Graham v. State

• Decision Date: 23 July 1997
• Docket Number: No. 09-94-226,09-94-226
• Citation: 950 S.W.2d 724
• Parties: Donald Ray GRAHAM, Appellant, v. The STATE of Texas, Appellee. CR.
• Court: Texas Court of Appeals

Page 724

950 S.W.2d 724

Donald Ray GRAHAM, Appellant, v. The STATE of Texas, Appellee.

No. 09-94-226 CR.

Court of Appeals of Texas,

Beaumont.

Submitted Nov. 15, 1996.

Decided July 23, 1997.

Bruce N. Smith, Beaumont, for appellant.

Tom Maness, Criminal District Attorney, David W. Barlow, Assistant Criminal District Attorney, Beaumont, for Appellee.

Before WALKER, C.J., and BURGESS and STOVER, JJ.

OPINION

STOVER, Justice.

Indicted by a Jefferson County grand jury for the offense of attempted murder, appellant Donald Graham pleaded not guilty. A jury convicted Graham and sentenced him to ten years' confinement in the Institutional Division of the Texas Department of Criminal Justice. Appellant appeals from the judgment and sentence below.

On August 12, 1992, while responding to a "shots fired/fight call," Officer Carona saw a white El Camino leaving "the area of the call" at a high rate of speed. The officer stopped the El Camino from which four or five people exited; he performed a Terry search and found a 410 shotgun shell (live round) in Donald Graham's pocket. Officer Carona also discovered a 410 gauge shotgun behind the El Camino's seat. Graham was initially stopped on Gulfway Drive in Port Arthur, four blocks from the fight/shooting incident on 15th Street to which Officer Carona was responding. In the presence of Officers Carona and Blanton, appellant responded to the taunting crowd that had gathered, "Yeah, I shot them. I wish I would have killed them." As revealed by later testimony, the reference in appellant's comment was to persons involved in a fight on 15th Street between Roy Snowden, appellant's brother, and a group that included the complainant, Michael Alexander. According to Officer LeBoeuf, two persons, Michael Alexander and Derrick Cross, "had been shot by shotgun pellets" in the 900 block of East 15th Street. After the officers arrested and performed the Terry search on appellant, they put him in the patrol car and took him to the scene of the altercation.

In his account of the incident, Roshane Taylor, a passenger in the El Camino, testified Graham became aware that his (Graham's) brother, Roy Snowden, had been involved in a fight. In an angry state, appellant drove to Mobile and 15th Streets, stopped his vehicle, jumped out, got his shotgun, and fired two times in the air. According to Taylor, Graham then moved forward "[t]owards where the crowd was." Taylor then testified as follows:

Q [State] Okay. So, he fired these two shots. Where did he fire them towards?

A [Taylor] Towards down the street, in the middle of the street.

Q And what was in the middle of the street?

A A crowd of people.

Q So, he fired into the middle of the street where a crowd of people were.

A The same guys who jumped on his brother.

Q And you're referring to Derrick Cross, Michael Alexander, Paul Alpough. Are you referring to those individuals?

A Yes, sir, I am.

After shooting twice in the air and twice towards the group of men, appellant then shot and hit a car. Before appellant left the scene, he fired one more shot into the air.

Taylor further testified he told Graham to "shoot them" [the guys who "had gotten into it" with appellant's brother], but he "never told him [Graham] to kill none of them." According to Taylor, Roy Snowden was being attacked by several guys who had sticks, bricks, and bats. Taylor stated it was at that point he told Graham to "shoot those guys," because it was necessary to protect Graham's brother. Taylor said he heard Graham say he (Graham) was going to kill one of the guys who beat up Snowden. As a result of his involvement in the incident, Roshane Taylor was convicted of attempted murder.

While testifying at trial, appellant related similar facts about his arrival on the scene, as well as the fact that he shot his gun in the air to scare the "crowd" (attackers) away. Since the attackers continued to throw objects at his brother, Graham declared he next shot toward them in an attempt to scare them into the house. According to Graham's testimony, he did not think he could hit anyone because of the distance between their location and his; neither did he intend to hurt or kill anyone when he fired his weapon. As did Roshane Taylor, appellant testified Taylor told him to shoot at the crowd. Graham did precisely that. He stated he shot the gun in order to "stop everything" and to protect his brother.

On appeal, appellant urges three points of error. The first two points concern alleged error in the court's charge, and point of error three contends the evidence is insufficient to support a finding that appellant had the intent to kill Michael Alexander.

We first consider the insufficiency of evidence point. When an appellant challenges both the legal and factual sufficiency of the evidence, an appellate court must first determine whether the evidence adduced at trial was legally sufficient to support the verdict. Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App.1996). The standard for reviewing the legal sufficiency of the evidence is "whether after viewing the evidence in the light most favorable to the prosecution, 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, 61 L.Ed.2d 560, 573 (1979). Accord Geesa v. State, 820 S.W.2d 154, 156-57 (Tex.Crim.App.1991).

If an appellate court determines the evidence is legally sufficient to support the verdict under the Jackson standard, the court may then proceed to a factual sufficiency review. See Clewis, 922 S.W.2d at 128. In conducting a factual sufficiency review, this Court must view all the evidence impartially and "set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Stone v. State, 823 S.W.2d 375, 381 (Tex.App.--Austin 1992, pet. ref'd, untimely filed.)

In the instant case, appellant was charged with attempted murder. A person commits the offense of attempted murder if, with the specific intent to cause the death of an individual, the person does an act amounting to more than mere preparation, but fails to effect the death of an individual. See Fuller v. State, 716 S.W.2d 721, 723 (Tex.App.-Corpus Christi 1986, pet. ref'd); TEX. PEN.CODE ANN. § 15.01(a) (Vernon 1974 & Vernon Supp.1992); ¹ TEX. PEN.CODE ANN. § 19.02(a)(1) (Vernon 1989). Appellant's complaint is that the evidence was insufficient to support a finding of an intent to kill.

A specific intent to kill is a necessary element of attempted murder. See Flanagan v. State, 675 S.W.2d 734, 741 (Tex.Crim.App.1982) (opinion on motion for rehearing); see also Fuller, 716 S.W.2d at 723. The intent to kill may be inferred from the use of a deadly weapon unless it would not be reasonable to infer that death or serious bodily injury could result from the use of the weapon. See Adanandus v. State, 866 S.W.2d 210, 215 (Tex.Crim.App.1993), cert. denied, 510 U.S. 1215, 114 S.Ct. 1338, 127 L.Ed.2d 686 (1994); see also Godsey v. State, 719 S.W.2d 578, 580-81 (Tex.Crim.App.1986). A shotgun is a deadly weapon unless in the manner of its use it is shown to be otherwise. See TEX. PEN.CODE ANN. § 1.07(a)(11) (Vernon 1974); see also Ex parte Franklin, 757 S.W.2d 778, 782-83 (Tex.Crim.App.1988); Lerma v. State, 679 S.W.2d 488, 493 (Tex.Crim.App.1982).

The record reveals that appellant, after he saw a group beating on his brother with bats, went home to get his shotgun and then returned to the scene of the fight. Although appellant testified he initially fired the 410 gauge shotgun twice into the air, he also testified he then fired the gun at the crowd in order to protect his brother. Roshane Taylor testified appellant was mad when appellant told Taylor to come with him and when they got in appellant's El Camino to drive over to 15th Street, the scene of the altercation. As noted previously, Taylor also testified Graham told him he (Graham) was going to kill one of the guys that had beaten up his brother. Taylor further declared he told Graham to shoot them (the ones beating up on Graham's brother), which Graham proceeded to do. Although appellant declared at trial he did not intend to kill anyone when he fired the gun at the crowd, we conclude a rational trier of fact could have found specific intent to kill based on the testimony of Taylor and appellant and on appellant's deliberate pointing and firing of the gun at the crowd.

It is axiomatic that the witnesses' credibility and the weight to be given their testimony are within the jury's province. The jury may accept or reject all or any part of a witness's testimony. See Adelman v. State, 828 S.W.2d 418, 421-23 (Tex.Crim.App.1992). The jury may infer an intent to kill from any facts in evidence which, to their minds, prove the existence of an intent to kill. Viewing the evidence in the light most favorable to the prosecution, a rational jury could have found appellant's actions evidenced his intent to kill and, moreover, found the essential elements of the crime beyond a reasonable doubt.

Having determined the evidence was legally sufficient, we then examine all of the evidence without the prism of "in the light most favorable to the prosecution," and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Clewis, 922 S.W.2d at 135. Having reviewed the evidence as set out above, we conclude that the verdict is not factually insufficient under the Clewis standard. Point of error three is overruled.

In point of error one, appellant complains the trial court erred in denying his requested jury instruction on the lesser included offense of reckless conduct. The indicted offense was attempted murder. The charge included instructions on the lesser included offenses of aggravated assault and assault, but not on reckless conduct. Whether a charge on a lesser included offense is...