Grayson, Tyrone Denard v. State ( 2005 )

Motion for Rehearing Overruled; Affirmed; Opinion of May 17, 2005, Withdrawn; Substitute Memorandum Opinion filed July 14, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00226-CR

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TYRONE DENARD GRAYSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 230th District Court

Harris County, Texas

Trial Court Cause No. 974,022

S U B S T I T U T E   M E M O R A N D U M   O P I N I O N  

Appellant, Tyrone Denard Grayson, appeals his conviction for the March 2003 murder of Leonard Bledsoe, for which a jury sentenced him to life in prison.  In his sole issue, appellant claims the evidence is insufficient to support his conviction.  In response to appellant=s motion for rehearing, we withdraw the opinion issued in this case on May 17, 2005, and we issue the following opinion in its place. We overrule appellant=s motion for rehearing.  Because all dispositive issues are clearly settled in law, we issue this memorandum opinion.  Tex. R. App. P. 47.1.  We affirm.

Background

On March 13, 2003, Melvin Nickerson returned to his home at 8434 Carolwood to find his back kitchen door kicked in and $800.00 in cash missing.  Nickerson=s brother-in-law, Alfred Price, came to Nickerson=s house to borrow money shortly after Nickerson discovered the burglary. Workers roofing a house behind Nickerson=s told Nickerson and Price that they had seen a tall individual in a hooded sweatshirt with his hair in braids enter the house.  The two men then saw appellant drive by the street behind Nickerson=s; Price recognized appellant and told Nickerson that, given the workers= description and his knowledge of appellant, he suspected appellant of the burglary.  Several of Nickerson=s cousins then gathered at Nickerson=s house upon hearing of the theft.

According to Nickerson, his gathered family talked him into going to appellant=s mother=s house in search of appellant.  He returned home after his search came up empty.  By that time, the number of congregated family members and friends had increased.  The group included Price, Xavier Hunter, Angelo Laws, Sylvester Bonner, Leonard Bledsoe, and Edwin Bledsoe.  None of those in the group, including Nickerson, was armed at any time.  The group was outside, drinking beer and discussing the burglary, when several cars pulled up, blocking the street and driveway. Appellant and several other individuals got out of the cars.  Appellant angrily stated that he had heard that the group had been looking for him. He walked toward the house, whereupon Bonner, Hunter, Laws, and Price walked out to meet him. 

A brief discussion regarding the burglary then occurred, escalating to the point at which appellant stepped back, yelled, AI ain=t got to take this shit no more,@ reached into his back waistband, and drew a gun.  Almost all of the eyewitnesses turned and ran from the ensuing gunfire. At the end of the gun shots, Leonard Bledsoe was discovered to have been shot in the chest.  Witnesses at the scene of the shooting called 9‑1‑1, but Bledsoe died en route to the hospital.  None of the witnesses actually saw appellant shoot Leonard Bledsoe. Appellant was also injured in the gun battle, although he did not seek medical treatment for his injury. Appellant, who had fled the scene, was later arrested and charged with the murder of Leonard Bledsoe.

At trial, a ballistics expert testified that, from casings and fragments recovered from the scene, at least three different weapons were used during the gunfight.  One witness testified that he saw appellant with a gun; other witnesses testified that they did not see whether he had a gun since they turned to run once he made a motion as if to reach for a weapon.  The ballistics testimony offered at trial also showed that the shots were fired in the direction of Nickerson=s house, 8434 Carolwood, away from the street. 

In its charge, the court instructed the jury that it could find appellant guilty of murder as a principal, as a party, or under the theory of transferred intent. Appellant brings this appeal, claiming that since the jury was not instructed that he could be found guilty as a party to transferred intent, the evidence was insufficient to support his conviction under any of the other theories submitted to the jury.  We disagree.

Legal and Factual Sufficiency

We utilize the normal standards in conducting our sufficiency review.  Jackson v. Virginia, 443 U.S. 307 (1979); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (legal sufficiency standards); Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004) (factual sufficiency standards).  When the record contains evidence that is circumstantial in nature, the standard of review is the same as it is for reviewing direct evidence.  See Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999).  Indeed, circumstantial evidence alone may be sufficient to support a finding of guilt.  Id.  The charge, to which appellant made no objection, authorized the jury to convict appellant of murder: as a principal under penal code section 19.02(b)(1) or 19.02(b)(2); as a party under section 7.02(a)(2); or under the theory of transferred intent under section 6.04(b)(2). If a jury returns a general verdict and the evidence is sufficient to support a finding of guilt under any of the allegations submitted, the verdict will be upheld.  Alvarado v. State, 912 S.W.2d 199, 225 (Tex. Crim. App. 1995).

Appellant claims that, because no theory other than his culpability as a party to transferred intent is supported by sufficient evidence, and the jury was not instructed on that theory, the evidence is legally and factually insufficient to support his conviction.  We find that the evidence is sufficient, both legally and factually, to support appellant=s conviction under the charge as given to the jury.

Testimony at trial indicates that the confrontation between appellant and the group consisting of Bonner, Hunter, Laws, and Price took place in the street between Nickerson=s house, 8434 Carolwood (A8434@), and his neighbor=s house, 8426 Carolwood (A8426@).^[1]  Melvin Nickerson=s brother-in-law, Angelo Laws, testified that he saw appellant pull a gun out from his back waistband.  Laws did not see appellant actually fire the gun because, once he saw appellant draw his weapon, he immediately turned and ran.  Laws did testify, however, that, as soon as he turned to run, he heard Aover three dozen@ gunshots fired.  Other witnesses, including Melvin Nickerson, Edwin Bledsoe (Leonard=s brother), Xavier Hunter,  and Alfred Price, testified that they did not see appellant with a gun because, once appellant made a motion as if to pull a weapon, they turned and ran. They did testify that they heard gunfire coming from where appellant had been standing. 

The forensic evidence adduced at trial showed that all of the shots fired during the shooting, including the shot that killed Leonard Bledsoe, came from a gun or guns fired by appellant and/or his companions, who were standing around and behind him.  Carl Stein, the State=s ballistics expert, testified that the bullet that killed Leonard Bledsoe came from a gun from which shell casings were found in the street in front of 8426 Carolwood.  Three bullets or bullet fragments from the same weapon were found in close proximity to where Bledsoe was found to have been shot.  Houston Police Department detectives found two other groups of shell casings that were later determined to be from two different weapons in the same area in front of 8426 and between 8426 and 8434.

Appellant claims that the forensic evidence, when considered with the testimony setting the location of the fight, proves that someone other than he fired the fatal shot.  According to the forensic testimony, the bullet that killed Leonard Bledsoe came from 160 feet away from Nickerson=s driveway, but appellant claims that someone other than appellant fired the fatal shot.  The testimony adduced at trial, however, controverts appellant=s version of the facts.  Some witnesses placed the confrontation in the street in front of Nickerson=s neighbor=s house; other witnesses marked the location of the confrontation and its actors on an exhibit shown to the jury.  We do not have that exhibit on appeal.  As a result, on this record, we cannot say that the forensic evidence conflicts with testimony explaining the complainant=s location.

A firearm is a deadly weapon per se; intent to kill may be inferred when a defendant uses a deadly weapon in a deadly manner.  Adanandus v. State, 866 S.W.2d 210, 215 (Tex. Crim. App. 1993). The jury had before it detailed explanations of the location of the actors.  The above evidence that appellant had, or pulled, a weapon and that shots were fired from a place at which appellant had been standing supports his conviction as a principal.  It also supports a conviction under the theory of transferred intent.  If appellant can be assumed to have been shooting at Bonner, Hunter, Laws, and/or Price, then the only difference between what actually occurred and what appellant desired, contemplated, or risked is that a different person, namely, Leonard Bledsoe, was killed.  See Tex. Pen. Code Ann. ' 6.04(b)(2) (Vernon 2003). 

Therefore, as the State points out, while no evidence exists to show exactly who fatally shot Leonard Bledsoe, the jury rationally could infer that, because the evidence showed that either appellant or his accomplices used one or more deadly weapons in a deadly manner, the fatal shot was fired either by appellant or those with him.  Because the jury is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony, we conclude that a rational trier of fact could have found the elements of the offense beyond a reasonable doubt.  See Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000).  The evidence is therefore legally sufficient to support appellant=s conviction.  See King, 29 S.W.3d at 562. 

We also conclude that a neutral review of the evidence does not demonstrate that the proof of guilt is so obviously weak as to undermine confidence in the jury=s determination.  See Zuniga, 144 S.W.2d at 483-84.  Neither is the proof of guilt greatly outweighed by any contrary proof: appellant=s defense consisted of three witnesses who testified that they saw him at AThe Cut@ barber shop, his place of work, the day of the crime.  The witnesses testified that appellant had been at work, but left in the early afternoon, returning to the shop later in the day.  The witnesses stated that appellant showed them where he had been shot in the leg and then quickly left.  The mother of appellant=s two children also testified that appellant did not pick their daughter up at school that day and that, after appellant returned home, she treated his wound with hydrogen peroxide and a bandage.  We find that the evidence is factually sufficient to support appellant=s conviction.  Id.

Because we find that sufficient evidence exists to support appellant=s conviction under the charge as given, we conclude that the court did not err in failing to charge the jury under the theory of appellant being a party to transferred intent.  See Alvarado, 912 S.W.2d at 225.

Appellant=s single point of error is overruled.

We affirm the judgment of the trial court.

/s/      Adele Hedges

Chief Justice

Judgment rendered and Substitute Memorandum Opinion filed July 14, 2005.

Panel consists of Chief Justice Hedges and Justices Fowler and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  The two houses are on the same side of the street.