Wilkerson v. State

• Decision Date: 23 March 1994
• Docket Number: No. 71309,71309
• Parties: Ponchai WILKERSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 321

881 S.W.2d 321

Ponchai WILKERSON, Appellant, v. The STATE of Texas, Appellee.

No. 71309.

Court of Criminal Appeals of Texas En Banc.

March 23, 1994.

Rehearing Denied June 8, 1994.

Connie B. Williams and Donald Davis, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., Mary Lou Keel, Roberto Gutierrez, and Joe Owmby, Asst. Dist. Attys., Houston, and Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.

OPINION

CAMPBELL, Judge.

At a trial held in the 184th District Court of Harris County in July 1990, a jury found appellant, Ponchai Wilkerson, guilty of capital murder. ¹ At the punishment phase of appellant's trial, the jury answered affirmatively the punishment issues submitted to them under Article 37.071(b) of the Texas Code of Criminal Procedure, and appellant was sentenced to death as required by Article 37.071(e). ² Direct appeal to this Court was then automatic under Article 37.071(h). We now affirm.

In sixteen points of error, appellant challenges: the sufficiency of the evidence to prove beyond a reasonable doubt that he intentionally caused the death of the deceased; the sufficiency of the evidence to support the jury's affirmative answer to the punishment issue concerning future dangerousness; the trial court's refusal to grant a mistrial after certain evidence of uncharged misconduct was admitted during the punishment phase; the trial court's refusal to grant a mistrial after the jury foreman revealed she was acquainted with a prosecution witness; and the trial court's refusal to grant a mistrial based on the prosecutor's final argument during the punishment phase.

In his first point of error, appellant argues that he has been denied his federal right to due process of law because the evidence at his trial was insufficient to support the jury's implicit finding that he intentionally caused the death of his victim. See footnote one, supra. Appellant notes that he testified at trial that he shot but did not intend to kill his victim, and argues that that testimony, like the testimony of the defendant in Foster v. State, 639 S.W.2d 691 (Tex.Crim.App.1982), was "sufficient to rebut the presumption of intent to kill based on his using a gun." The State argues in response that the jury was free to disbelieve appellant's trial testimony and to infer from the circumstances of the offense that appellant intended to kill.

Viewed in the light most favorable to the jury's verdict, the evidence presented at the guilt/innocence phase of appellant's trial established the following: At approximately 2:30 p.m., November 28, 1990, appellant entered the Houston jewelry store of 43-year-old Chung Myong Yi. After browsing for a few minutes, appellant pulled a handgun out of his jacket, pointed it at Chung's head, and demanded money from him. Moments later, appellant shot Chung in the forehead from a distance of less than one foot. He then left the store carrying a box of jewelry. A subsequent expert examination of the handgun revealed that eight pounds of pressure on its trigger were necessary to fire it.

Our determination of appellant's first point of error is governed by familiar principles. First, the jury, as the sole judge of the weight and credibility of the evidence, was free to accept or reject any or all of the evidence of either the State or the defense, even if that evidence was uncontradicted. Vanderbilt v. State, 629 S.W.2d 709, 716 (Tex.Crim.App.1981). Second, due process of law requires that appellant's conviction be supported by evidence sufficient to rationally prove all of the elements of the offense--including his intent to kill ³--beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). Therefore, as an appellate court, our task is to consider all of the record evidence and reasonable inferences therefrom in the light most favorable to the jury's verdict and to determine whether, based on that evidence and those inferences, a rational jury could have found beyond a reasonable doubt that appellant intended to kill. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1973). Thus, our review is a very limited one. We do not act as a thirteenth juror re-evaluating the weight and credibility of the evidence. Rather, we act only "as a final, due process safeguard ensuring ... the rationality of the factfinder." Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988).

Utilizing the required standard of review, we must reject appellant's insufficiency claim. A rational jury could certainly infer that appellant intended to kill from the manner in which he handled his weapon, the amount of pressure needed to fire the weapon, the distance from which he fired, the nature of the injury he inflicted, and his flight from the scene. See Vuong v. State, 830 S.W.2d 929, 934 (Tex.Crim.App.1992) (deadly manner of use of gun); Turner v. State, 805 S.W.2d 423, 427 (Tex.Crim.App.1991) (heavy trigger pressure required to fire gun); Thompson v. State, 691 S.W.2d 627, 630 (Tex.Crim.App.1984) (short distance between victim and gun, and flight from scene).

In Foster we held that no rational jury could have found that the defendant intended to kill, but the evidence in that case was very different from the evidence adduced at appellant's trial. Admittedly, the evidence in Foster, like the evidence at appellant's trial, showed that the defendant shot and killed his victim at close range and that the defendant denied having the intent to kill. But in Foster, other evidence showed that (1) the defendant and the victim had a loving relationship on the evening of the shooting; (2) the weapon involved was defective and fired easily, even with its safety on; (3) after the shooting, the defendant promptly sought medical assistance for the victim and then notified the police; (4) the defendant freely admitted handling the weapon when it discharged; and (5) he was extremely distraught after the shooting. At appellant's trial, in contrast, there was abundant evidence from which a rational jury could conclude he intentionally shot Chung in the course of robbing him. Point of error number one is overruled.

In point of error number two, appellant maintains the evidence adduced at his trial was insufficient to support the jury's affirmative answer to the second punishment issue, concerning his future dangerousness. See footnote two, supra. Appellant argues that

the only evidence presented by the State concerning the issue of whether [he] would constitute a continuing threat to society was [his] involvement in several unadjudicated extraneous offenses and instances of misconduct. The State presented no character evidence and no psychiatric evidence. The appellant, on the other hand, presented psychiatric and psychological evidence [showing that he has a reasonable chance of being rehabilitated], evidence of [a relatively normal] family history, evidence of remorse, and evidence of current behavior without the effect of alcohol and drugs.

Appellant argues further that he "was only 20 years of age when the act occurred." The State argues in response that "the evidence shows that appellant was on an extended, murderous rampage that culminated in the charged offense," and that, consequently, "[a] rational factfinder could conclude beyond a reasonable doubt that appellant would probably commit future acts of violence that would pose a continuing threat to society."

Viewed in the light most favorable to the jury's finding, the evidence at the punishment phase of appellant's trial established the following: On August 2, 1990, in Fort Bend County, appellant pled guilty to the felony offense of unauthorized use of a motor vehicle and was placed on probation for three years. He failed subsequently to meet any of the conditions of his probation.

At around 8:50 p.m., November 5, 1990, appellant participated in the aggravated robbery of an adult male at a self-service car wash in Houston. In the course of the robbery, appellant assaulted the victim.

At around 10:30 p.m., November 13, 1990, appellant participated in the aggravated robbery of a Houston convenience store clerk. In the course of that robbery, appellant's accomplice, Wilton Bethany, shot the clerk in the chest with a shotgun.

On the night of November 18, 1990, appellant and Bethany burglarized a clothing store in Houston and stole approximately $10,000 in merchandise.

At around 4:30 p.m., November 20, 1990, appellant drove a van into the parking lot of the Fondren Glen Apartments in Houston and, for no apparent reason, opened fire on two young males, shooting one in his arm, the other in his hand. A stray bullet shot a young female nearby. Later, on the night of November 20, appellant and Bethany burglarized a gun shop in Houston and stole $7,000 worth of guns.

At around 10:00 p.m., November 23, 1990, appellant and Bethany drove a car into the parking lot of the Westwood Village Apartments in Houston. After the car stopped, appellant and Bethany exited and started shooting for no apparent reason. Bethany shot two males who were standing in the parking lot. Appellant fired his weapon randomly into the apartments themselves, stating, "Don't fuck with me. I will kill all you whores." A few hours later, appellant and a second male drove a car into the parking lot of the Breckenridge Apartments in Houston. After coming to a stop, both appellant and his companion opened fire on several apartments, again for no apparent reason, shooting one occupant in his arm.

On the night of November 25, 1990, appellant and Bethany burglarized a second gun shop in Houston and stole 86 guns.

Finally, there was evidence that appellant had habitually abused alcohol, marihuana, and cocaine.

Our determination of appellant's second point of error is again governed by familiar principles. First, the State carried the burden of proving beyond a reasonable doubt that the answer to...