Opinion
No. 05-06-01401-CR
Opinion Issued December 18, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 292nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F06-62529-V.
Before Justices MOSELEY, LANG, and MAZZANT. Opinion By Justice MAZZANT.
OPINION
Terry Lee Johnson was convicted of murder and sentenced by the jury to seventy-two years in prison. In five issues, he argues legal and factual insufficiency, jury charge error, and improper use of peremptory strikes by the State. We affirm the trial court's judgment.
Background
Roy Lee Foard, III, nineteen years old at the time of trial, testified that on the afternoon of February 15, 2006, he was at a CiCi's Pizza restaurant in Dallas, Texas, with his friend Rickey Hicks and two other acquaintances. Foard noticed that appellant, who was sitting in another part of the restaurant with a female companion, was looking at him and his friends as if he knew them. Hicks recalled that appellant was giving them a strange and "mean" look, as though they had done something to offend him. One of Foard's friends asked appellant, "Say, do you know us?" Appellant replied, "No, I don't know y'all ho ass niggers." Appellant then leaned back and pulled a gun out of the front pocket of his sweatshirt. At that point, Hicks turned around, looked at appellant, and said, "Hold off. It ain't that type of party." Hicks recalled that the weapon was a .22 revolver. After displaying the weapon, appellant got up from his table and left the restaurant. Several minutes later, he walked back in and pointed the gun at them. Foard could not remember what appellant said but, according to Hicks, appellant yelled, "I'll kill all y'all ho ass niggers." Appellant and his female companion quickly left the restaurant. Hicks telephoned his friend Kelli Oten to ask for a ride home. Oten's mother, Schulandria Jackson, was a close friend of Hicks's family and was like an aunt to him. After Oten arrived at the parking lot of a nearby mini mall accompanied by her mother, Hicks ran toward their car, a Dodge Neon, and got in the back seat. As Jackson was backing out of a parking space, another car approached them traveling in the other direction. Oten knew the driver of the vehicle, Jeremy White, and she could see appellant leaning out of the passenger window of White's car with a gun in his hand. Hicks testified that the gun appeared to be a .380 automatic; Oten said it was a "small little handgun." Oten looked directly at appellant as he asked Hicks, "Are you that ho ass nigger that was talking shit?" Hicks recalled him saying, "You one of the ho ass niggers from CiCi's, ain't you?" Jackson saw the gun and pushed Oten's head down as she tried to put the car in gear. Hicks saw appellant fire the gun and heard a single gunshot. His face was hit by broken glass. Then he heard Jackson say, "I think he shot me." She fell between the front seats of the car, spitting up and choking on blood. Appellant and White drove away. Foard, meanwhile, was about to board the nearby DART train when he heard two gunshots coming from the direction of the mini mall parking lot. He got off the train and ran towards the area of the shooting. When he reached the Dodge Neon, he saw Jackson bleeding where she sat in her car. Oten was holding her. He also saw an "order model car" driving away from the scene of the shooting. At the police station, Foard viewed a photographic lineup and identified appellant as the man he saw in the CiCi's restaurant. According to Dr. Reade Quinton, Dallas County Medical Examiner, the bullet that killed Jackson entered the right side of her back and passed through her right sixth rib, the lower lobe of her right lung, her trachea and esophagus, and went into the upper lobe of her left lung. Leonard Lee was working as a security guard at the nearby Lancaster and Kiest Shopping Center on the afternoon of February 15, 2006. At some point, he noticed that a young woman had gotten out of a "little silver car" and was yelling at two men seated in an Oldsmobile in the parking lot. After the woman got back into her car, the Oldsmobile backed up slightly, positioning itself next to the silver car. The passenger in the Oldsmobile then leaned out of the window with his arm extended and pointed a "black pistol" toward the smaller vehicle. Lee heard two gunshots as the passenger of the Oldsmobile fired into the passenger side of the silver car. The Oldsmobile then "sped off" and fled the area. Lee ran to the other vehicle and found Jackson bleeding and Oten screaming hysterically. None of the occupants of the silver car had a gun and Lee did not see any of them point a weapon at the Oldsmobile. After interviewing eyewitnesses, police officers investigating the murder soon identified Jeremy White and appellant as the suspects. Detective Donald Whitsitt testified that he recovered a bullet fragment from the rear floorboard of the Dodge Neon. The right rear window was broken. No gun was found in the Dodge Neon and Whitsitt did not find any indication that one had been fired from that vehicle. Investigating officers also discovered that Jeremy White had taken photographs with his cellular telephone on the day of the offense. Two of these photographs were enlarged and shown to the jury. The first photograph, State's exhibit thirty-seven, showed appellant holding a gun. The second photograph, State's exhibit thirty-eight, showed a gun, cigars, and a bag of marijuana. Shortly before leaving the witness stand, Hicks testified that the gun in State's exhibit thirty-seven looked like the weapon he saw appellant use to shoot Jackson. Laura Fleming, a firearms examiner at the Southwestern Institute of Forensic Sciences (SWIFS), testified that the bullet fragments received by SWIFS in connection with this offense were consistent with a .380 caliber bullet. Fleming compared the gun in State's exhibits thirty-seven and thirty-eight with a Lorcin .380 semiautomatic handgun from the laboratory's reference collection and concluded the two guns had the same overall shape, exterior, trigger guard, and slide area. Vicki Hall, a trace evidence analyst at SWIFS, testified that gunshot residue evidence submitted to her revealed gunshot residue particle on the back of Jeremy White's left hand. She believed it was possible for this evidence to have been deposited on his hand if he was positioned close to a gun that was fired inside a car he was driving. No gunshot residue particles were found on Jackson's hands.Discussion
In his first two issues, appellant complains the evidence is legally and factually insufficient to support his conviction. Specifically, appellant argues the evidence is insufficient because (1) witnesses testified that appellant displayed a .22 caliber handgun in a restaurant prior to the shooting yet ballistic evidence indicated the murder weapon was a .380 caliber handgun and (2) there is no eyewitness testimony connecting appellant to a .380 caliber handgun and no such weapon was recovered from his home. The jury in this case was charged that a person commits the offense of murder if he "intentionally or knowingly causes the death of an individual" or if he "intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual." Tex. Penal Code Ann. § 19.02(b)(1), (b)(2) (Vernon 2003). The jury was also instructed on transferred intent, which "is raised when there is evidence a defendant with the required culpable mental state intends to injure or harm a specific person but injures or harms a different person or both." Manrique v. State, 994 S.W.2d 640, 647 (Tex.Crim.App. 1999) (McCormick, P.J., concurring); see Tex. Code Crim. Proc. Ann. § 6.04(b)(2) (Vernon 2003) ("A person is nevertheless criminally responsible for causing a result if the only difference between what actually occurred and what was desired, contemplated, or risked is that a different person or property was injured, harmed, or otherwise affected."). In evaluating a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Drichas v. State, 175 S.W.3d 795, 798 (Tex.Crim.App. 2005); Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004); Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003). The fact-finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to be given to contradictory testimony. Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App. 2000). In this case, the testimony of three witnesses pointed toward appellant as the person who shot Jackson. Foard and Hicks testified that they saw appellant leave the CiCi's restaurant after a confrontational encounter, reenter several minutes later, and point a gun at them. Hicks and Oten both identified appellant as the person who shot Jackson in the nearby mini mall parking lot. According to the bullet fragments removed from Jackson during the autopsy, the murder weapon was a .380 caliber handgun. The murder weapon was not found in appellant's possession, but the ballistics expert viewed two photographs from White's cellular telephone, State's exhibits thirty-seven and thirty-eight, and concluded that the gun in those photographs had the same characteristics as the .380 caliber semiautomatic handgun from the SWIFS reference collection. Hicks had viewed State's exhibit thirty-seven and said the weapon in appellant's hand looked like the gun he saw appellant use to shoot Jackson. Although Hicks also testified that he thought appellant used a .22 caliber handgun during the restaurant encounter, this testimony does not render the evidence either legally or factually insufficient. In its role as the judge of the weight and credibility of the witnesses' testimony, the jury could have concluded either that Hicks was mistaken about the type of weapon he saw in the restaurant or that appellant was in possession of both a .22 and a .380 caliber handgun on the day of the shooting. Viewing the evidence in the light most favorable to the verdict, we conclude any rational trier of fact could have found all of the essential elements of the offense beyond a reasonable doubt. Viewing all of the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. Thus, the evidence is legally and factually sufficient. Appellant's first and second issues are overruled. In his third issue, appellant argues that the jury charge during the guilt/innocence phase of the trial allowed him to be convicted on a choice of crimes without requiring a unanimous finding. Specifically, he argues that a disjunctive jury charge with a general verdict form deprived him of his constitutional right to a unanimous jury verdict because the jury had four options to chose from in deciding whether he committed murder: (1) by shooting Jackson; (2) by intending to cause serious bodily injury to Jackson and committing an act clearly dangerous to human life; (3) by killing Jackson when appellant intended to kill Hicks; or (4) by intending to cause serious bodily injury to Hicks but killing Jackson instead. The first application paragraph of the court's charge tracked the language of the indictment:Now, if you find from the evidence beyond a reasonable doubt that on or about February 15th, 2006 in Dallas County, Texas, the defendant, Terry Lee Johnson did unlawfully then and there intentionally or knowingly cause the death of Schulandria Jackson, an individual, by shooting Schulandria Jackson with a firearm, a deadly weapon, or unlawfully then and there intend to cause serious bodily injury to Schulandria Jackson and did then and there commit an act clearly dangerous to human life, to wit: by shooting Schulandria Jackson with a firearm, a deadly weapon, and did thereby cause the death of Schulandria Jackson, an individual, as alleged in the indictment, then you will find the defendant guilty of murder.The jury was then instructed on transferred intent. The application paragraphs read in part as follows:
Now, if you find from the evidence beyond a reasonable doubt that the defendant, Terry Lee Johnson, on or about the 15th day of February, 2006, in Dallas County, Texas, did unlawfully then and there intentionally or knowingly shoot a firearm, a deadly weapon, at a person, to-wit: Ricky [sic] Hicks, thereby attempting to cause the death of Ricky [sic] Hicks, and if you further find that by shooting the said firearm, a deadly weapon, if he did, Terry Lee Johnson desired, risked or contemplated that another person would be injured or harmed, and if you further find that the defendant, Terry Lee Johnson, did thereby cause the death of Schulandria Jackson, an individual, by shooting her with the said firearm, a deadly weapon, you will find the defendant guilty of murder as charged in the indictment.
OR
If you find from the evidence beyond a reasonable doubt that the defendant, Terry Lee Johnson, on or about the 15th day of February, 2006, in Dallas County, Texas, did unlawfully then and there intentionally or knowingly shoot a firearm, a deadly weapon, at a person, to-wit: Ricky [sic] Hicks, thereby attempting to cause serious bodily injury to said Ricky [sic] Hicks, and if you further find that by shooting the said firearm, a deadly weapon, if he did, Terry Lee Johnson desired, risked, or contemplated that another person would be injured or harmed, and if you further find that the defendant, Terry Lee Johnson, thereby committed an act clearly dangerous to human life which caused the death of Schulandria Jackson, an individual, then you will find the defendant guilty of murder, as charged in the indictment. . . .When an appellant alleges jury charge error on appeal, our first task is to determine whether error actually exists in the charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex.Crim.App. 1996); Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985) (op. on reh'g). Only when there is jury charge error do we determine if the error caused sufficient harm to warrant reversal. Hutch, 922 S.W.2d at 170-71; Almanza, 686 S.W.2d at 171. The Texas Constitution requires jury unanimity "in felony cases, and, under our state statutes, unanimity is required in all criminal cases." Ngo v. State, 175 S.W.3d 738, 745 (Tex.Crim.App. 2005). "Unanimity in this context means that each and every juror agrees that the defendant committed the same, single, specific criminal act." Id. In reviewing a disjunctive jury charge, we first determine whether the application paragraphs contain different criminal acts or whether they merely instruct as to different means of committing a single offense. Holford v. State, 177 S.W.3d 454, 461 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd). If the disjunctive paragraphs contain different criminal acts, the jury must be instructed that it cannot return a guilty verdict unless it agrees unanimously that the defendant committed one of the acts. Id. (citing Ngo, 175 S.W.3d at 744). If, however, the disjunctive paragraphs merely inform the jury of different means of committing a single offense, then the jury does not have to unanimously agree on which alternative means the defendant used to commit the offense. Id. at 462 (citing Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App. 1991)); see also Jefferson v. State, 189 S.W.3d 305 (Tex.Crim.App. 2006); Johnson v. State, 233 S.W.3d 109 (Tex.App.-Houston [14th Dist. 2007, no pet.); Randall v. State, 232 S.W.3d 285 (Tex.App.-Beaumont 2007, no pet.). "In determining whether the paragraphs are separate criminal acts or separate means of committing one act, `[a] handy, though not definitive, rule of thumb is to look to the statutory verb defining the criminal act.'" Holford, 177 S.W.3d at 462 (quoting Ngo, 175 S.W.3d at 745 n. 24). The court's charge in this case does not authorize the jury to convict appellant of different criminal acts. Only one statutory verb in each application paragraph defines the criminal act, i.e., causing Jackson's death by shooting her. The application paragraphs at issue merely informed the jury of different means of committing a single murder offense. Accordingly, the trial court did not err in failing to instruct the jury that it must agree unanimously on the manner of Jackson's murder. See Kitchens, 823 S.W.2d at 258; Holford, 177 S.W.3d at 462-63. We overrule appellant's third issue. In his fourth and fifth issues, appellant claims the trial court violated his federal and state due process rights when it allowed the State to exercise a peremptory strike after the parties' strike lists had been delivered to the clerk and the jury had been determined. During jury selection, all ten peremptory challenges were used by both the prosecutor and defense counsel. See Tex. Code Crim. Proc. Ann. art. 35.15(b) (Vernon Supp. 2007) (in non-capital felony cases the State and the defendant entitled to ten peremptory challenges). After each party turned in its list of peremptory challenges and the bailiff had determined the jury, the prosecutor advised the court that he had mistakenly struck venireman number seven, Elder-Schweers, rather than number six, Mendez. The prosecutor told the court his "personal notes" indicated he did not want Mendez on the jury because she was a counselor at Homeward Bound and inappropriate for the jury. Over defense counsel's objection, the court allowed the prosecutor to change his peremptory strike from Elder-Schweers, who was also struck by defense counsel, to Mendez. A trial court abuses its discretion if it refuses to allow the defense to correct a mistake in peremptory strikes, provided the mistake is brought to the court's attention before the jury is sworn. See Pogue v. State, 553 S.W.2d 368, 371 (Tex.Crim.App. 1977); Truong v. State, 782 S.W.2d 904, 905 (Tex.App.-Houston [14th Dist.] 1989, writ ref'd). In Pogue, the defendant exercised a peremptory strike on a juror but due to a clerk's error, the juror's name was called to be a member of the jury. Defense counsel brought the mistake to the trial court's attention before the jury was sworn but after the court had excused the remaining members of the panel. The trial court overruled the defendant's objection. Distinguishing cases where similar mistakes were brought to the court's attention after the jury was sworn, the court of criminal appeals concluded the trial court reversibly erred in denying the defendant's peremptory challenge to the juror in question. Pogue, 553 S.W.2d at 371. In doing so, the court commented that by bringing the mistake to trial court's attention "before the jury was sworn," counsel was not guilty of lack of diligence and that to require the "appellant to show the juror in question was prejudiced or that he was injured by virtue of said juror's presence on the jury would be in effect to deny appellant the right to peremptory challenges afforded by the law." Id. at 370-71. In Truong, defense counsel marked his peremptory strikes on his jury list by placing a number from one to ten beside the names he wanted to strike. Truong, 782 S.W.2d at 905. He then drew a line through all but one of those names. Id. In determining the defense strikes, the clerk looked only at names with lines drawn through them. Id. As a result, one of the panel members upon whom appellant had exercised a peremptory strike was called by the clerk to be a member of the trial jury. Id. Defense pointed out the mistake to the trial judge, who denied his request to correct the mistake. Id. The court of appeals concluded that, by declining to excuse the juror, the trial court denied the appellant the peremptory challenges mandated by article 35.15(b) of the code of criminal procedure. Id. The court explained the lesson of Pogue as follows:
The important factor of Pogue was not who made the mistake which resulted in the presence of that particular juror, but when the mistake was brought to the attention of the court, thus focusing on the diligence of the defense counsel in discovering the mistake and alerting the trial court. Any time prior to the jury being sworn was sufficiently diligent.Id. Relying on Pogue and Truong, the State argues the trial court did not abuse its discretion by allowing the prosecutor to exercise a peremptory strike after the jury had been determined because the prosecutor's allegation of clerical error was brought to the court's attention before the jury was sworn. Appellant argues that the absence of proof of the prosecutor's mistake in the record distinguishes the present case from either Pogue or Truong. Appellant cites Jackson v. State, 826 S.W.2d 751 (Tex.App.-Houston [14th Dist.] 1992, pet. ref'd), where defense counsel's alleged error in peremptory challenges was brought to the court's attention before the jury was sworn and after the remainder of the panel had been excused. Id. at 751-52. The court concluded that counsel's mere assertion of an alleged mistake did not establish reversible error because it was not supported by the record. Id. at 752. Unlike Pogue or Truong, the record contained no marks on the defendant's copy of the jury list or other evidence that would support appellant's claim of error. Id. The court further noted that it would be inequitable to allow the defendant to change his peremptory strikes after having the opportunity to discover what members of the panel were struck by the State. Id.; see also Meador v. State, 941 S.W.2d 156, 161-62 (Tex.App.-Corpus Christi 1996, pet. ref'd) ("To allow appellants to change their peremptory strikes by merely making an unsupported claim of mistake, after learning which veniremembers were struck by the State, would be inequitable."). Appellant argues that the prosecution ought to be held to the same standard as the defense. The defense is entitled to correct a mistake in peremptory strikes if the mistake is brought to the court's attention before the jury is sworn. See Pogue, 553 S.W.2d at 371; Truong, 782 S.W.2d at 905. It is reasonable to allow the State to do the same. But counsel must do more than merely assert that a mistake has been made. See Jackson, 826 S.W.2d at 752. In this case, the jury had not been sworn or empaneled when the prosecutor informed the court that his notes showed he intended to strike Mendez because she worked as a counselor for Homeward Bound. This distinguishes the present case from the situation in Jackson, where there was no indication in the record why the appellant in that case wanted to strike a particular venireperson apart from his "mere assertion"a mistake had been made. See id. Based on the facts of this case, we therefore conclude the trial court did not abuse its discretion in overruling appellant's objection. We overrule appellant's fourth and fifth issues. We affirm the trial court's judgment.