Heywood Joseph Sholars v. State

Opinion issued September 24, 2009

In The

Court of Appeals

For The

First District of Texas

NO. 01-08-00060-CR

HEYWOOD JOSEPH SHOLARS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 208th District Court

Harris County, Texas

Trial Court Cause No. 1035439

OPINION

A jury convicted appellant, Heywood Joseph Sholars, of capital murder. (1) The

trial court sentenced appellant to life in prison. In two points of error, appellant

argues that (1) the trial court erred in using a stair-step instruction which prohibited

consideration of a lesser offense in determining guilt as to the charged offense and

in permitting prosecutorial jury argument that repeated the error; and (2) the evidence

presented at trial was factually insufficient to show that appellant intentionally shot

the complainant or intended to shoot another person.

We affirm.

Background

On April 7, 2005, at approximately 9:00 p.m., appellant and Jesse Davis

traveled to a shopping center on Griggs Road in Houston, Texas. Appellant and

Davis arrived at the shopping center, stood on the sidewalk and watched as patrons

of the Winning World gaming room at 5060 Griggs Road entered and exited the

illegal gaming business. Appellant was carrying a black gun in his pocket. Both

appellant and Davis were wearing black shirts, black shorts, and black hats. Paul

Boutte arrived at the gaming room and rang the doorbell to gain entry. The manager,

Melissa Rivera, opened the door to let Boutte into the gaming room. As Boutte

entered the gaming room, appellant and Davis ran down the sidewalk toward the

gaming room. Appellant and Davis ran behind Boutte and began to push him into the

gaming room. An unidentified customer shouted, "Don't let them in." Boutte

quickly turned and tried to close the door behind him to prevent appellant and Davis

from entering the gaming room.

Appellant was standing outside the door of the gaming room; Davis was

standing behind appellant. Appellant and Boutte were struggling as Boutte tried to

prevent appellant from entering the gaming room. The complainant saw Boutte

struggling to keep appellant outside and came up behind Boutte to assist him.

Appellant opened the door and placed his foot in the door to pry it open. Appellant

was able to open the door approximately six inches. He took the gun from his pocket

with his right arm and pointed it at Boutte through the door. Appellant fired the gun

once and paused for approximately two seconds before firing the gun again. The

complainant was struck in the abdomen. Appellant did not speak throughout the

entire transaction of events.

After the second shot, Davis grabbed appellant's right arm and pulled it out of

the door frame. Appellant and Davis ran away from the scene and passed Yosly

Ordonez's home. Ordonez was on the porch of her home when she heard noises

resembling gunshots. Soon after she heard the noises, appellant and Davis ran in

front of the house. She asked appellant and Davis why they were running "like you

did something." Neither responded to Ordonez's question. Appellant and Davis

disposed of the gun, ran to their car, which was parked at a nearby apartment

complex, and drove away from the scene. On April 12, 2005, after receiving an

identification from Ordonez, Houston Police Department ("HPD") officers arrested

appellant. Appellant was charged with committing the offense of capital murder by

attempting to commit a robbery and intentionally causing the death of the

complainant by shooting him with a deadly weapon, namely a firearm.

Trial began on January 8, 2008. At trial, the State presented testimony from

Boutte. Boutte testified that as he was struggling to prevent appellant from opening

the door, he saw appellant take the gun from his pocket. Appellant aimed the gun

toward Boutte. Boutte testified that he used his left hand "and started tussling with

him with the gun and the gun kept going back and forth." He also testified that

appellant shot the gun "more than two times."

The State also presented testimony from Ordonez. Ordonez testified that she

was an acquaintance of both appellant and Davis because they lived in the same

neighborhood. She immediately recognized them when they ran in front of her house.

As they were running in front of her house, she saw an object in appellant's hand but

was not certain whether appellant was carrying a gun. When she asked them why

they were running, appellant and Davis failed to respond. Ordonez testified that

appellant and Davis ran toward three apartment complexes down the street.

The State also presented testimony from Davis. Davis testified that he pled

guilty to aggravated robbery in this case and was awaiting sentencing at the time of

his testimony. He stated that he and appellant had been friends and associates for

over 10 years. Davis testified that appellant wanted to rob the gaming room and

asked him to assist in the robbery. Appellant knew the layout of the gaming room

and also knew where the gaming room's money was stored. Appellant also possessed

a gun, which Davis described as a ".357 Magnum." Davis testified that, during the

incident, he and appellant were trying to force themselves into the gaming room when

Boutte blocked their entry. During the struggle with Boutte, appellant pulled his gun

out of his pocket with his right hand and pointed it inside the door frame. Davis

testified that he could not see the gun after appellant pointed it inside the door frame.

However, he heard appellant fire the gun once. Appellant paused for two seconds and

fired the gun again. Davis testified that after the second shot he took appellant's right

arm and pulled it out of the door frame. He and appellant then ran away from the

gaming room.

The State presented testimony from HPD Officer D. Shorten. Shorten testified

that he investigated the crime scene and obtained statements from Boutte, Ordonez,

Rivera, and other witnesses. He prepared two different photo spreads, one containing

appellant's picture and one containing Davis's picture. On April 8, 2005, he

presented the photo spreads to Boutte, but Boutte could not make an identification of

either appellant or Davis. He also presented the photo spreads to Ordonez. Ordonez

identified appellant as one of the people running in front of her home in the period

after the incident. Shorten testified that, on April 13, 2005, HPD police officers

presented Boutte with a "video lineup" that included appellant. Boutte identified

appellant as the shooter.

Appellant presented testimony from Rudy Vargas, a private investigator.

Vargas testified that he interviewed Ordonez and that she told him she was not certain

that appellant was carrying a gun when he ran in front of her house. Vargas testified

that Ordonez said the object appellant was carrying looked like a "big white gun."

At the end of the guilt/innocence phase, the trial court read the entire charge

to the jury. It stated, in relevant part:

Now, if you find from the evidence beyond a reasonable doubt that on

or about the 7th day of April, 2005, in Harris County, Texas, [appellant]

did then and there unlawfully, while in the course of committing or

attempting to commit the robbery of Melissa Rivera, intentionally cause

the death of [the complainant] by shooting [the complainant] with a

deadly weapon, namely, a firearm, then you will find the defendant

guilty of capital murder, as charged in the indictment.

Or, if you believe from the evidence, beyond a reasonable doubt that

[appellant] in Harris County, Texas, on or about the 7th day of April,

2005, intending to cause the death of Paul Boutte by shooting at Paul

Boutte with a deadly weapon, namely a firearm while in the course of

committing a robbery of Melissa Rivera, did then and there cause the

death of [the complainant] by shooting [the complainant] with a deadly

weapon, namely a firearm while in the course of committing or

attempting to commit a robbery of Melissa Rivera, then you will find the

defendant guilty of capital murder as charged in the indictment.

Unless you so find from the evidence beyond a reasonable doubt, or if

you have a reasonable doubt thereof, you will acquit the defendant of

capital murder and next consider whether [appellant] is guilty of the

lesser offense of felony murder.

. . . .

Unless you so find from the evidence beyond the reasonable doubt, or

if you have a reasonable doubt thereof, you will acquit the defendant of

felony murder and next consider whether [appellant] is guilty of the

lesser offense of aggravated robbery.

. . . .

Unless you so find from the evidence beyond the reasonable doubt, or

if you have a reasonable doubt thereof, you will acquit the defendant of

aggravated robbery and next consider whether [appellant] is guilty of the

lesser offense of manslaughter.

. . . .

If you have a reasonable doubt as to whether the defendant is guilty of

any offense defined in this charge you will acquit the defendant and say

by your verdict "Not Guilty."

Regarding the jury charge, the State made the following closing argument to

the jury, in relevant part:

[State]: Remember how lessers work and how you are

instructed to deliberate on them. You have to decide

whether he is guilty or not guilty of capital murder

first. If you have a reasonable doubt, then you must

acquit him of capital murder. And remember, it's an

individual deliberation. If you believe he's guilty of

capital murder, then that is your deliberation. And

all 12 of you, in order to get to a lesser offense and

start deliberating about that, you are told in that

charge--

[Appellant]: Objection as to any instructions at this point as to

how to deliberate. That's outside the charge.

[Court]: Just restate your argument. That's overruled.

[State]: Yes, ma'am. That charge instructs you that you

must first deliberate on the higher offense and only

if, effectively only if you acquit of capital murder do

you then consider the next offense of felony murder.

And only if you acquit of felony murder so you go

down to the next. The bottom line is when you go

back there to deliberate and you believe beyond a

reasonable doubt that [appellant] intended to kill one

of those two men and he did kill [the complainant]

while he was trying to commit a robbery, he is guilty

of capital murder and that is it. You do not

deliberate about any of and do not discuss the lessers

at all.

On January 16, 2008, the jury convicted appellant of capital murder and the

trial court sentenced him to life in prison. Appellant filed notice of appeal.

Jury Instruction and Prosecutorial Error

In the first part of his first point of error, appellant argues that the trial court

erred in using a stair-step instruction that prohibited consideration of a lesser offense

in determining guilt as to the charged offense. Appellant also argues that the error

"was echoed in prosecutorial argument," to appellant's harm.

1. Jury Instruction

Appellant first complains that the jury charge was a "stair-step" charge that

required the jury unanimously to decide guilt or innocence as to the greater offense

of capital murder "before even considering whether the appellant was guilty of any

lesser offense." He argues that such a charge is inconsistent with the State's burden

of proof beyond a reasonable doubt of every element of the crime. He cites to

Apprendi v. New Jersey , in which the United States Supreme Court held that, as a

matter of due process of law, "any fact that increases the penalty for a crime beyond

the prescribed statutory maximum" must be submitted to a jury and proved beyond

a reasonable doubt. 530 U.S. 466, 490 , 120 S. Ct. 2348, 2362-63 (2000) . Appellant

argues that Apprendi "also applies to distinctions between greater and lesser offenses

which are distinguished by some element in the greater which is absent from the

lesser" and that "stair-step" instructions deprive a defendant of his constitutional right

to have all the elements of each crime with which he is charged considered.

Appellant states that "to make Apprendi effective, a jury should be called upon to

compare a greater offense and a lesser offense, with attention paid to the element

which distinguishes the two offenses." He contends that "a stair-step instruction not

only fails to assure such a comparison, but actually precludes it through specific

instruction" from deciding the greater offense first without considering the lesser.

We disagree with appellant's claim that the instruction given in this case was a stair-step instruction.

A claim of error in the jury charge is reviewed using the procedure set out in

Almanza v. State , 686 S.W.2d 157, 171 (Tex. Crim. App. 1984), overruled on other

grounds , Rodriguez v. State , 758 S.W.2d 787 (Tex. Crim. App. 1988). Barrios v.

State , 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). The first step is to determine

whether there is error in the charge. Barrios , 283 S.W.3d at 350 ; Ngo v. State , 175

S.W.3d 738, 743 (Tex. Crim. App. 2005). If there was error and the appellant

objected to the error at trial, reversal is required if the error is calculated to injure the

rights of the defendant, i.e., if there is some harm. Barrios , 283 S.W.3d at 350 ;

Almanza , 686 S.W.2d at 171 . If the error was not objected to, it must be fundamental

and will require reversal only if it was so egregious and created such harm that the

defendant did not have a fair and impartial trial. Barrios , 283 S.W.3d at 350 ;

Almanza , 686 S.W.2d at 171 . The degree of harm is determined in light of the entire

jury charge, the state of the evidence, including the contested issues and the weight

of the probative evidence, the argument of counsel, and any other relevant

inform a tion revealed by the record of the trial as a whole. Almanza , 686 S.W.2d at

171 .

The proper construction of the jury charge in this case is controlled by Barrios .

Reaffirming and clarifying its prior holding in Boyett v. State , 692 S.W.2d 512 (Tex.

Crim. App. 1985), the Court of Criminal Appeals held in Barrios that the type of

instruction at issue in this case is a proper sequencing instruction of the type appellant

seeks and not a "stair-step instruction" that requires unanimity of the jury at any stage

prior to the verdict. Barrios , 283 S.W.3d at 352-53 ; see Boyett , 692 S.W.2d at 516 .

In Barrios , the appellant argued, similarly to appellant in this case, that an

instruction telling the jury to "acquit" the defendant if it has a reasonable doubt that

he is guilty of the greater offense and next consider the lesser offense and the view

that the sequencing instruction requires unanimity before the jury can consider lesser-included offenses are mutually exclusive. 283 S.W.3d at 352 . If the defendant is

convicted of the greater offense, the inquiry ends; if he is acquitted under the

sequencing instruction, there is "nothing to compare the lesser-included offense to

when subsequently considering the instruction on benefit of the doubt." Id. The

disposition of the greater offense has by that time already been decided by the jury,

and the instruction on benefit of the doubt becomes superfluous. Id.

The Court of Criminal Appeals stated, "Appellant's conclusion arises from a

narrow interpretation of the charge. Unanimous verdicts are the final decisions of a

jury, delivered to the court after its deliberations are complete." Id . Under the

sequencing instruction, the order in which the parts of the jury charge are considered

is left to the discretion of the jury. See id. Such a jury instruction also adequately

instructs jurors to consider the defendant's requested instructions on lesser included

offenses. Boyett , 692 S.W.2d at 516 . The trial judge reads the entire charge to the

jury before it retires to deliberate. Barrios , 283 S.W.3d at 353 . Thus the jurors will

have heard the instruction on the benefit of the doubt before considering the issue of

guilt on any of the offenses included in the charge. Id. "Therefore, even if, and

perhaps especially if, the jurors cannot agree as to guilt on the greater offense, they

have already been instructed that they may consider guilt as to the lesser offense

before deciding on a verdict as to the greater offense." Id .

The court observed that the instruction's "use of 'acquit' as it is understood in

relation to delivery of a verdict is at odds with the context of the instruction" in

relation to jury deliberations, in which "the intended meaning seems to be 'have a

reasonable doubt of or cannot agree on guilt,'" and that the charge might be clearer,

but the charge, read as a whole, instructed the jury that at its discretion it might

consider the lesser-included offenses before making a final decision as to the greater

offense. Id. The court thus held that the charge allowed the jury to consider the

entire charge as a whole and that the sequencing instruction did not require the jury

to unanimously agree that a defendant was not guilty of the greater offense before it

could consider a lesser-included offense. Id. The charge, therefore, was not

erroneous. Id.

We conclude, likewise, that the virtually identical instruction in this case was

a sequencing instruction that did not instruct the jury that it must unanimously acquit

appellant of the greater offense before proceeding to the lesser offense, but instead

required it to unanimously acquit him or convict him of one of the offenses charged

only after the jury had considered whether he was "guilty of any offense defined in

the charge." Therefore, the charge was proper.

Having determined that there was no error in the jury charge, we overrule the

first part of appellant's first issue.

2. Jury Argument

In the second part of his first issue, appellant argues that the trial court erred

in permitting the State to make an argument to the jury interpreting the instructions

in the charge as stair-step instructions that required them unanimously to convict or

acquit appellant of capital murder before considering whether he might be guilty only

of the lesser included charge of murder.

Appellant complains of part of the State's closing argument paraphrasing the

trial court's instructions to the jury, in which the State argued as follows:

[State]: You're going to see periodically in the charge

admonishments like this. If you have a reasonable doubt

thereof, you will acquit on capital murder and next

consider the lesser offense. You're going to see an

admonishment at the end of all the lessers that says if you

believe from the evidence beyond a reasonable doubt the

defendant is guilty of either capital murder or one of the

lessers, you resolve the doubt in the defendant's favor.

An admonishment to you to resolve doubt like that

in the defendant's favor is not directions for you to go back

in the jury room, talk to the 12 jurors, and when you realize

somebody else thinks maybe it's a lesser and you think it's

capital murder, that you must, absolutely, at that moment

give up and go the lesser because they disagree with you.

This is deliberations. You should go back and you

should discuss. And just because there's an initial

discussion does not mean that you automatically have to

reduce to the lowest charge. Remember how lessers work

and how you are instructed to deliberate on them. You

have to decide whether he is guilty or not guilty of capital

murder first. If you have a reasonable doubt, then you

must acquit him of capital murder. And remember, it's an

individual deliberation. If you believe he's guilty of

capital murder, then that is your deliberation. And all 12

of you, in order to get to a lesser offense and start

deliberating about that, you are told in that charge--

[Appellant]: Objection as to any instructions at this point as to how to

deliberate. That's outside the charge .

[Court]: Just restate your argument. That's overruled .

[State]: Yes, ma'am. That charge instructs you that you must first

deliberate on the higher offense and only if, effectively

only if you acquit of capital murder do you then consider

the next offense of felony murder. And only if you acquit

of felony murder do you go down to the next. The bottom

line is when you go back there to deliberate and you

believe beyond a reasonable doubt that [appellant] intended

to kill one of those two men and he did kill [the

complainant] while he was trying to commit a robbery, he

is guilty of capital murder and that is it. You do not

deliberate about any of and do not discuss the lessers at all.

(emphasis added).

Appellant argues that the State introduced a unanimity requirement into its

statement of the law and that the trial court erred in failing to sustain his objection to

the State's misstatement of the law and thus deprived him of his constitutional right

to due process by requiring him to mount a successful defense to capital murder

before considering the lesser included charge of felony murder or any other lesser

included charge. He argues that the State's argument violated the rule set forth in

Apprendi that it is a violation of constitutional due process for a state legislature to

remove from a jury the assessment of facts, other than the fact of prior conviction,

that increase the prescribed range of penalties to which a defendant is exposed. See

530 U.S. at 490 , 120 S. Ct. at 2362-63 . Appellant contends that the State's jury

argument lessened the burden of proof required for the jury to convict appellant of the

greater offense of capital murder because the jurors could not compare evidence in

support of that offense with the evidence in support of felony murder, focusing on the

distinguishing elements. See id.

Improper jury argument

To be permissible, jury argument must fall within one of four areas: (1)

summation of the evidence; (2) reasonable deduction from the evidence; (3) response

to argument of opposing counsel; or (4) plea for law enforcement. Brown v. State ,

270 S.W.3d 564, 570 (Tex. Crim. App. 1990). "It is not error for the State to quote

or paraphrase the jury charge, even if the charge presents a negative instruction to the

panel." Whiting v. State , 797 S.W.2d 45, 48 (Tex. Crim. App. 1990). However,

argument that misstates the law or is contrary to the court's charge is improper. Id. ;

Burke v. State , 652 S.W.2d 788, 790 (Tex. Crim. App. 1983); Grant v. State , 738

S.W.2d 309, 311 (Tex. App.--Houston [1st Dist.] 1987, pet. ref'd). By overruling

the defense's objection to the prosecution's misstatement of the law, a trial court puts

the stamp of approval on the prosecutor's misstatement of the law. See Griffin v.

State , 779 S.W.2d 431, 434 (Tex. Crim. App. 1989) ; Burke , 652 S.W.2d at 790 ; Lee

v. State , 971 S.W.2d 130, 131 (Tex. App.--Houston [14th Dist.] 1998, pet. ref'd).

Here, the State paraphrased the jury instruction correctly by telling the jurors

that, while they had to decide whether appellant was "guilty or not guilty of capital

murder first," if they had a reasonable doubt they had to acquit him of capital murder,

"[a]nd remember, it's an individual deliberation." The State then stated, "And all 12

of you, in order to get to a lesser offense and start deliberating about that, you are told

in that charge--." Appellant timely objected "as to any instructions at this point as

to how to deliberate. That's outside the charge." While the trial court overruled

appellant's objection, it also instructed the State to restate its argument. After the

court's admonishment to "restate your argument," the State did not finish its

statement to the jurors as to how to deliberate or introduce a unanimity requirement

into the charge. As appellant noted in his brief, the State's closing argument tracked

the language of the trial court's charge, a charge that the Court of Criminal Appeals

approved in Barrios .

We hold that the trial court did not err in overruling appellant's objection to the

State's jury argument.

We overrule appellant's first point of error.

Factual Sufficiency

In his second point of error, appellant argues that the evidence presented at trial

was factually insufficient to sustain his conviction because the evidence failed to

prove appellant's intent to kill the complainant.

Standard of Review

Evidence is factually insufficient to support the verdict if it is clearly wrong or

manifestly unjust or against the great weight and preponderance of the evidence.

Rollerson v. State , 227 S.W.3d 718, 724 (Tex. Crim. App. 2007) . A factual

sufficiency review involves three ground rules. Lancon v. State , 253 S.W.3d 699,

704 (Tex. Crim. App. 2008). First, we must recognize that a jury has already passed

on the facts, and we must accord the jury the proper deference to avoid substituting

our judgment for that of the jury. Id. at 704-05 (citing Clewis v. State , 922 S.W.2d

126 (Tex. Crim. App. 1996)). Second, where we find the facts determined by the jury

to be insufficient to affirm a conviction, we must clearly lay out and explain how the

evidence supporting the verdict is too weak on its own, or how contradicting evidence

greatly outweighs evidence supporting the verdict. Id. at 705. Finally, we view all

of the evidence in a neutral light when conducting this review. Id. We may only set

aside a verdict where the evidence supporting the verdict is so weak as to render the

verdict clearly wrong or manifestly unjust. Id. (citing Cain v. State , 958 S.W.2d 404,

406 (Tex. Crim. App. 1997)).

Capital Murder

A person commits capital murder if he intentionally or knowingly causes the

death of an individual and intentionally commits the murder in the course of

committing or attempting to commit kidnaping, burglary, robbery, aggravated sexual

assault, arson, or obstruction or retaliation. Tex. Penal Code Ann. §§ 19.02 (b)(1),

19.03(a)(2) (Vernon 2003 & Supp. 2008); Dominguez v. State , 125 S.W.3d 755, 761

(Tex. App.--Houston [1st Dist.] 2003, pet. ref'd). A person commits robbery if, in

the course of committing theft and with intent to obtain or maintain control of the

property, he intentionally, knowingly, or recklessly causes bodily injury to another,

or intentionally or knowingly threatens or places another in fear of imminent bodily

injury or death. Tex. Penal Code Ann. § 29.02 (a) (Vernon 2003); Dominguez , 125

S.W.3d at 761 . A deadly weapon is a firearm or anything manifestly designed, made,

or adapted for the purpose of inflicting death or serious bodily injury, or anything that

in the manner of its use or intended use is capable of causing death or serious bodily

injury. Tex. Penal Code Ann. § 1.07 (17) (Vernon Supp. 2008); see Wright v. State ,

591 S.W.2d 458, 459 (Tex. Crim. App. 1979) (holding that evidence defendant

pointed "gun," "pistol," or "revolver" at complainant was sufficient to prove use of

"deadly weapon").

"The distinguishing element between felony murder and capital murder is the

intent to kill." Fuentes v. State , 991 S.W.2d 267, 272 (Tex. Crim. App. 1999). Intent

is most often proven through the circumstantial evidence surrounding the crime.

Hernandez v. State , 819 S.W.2d 806, 810 (Tex. Crim. App. 1991), overruled on other

grounds , Fuller v. State , 829 S.W.2d 191 (Tex. Crim. App. 1992); Dominguez , 125

S.W.3d at 761 . A jury may infer intent from any facts that tend to prove its existence,

such as the acts, words, and conduct of the defendant. Hernandez, 819 S.W.2d at

810 ; Beltran v. State , 593 S.W.2d 688, 689 (Tex. Crim. App. 1980); Dominguez , 125

S.W.3d at 761 . Additionally, intent to kill may be inferred from the use of a deadly

weapon, unless it would not be reasonable to infer that death or serious bodily injury

could result from the use of the weapon. Jones v. State , 944 S.W.2d 642, 647 (Tex.

Crim. App. 1996); Dominguez , 125 S.W.3d at 762 (holding evidence permitted

inference of intent to kill when defendant and other members of his gang planned to

rob person walking alone at night, and, in course of theft or attempted theft of

complainant, defendant retrieved loaded shotgun from car trunk and shot complainant

in abdomen, resulting in complainant's death). When a deadly weapon is fired at

close range, and death results, the law presumes an intent to kill. Childs v. State , 21

S.W.3d 631, 635 (Tex. App.--Houston [14th Dist.] 2000, pet. ref'd).

Here, the jury was charged with the law on transferred intent. Transferred

intent occurs when 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. Tex.

Penal Code Ann § 6.04(b)(2) (Vernon 2003).

The State presented testimony from Boutte that appellant and his accomplice

stood on the sidewalk outside an illegal gaming room and waited for Boutte to enter

it. Boutte testified that, when he gained entry, appellant tried to push him into the

gaming room. He resisted and held appellant outside the door of the gaming room.

Appellant then reached through the opening in the door and pointed a gun at him.

Boutte testified that, as the struggle continued, appellant fired one shot. Appellant

then paused for two seconds and fired another shot, striking the complainant in the

abdomen and killing him. Boutte testified that appellant fired the gun "more than two

times." The State also presented testimony from Davis. Davis testified that, during

the struggle with Boutte, appellant pulled a gun out of his pocket and placed it

through the door frame with his right arm. Appellant fired the gun once, paused for

two seconds, and fired the gun again. Davis testified that he pulled appellant's right

arm out of the door frame after the second shot. He and appellant then ran from the

scene.

The jury was free to infer that appellant intended to kill either Boutte or the

complainant when he pointed the gun at Boutte and fired the shots into the gaming

room. See Jones , 944 S.W.2d at 647 ; Childs , 21 S.W.3d at 635 ; see also Tex. Penal

Code Ann § 6.04(b)(2). We conclude that the evidence of appellant's intent to kill

was not so weak as to render the verdict clearly wrong or manifestly unjust. See

Lancon , 253 S.W.3d at 704-05 . We hold that the evidence presented to the jury was

factually sufficient to prove that appellant had the intent to kill the complainant. See

id. ; Dominguez , 125 S.W.3d at 761-62 .

We overrule appellant's second point of error.

Conclusion

We affirm the judgment of the trial court.

Evelyn V. Keyes

Justice

Panel consists of Justices Keyes, Hanks, and Bland.

Publish. Tex. R. App. P. 47.2(b).

1.

See Tex. Penal Code Ann. § 19.03 (a)(2) (Vernon Supp. 2008) ("A person commits

an offense if he commits murder as defined under Section 19.02(b)(1) [and] the

person intentionally commits the murder in the course of committing or attempting

to commit kidnaping, burglary, robbery, aggravated sexual assault, arson, obstruction

or retaliation, or terroristic threat . . . .").