Opinion
NO. 01-16-00937-CR
07-03-2018
ANDREW KIZER, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 263rd District Court Harris County, Texas
Trial Court Case No. 1466657
MEMORANDUM OPINION
A jury convicted appellant, Andrew Kizer, of capital murder, and the trial court sentenced him to life without parole in the Texas Department of Criminal Justice, Institutional Division. In his first two points of error, appellant contends that the prosecutor made improper comments during closing arguments to the jury. In his third point of error, he contends that the evidence is insufficient to support his conviction for capital murder. We affirm.
Background
On April 25, 2015, Brandon Fries and Michael Sam-Sin-Nowlin were at their apartment in Katy, Texas with several friends, including the complainant, Christian Burke. Around 2:00 p.m., Fries and Sam-Sin-Nowlin went to see a movie with Burke, Reagan Hughes, Tyler Clark, John Fox, and Richie Skinner. After the movie, Fries and Sam-Sin-Nowlin returned to their apartment. Fries testified that he and Sam-Sin-Nowlin smoked marijuana before and after the movie.
That evening, Fries, Sam-Sin-Nowlin, and Sam-Sin-Nowlin's girlfriend, Nadine Moussa, went to a party together where they drank and smoked marijuana. Hughes, Fox, and Skinner arrived at the party later. Around 10:30 p.m., Fries, Sam-Sin-Nowlin, Moussa, and Hughes returned to the apartment and Burke joined them. Fox and Skinner returned to the apartment before leaving to go to a concert. Fries testified that he did not see anyone lock the front door after they left.
Fries, Sam-Sin-Nowlin, and Burke began listening to music and smoking marijuana. Hughes, who had drunk too much, got sick in Sam-Sin-Nowlin's bathroom, and Moussa was asleep in Sam-Sin-Nowlin's bedroom. Fries then saw the front door open and two Caucasian men dressed in black and wearing ski masks entered the apartment. He testified that the taller gunman, who had a shotgun and a revolver, pointed the revolver at them, and that the shorter gunman was armed with a small black pistol. Once inside the apartment, the taller gunman approached Sam-Sin-Nowlin, pointed the revolver at him, and told him, "we're not fucking joking." Sam-Sin-Nowlin grabbed the taller gunman and started wrestling with him on the floor, and Fries put the shorter gunman in a chokehold and pulled him to the ground to prevent him from shooting Sam-Sin-Nowlin. Fries testified that when he looked over at Sam-Sin-Nowlin, the taller gunman pointed the revolver at him, within a couple of feet of his face, and said, "Let go of him or I'm going to shoot you." Fries testified that the gunman shot the revolver "right after that" and the bullet went through Fries's left ear. Fries released the shorter gunman and ran out the front door. Fries then called 911 and went to his father's apartment in the same complex while he waited for the police to arrive.
Fries testified that he was able to see the color of their skin because they were not wearing gloves.
Fries testified that neither he nor Sam-Sin-Nowlin gave consent to the gunmen, one of whom was later identified as appellant, to enter their apartment. He also testified that he had never seen the zip ties that investigators discovered in the apartment. Fries thought that the gunmen were likely trying to steal the television that he and Sam-Sin-Nowlin had recently purchased.
Fries testified that he, Sam-Sin-Nowlin, and Burke obtained marijuana from a friend in Colorado, and that Sam-Sin-Nowlin stored his marijuana at the apartment. According to Fries, they did not sell marijuana to strangers, but only to friends who then supplied smaller amounts to other people. Fries testified that he did not know appellant and had never seen him before that night.
Sam-Sin-Nowlin testified that, on the night in question, he had been drinking and smoking marijuana at a party but that he still had his wits about him. Moussa, his girlfriend, wanted to leave the party, so they left with Fries and Hughes and returned to the apartment sometime after 10:00 p.m. Sam-Sin-Nowlin testified that Skinner and Fox also came to the apartment to hang out before leaving to go to a concert, and that Burke arrived at the apartment around 11:00 p.m. Sam-Sin-Nowlin testified that neither Fox nor Skinner had a key to the apartment, so they would not have been able to lock the door when they left, and that the front door could have been left unlocked.
While Moussa was asleep in his room, Sam-Sin-Nowlin, Fries, and Burke listened to music. Sam-Sin-Nowlin then saw two masked men open the front door and enter the apartment with guns. The taller gunman approached Sam-Sin-Nowlin, pointed a big silver revolver at him, told him to get on the ground, and said "this is not a joke." Sam-Sin-Nowlin also testified that he did not know the gunmen and that neither of them had consent to enter the apartment. Sam-Sin-Nowlin jumped up and wrestled the taller gunman to the ground. He screamed at the gunman, asked him what he wanted and begged him not to do anything, and managed to secure one of his hands. Sam-Sin-Nowlin testified that he had no control over the gunman's arm that held a firearm, and that he was not able to touch the gun. He testified that he then heard three gunshots and saw a flash. Sam-Sin-Nowlin then grabbed the gunman and slammed him into the TV stand.
Hughes came into the room and began attacking the gunman with Sam-Sin-Nowlin. Moussa then came out of Sam-Sin-Nowlin's room and began yelling and asking who the gunman was. Sam-Sin-Nowlin looked around the room and saw Burke lying on the ground. Sam-Sin-Nowlin testified that Burke had been shot but was still breathing. While the taller gunman was on the ground, Sam-Sin-Nowlin snatched the revolver from him. The gunman tried to run out of the front door, and Sam-Sin-Nowlin began hitting him on the back of the head with the revolver. Sam-Sin-Nowlin testified that the gunman was bleeding from his head as he ran away and that he saw the gunman's blood on the ground by the front door. The second gunman had already left the apartment, and Fries was no longer there. Sam-Sin-Nowlin approached Burke on the ground and saw that he had lost a lot of blood and was no longer breathing. Sam-Sin-Nowlin and Moussa called the police.
Sam-Sin-Nowlin testified that he asked Hughes to take a suitcase with marijuana from the apartment and put it in Sam-Sin-Nowlin's car. Sam-Sin-Nowlin testified that he has never owned a gun or known Fries to have one, and that he had never seen the zip ties that investigators discovered in the apartment. Sam-Sin-Nowlin testified that he had never met appellant. However, he later learned that his friend, Bar Eldar, worked out with appellant at the same gym, and that another friend, Santiago Regetti, was close friends with appellant.
Harris County Sheriff's Officer Michael Ritchie, the lead investigator assigned to the case, testified that Sam-Sin-Nowlin's mother contacted him and gave him appellant's name as a possible suspect. He testified that investigators recovered a .44 Magnum revolver and a 9 millimeter live round at the apartment where the offense occurred. Zip ties, which he testified are often used to detain occupants in home invasions, were also discovered in the apartment. The investigation revealed that the revolver Sam-Sin-Nowlin had taken from the tall gunman was registered to Della A. Kizer, appellant's paternal grandmother, and was listed as a personal item belonging to appellant's father, James Todd Kizer, in his divorce decree. Detective Ritchie also testified that phone data records showed that appellant's cell phone was near the apartment at the time of the shooting.
Darshan Phatak, the Harris County assistant medical examiner, testified that Burke was shot in the head and in the leg, and that the head injury was fatal. Jill Dupre, a Harris County firearms examiner, testified that Burke was shot in the leg with a 9 millimeter bullet from a pistol and that he was shot in the head with a bullet from the revolver recovered at the scene.
Brian Espadas, a friend of appellant's, testified that he saw appellant five days before the April 25 shooting. Appellant told Espadas that his mother had cancer, that he needed to raise $100,000 in sixty days, and that he was "probably going to have to do some fucked up shit to get the money." Espadas testified that he and appellant had planned to go to Austin together but that appellant called him on April 23 or 24 and told him that he had something he needed to do and that he would meet Espadas there.
On April 26, at approximately 2:30 a.m., appellant sent a text message to Espadas that he had been robbed and pistol whipped. He told Espadas that he was bleeding out and needed help, and asked Espadas to call him back at a different number. Espadas told appellant that he was in Austin and could not help him but that he could send someone to help appellant. Espadas testified that appellant said he would go to a hospital in Austin but that he did not want to go to a hospital in Houston because he did not want his father to find out that he had been robbed. Espadas later spoke with appellant as he was checking out of the hospital and gave appellant the address in Austin where he was staying so appellant could meet him, but appellant never showed up.
Zury Phillips, a DNA analyst at the Harris County Institute of Forensic Sciences, testified that she obtained a partial DNA profile from testing performed on a blood sample found on the hallway tile floor of the apartment. The test results showed that Sam-Sin-Nowlin, Fries, Hughes, Moussa, and Burke were excluded as sources of the DNA profile but appellant could not be excluded.
Sufficiency of the Evidence
In his third point of error, appellant contends that the evidence is insufficient to support his conviction for capital murder. Specifically, he argues that the evidence is insufficient to prove that a burglary was being committed when Burke was killed, or that appellant intended to kill Fries or Burke.
A. Standard of Review
We review appellant's challenge to the sufficiency of the evidence under the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979). See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). We examine all of the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 318-19, 99 S. Ct. at 2788-89. The jury is the sole judge of the credibility of witnesses and the weight to give testimony, and our role on appeal is simply to ensure that the evidence reasonably supports the jury's verdict. Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (en banc). The jury may reasonably infer facts from the evidence presented, credit the witnesses it chooses, disbelieve any or all of the evidence or testimony proffered, and weigh the evidence as it sees fit. See Canfield v. State, 429 S.W.3d 54, 65 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd).
"Circumstantial evidence is as probative as direct evidence in establishing guilt, and circumstantial evidence alone can be sufficient." Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016). Because fact finders are permitted to make reasonable inferences, each fact need not point directly and independently to the defendant's guilt so long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction. See id. When the record supports conflicting reasonable inferences, we presume that the fact finder resolved the conflicts in favor of the verdict, and we defer to that resolution. Cary v. State, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016); Blea v. State, 483 S.W.3d 29, 33 (Tex. Crim. App. 2016).
B. Applicable Law
The indictment charged appellant with intentionally causing the death of the complainant while in the course of committing or attempting to commit burglary of a building owned by Sam-Sin-Nowlin. A person commits murder if he intentionally or knowingly causes the death of an individual. TEX. PENAL CODE ANN. § 19.02 (b)(1) (West 2011). A person commits capital murder if he commits murder as defined under section 19.02(b)(1) and intentionally commits that murder in the course of committing or attempting to commit burglary. TEX. PENAL CODE ANN. § 19.03(a)(2) (West Supp. 2017). A person commits burglary if, without the effective consent of the owner, the person (1) enters a building, or any portion of a building, not then open to the public, with intent to commit a felony, theft, or an assault, or (2) enters a building and commits or attempts to commit a felony, theft, or an assault. TEX. PENAL CODE ANN. § 30.02(a)(1), (3) (West Supp. 2017). "Owner" means a person who has (1) title to the property, (2) lawful or unlawful possession of the property, or (3) a greater right to possession of the property than the actor. TEX. PENAL CODE ANN. § 1.07(a)(35) (West Supp. 2017).
In determining whether the evidence is sufficient to prove an intent to cause death, the jury can use common sense and may apply common knowledge and experience. See Galvan-Cerna v. State, 509 S.W.3d 398, 404 (Tex. App.—Houston [1st Dist.] 2014, no pet.). "The jury may infer intent to kill from any evidence that it believes proves the existence of that intent." Id. (citing Brown v. State, 122 S.W.3d 794, 800 (Tex. Crim. App. 2003)). A person's acts, words, and conduct are generally reliable circumstantial evidence of one's intent. See Laster v. State, 275 S.W.3d 512, 524 (Tex. Crim. App. 2009). The jury may also infer intent to kill from the use of a deadly weapon, unless it would be unreasonable to infer that death or seriously bodily injury could result from the particular use of the weapon. See Brown, 122 S.W.3d at 800-01.
C. Analysis
Appellant argues that the evidence is insufficient to support his conviction for capital murder because there is insufficient evidence to prove that a burglary was being committed when Burke was killed. In support of his argument, appellant points to the fact that there was no forced entry into the apartment. Rather, he argues, the credible evidence supports a finding that the gunmen were allowed into the apartment and that an altercation ensued, most likely over the marijuana that was stored there.
"Forced entry is not, however, an element of burglary; rather, burglary requires entry to be made without the effective consent of the owner." Jackson v. State, 424 S.W.3d 140, 148 (Tex. App.—Texarkana 2014, pet. ref'd); see TEX. PENAL CODE ANN. § 30.02 (West 2011); Ellett v. State, 607 S.W.2d 545, 549 (Tex. Crim. App. [Panel Op.] 1980); Jackson v. State, 424 S.W.3d 140, 148 (Tex. App.—Texarkana 2014, pet. ref'd). Fries testified that he did not see anyone lock the front door after Fox and Richie left the apartment to go to a concert. Sam-Sin-Nowlin testified that neither Fox nor Skinner had a key to the apartment so they would not have been able to lock the door when they left, and that the front door could have been left unlocked. Fries and Sam-Sin-Nowlin both testified that they did not know appellant and that they did not give appellant, or the other gunman, consent to enter their apartment. As the fact finder, the jury was entitled to believe Fries's and Sam-Sin-Nowlin's testimony that appellant did not have consent to enter the apartment. See Canfield, 429 S.W.3d at 65.
In closing argument, defense counsel acknowledged that "nobody is disagreeing that [appellant] was at that house that night."
Appellant also argues that no words were spoken to indicate that there was an intent to commit theft or assault when the perpetrators entered the apartment. Burglary, however, is also established with unlawful entry with an intent to commit a felony. See TEX. PENAL CODE ANN. § 30.02(a)(1). Fries testified that when the two men entered the apartment, the taller gunman holding a revolver pointed the gun at Sam-Sin-Nowlin and said, "[w]e're not fucking joking." Sam-Sin-Nowlin also testified that appellant pointed the revolver at his head and told him to get on the ground and that the men were not joking. The jury also heard testimony that the gunmen's weapons were loaded, and that zip ties, which are often used in home invasions, were found in the apartment. The jury could have reasonably inferred from these circumstances that the masked gunmen intended to commit a felony such as aggravated robbery or aggravated assault. Considering this evidence in the light most favorable to the verdict, a rational fact finder could have found beyond a reasonable doubt that appellant was committing burglary at the time Burke was killed. Jackson, 443 U.S. at 318-19, 99 S. Ct. at 2788-89.
Appellant also argues that the evidence is insufficient to support his conviction for capital murder because the evidence is insufficient to show that appellant had intent to kill. Rather, he argues, the credible evidence shows that there was a struggle between appellant and Sam-Sin-Nowlin which resulted in the weapon accidentally discharging.
The jury was instructed that "if you believe from the evidence beyond a reasonable doubt that [appellant] . . . did then and there unlawfully and intentionally or knowingly shoot a firearm at Brandon Fries, intending or knowing that death would occur to Brandon Fries, but instead missed and hit Christian Burke, causing the death of Christian Burke with the use of a deadly weapon, namely, a firearm, then you will find [appellant] guilty of capital murder, as charged in the indictment."
Fries testified that two masked men entered the apartment and that the taller gunman, who was armed with a shotgun and a revolver, pointed the revolver at them. The taller gunman then approached Sam-Sin-Nowlin, pointed the revolver at him, and told him, "we're not fucking joking." Fries testified that when Sam-Sin-Nowlin grabbed the taller gunman and started wrestling with him on the floor, Fries put the second gunman in a chokehold and pulled him to the ground to prevent him from shooting Sam-Sin-Nowlin. Fries testified that while the taller gunman and Sam-Sin-Nowlin were struggling, the taller gunman pointed the revolver at him, within a couple of feet of his face, and said, "Let go of him or I'm going to shoot you." The gunman shot immediately afterwards and the bullet went through Fries's left ear.
Sam-Sin-Nowlin testified that he screamed at the gunman, asked him what he wanted and begged him not to do anything, and managed to grab the gunman from behind and secure one of his hands. He testified that he had no control over the gunman's arm that held the firearm, and that he was not able to touch the gun. He testified that he then heard three gunshots and saw a flash.
Based on this evidence, the jury could have inferred from his use of a deadly weapon that appellant had intent to kill. Brown, 122 S.W.3d at 800-01 (noting jury may infer intent to kill from any evidence that it believes proves existence of that intent, including use of deadly weapon). Further, a person acts intentionally with regard to his conduct "or to a result of his conduct when it is his conscious objective . . . to engage in the conduct or cause the result." TEX. PENAL CODE ANN. § 6.03(a) (West 2011). The evidence, both through appellant's words and actions, showed that he consciously engaged in the conduct of shooting the revolver at Fries, conduct that resulted in Burke's death. See Laster, 275 S.W.3d at 524 (noting person's acts, words, and conduct are generally reliable circumstantial evidence of one's intent); Brown, 122 S.W.3d at 800-01. Since appellant voluntarily and consciously engaged in the conduct, he is responsible for the result. Considering this evidence in the light most favorable to the verdict, a rational fact finder could have found beyond a reasonable doubt that appellant intended to shoot the revolver during the course of this crime, which resulted in Burke's death. Jackson, 443 U.S. at 318-19, 99 S. Ct. at 2788-89.
We hold that the evidence is sufficient to support appellant's conviction for capital murder. See id. We therefore overrule appellant's third point of error.
Improper Jury Argument
In his first point of error, appellant contends that the prosecutor improperly commented on appellant's failure to testify in violation of his Fifth Amendment privilege against self-incrimination, State constitutional protections, and article 38.08 of the Texas Code of Criminal Procedure. The complained-of comment occurred when the prosecutor stated, during closing argument, "They can't stand up here and admit he was there to rob those people." In his second point of error, appellant argues that the prosecutor made a racially based statement in violation of his federal due process and equal protection rights under the Fourteenth Amendment and his state due course of law rights pursuant to Article I, section 19 of the Texas Constitution. Specifically, appellant complains of the prosecutor's statement that "If [you] look at him, he's a rich white kid."
Commenting on a defendant's failure to testify violates the freedom from being compelled to testify against himself contained in the Fifth Amendment of the United States Constitution and Article I, § 10 of the Texas Constitution. See U.S. CONST. amend. XIV; TEX. CONST. art. I, § 10. Bustamante v. State, 48 S.W.3d 761, 764 (Tex. Crim. App. 2001).
"The Constitution prohibits racially biased prosecutorial arguments." McCleskey v. Kemp, 481 U.S. 279, 309 n.30, 107 S. Ct. 1756, 1776 (1987) (citing Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S. Ct. 1868, 1871 (1974)); see Agbogwe v. State, 414 S.W.3d 820, 828 (Tex. App.—Houston [1st Dist.] 2013, no pet.) ("[R]acially prejudicial remarks and appeals to racial prejudice have no place in a courtroom.").
"To preserve error in prosecutorial argument, a defendant must pursue to an adverse ruling his objections to jury argument." Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). "When complaining about improper jury argument, the proper method of pursuing an objection to an adverse ruling is to (1) object, (2) request an instruction to disregard, and (3) move for a mistrial." Gonzalez v. State, 522 S.W.3d 48, 64 (Tex. App.—Houston [1st Dist.] 2017, no pet.); see also TEX. R. APP. P. 33.1(a). Failure to object to a jury argument or failure to pursue an adverse ruling to a defendant's objection to a jury argument forfeits a defendant's right to complain about the argument on appeal. See Threadgill v. State, 146 S.W.3d 654, 670 (Tex. Crim. App. 2004) (en banc) (concluding defendant forfeited improper jury argument complaint on appeal by failing to object).
Here, appellant did not object to the complained-of portions of the State's closing argument, request an instruction to disregard the comment, or move for a mistrial after the comments were made. See Archie, 221 S.W.3d at 698-99; Cook v. State, 858 S.W.2d 467, 473 (Tex. Crim. App. 1993) (en banc). Appellant has failed to preserve for our review his complaints regarding the State's closing argument. Accordingly, we overrule his first and second points of error.
Conclusion
We affirm the trial court's judgment.
Russell Lloyd
Justice Panel consists of Justices Keyes, Brown, and Lloyd. Do not publish. TEX. R. APP. P. 47.2(b).