Jones v. State

• Decision Date: 03 February 1999
• Docket Number: No. 09-96-120,09-96-120
• Citation: 986 S.W.2d 358
• Parties: Preven Joseph JONES, Appellant, v. The STATE of Texas, Appellee. CR
• Court: Texas Court of Appeals

Page 358

986 S.W.2d 358

Preven Joseph JONES, Appellant, v. The STATE of Texas, Appellee.

No. 09-96-120 CR

Court of Appeals of Texas Beaumont.

Submitted Nov. 19, 1998.

Decided Feb. 3, 1999.

Charles Freeman, Houston, for appellant.

Tom Maness, Crim. Dist. Atty., Rodney D. Conerly, Asst. Crim. Dist. Atty., Beaumont, for state.

Before BURGESS, STOVER and HILL, ¹ JJ.

OPINION

JOHN HILL, Justice (Assigned).

Preven Joseph Jones appeals his conviction by a jury of the offense of voluntary manslaughter. The court assessed his punishment at twenty years in the Texas Department of Criminal Justice, Institutional Division. We initially abated this appeal so that there might be a hearing on Jones' motion for new trial. The trial court has held such a hearing, and we are now preceding with the appeal following abatement. Jones presents eight points of error or issues, contending that: (1) the evidence is legally insufficient to support the jury's finding that he is guilty of the offense of voluntary manslaughter; (2) his trial attorney failed to render effective assistance of counsel on the issue of his guilt; (3) his trial attorney failed to render effective assistance of counsel on the issue of his punishment; (4) the trial court committed reversible error by denying his original motions for new trial without an evidentiary hearing (presented as two points of error or issues); (5) the trial court committed reversible error by denying his original and amended motions for new trial; (6) the trial court committed error by entering a finding of the use of a deadly weapon; and (7) the evidence is factually insufficient to support the jury's finding that he is guilty of voluntary manslaughter.

We reform the judgment to delete the affirmative deadly weapon finding because the jury's verdict does not support such a finding and the record affirmatively reflects that the trial court did not make such a finding independently from the jury's verdict. We affirm the judgment as reformed because: (1) the evidence is legally and factually sufficient to support the conviction; (2) Jones failed to establish that he received ineffective assistance of counsel at either stage of his trial; and (3) upon abatement, the trial court held a hearing on Jones' motion for new trial.

Jones has two briefs before this Court, one initially filed in connection with this appeal and an amended brief filed after the resumption of the appeal following abatement. In his first brief, filed before the effective date of the new Texas Rules of Appellate Procedure, his complaints are styled as points of error. In his amended brief, filed after the effective date, his complaints are referred to as issues. In point of error number one of his original brief, Jones contends that the evidence is legally insufficient to support his conviction for voluntary manslaughter.

We must determine, after viewing the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988). We must measure the sufficiency of the evidence by the elements of the offense as defined by the hypothetically correct jury charge for the offense. See Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997).

Preven Jones did not kill the victim in this case. Consequently, the jury was instructed concerning the law of parties, that a person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. See TEX. PEN.CODE ANN. § 7.02(a)(2) (Vernon 1994).

Viewed in the light most favorable to the State, the evidence shows that for some reason, perhaps racial slurs uttered by the victim, Jones took a pistol that he shared with his acquaintances from a mail box and started running across a field to shoot the victim, saying, "I'm going to go kill this white guy." Jones' grandmother hollered at him and he returned. In the meantime, the victim and the victim's girlfriend had become involved in an argument at her house. During the argument, Jones picked up a beer bottle and threw it towards the victim as he sat in his truck, hitting the victim in the head. Subsequently, Nathan Holmes, an acquaintance of Jones, shot and killed the victim. Holmes' mother testified that after the shooting Jones came running into her house and that he was all hyped up. She said Jones told her that his grandmother had wanted someone to take the gun from him and that is how her son Nathan had got the gun. She said Jones indicated to her that he gave Nathan the gun after making threatening gestures and throwing the beer bottle at the victim. She testified that Jones was in a joking mood. From this evidence a rational juror could conclude that Jones wanted to kill the victim, started to do it himself, then assaulted the victim with a bottle and, when his grandmother intervened, gave the murder weapon to another so that he might kill the victim. We hold that the evidence is legally sufficient to support Jones' conviction.

Jones does not really argue that there is no evidence to show that he assisted or encouraged Holmes in committing the offense, only that he could not have been a party to the identical sudden passion arising from an adequate cause of which Nathan Holmes was under the influence. Under the law of parties as reflected in § 7.02(a)(2), Jones need only have intended to promote or assist Holmes in the commission of the offense, not share Holmes' sudden passion arising from an adequate cause. We overrule point of error number one.

Jones urges in issue number eight in his brief following abatement that the evidence is factually insufficient to support his conviction. This Court has the authority to review fact questions in criminal cases. See Clewis v. State, 922 S.W.2d 126, 129-30 (Tex.Crim.App.1996). In reviewing Jones' claim that the evidence is factually insufficient to support his conviction, we must view "all 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. Clewis, 922 S.W.2d at 129. In making this review, we must give deference to the findings of the trier of fact; we must support a finding of factual insufficiency by providing a detailed explanation of that finding so that the Texas Court of Criminal Appeals can ensure that we have accorded the proper deference to those findings; and we must review all of the evidence. Cain v. State, 958 S.W.2d 404, 407-08 (Tex.Crim.App.1997).

Jones merely adopts the arguments made in connection with his point of error as to the legal insufficiency of the evidence, that being that the evidence did not show that he shared Holmes' identical sudden passion arising from an adequate cause. Inasmuch as we have held that the State was not required to prove that, we overrule Jones' contention with respect to issue number eight.

In issue number two of his amended brief after abatement, Jones urges that his trial attorney did not render effective assistance of counsel on the issue of his guilt. In order to establish his claim for ineffective assistance of counsel, Jones must first show that his trial counsel's performance was deficient to the extent that counsel failed to provide reasonably effective assistance by falling below an objective standard of reasonableness under prevailing professional norms; he must further show that but for counsel's defective performance the result of the proceeding below would have been different. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); Austin v. State, 934 S.W.2d 672, 675 (Tex.Crim.App.1996).

Jones contends that his trial counsel was ineffective for not calling him to testify on his own behalf; for not calling Michael Reed, Nathan Holmes, Jr., or Edward Mayfield to testify on his behalf, and for failing to object to the trial court's submission of a "dynamite charge" to the jury.

After the jury wrote the trial judge a note that it was hung, the trial court submitted a supplemental charge to the jury. Such a charge is sometimes called an "Allen" charge because of the case of Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). The charge given by the trial court was non-coercive, merely encouraging all of the jurors to reexamine his or her views and change his or her opinion if convinced it is erroneous, but not to surrender honest convictions. It was not specifically addressed to minority jurors. There is no indication that the jury had expressed how it was divided at the time it indicated that it was hung. The Texas Court of Criminal Appeals has held that there is no error in the giving of such a supplemental charge. See Howard v. State, 941 S.W.2d 102, 123 (Tex.Crim.App.1996). Consequently, Jones' lawyer was not ineffective for failing to object to the giving of the charge. See Clark v....