Joseph Arceneaux v. State

Affirmed and Memorandum Opinion filed August 15, 2006 Affirmed and Memorandum Opinion filed August 15, 2006. In The Fourteenth Court of Appeals ____________ NO. 14-05-00525-CR ____________ JOSEPH ARCENEAUX, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 232nd District Court Harris County, Texas Trial Court Cause No. 964,048 M E M O R A N D U M  O P I N I O N A jury found appellant, Joseph Arceneaux, guilty of murder and assessed punishment at thirty years= confinement. In one point of error, appellant asserts the evidence is factually insufficient to support his conviction. We affirm. Summary of Evidence The tension between Terrence Wimbley (AWimbley@) and appellant began one or two weeks before Wimbley=s death, when the two men were involved in a fist fight at DT=s, a pool hall. Appellant=s brother, Roy Arceneaux (ARoy@), had been gambling with three other menCWimbley, ANugget,@ and ARick.@ Roy called appellant and asked him to come to the pool hall. Appellant arrived with another friend, ACed.@ Appellant bet with Wimbley on a game of pool between Roy and ANugget.@ Roy lost, and appellant paid Wimbley $50.00. Appellant testified Wimbley became angry after appellant suggested he and Wimbley bet on a game between themselves. Roy testified Wimbley stood at the bar and Asaid several things@ for about thirty minutes, threatening appellant. Wimbley finally ran up like he was going to hit appellant, but appellant hit Wimbley twice. Wimbley pulled out a knife, and then appellant pulled out a knife. Roy broke up the fight, and Wimbley told appellant he was going to Aget his.@ Wimbley called his friend Ron Green (AGreen@), who arrived shortly. Everyone but appellant walked outside behind the pool hall, and Roy listened as Wimbley and Green talked; Roy felt tense at what they were saying. The group then walked to where appellant stood with his cousin, Odrun Fontenot (AFontenot@), in front of DT=s. Appellant asked Wimbley to Asquash this@ or, if Wimbley had a problem, to Ago in the back and we can get it over with.@ Appellant testified Wimbley said he could not do that, and that Wimbley would Acatch me like he want me.@ Appellant believed this meant Wimbley would get his revenge. It was common knowledge around the neighborhood that appellant had Apunked@ Wimbley at DT=s. When asked whether Wimbley was upset about the rumors going around, Wimbley=s friend Green testified, AWouldn=t you be?@ One or two weeks later, on October 4, 2003, appellant and his cousin, Murphy Randall (ARandall@), went to a gun show, where Randall purchased a knife. Leundre Prescott invited appellant to watch a Pay-Per-View boxing match between Evander Holyfield and James Toney that night at his grandmother, Vivian O=Quinn=s, house. Ms. O=Quinn was away from home that evening. Appellant arrived at Ms. O=Quinn=s house at 7:00 p.m.; he had a 40-caliber, semi-automatic pistol concealed in his waistband.[1] Although appellant testified he carried the gun because of Wimbley=s threats, he also said he did not expect to see Wimbley that evening. There is evidence Randall brought the knife he purchased earlier that day. During the boxing match, appellant and Green were the only people rooting for James Toney to win, and were high-fiving each other. When the fight was over, most people went outside, into the garage and driveway in front of the house. Ms. O=Quinn=s home is positioned at the end of a cul-de-sac. The two-car garage has two large garage doorsConly the right side door was open that night.[2] A small concrete walkway leads up from the driveway to the front door of the house, to the right of the garage. There were four cars in the driveway on October 4th, including Kedrick Riley=s work truck (parked at the top of the drive on the right-hand side, in front of the opened garage door). Appellant=s Ford Expedition was parked to the right of the driveway on the street, in front of Ms. O=Quinn=s mailbox. Ron Green parked his car on the street to the left of the driveway. Leosha Prescott and Marcus Cambric parked their cars on the street around the cul-de-sac, one or two houses down from Ms. O=Quinn=s. Wimbley arrived late and parked Acaddy corner@ at the end of the driveway, in front of and partially blocking appellant=s Expedition. Ron Green, Leosha Prescott, Terrence Porter, and Kedrick Riley testified for the State. Green and Leosha Prescott admitted they had been Wimbley=s friends. Riley met Wimbley in 1998. Appellant and his brother, Roy, testified for the defense.[3] Leosha Prescott testified Wimbley arrived late, when it was already dark outside. Leosha Prescott said Wimbley was Ahis regular self,@ and he talked near his car for about twenty minutes. When Wimbley noticed appellant, he was Ashocked.@ Wimbley appeared to be happy and said, AWhoa, today must be my birthday.@ Appellant testified he first noticed Wimbley when he heard the Abirthday@ comment, and he felt frightened when he heard this because of Wimbley=s prior threats.[4] Wimbley approached appellant at the Alip@ of the garage and indicated he wanted to fight.[5] Appellant, also known as ATall Joe,@ stood about six inches taller than Wimbley. Green testified that the two men argued in a confrontational but moderate way: AIt=s not escalating where they hollering at the top of their lungs or you got to hold anybody back. They being men about it.@ Appellant testified he told Wimbley he Adidn=t come here for that,@ and he did not want any trouble. Appellant said Wimbley replied it was his lucky day, and AWe=re not leaving. You got your friends I got my friends.@ They stared at each other Aeye to eye@ for two or three seconds before Wimbley turned around and walked to his car.[6] Appellant said he saw Wimbley go to his car, put his gun on the passenger seat, and let the window down.[7] Appellant testified he overheard Wimbley on his cell phone saying Abring the AK I got a live one blocked in.@ Appellant said he asked, generally, to everyone present Aplease not to let this happen,@ and asked if someone could stop it, but that no one responded. Green testified he did not hear appellant say this. The confrontation ended without incident, and everyone returned to what they had been doing. Wimbley and Green walked to the driveway and talked. Appellant went inside for about fifteen minutes. Appellant testified that when he went inside, he told Leundre Prescott[8] that Wimbley had a gun and asked for help making Wimbley leave. Appellant asked not to let Athis@ happen here, at Leundre=s grandmother=s house, and said he did not want any trouble, but Leundre did not respond. This made appellant think he needed to leave. After ten or fifteen minutes inside, appellant went outside and Ait was just getting dark.@ Appellant stayed in the garage for ten or twelve minutes and decided to walk down the driveway toward his truck. Green testified he stood in the center of the driveway between Riley=s work truck and the car parked behind it, talking with Wimbley, who stood in the very center of the driveway. Riley testified Wimbley had his foot up on the bumper of the car parked in front of the closed garage door, on the left. Green said Fontenot (appellant=s cousin) stood to his right. Green and Wimbley had talked for about thirty minutes when appellant walked quickly down the middle of the driveway. Green said it looked as though appellant was trying to get to his Expedition and leave. Green said he was surprised appellant chose that route, because he was Acoming right up@ on Wimbley, and he could have walked around that area. Appellant testified he felt he could have taken no other path to his truck because there were people on the left and right sides of the driveway Ascattered all around,@ including two friends of Wimbley=s, Green and Marcus Cambric. Neither Green nor Wimbley moved out of appellant=s way (when asked whether he got out of appellant=s path, Green responded, AWhy should I?@). What happened next was described in different ways at trial. Appellant=s Account Appellant testified that, when he walked down the driveway to his car, Wimbley stepped out and held his arms open wide, holding a knife in his left hand. Appellant walked past, and Wimbley punched appellant in the back of the head. Appellant stumbled forward and fell Aright by the grass.@ When he turned over, Wimbley was standing over him and took a swing at appellant. Appellant threw his hands up and Wimbley cut him on his right pinky finger. Wimbley was Astill coming@ at him with a knife, so he threw his legs up and was cut on the leg. Photographs and medical records show these cuts, and appellant stated that, when he went to the hospital two days later, it was too late to get stitches in his leg.[9] Appellant said he felt like his life was in danger. He reached for his gun and fired it once or twice toward Wimbley, who, once he noticed appellant had a gun, started running between the cars. Appellant believed Wimbley was running toward his car, where appellant had seen him put his gun earlier. Appellant got up from the ground and started toward his truck, but fell and scraped his knee. When he fell, appellant looked to his right and saw Wimbley. Appellant believed Wimbley had made it to his car to retrieve his gun. Appellant fired one or two more shots in Wimbley=s direction from appellant=s position right in front of his Expedition. Appellant testified he never walked to where Wimbley fell; instead, he backed up and ran to his truck. Randall got in on the passenger side and he and appellant drove away. Green=s Account Green testified that, when appellant walked down the driveway, appellant stopped in front of Wimbley and said, AWhat, bitch?@ Wimbley hit appellant and Randall jumped in, hitting Wimbley two or three times. Green testified appellant and Wimbley started Atussling@ and Green grabbed Randall by the back of his shirt and held his head down between his legs to keep him out of the fight. Appellant ran to the right, behind Riley=s work truck, knocking down Green and Randall. By the time Green and Randall were on the ground, Green mostly heard what was going on around him. Appellant was Amotioning@ between the cars and Green testified that, when appellant fell, Wimbley, sounding shocked, hollered, AOh, ya=ll trying to jump me,@ and started running in the opposite direction, across the driveway to the left of Ms. O=Quinn=s house. Green said he thought the two-person fist fight had turned into a brawl. Green did not know why appellant fell, but guessed Wimbley may have pushed him while trying to get away. According to Green, while Green and Randall were crouched on the ground, appellant pulled out a gun and started firing from the grassy area to the right of the driveway, toward Wimbley. Green knew appellant pulled a gun because he heard shots and felt gunpowder on his head. Once appellant started shooting, Green ran up the driveway and tried to enter the house=s front door, but could not open the burglar bars, so he ran into the garage. Green heard three shots. After appellant shot Aacross the cars,@ appellant started motioning to the street. Green stood in the garage and watched appellant Askip-walk@ to the street: Aby that time that=s when I=m realizing [Wimbley] must be on the ground and [appellant] fired two more shots in the ground.@ Appellant then walked backward to his Expedition, never taking his eyes off of the body. Randall jumped in the Expedition and they Aburnt off down the street.@ Green walked to the street and saw Wimbley lying face down, not moving or breathing. Green walked back up the driveway and told Leosha Prescott to call the police.[10] Green left in Wimbley=s car, explaining it was blocking his own car.[11] Everyone but Riley, Leundre Prescott, and Leosha Prescott left. Kedrick Riley=s Account Kedrick Riley left and returned a few times during the evening. He returned just before the fight between Wimbley and appellant, and saw it from the end of the driveway. Riley said appellant stumbled backwards into the grass when Wimbley hit him. Randall charged at Wimbley, and Green grabbed Randall. That is when Wimbley yelled, Aya=all fend to jump me@ and Athe gun came out,@ causing Wimbley to Arun for his life@ in between the cars on the left side of the drive. Riley saw Afire@ come out of the gun as appellant shot. Riley never saw Wimbley on the right side of the drive, and never saw Wimbley come toward appellant. He said Wimbley was eight feet away when appellant pulled the gun out. Once the Ashots rang out,@ Riley ran to the grassy area in the middle of the cul-de-sac. Riley saw Wimbley run to the left between the cars, through the neighbor=s yard, and around the neighbor=s mailboxCWimbley did not run toward a car, he ran away from appellant. Wimbley fell in the grass[12] and did not move. Riley testified he did not see appellant fall and hurt his knee. Appellant Atrotted@ down the driveway after Wimbley, and Riley hid behind appellant=s Expedition and Apeeped@ around the back of the truck. Riley saw appellant Atrot@ or Askip, hop and jump@ over to Wimbley. Appellant stood close enough to kick him, said ALike I told you bitch,@ and fired twice more before driving away. Riley went over to Wimbley, touched him, and said Ayou can wake up now.@ Green told Leosha Prescott to call the police. Riley admitted that, at the time, he was on probation for aggravated assault of a police officer and his probation was revoked for a Adirty@ urinalysis after Wimbley=s death. At the time of trial, Riley resided in a substance abuse facility. Terrence Porter=s Account Terrence Porter, who admitted to being a convicted felon, was playing a Matrix Revolutions video game in the garage when he heard gun shots. When he looked back, he saw appellant standing in the middle of the driveway, shooting, and Wimbley running toward the street while appellant followed. Porter said he ran into the house and threw up.[13] Physical Evidence Wimbley was found lying face down in the street to the left of Ms. O=Quinn=s home. He had been shot three times: Once to the face, once to the lower back, and once in his left arm. No weapons were found on his body. Police found three droplets of blood in front of Ms. O=Quinn=s home belonging to Green.[14] Consistent with Green=s account of where he walked after the shooting started, one droplet was in the walkway by Ms. O=Quinn=s front door, one was in the center of the driveway close to the garage, and another was in the middle of the driveway, close to the street. Police did not find appellant=s blood, although appellant testified he bled when Wimbley cut him. Police found a knife in the grass to the right of the driveway, close to the street. There was no blood on the knife. Appellant=s cell phone was found in the grass in the middle of the yard in front of Ms. O=Quinn=s front door, to the right of the drive. Four bullet casings were recovered: One in the lower mid-section of the driveway near the street, one in the street by the driveway (near where Wimbley=s car had been parked), one across the cul-de-sac that may have been kicked or moved by cars driving by, and another beside Wimbley=s body. A fired bullet was recovered next to Wimbley=s body, and bullet fragments were found in the street to the right of Wimbley=s feet.[15] Video and photographs taken at the scene showed the only working light was across the street; it was very dark around Ms. O=Quinn=s home. Two days after the shooting, on October 6, 2003, appellant went to his attorney=s office and then to the emergency room. He received treatment for a contusion to his head, cuts to his right little finger and right ankle, and abrasions on his right knee. Procedural History A jury convicted appellant of murder. Appellant filed a motion for new trial, which the trial court denied, and timely filed his notice of appeal. He argues the evidence is factually insufficient to support his conviction because the State=s witnesses gave differing accounts of events, Wimbley provoked the fight that led to his death, and because appellant saw Wimbley with a gun, and therefore feared for his life. Standard of Review and Applicable Law In a factual sufficiency challenge, we view all the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). We will set aside a verdict only if it is so contrary to the overwhelming weight of evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). A clearly wrong and unjust verdict occurs when the jury=s finding shocks the conscience or clearly demonstrates bias. Zuniga, 144 S.W.3d at 481. Evidence may be insufficient in two ways: (1) Considered by itself, evidence supporting the verdict may be too weak to find guilt beyond a reasonable doubt, or (2) evidence contrary to the verdict may be strong enough to preclude a finding of guilt beyond a reasonable doubt. Id. at 484B85. In a factual sufficiency analysis, we Aconsider only those few matters bearing on credibility that can be fully determined from a cold appellate record.@ Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000). While such approach occasionally permits some credibility assessment, unless the available record clearly reveals a different result is appropriate, we must defer to the jury=s determination about what weight should be placed upon contradictory testimony. Id. This deference is necessary because the factfinder is able to examine Atell‑tale signs of credibility@ like physical appearance, demeanor, and a witness= cadence of speech that are unavailable to this Court. Id. at 8 n.9 (quoting Commonwealth v. Williams, 554 Pa. 1, 720 A.2d 679, 684 (1998)). A person commits murder if he intentionally or knowingly causes the death of an individual, or if he intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. Tex. Pen. Code Ann. ' 19.02 (Vernon 2003). A person is entitled to use deadly force if (1) a reasonable person in his situation would not have retreated, and (2) when and to the degree he reasonably believes deadly force is immediately necessary to protect himself against the other=s use or attempted use of unlawful deadly force, or to prevent the other=s imminent commission of murder.[16] Tex. Pen. Code Ann. ' 9.32 (Vernon 2003). A person has the right to defend himself from apparent danger to the same extent he would if the danger were real. Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996); Jones v. State, 544 S.W.2d 139, 142 (Tex. Crim. App. 1976). When a person=s acts cease to be defensive and take on the offensive, he becomes the aggressor, and is no longer acting in self‑defense. Witty v. State, 150 Tex. Crim. 555, 203 S.W.2d 212, 218 (1947). Once a defendant produces evidence of self-defense, the State bears a burden of persuasion to refute this defense. Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). This does not mean the State is required to produce more evidence; the State only needs to prove its case beyond a reasonable doubt. Id. A fact finder implicitly finds against a defensive theory by finding the defendant guilty. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). The same factual sufficiency standard of review applies when evidence contrary to a defendant=s claim of self-defense is challenged on appeal. Zuniga, 144 S.W.3d at 484B85; Zuliani, 97 S.W.3d at 595; see Roy v. State, 161 S.W.3d 30, 36B37 (Tex. App.CHouston [14th Dist.] 2004, no pet.) (harmonizing articulation of standards in Zuniga and Zuliani). Analysis Appellant points to no specific inconsistencies in the testimony from State witnesses, although we have noted some in the facts above. After fully reviewing the record, we find the consistencies are more prevalent. State witnesses testified appellant fired on Wimbley as Wimbley ran away, and fired two more shots after following Wimbley into the street. Wimbley was, in fact, shot twice from behind. Further, whether or not Wimbley provoked the fight is not definitive in determining whether appellant was justified in using deadly force by shooting at Wimbley as he ran away, and again as Wimbley lay in the street. Appellant was the only witness who testified that Wimbley had a gun that night, and appellant was inconsistent in his testimony, stating first that he saw Wimbley put the gun in his car, and then on cross-examination that he did not know whether Wimbley put the gun in the car. Other witnesses testified Wimbley did not have a gun. Appellant=s testimony that he was defending himself from Wimbley=s knife attack is also contradicted, and is lessened by the fact that his blood was not found at the scene, despite his testimony that his cuts were bleeding. The jury, as the finder of fact, was free to disbelieve appellant=s testimony. Nothing in the record clearly reveals a different result is appropriate, and we must defer to the jury=s determination about what weight should be placed upon each witness= testimony. Viewing all evidence in a neutral light, we find the jury was rationally justified in finding guilt beyond a reasonable doubt. We overrule appellant=s sole point of error, and affirm the trial court=s judgment. _____________________________ Margaret Garner Mirabal Justice Judgment rendered and Memorandum Opinion filed August 15, 2006. Panel consists of Justices Fowler, Seymore, and Senior Justice Margaret Garner Mirabal (sitting by assignment). Do Not Publish C Tex. R. App. P. 47.2(b). [1] At least fourteen people were at Ms. O=Quinn=s home that night: Novie O=Quinn (Ms. O=Quinn=s son), Ron Green, Leosha Prescott, and Marcus Cambric (friends of Wimbley=s), Leundre Prescott, Odrun Fontenot, and Murphy Randall (friends of appellant=s), Kevin Wilson (who was described as Aneutral@), two childrenCMarcus Cambric=s son Alittle Marcus@ and younger brother, T.J.CKedrick Riley, and Terrence Porter. The Prescott brothers, Terrence Porter, and Kedrick Riley are Ms. O=Quinn=s grandsons. [2] We refer to the right or left sides as they appear when facing the house from the street. [3] Roy witnessed the events at DT=s pool hall; he was not present at Ms. O=Quinn=s on October 4th. [4] Appellant testified that, after the Abirthday@ comment, he saw Wimbley walk back and forth to his car and heard Wimbley Ablurting out different things that we=re not going to leave, that he should have been did this, took care of me and stopped me from coming around there.@ Appellant said he saw Wimbley put a gun in his waistband before he walked up to appellant, and that Wimbley was looking at appellant=s waist area when he first approached appellant, apparently checking for a gun. [5] Green and Leosha Prescott both testified Wimbley emptied his pockets, took off his jewelry, and lifted his shirt to indicate he wanted to fight and was unarmed before first approaching appellant. Green could not remember whether he ever told the police that Wimbley lifted his shirt, and Leosha Prescott stated he never told the police or prosecutors Wimbley picked up his shirt, even though he admitted this fact would be important to know. [6] On cross-examination, appellant explained he did not lift his shirt to show Wimbley his gun because that would have meant he wanted trouble. [7] On cross-examination, appellant testified he last saw the gun in Wimbley=s waistband, and that he did not know for sure whether Wimbley put the gun in his car. Green testified appellant was the only person that day with a gun. [8] Leundre Prescott, appellant=s friend, was deceased at the time of this trial. His brother, Leosha Prescott, wore a shirt bearing Leundre Prescott=s picture when he testified. [9] Despite appellant=s testimony that his stab wounds were bleeding, his blood was not found on the scene. [10] Leosha Prescott testified Green made no such statement, and that he called for an ambulance on his own. Riley testified Green told Leosha Prescott to call Athe laws.@ It is uncontradicted that no one cooperated with the police investigation that night. [11] Appellant argues Green left in Wimbley=s car to prevent law enforcement from locating Wimbley=s weapon, and that the other State=s witnesses (who were friends of Wimbley) did not admit to seeing Wimbley with a gun because there is Ano doubt that they all wanted to help [Wimbley].@ [12] On cross examination, Riley testified Wimbley fell in the middle of the street. [13] Porter=s testimony contained several inconsistencies. Although Porter testified he only knew Aof@ appellant and Wimbley, he also stated he knew Wimbley well. Although he testified there were Acars@ in the driveway, he also said there was maybe only one car in the drive. He did not know whether there was a motorcycle at the house that day. Porter=s testimony changed between Ahearing@ the first shots as he played his video game to Aseeing@ all five shots. Porter did not tell the police he saw who shot Wimbley until one week before trial, and admitted that he lied to the police at least four times. On cross-examination, defense counsel stated he noticed Porter looking at people seated in the front row in the courtroom. When asked if he knew anyone there, Porter said that he did not. When asked whether these people were Wimbley=s family and friends, he answered they are, and admitted that he lied when he said he did not know them. [14] Green was stabbed in the hand that evening; his hand bled heavily. Green believed Randall had a knife and that he was cut when he and Randall fell down in the driveway. [15] The shot to Wimbley=s right cheek took a front-to-back, slightly downward path and lodged in his spine. A medical expert testified this shot would have paralyzed Wimbley immediately, and likely ended his life. AImpact abrasions@ on Wimbley=s face were consistent with that of an unbroken fall landing directly on the face; Wimbley had no abrasions on his palms. One bullet to Wimbley=s left lower back traveled left-to-right and slightly upward and lodged in his spine; the wound was oval, indicating the bullet entered the body at an angle. This shot would not have immediately immobilized Wimbley. One shot traveled through Wimbley=s left arm above the elbow on a back-to-front, horizontal path. There was no stippling (abrasions caused by particles of unburned gun powder striking the skin around the bullet entrance wound) around any of the gunshot wounds, indicating the gun=s barrel was more than two feet from the body when fired. An autopsy showed Wimbley had marijuana in his system when he died. [16] The statutory exceptions to a person=s ability to use force in defense of himself do not apply in this case. Tex. Pen. Code Ann. '' 9.31(b), 9.32(a)(1).