Green v. State, No. 09-07-00568-CR (Tex. App. 4/1/2009), 09-07-00568-CR.
| Decision Date | 01 April 2009 |
| Docket Number | No. 09-07-00568-CR.,09-07-00568-CR. |
| Parties | JOSEPH TERRY GREEN, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
On Appeal from the Criminal District Court, Jefferson County, Texas, Trial Cause No. 97116.
AFFIRMED.
Before McKEITHEN, C.J., KREGER and HORTON, JJ.
Joseph Terry Green appeals his conviction for murder. A jury convicted him of the charged offense and assessed punishment at confinement in the Texas Department of Criminal Justice—Correctional Institutions Division for life.1 Green presents two issues for consideration, the first complaining of error by the trial court in refusing a requested punishment mitigation instruction, and the second contesting the existence of factually sufficient evidence to sustain his conviction. We will address the issues in inverse order as a determination that the record evidence was factually insufficient would foreclose the need to address the alleged jury-charge error in the punishment phase of the trial.
As Green asks we review the evidence for factual insufficiency only, we start by presuming that the evidence supporting the jury's verdict is legally sufficient, i.e., sufficient for constitutional purposes under the Due Process Clause of the Fourteenth Amendment pursuant to the standard of review announced in Jackson v. Virginia.2 See Conner v. State, 67 S.W.3d 192, 198 (Tex. Crim. App. 2001); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996); Barker v. State, 935 S.W.2d 514, 516 (Tex. App.-Beaumont 1996, pet. ref'd). In a factual sufficiency review, the evidence is examined in a neutral light rather than in the light most favorable to the verdict. Johnson, 23 S.W.3d at 7.
Evidence can be factually insufficient in one of two ways: (1) when the evidence supporting the verdict is so weak that the verdict seems clearly wrong and manifestly unjust, and (2) when the supporting evidence is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust.
Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007) (citing Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006)). "[A] reversal for factual insufficiency cannot occur when `the greater weight and preponderance of the evidence actually favors conviction.'" Id. (quoting Watson, 204 S.W.3d at 417). While an appellate court engaged in a factual sufficiency review is authorized to second-guess the jury to a limited degree, such review should still be deferential, necessitating a high level of skepticism about the jury's verdict before reversal can occur. Id.
[T]he complete and correct standard a reviewing court must follow to conduct a Clewis3 factual sufficiency review of the elements of a criminal offense asks whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.
Under either the legal or factual sufficiency standard of review, the trier of fact may draw reasonable inferences from the evidence and is the exclusive judge of the witnesses' credibility and of the weight to give to their testimony. Salinas v. State, 88 S.W.3d 677, 680 (Tex. App.-San Antonio 2002, no pet.) (citing Jones, 944 S.W.2d at 647-49). The reviewing court "must be cognizant of the fact that a jury has already passed on the facts and must give due deference to the determinations of the jury." Lancon v. State, 253 S.W.3d 699, 704-05 (Tex. Crim. App. 2008).
In a conviction based upon circumstantial evidence, it is not required that every fact point directly and independently to the guilt of the accused; the cumulative force of all the incriminating circumstances may be sufficient. See Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004) (). Circumstantial evidence in a criminal case is reviewed under the same standard as direct evidence. See Nicholson v. State, 162 S.W.3d 389, 395 (Tex. App.-Beaumont 2005, pet. ref'd) (citing Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999)). "Circumstantial evidence alone is sufficient to establish guilt."4 Guevara, 152 S.W.3d at 49.
In a factual sufficiency review, courts of appeals are directed to consider and discuss the most important evidence that the appellant claims undermines the verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). Green's issue is grounded entirely on the lack of witness credibility. His complaint focuses on the State's main fact witness, Green's former live-in girlfriend, Kristin Madison. Green characterizes Madison as an "admitted liar," and refers to her testimony identifying Green as the murderer as "clearly improbable." She is so labeled because she provided two formal statements to the police, the first of which consisted mostly of untruths, as Madison herself admitted during her testimony at trial.
Testimony indicated that at the time of trial, Green and Madison had known each other for about four years and had one child together. Green and the victim, Hector Gomez, had also known each other for some time prior to the night of the shooting. On the night in question, May 29, 2005, Madison drove Green to an abandoned store in Port Neches to pick up Gomez. Apparently, Gomez had arranged to sell a certain quantity of cocaine, supplied by Green, to a man named Heath Presswood, with the sale to take place at Presswood's house in Port Neches, and the proceeds subsequently transferred from Gomez to Green. Apparently the transaction did not go smoothly as an argument erupted between Gomez and Presswood. Upon Gomez's leaving the house and returning to Madison's white Toyota Camry with neither money nor cocaine to return to Green, an argument between the two men that had been going on since Gomez was picked up re-ignited.
According to Madison, the men exited her vehicle and continued to argue until Green produced a handgun and fired it once at Gomez. This shot apparently grazed Gomez across his chest area, and did not cause him any significant harm. Madison testified she then proceeded to drive a short distance up the street, made a right turn at the corner and stopped her vehicle. When she looked back to the location where Green and Gomez had been, she only observed Green walking toward her vehicle and carrying the handgun. Although Madison testified she did not actually witness Green fire the fatal shot to Gomez's head, she did hear this second shot. She further indicated that at the time of the second shot, she saw no one else on the street, and knew of no one else who could have fired the fatal shot. Madison also denied that she was the person who shot Gomez. She reiterated the fact that her first written statement to the authorities was a lie and was based upon what Green had told her to say, but that her second written statement, like her testimony during trial, was the truth.
Green testified in his own defense. He initially admitted having been previously convicted for aggravated robbery, and to having provided the authorities three separate written statements regarding the murder, none of which contained the full and complete truth. His purported motive for the false statements was to protect his then-girlfriend, Kristin Madison. Under oath, as he was for his three prior written statements, Green proceeded to relate a fourth version of the events leading up to the murder of Hector Gomez, this time naming Kristin Madison as Gomez's killer.5 Other than identifying Madison as the murderer, Green's trial testimony recounting the events of the night in question was similar overall to the events as elicited from Madison.
In his brief, Green argues the trial evidence is factually insufficient:
[A]ppellant's conviction rests upon the testimony of an admitted liar[.] . . .
[T]he evidence detailed herein reveals that the state's star witness, Kristin Madison, admitted she lied to law enforcement because she might somehow be involved. It was not until seven weeks after the alleged incident that Madison gave another statement attempting to implicate appellant.
Without explanation or argument, Green further asserts that "the totality of the evidence summarized in the Statement of Facts establishes his innocence." However, our examination of his brief reveals no discussion of all the trial evidence to support this assertion. Moreover, Green does not suggest how his three admittedly false statements to the authorities, as well as his prior aggravated robbery conviction, left his own credibility before the factfinder supposedly beyond question. By contrast, other than an occasional response indicative of confusion or memory lapse, we find nothing in Madison's testimony that stands out as being so inherently incredible that a rational jury could find no truth in it.
At the heart of this issue, Green is requesting that we simply reevaluate the jury's credibility determinations — a request which we are not at liberty to undertake. We must not substantially intrude upon the jury's role as the sole judge of the weight and credibility of witness testimony. Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002). Green points to nothing in the record that would provide an objective basis from which we could say that the great weight and preponderance of the evidence contradicts the jury's verdict thereby permitting us to order a new trial. See Watson, 204 S.W.3d at 417. Green does not take issue with other evidence heard by the jury circumstantially linking him to the murder, such as the...
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