Weatherred v. State

• Citation: 35 S.W.3d 304
• Decision Date: 24 January 2001
• Docket Number: No. 09-95-225,09-95-225
• Parties: (Tex.App.-Beaumont 2001) JON DAVID WEATHERRED, Appellant v. THE STATE OF TEXAS, Appellee CR
• Court: Court of Appeals of Texas

Page 304

35 S.W.3d 304 (Tex.App.-Beaumont 2001)

JON DAVID WEATHERRED, Appellant v. THE STATE OF TEXAS, Appellee

No. 09-95-225 CR

In The Court of Appeals Ninth District of Texas at Beaumont

Submitted January 23, 2001

Decided January 24, 2001

On Appeal from the 221st District Court Montgomery County, Texas Trial Cause No. 89-03-00304-CR

[Copyrighted Material Omitted]

Before Walker, C.J., Burgess and Gaultney, JJ.

OPINION ON REMAND

WALKER, Chief Justice

A jury convicted appellant of Capital Murder. The State was precluded from seeking the death penalty in this trial.¹ Punishment was assessed at confinement for life in the Institutional Division of the Texas Department of Criminal Justice. This cause has been remanded to us to consider the remainder of the appellate issues contained in appellant's brief. Although provided an opportunity to do so, neither party chose to file new or amended briefs with this Court. Therefore, the operative briefs before us reflect that they were both filed in the year 1996. We will now undertake to consider the remaining issues presented by appellant.

We are initially confronted with a complaint of factual insufficiency of the evidence to sustain the conviction based upon the holding contained in Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996). In a previous opinion, we considered a claim of the lack of legally sufficient evidence to sustain the conviction and rejected said claim. See Weatherred, 963 S.W.2d at 117-19. Since neither party chose to rebrief their positions on the appellate issues presented, we do not have the benefit of the parties' respective positions on what appears to be the most recent, and most significant, analysis of the law concerning appellate review of claims of factual insufficiency. See Johnson v. State, 23 S.W.3d 1 (Tex. Crim. App. 2000). Johnson provides an extensive discussion as to what the Court considers to be a proper appellate review of factual sufficiency issues.

The Johnson Court noted that, in Clewis, it was unclear whether the Court had adopted both civil factual sufficiency review standards. Johnson, 23 S.W.3d at 10. The Johnson Court went on to hold that the appropriate scope of a Clewis criminal factual sufficiency review does, in fact, encompass both formulations utilized in civil jurisprudence, viz: that evidence can be factually insufficient if (1) it is so weak as to be clearly wrong and manifestly unjust or (2) the adverse finding is against the great weight and preponderance of the available evidence. Id. at 11. The Court then explained how they intended to fit this peculularly civil appellate review standard into the criminal context:

Because the State always carries the burden of proof to establish the elements of a criminal offense at trial, an appellant's points of error challenging the sufficiency of the evidence used to establish the elements of the charged offense could claim that the evidence used to establish the adverse finding was so weak as to be factually insufficient. This is the most equitable approach, especially given the fact criminal defendants are not under any obligation to present evidence on their behalf and usually rely, instead, on forcing the State to prove its case beyond a reasonable doubt. Alternatively, in the event a defendant does muster contrary evidence, this standard of review allows him, if he so chooses, to present the argument on appeal that his evidence greatly outweighed the State's evidence to the extent that the contrary finding is clearly wrong and manifestly unjust. We hold, therefore, that our opinion in Clewis is to be read as adopting the complete civil factual sufficiency formulation.

Id. [footnote omitted] The Johnson Court then formulated a test, taken in part from Justice Vance's concurring opinion in Mata v. State, 939 S.W.2d 719, 729 (Tex. App.-Waco 1997, no pet.):

[T]he complete and correct standard a reviewing court must follow to conduct a Clewis 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. Adoption of the complete standard allows us to remain true to one of the stated goals of Clewis, harmonization, when appropriate, of civil and criminal jurisprudence, and it recognizes the State's burden at a criminal trial is proof beyond a reasonable doubt.

Id.

In the instant case, the only thing we can say with some degree of certainty regarding the evidence placed before the jury is that there was absolutely no direct evidence that appellant was the person who pulled the trigger on the firearm that killed the victim on the morning of December 12, 1988. What we do have are two sets of various facts, one set presented to the jury by each of the respective parties. We are instructed by the Court of Criminal Appeals that we must conduct a "neutral" review of all the evidence, both for and against the finding of guilt. When this "neutral" review is accomplished, we then ask ourselves two questions: does the said "neutral" review of all of the evidence demonstrate that the proof of appellant's guilt is so "obviously weak" that it undermines our confidence in the jury's verdict, AND, is the proof of appellant's guilt, "although adequate if taken alone," "greatly outweighed" by contrary proof? If we answer either of these questions in the affirmative, the judgment must be reversed and the cause remanded for a new trial.

The case for the State and the case for the defense both provided compelling circumstantial evidence in hopes that said evidence would allow the jury to infer what its respective proponent intended. Indeed, all the jury had before it from which to base its verdict was inferences from the evidence. Taken by itself, each case presented by its respective party provided sufficient reasonable inferences for the jury to have rendered the verdict the respective party was seeking. Yet, even under a "neutral" factual sufficiency review, certain directive phrases sharply curtail how far we are able to "disagree with the factfinder." As set out above, after our "neutral" review of all of the evidence, we are permitted to disagree with the factfinder only if all of said evidence demonstrates that appellant's guilt was so "OBVIOUSLY WEAK" as to undermine our confidence in the verdict rendered. In the instant case, the State's case for guilt was neither obviously weak, nor was it obviously strong, when examined in a neutral light against appellant's case for the defense. The factfinder therefore cannot be faulted for preferring the State's case over that of the defense. Nor can we say, in responding to the second factual sufficiency review question, that the State's case, although indeed adequate if taken alone as we have already mentioned, is "GREATLY OUTWEIGHED" by contrary proof, i.e., the case for the defense. Again, our extensive reading of the record indicates that neither party held any "trump cards." And because of this, as we appreciate the review standard set out in Johnson, appellant's case in his defense, although very strong at several points, simply did not "greatly outweigh" the evidence presented by the State in support of its theory that appellant committed the murder of the victim. We therefore overrule appellant's second issue finding the record contains, under the appellate standards announced in Johnson, factually sufficient evidence to support the conviction.

Appellate issue four complains of trial court error in overruling appellant's objection to the portion of the jury instructions that failed to properly limit the general definitions of culpable mental states to the primary and underlying offenses making up the instant capital murder charge. Contrary to the State's initial response, we find appellant's trial counsel adequately preserved the issue for appellate review by his objection at trial.

The indictment in the instant case reads, in pertinent part, as follows:

[Appellant] . . . did then and there intentionally cause the death of an individual, William Ralph Strawn, by shooting him with a firearm, and said Defendant committed the murder of William Ralph Strawn in the course of committing or attempting to commit the offense of burglary of a habitation owned by Pamela Beene;

COUNT II

[Appellant] . . . did then and there intentionally cause the death of an individual, William Ralph Strawn, by shooting him with a firearm, and said Defendant committed the murder of William Ralph Strawn in the course of committing or attempting to commit the offense of robbery of William Ralph Strawn;

[Appellant] . . . did then and there intentionally and knowingly use and exhibit a deadly weapon, to-wit: a firearm, during the commission of the aforesaid offense;

. . .

The clerk's record indicates that the trial court's instructions submitted to the jury did indeed include the full statutory definition of "intentionally." See Tex. Pen. Code Ann. § 6.03(a) (Vernon 1994). As for the term "knowingly," the trial court provided the jury with the following definition:

A person acts knowingly, or with knowledge, with respect to the nature of his conduct when he is aware of the nature of his conduct. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

See Tex. Pen. Code Ann. § 6.03(b) (Vernon 1994).

Capital murder is a "result of conduct" offense; a jury charge which defines "intentionally" as it relates to the nature of conduct as well as the result of conduct is, therefore, incorrect. See Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim. App. 1994). Likewise, it would also be error to define a knowing murder as it relates to the nature of...