MacK Williams IV v. State

Affirmed and Memorandum Opinion filed October 30, 2007

Affirmed and Memorandum Opinion filed October 30, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-07-00109-CR

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MACK WILLIAMS IV, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

 Harris County, Texas

Trial Court Cause No. 1063517

M E M O R A N D U M  O P I N I O N

A jury found appellant, Mack Williams, IV, guilty of manslaughter.  Upon submission of a special issue, the jury found appellant used or exhibited a deadly weapon in the commission of the offense.  The trial court assessed punishment of six years= confinement and a fine of $10,000.00.  In his sole issue, appellant contends the evidence was factually insufficient to support the jury=s deadly weapon finding.  All dispositive issues are clearly settled in law.  Accordingly, we issue this memorandum opinion and affirm.  See Tex. R. App. P. 47.4.

I. Background

On March 23, 2006,Tamara Corsey spent the night in room 102 of the I-10 motel in Houston, Texas with Brittany  Taylor and Roland Babineaux.  When Corsey awoke the next morning, Taylor was no longer in the room, and Babineaux was in her bed, attempting to rape her.  Corsey escaped after she hit Babineaux over the head with a beer bottle.  Corsey entered another motel room and called her friend Lanny Fuselier.  She asked Fuselier to retrieve her from the motel and explained that Babineaux either raped or attempted to rape her.  Corsey then returned to room 102 and waited by the door for Fuselier to arrive.

Upon receiving Corsey=s call, Fuselier immediately left and picked up appellant. At Fuselier=s request, appellant brought a .40 caliber Springfield handgun, which was placed on the floor of Fuselier=s car.  Appellant and Fuselier arrived at the motel approximately eight minutes after Corsey=s call. 

Corsey began loading her belongings into Fuselier=s car.  She asked Fuselier to help her gather the rest of her belongings from the motel room.  Fuselier exited the car and waited by the motel room door while Corsey retrieved the rest of her property.  After she gathered these items, Corsey waited in the car while appellant and Fuselier entered the motel room.

Two alternative theories were presented at trial as to the events that occurred after appellant and Fuselier entered the motel room.  Brandi Pogue, a prostitute staying at the motel, observed Babineaux dive out through the closed window of room 102.  She testified that as Babineaux attempted to regain his footing, appellant and Fuselier emerged from the motel room and wrestled with him for about two or three minutes.  Appellant then produced a handgun and, with Fuselier=s encouragement, shot Babineaux.  After the shooting, appellant and Fuselier ran to Fuselier=s car and drove away.

Alternatively, Fuselier testified that he was standing by the motel room door,  holding the Springfield handgun at his side.  As he prepared to leave, he and Babineaux began to argue.  He insulted Babineaux, who charged him and grabbed his chest. The two men Atussled@ for a short period of time, and, during that period, Fuselier accidentally fired the gun, hitting Babineaux.  Babineaux then jumped out of the window while Fuselier and appellant ran out of the motel room, got into his car, and drove away. 

Babineaux was taken via Life-Flight helicopter to Memorial Hermann Hospital, where, despite efforts to resuscitate him, he died as a result of his injuries. 

During the police investigation into Babineaux=s killing, officers recovered a bullet casing from inside the motel room and a bullet matching that casing from a soda machine outside the motel room.  Based on the bullet=s trajectory, it appeared the bullet had been fired from inside the motel room, traveled through room 102=s window, and came to rest in the soda machine, having traveled at a slightly downward angle.  The investigating officers did not recover any other physical evidence of value from the crime scene.  The autopsy of Babineaux=s body did not reveal any evidence of gun powder residue or stippling.

Appellant and Fuselier were eventually arrested.  Eyewitnesses, investigating officers, and medical examiners testified at trial.  The jury convicted appellant of manslaughter and, in response to a special issue, found that appellant used or exhibited a deadly weapon in the commission of the offense.

II. Factual Sufficiency of the Evidence

Appellant claims the evidence is factually insufficient to support the jury=s finding that he used or exhibited a deadly weapon.  Specifically, appellant contends the finding that he was the primary actor in the shooting is against the great weight and preponderance of the  evidence, and the trial court could not rely on the law of parties to support the deadly- weapon finding.  We disagree.

First, we acknowledge that a factual sufficiency review begins with the presumption that the evidence is legally sufficient.  Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996).   In evaluating factual sufficiency of the evidence, we view all the evidence in a neutral light and will set aside the verdict only to prevent manifest injustice.  Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006).  In conducting a factual sufficiency review, we engage in a two prong test to determine whether there is some objective basis to find: (1) the evidence in support of the jury=s verdict, although legally sufficient, is nevertheless so weak that the jury=s verdict seems clearly wrong and unjust; and (2) in considering conflicting evidence, the jury=s verdict, although legally sufficient, is nevertheless against the great weight and preponderance of the evidence.  Id. at 414-17.  Although a factual sufficiency review authorizes an appellate court to act in the capacity of a so-called Athirteenth juror,@ due deference must be accorded the fact finder=s determinations, particularly those determinations concerning the weight and credibility of the evidence.  See id. at 416-17.

An affirmative deadly weapon finding may be entered by the trial court in three instances: (1) the indictment alleges the use of a deadly weapon and the jury finds the defendant guilty as charged in the indictment; (2) the weapon is deadly per se; or (3) the jury affirmatively answers a special issue on the matter. See Lafluer v. State, 106 S.W.3d 91, 96 (Tex. Crim. App. 2003).  In the judgement, the trial court is required to set forth any affirmative findings that a deadly weapon was used or exhibited during the commission of a felony offense, if the defendant either personally used or exhibited the deadly weapon or was a party to the offense and knew a deadly weapon would be used or exhibited.  See Tex. Code Crim. Proc. Ann. art. 42.12 ' 3g (a)(2) (Vernon 2006).

Appellant contends the jury could not rely on the testimony of Brandi Pogue to support a finding that he personally used or exhibited a deadly weapon because her testimony is against the great weight and preponderance of the evidence.  Pogue testified that she observed appellant and Fuselier emerge from room 102 after Babineaux dove through the motel room window; appellant and Fuselier wrestled with Babineaux for two or three minutes; appellant produced a handgun; and, with Fuselier=s encouragement, appellant shot Babineaux.  Appellant argues Pogue=s testimony was unreliable because she is a prostitute and a drug addict, and has been convicted of various crimes including forgery, theft, and prescription fraud.  Additionally, he asserts Pogue=s testimony is unreliable because she rented the motel room for only one hour and her attention was first drawn to Fuselier=s vehicle because she thought it was a drug dealer=s car.  However, the jury could have reasonably believed Pogue=s testimony despite the challenges to her credibility.  Pogue testified that, although she struggles with drug abuse, on the morning in question Pogue was sober and had recently awoken after eight or nine hours sleep.  When evaluating Pogue=s credibility the jury was entitled to decide the weight, if any, to assign to her profession as a prostitute, her history of drug abuse, and her criminal record.

Appellant notes several witnesses presented evidence that conflicted with Pogue=s testimony.  Specifically, Fuselier admitted to shooting Babineaux in the motel room; Fuselier and Corsey testified that appellant did not have a gun during the incident; and physical evidence indicated a gun was fired inside the motel room.  Further, Pogue testified she saw Aa guy@ in the driver=s seat of the car before the shooting occurred; but Corsey, a female, testified she was waiting for appellant and Fuselier in the car=s passenger seat. 

However, Detective Brent Clegg, the lead investigator in this case, did not observe anything in the room, other than a broken window, that might indicate two men had struggled before a gun was fired.  Detective Clegg and Marissa Feeney, an assistant medical examiner in the Harris County Medical Examiner=s Office, also testified that, when a person is shot at close range, as in the close quarters combat described by Fuselier, the shot generally leaves gun powder residue on the victim or results in stippling to the victim=s body.  Babineaux=s body did not exhibit either phenomenon.  However, the medical examiner also testified that, in the absence of stippling or gunpowder residue, her examination of the injuries to Babineaux=s body did not reveal enough information to determine the range at which he was shot. 

The jury was in the best position to judge the credibility of the witnesses, and we defer to its judgment unless the record clearly indicates that a different result is appropriate.  See Watson, 204 S.W.3d at 414-17.  We cannot conclude the evidence was so weak that the verdict appears to be clearly unjust, or that Pogue=s testimony was so undermined by the great weight and preponderance of conflicting evidence that the jury could not believe Pogue=s account of the incident. Therefore, the evidence is factually sufficient to support the jury=s finding that appellant personally used or exhibited a deadly weapon.

Appellant also contends the deadly weapon finding cannot be supported under the law of parties because neither the jury instructions at the guilt-innocence phase nor the jury instructions that accompanied the deadly-weapon special issue required a finding that appellant knew a deadly weapon would be used or exhibited. However, having concluded the evidence is factually sufficient to support the jury=s finding that appellant personally used or exhibited a deadly weapon, we need not address whether the evidence is factually sufficient to support the jury=s deadly weapon finding under a law-of-parties theory.  We overrule appellant=s sole issue.

Accordingly, the judgment of the trial court is affirmed.

/s/        Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed October 30, 2007.

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.

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