987); see also Womble v. State, 618
S.W.2d 59, 64 (Tex. Crim. App. [Panel Op.] 1981) (“In fact, where a deadly weapon is fired at
close range and death results the law presumes an intent to kill.”). A pistol is a weapon deadly
per se when fired at a victim at close range. Thompson v. State, 521 S.W.2d 621, 622 (Tex.
Crim. App. 1974). The jury may also infer the intent to kill from the defendant’s words or
conduct, Hall v. State, 418 S.W.2d 810, 812 (Tex. Crim. App. 1967), and from any evidence it
believes proves the existence of that intent. Brown v. State, 122 S.W.3d 794, 800 (Tex. Crim.
App. 2003).
With these principles in mind, we turn to the record to determine whether the evidence is
sufficient to establish that Hubert intentionally or knowingly caused Hosey’s death. The record is
clear that Hubert shot Hosey at close range. Hubert was standing over Hosey as he lay prone on
–27–
the ground. The jury could infer Hubert’s intent to kill based on this evidence. See Godsey, 719
S.W.2d at 583; see also Thompson, 521 S.W.2d at 622.
The jury could have also inferred Hubert’s intentionally or knowingly caused Hosey’s
death from Hubert’s words and conduct. See Hall, 418 S.W.2d at 812. The evidence established
Hubert was upset that Smith or Hosey had not paid Alexander for the cell phone she found. The
day of the shooting, Hubert went to The Cut several times with a gun and looking for Hosey,
which prompted Lugen to warn Hosey that Hubert was looking for him and had a gun. When
Hubert came to The Cut the night of the shooting, he left Alexander’s car carrying his .357
Magnum handgun and McCoy saw Hubert loading the gun prior to encountering Hosey. The
evidence was undisputed that no one else Hubert encountered that night was carrying a gun.
When Hubert encountered Lugen, he put his gun in Lugen’s face and told him he should shoot
Lugen for “snitching” to Hosey. Hubert then put his gun in Hosey’s face. There is no evidence
Hosey was reaching for the gun or had his hands on the gun at the time Hubert fired it. Rather,
the evidence showed that, after struggling with Hosey and while Hosey was face-down on the
ground, Hubert stepped or leaned backward in the process of freeing himself from Hosey’s grip
on his ankles and fired the gun into Hosey’s back. Lugen testified he believed the shooting was
intentional, particularly given that, as Hubert left the scene, he told Lugen “That could have been
you.” Hubert did not tell the police the shooting was an accident. Hubert told the police when
he was interviewed a number of days after the offense that “they got what they deserved,” and he
wanted to get his money.
In his brief, Hubert argues he “had ample opportunity to shoot more than once, and he
chose not to, even knowing that the deceased survived the solo shot.” This reasoning in support
of his claim that the evidence is insufficient to establish he intentionally or knowingly caused
Hosey’s death is flawed. “The fact that appellant fired the gun only once and that the
–28–
complainant sustained a single wound does not establish a lack of intent to kill.” Ayala v. State,
267 S.W.3d 428, 433 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d).
The fact finder is entitled to judge the credibility of witnesses and can choose to believe
all, some, or none of the testimony presented by the parties. See Chambers, 805 S.W.2d at 461.
We defer to the jury’s determination of witness credibility. Brooks, 323 S.W.3d at 899. After
reviewing the evidence under the appropriate standard, we conclude a rational trier of fact could
have found beyond a reasonable doubt that Hubert intended to kill Hosey or that Hubert
knowingly caused Hosey’s death, and the evidence is sufficient to support Hubert’s conviction
for murder. We resolve Hubert’s sixth point of error against him.
Conclusion
Having resolved Hubert’s points of error against him, we affirm the trial court’s
judgment.
/Robert M. Fillmore/
ROBERT M. FILLMORE
JUSTICE
Do Not Publish
Tex. R. App. P. 47
121084F.U05
–29–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ANDRE DJUNA HUBERT, Appellant On Appeal from the 194th Judicial District
Court, Dallas County, Texas,
No. 05-12-01084-CR V. Trial Court Cause No. F11-60671-M.
Opinion delivered by Justice Fillmore,
THE STATE OF TEXAS, Appellee Justices Bridges and Lewis participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 4th day of March, 2014.
/Robert M. Fillmore/
ROBERT M. FILLMORE
JUSTICE
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