Jones v. State

• Decision Date: 18 December 1996
• Docket Number: No. 72026,72026
• Citation: 944 S.W.2d 642
• Parties: T.J. JONES, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 642

944 S.W.2d 642

T.J. JONES, Appellant v. The STATE of Texas, Appellee.

No. 72026.

Court of Criminal Appeals of Texas.

Dec. 18, 1996.

Rehearing Denied Feb. 19, 1997.

Mary Ann Rea, Longview, for appellant.

R. Clement Dunn, Assist. District Attorney, C. Patrice Savage, Assist. District Attorney, Longview, Matthew Paul, State's Atty., Austin, for State.

MEYERS, Judge.

OPINION

Appellant was convicted of the offense of capital murder, specifically murder in the course of robbery. TEX. PENAL CODE, § 19.03(a)(2). The jury answered the punishment issues and appellant was sentenced accordingly to death. TEX.CODE CRIM. PROC. ANN. art. 37.071 §§ 2(b), (e), and (h). ¹ Appeal to this Court is automatic. Id. at § 2(h). Appellant raises nineteen points of error. We will affirm.

I. Sufficiency of the Evidence

In points of error one, two, and nineteen, appellant challenges the legal and factual sufficiency of the evidence at guilt/innocence. In points of error nine and ten, he argues that the evidence was legally insufficient to establish beyond a reasonable doubt that there were no mitigating circumstances sufficient to warrant a life sentence as opposed to the death penalty. See Art. 37.071 § 2(e). Appellant does not challenge the jury's affirmative answer regarding his future dangerousness. See Art. 37.071 § 2(b)(1).

A. Guilt/Innocence

Appellant contends that the evidence is both legally and factually insufficient to establish that he intentionally caused the death of the victim. ² He argues that he only intended to scare the victim and the fact the bullet hit the victim was accidental. Appellant does not otherwise challenge the sufficiency of the evidence. Therefore, we shall only set out the facts pertinent to appellant's claim.

The evidence at trial established that at approximately 1:00 p.m. on February 2, 1994, the seventy-five year old victim was found shot and lying in the street in front of his home in Longview. His car had been stolen. He was pronounced dead at the scene. Appellant was arrested a few blocks away with the murder weapon after abandoning the victim's car when it got a flat tire and he drove the car into some hedges. When apprehended by the police, appellant had the .357 revolver in his sweatshirt pocket. The weapon was fully loaded, except for one spent round, cocked, and ready to fire.

Dr. James Bruce, a forensic pathologist, testified that the victim died from a single gunshot wound to the head. The bullet entered near the center of the victim's forehead next to his left eyebrow, lacerating the brain and causing his left eye to collapse. Bruce testified that the shooter was at least three feet from the victim when the gun was fired. Glen Johnson, a firearms examiner, testified that the .357 revolver used in the crime was in perfect condition and all it's safety features were functioning normally. Therefore, Johnson concluded that the firearm could not be fired unless the trigger was pulled. Johnson further testified that appellant was at least two feet from the victim when the gun was fired.

Terry Graham, an acquaintance of appellant's and his cellmate at the Gregg County Jail, testified that appellant told him about the instant offense. Appellant told him that he and his accomplices saw the victim walking to his car. They approached the victim who said they could not have his car and that they would have to kill him to get it. Appellant stated that he then shot the victim. Graham testified that appellant was very calm when he imparted the story.

Appellant's confession was also introduced into evidence and stated in pertinent part:

Today February 2, 1994 I went to Sanford's house on Avalon street in Longview. It was about 12:15 PM when I got there and he was at home along with a girl named Tisha and another dude named Edgar. * * * We were all setting [sic] around drinking gin and juice along with Bush [sic] and King Cobra. I asked them was they down for a jack (meaning going to steal a car). They all agreed that we would and then me, Tisha, Edgar, and Sanford left walking from Sanford's house and went over to 118 Edgefield [ ³] where Bobby stays. I told them we could go there to get a gun to do the jack. We got there and all of us went into the house. Walter Gordon was there and I borrowed a 357 pistol from him. I told him that I needed to borrow his gun so I could see if I could go to get a car. He gave me his gun and me, Tisha, Edgar, and Sanford left 118 Edgefield and walked toward Green street. We crossed over Green on Edgefield and I saw a white dude backing out of his driveway in a red car and I approached the car and told him to step outside. I had the gun out but I wasn't pointing it at him at that time. When he got out that's when Tisha, Edgar, and Sanford got in. * * * The white man was standing at the back of the car and I told him to get in and he said he wasn't because of his wife or something (but I don't know what else he said). I pointed the gun to the side of his head and I was trying to get him in the car to take him and rob him. When he wouldn't get in I decided to shoot to scare him into getting in the car. As soon as I shot I got scared and jumped in the car and drove off real fast. I didn't know that I had hit the old man I was just trying to scare him to make him get in the car so I could rob him. I didn't mean to kill him. * * * *

1. Legal Sufficiency

In reviewing a sufficiency question, we must view the evidence in the light most favorable to the verdict and determine whether 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 (1979); Mason v. State, 905 S.W.2d 570, 574 (Tex.Crim.App.1995), cert. denied, --- U.S. ---, 116 S.Ct. 717, 133 L.Ed.2d 670 (1996). The jury is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony. Barnes v. State, 876 S.W.2d 316, 321 (Tex.Crim.App.), cert. denied, 513 U.S. 861, 115 S.Ct. 174, 130 L.Ed.2d 110 (1994). Likewise, reconciliation of conflicts in the evidence is within the exclusive province of the jury. Losada v. State, 721 S.W.2d 305, 309 (Tex.Crim.App.1986).

Viewed in the light most favorable to the verdict, the evidence shows appellant planned the robbery and brought with him a deadly weapon, a .357 revolver, in order to accomplish the task. ⁴ The jury may infer the intent to kill 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. Ross v. State, 861 S.W.2d 870, 873 (Tex.Crim.App.1992); Godsey v. State, 719 S.W.2d 578, 581-82 (Tex.Crim.App.1986). Further, the evidence shows that the bullet struck the victim practically between the eyes and that appellant had to intentionally pull the trigger for the gun to fire. Finally, Graham testified that appellant shot the victim in response to the victim's statement that appellant would have to kill him to take the car. Applying the Jackson criteria to the facts of this case, we find a rational trier of fact could have found beyond a reasonable doubt that appellant intentionally caused the death of the deceased. Points of error one and two are overruled.

2. Factual Sufficiency

We have acknowledged that this Court has the authority to review a case upon the facts as well as the law. Clewis v. State, 922 S.W.2d 126, 131-32 (Tex.Crim.App.1996); Bigby v. State, 892 S.W.2d 864, 874 (Tex.Crim.App.1994), cert. denied, --- U.S. ----, 115 S.Ct. 2617, 132 L.Ed.2d 860 (1995). We articulated the proper standard for a factual sufficiency review in Clewis for non-capital cases:

[The court of appeals] views all the evidence without the prism of 'in the light most favorable to the prosecution.' ... [and] set[s] aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.

922 S.W.2d at 129, citing Stone v. State, 823 S.W.2d 375, 381 (Tex.App.--Austin 1992, pet. ref'd ). We now extend this standard of factual sufficiency review to capital cases. See Bigby, supra; Article 44.25.

The factual sufficiency review process begins with the assumption that the evidence is legally sufficient under the Jackson test. Clewis, 922 S.W.2d at 134. The appellate court then considers all of the evidence in the record related to appellant's sufficiency challenge, not just the evidence which supports the verdict. The appellate court reviews the evidence weighed by the jury which tends to prove the existence of the elemental fact in dispute, and compares it to the evidence which tends to disprove that fact. See, e.g., Ellis County State Bank v. Keever, 915 S.W.2d 478, 479 (Tex.1995); Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 31 (Tex.1994). The court is authorized to disagree with the jury's determination, even if probative evidence exists which supports the verdict. Clewis, 922 S.W.2d at 133; In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). ⁵

However, a factual sufficiency review must be appropriately deferential so as to avoid the appellate court's substituting its own judgment for that of the fact finder. Clewis, 922 S.W.2d at 133. The court's evaluation should not substantially intrude upon the jury's role as the sole judge of the weight and credibility of witness testimony. See, e.g., Pool v. Ford Motor Company, 715 S.W.2d 629, 635 (Tex.1986); Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792, 796 (1951); In re Thoma, 873 S.W.2d 477, 485 (Tex.Rev.Trib.1994). The appellate court maintains this deference to the jury's findings, by finding fault only when "the verdict is against the great weight of the evidence presented at trial so as to be clearly wrong and unjust." Clewis, 922 S.W.2d at 135. (Emphasis in original.) Examples of such a wrong and unjust verdict include instances in which the jury's finding is "manifestly unjust," "shocks the conscience,"...