Case Number: 01-17-00176-CR

Judge: Terry Jennings

Court: Court of Appeals For The First District of Texas

Plaintiff's Attorney: Jeri Yenne
David P. Bosserman
Trey D. Picard

Defendant's Attorney: Cary M. Faden

Description: Brazoria County Sheriff’s Department (“BCSD”) Deputy B. Harper, the
complainant, testified that while he was on patrol on April 9, 2016, he was
dispatched to investigate a “suspicious person” walking around a construction site
adjacent to the volunteer fire department and the surrounding neighborhood on
Demi-John Island in Brazoria County, Texas. When Harper arrived at the scene,
he spoke with Alan Funderburk, the assistant fire chief for Demi-John Island’s
volunteer fire department, who pointed out “a white male” that had been walking
around the area in a suspicious manner. Harper then approached appellant, who
told Harper that he was just “picking up rocks” because he “liked to collect” them.
Appellant did not have an identification card or driver’s license in his possession,
but provided Harper with his name and birthdate.
Upon learning appellant’s name and birthdate, Deputy Harper checked with
BCSD dispatch to determine whether appellant had any outstanding warrants.
While he waited for the information regarding any outstanding warrants, Harper
walked back over to talk with Funderburk, who had been joined by Dennis George
Bullington, another volunteer firefighter. The men then told Harper that they “had
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seen [appellant] walking through some people’s yards . . . and under
houses . . . and . . . [they] thought maybe he was possibly trying to steal
something.”
Deputy Harper then returned to appellant and asked him for his home
address. Appellant told Harper that he lived on the island, but could not give his
address, causing Harper to believe that appellant was “lying” to him. At this point,
appellant “began to act . . . nervous” and tried to walk away. Harper then put his
hand on appellant’s shoulder and told him that he was “not done talking to him.”
Appellant proceeded to walk away as BCSD dispatch alerted Harper that appellant
had an active warrant out for his arrest. Harper told appellant he was going to
“place him in handcuffs and do a pat-down search of his person” due to the
outstanding arrest warrant.
When appellant resisted Deputy Harper’s attempts to place him in handcuffs
and continued to walk away, Harper “grabbed [him] by the back of his shirt . . . or
his jacket . . . [,] attempted to place him in handcuffs,” and the two men engaged in
a “physical confrontation.” Harper ultimately took appellant “by the chest and
used a leg sweep” to “put him on the ground.” Although appellant was able to
regain his footing, Harper “pulled him back” down again. They both fell on their
backs, with appellant on top of Harper. Harper then placed his arm around
appellant’s neck, “[t]rying to gain control” over appellant, but Harper did not have
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a firearm, baton, or any other weapon drawn at that time. Appellant reached
“somewhere in his waistband area,” “pulled out” a firearm, “reached it over his
right shoulder,” and “pointed it at [Harper’s] face.”
Deputy Harper further established that, upon seeing the firearm, he “pushed”
appellant off of him, and they both “stood up, . . . face[-]to[-]face, . . . within a foot
of each other.” Appellant pointed the firearm at Harper, and Harper grabbed the
“muzzle,” or “end of the [firearm], to try to keep [appellant] from pointing it in
[his] direction.” While Harper was still holding onto the muzzle, appellant shot
Harper in the stomach. Fortunately, Harper’s ballistic vest stopped the bullet.
Appellant then turned to “run,” but turned back around and pointed the firearm at
Harper again. Harper “dove towards him and grabbed for” the firearm to “stop
[appellant] from shooting [him] again.” At that time, several men ran in and
“basically tackled” appellant, so Harper was able to grab the firearm. Harper
detained appellant.
Bullington testified that on April 9, 2016, he saw a firearm in appellant’s
hand and heard a shot fired when Deputy Harper and appellant were engaged in a
struggle on the ground, facing each other. After Harper was shot, Bullington ran
over to help restrain appellant. He asked appellant why he had shot Harper, and
appellant responded, “I don’t know, things just got hectic.”
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Funderburk testified that on April 9, 2016, appellant shot Deputy Harper
while the two men were engaged in a struggle “face[-]to[-]face” on the ground.
Harper then “wrestl[ed]” the firearm out of appellant’s hand.
Michael Gercia, a part-time resident of Demi-John Island, testified that he
saw the altercation between appellant and Deputy Harper on April 9, 2016.
Initially, the two men were on the ground, but appellant then stood up and pointed
a firearm at Harper. Gercia saw Harper grab appellant’s firearm, and he heard it
discharge. Gercia and other individuals then tackled appellant as he attempted to
run away.
BCSD Deputy M. Thomas, a crime scene investigator, testified that on April
9, 2016, he was dispatched to Demi-John Island related to “an officer-involved
shooting.” Upon arrival at the scene, he collected, among other things, a firearm
that Deputy Harper identified as the firearm that appellant had used to shoot him.
Thomas explained that a firearm is a deadly weapon that is capable of causing
serious bodily injury or death.
Appellant testified that on April 9, 2016, he was walking around Demi-John
Island and carrying a firearm that he had taken from his grandfather’s house. He
had been living in the area, either at his grandfather’s house or in a nearby shed
owned by his grandfather, for several months. On that day, appellant was
following the sewage line out of curiosity because he used to “plumb swimming
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pools,” and he ended up at a construction site. When Funderburk approached him
at the construction site, appellant felt uncomfortable because Funderburk had his
camera out and was following appellant in his truck. Appellant explained that he
was headed back to his grandfather’s shed when Deputy Harper arrived at the
construction site and called him over.
As appellant “walked towards” Deputy Harper, he asked appellant what he
was doing there. Appellant told Harper that he was “picking up rocks and looking
at a construction site.” Harper then went to talk to “[an]other guy.” And when he
returned, Harper told appellant that he was going to “search” him. Harper
“immediately started putting his hands in [appellant’s] pockets,” which appellant
resisted because he believed that he was being searched illegally. Harper grabbed
appellant’s “left arm” and “twisted it behind [his] back.” And appellant attempted
to untwist it, but Harper “grabbed [him] by his throat and went to take [him] to the
ground.”
According to appellant, he and Deputy Harper were then both on the ground,
and appellant was on top of Harper with both of their backs facing the ground.
Harper still had his arm around appellant’s neck, and appellant could not breathe.
When appellant was not able to pull Harper’s arm free, he “feared for [his] life.”
He then pulled his firearm out of the waistband of his shorts and fired a shot where
he “assumed” that Harper’s shoulder would be. Appellant got up and tried to run.
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Appellant explained that he was not trying to kill Harper, but only trying to
“[r]elease his arm.” And he knew Harper was a “peace officer.”
Standard of Review
We review the legal sufficiency of the evidence by considering all of the
evidence in the light most favorable to the jury’s verdict to 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, 319, 99 S. Ct. 2781, 2789
(1979); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Our role
is that of a due process safeguard, ensuring only the rationality of the trier of fact’s
finding of the essential elements of the offense beyond a reasonable doubt. See
Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). We give deference
to the responsibility of the fact finder to fairly resolve conflicts in testimony, weigh
evidence, and draw reasonable inferences from the facts. Williams, 235 S.W.3d at
750. However, our duty requires us to “ensure that the evidence presented actually
supports a conclusion that the defendant committed” the criminal offense of which
he is accused. Id.
In reviewing the legal sufficiency of the evidence, we treat direct and
circumstantial evidence equally because circumstantial evidence is just as
probative as direct evidence in establishing the guilt of a defendant. Clayton v.
State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Circumstantial evidence is
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“direct proof of a secondary fact which, by logical inference, demonstrates the
ultimate fact to be proven.” Taylor v. State, 684 S.W.2d 682, 684 (Tex. Crim.
App. 1984). And it alone can be sufficient to establish guilt. Clayton, 235 S.W.3d
at 778. Further, the “cumulative force” of all the circumstantial evidence in a case
can be sufficient to support a jury finding of guilt beyond a reasonable doubt. See
Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 2006).
Sufficiency of Evidence
In his sole issue, appellant argues that the evidence is legally insufficient to
support his conviction for attempted capital murder because he did not intend to
cause Deputy Harper’s death, but was acting in self-defense in order to stop Harper
“from choking [him] to death in [Harper’s] attempt to detain [him].”
A person commits murder if he intentionally or knowingly causes the death
of another person. TEX. PENAL CODE ANN. § 19.02(b)(1) (Vernon 2011); Temple
v. State, 390 S.W.3d 341, 359 (Tex. Crim. App. 2013). A person commits capital
murder when he commits murder under section 19.02(b)(1) and the murder is
committed upon “a peace officer . . . who is acting in the lawful discharge of an
official duty and who the person knows is a peace officer.” TEX. PENAL CODE
ANN. § 19.03(a)(1) (Vernon Supp. 2017); see also TEX. CODE CRIM. PROC. ANN.
art. 2.12 (Vernon Supp. 2017) (defining peace officer). A person commits the
offense of attempted capital murder if, with specific intent to commit capital
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murder, he “does an act amounting to more than mere preparation that tends but
fails to effect the commission of the offense intended.” TEX. PENAL CODE ANN.
§ 15.01(a) (Vernon 2011); see also Herrin v. State, 125 S.W.3d 436, 440 n.5 (Tex.
Crim. App. 2002) (setting forth elements of criminal attempt).
“Intent is almost always proven by circumstantial evidence.” Trevino v.
State, 228 S.W.3d 729, 736 (Tex. App.—Corpus Christi 2006, pet. ref’d); see also
Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002) (“Direct evidence of the
requisite intent is not required . . . .”); Smith v. State, 56 S.W.3d 739, 745 (Tex.
App.—Houston [14th Dist.] 2001, pet. ref’d). “A jury may infer intent from any
facts which tend to prove its existence, including the acts, words, and conduct of
the accused, and the method of committing the crime and from the nature of
wounds inflicted on the victims.” Manrique v. State, 994 S.W.2d 640, 649 (Tex.
Crim. App. 1999). A jury may also infer knowledge from such evidence. See
Stahle v. State, 970 S.W.2d 682, 687 (Tex. App.—Dallas 1998, pet. ref’d);
Martinez v. State, 833 S.W.2d 188, 196 (Tex. App.—Dallas 1992, pet. ref’d).
Further, a firearm is a deadly weapon per se. TEX. PENAL CODE ANN.
§ 1.07(a)(17) (Vernon Supp. 2017); Sholars v. State, 312 S.W.3d 694, 703 (Tex.
App.—Houston [1st Dist.] 2009, pet. ref’d). And the intent to kill a complainant
may be inferred from the use of a deadly weapon in a deadly manner. Adanandus
v. State, 866 S.W.2d 210, 215 (Tex. Crim. App. 1993); Watkins v. State, 333
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S.W.3d 771, 781 (Tex. App.—Waco 2010, pet. ref’d). If a defendant uses a deadly
weapon in a deadly manner, the inference of intent to kill is almost conclusive.
Watkins, 333 S.W.3d at 781; Trevino, 228 S.W.3d at 736. “[T]he most obvious
cases and the easiest ones in which to prove a specific intent to kill, are those . . . in
which a firearm [is] used and [is] fired . . . at a person.” Godsey v. State, 719
S.W.2d 578, 581 (Tex. Crim. App. 1986).
Here, Deputy Harper testified that appellant pointed a firearm at him while
he and appellant were standing up “face[-]to[-]face, . . . within a foot of each
other.” Harper, who did not have a firearm or other weapon drawn at that time,
grabbed the “muzzle” of the firearm “to try to keep [appellant] from pointing it in
[his] direction.” While Harper was still holding the muzzle, appellant shot him in
the stomach.
Gercia similarly testified that he saw appellant and Deputy Harper initially
engaged in an altercation on the ground, but when appellant stood up, he pointed a
firearm at Harper. He also saw Harper grab the firearm in appellant’s hand, and he
heard it discharge. Further, appellant also admitted that he shot a firearm at Harper
and knew Harper was a “peace officer.”
Although on appeal appellant argues that the evidence is legally insufficient
to support his conviction for attempted capital murder because he shot Deputy
Harper in self-defense and did not intend to kill him, we note that the jury charge
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in this case included an instruction on self-defense. And even though appellant
testified that he “feared for [his] life,” shot at what he thought was Harper’s
shoulder, and was not trying to kill Harper, but only to “release [Harper’s] arm,” it
was for the jury to determine appellant’s credibility and the weight to be given to
his testimony. See Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011);
Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. App. 2010). Further, for
the evidence to be sufficient, the State “need not disprove all reasonable alternative
hypotheses that are inconsistent with the defendant’s guilt.” Wise v. State, 364
S.W.3d 900, 903 (Tex. Crim. App. 2012).
Viewing the evidence in the light most favorable to the verdict, we conclude
that a rational trier of fact could have determined beyond a reasonable doubt that
appellant intended to cause the death of Deputy Harper, a peace officer, and
committed “an act amounting to more than mere preparation.” See TEX. PENAL
CODE ANN. § 15.01(a) (Vernon 2011), § 19.03(a)(1) (Vernon Supp. 2017).
Accordingly, we hold that the evidence is legally sufficient to support appellant’s
conviction.
We overrule appellant’s sole issue.

Outcome: We affirm the judgment of the trial court.

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