Ervin v. State

• Citation: 331 S.W.3d 49
• Decision Date: 10 November 2010
• Docket Number: No. 01–10–00054–CR.,01–10–00054–CR.
• Parties: Kenneth Shaye ERVIN, Appellant,v.The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas

331 S.W.3d 49

Kenneth Shaye ERVIN, Appellant,

v.The STATE of Texas, Appellee.

No. 01–10–00054–CR.

Court of Appeals of Texas, Houston (1st Dist.).

Nov. 10, 2010.Discretionary Review Refused

Feb. 16, 2011.

Kenneth Goode, Houston, TX, for Appellant.David C. Newell, Assistant District Attorney, Patricia R. Lykos, Harris County District Attorney, Houston, TX, for Appellee.Panel consists of Justices JENNINGS, ALCALA, and HIGLEY.

OPINION

ELSA ALCALA, Justice.

Appellant, Kenneth Shaye Ervin, appeals from a judgment sentencing him to life in prison for the murder of Quincy Sheppard. See Tex. Penal Code Ann. § 19.02(b) (Vernon 2003). In two issues, appellant contends that the evidence is legally and factually insufficient to support his conviction for murder. Concluding the evidence is sufficient, we affirm.

Background

Ronald and Quincy Sheppard lived at their father's apartment in southeast Houston. At the time, Ronald was making a lot of money selling illegal drugs around the apartment complex, and appellant's cousin did not want Ronald around. One evening in April 2008, the Sheppard brothers walked on the street outside their apartment complex when appellant and appellant's cousin directed vulgar words at them. Appellant then pulled out a black, semiautomatic gun and fired approximately six bullets towards the Sheppard brothers as they ran away.

About two days later, the Sheppard brothers went outside their apartment complex to deliver illegal drugs to a customer. Appellant and his cousin ran up to them. Appellant pointed the same gun at them and demanded, “Give me the money and the marijuana.” Ronald complied. As the Sheppard brothers were leaving, appellant fired approximately five bullets at them. The brothers again escaped uninjured.

Approximately two days after the theft, as the Sheppard brothers walked back to their apartment at night, Ronald looked back and saw appellant holding the same gun at his side. Appellant said, “Don't run now.” Ronald tapped on Quincy's shoulder, instructing him to run away. Ronald then ran inside his father's apartment, where he heard the sound of two gunshots fired outside.

At the same time, Walter Dixon was outside the apartment complex and heard the gunshots. Dixon saw appellant quickly walking away from where the sound of the gunshot originated. Dixon saw appellant attempting to conceal something, which Dixon thought was a gun, in his pants. Dixon perceived appellant to be panicked and in a hurry. When Dixon asked him, if he was okay, appellant answered, “No,” and left.

After hearing the gunfire, Ronald went to Quincy and stood nearby screaming, yelling, and crying hysterically. Ronald told the police officers who arrived at the scene that appellant shot Quincy. The police found Quincy lying unconscious on the ground; he had been shot in the arm and the chest and was pronounced dead at the scene. The police recovered two fired .40 caliber cartridge casings from the crime scene. In the subsequent investigation, police officers recovered two .40 caliber bullets from appellant's girlfriend's apartment. This was the same caliber as the casings found at the scene of the shooting and the bullet fragments later recovered from Quincy's body.

The day after Quincy's death, Dixon saw appellant. Appellant, who was with a couple of his friends, called Dixon to come over. Appellant instructed one of his friends to “[a]sk [Dixon] about it.” By “it,” Dixon understood appellant to be referring to the prior night's shooting. Dixon offered, “I don't know nothing, and you shouldn't be talking about it.”

In the days shortly after the shooting, Dixon was interviewed by the police, but he did not mention either seeing appellant on the night of the shooting or the conversation that occurred the day after. Earning a reward for the tip, Dixon later contacted Crime Stoppers to report that he saw appellant on the night of the shooting. Approximately two years later, in the week before trial, Dixon met with the prosecutor and disclosed for the first time the conversation with appellant that occurred the day after the shooting.

At trial, Dixon identified appellant as the man he saw leaving the crime scene on the night of the shooting. Dixon testified that he knew appellant as “Teardrop.” Appellant has a tattoo of teardrops near his left eye. At trial, Ronald also identified appellant as the shooter. He testified that he knew appellant as “Ken Ken.” Appellant, whose first name is Kenneth, has a tattoo on his left bicep that states, “Ken Ken hearts Arneshia.”

Appellant pleaded not guilty. The jury found him guilty, found true a felony enhancement paragraph, and assessed his sentence. Appellant filed a motion for new trial, which was overruled by operation of law.

Sufficiency of the Evidence

In two issues, appellant contends that the circumstantial evidence is legally and factually insufficient to support his conviction for murder. In his combined argument concerning both issues, appellant points out that there was no direct evidence, such as an eyewitness's testimony, that he fired the two bullets that killed Quincy. Appellant does not separately argue his legal- and factual-sufficiency challenges.

A. Standard of Review

In light of the recent court of criminal appeals decision in Brooks v. State, we must determine what standard of review we will apply to an evidentiary-sufficiency challenge styled as a factual-sufficiency challenge. See Brooks v. State, 323 S.W.3d 893, 894–913 (Hervey, J., joined by Keller, P.J., and Keasler and Cochran, JJ., plurality opinion), 323 S.W.3d at 912–26 (Cochran, J., joined by Womack, J., concurring), 323 S.W.3d at 926–32 (Price, J., joined by Meyers, Johnson, and Holcomb, JJ., dissenting) (Tex.Crim.App. Oct. 6, 2010). Of the three opinions issued in Brooks, no opinion was joined by a majority of the judges. Id. When an appellate court decides a case without issuing a majority opinion providing a single rationale explaining the result, the majority holding is the position taken by those members who concurred in the judgment on the narrowest grounds. Haynes v. State, 273 S.W.3d 183, 186 (Tex.Crim.App.2008) (quoting Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 993, 51 L.Ed.2d 260 (1977)). In Brooks, a majority of judges joined either the plurality or the concurring opinion. See Brooks, 323 S.W.3d at 894–95, 912–13. Accordingly, the narrowest ground on which they agree constitutes the Brooks majority holding. See Haynes, 273 S.W.3d at 186.

In Brooks, the plurality and the concurrence both agreed to overrule the court of criminal appeals' prior holding in Clewis v. State that had applied separate standards of review for legal and factual sufficiency of the evidence challenges. Brooks, 323 S.W.3d at 894–95, 913–15. In Clewis, the court held that legal-sufficiency challenges are to be reviewed in the light most favorable to the verdict under the standard of review established by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979), but that factual-sufficiency challenges are to be reviewed under a different, neutral, standard. Clewis v. State, 922 S.W.2d 126, 132, 134 (Tex.Crim.App.1996), overruled by Brooks, 323 S.W.3d 893.¹ The plurality and concurring opinions in Brooks agree that the Jackson standard of review is the sole standard to be used for challenges concerning the sufficiency of the evidence to support each element of the offense and that a finding of insufficiency results in an order acquitting the appellant. See Brooks, 323 S.W.3d at 912–13, 917–18, 922–24, 926–28 ²; see also Tibbs v. Florida, 457 U.S. 31, 41, 102 S.Ct. 2211, 2218, 72 L.Ed.2d 652 (1982). This majority holding is the precedent of the court of criminal appeals. See Haynes, 273 S.W.3d at 186.

As an intermediate court of appeals, we are bound to follow the precedent of the court of criminal appeals. Purchase v. State, 84 S.W.3d 696, 701 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd); See Tex. Const. art. V, § 5(a) (court of criminal appeals is final authority for criminal law in Texas). Although an intermediate appellate court's decision “shall be conclusive on all questions of fact brought before them on appeal or error,” the court of criminal appeals has the authority to determine questions of law, including the standard of review that an intermediate appellate court must use in conducting factual review. See Tex. Const. art. V, § 6(a) (providing for questions of fact to be resolved by intermediate appellate courts); Roberts v. State, 221 S.W.3d 659, 663 (Tex.Crim.App.2007).³ Determining that the Clewis standard should no longer be applied to review the factual sufficiency of the evidence, the Texas Court of Criminal Appeals establishes the Jackson standard for the review of factual-sufficiency challenges. See Brooks, 323 S.W.3d at 912–13, 926–28.⁴ We are bound to follow the Brooks majority holding, and we, therefore, apply the Jackson sufficiency standard of review to complaints styled as legal or factual sufficiency challenges concerning the elements of a criminal offense. See Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. “It bears emphasizing that a rigorous and proper application of the Jackson v. Virginia legal-sufficiency standard is as exacting a standard as any factual-sufficiency standard (especially one that is ‘barely distinguishable’ or indistinguishable from a Jackson v. Virginia legal-sufficiency standard).” Brooks, 323 S.W.3d at 906.

Under the Jackson standard, evidence is insufficient to support a conviction if, considering all the record evidence in the light most favorable to the verdict, no rational factfinder could have found that each essential element of the charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; In re Winship, 397 U.S. 358, 361, 90 S.Ct. 1068, 1071, 25 L.Ed.2d 368 (1970); Laster v. State, 275 S.W.3d 512, 517 (Tex.Crim.App.2009); Williams v. State, 235 S.W.3d...