Bishop v. State, No. 2-03-443-CR (TX 5/19/2005)
| Decision Date | 19 May 2005 |
| Docket Number | No. 2-03-443-CR,2-03-443-CR |
| Parties | BRIAN DAVID BISHOP, Appellant, v. THE STATE OF TEXAS, State. |
| Court | Texas Supreme Court |
Appeal from Criminal District Court, No. 3 of Tarrant County.
Panel B: DAUPHINOT, HOLMAN, and WALKER, JJ.
A jury found appellant, Brian David Bishop, guilty of murder and sentenced him to fifty-two years' imprisonment. In three points on appeal, Bishop complains that (1 & 2) the evidence is legally and factually insufficient to support the jury's verdict, and (3) the trial court erred in overruling his objection to the jury charge. We will affirm.
On August 22, 1999, David Brent Blair was shot and killed. Dr. Gary L. Sisler, a deputy medical examiner for Tarrant County, performed the autopsy on Blair and testified that Blair died of a gunshot wound to the chest.
Prior to the shooting, the drunken Blair was observed yelling, cursing, and using racial slurs in the parking lot of G. Willikers, an Arlington, Texas bar. In addition, he was observed having a verbal altercation with a group of girls. A car was also seen quickly entering and exiting the parking lot. Blair and the car both went down a nearby street, where Blair was spotted hitting and/or kicking the car. Blair was then shot, and he walked or ran back to the parking lot of the bar before he died.
Bishop admitted in a written statement to driving the car that entered and exited the bar parking lot, to having had a verbal confrontation with Blair, and to firing his nine millimeter pistol two or three times at Blair. Bishop claimed that upon reentering the street from the bar parking lot he yelled at Blair to get out of the street and that Blair cursed at him before getting out of the way. He indicated that he then proceeded south before stopping at a red light, and that while stopped at the red light Blair entered his vehicle by inserting his upper body through the passenger window of the vehicle. He stated that Blair was swinging both of his arms trying to hit him and his front seat passenger, Adriun Clark. He further stated that he thought Blair had hit Adriun a couple of times, that he could smell liquor on Blair's breath, and that he was scared of Blair. Bishop then admitted to picking up his nine millimeter pistol and firing two or three shots in Blair's direction. He said that he did so in an attempt to scare Blair off. After the incident, Bishop and his three passengers went on to another club. Later, after reading in the newspaper that Blair had died, Bishop melted his gun down in his backyard barbeque before taking it apart and scattering it piece by piece as he drove around.
Back seat passenger Eric Clark testified that after Bishop told Blair to get out of the road, Blair threw a bottle at the car but missed. He testified that he then observed Blair running toward the passenger side of the car with something in his hand. He stated that Blair tried to jump inside the passenger window of the car where his brother, Adriun Clark, was sitting. However, he gave conflicting testimony about when Bishop started shooting—before or after Blair started swinging. He testified that he was afraid, and on cross-examination that he was afraid for his brother's life, but he didn't state either in his written statement.
Front seat passenger Adriun Clark, testified that he did not recall Blair throwing anything at the car and that he saw no weapon in Blair's hand. He testified that he was sitting at the red light with his window down when Blair's arm came "flying in the window." He stated that he opened the door to push Blair off but that when he pulled the door back Blair's arm was still there. He testified that he was afraid of Blair, but he could not say that he was in fear for his life until he heard gunshots.
The remaining passenger in the vehicle, Andreco Lott, refused to testify about the incident and was held in contempt of court. The testimony showed that Bishop's vehicle was not behind any other cars at the intersection, and that it was possible that Bishop could have simply driven away once the light changed. Bishop was convicted by a jury and sentenced to 52 years' imprisonment. This appeal followed.
In his first two points, Bishop contends that the evidence is both legally and factually insufficient to support his conviction because the evidence shows that he did not know that his actions would result in the death of Blair and because the evidence shows that he was acting in defense of himself, his passengers, and his property. The State responds that there is sufficient evidence from which any rational trier of fact could have rejected Bishop's defensive theories and found him guilty of murder beyond a reasonable doubt.
In reviewing the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the verdict in order to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex. Crim. App. 2004).
This standard gives full play to the responsibility of the trier of fact 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, 99 S. Ct. at 2789. The trier of fact is the sole judge of the weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). Thus, when performing a legal sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the fact finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131 (2000). We must resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).
In determining the legal sufficiency of the evidence to show appellant's intent, and faced with a record that supports conflicting inferences, we "must presume—even if it does not affirmatively appear in the record—that the trier of fact resolved any such conflict in favor of the prosecution, and must defer to that resolution." Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991).
After the defendant has introduced some evidence of a defense, the State bears the burden of persuasion to disprove it. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); Saxton v. State, 804 S.W.2d 910, 913-14 (Tex. Crim. App. 1991). This burden does not require the State to introduce evidence disproving the defense; rather, it requires the State to prove its case beyond a reasonable doubt. Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 913. To determine sufficiency of the evidence to disprove a nonaffirmative defense, the appellate court asks the following:
whether, after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact would have found the essential elements of [the offense] beyond a reasonable doubt and also would have found against appellant on the [defensive] issue beyond a reasonable doubt.
Saxton, 804 S.W.2d at 914. See also Adelman v. State, 828 S.W.2d 418, 422-23 (Tex. Crim. App. 1992) ().
In reviewing the factual sufficiency of the evidence to support a conviction, we are to view all the evidence in a neutral light, favoring neither party. See Zuniga v. State, 144 S.W.3d 477, 481 (Tex. Crim. App. 2004). The only question to be answered in a factual sufficiency review is whether, considering the evidence in a neutral light, the fact finder was rationally justified in finding guilt beyond a reasonable doubt. Id. at 484. There are two ways evidence may be factually insufficient: (1) the evidence supporting the verdict or judgment, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt; or (2) when there is evidence both supporting and contradicting the verdict or judgment, weighing all of the evidence, the contrary evidence is so strong that guilt cannot be proven beyond a reasonable doubt. Id. at 484-85. "This standard acknowledges that evidence of guilt can `preponderate' in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt." Id. at 485. In other words, evidence supporting a guilty finding can outweigh the contrary proof but still be insufficient to prove the elements of an offense beyond a reasonable doubt. Id.
In performing a factual sufficiency review, we are to give deference to the fact finder's determinations, including determinations involving the credibility and demeanor of witnesses. Id. at 481; Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). We may not substitute our judgment for that of the fact finder's. Zuniga, 144 S.W.3d at 482. A proper factual sufficiency review requires an examination of all the evidence. Id. at 484, 486-87. An opinion addressing factual sufficiency must include a discussion of the most important and relevant evidence that supports the appellant's complaint on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
When a defendant challenges the factual sufficiency of the rejection of a defense (as opposed to an affirmative defense), the reviewing court employs the same standard of review articulated in Zuniga because once the defendant has met his or her burden of production of evidence as to a defense, the State bears the burden to prove appellant's guilt of the charged...
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