McFarland v. State

• Decision Date: 21 February 1996
• Docket Number: No. 71557,71557
• Citation: McFarland v. State, 928 S.W.2d 482 (Tex. Crim. App. 1996)
• Parties: George Edward McFARLAND, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 482

928 S.W.2d 482

George Edward McFARLAND, Appellant, v.The STATE of Texas, Appellee.

No. 71557.

Court of Criminal Appeals of Texas En Banc.

Feb. 21, 1996.

Rehearing Denied June 19, 1996.

Page 493

Appeal from 262nd District Court, Harris County; Doug Shaver, Judge.

Marcelyn Curry, Houston, for appellant.

Alan Curry, Assist.Dist. Atty., Robert A. Huttash, Houston, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

PER CURIAM.

Appellant was convicted of the offense of capital murder, specifically murder in the course of a robbery.V.T.C.A.Penal Code, § 19.03(a)(2).The jury answered the special issues prescribed by Article 37.071 § 2(b)(1)

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and (2), V.A.C.C.P. ¹ affirmatively and answered negatively the special issue prescribed by Article 37.071 § 2(e).Punishment was assessed accordingly at death.Appeal to this Court is automatic.Article 37.071 § 2(h).Appellant raises thirty-four points of error in his original brief and thirty-five points of error in a supplemental brief.We will affirm.

Sufficiency of the Evidence

In his first point of error, appellant contends that the evidence is insufficient to establish his guilt.Appellant asserts that the State failed to prove beyond a reasonable doubt that he caused the death of Kenneth Kwan because other parties were involved in the crime.

The evidence at trial established the following: At approximately 12:30 p.m. on Friday, November 15, 1991, Kwan and a security guard, James Powell, were returning to Kwan's grocery store after going to the bank to obtain $27,000 to cash his customers' payroll checks.Upon arrival, Kwan and Powell, armed with a shotgun, exited Kwan's vehicle and proceeded toward the store.Carolyn Bartie, a regular customer, then pulled into the parking lot and Kwan waved.

Bartie testified that when she parked her car she noticed a black man, appellant, ² kneeling on the ground between the grocery store and the adjacent laundromat.Appellant had a bag.When Kwan waved, Bartie noticed appellant get up and walk in front of her car toward Kwan.She looked down at her purse, then heard a "popping sound."When she looked up, appellant had Powell by the neck and was firing into the doors of the store.Another black man then came from behind appellant and ran in a ducking position into the store and soon came back out.

Powell testified that he also noticed a black man sitting along some rails beside the store with what looked like a bag of leaves.The man had his hand on top of the bag and a couple of towels on top of his hand.He surmised that the man had come from the laundromat next door.However, when the man jumped up and began coming towards him, Powell sensed something was wrong.Kwan began to run for the door of the store and Powell testified he lost eye contact with the man holding the bag.Suddenly, Powell felt a "gun up side [his] head."The man told Powell, "Drop the gun.Drop the gun.If you don't, I'll blow your God-damned brains out."Powell complied.

Powell next heard two shots fired from behind him, so he dropped to the ground.Powell testified that the shots were fired at Kwan as Kwan was trying to enter the store.He further testified that the man with the gun said nothing to Kwan before shooting him.Kwan was only fifteen to twenty feet away.Powell stated he heard approximately two shots inside the store and someone yell, "Get the bag, get the bag."Bartie testified that appellant was the one that yelled "get the bag."

Lupe Jiminez, a customer in the store, testified that he too heard a "popping sound" and then Kwan burst into the store.Immediately behind Kwan, Jiminez saw a tall black man in a ski mask follow Kwan into the store and shoot Kwan in the back.Larry Davis, another customer, testified that the man in the ski mask shot Kwan twice with a revolver.Both Jiminez and Davis ran to the back storage room to get out of the way.Mrs. Kwan, who was working at the cash register, witnessed her husband fall to the floor and saw the man who had entered the store take the money bag from him and exit the store.Powell testified that he observed the men drive off quickly in a grey Suburban.The Suburban was later determined to have been stolen.

Dr. Eduardo Bellas, Harris County Assistant Medical Examiner, performed the autopsy.Bellas testified that Kwan had five gunshot wounds, three of which he considered fatal.The fatal wounds consisted of two wounds in the right side of Kwan's back and one wound in the front chest.The other two wounds were merely grazing wounds to his

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right arm.Bellas testified that the wounds could have been caused by .38-caliber bullets.Donald Davis, a firearms examiner, testified that the bullets recovered from the victim and the scene were fired from either a .38 or .357-caliber gun.There was no evidence that the bullets were fired from the same gun.

Four days after the instant offense, Craig Burks, appellant's nephew, phoned Crime Stoppers with information pertaining to the crime.³ Burks stated that appellant, Albert Harris, and Michael Clark were each involved in the robbery.

At trial, Burks testified that while riding around with Clark two weeks before the robbery, Clark pointed out Kwan's grocery store as they drove past.Clark told Burks that "he was going to retire from armed robbery and then the Chinese guy [sic] supposed to bring him a bunch of money[.]"Burks did not hear of the store again until he saw a news report the day of the offense.Later, on the day of the robbery, appellant came by Burks' house.Appellant had a new car and took Burks, Burks' brother Cedric, and Burks' uncle Walter for a ride and bought them all beer.Burks testified that, while driving, appellant talked about how he"robbed the Chinese guy.He pulled a pistol on a security guard and shot the dude, the Chinese guy."Burks further testified that appellant said that he had dressed like a bum for the crime and that Michael Clark, Albert Harris, and somebody named Marty were also involved.Appellant claimed they got $50,000 in the robbery and Burks noted appellant had a "bundle of money" with him in the car.Burks also testified that appellant changed his story and said that Albert Harris was the only one to fire a gun.

In order to support a guilty verdict, the State must prove the elements of the offense as set forth in the jury charge.Rabbani v. State, 847 S.W.2d 555, 558(Tex.Cr.App.1992), cert. denied, 509 U.S. 926, 113 S.Ct. 3047, 125 L.Ed.2d 731(1993);Rivera v. State, 808 S.W.2d 80, 91(Tex.Cr.App.), cert. denied, 502 U.S. 902, 112 S.Ct. 279, 116 L.Ed.2d 231(1991).The charge in this case authorized conviction of capital murder as follows:

Now, if you find from the evidence beyond a reasonable doubt that on or about the 15th day of November, 1991, in Harris County, Texas, the [defendant] did then and there unlawfully while in the course of committing or attempting to commit the aggravated robbery of [Kwan], intentionally cause the death of [Kwan], by shooting [Kwan] with a deadly weapon, namely, a firearm; or if you find from the evidence beyond a reasonable doubt that on or about the 15th day of November, 1991, in Harris County, Texas, Albert Harris and/or Michael Clark and/or Marty did then and there unlawfully while in the course of committing or attempting to commit the aggravated robbery of [Kwan], intentionally cause the death of [Kwan] by shooting [Kwan] with a deadly weapon, namely, a firearm, and that the [defendant], with the intent to promote or assist the commission of the offense, if any, solicited, encouraged, directed, aided or attempted to aid Albert Harris and/or Michael Clark and/or Marty to commit the offense, if he did, then you will find the defendant guilty of capital murder as charged in the indictment.

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);Gribble v. State, 808 S.W.2d 65, 73(1990), cert. denied, 501 U.S. 1232, 111 S.Ct. 2856, 115 L.Ed.2d 1023(1991).

Without citing any authority and ignoring the standard of review, appellant claims the evidence is insufficient because: (1) Bartie and Powell did not always have constant views of what was happening; (2) Bartie stated at the scene that she was not sure if she would be able to identify the perpetrators; (3) when Bartie identified appellant in a photo-spread, she stated she would also like to see him in a live line-up to be 100-percent sure; (4) neither Jiminez nor

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Davis saw appellant shoot Kwan; (5) if the man holding Powell fired at Kwan as he ran in the door, the man in the ski mask surely would have been shot, and therefore appellant could not have shot at Kwan; and (6) Burks was not a credible witness.⁴

We first note that the jury is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony.⁵ Lafoon v. State, 543 S.W.2d 617, 620(Tex.Cr.App.1976).Second, we also note that proof beyond a reasonable doubt that appellant fired the fatal shot is not necessary for a capital murder conviction where the jury is charged on the law of parties.Rabbani, 847 S.W.2d at 558.In the instant case, an eye-witness testified that appellant participated in the crime and, in fact, fired shots at Kwan as he tried to enter the store.Further, appellant's admissions to his nephew that same evening following the crime establish that he was, at a minimum, a party to the offense.Therefore, viewing the evidence in the light most favorable to the verdict, we conclude that there was sufficient evidence for any rational trier of fact to conclude beyond a reasonable doubt that appellant was guilty of capital murder.Point of error one is overruled.

Appellant's...