Earnest Ray Applin v. State

11th Court of Appeals Eastland, Texas Opinion Ernest Ray Applin Appellant Vs. No. 11-04-00038-CR -- Appeal from Jones County State of Texas Appellee Ernest Ray Applin, appellant, appeals the conviction of attempted murder. TEX. PEN. CODE ANN. § 15.01 (Vernon 2003). The jury assessed punishment at confinement for 15 years. Appellant contends in two points of error that the evidence is legally and factually insufficient to support his conviction. Specifically, appellant argues in two points of error that the evidence was legally and factually insufficient to show that appellant attempted to ignite gasoline that he had thrown on the victims. We affirm. Standard of Review In order to determine if the evidence is legally sufficient, we must review all of 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664, 667 (Tex.Cr.App.2000). To determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak that the verdict is clearly wrong and manifestly unjust or whether the evidence contrary to the verdict is so strong that the beyond-a-reasonable-doubt burden of proof could not have been met. Zuniga v. State, 144 S.W.3d 477 (Tex.Cr.App.2004); Ross v. State, 133 S.W.3d 618 (Tex.Cr.App.2004); Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Cr.App.2003); Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Cr.App.2002); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Cr.App.2000); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996). The jury, as the trier of fact, was the sole judge of the credibility of the witnesses and of the weight to be given to their testimony. TEX. CODE CRIM. PRO. ANN. arts. 38.04 & 36.13 (Vernon 1979 & 1981). Deference is given to the jury verdict, as well as to determinations involving the credibility and demeanor of witnesses. Cain v. State, supra at 407. Evidence at Trial Appellant lived with Jessica Woodard and their baby girl, Brooklyn Woodard. On the morning of August 16, 2002, appellant woke Woodard up, told her that he was going to kill her, and accused her of stealing money from him. Appellant then abruptly left the house. After approxi-mately 30 minutes, appellant returned home with a jar of gasoline and a lighter. Woodard cried while she attempted to convince appellant that she did not steal his money. She continued to try to calm appellant without success. Appellant then threw the gasoline on Woodard and Brooklyn. The gasoline doused Woodard’s T-shirt and wet Brooklyn’s hair. Appellant turned away from Woodard and began working the lighter. Upon seeing appellant with the lighter, Woodard hit appellant in the head with the jar and ran out of the house to the police station. Analysis Appellant argues that the jury could not find him guilty of attempted murder because the State did not prove that appellant actually attempted to ignite the gasoline. The court’s charge, which followed the indictment, required the State to prove that appellant committed the offense “by putting gasoline on [Woodard], and attempting to ignite [the] same.” Appellant states that the “overwhelming majority of [Woodard’s] testimony supports a conclusion that Appellant did not attempt to ignite the gasoline before [she and Brooklyn] ran from the house.” This is not the case. Woodard was the only witness who testified to appellant’s attempt to ignite the fire. Her testimony was that appellant had a jar of gasoline in one hand and a lighter in his pocket. Appellant threw the gasoline on Woodard and Brooklyn. Appellant then turned away from them as he wadded up a piece of paper and “was fixing to light it.” Although Woodard testified that she did not actually see appellant ignite the lighter, she also testified that appellant said he was going to “set [them] afire.” Woodard further testified that appellant said he was going to “burn us up.” Upon cross-examination, Woodard stated that she did not see appellant actually light the fire because “I didn’t give him time to flick the lighter. I picked up the jar and threw it before he had time to even flick it.” There was no testimony to contradict Woodard’s account of what occurred that morning. The jury, as the trier of fact, was the sole judge of the credibility of the witnesses and of the weight to be given to their testimony. Articles 38.04 & 36.13. The jury reasonably concluded that appellant attempted to ignite the gasoline that he threw on Woodard and Brooklyn. The record reflects that appellant’s acts constituted more than mere preparation that tended to effect the commission of the offense. See Cody v. State, 605 S.W.2d 271 (Tex.Cr.App.1980). The evidence was legally sufficient because a rational trier of fact could have found that appellant attempted to ignite the gasoline he threw on Woodard and Brooklyn. The evidence, taken in a neutral light, was factually sufficient because the evidence was not so weak as to render the conviction clearly wrong and manifestly unjust and because the contrary evidence was not so strong that the beyond-a-reasonable-doubt burden of proof could not have been met. We overrule appellant’s first and second points of error. This Court’s Ruling The judgment of the trial court is affirmed. TERRY McCALL JUSTICE January 6, 2005 Do not publish. See TEX.R.APP.P. 47.2(b). Panel consists of: Arnot, C.J., and Wright, J., and McCall, J.