Alfredo Juan Tobar v. State

Affirmed and Memorandum Opinion filed July 16, 2009 Affirmed and Memorandum Opinion filed July 16, 2009. In The Fourteenth Court of Appeals ____________ NO. 14-08-00520-CR ____________ ALFREDO JUAN TOBAR, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 180th District Court Harris County, Texas Trial Court Cause No. 1110608 M E M O R A N D U M   O P I N I O N Appellant, Alfredo Juan Tobar, appeals his conviction for deadly conduct. After a jury found appellant guilty, punishment was assessed at ten years in prison and a $2,500 fine. In four issues, appellant challenges the legal and factual sufficiency of the evidence supporting his conviction. We affirm. I.  BACKGROUND Appellant=s conviction arose from a shooting that occurred at the complaining witness=s house on April 1, 2007. The complaining witness, her friends, and relatives had gathered inside her house shortly after midnight. Minutes after they arrived, three bullets were fired into the complaining witness=s house. The first bullet penetrated the front door and pierced the couch on which the complaining witness was sitting. The second bullet struck a cabinet in the complaining witness=s bedroom, and the third bullet struck through her bathroom. The complaining witness called 911, and within minutes, she heard an additional three gunshots fired in the air outside her home. The complaining witness immediately looked out her window and saw a white truck, carrying tools and roofing materials, driving away. The complaining witness recognized the white truck as the vehicle owned by her former boyfriend, whom she identified as appellant.[1] The complaining witness relayed the additional information to 911. Officer Charles Jones of the Houston Police Department was dispatched to the complaining witness=s house to investigate the shooting. While en route, Officer Jones received a call over his radio that another unit was following a vehicle matching the description of the white truck suspected of being involved in the shooting. Officers Hollis and McGruder of the Houston Police Department were near the complaining witness=s house on an unrelated investigation when they heard three to four gunshots. Officer Hollis testified that moments after hearing the gunfire, he observed a white truck carrying tools and roofing materials driving by at a high rate of speed. Minutes later, the officers heard another round of gunfire and observed the same white truck speeding away. The officers followed the white truck as they recounted their observations to Officer Jones over the radio. Officers Hollis and McGruder eventually stopped the white truck and directed Officer Jones to their location. When Officer Jones arrived, he ordered the driver out of the truck with his hands up. The driver complied, but when Officer Jones attempted to handcuff him, the driver thrust his elbow into Officer Jones and reached towards his waistband. In response, Officer Jones struck the driver with his flashlight. Officer Jones eventually gained control over the driver and secured him in handcuffs. Officer Jones then searched the truck for other passengers. Although he saw no other passengers, Officer Jones observed in plain view an empty gun holster and a box of ammunition on the driver=s seat. Officer Jones transported the driver to the complaining witness=s house, and the complaining witness identified him as appellant, her former boyfriend, who she believed had fired the bullets into her home. Appellant was arrested and charged by indictment with felony deadly conduct. In two separate paragraphs, the indictment alleged that appellant committed deadly conduct by two manner and means: (1) unlawfully and knowingly discharging a firearm at and in the direction of the complaining witness=s house, a habitation, while being reckless as to whether the habitation was occupied and (2) unlawfully and knowingly discharging a firearm at and in the direction of the complaining witness. Appellant pleaded not guilty. The case was tried to a jury, which found appellant guilty of deadly conduct as charged in the indictment. Punishment was assessed at ten years in prison and a $2,500 fine. On appeal, appellant contends that the evidence is legally and factually insufficient to prove that he (1) knowingly discharged a firearm at or in the direction of the complaining witness=s house while being reckless as to whether the home was occupied; and (2) knowingly discharged a firearm at or in the direction of the complaining witness. II.  STANDARDS OF REVIEW In four issues, appellant challenges the legal and factual sufficiency of the evidence. In a legal sufficiency review, we view all the evidence in the light most favorable to the verdict and determine whether a rational jury could have found the defendant guilty of all the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Williams v. State, 270 S.W.3d 140, 142 (Tex. Crim. App. 2008). The jury is the exclusive judge of the credibility of witnesses and of the weight to be given to their testimony. Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008). Reconciliation of conflicts in the evidence is within the exclusive province of the jury. Cleburn v. State, 138 S.W.3d 542, 544 (Tex. App.CHouston [14th Dist.] 2004, pet. ref=d). We must resolve any inconsistencies in the testimony in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000). In a factual sufficiency review, we review all the evidence in a neutral light, favoring neither party. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). We then ask (1) whether the evidence supporting the conviction, although legally sufficient, is nevertheless so weak that the jury=s verdict seems clearly wrong and manifestly unjust, or (2) whether, considering the conflicting evidence, the jury=s verdict is against the great weight and preponderance of the evidence. Id. at 414B17; Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). We cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury=s resolution of that conflict. Watson, 204 S.W.3d at 417. If an appellate court determines that the evidence is factually insufficient, it must explain in exactly what way it perceives the conflicting evidence greatly to preponderate against conviction. Id. at 414B17; Rivera-Reyes v. State, 252 S.W.3d 781, 784 (Tex. App.CHouston [14th Dist.] 2008, no pet.). The reviewing court=s evaluation should not intrude upon the factfinder=s role as the sole judge of the weight and credibility given to any witness=s testimony. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). III.  SUFFICIENCY OF THE EVIDENCE A person commits deadly conduct if he knowingly discharges a firearm at or in the direction of: (1) one or more individuals or (2) a habitation, building, or vehicle and is reckless as to whether the habitation, building, or vehicle is occupied. Tex. Penal Code '22.05(b). A person acts knowingly, or with knowledge, Awhen he is aware of the nature of his conduct or that the circumstances exist@ or Ahe is aware that his conduct is reasonably certain to cause the result.@ Id. ' 6.03(b). A person acts recklessly, or is reckless, when Ahe is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur.@ Id. ' 6.03(c). In issues one and three, appellant argues that the evidence is legally and factually insufficient to prove that he knowingly discharged a firearm at or in the direction of a habitation. Appellant argues that the evidence is insufficient because: (1) the police never recovered the gun used in the shooting; (2) there was no testing for gunshot residue on appellant=s person or clothing; (3) no one observed appellant in possession of a firearm or observed him shooting at the complaining witness=s house; and (4) the complaining witness=s house is in a high crime area in which gunfire is frequent. According to appellant, the only evidence offered by the State supporting the jury=s verdict is his mere presence at or near the complaining witness=s house, which happens to be in the same neighborhood in which he resides. The appellant is correct that there is no testimony placing a gun in his hand on the night of the shooting. He is also correct that no one testified having seen him shoot at the complaining witness=s house. However, there is ample circumstantial evidence supporting the jury=s verdict. The identity of the perpetrator of an offense can be proved by direct or circumstantial evidence. Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. App. 1986); Greene v. State, 124 S.W.3d 789, 792 (Tex. App.CHouston [1st Dist.] 2003, pet. ref=d) (holding that A[i]dentity of a perpetrator can be proved by direct or circumstantial evidence; eyewitness identification is not necessary@); Smith v. State, 56 S.W.3d 739, 744 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d) (AIdentity may be proved through direct or circumstantial evidence, and through inferences.@). Circumstantial evidence alone is sufficient to establish guilt. Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). The standard of review on appeal is the same for both direct- and circumstantial-evidence cases. Id. Here, the evidence shows that the complaining witness observed a white truck similar to appellant=s truck driving away from her house immediately after she heard the second round of gunfire. The complaining witness further testified that she recognized the truck as appellant=s vehicle because its distinctive engine noise resembled that of appellant=s truck. These observations convinced her that appellant was the gunman. Additionally, officers observed appellant speeding away in a truck, similar to the truck described by the complaining witness, after hearing gunfire in the same area. The officers pursued appellant as he was speeding away and ultimately stopped and searched his truck. Appellant was found in possession of a box of ammunition containing .38 caliber bullets, the same caliber of the bullets shot into the complaining witness=s house. Appellant was in possession of an empty gun holster suitable for a gun that fires .38 caliber bullets. Appellant also resisted arrest. Because appellant was speeding away from the complaining witness=s house immediately after the gunfire, because he was in possession of bullets of the same caliber as those shot into the complaining witness=s house, and because he was in possession of an empty gun holster suitable for a gun that fires .38 caliber bullets, Officer Jones concluded that appellant fired the shots into the complaining witness=s house and then disposed of the gun before he was stopped by officers. From this evidence, a reasonable jury could have inferred that appellant was the gunman. There is also sufficient evidence that appellant was reckless as to whether the complaining witness=s house was occupied at the time of the shooting. See Tex. Penal Code '22.05(b)(2). A person acts recklessly, or is reckless, when Ahe is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur.@ Id. ' 6.03(c). Further, A[t]he risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all circumstances as viewed from the actor=s standpoint.@ Id. Firing a gun at a residence at midnight is a gross deviation from the standard of care a reasonable person would exercise. A reasonable person would understand that (1) a residence is most likely occupied at midnight, and (2) firing a gun at an occupied residence involves a high risk of injury. From this evidence, the jury was free to infer that appellant was aware of, but consciously disregarded, that the complaining witness=s house was occupied. After reviewing the evidence in the light most favorable to the verdict, we cannot conclude that a rational jury could not have found appellant guilty beyond a reasonable doubt. Furthermore, viewing the evidence in a neutral light, we cannot conclude that the evidence in support of the jury=s verdict is so weak that the jury=s verdict seems clearly wrong and unjust, or in considering conflicting evidence, that the jury=s verdict is against the great weight and preponderance of the evidence. Accordingly, we overrule appellant=s first and third issues. Having determined that the evidence is legally and factually sufficient to support the verdict based on discharging a firearm at a habitation, we do not reach appellant=s second and fourth issues challenging the evidence on the alternative means by which the State could have proved deadly conduct, discharging a firearm at the complaining witness. When a statute provides more than one means of committing an offense and those means are subject to the same punishment, the State may plead them conjunctively. See Schwenk v. State, 733 S.W.2d 142, 149 (Tex. Crim. App. 1981); Sidney v. State, 560 S.W.2d 679, 681 (Tex. Crim. App. 1978). However, to support the conviction, the State needed to prove only one of the alleged means. See Sidney, 560 S.W.2d at 681; Edwards v. State, 97 S.W.3d 279, 291 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d). Here, the indictment alleged two means by which appellant committed the offense of deadly conduct: (1) by shooting at and in the direction of the complaining witness=s house and (2) by shooting at and in the direction of the complaining witness. The jury charge authorized conviction of deadly conduct if the jury found that appellant knowingly discharged a firearm at or in the direction of the complaining witness=s house, a habitation, or knowingly discharged a firearm at or in the direction of the complaining witness, an individual. The jury returned a general verdict of Aguilty of deadly conduct, as charged in the indictment.@ When a general verdict is returned and the evidence is sufficient to support a finding of guilt under any of the paragraph allegations submitted, the verdict will be upheld. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997). Because the evidence is legally and factually sufficient to support the jury=s verdict on at least one manner and means of deadly conduct, i.e., discharging a firearm at a habitation, we need not address appellant=s second and fourth issues challenging the evidence on the alternate means of committing deadly conduct. See Kirsch v. State, 276 S.W.3d 579, 584 (Tex. App.CHouston [1st Dist.] 2008, pet. granted); Henderson v. State, 77 S.W.3d 321, 327 (Tex. App.CFort Worth 2002, no pet.) (concluding that an appellate court is required to uphold the sufficiency of the evidence if the evidence is sufficient to convict under any theories of manner and means submitted to the jury); Price v. State, 59 S.W.3d 297, 300B03 (Tex. App.CFort Worth 2001, pet. ref=d) (concluding that conviction for driving while intoxicated may be had through proof of only one of the alternative means alleged for committing the offense). We affirm the trial court=s judgment. /s/ Adele Hedges Chief Justice Panel consists of Chief Justice Hedges, Justice Frost, and Senior Justice Hudson.* Do Not Publish C Tex. R. App. P. 47.2(b). *Senior Justice J. Harvey Hudson sitting by assignment. [1] There is evidence that the complaining witness told the 911 operator and law enforcement that appellant was her ex-husband. However, the two were never married but dated for six years previous to the shooting. The complaining witness had ended the relationship some ten months earlier.