Chester v. State

Full title: RONALD CARNELL CHESTER, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Jul 27, 2004

No. 05-04-00047-CR (Tex. App. Jul. 27, 2004)

Opinion

No. 05-04-00047-CR

Opinion issued July 27, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-25552-RU. Affirmed as Modified.

Before Chief Justice THOMAS and Justices O'NEILL and LAGARDE.¹

1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.

OPINION

LAGARDE, Justice.

After a jury found appellant Ronald Carnell Chester guilty of the third-degree offense of deadly conduct, the trial court assessed his punishment at four years' imprisonment.² In two points of error, appellant contends the evidence is factually insufficient to support his conviction and the judgment should be modified to delete a fine that was not orally pronounced in his presence. After reviewing the record, we conclude the evidence is factually sufficient to support appellant's conviction; however, we further conclude the record reflects the fine was not pronounced in appellant's presence. Accordingly, we modify the trial court's judgment to delete the fine. We affirm the judgment as modified. Evidence at trial reflects that on December 22, 2002, during the early afternoon, gunshots were fired in the direction of Minnie Armstrong's house on Cherrywood. Armstrong was not home at the time the shots were fired; however, several family members and friends were in the house. A bullet hole found in her mailbox after the shooting was not present before the date of the shooting. Appellant, who had once dated Armstrong's niece, had visited her house often and knew children lived there. Appellant's grandmother lived down the street from Armstrong. Myrandle Rogers is Armstrong's 26-year-old grandson who was visiting his grandmother at her home on the date of the shooting. Rogers had known appellant for approximately thirteen years. Rogers and appellant had once dated the same woman, Lakeisha Abrams, and did not like each other. Although Rogers had stopped dating Abrams, he continued to be her friend and to talk to her, which seemingly appellant did not like. Appellant and Rogers had been having problems over this for about two years. There was nothing different going on between Rogers and Abrams on the date of the offense; however, apparently Abrams had recently told appellant she did not want anything more to do with him. On the date of the offense, while driving to Armstrong's house, Rogers passed appellant's grandmother's house. Appellant was outside his grandmother's house working on a car. When Rogers arrived at Armstrong's house, he stood outside talking with neighbors, his cousin Amanda Mike, and his friend Andrea Jackson.³ Rogers heard appellant coming down the street "talking noise." Appellant was saying "What's up?"; "What you going to do now?"; and "You ain't got your boys with you." Apparently Amanda was the first one to notice appellant had a gun. When Amanda drew Rogers's attention to appellant, Rogers saw appellant holding a gun behind his back. Amanda went inside Armstrong's house and Rogers followed. As soon as Rogers stepped inside Armstrong's house, he heard a gunshot, and a bullet hit the window. Rogers looked out the window and saw appellant fire four more shots. One shot hit the mailbox that was attached to the house, another gunshot hit the window, and two gunshots were fired in the direction of Rogers's car. During the shooting, there were three other adults and three children in the house. After appellant stopped shooting, Rogers saw someone he knew as "Gator" pick up appellant in his car, drive down the street, and drop appellant off at his grandmother's house. Appellant got out of Gator's car, got into his own car, and drove away. Seven-year-old Keyera West testified she was at Armstrong's home with Armstrong's granddaughters sitting on the couch watching a movie on the date of the shooting. The girls were told to get on the ground and crawl to a bedroom. Keyera, however, did not understand what was happening and did not hear any gunshots. Appellant is Keyera's cousin and she did not see him at Armstrong's house that day. At the time of trial Amanda Mike was serving a jail term for unauthorized use of a motor vehicle committed a year earlier. She testified that on the date of the shooting she was outside Armstrong's house talking to Rogers and her friend Andrea Jackson. She saw appellant approaching the group with a handgun. After warning Rogers appellant was approaching, Amanda went inside. Amanda was inside the house when the shots were fired and did not see appellant shooting; however, she called the police while the shots were being fired. Morris Randle, one of Armstrong's neighbors, testified he was inside his home at the time of the shooting. When Randle returned home from his uncle's house, he spoke to some people in Armstrong's yard on the way inside his house. Once inside, he took some medication and went to bed. He was on his bed when he heard a couple of gunshots. After the first two gunshots, Randle rolled off his bed onto the floor, then heard another gunshot. Randle waited approximately three minutes after the last shot was fired before he looked out his bedroom window and saw appellant walking away from Armstrong's home. Randle had not seen appellant on the street when he arrived home ten to fifteen minutes earlier, nor did he see appellant with a handgun as appellant walked away from Armstrong's home. Twenty-five-year-old Andrea Jackson testified she had two children, one of whom was seven-year-old Keyera West. Although she was not related, Armstrong was "like family" to her and they hung out at Armstrong's house. On the date in question, Jackson was outside Armstrong's home talking to Rogers and Amanda. Rogers had been there about five minutes when Jackson saw appellant coming down the street "passing words back and forth." As appellant got closer, Jackson saw he had a handgun in his right hand As appellant talked, he moved the gun; he was not holding the gun still. Jackson yelled to appellant there were children in the house. Getting no response from appellant, she yelled again and told appellant Keyera was inside. Appellant and Keyera are cousins. Appellant told her to go in the house. Jackson went in the house, grabbed the girls and took them into a back room. She heard three or four more shots, during which she realized Amanda was on the telephone calling the police. Rogers came in the house just after she did and he was in the living room when the shots were fired. Appellant was the only one she had seen with a gun before she went inside. After the shooting ended, Jackson took Keyera home and never spoke to the police. She was scared because she did not know what was going to happen. She thought she had an outstanding warrant, so she just took her daughter and went home. She did not really want to testify at trial. At the time of trial she was on probation for theft under $50. She felt like she was "in the middle" because she was both appellant's and Rogers's friend. Consequently, she had not talked to anyone, except Armstrong, about the shooting. She did not see anyone firing the shots, she only heard them. Clifton West, appellant's cousin and Keyera's father, who did not like appellant, testified appellant called him shortly after the shooting and apologized for the incident. Garland police officer J.S. Jessee testified he responded to a "shooting" call at Armstrong's house on the date in question. Jessee spoke with Rogers, Amanda, and others. About four individuals identified appellant as the shooter. The crime scene was secured and certain physical evidence was recovered. Jessee arrested appellant on January 2, 2003. Garland forensic investigator Stephanie McCall testified three fresh, undamaged bullet casings from a .40-caliber Smith Wesson were recovered at the scene on Hickory Street in the middle of the street in front and between two houses. Additionally, two bullet holes were found in the right side of the house-one behind the mailbox and one toward the window. Projectiles were also recovered-one behind the mailbox and one on the window ledge by the lock. No gun was ever recovered. The physical evidence was sent to the Southwestern Institute of Forensic Science (SWIFS) on October 15, 2003 to be processed for fingerprints; however, none was recovered. As far as McCall knew, the evidence was still at SWIFS; however, there was nothing to connect the casings to the projectiles because no weapon was ever recovered. The casings were found at a location in the street consistent with someone firing from near a bush, as witnesses at the scene had indicated. Appellant's father, Lowell West, testified for the defense that Clifton West never mentioned to him that appellant had called him, admitted the offense and apologized for it. Lowell was a little shocked Clifton would not mention appellant's telephone call to him.

2 Tex. Pen. Code Ann. § 22.05(b)(2), (e) (Vernon 2003). The written judgment actually recites appellant's punishment as four years' confinement and a fine of $l,000; however, the punishment orally announced in appellant's presence was four years. Modification of the judgment to delete the fine is the subject of appellant's second point of error.

3 During Rogers's initial testimony he did not mention Andrea Jackson being present; however, after Andrea Jackson testified, Rogers was recalled and testified he did not mention Jackson being there because she asked him not to because she was scared to testify. Rogers testified that everything else he had told the jury, however, was the truth.

FACTUAL SUFFICIENCY

In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light, favoring neither party. See Johnson v. State, 23 S.W.3d 1, 6-7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). We must determine whether, considering all of the evidence in a neutral light, a jury was rationally justified in finding guilt beyond a reasonable doubt. See Zuniga v. State, No. 539-02, 2004 WL 840786, at *7 (Tex.Crim.App. Apr. 21, 2004). Evidence is insufficient (1) when considered by itself, evidence supporting the verdict is too weak to support a finding of guilt beyond a reasonable doubt, or (2) when weighing all the evidence, the contrary evidence is strong enough that the "beyond a reasonable doubt" burden of proof has not been met. See id. The jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Fuentes v. State, 991 S.W.2d 267, 271 (Tex.Crim.App. 1999). Reconciliation of conflicts in the evidence is within the exclusive province of the trier of fact. Whitaker v. State, 977 S.W.2d 595, 598 (Tex.Crim. App. 1998). We must afford deference to the jury's determinations, particularly those concerning the weight and credibility of the evidence. See Zuniga, 2004 WL 840786 at *4. We may disagree with the jury's finding only when the record clearly indicates that such a step is necessary to prevent a manifest injustice. See Johnson, 23 S.W.3d at 9. A jury's verdict is not manifestly unjust or clearly wrong merely because the jury resolved conflicting views of the evidence in favor of the State. See McGarity v. State, 5 S.W.3d 223, 232 (Tex. App.-San Antonio 1999, no pet.). If reasonable minds could differ with regard to the conclusions to be drawn from the evidence, the conviction should be affirmed. See Scott v. State, 934 S.W.2d 396, 399 (Tex. App.-Dallas 1996, no pet.). In relevant part, the indictment alleged that appellant . . . on or about the 21^st day of December A.D., 2002 in the County of Dallas and said State, did then and there knowingly discharge a firearm, a deadly weapon, at and in the direction of a habitation of Minnie Armstrong, and defendant was then and there reckless as to whether the habitation was then occupied, in that defendant discharged the firearm, a deadly weapon, during the daytime hours into a habitation. . . . A person commits deadly conduct if he knowingly discharges a firearm at or in the direction of a habitation and is reckless as to whether the habitation is occupied. See Tex. Pen. Code Ann. § 22.05(b)(2) (Vernon 2003). An offense under this section is a third-degree felony. See id. § 22.05(e). In his first point of error, appellant contends the evidence is factually insufficient to support his conviction.⁴ Appellant claims that none of the "impartial" witnesses saw him with a handgun and none of the witnesses actually saw him fire at the house. Appellant argues the contrary evidence regarding his identity as the shooter is strong enough to defeat the "beyond a reasonable doubt" burden of proof required to find guilt. However, appellant does not point to specific "contrary evidence." At the close of the State's case at trial, appellant called only one defense witness: Lowell West, appellant's father and Clifton West's cousin. Lowell West testified that Clifton West had never mentioned to him that appellant had called him, admitted the shooting and apologized for it. He had seen Clifton several times since the incident and thought it was unusual that he had not mentioned the conversation. Other than presenting Lowell West's testimony, the defense relied on its cross-examination of the State's witnesses. There was some conflicting evidence in this case from the State's witnesses about who was present and where they were at specific times, who saw appellant with a handgun, who saw him firing the handgun, who was in a position to have seen appellant shooting, and by what means appellant left Armstrong's yard. Appellant seeks to have this Court determine which of the witnesses were more credible and to give their testimony more weight. The State responds that appellate courts may not find facts or substitute its judgment for that of the jury. The resolution of conflicts in the evidence is a matter for the fact-finder, not this Court. Whitaker, 977 S.W.2d at 598. After reviewing the record and viewing all of the evidence earlier set out in this opinion under the appropriate standard, we conclude a jury could rationally have found appellant guilty beyond a reasonable doubt of the offense of deadly conduct. See Zuniga, 2004 WL 840786, at *7. We must afford deference to the jury's factual determinations. Johnson, 23 S.W.3d at 9. We, therefore, overrule appellant's first point of error.

REFORMING THE JUDGMENT

In his second point of error, appellant contends the trial court's judgment should be modified to delete the $1000 fine because the trial court did not orally pronounce the fine in his presence at sentencing. The State agrees the written trial court judgment should be reformed to reflect only the punishment orally pronounced by the trial court in appellant's presence-four years' imprisonment. Appellant is entitled to have his sentence, including the assessment of any fines, pronounced in his presence. See Tex. Code Crim. Proc. Ann. art. 42.03, § 1(a) (Vernon Supp. 2004). When there is a conflict between the oral pronouncement of the sentence and the written judgment, the oral pronouncement controls. See Taylor v. State, 131 S.W.3d 497, 500 (Tex.Crim. App. 2004). The reporter's record shows that the judge did not orally pronounce a fine in appellant's presence at sentencing. Thus, the judgment incorrectly includes a $1000 fine. We sustain appellant's second point of error. We have the power to modify incorrect judgments when we have the necessary information to do so. See Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd); see also Tex.R.App.P. 43.2(b). Accordingly, we modify the trial court's judgment to delete the $1000 fine. As modified, we affirm the trial court's judgment.