Anthony Wade Brown v. State

Opinion Issued December 4, 2008

Opinion Issued December 4,

2008

In The

Court of Appeals

For The

First District of Texas

NO. 01-08-00081-CR

ANTHONY WADE BROWN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 338th District Court

Harris County, Texas

Trial Court Cause No. 1048441

MEMORANDUM OPINION

Anthony Wade Brown appeals

his conviction for first degree felony murder. Brown pleaded not guilty. The

jury found Brown guilty, and the trial court assessed punishment at forty-five

years’ confinement. In three issues, Brown contends that the evidence is

legally and factually insufficient to support a guilty verdict, and that he was

unfairly prejudiced by an improperly admitted hearsay statement. We conclude that

the evidence is legally and factually sufficient to support his conviction, and

that the contested statement was properly admitted. We therefore affirm.

Background

On the evening of November 25, 2005,

Anthony Wade Brown and Michael Jnlouis, also known as “Twin” and “Yane”

respectively, went to Tyrone Norris’s apartment looking for Christy Wallen. Norris

told Brown and Jnlouis that Wallen was not there, and they left. Later that

night, Wallen arrived at Norris’s home, and he informed her that Brown and

Jnlouis were looking for her. Approximately five minutes later, Jnlouis and

Brown returned to Norris’s apartment to find Wallen. At the same time, Marie

Mojica and another man were in the back bedroom of the apartment where they had

been drinking, smoking crack cocaine, and watching a movie with Norris.

Norris testified that he let Brown

and Jnlouis into the apartment so they could talk to Wallen, and the three of

them began to argue about the “stuff” that they believed she had taken from

them. According to Norris, either Brown or Jnlouis slapped Wallen, and Norris

told them to take their conflict out of his apartment. Jnlouis and Brown began

to drag Wallen out of the apartment. Wallen resisted and asked Norris for

help, but Norris continued to tell the three of them to “get out of here with

it” because he did not want to be involved in the altercation. Norris

testified that Wallen continued to wrestle with the men as they attempted to

drag her out of the apartment, and then he heard two gunshots. He testified

that he never saw a firearm, but that he saw sparks when the shots were fired.

He could not tell who fired the shots because it was dark in the apartment.

Norris further testified on cross-examination that there was a third man whom

he had never seen before at the apartment with Brown and Jnlouis. After the

gunshots, Norris started “screaming and hollering” in terror and ran out of the

apartment.

Marie Mojica testified that she was

in the back bedroom of Norris’s apartment when she heard Wallen asking Norris

for help. She testified that she did not see anyone come into the apartment

because she was in the back bedroom, but she heard Wallen arguing with someone

over “dope” and became scared. She testified that there was a woman in the

front room where Norris, Wallen, Brown and Jnlouis were. She heard the woman

say, “Twin, don’t mess up your life like this, don’t do this,” and then she

heard a gunshot. She ran out of the apartment to someone’s house across the

street. At trial, Brown objected to the statement as hearsay. The trial court

judge overruled the objection.

Later, police questioned Norris and

Mojica. Both identified Brown and Jnlouis [1] in police photo spreads

as having been at the apartment on the night of the murder.

Officer A. Arevalo of the

Houston Police Department arrived at the scene of the incident and found a dead

female lying on her side in a large pool of blood, just inside the threshold of

Norris’s apartment. After preserving the scene, he searched the apartment and

found no one else inside. Officer Arevalo then found Norris nearby and

identified him as a potential witness. Officer C. Scales and Officer M. Scott

questioned Norris and Mojica in the months following the crime.

Clay Davis, a criminalist

with the Houston Police Department Crime Lab, compared the DNA samples of the

items found at the scene with the DNA samples of Norris, Brown, Wallen, and

Jnlouis. Davis’s comparison excluded Brown and Jnlouis from being major

contributors to the DNA samples of Wallen’s left and right fingernail

scrapings, her pants, and the bandana that was found at the scene. The

comparison also excluded Brown as being a contributor to the DNA profile found

on the ski mask, but Jnlouis could not be excluded, meaning that there was an

extremely high chance that Jnlouis was one of two contributors to the DNA on

the mask.

Dr. Stephen Wilson

performed an autopsy on Wallen’s body. He found gunshot wounds on her head,

neck, and right hand. Dr. Wilson also found a number of contusions, abrasions,

and scraping injuries on her skin. He testified that some of them were old

injuries, but others were recent and may have been caused by a physical altercation

shortly before her death. Dr. Wilson concluded that Wallen died as a result of

a gunshot wound that was inflicted at a close range. He also found that there

was cocaine in her system at the time of the incident.

Christie Carrington testified that

Brown and Jnlouis were with her during the entire weekend of Wallen’s murder. She

testified that she picked them up at around three or four o’clock on Friday

afternoon and drove them to her house to attend a party there. She returned

them to one of their mothers’ homes on Sunday after she answered a call from

the police on either Brown of Jnlouis’s cell phone. She further testified that

neither Jnlouis nor Brown had a car, and that the scene of the murder was thirty-five

to forty minutes away from her home. Carrington had multiple prior theft

convictions, and she did not tell the investigating officers that Jnlouis and

Brown were with her the night of the murder.

Legal and Factual Sufficiency

In his first and second

issues, Brown contends that the evidence is legally and factually insufficient

to support a guilty verdict because the State presented no evidence proving that

he either caused Wallen’s death or was a party to her murder. In particular,

Brown observes that the scientific evidence does not incriminate him, and the

witnesses who testified against him are unreliable.

Standard of Review

When evaluating the legal sufficiency

of the evidence, we 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 offense beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319 , 99 S. Ct. 2781, 2789 (1979); Drichas v. State , 175

S.W.3d 795, 798 (Tex. Crim. App. 2005). The standard is the same for both

direct and circumstantial evidence cases. King v. State , 895 S.W.2d

701, 703 (Tex. Crim. App. 1995). We do not resolve any conflict of fact, weigh

any evidence, or evaluate the credibility of any witnesses, as this is the

function of the trier of fact. See Dewberry v. State , 4 S.W.3d 735, 740

(Tex. Crim. App. 1999); Adelman v. State , 828 S.W.2d 418, 421 (Tex.

Crim. App. 1992); Matson v. State , 819 S.W.2d 839, 843 (Tex. Crim. App.

1991).

When evaluating factual sufficiency,

we consider all 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, 414 (Tex. Crim. App. 2006). We set aside a

verdict only if (1) the evidence is so weak that the verdict is clearly wrong

and manifestly unjust or (2) the verdict is against the great weight and

preponderance of the evidence. Johnson v. State , 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Under the first prong of Johnson , we cannot conclude that a

verdict is “clearly wrong” or “manifestly unjust” simply because, on the

quantum of evidence admitted, we would have voted to acquit had we been on the

jury. Watson , 204 S.W.3d at 417 . Under the second prong of Johnson ,

we cannot declare that a conflict in the evidence justifies a new trial simply

because we disagree with the jury’s resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict

under the second prong of Johnson , we must be able to say, with some

objective basis in the record, that the great weight and preponderance of the

evidence contradicts the jury’s verdict. Id. We must also discuss the

evidence that, according to the appellant, most undermines the jury’s verdict.

See Sims v. State , 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

Murder and the Law of Parties

A person commits the felony

offense of murder if he “ intentionally or

knowingly causes the

death of an individual [or] 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) (Vernon 2007). Under the law of parties, “A person

is criminally responsible as a party to an offense if the offense is committed

by his own conduct, by the conduct of another for which he is criminally

responsible, or by both.” Tex. Penal

Code. Ann. § 7.01( a); Vodochodsky v. State , 158 S.W.3d 502, 509 (Tex. Crim. App. 2005).

A person is “criminally responsible” for the conduct of another

if, “acting with the intent to promote or assist the commission of the offense,

he solicits, encourages, directs, aids, or attempts to aid the other person to

commit the offense.” Tex. Penal Code

Ann. § 7.02 ( a)(2); Vodochodsky , 158 S.W.3d at 509 . The mere

presence of the accused at the scene of the murder is insufficient to support a

conviction. King v. State , 638 S.W.2d 903, 904 (Tex. Crim. App. 1982). But

such evidence may be sufficient to convict a defendant under the law of parties

if it shows that he is both physically present at the commission of the offense

and encourages the commission of the offense, either by words or by other

agreement. Salinas v. State , 163 S.W.3d 734, 739 (Tex. Crim. App. 2005). The presence of the defendant at the scene, combined with the

totality of the circumstances, may suffice to show that the accused was a

participant in the murder. Beardsley v. State , 738 S.W.2d 681, 685 (Tex. Crim. App. 1987).

Legal Sufficiency

Brown contends that the

evidence is legally insufficient to support a guilty verdict because there is

no evidence that he shot Wallen, or that he knew Jnlouis was armed or agreed

with Jnlouis to do anything more than assault or harass Wallen for stealing

drugs. He points to the fact that the scientific evidence does not incriminate

him, and that the witnesses’ testimony is unreliable.

Although the scientific evidence does

not incriminate Brown, other evidence proves that Brown was at the scene of the

crime. Both Norris and Mojica testified that Brown and Jnlouis were at Norris’s

apartment that night and that they were fighting with Wallen. Brown further

argues that the evidence is insufficient because neither Norris nor Mojica saw

Brown shoot Wallen. However, intent to kill can be inferred from the

circumstances surrounding the use of a deadly weapon. See Godsey v. State ,

719 S.W.2d 578 , 580–81 (Tex. Crim. App. 1986) (holding that the defendant’s

pulling a loaded revolver and aiming it at two officers was sufficient to

establish intent to kill); see also Thompson v. State , 36 S.W. 265, 266

(Tex. Crim. App. 1896) (holding that defendant’s pointing a gun at a sheriff

was enough to infer that he intended on using it); Patrick v. State , 906

S.W.2d 481, 487 (Tex. Crim. App. 1995) (“Intent [to kill] can be inferred from

the acts, words, and conduct of the accused[,] [as well as] the extent of the

injuries.”). Furthermore, the identification of the defendant by an eyewitness

is not essential to prove that he was the perpetrator of a crime; direct or

circumstantial evidence may be enough. See Green v. State , 124 S.W.3d

789, 792 (Tex. App.–––Houston [1st Dist.] 2003, pet. ref’d) (holding that

defendant’s threats recorded on victim’s answering machine, history between

victim and defendant, testimony that defendant fled scene, and identification

of defendant’s car supported finding defendant was perpetrator).

Mojica testified that she heard a

woman say, “Twin, don’t mess up your life like this. Don’t do this,” and then

she heard a gunshot. Even though neither witness could see the shooter, “Twin”

is Brown’s nickname, and thus the jury could reasonably have inferred from the

evidence that Brown shot Wallen or assisted the shooter in the murder.

We hold that, under the law of

parties, a jury reasonably could infer from the totality of the circumstances

that Brown was a party to the crime. See Cordova v. State , 698 S.W.2d

107, 111 (Tex. Crim. App. 1985) (citing Medellin v. State , 617 S.W.2d

229 (Tex. Crim. App. 1981) (holding that a court may look to the events

occurring before, during, and after the commission of an offense to determine

if the accused was a party to the crime); see also Goodman v. State , 66

S.W.3d 283, 296 (Tex. Crim. App. 2001) (finding that circumstantial evidence is

as probative as direct evidence in establishing the guilt of an actor). The

evidence shows, and Brown concedes, that Brown and Jnlouis assaulted Wallen the

night of the incident. Witnesses heard gunshots immediately after the

altercation. Mojica testified that Brown and Jnlouis “always” had guns with

them. Brown and Jnlouis

were at Norris’s apartment when Wallen was shot, which occurred at the same

time that they were fighting with Wallen over drugs that they had accused her

of stealing. Brown and Jnlouis forcibly dragged Wallen out of the apartment

and, soon after that, one of them shot her. Even if Jnlouis shot Wallen, the jury could reasonably infer

that Brown was a party to Wallen’s murder. [2]

Factual Sufficiency

Brown asserts that the evidence is

factually insufficient for the same reasons that he argues the evidence is

legally insufficient, and observes that a witness offered an alibi for his

whereabouts at the time of the murder. He further notes that, because Norris

and Mojica had been using drugs and neither of them saw Brown holding a gun or

shooting Wallen, their testimony is unreliable and fails to prove that Brown

killed Wallen.

The fact-finder alone determines the

weight to place on contradictory testimonial evidence because that determination

depends on the fact-finder’s evaluation of credibility and demeanor. Cain

v. State , 958 S.W.2d 404 , 408–09 (Tex. Crim. App. 1997). As the determiner

of the credibility of the witnesses, the fact-finder may choose to believe all,

some, or none of the testimony presented. Id. at 407 n.5. The

fact-finder is the exclusive judge of the witnesses’ credibility and the weight

to be given to their testimony. Jones v. State , 944 S.W.2d 642, 648

(Tex. Crim. App. 1996). On appellate review, we may not re-weigh the evidence

and substitute our judgment for that of the fact-finder. Johnson v. State ,

967 S.W.2d 410, 412 (Tex. Crim. App. 1998); see also Wilson v. State ,

863 S.W.2d 59, 66 (Tex . Crim. App. 1993); King v. State , 29

S.W.3d 556, 562 (Tex. Crim. App. 2000).

Norris and Mojica’s testimony do not

correspond on all of the events on the night of the murder, but the defense had

the opportunity to expose any inconsistencies in their testimony. The weight

to be given to contradictory testimony is within the sole province of the

jury. Johnson v. State , 23 S.W.3d 1, 8 (Tex. Crim. App. 2000). The jury was free to believe Mojica’s

testimony that a woman in the front room said, “Twin don’t mess up your life.

Don’t do this,” even though Norris testified that there was no other woman in

the apartment. See

Glockzin v. State ,

220 S.W.3d 140, 147 (Tex. App.—Waco 2007, pet. ref’d) (observing that jury was

free to rely on victim’s testimony rather than that of defendant or other

witnesses, and disregard any inconsistencies); see also Perez v. State , 113 S.W.3d 819 , 838–39 (Tex. App.—Austin

2003, pet. ref’d). The jury was also free to disbelieve Christie Carrington’s

alibi testimony. We cannot hold that the jury’s decision is manifestly unjust merely because it

resolved conflicting views of the evidence in favor of the State. Cain ,

958 S.W.2d at 410 .

Brown also contends that Brown’s “mere

presence” at the apartment is insufficient to prove that he killed Wallen or

was a party to her murder. Brown was present at Norris’s apartment, but other

circumstances also exist: he and Jnlouis assaulted Wallen, demanded drugs from

her, and cooperated in an effort to drag her outside of the apartment. “The

jury maintains power to draw reasonable inferences from the basic facts to the

ultimate facts.” Welch v. State , 993 S.W.2d 690, 693 (Tex. App.––San Antonio 1999, no pet.). The evidence supports an inference that Brown was not

merely a bystander, but rather a participant in the assault and murder. We

hold that Brown’s presence, his involvement in the assault, and the surrounding

circumstances, when viewed

in a neutral light, is not so obviously weak or contrary to the overwhelming

weight of the evidence as to be factually insufficient.

Hearsay Testimony

In his last issue, Brown

contends that the trial court abused its discretion by admitting hearsay

testimony over his objection. We review a trial court’s decision to admit

evidence under an abuse of discretion standard. Torres v. State , 71

S.W.3d 758, 760 (Tex. Crim. App. 2002). We will not reverse a trial court’s

ruling unless that ruling falls outside the zone of reasonable disagreement. Burden

v. State , 55 S.W.3d 608, 615 (Tex. Crim. App. 2001).

Hearsay is an out-of-court statement

offered at trial to prove the truth of the matter asserted. Tex. R. Evid . 801(d) (Vernon 2003).

Hearsay is not admissible absent an exception. Tex. R. Evid. 802 (Vernon 2003). Here, the State elicited Mojica’s

testimony that she heard a woman in the front room say, “Twin don’t mess up

your life like this. Don’t do this.” The State offered the statement to identify

Brown as a perpetrator of the crime. The statement conveyed events as the

witness perceived them. Thus, it falls within the present sense impression

exception to the hearsay rule. See Tex.

R. Evid. 803(1) (Vernon 1998). A present

sense impression is a statement describing or explaining an event or condition

made while the declarant was perceiving the event or condition, or immediately

thereafter. Id. Mojica testified that the woman made the

statement in response to the argument that she was observing between Brown,

Jnlouis, and Wallen. See Jacobs v. State , No. 01-86-0136-CR, 1987 WL

10540 , at *2–3 (Tex. App.—Houston [1st Dist.] 1987, no pet.) (mem. op., not

designated for publication) (holding that where the witness was in the next

apartment and heard the victim’s sister scream “Someone help. Please help.

He’s going to shoot her,” the statement was an excited utterance). Moreover, testimony

that tends to show that the defendant is a suspect and explains the

circumstances leading up to the murder is admissible. See Porter v. State ,

623 S.W.2d 374, 385 (Tex. Crim. App. 1981) (holding that statements made

about communications between police officers and dispatchers were admissible at

trial to show circumstances leading up to shooting); Parker v. State ,

192 S.W.3d 801, 807 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (holding

that officer’s statements about tips received from a confidential informant

were admissible to show circumstances leading up to appellant’s arrest). We

hold that this testimony was admissible under an exception to the hearsay rule,

and thus the trial court did not abuse its discretion in admitting it over

Brown’s hearsay objection.

Conclusion

We conclude that legally and

factually sufficient evidence supports the verdict and that the trial court did

not abuse its discretion in admitting the complained of evidence. Accordingly,

we affirm the judgment of the trial court.

Jane Bland

Justice

Panel consists of Justices Jennings,

Hanks, and Bland.

Do not publish. Tex. R. App. P. 47.4.

[1] Norris and Mojica could only identify Brown and

Jnlouis by their nicknames, Twin and Yane respectively, as they did not know

their real names. At trial, Norris could no longer remember which was Twin and

which was Yane.

[2] Brown further contends that Norris and Mojica are

unreliable witnesses because both were using drugs on the night of the murder,

and Norris also had a criminal record. In a legal sufficiency analysis, we

view the evidence in a light most favorable to the State, and therefore do not

evaluate the credibility of witnesses. See Dewberry , 4 S.W.3d at 740 .