Kelley v. State

• Citation: 968 S.W.2d 395
• Decision Date: 27 January 1998
• Docket Number: No. 12-96-00254-CR,12-96-00254-CR
• Parties: Alvin F. KELLEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas

Page 395

968 S.W.2d 395

Alvin F. KELLEY, Appellant, v. The STATE of Texas, Appellee.

No. 12-96-00254-CR.

Court of Appeals of Texas,

Tyler.

Jan. 27, 1998.

LaJuanda J. Lacy, Tyler, for appellant.

Edward J. Marty, Tyler, for appellee.

Before RAMEY, C.J., and HOLCOMB and HADDEN, JJ.

HOLCOMB, Justice.

Alvin Kelley ("Appellant") was convicted of murder and assessed punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for sixty years. He complains on appeal that the trial court erred in submitting a jury instruction on provoking the difficulty, in entering judgment on the verdict, in admitting victim impact testimony, and in denying Appellant's motion for mistrial. We will affirm.

Appellant's second, third and fourth points of error deal with the sufficiency of the evidence, which we will address first. From the evidence adduced at trial, it appears that the victim, Ray Fonza ("Ray"), had been living with Appellant's mother ("Delores") for approximately six years. On the date of the charged offense, Ray allegedly threatened Delores with a gun, leading her about their yard with his shotgun under her nose and chin. She was rescued from her plight by one of Ray's daughters. Delores fled from her house and, according to her testimony, told no one about the incident. Several hours later, another of Ray's daughters ("Cheri"), her boyfriend ("Chino") and Cheri's cousin ("Randy") arrived at the Fonza residence to visit, drink and play dominoes. Delores' son, Rickey Kelley ("Rickey"), soon approached Ray's yard, where the others were sitting, and asked where his mother was. Cheri told him that Delores was not there and that he should leave. Ray also insisted that Rickey leave the premises. Ray went into the house, at which time Rickey left in a white vehicle. Ray brought out a shotgun, then returned it to the house and brought out a rifle. He put it on the card table in front of him and announced that he was ready for Rickey if he came back. Approximately fifteen minutes later, Randy asked Ray if he could use his car, to which Ray agreed. When Randy stopped at the stop sign at the end of the street, Appellant suddenly appeared at his car window and pointed a gun at him. When Appellant recognized the driver, he said, "I thought you were Ray."

Appellant continued walking to Ray's house, but had concealed his gun under his shirt. Both Cheri and Chino testified that they were not aware that Appellant had a gun in his possession when he arrived. Standing just inside Ray's yard, Appellant demanded that Ray tell his version of what had happened earlier between Delores and him. Ray told Appellant he did not have to say anything and demanded that he leave. Appellant asked the same question several times, and Ray replied several times in the same manner. Ray then picked up his rifle and repeated his demand that Appellant leave the premises. Chino attempted to intervene, trying to convince Appellant to leave. Appellant took a step, possibly in retreat, and Ray hit him either on the shoulder or the head with the stock of his rifle, the weapon breaking upon impact. There was testimony that the rifle was of poor quality and extremely lightweight. After Ray hit Appellant with his rifle, Appellant turned and pulled his gun from under his shirt. He shot Ray either once or twice while the victim was standing, then once or twice after Ray fell to the ground. The pathologist testified that Ray suffered from three fatal gunshot wounds. He also stated that when Appellant shot Ray, the gun was more than two feet away from the victim, and that the wounds were probably not the result of a struggle.

After the shooting, Appellant picked up the stock of the gun and began to walk away from the scene. The white car which had earlier brought Rickey to Ray's house approached, Appellant boarded the vehicle and it drove away. After Appellant was apprehended, the investigating officer saw a nonbleeding bruise on Appellant's shoulder. Upon questioning, Appellant stated that he did not need medical treatment. In addition, the booking officer asked Appellant if he was injured and Appellant answered that he was not.

In his second, third and fourth points of error, Appellant complains that 1) the trial court erred in entering the jury's verdict, as the verdict was contrary to law; 2) the trial court erred in refusing to grant Appellant's motion for a directed verdict; and 3) the State's evidence was insufficient to sustain a murder conviction. These points of error call for both a legal and factual sufficiency review. The standard of review for 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 find 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); Williams v. State, 937 S.W.2d 479, 482 (Tex.Cr.App.1996). An appellate court should uphold the jury's verdict "unless it is found to be irrational or unsupported by more than a 'mere modicum' of the evidence." Moreno v. State, 755 S.W.2d 866, 867 (Tex.Cr.App.1988).

In reviewing factual sufficiency of the evidence, the court of appeals "views all the evidence without the prism of 'in the light most favorable to the prosecution' ... and sets aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Clewis v. State, 922 S.W.2d 126, 129 (Tex.Cr.App.1996). The standards set forth above are the same for both a direct and circumstantial evidence case, and the prosecution need not exclude every other reasonable hypothesis except the guilt of the accused. Sonnier v. State, 913 S.W.2d 511, 516 (Tex.Cr.App.1995); Fields v. State, 932 S.W.2d 97, 103 (Tex.App.--Tyler 1996, pet. ref'd).

The jury, as the trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given their testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex.Cr.App.1986), cert. denied, 488 U.S. 872, 109 S.Ct. 190, 102 L.Ed.2d 159 (1988). The jury is free to believe or disbelieve any witness. Id. It may resolve conflicts in the evidence, accept one version of the facts, disbelieve a party's evidence, and resolve any inconsistencies in favor of either party. McIntosh v. State, 855 S.W.2d 753, 763 (Tex.App.--Dallas 1993, pet. ref'd). The jurors are also entitled "to draw reasonable inferences from basic facts to ultimate facts." Id. The jury may use common sense and apply common knowledge, observation, and experience gained in the ordinary affairs of life when giving effect to the inferences that may reasonably be drawn from the evidence. Wawrykow v. State, 866 S.W.2d 87, 88-89 (Tex.App.--Beaumont 1993, pet. ref'd). If conflicting inferences exist, we must presume the trier of fact resolved any conflict in favor of the prosecution. Turro v. State, 867 S.W.2d 43, 47 (Tex.Cr.App.1993). In reviewing the sufficiency of the evidence, the reviewing court must consider all of the evidence which the jury was permitted to consider whether rightly or wrongly. Thomas v. State, 753 S.W.2d 688, 695 (Tex.Cr.App.1988).

The issues which the jury considered, and which we must now review, are intent to commit murder, self-defense, provoking the difficulty and the influence of sudden passion on the commission of the crime. ¹ The following is a brief discussion of each.

A person commits the offense of murder if he intentionally or knowingly causes the death of an individual or intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. TEX. PEN.CODE ANN. § 19.02(a)(1), (2) (Vernon 1974). A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result. TEX. PEN.CODE ANN. § 6.03(a) (Vernon 1974). Intent can be inferred from acts, words, and conduct of the accused. Dues v. State, 634 S.W.2d 304, 305 (Tex.Cr.App.1982). The accused's intent may also be ascertained from the methods used and the wounds inflicted, ² as well as from circumstances surrounding the use of a weapon. Cordova v. State, 698 S.W.2d 107, 112 (Tex.Cr.App.1985), cert. denied, 476 U.S. 1101, 106 S.Ct. 1942, 90 L.Ed.2d 352 (1986).

In regards to self-defense, a person is justified in using force against another person "when and to the degree" that the person "reasonably believes the force is immediately necessary" for protection against that other person's use or attempted use of unlawful force. TEX. PEN. CODE ANN. § 9.31(a) (Vernon 1974). The use of force is not justified if the actor is responding to force that he himself provoked, unless the actor abandons the encounter and the other nevertheless continues or attempts to use unlawful force against the actor. TEX. PEN. CODE ANN. § 9.31(b)(4) (Vernon 1974). The Penal Code justification for self-defense focuses on the existence of some necessity, the circumstances under which the force was used, the degree of force used, and the type of conduct against which the force was used. The amount of force used must be in proportion to the force encountered. Special rules govern the use of deadly force in self-defense. Deadly force means force that is intended or known by the actor to cause death or serious bodily injury, or force that is capable of causing death or serious bodily injury in the manner of its use or intended use. TEX. PEN. CODE ANN. § 9.01(3) (Vernon 1974). A person is entitled to use deadly force in self-defense against another only if all three of the following conditions are met:

(1) if he would be justified in using [nondeadly] force against the other under Section 9.31 of this [Penal] code;

(2) if a reasonable person in the actor's situation would not have retreated; and

(3) when and to...