Bush v. State
| Decision Date | 02 August 2018 |
| Docket Number | NUMBER 13-17-00389-CR |
| Parties | BYRON EARL BUSH, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
On appeal from the 252nd District Court of Jefferson County, Texas.
Before Chief Justice Valdez and Justices Rodriguez and Benavides
By five issues, appellant Byron Earl Bush challenges his conviction for the attempted murder of Sergeant Chad Kolander. We affirm.1
In 2014, a grand jury indicted Bush on attempted capital murder of a peace officer, Sergeant Kolander, a felony of the first degree.2 The indictment included an enhancement paragraph alleging that Bush was previously convicted of a felony.3 Bush pleaded not guilty.
A jury found Bush guilty of the lesser-included offense of attempted murder. Bush requested punishment by the trial court. Based on his prior conviction, the trial court enhanced Bush's punishment and sentenced him to forty years' confinement. Bush appeals.
By his first and second issues, Bush argues that the evidence is insufficient to show that he intended to cause Kolander's death. When reviewing the sufficiency of the evidence, we view the evidence "in the light most favorable to the verdict and determine whether, based on the evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt." Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017). We must presume that the jury resolved any conflicting inferences in favor of the verdict. Id.
Viewed in the appropriate light, the record evidence establishes the following sequence of events. On May 22, 2014, Alexis Coleman noticed a brown Cadillac pursuing her car closely. She took a u-turn, and the Cadillac followed. The Cadillac pulled up close to her driver's side window. She rolled down her window and saw that it was Bush. When Bush saw her, he said, "My bad," and drove away. Coleman got the sense that Bush had been looking for someone else. Coleman was shaken up, so she called her husband Thomas Stagg.
Stagg was already acquainted with Bush, who was friends with Stagg's brother. Bush and Stagg would soon be indicted for their alleged roles in a robbery. Stagg's brother had warned him that lately, Bush was saying all sorts of "crazy" things, and he warned Stagg to watch out.
Stagg decided to confront Bush at a park he frequented. When Stagg pulled up with his stepbrother, he saw Bush sitting alone on a bench. Bush had a gun on his lap. Stagg sat down and drew a gun of his own. Bush said, "You know I got to kill your brother." The men had a heated exchange. Bush then snatched the gun from Stagg's lap and placed his own gun in Stagg's lap. Stagg believed that Bush's gun may have been used in the robbery, so he grasped Bush's firearm with his fingertips, trying to avoid putting fingerprints on it, and put it in his pocket.
Bush pulled Stagg into an embrace. He said "[I'm] sorry for what [I] have to do." Stagg heard a clicking sound from where Bush was holding the gun, and he pushed Bush away. Stagg's stepbrother shouted from the car. As Stagg backed toward the car, Bush told him to come to another local park later that day. Stagg knew the park to be secluded and vacant, and he believed that Bush would shoot him if he went to the park. Instead, he drove home and met Coleman.
Late that afternoon, Stagg called an officer he knew, Sergeant Kolander. Stagg told him what occurred at the park and that he was in possession of Bush's gun. Kolander came to Stagg's second-floor apartment that evening with Detective Marcus McLellan. They planned to go downtown so that Stagg could give a statement and Bush's black Smith & Wesson could be taken into evidence.
However, as they talked, Stagg received a phone call from a friend in the same apartment complex. The friend had just seen Bush wandering around the complex with a gun in his hand, knocking on doors, looking for Stagg.
From outside, Stagg and the officers heard knocking on a nearby door. The officers drew their weapons and hurried out into the foyer.
The jury heard multiple accounts of what happened next. Stagg testified that he saw the officers move down the stairwell to the apartment's front door, but he could only hear what happened after Kolander flung the door open:
They went down the stairs like in a line, like what you see on the movies. Kolander was in the front. Kolander got to the door; and the younger one, the skinny one, that's what I call him, he was behind Kolander. And Kolander grabbed the door and they start talking, I guess doing a countdown, whatever they do, and Kolander swung the door open. I couldn't see Bush or nothing like that. I guess he was on the left side of the door, where you can't see. Then they ran out. You can hear them say, "Stop, freeze, get down." And the door closed, and it got quiet after that. I just start hearing gunshots after that.
Stagg testified that seconds after the door closed, he heard four or five gunshots ring out. Coleman testified similarly.
Sergeant Kolander testified that when he opened the door, he saw Bush standing three or four feet away in the apartment's floodlighting. He and McLellan testified that they shouted
Bush edged backwards, and as he grabbed at his waist band, Kolander and McLellan took aim at him. When Bush saw Kolander's laser sight trained on him, he said "aw, nah" and then broke into a run. Kolander testified that he and McLellan gave chase, yelling, "Stop, get on the ground, police."
Bush ran through the complex until he neared a wrought iron fence. The officers saw Bush turn in stride and then the glare of a gun blast in the darkness, pointed in their direction. Detective McLellan could tell that the shots were pointed toward him because he saw the muzzle flash spread and, within it, "a vortex of darkness when a bullet comes out of the barrel," which appeared to be pointed in his direction. Kolander and McLellan testified that Bush missed them three or four times, and the officers returned fire, striking him twice.
Bush disputed the officers' accounts of gunfire. He testified that he intentionally fired a single warning shot in the air to scare his pursuers, and that any of the other shots he fired were unintentional. A resident of the apartment complex, Cecil McBride III, testified that he witnessed a portion of the chase, but he never heard or saw Bush fire any shots.
When the officers shot Bush, he collapsed to the ground and lost consciousness. Kolander stood over him and saw blood on the grass and a pistol, which he slid away from Bush as he radioed in the shooting. As Kolander handcuffed Bush, he began to regain consciousness. Bush said, "You motherfuckers should have killed me."4 Two of the bullets fired by Bush were eventually found: one was found embedded in a wall next to where the officers had pursued Bush, and the other had shattered a window in the first-floor apartment behind the officers.
Kolander reported that "everybody that had flashing lights on their cars that night showed up" at the scene, including the Jefferson County Sheriff's Department, the Beaumont Police Department, the Beaumont Fire Department, and Beaumont EMS.
By his first issue, Bush contends that the evidence is insufficient to show that he intended to attempt to kill Sergeant Kolander. By his second issue, Bush asserts that the trial court erred in denying his motion for instructed verdict on the element of intent, which is likewise an attack on the sufficiency of the evidence. See Stevenson v. State, 499 S.W.3d 842, 848 n.33 (Tex. Crim. App. 2016).
A specific intent to kill is a necessary element of attempted murder. Flanagan v. State, 675 S.W.2d 734, 741 (Tex. Crim. App. [Panel Op.] 1982) (op. on reh'g); Palomo v. State, 925 S.W.2d 329, 332 (Tex. App.—Corpus Christi 1996, no pet.). The specific intent to kill may be inferred from the use of a deadly weapon, unless in the manner of its use it is reasonably apparent that death or serious bodily injury could not result. Cavazos v. State, 382 S.W.3d 377, 384 (Tex. Crim. App. 2012); Medina v. State, 7 S.W.3d 633, 637 (Tex. Crim. App. 1999) (en banc). "If a deadly weapon is used in [a] deadly manner, the inference is almost conclusive that he intended to kill." Godsey v. State, 719 S.W.2d 578, 581 (Tex. Crim. App. 1986) (en banc). "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." Id.; see King v. State, 312 S.W.2d 677, 677-78 (Tex. Crim. App. 1958) (); see also Jaramillo v. State, No. 13-08-00468-CR, 2010 WL 2638488, at *4-5 (Tex. App.—Corpus Christi June 29, 2010, no pet.) (mem. op., not designated for publication) (same); Trevino v. State, No. 14-07-00479-CR, 2008 WL 4355255, at *7 (Tex. App.—Houston [14th Dist.] Aug. 26, 2008, no pet.) (mem. op., not designated for publication) ( sufficient evidence of intent where there was evidence appellant fired at and missed two officers and hit a third, and the jury disbelieved the appellant's explanation that he actually fired up at the ceiling); Martin v. State, No. 11-97-00315-CR, 1999 WL 33743935, at *2 (Tex. App.—Eastland June 10, 1999, no pet.) (op., not designated for publication) (similar).
Bush emphasizes his own testimony that he fired a single warning shot in the air. However, the jury's finding indicates that it instead believed (1) Kolander and McLellan's testimony that Bush turned and fired at them multiple times and (2) evidence that Bush's shots landed behind and next to the officers. The jury resolved the conflicting evidence in favor of the State, and we defer to that...
To continue reading
Request your trial