author: JIM SHARP, Justice. JANE BLAND,

text:
    Timothy Lee RILEY, Appellant, v. The STATE of Texas, Appellee.
    No. 01-07-00718-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Sept. 18, 2009.
    Linda Cryer, Houston, TX, for Appellant.
    Carol M. Cameron, Assistant District Attorney, Houston, TX, for Appellee.

      Panel consists of Justices BLAND, SHARP, and TAFT.

       Justice Tim Taft, who retired from the First Court of Appeals effective June 1, 2009, continues to sit by assignment for the disposition of this case, which was submitted on March 24, 2009.

   OPINION

JIM SHARP, Justice.

A jury convicted appellant, Timothy Lee Riley, of theft of property with a value of $20,000 or more but less than $100,000. See Tex. Penal Code Ann. § 31.08(a), (b), (e)(5) (Vernon Supp. 2008), § 81.09 (Vernon 2003). The trial court assessed punishment at six years imprisonment, suspended, and placed appellant on community supervision. Appellant brings six points of error, challenging the legal and factual sufficiency of the evidence (points one, two, three, four, and six) and the trial court’s venue ruling (point five). We affirm.

Background

Appellant received money in four different transactions to construct buildings: (1) $5,772 from Charles Thomasson; (2) $9,611 from Roger Krenek and Towana Krenek; (3) $20,425 from Mark Mander-scheid and Denise Manderscheid; and (4) $9,175 from Lonnie Friend and Heath Friend. In each of these four situations, appellant accepted the complainants money, began construction, and later ceased work, leaving each of the complainants with an unfinished building. There was testimony at trial that appellant claimed the failure to complete each of the four transactions was due to either problems with the weather, his cash flow, his personal life, difficulties with his employees or subcontractors, or contract disputes with the complainants. Appellant testified at trial that he did not make representations to any of the complainants that he did not intend to fulfill.

Discussion

In points of error one, two, and three, appellant claims the evidence is legally insufficient to support his conviction (point one), factually insufficient to support his conviction (point two), and legally insufficient to show criminal intent (point three). Appellant’s brief contains five pages of discussion of case law concerning intent in the context of committing theft. Appellant then makes the following specific argument:

In the instant case, four complainants testified that Appellant entered into a construction contract with them, three of whom had no completion date for the work to be performed (Vol. VI, p. 10, 12, 22, 30); that they made a series of payments to him as the designated work continued to progress; that Appellant partially performed; that their projects became delayed as Appellant told him he ran into cash-flow problems due to some of the jobs he had completed either not paying him or giving him hot checks, personal problems, weather problems, or employees or sub-contractors not showing up; that they experienced contract disputes with Appellant over whether their payments were for his wages and profits, or materials, or services such as obtaining a building permit for Mander-scheid or the behavior of Appellant’s crew urinating in Kreneks yard; that none of them completed their project as originally contracted or subsequently modified; and that they made other arrangements to complete their respective projects.
Appellant testified that he had been in the business for 15 years; that he had 200 customers; that it was something he took pride in; that he was trying to save his business and did not want it to fail; that it was the only thing he knew; that he had to file Chapter 13 bankruptcy; that he had partially performed on all four contracts, but had contract disputes with all four complainants; that he did not know that he was not going to perform nor did he intend not to perform the projects for the respective complainants; that he did not state that he knew that he was not going to complete a project; and that he did not make a representation that he did not intend to fulfill or that he knew he could not fulfill or misstate a fact to try and obtain money.
The facts in the instant case are similar and on point with the said previously recited construction cases precedent. Consequently, this Court should reverse and acquit the Appellant on the basis of legal and/or factual insufficiency and/or insufficient evidence to show criminal intent to commit theft by deception.

We interpret points of error one, two, and three as attacking the sufficiency of intent to commit theft.

A person commits theft if he unlawfully appropriates property with intent to deprive the owner of property. See Tex. Penal Code Ann. § 81.03(a). Appropriation of property is unlawful if it is without the owner’s effective consent. See Tex. Penal Code Ann. § 31.03(b)(1) (Vernon Supp. 2008). Consent is not effective if it is induced by deception. See Tex. Penal Code Ann. § 31.01(3)(A) (Vernon Supp. 2008). The indictment charged appellant with committing theft by deception by “creating or confirming by words or conduct a false impression of law or fact that affected the judgment of the Complainant in the transaction which the Defendant did not believe to be true” and/or “promising performance that affected the judgment of the Complainant in the transaction, which performance the defendant knew would not be performed and/or which performance the defendant did not intend to perform.” See Tex. Penal Code Ann. § 31.01(1), (A), (E) (Vernon Supp. 2008). We will therefore review the sufficiency of the evidence of deception.

The standard of review for legal sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the verdict, 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, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979); King v. State, 29 S.W.3d 556, 562 (Tex. Crim.App.2000).

When conducting a factual-sufficiency review, we view all of the evidence in a neutral light. Cain v. State, 958 S.W.2d 404, 408 (Tex.Crim.App.1997). We will set aside the verdict only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App.2000). Under the first prong of Johnson, we cannot conclude that a conviction is “clearly wrong” or “manifestly unjust” simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 417 (Tex.Crim.App.2006). Under the second prong of Johnson, 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. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury’s verdict. Id. In conducting a factual-sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the jury’s verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App.2003).

We may not substitute our judgment for that of the fact-finder. King, 29 S.W.3d at 563. The fact-finder alone determines what weight to place on contradictory testimonial evidence because that determination depends on the fact-finder’s evaluation of credibility and demeanor. Cain, 958 S.W.2d at 408-09. As the determiner of the credibility of the witnesses, the fact-finder may choose to believe all, some, or none of the testimony presented. Id. at 407 n. 5. The standard for reviewing the factual sufficiency of the evidence is whether, after considering all of the evidence in a neutral light, the jury was rationally justified in finding guilt beyond reasonable doubt. Watson, 204 S.W.3d at 415.

Appellant argues that this is nothing more than a civil contract dispute, and as such, appellant’s partial performance negates any showing of intent to commit theft through deception. See, e.g., Jacobs v. State, 230 S.W.3d 225, 231-32 (Tex.App.Houston [14th Dist.] 2006, no pet.). Were this a case in which there was but one transaction, we would agree. However, here the evidence of intent to commit theft through deception consists of the pattern or scheme established in each of the four transactions. In each of them appellant accepted the complainants money, began construction, and later ceased work, leaving each complainant with an unfinished building. The jury could find evidence of appellant’s intent to commit theft through deception based on inferences from the surrounding circumstances. See Ellis v. State, 877 S.W.2d 380, 383 (Tex.App.Houston [1st Dist.] 1994, pet. ref d) (citing Coronado v. State, 508 S.W.2d 373, 374 (Tex.Crim.App.1974)).

Viewing the evidence in the light most favorable to the verdict, there was legally sufficient circumstantial evidence of appellant’s intent to commit theft through deception. Viewing all the evidence in a neutral light, including the testimony of appellant and his wife, we also hold that the evidence of appellant’s intent to commit theft through deception was not factually insufficient. The jury was free to determine the credibility of the witnesses and choose which testimony it believed. Accordingly, we overrule points of error one, two, and three.

In point of error four, appellant claims the evidence is legally and factually insufficient to establish appellant’s acts constituted one scheme or continuing course of conduct. Appellant’s complete argument on appeal consists of the following:

In drafting § 31.09, Tex. Penal Code (Vernon 2003), the legislature did not attach a technical or particular meaning to “scheme” or “continuing course of conduct,” thus a court must consider their common meaning. Johnson v. State [187 S.W.3d 591 (Tex.App.-Houston [14th Dist.] 2006) ], 011706 TXCA14, 14-04-00718. Webster’s 9th Collegiate Dictionary, p. 1050 (1986) defines “scheme” as a plan or program of action or a systematic or organized framework. Black’s Law Dictionary, Revised Fourth Edition page 1511 (1968) defines “scheme” as a design or plan formed to accomplish some purpose — a system.
As a result of the aggregation of the four complainants in the instant case, the cumulative effect is to punish Appellant who has no prior criminal history, as a felon which is beyond the range possible for the alleged crimes if prosecuted individually.
Moreover, both “scheme” and “continuing course of conduct” infer a systematic criminal intent which is clearly lacking in the instant case. The similarities between Appellant and the four instant complainants go toward the inherent requirements in a construction contract involving bidding, showing a prospective customer your work, and entering into a contract for successive payment amounts and incremental work performance until completion. The fact that the contract dispute resulted in partial performance by Appellant on the work assignments and partial payments by the complainants on the contracts does not rise to the level of systematic criminal intent required to prove a “scheme” or “continuing course of conduct” to allow a § 31.09, Tex. Penal Code aggregation of alleged theft amounts as in the instant case.

We first address the argument appellant makes in the second paragraph cited above — that the cumulative effect of Penal Code section 31.09 is to allow the State to aggregate conduct into a single offense that carries with it a higher punishment range than if each instance of the conduct was charged separately. This is clearly what the statute does, and to the extent appellant is challenging section 31.09, it has been waived on appeal because appellant has not preserved any such complaint in the trial court. See Tex. R.App. P. 33.1(a).

We now consider the argument appellant makes in the third paragraph cited above — that the evidence is legally and factually insufficient to establish appellant’s acts constituted one scheme or continuing course of conduct. Appellant seems to suggest that the statute requires an evidentiary burden on the State to show a prior intent to commit multiple offenses, which appellant describes as “systematic criminal intent.” Appellant cites no authority for this, and the plain meaning of the statute does not support this potential argument. See Tex. Penal Code Ann. § 31.09 (Vernon 2003) (“When amounts are obtained in violation of this chapter pursuant to one scheme or continuing course of conduct, whether from the same or several sources, the conduct may be considered as one offense and the amounts aggregated in determining the grade of the offense.”); see generally Tex. Gov’t Code Ann. § 311.011(a) (Vernon 2005) (“Words and phrases shall be read in context and construed according to the rules of grammar and common usage.”).

The one case cited by appellant, Johnson v. State, does not support appellant’s argument that a “systematic criminal intent” must be proved by the State. See Johnson, 187 S.W.3d 591, 603-04 (Tex.App.-Houston [14th Dist.] 2006, pet. ref d). Instead, Johnson reviewed the legal and factual sufficiency of the evidence to support whether a “rational juror could have found that [Johnson’s] acts constituted one scheme or continuing course of conduct.” Id. at 603. Applying the standards for legal and factual sufficiency discussed above, we hold (1) there was legally sufficient evidence for the jury to infer one scheme or continuing course of conduct on appellant’s part and (2) the evidence is not factually insufficient in that regard. Accordingly, we overrule point of error four.

In point of error five, appellant contends the trial court erred in denying his motion for a directed verdict regarding his transaction with Roger Krenek and Towana Krenek. At trial, appellant argued as follows: “They [the Kreneks] indicated that their property is in Porter, which is outside of Harris County. It’s not in Harris County. There’s not any evidence that any of the work was done in Harris County; and therefore, with respect to that particular allegation, I believe that it would be appropriate to file a motion for ... directed verdict as to that incident only.” The State responded that under aggregation, it is unnecessary for all the conduct to occur in the same county. The State also introduced evidence that appellant cashed the Kreneks’ checks in Harris County.

On appeal, appellant cites no authority for his proposition that a single aggregated offense under section 31.09 must consist only of conduct that occurs in the same county. In fact, the Court of Criminal Appeals has held that when theft is aggregated into a single offense section 31.09, the proper county for prosecution is any county in which any of the aggregated conduct occurred, or any element of the conduct. See State v. Weaver, 982 S.W.2d 892, 893 (Tex.Crim.App.1998). We overrule point of error five.

In point of error six, appellant argues that the State failed to prove the “actual aggregate amount of money allegedly taken by appellant.” Appellant’s complete argument is

All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. Tex. Penal Code § 2.01. In the instant case, there was a plethora of testimony regarding the contract amounts for each complainant, the partial payments that each complainant made on the contract, as well as the fact that Appellant partially performed under each contract. Consequently, the contract amount per complainant does not apply since none of the complainants paid the respective contract and/or modified contract amount. Partial payments that each complainant testified that they paid correspondent to either materials to be purchased or work to be performed and all testified that Appellant partially performed. Consequently, the record is not clear beyond a reasonable doubt with any of the complainants as to how to determine the amount of money allegedly taken by Appellant with criminal intent with each complainant, much less the cumulated aggravated amount to meet the threshold of a felony.

Other than a reference to Penal Code section 2.01, this point of error is not accompanied by any substantive argument with citation to the record and authority.

The State introduced evidence that the complainants directly paid appellant $44,983, which has a value of $20,000 or more but less than $100,000. We have already overruled appellant’s argument that legally and factually insufficient evidence exists of intent to commit theft through deception. We therefore interpret point of error six as a legal sufficiency argument that the State did not prove that the amount actually paid by the complainants, further reduced by the value of appellant’s later “partial performance,” was $20,000 or more but less than $100,000.

Appellant cites no authority for the proposition that if a person unlawfully appropriates property and later gives something of value (goods or services) to the property owner, then the State bears the burden of proof to offset the amount of the unlawfully appropriated property by the value of the later-bestowed goods or services. The concurrence suggests that Penal Code section 31.08(d) requires a deduction for the “partial performance” rendered. See Tex. Penal Code Ann. § 31.08(d) (Vernon 2003). If the offense were committed at the time appellant ceased work on each of the jobs, then section 31.08(d) might well apply. The offense, however, occurred at the time of the original deceptions. Because the Penal Code requires value to be determined at the time and place of the offense, appellant’s post-offense conduct is not relevant to determining value. See Tex. Penal Code Ann. § 31.08(a) (Vernon 2003).

Nevertheless, even if section 31.08(d) was applicable, it was appellant’s burden to prove the amount of the offset. See Tex. Penal Code Ann. § 31.08(d) (“If the actor proves by a preponderance of the evidence ... the amount ... so proven shall be deducted from the value of the property or service ascertained!)]”). In this case, in order for the record to establish that the value of the property was less than $20,000, appellant would have had to prove at trial, by a preponderance of the evidence, that the amount of the offset was greater than $24,983 ($44,983 minus $20,000).

Appellant does not cite to any portion of the record establishing that he proved at trial, by a preponderance of the evidence, that the aggregate value of his “partial performance” for all four jobs exceeded $24,983, and we have found no evidence in the record that establishes a value in such amount. Testimony from the complainants, as described in detail in the concurrence, demonstrates that any offset for “partial performance” to which appellant might have been entitled would be less than $24,983.

Viewing the evidence in the light most favorable to the verdict, the record supports that appellant appropriated an amount of $20,000 or more but less than $100,000, and that appellant did not prove, by a preponderance of the evidence, that such value should be reduced by an amount greater than $24,983.

We overrule point of error six.

Conclusion

We affirm the judgment of the trial court.

Justice BLAND, concurring.

JANE BLAND,

Justice, concurring.

In his sixth issue, appellant contends that the evidence is legally insufficient to support his conviction for aggregate theft of over $20,000 because the undisputed evidence demonstrates that he partially performed the work described in each contract, and the value of his partial performance offsets the amounts paid to him by the complaining witnesses under the contracts. Thus, he contends, the State failed to show beyond a reasonable doubt that he stole an amount exceeding $20,000. In its analysis, the majority expressly refuses to apply an offset for work appellant performed in analyzing whether the evidence supports a finding that the amount appellant stole exceeds $20,000. I disagree with the majority’s reasoning that appellant is not entitled to an offset for consideration he gave as partial performance on the construction contracts in determining the overall loss to the complainants, given that the record contains undisputed evidence to support it. I nevertheless concur in the judgment, because a reasonable jury could have found that appellant appropriated property in an amount that exceeds $20,000, even after deducting the value of work appellant performed under the contracts.

Appellant complains that the value of the property appropriated is not clear beyond a reasonable doubt. Like the majority, I interpret this issue as a challenge to the legal sufficiency of the evidence. See Markey v. State, 996 S.W.2d 226, 229 (Tex. App.-Houston [14th Dist.] 1999, no pet.). A review of the evidence in a light favorable to the jury’s verdict reveals sufficient evidence to support the verdict, even considering an offset for work appellant performed. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Drichas v. State, 175 S.W.3d 795, 798 (Tex.Crim.App.2005).

The evidence shows that appellant received a total of $44,983 from the four complainants. This amount, however, does not account for the work done by Riley for each complainant. Thus, we cannot accept this amount as the unassailable value of the stolen property, particularly here, where the amounts paid were admittedly pursuant to construction contracts, and the evidence shows that appellant performed at least some of his contractual obligations. See Robalin v. State, 224 S.W.3d 470, 475 (Tex.App.-Houston [1st Dist.] 2007, no pet.) (“The value of the property is reduced by any payments made by the defendant for the property.”). Under Chapter 31 of the Texas Penal Code, which governs theft offenses, determination of the stolen property’s “value” requires an offset for consideration provided. Section 31.08(d) states:

If the actor proves by a preponderance of the evidence that he gave consideration for or had a legal interest in the property or service stolen, the amount of the consideration or the value of the interest so proven shall be deducted from the value of the property or service ascertained[.]

Tex. Penal Code Ann. § 31.08(d) (Vernon 2003). The work appellant performed at each worksite qualifies as an amount to “be deducted from the value of the property.” Id. As appellant produced evidence of such offsets at trial, and the complaining witnesses each testified about the work appellant actually performed, we cannot ignore them in our sufficiency analysis. Neither can we use testimony about amounts the complaining witnesses paid to “cover” the breach of their agreements by hiring another contractor or completing the work themselves. These contract principles are not to determine a value stolen, but instead are expectancy remedies, intended to allow the non-breaching party the benefit of his bargain. The Texas criminal statute, however, has a restitution theory in mind: the amount (or fair market value) stolen, less any amount received. The amount needed to “cover” the work left under the contract can be evidence of the fair market value of the work left undone, but not of the amount stolen (which in this case was cash), or of the fair market value of the work partially performed.

Little authority exists interpreting Section 31.08(d), but its importance is particularly evident in construction cases. In Stockman v. State, for example, the appellant, a home builder, took money from the complainant with the understanding that the money would be used to buy appliances. Stockman v. State, 826 S.W.2d 627, 630-632 (Tex.App.-Dallas 1992, pet. ref'd). The appellant kept the money but never furnished the appliances. Id. at 634. The court acknowledged a “very decided conflict as to who is the actual owner of the money” because each party claimed that profits were earned by the appellant at a different point in the construction process. Id. at 635. The appellant had completed eighty-five to ninety percent of the construction. Id. at 636. The Dallas Court of Appeals ultimately did not reach the offset issue because it held that the evidence was insufficient to conclude that the defendant had an intent to deprive the complainant of the money, but the court observed that the value stolen had to be measured by something-other than just the contract price if the evidence showed partial performance. Id. Just as in Stockman, appellant here received money from complainants with a promise that he would complete certain work, but he did not finish it. In these circumstances, before concluding that the evidence supports a finding that appellant stole an aggregate amount over $20,000, we must determine whether the evidence supports the jury’s finding that appellant did not have a right to keep the money the complainants paid to him under the contracts based on work he had completed.

It is undisputed that appellant did not perform the entirety of the complainants’ jobs, but he completed the Thomassons’ frame and slab; the Kreneks’ frame and part of the siding; the Manderscheids’ frame and slab; and the Friends’ frame. Appellant received payments for this work. But, he also received payments that were not associated with the completion of any work done — labeled in the contracts as “deposits” and “startup costs”. Appellant received $1,600 as a deposit from the Thomassons; $3,298 as a deposit and $2,349 as startup costs from the Kreneks; $2,021 as a deposit and $6,952 as startup costs from the Manderscheids; as well as $2,525 as a deposit and $3,325 as startup costs from the Friends. Appellant did not refund these amounts, or any of the $44,983 paid to him, when he walked off the jobs. In reviewing the contracts, admitted into evidence as State exhibits, a rational jury could have concluded that the complainants received nothing in exchange for these amounts, and thus that appellant unlawfully appropriated them. Even accounting for the evidence that the complainants received partial construction work in exchange for the over $44,000 they paid to appellant, the complainants paid an aggregate amount of $22,070 in deposits and startup costs. A reasonable jury could have concluded the complainants received no value in exchange for those amounts when the work went uncompleted — a conclusion that yields a total value in excess of $20,000 as required to sustain the conviction. Thus, even reflecting the consideration appellant provided, by deducting the money he received upon completion of particular stages of the contract from the total amount paid to him — as section 31.08(d) requires — the evidence, when viewed in a light favorable to the verdict, supports a finding that appellant stole an aggregate amount exceeding $20,000.

Conclusion

Section 31.08(d) requires that the value of consideration given be deducted from the value of the property appropriated in determining the aggregate value of a theft. In analyzing the state of the evidence, the appellant thus is entitled to an offset for the value of the work he undisputedly performed on each job site in determining the overall value stolen. He is not criminally liable under a contractual beneflt-of-the-bargain theory — the statute simply examines value taken less value given. Neither the contract amount nor contractual cover suffices to establish the aggregate value of the theft. The evidence presented here, however, permitted a rational jury to conclude that the value stolen, even after deducting the undisputed value of consideration given, exceeds $20,000. I therefore concur in the judgment of the court.

      . We assume, without deciding, that inherently dissimilar kinds of theft, e.g., appropriating a cow in West Texas and appropriating a checkbook in Dallas, would be susceptible to a legal- and factual-sufficiency challenge if they were aggregated into a single offense.

      . All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that he has been arrested, confined, or indicted for, or otherwise charged with, the offense gives rise to no inference of guilt at his trial. Tex. Penal Code Ann. § 2.01 (Vernon 2003).

      . We need not, and do not, determine whether valid contracts existed.

      . Section 31.08(d) provides:
      If the actor proves by a preponderance of the evidence that he gave consideration for or had a legal interest in the property or service stolen, the amount of the consideration or the value of the interest so proven shall be deducted from the value of the property or service ascertained under [the other subsections of section 31.08 pertaining to calculation of value for purposes of theft chapter of penal code.]
      Tex. Penal Code Ann. § 31.08(d) (Vernon 2003).

      . Although appellant and his wife testified as to certain amounts spent by him or "owed” to him related to various jobs, no evidence was offered as to the specific value of appellant’s actual "partial performance” on the four jobs.

        . Using the calculations in the concurring opinion, the offset would at most be $22,913 ($44,983 minus the $22,070 for which no value was given).
      We note also that testimony from the complainants regarding the amount they paid contractors to complete the work or their own estimate of the amount of work done, might give some indication of the value of the work done by appellant. Thomasson testified that he paid another contractor $3,800 to finish the work. Mark Mander-scheid testified that he completed the work himself for an estimated cost of $15,000. Lonnie Friend testified that she estimated that appellant had performed 30 percent of the job he said he would do, for which she paid $9,175. (Towana Krenek testified that the amount spent by the Kreneks to complete the job exceeded the amount paid to appellant, providing no evidence which might assist in calculating the value of the job done.) Even utilizing these figures, in conjunction with the amounts paid by complainants, to estimate the value of work done by appellant on the jobs, the total "offset” based on this evidence would still be less than $24,983.


source: Caselaw Access Project

author: ELSA ALCALA, Justice.

license: Public Domain

text:
    Keaaron REED, Appellant, v. The STATE of Texas, Appellee.
    No. 01-08-00825-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Sept. 24, 2009.
    Discretionary Review Refused Feb. 10, 2010.

      Kenneth Goode, Houston, TX, for Appellant.
    Kenneth Magidson, Harris County District Attorney, Shirley Cornelius, Assistant District Attorney-Harris County, Houston, TX, for Appellee.
    Panel consists of Justices KEYES, ALCALA, and HANKS.
   OPINION

ELSA ALCALA, Justice.

Appellant, Keaaron Reed, appeals from a judgment convicting him for the murder of Fred Porter. See Tex. Penal Code Ann. § 19.02 (Vernon 2003). Appellant pleaded not guilty, the jury found him guilty, and the trial court sentenced him to 18 years in prison. In two related issues, appellant contends the trial court abused its discretion by admitting the transcript of a witness’s prior testimony because that evidence was inadmissible hearsay and violated appellant’s federal constitutional right to confront witnesses under the Confrontation Clause. See U.S. Const, amend. VI; Tex.R. Evid. 804. We conclude the trial court did not abuse its discretion by admitting the statement because the State made good-faith efforts to procure the absent witness. We affirm the judgment of the trial court.

Background

On December 11, 2006, Sharika Fonte-not, John Drumgo, and complainant, Porter, drove to the Sugar Branch/Forum Park Apartment Complex. When Porter got out of the car to speak to a woman, a group of eight to ten' young men “swarmed” the car. One of the men punched Porter, knocking him down. As Fontenot picked up Porter from the ground, appellant shot Porter multiple times.

Appellant claims he did not see anyone hit Porter, although he saw an altercation. Furthermore, appellant asserts that he shot Porter because he feared his life was in imminent danger when Porter exhibited a gun.

An investigator for the Harris County District Attorney’s Office, Jimmy Jones, experienced difficulty obtaining the testimony of witness Samantha Stewart for appellant’s first trial, which ended in a mistrial. Stewart missed several appointments with Jones before eventually meeting him and providing a statement. Prior to the first trial, Jones arrested Stewart for an outstanding warrant, so that Stewart was in the custody of the Harris County Jail during appellant’s first trial. Stewart testified at appellant’s first trial, but disappeared after her testimony.

After the first trial ended, Jones was unable to reestablish contact with Stewart, even after attempting to reach her through relatives and friends. Jones eventually served Stewart with a subpoena for the rescheduled trial date and brought her to court on a bench warrant. The district court judge instructed Stewart to return to court for the rescheduled trial date.

In January, Stewart left Jones a voice-mail, saying that she was in Dallas and was afraid to testify due to threats made against her life. When Stewart did not appear at trial, Jones again was unable to contact her through family and friends. Stewart had no permanent phone number, as she changed cell phone numbers every few weeks. Stewart did not own property or registered vehicles, nor did she reside at her known address. Jones testified that he asked officials with Fort Bend County, where Stewart had an outstanding warrant, to contact him if the county arrested her. On the day of Jones’s testimony, Stewart’s father told Jones that he thought Stewart might be in Chicago. Over objection from counsel for appellant, the trial court admitted Stewart’s testimony from the previous trial.

The prior testimony by Stewart was admitted at the second trial. In her testimony at the first trial, Stewart explained that, on December 11, 2006, she, was a passenger in another car that her friend, Veronica Washington, was driving. Washington and Stewart stopped the car to see some friends at the Sugar Branch Apartments. After learning that a fight was happening at the complex, Washington got out of the car to watch the altercation. Stewart stayed in the car, and five to ten minutes later heard several gunshots. Stewart saw Washington, appellant, and several other men running towards the car. The men bragged about the shooting. Appellant got into Washington’s car with a gun and the complainant’s phone. While riding with Stewart in the car, appellant continued to boast about the killing. Appellant also called several of Porter’s friends with Porter’s phone. He informed Porter’s friends of the murder and said that they could “come get” Porter.

Former Testimony by Unavailable Witness

In his first issue, appellant contends the trial court improperly admitted hearsay statements made by Stewart in violation of Rule 804(b)(1) of the Texas Rules of Evidence. See Tex.R. Evid. 804(b)(1). The State responds the trial court followed the proper procedures for admitting hearsay statements. See Tex.R. Evid. 804(b)(1), (a)(5). Rule 804(b)(1) states that in criminal proceedings, the court may admit prior testimony given by a presently unavailable witness “if the party against whom the testimony is now offered had an opportunity and similar motive to develop the testimony.” Tex.R. Evid. 804(b)(1).

Appellant does not dispute that he had an opportunity and similar motive to develop the testimony of Stewart. Rather, appellant challenges the admission of the evidence on the sole ground that the State failed to demonstrate the “unavailability” of Stewart as a witness as defined by Rule 804(a)(5). See Tex.R. Evid. 804(a)(5). Specifically, appellant contends that Stewart was not “unavailable” because the State did not establish that investigators were “unable to procure the declarant’s attendance or testimony by process or other reasonable means.” Id.

Admission of Out-of-Court Statements

In his second issue, appellant contends the trial court’s improper admission of hearsay statements made by Stewart violates his rights under the Confrontation Clause of the U.S. Constitution. See U.S. Const, amend. VI. The State responds that the prosecution satisfied the requirements for an exception to the Confrontation Clause.

A defendant has a constitutional right to confront and cross-examine the witnesses against him. See U.S. Const. amend. VI; Crawford v. Washington, 541 U.S. 36, 38, 124 S.Ct. 1354, 1357, 158 L.Ed.2d 177 (2004). The Confrontation Clause prohibits a witness from recounting a declarant’s out-of-court statements that are testimonial unless the declarant is unavailable to testify and the defendant had a prior opportunity to cross-examine the declarant, regardless of whether the declar-ant’s statements are deemed reliable by the court. Crawford, 541 U.S. at 68, 124 S.Ct. at 1374; accord Wall v. State, 184 S.W.3d 730, 734-35 (Tex.Crim.App.2006). Similarly to the first issue, appellant contends the State failed to show the “unavailability” of Stewart as a witness for this exception to the Confrontation Clause to apply.

“Unavailability” Under 804(a)(5) and Confrontation Clause

In order to establish that a witness is “unavailable” under Rule 804(a)(5), the proponent of testimony must demonstrate that a good-faith effort was made prior to trial to locate and present the witness. See Loun v. State, 273 S.W.3d 406, 420 (Tex.App.-Texarkana 2008, no pet.); Ledbetter v. State, 49 S.W.3d 588, 594 (Tex.App.-Amarillo 2001, pet. ref'd); Reyes v. State, 845 S.W.2d 328, 331 (Tex. App.-El Paso 1992, no pet.). Similarly, “unavailability” for purposes of the Confrontation Clause is established if the prosecution has made a good-faith effort to obtain the witness’s presence at trial. Ohio v. Roberts, 448 U.S. 56, 74, 100 S.Ct. 2531, 2543, 65 L.Ed.2d 597 (1980) (quoting Barber v. Page, 390 U.S. 719, 724-25, 88 S.Ct. 1318, 1322, 20 L.Ed.2d 255 (1968)), overruled on other grounds by Crawford, 541 U.S. 36, 124 S.Ct. 1354; Ledbetter, 49 S.W.3d at 592. For both Rule 804(a)(5) and the Confrontation Clause, an appellate court reviews for abuse of discretion the trial court’s ruling concerning whether the effort to obtain the witness is sufficient. Coffin v. State, 885 S.W.2d 140, 149 (Tex. Crim.App.1994); Ledbetter, 49 S.W.3d at 592; see Mancusi v. Stubbs, 408 U.S. 204, 211-13, 92 S.Ct. 2308, 2312-13, 33 L.Ed.2d 293 (1972).

Sufficiency of Efforts to Obtain Testimony

Jones’s attempts to locate Stewart are sufficient to show the State made good-faith efforts to obtain Stewart for trial. The record shows repeated efforts by Jones to produce Stewart for trial. Jones exhausted his contacts among Stewart’s family and friends and had no knowledge of her whereabouts, except for the speculation she might be in Chicago. Any further efforts could reasonably have been deemed futile by the trial court. Because Jones could not determine where Stewart could be located, a writ of attachment would have been futile because the writ would not have brought the witness to trial.

The cases upon which appellant relies are factually dissimilar. The court in Otero-Miranda held that issuance of un-served subpoenas, without any further action, did not establish good-faith efforts to obtain a witness. Otero-Miranda v. State, 746 S.W.2d 352, 355 (Tex.App.-Amarillo 1988, pet. refd, untimely filed). Here, Jones personally served Stewart with process and she appeared at the courthouse, where the Judge personally instructed her to show up at the rescheduled trial date. Jones also tried contacting Stewart through friends and relatives, called cell phone numbers that Stewart constantly changed, searched for any property or registered vehicles, and directed Fort Bend County to inform him upon her arrest. These efforts far exceed mere issuance of subpoenas.

Reyes is also distinguishable. In Reyes, the court held that additional efforts beyond an issuance of subpoena failed to establish a good-faith effort. Reyes, 845 S.W.2d at 331. However, three important facts distinguish the present case from Reyes. First, while the investigator in Reyes began his attempts to locate the absent witness only three days before trial, Jones attempted various methods for months. Id. at 330. Second, the Reyes investigator contacted one family member, unlike the numerous relatives and friends whom Jones contacted. Id. Third, Reyes concerned two absent witnesses; the trial court admitted testimony of an absent witness for the State, but excluded testimony of an absent witness for the defense. Id. Only one witness is at issue in this case. In determining the trial court in Reyes erred, the court held the “trial judge’s reasoning led to inconsistent results,” and his “application of [Rule] 804 was not evenhanded.” Id. at 330, 333. The three circumstances in Reyes are not present here.

We hold the trial court did not abuse its discretion in admitting the statements by determining that the State made good-faith efforts to obtain Stewart’s presence at trial. By demonstrating good-faith efforts, the State has established the “unavailability” of Stewart as a witness under both the Confrontation Clause of the U.S. Constitution and Rule 804 of the Texas Rules of Evidence. See U.S. Const. amend. VI; Tex.R. Evid. 804(a)(5); Roberts, 448 U.S. at 74, 100 S.Ct. at 2543; Loun, 273 S.W.3d at 420; Ledbetter, 49 S.W.3d at 594. Because Stewart was an “unavailable” witness, the admission of her testimony was proper under Rule 804, and the admission did not violate appellant’s rights under the Confrontation Clause. See Tex.R. Evid. 804(b)(1); Crawford, 541 U.S. at 68, 124 S.Ct. at 1374; see also Ledbetter, 49 S.W.3d at 594 (rejecting assertion that writ of attachment is necessary, stating “State is not required to engage in clearly futile activities before a trial court can, in its discretion, determine that the State made good-faith efforts to produce a witness at trial”).

We overrule appellant’s first and second issues.

Conclusion

We affirm the judgment of the trial court.


author: JANE BLAND, Justice. JIM SHARP, Justice,

text:
    Kenny HUBERT, Appellant, v. The STATE of Texas, Appellee.
    No. 01-08-00186-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Sept. 24, 2009.
    Rehearing Overruled Nov. 23, 2009.
    Discretionary Review Refused March 31, 2010.
    Patrick F. McCann, Law Offices of Patrick F. McCann, Houston, TX, for Appellant.
    Jessica A. McDonald, Assistant District Attorney, Houston, TX, for Appellee.

      Panel consists of Justices BLAND, SHARP, and TAFT.

      . Justice Tim Taft, who retired from the First Court of Appeals on June 1, 2009, continues to sit by assignment for the disposition of this case, which was submitted on April 14, 2009.

   OPINION

JANE BLAND, Justice.

The State charged Kenny Hubert with possession of a controlled substance, phen-cyclidine, also known as PCP, weighing between four grams and two-hundred grams. See Tex. Health & Safety Code Ann. §§ 481.102(8) (Vernon 2003 & Supp. 2008), 481.115(d) (Vernon 2003).' A jury found Hubert guilty. Hubert pleaded true to two enhancements, triggering a minimum sentence of twenty-five years’ confinement. The jury assessed punishment at thirty years’ confinement. Hubert appeals his conviction, contending that the evidence is legally and factually insufficient to support a finding of possession. We conclude that legally and factually sufficient evidence links Hubert to the drugs that the jury found him to have possessed and therefore affirm.

Background

Based on a tip that it was the site of narcotics trade, Houston police officers and United States Marshals began surveillance on a house on Ponnel Street in northwest Houston. Officers observed a tan Ford Taurus parked in the driveway behind the house. Officers watched several people approach the house and stay for short periods of time. That afternoon, Kenny Hubert and his girlfriend, Florenda Johnson, left in the Taurus. Police stopped them shortly thereafter. Hubert told the officers his name was Christopher Jackson, and he provided them with a Texas driver’s license bearing that name, but the picture was of a different person. Officers seized a set of keys from Hubert. Officers asked to search the Ponnel Street house. Hubert declined to give them permission. The officers took Hubert into custody. Later that afternoon, officers obtained a search warrant for the Ponnel Street house.

One of the officers testified that, based on his previous experience, the house had the characteristics of a drug house: it was sparsely furnished and few personal belongings were present. Upon entering the house, officers noted that the house had a strong odor of both fresh and burned marijuana. In the kitchen, they discovered a bag of marijuana, a vanilla extract bottle filled with liquid, and three other small glass vials. One officer testified that vanilla extract bottles are commonly used for storing PCP, which is then poured into the smaller vials for sale and distribution. The bottle found in the kitchen contained 3.17 grams of PCP. In a kitchen drawer, officers also found a photo of a pile of hundred dollar bills, commonly referred to as a “bragging photo,” because a narcotics dealer may use it in bragging about the proceeds of a sale.

Officers continued their search and recovered more evidence from the bedrooms. In the left rear bedroom, officers discovered a scale used to weigh narcotics and two additional extract bottles, containing traces of PCP, on the floor. In the closet, officers found one extract bottle containing 6.85 grams of PCP, a loaded firearm, and paperwork containing Kenny Hubert’s name. The PCP and paperwork were next to each other on a middle shelf of the closet, and the firearm was on the top shelf. The paperwork consisted of Kenny Hubert’s bank statements from April and May 2007, a certificate for Hubert’s completion of an industrial sewing program, and Hubert’s birth certificate. Police found no other documents in that bedroom. In the right rear bedroom, officers found a shoebox lid containing marijuana and cigar pieces, a Western Union receipt that indicated that Kenny Hubert had sent money to his brother Eric Hubert, a ledger of narcotics sales, and a Houston Municipal Court citation dated June 30, 2007, for Hubert’s other brother, DeMarcus Hubert. Kenny Hubert’s address listed on the Western Union receipt was on Marcolin Street, not Ponnel Street. The receipt was dated approximately one month before the search.

Officers also searched the carport area at the rear of the house and found two parked vehicles. Inside one, officers discovered another vanilla extract bottle containing 23.81 grams of PCP and several lids to vials used for PCP distribution. Officers looked for paperwork indicating the vehicle’s ownership, such as registration or insurance papers, but found only a mobile phone bill in Kenny Hubert’s name in the glove compartment with a different address than Ponnel Street. Officers later learned that neither vehicle was registered to any of the Huberts. When the officers completed their search, they secured the house by locking it with one of the keys they obtained from Kenny Hubert during his arrest.

Florenda Johnson testified that Hubert lived with her on Marcolin Street in north Houston from March or April until the end of June 2007. Johnson testified that before moving to her home, Hubert had been incarcerated, lived in a halfway house, and then, after his release, spent a week with his grandmother. She testified that he moved out in June because he was on the run from an outstanding arrest warrant. On cross-examination, the prosecutor asked Johnson if she had accepted a reward for tipping off the United States Marshals that they could find Hubert on Ponnel Street. Johnson denied having assisted the authorities locate Hubert.

Deputy Marshal M. Santiago testified that he contacted Johnson about helping him locate Kenny Hubert. A week later, Johnson called Santiago and agreed to help. On the day of Hubert’s arrest, Johnson called Santiago and informed him that he would find Hubert at the Ponnel Street house, and that he was driving a tan Ford Taurus. After Hubert was arrested, Johnson called the Marshals’ office to inquire about receiving a reward for her assistance in locating Hubert. She received her reward in August 2007, complying with the requirements that she provide identification, a photo, fingerprints, and her signature.

Discussion

On appeal, Hubert contends that the evidence is legally and factually insufficient to support his conviction. He argues that the State presented no evidence of actual possession and no forensic evidence linking him to the crime. Hubert argues that he was not the owner of the house, and the State presented no testimony that he lived at the Ponnel Street house or operated a business out of it. Further, the bills found with Hubert’s name on them listed two different addresses, neither of which was the Ponnel Street house. He contends that two other people were in the house when he was arrested and that the drugs were concealed, so there is no indication that he even knew drugs were present in the house. On the other hand, Hubert was in the house and had a key to it; he lied to the police about his identity; his personal papers, including his birth certificate, were found next to the drugs; and the house had characteristics of a stash house used for illegal drug trade.

In evaluating the legal sufficiency of the evidence, we view 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 offense beyond a reasonable doubt. Jackson v, Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim.App.2005). We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as this was the function of the trier of fact. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999); Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App.1992); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim.App.1991).

In evaluating factual sufficiency, we consider all the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 414 (Tex.Crim.App.2006). We set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App.2000). Under the first prong of Johnson, we cannot conclude that a verdict is “clearly wrong” or “manifestly unjust” simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson, 204 S.W.3d at 417. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury’s verdict. Id. We must also discuss the evidence that, according to the appellant, most undermines the jury’s verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim.App.2003).

A person commits second-degree felony possession of a controlled substance if he knowingly or intentionally possesses the controlled substance — in this case, PCP— in an amount greater than four grams but less than two-hundred grams. Tex. Health & Safety Code Ann. § 481.115(d) (Vernon 2003). The State must show that the accused (1) exercised care, custody, control, or management over the contraband and (2) knew the matter possessed was contraband. Tex. Health & Safety Code Ann. § 481.002(38) (Vernon 2003 & Supp. 2008); Pena v. State, 251 S.W.3d 601, 606 (Tex.App.-Houston [1st Dist] 2007, pet. ref'd).

If, as here, the accused does not exclusively possess the place where the contraband is found, then independent facts and circumstances must link him to the drugs. Poindexter v. State, 153 S.W.3d 402, 406 (Tex.Crim.App.2005); Batiste v. State, 217 S.W.3d 74, 79-80 (Tex. App.-Houston [1st Dist.] 2006, no pet.). Proof of a link between the accused and the contraband is mainly needed to establish knowledge or intent. Roberson v. State, 80 S.W.3d 730, 735 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). It is not sufficient to show the defendant was merely present in the vicinity of the controlled substance. Batiste, 217 S.W.3d at 80. Hubert relies on Vargas v. State, 883 S.W.2d 256, 263 (Tex.App.-Corpus Christi 1994, pet. refd), for the proposition that, since the PCP was secreted, the State’s evidence must prove that Hubert could have known about its presence. In fact, the State must show not only that Hubert could have known about the drugs, but also that he exercised care, custody, management, or control over those drugs. Whether direct or circumstantial, the evidence must establish that the defendant’s connection with the drug is more than fortuitous. Evans v. State, 202 S.W.3d 158, 161 (Tex.Crim. App.2006). Texas courts have set forth a non-exclusive list of possible links that can be sufficient, either alone or in combination, to establish a person’s possession of contraband. Id. at 162 n. 12. Each case is examined on its own facts, and a factor that contributes to the sufficiency of the evidence in one case may be of little or no value in a different case. Roberson, 80 S.W.3d at 736. The number of affirmative links is not as important as the logical force that they collectively create. Batiste, 217 S.W.3d at 80. We need not consider linking factors that are absent from the evidence. Id.

Viewed in a light most favorable to the verdict, we conclude that the evidence is legally sufficient to link Hubert to the PCP. Officers observed Hubert leaving the Ponnel Street house, and he had a key to the house in his possession. See Coleman v. State, 113 S.W.3d 496, 501 (Tex.App.Houston [1st Dist.] 2003) (holding that appellant having a key to the house is a link), aff'd, 145 S.W.3d 649 (Tex.Crim.App.2004). He provided officers with false identification when he was arrested. See Hargrove v. State, 211 S.W.3d 379, 387 (Tex.App.San Antonio 2006, pet. ref d) (holding that giving false identification information indicates a consciousness of guilt). When officers entered the house, they detected a strong odor of marijuana, and the house had other characteristics of a drug house. Officers discovered PCP in an enclosed space — a bedroom closet — on a shelf next to Hubert’s birth certificate, bank statements, and his certificate of completion for an industrial sewing course. See Nhem v. State, 129 S.W.3d 696, 700 (Tex.App.Houston [1st Dist.] 2004, no pet.) (holding that the appellant’s driver’s license and mobile phone bills in close proximity to the controlled substance were sufficient to link him to the controlled substance); Coleman, 113 S.W.3d at 501 (holding that appellant’s college identification found in a safe with PCP linked him to the drugs). A scale for weighing drugs was also out in plain view in the bedroom where officers found PCP. See Hargrove, 211 S.W.3d at 386 (holding that digital scales for weighing drugs in plain view constitute a link). Also, in the vehicle parked in the carport, police found PCP and Hubert’s mobile phone bill with a due date two weeks before the search. See id. We conclude that the logical force from these links is sufficient for a rational jury to have concluded beyond a reasonable doubt that Hubert exercised care, custody, control, or management over the PCP in the closet and the vehicle, but not the PCP in the kitchen. The weight of the PCP from the closet and the PCP from the vehicle each independently constitute an amount between four grams and two-hundred grams. We hold that the evidence presented at trial is legally sufficient to sustain the conviction.

Considering all of the evidence in a neutral light, we also conclude that the evidence was factually sufficient to sustain the jury’s verdict. Hubert alleges that the following facts undermine the verdict: documents in the house showed his address to be elsewhere, and no one testified that he lived on Ponnel Street; his fingerprints were not found on any of the PCP bottles; no one observed any drug deals taking place; no accomplices testified against him; Hubert never confessed to any crime; and the PCP was not in plain view but was located in the closet and the car, indicating that Hubert may not have known of its presence. Even considering these factors, the great weight and preponderance of the evidence does not contradict the jury’s verdict. At most, they indicate that Hubert may not have had exclusive control over the PCP. See Nhem, 129 S.W.3d at 701. Possession of a controlled substance, however, need not be exclusive to constitute a violation of law. Martin v. State, 753 S.W.2d 384, 387 (Tex.Crim.App.1988). The evidence of Hubert’s personal documents next to the PCP in the closet and the car, the drug paraphernalia in plain view, and the fact that Hubert was arrested after leaving the house with a key to it in his possession all supports a finding that Hubert possessed the PCP. Moreover, Johnson told Deputy Santiago that Kenny Hubert could be found at the Ponnel Street house, and police arrested him after they saw him leave the house. Accordingly, we hold that the evidence is factually sufficient to sustain the jury’s verdict.

Hubert relies on Denbow v. State, 837 S.W.2d 235, 236-38 (Tex.App.-Dallas 1992, pet. ref'd), Jenkins v. State, 76 S.W.3d 709, 717-19 (Tex.App.-Corpus Christi 2002, pet. ref'd), and Dixon v. State, 918 S.W.2d 678, 681-82 (Tex.App.-Beaumont 1996, no pet.), as analogous cases where the evidence was legally and factually insufficient. These cases are distinguishable from Hubert’s situation. In Denbow, when the defendant was stopped in a parking lot by a police officer on a suspicion that the car was stolen, he jumped out of the car and fled from the officer. Denbow, 837 S.W.2d at 236. The officer discovered a right-hand glove and a bottle of methamphetamine a few feet from the car’s bumper, and the defendant had the left-hand glove when he was apprehended. Id. The court nevertheless found the evidence legally and factually insufficient because the bottle of methamphetamine was found in an open public space, a parking lot, and the officer did not observe whether the bottle was present before the defendant arrived on the scene. Id. at 238. In both Jenkins and Dixon, police found drugs in the trunks of cars in which the defendants were passengers. Jenkins, 76 S.W.3d at 717; Dixon, 918 S.W.2d at 681. But neither defendant owned the car, nor was he driving it. Jenkins, 76 S.W.3d at 717; Dixon, 918 S.W.2d at 681. Neither defendant had any possessions in the trunk of the car to connect him to the drugs, nor did he possess any drugs or paraphernalia on his person. Jenkins, 76 S.W.3d at 717; Dixon, 918 S.W.2d at 681. Neither defendant indicated a consciousness of guilt or attempted to flee from the police or made any incriminating statements linking himself to the drugs. Jenkins, 76 S.W.3d at 717; Dixon, 918 S.W.2d at 681. In contrast, the officers in this case found Hubert’s personal belongings near both the bottle of PCP in the closet and the bottle of PCP in the car. Drug paraphernalia was in plain view throughout the house, and Hubert exhibited a consciousness of guilt by giving officers another person’s identification.

Conclusion

We hold that the evidence presented is both legally and factually sufficient to support the jury’s verdict that Hubert possessed between four grams and two-hundred grams of PCP. We therefore affirm the judgment of the trial court.

Justice SHARP, concurring in part and dissenting in part.

JIM SHARP, Justice,

concurring and dissenting.

Charged with possession of a firearm by a felon, appellant was acquitted. Charged with possession of the drugs found within inches of that same firearm, he was convicted. That a person can be convicted of possession of a controlled substance on such tenuous connections is disturbing, and our jurisprudence should not abide such a result.

The jury determined that appellant’s recent presence at the house in which a gun and drugs were found — a house that the evidence suggested was not his, but his brothers’ — coupled with the presence of (1) a medical statement and two bank statements (all listing other addresses than where the gun and drugs were found), a 2002 Lamar College course certifícate, and a birth certifícate, found in the corner of a closet shelf in the vicinity of the gun and vial of drugs, and (2) a cell phone bill and wire transfer receipt found in other parts of the house (also listing other addresses), were sufficient “links” to find appellant guilty beyond a reasonable doubt of drug possession, but not the firearm possession.

I recognize that when the evidence at trial is viewed in the light most favorable to the verdict, and resolving all inferences in favor of the verdict, a jury could have found that there were sufficient links between appellant and the controlled substance to find that he knowingly possessed the PCP.

However, viewing the evidence at trial in a neutral light, the record shows that:

(1) there was no testimony that appellant actually resided in the house and he never admitted to living at that address;
(2) there was testimony that appellant had quite recently lived elsewhere (with his girlfriend) and all documents found at the house with his name listed other addresses (his grandmother’s or his girlfriend’s);
(3) there was evidence that his brothers were living in the house, and drugs and paraphernalia were found in a room in which personal items belonging to one of his brothers were found;
(4) incriminating forensic evidence in the case was limited to a single fingerprint lifted from a vial of drugs in the kitchen, which print belonged to appellant’s brother, not appellant;
(5) there was testimony that the car in which some of the PCP was found was registered to someone other than appellant, and there was no evidence that appellant ever actually used that car;
and, most significantly,
(6)two other people were seen leaving the area of the residence between the time appellant left and the police executed the warrant, searched the house, and found the drugs and gun. One was seen actually leaving the house, and the other was seen walking down the driveway, the latter being seen as late as 3:30 p.m., approximately two and one-half hours after appellant Hubert had driven away and had been arrested minutes thereafter.

In light of these facts, I would hold that evidence at trial demonstrating links between appellant and the drugs is so weak that the verdict is clearly wrong and manifestly unjust.

That someone with access to that house possessed drugs and, possibly, was even dealing drugs, is not sufficient to convict appellant of such crimes. The evidence in the record linking appellant to the PCP is simply not enough to establish possession. The State proved no more than a mere probability or strong suspicion, if that, that appellant possessed the PCP. “Proof amounting to only strong suspicion or mere probability will not suffice” to support a conviction for possession. See Roberson v. State, 80 S.W.3d 730, 742 (Tex. App.-Houston [1st Dist.] 2002, pet. refd). Possession means more than merely “being where the action is.” Meeks v. State, 692 S.W.2d 504, 511 (Tex.Crim.App.1985) (quoting Wilkes v. State, 572 S.W.2d 538, 540 (Tex.Crim.App.1978)).

I, therefore, concur with the portion of the majority’s opinion holding that the evidence is legally sufficient, but dissent to the portion of the opinion holding that the evidence is factually sufficient. I would hold that the evidence is factually insufficient to link appellant to the POP, reverse appellant’s conviction, and remand this cause for a new trial.


author: EVELYN V. KEYES, Justice.

text:
    Heywood Joseph SHOLARS, Appellant, v. The STATE of Texas, Appellee.
    No. 01-08-00060-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Sept. 24, 2009.
    Discretionary Review Refused March 3, 2010.

      Danny Karl Easterling, Easterling & Easterling, P.C., Houston, TX, for Appellant.
    Bridget Holloway, Assistant District Attorney, Houston, TX, for Appellee.
    Panel consists of Justices KEYES, HANKS, and BLAND.
   OPINION

EVELYN V. KEYES, Justice.

A jury convicted appellant, Heywood Joseph Sholars, of capital murder. The trial court sentenced appellant to life in prison. In two points of error, appellant argues that (1) the trial court erred in using a stair-step instruction which prohibited consideration of a lesser offense in determining guilt as to the charged offense and in permitting prosecutorial jury argument that repeated the error; and (2) the evidence presented at trial was factually insufficient to show that appellant intentionally shot the complainant or intended to shoot another person.

We affirm.

Background

On April 7, 2005, at approximately 9:00 p.m., appellant and Jesse Davis traveled to a shopping center on Griggs Road in Houston, Texas. Appellant and Davis arrived at the shopping center, stood on the sidewalk and watched as patrons of the Winning World gaming room at 5060 Griggs Road entered and exited the illegal gaming business. Appellant was carrying a black gun in his pocket. Both appellant and Davis were wearing black shirts, black shorts, and black hats. Paul Boutte arrived at the gaming room and rang the doorbell to gain entry. The manager, Melissa Rivera, opened the door to let Boutte into the gaming room. As Boutte entered the gaming room, appellant and Davis ran down the sidewalk toward the gaming room. Appellant and Davis ran behind Boutte and began to push him into the gaming room. An unidentified customer shouted, “Don’t let them in.” Boutte quickly turned and tried to close the door behind him to prevent appellant and Davis from entering the gaming room.

Appellant was standing outside the door of the gaming room; Davis was standing behind appellant. Appellant and Boutte were struggling as Boutte tried to prevent appellant from entering the gaming room. The complainant saw Boutte struggling to keep appellant outside and came up behind Boutte to assist him. Appellant opened the door and placed his foot in the door to pry it open. Appellant was able to open the door approximately six inches. He took the gun from his pocket with his right arm and pointed it at Boutte through the door. Appellant fired the gun once and paused for approximately two seconds before firing the gun again. The complainant was struck in the abdomen. Appellant did not speak throughout the entire transaction of events.

After the second shot, Davis grabbed appellant’s right arm and pulled it out of the door frame. Appellant and Davis ran away from the scene and passed Yosly Ordonez’s home. Ordonez was on the porch of her home when she heard noises resembling gunshots. Soon after she heard the noises, appellant and Davis ran in front of the house. She asked appellant and Davis why they were running “like you did something.” Neither responded to Ordonez’s question. Appellant and Davis disposed of the gun, ran to their car, which was parked at a nearby apartment complex, and drove away from the scene. On April 12, 2005, after receiving an identification from Ordonez, Houston Police Department (“HPD”) officers arrested appellant. Appellant was charged with committing the offense of capital murder by attempting to commit a robbery and intentionally causing the death of the complainant by shooting him with a deadly weapon, namely a firearm.

Trial began on January 8, 2008. At trial, the State presented testimony from Boutte. Boutte testified that as he was struggling to prevent appellant from opening the door, he saw appellant take the gun from his pocket. Appellant aimed the gun toward Boutte. Boutte testified that he used his left hand “and started tussling with him with the gun and the gun kept going back and forth.” He also testified that appellant shot the gun “more than two times.”

The State also presented testimony from Ordonez. Ordonez testified that she was an acquaintance of both appellant and Davis because they lived in the same neighborhood. She immediately recognized them when they ran in front of her house. As they were running in front of her house, she saw an object in appellant’s hand but was not certain whether appellant was carrying a gun. When she asked them why they were running, appellant and Davis failed to respond. Ordonez testified that appellant and Davis ran toward three apartment complexes down the street.

The State also presented testimony from Davis. Davis testified that he pled guilty to aggravated robbery in this case and was awaiting sentencing at the time of his testimony. He stated that he and appellant had been friends and associates for over 10 years. Davis testified that appellant wanted to rob the gaming room and asked him to assist in the robbery. Appellant knew the layout of the gaming room and also knew where the gaming room’s money was stored. Appellant also possessed a gun, which Davis described as a “.357 Magnum.” Davis testified that, during the incident, he and appellant were trying to force themselves into the gaming room when Boutte blocked their entry. During the struggle with Boutte, appellant pulled his gun out of his pocket with his right hand and pointed it inside the door frame. Davis testified that he could not see the gun after appellant pointed it inside the door frame. However, he heard appellant fire the gun once. Appellant paused for two seconds and fired the gun again. Davis testified that after the second shot he took appellant’s right arm and pulled it out of the door frame. He and appellant then ran away from the gaming room.

The State presented testimony from HPD Officer D. Shorten. Shorten testified that he investigated the crime scene and obtained statements from Boutte, Or-donez, Rivera, and other witnesses. He prepared two different photo spreads, one containing appellant’s picture and one containing Davis’s picture. On April 8, 2005, he presented the photo spreads to Boutte, but Boutte could not make an identification of either appellant or Davis. He also presented the photo spreads to Ordonez. Or-donez identified appellant as one of the people running in front of her home in the period after the incident. Shorten testified that, on April 13, 2005, HPD police officers presented Boutte with a “video lineup” that included appellant. Boutte identified appellant as the shooter.

Appellant presented testimony from Rudy Vargas, a private investigator. Vargas testified that he interviewed Ordonez and that she told him she was not certain that appellant was carrying a gun when he ran in front of her house. Vargas testified that Ordonez said the object appellant was carrying looked like a “big white gun.”

At the end of the guilt/innocence phase, the trial court read the entire charge to the jury. It stated, in relevant part:

Now, if you find from the evidence beyond a reasonable doubt that on or about the 7th day of April, 2005, in Harris County, Texas, [appellant] did then and there unlawfully, while in the course of committing or attempting to commit the robbery of Melissa Rivera, intentionally cause the death of [the complainant] by shooting [the complainant] with a deadly weapon, namely, a firearm, then you will find the defendant guilty of capital murder, as charged in the indictment.
Or, if you believe from the evidence, beyond a reasonable doubt that [appellant] in Harris County, Texas, on or about the 7th day of April, 2005, intending to cause the death of Paul Boutte by shooting at Paul Boutte with a deadly weapon, namely a firearm while in the course of committing a robbery of Melissa Rivera, did then and there cause the death of [the complainant] by shooting [the complainant] with a deadly weapon, namely a firearm while in the course of committing or attempting to commit a robbery of Melissa Rivera, then you will find the defendant guilty of capital murder as charged in the indictment.
Unless you so find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant of capital murder and next consider whether [appellant] is guilty of the lesser offense of felony murder.
Unless you so find from the evidence beyond the reasonable doubt, or if you have a reasonable- doubt thereof, you will acquit the defendant of felony murder and next consider whether [appellant] is guilty of the lesser offense of aggravated robbery.
Unless you so find from the evidence beyond the reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant of aggravated robbery and next consider whether [appellant] is guilty of the lesser offense of manslaughter.
If you have a reasonable doubt as to whether the defendant is guilty of any offense defined in .this charge you will acquit the defendant and say by your verdict “Not Guilty.”

Regarding the jury charge, the State made the following closing argument to the jury, in relevant part:

[State]: Remember how lessers work and how you are instructed to deliberate on them. You have to decide whether he is guilty or not guilty of capital murder first. If you have a reasonable doubt, then you must acquit him of capital murder. And remember, it’s an individual deliberation. If you believe he’s guilty of capital murder, then that is your deliberation. And all 12 of you, in order to get to a lesser offense and start deliberating about that, you are told in that charge—
[Appellant]: Objection as to any instructions at this point as to how to deliberate. That’s outside the charge.
[Court]: Just restate your argument. That’s overruled.
[State]: Yes, ma’am. That charge instructs you that you must first deliberate on the higher offense and only if, effectively only if you acquit of capital murder do you then consider the next offense of felony murder. And only if you acquit of felony murder so you go down to the next. The bottom line is when you go back there to deliberate and you believe beyond a reasonable doubt that [appellant] intended to kill one of those two men and he did kill [the complainant] while he was trying to commit a robbery, he is guilty of capital murder and that is it. You do not deliberate about any of and do not discuss the lessers at all.

On January 16, 2008, the jury convicted appellant of capital murder and the trial court sentenced him to life in prison. Appellant filed notice of appeal.

Jury Instruction and Prosecutorial Error

In the first part of his first point of error, appellant argues that the trial court erred in using a stair-step instruction that prohibited consideration of a lesser offense in determining guilt as to the charged offense. Appellant also argues that the error “was echoed in prosecutorial argument,” to appellant’s harm.

1. Jury Instruction

Appellant first complains that the jury charge was a “stair-step” charge that required the jury unanimously to decide guilt or innocence as to the greater offense of capital murder “before even considering whether the appellant was guilty of any lesser offense.” He argues that such a charge is inconsistent with the State’s burden of proof beyond a reasonable doubt of every element of the crime. He cites to Apprendi v. New Jersey, in which the United States Supreme Court held that, as a matter of due process of law, “any fact that increases the penalty for a crime beyond the prescribed statutory maximum” must be submitted to a jury and proved beyond a reasonable doubt. 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000). Appellant argues that Appren-di “also applies to distinctions between greater and lesser offenses which are distinguished by some element in the greater which is absent from the lesser” and that “stair-step” instructions deprive a defendant of his constitutional right to have all the elements of each crime with which he is charged considered. Appellant states that “to make Apprendi effective, a jury should be called upon to compare a greater offense and a lesser offense, with attention paid to the element which distinguishes the two offenses.” He contends that “a stair-step instruction not only fails to assure such a comparison, but actually precludes it through specific instruction” from deciding the greater offense first without considering the lesser. We disagree with appellant’s claim that the instruction given in this case was a stair-step instruction.

A claim of error in the jury charge is reviewed using the procedure set out in Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984), overruled on other grounds, Rodriguez v. State, 758 S.W.2d 787 (Tex.Crim.App.1988). Barrios v. State, 283 S.W.3d 348, 350 (Tex.Crim. App.2009). The first step is to determine whether there is error in the charge. Barrios, 283 S.W.3d at 350; Ngo v. State, 175 S.W.3d 738, 743 (Tex.Crim.App.2005). If there was error and the appellant objected to the error at trial, reversal is required if the error is calculated to injure the rights of the defendant, i.e., if there is some harm. Barrios, 283 S.W.3d at 350; Almanza, 686 S.W.2d at 171. If the error was not objected to, it must be fundamental and will require reversal only if it was so egregious and created such harm that the defendant did not have a fair and impartial trial. Barrios, 283 S.W.3d at 350; Almanza, 686 S.W.2d at 171. The degree of harm is determined in light of the entire jury charge, the state of the evidence, including the contested issues and the weight of the probative evidence, the argument of counsel, and any other relevant information revealed by the record of the trial as a whole. Almanza, 686 S.W.2d at 171.

The proper construction of the jury charge in this case is controlled by Barrios. Reaffirming and clarifying its prior holding in Boyett v. State, 692 S.W.2d 512 (Tex.Crim.App.1985), the Court of Criminal Appeals held in Barrios that the type of instruction at issue in this case is a proper sequencing instruction of the type appellant seeks and not a “stair-step instruction” that requires unanimity of the jury at any stage prior to the verdict. Barrios, 283 S.W.3d at 352-53; see Boyett, 692 S.W.2d at 516.

In Bamos, the appellant argued, similarly to appellant in this case, that an instruction telling the jury to “acquit” the defendant if it has a reasonable doubt that he is guilty of the greater offense and next consider the lesser offense and the view that the sequencing instruction requires unanimity before the jury can consider lesser-included offenses are mutually exclusive. 283 S.W.3d at 352. If the defendant is convicted of the greater offense, the inquiry ends; if he is acquitted under the sequencing instruction, there is “nothing to compare the lesser-included offense to when subsequently considering the instruction on benefit of the doubt.” Id. The disposition of the greater offense has by that time already been decided by the jury, and the instruction on benefit of the doubt becomes superfluous. Id.

The Court of Criminal Appeals stated, “Appellant’s conclusion arises from a narrow interpretation of the charge. Unanimous verdicts are the final decisions of a jury, delivered to the court after its deliberations are complete.” Id. Under the sequencing instruction, the order in which the parts of the jury charge are considered is left to the discretion of the jury. See id. Such a jury instruction also adequately instructs jurors to consider the defendant’s requested instructions on lesser included offenses. Boyett, 692 S.W.2d at 516. The trial judge reads the entire charge to the jury before it retires to deliberate. Barrios, 283 S.W.3d at 353. Thus the jurors will have heard the instruction on the benefit of the doubt before considering the issue of guilt on any of the offenses included in the charge. Id. “Therefore, even if, and perhaps especially if, the jurors cannot agree as to guilt on the greater offense, they have already been instructed that they may consider guilt as to the lesser offense before deciding on a verdict as to the greater offense.” Id.

The court observed that the instruction’s “use of ‘acquit’ as it is understood in relation to delivery of a verdict is at odds with the context of the instruction” in relation to jury deliberations, in which “the intended meaning seems to be ‘have a reasonable doubt of or cannot agree on guilt,’ ” and that the charge might be clearer, but the charge, read as a whole, instructed the jury that at its discretion it might consider the lesser-included offenses before making a final decision as to the greater offense. Id. The court thus held that the charge allowed the jury to consider the entire charge as a whole and that the sequencing instruction did not require the jury to unanimously agree that a defendant was not guilty of the greater offense before it could consider a lesser-included offense. Id. The charge, therefore, was not erroneous. Id.

We conclude, likewise, that the virtually identical instruction in this case was a sequencing instruction that did not instruct the jury that it must unanimously acquit appellant of the greater offense before proceeding to the lesser offense, but instead required it to unanimously acquit him or convict him of one of the offenses charged only after the jury had considered whether he was “guilty of any offense defined in the charge.” Therefore, the charge was proper.

Having determined that there was no error in the jury charge, we overrule the first part of appellant’s first issue.

2. Jury Argument

In the second part of his first issue, appellant argues that the trial court erred in permitting the State to make an argument to the jury interpreting the instructions in the charge as stair-step instructions that required them unanimously to convict or acquit appellant of capital murder before considering whether he might be guilty only of the lesser included charge of murder.

Appellant complains of part of the State’s closing argument paraphrasing the trial court’s instructions to the jury, in which the State argued as follows:

[State]: You’re going to see periodically in the charge admonishments like this. If you have a reasonable doubt thereof, you will acquit on capital murder and next consider the lesser offense. You’re going to see an admonishment at the end of all the lessers that says if you believe from the evidence beyond a reasonable doubt the defendant is guilty of either capital murder or one of the lessers, you resolve the doubt in the defendant’s favor.
An admonishment to you to resolve doubt like that in the defendant’s favor is not directions for you to go back in the jury room, talk to the 12 jurors, and when you realize somebody else thinks maybe it’s a lesser and you think it’s capital murder, that you must, absolutely, at that moment give up and go the lesser because they disagree with you.
This is deliberations. You should go back and you should discuss. And just because there’s an initial discussion does not mean that you automatically have to reduce to the lowest charge. Remember how lessers work and how you are instructed to deliberate on them. You have to decide whether he is guilty or not guilty of capital murder first. If you have a reasonable doubt, then you must acquit him of capital murder. And remember, it’s an individual deliberation. If you believe he’s guilty of capital murder, then that is your deliberation. And all 12 of you, in order to get to a lesser offense and start deliberating about that, you are told in that charge—
[Appellant]: Objection as to any instructions at this point as to how to deliberate. That’s outside the charge.
[Court]: Just restate your argument. That’s overruled.
[State]: Yes, ma’am. That charge instructs you that you must first deliberate on the higher offense and only if, effectively only if you acquit of capital murder do you then consider the next offense of felony murder. And only if you acquit of felony murder do you go down to the next. The bottom line is when you go back there to deliberate and you believe beyond a reasonable doubt that [appellant] intended to kill one of those two men and he did kill [the complainant] while he was trying to commit a robbery, he is guilty of capital murder and that is it. You do not deliberate about any of and do not discuss the lessers at all.

(emphasis added).

Appellant argues that the State introduced a unanimity requirement into its statement of the law and that the trial court erred in failing to sustain his objection to the State’s misstatement of the law and thus deprived him of his constitutional right to due process by requiring him to mount a successful defense to capital murder before considering the lesser included charge of felony murder or any other lesser included charge. He argues that the State’s argument violated the rule set forth in Apprendi that it is a violation of constitutional due process for a state legislature to remove from a jury the assessment of facts, other than the fact of prior conviction, that increase the prescribed range of penalties to which a defendant is exposed. See 5B0 U.S. at 490, 120 S.Ct. at 2362-63. Appellant contends that the State’s jury argument lessened the burden of proof required for the jury to convict appellant of the greater offense of capital murder because the jurors could not compare evidence in support of that offense with the evidence in support of felony murder, focusing on the distinguishing elements. See id.

Improper jury argument

To be permissible, jury argument must fall within one of four areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) response to argument of opposing counsel; or (4) plea for law enforcement. Brown v. State, 270 S.W.3d 564, 570 (Tex.Crim.App.2008). “It is not error for the State to quote or paraphrase the jury charge, even if the charge presents a negative instruction to the panel.” Whiting v. State, 797 S.W.2d 45, 48 (Tex.Crim.App.1990). However, argument that misstates the law or is contrary to the court’s charge is improper. Id.; Burke v. State, 652 S.W.2d 788, 790 (Tex.Crim.App.1983); Grant v. State, 738 S.W.2d 309, 311 (Tex.App.-Houston [1st Dist.] 1987, pet. ref d). By overruling the defense’s objection to the prosecution’s misstatement of the law, a trial court puts the stamp of approval on the prosecutor’s misstatement of the law. See Griffin v. State, 779 S.W.2d 431, 434 (Tex.Crim.App.1989); Burke, 652 S.W.2d at 790; Lee v. State, 971 S.W.2d 130, 131 (Tex.App.Houston [14th Dist.] 1998, pet. ref d).

Here, the State paraphrased the jury instruction correctly by telling the jurors that, while they had to decide whether appellant was “guilty or not guilty of capital murder first,” if they had a reasonable doubt they had to acquit him of capital murder, “[a]nd remember, it’s an individual deliberation.” The State then stated, “And all 12 of you, in order to get to a lesser offense and start deliberating about that, you are told in that charge — .” Appellant timely objected “as to any instructions at this point as to how to deliberate. That’s outside the charge.” While the trial court overruled appellant’s objection, it also instructed the State to restate its argument. After the court’s admonishment to “restate your argument,” the State did not finish its statement to the jurors as to how to deliberate or introduce a unanimity requirement into the charge. As appellant noted in his brief, the State’s closing argument tracked the language of the trial court’s charge, a charge that the Court of Criminal Appeals approved in Barrios.

We hold that the trial court did not err in overruling appellant’s objection to the State’s jury argument.

We overrule appellant’s first point of error.

Factual Sufficiency

In his second point of error, appellant argues that the evidence presented at trial was factually insufficient to sustain his conviction because the evidence failed to prove appellant’s intent to kill the complainant.

Standard of Review

Evidence is factually insufficient to support the verdict if it is clearly wrong or manifestly unjust or against the great weight and preponderance of the evidence. Rollerson v. State, 227 S.W.3d 718, 724 (Tex.Crim.App.2007). A factual sufficiency review involves three ground rules. Lancon v. State, 253 S.W.3d 699, 704 (Tex. Crim.App.2008). First, we must recognize that a jury has already passed on the facts, and we must accord the jury the proper deference to avoid substituting our judgment for that of the jury. Id. at 704-05 (citing Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App.1996)). Second, where we find the facts determined by the jury to be insufficient to affirm a conviction, we must clearly lay out and explain how the evidence supporting the verdict is too weak on its own, or how contradicting evidence greatly outweighs evidence supporting the verdict. Id. at 705. Finally, we view all of the evidence in a neutral light when conducting this review. Id. We may only set aside a verdict where the evidence supporting the verdict is so weak as to render the verdict clearly wrong or manifestly unjust. Id. (citing Cain v. State, 958 S.W.2d 404, 406 (Tex.Crim.App.1997)).

Capital Murder

A person commits capital murder if he intentionally or knowingly causes the death of an individual and intentionally commits the murder in the course of committing or attempting to commit kidnap-ing, burglary, robbery, aggravated sexual assault, arson, or obstruction or retaliation. Tex. Penal Code Ann. §§ 19.02(b)(1), 19.08(a)(2) (Vernon 2003 & Supp. 2008); Dominguez v. State, 125 S.W.3d 755, 761 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd). A person commits robbery if, in the course of committing theft and with intent to obtain or maintain control of the property, he intentionally, knowingly, or recklessly causes bodily injury to another, or intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Tex. Penal Code Ann. § 29.02(a) (Vernon 2003); Dominguez, 125 S.W.3d at 761. A deadly weapon is a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury, or anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. Tex. Penal Code Ann. § 1.07(17) (Vernon Supp. 2008); see Wright v. State, 591 S.W.2d 458, 459 (Tex.Crim.App.1979) (holding that evidence defendant pointed “gun,” “pistol,” or “revolver” at complainant was sufficient to prove use of “deadly weapon”).

“The distinguishing element between felony murder and capital murder is the intent to kill.” Fuentes v. State, 991 S.W.2d 267, 272 (Tex.Crim.App.1999). Intent is most often proven through the circumstantial evidence surrounding the crime. Hernandez v. State, 819 S.W.2d 806, 810 (Tex.Crim.App.1991), overruled on other grounds, Fuller v. State, 829 S.W.2d 191 (Tex.Crim.App.1992); Dominguez, 125 S.W.3d at 761. A jury may infer intent from any facts that tend to prove its existence, such as the acts, words, and conduct of the defendant. Hernandez, 819 S.W.2d at 810; Beltran v. State, 593 S.W.2d 688, 689 (Tex.Crim.App.1980); Dominguez, 125 S.W.3d at 761. Additionally, intent to kill may be inferred from the use of a deadly weapon, unless it would not be reasonable to infer that death or serious bodily injury could result from the use of the weapon. Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App.1996); Dominguez, 125 S.W.3d at 762 (holding evidence permitted inference of intent to kill when defendant and other members of his gang planned to rob person walking alone at night, and, in course of theft or attempted theft of complainant, defendant retrieved loaded shotgun from car trunk and shot complainant in abdomen, resulting in complainant’s death). When a deadly weapon is fired at close range, and death results, the law presumes an intent to kill. Childs v. State, 21 S.W.3d 631, 635 (Tex.App.Houston [14th Dist.] 2000, pet. refd).

Here, the jury was charged with the law on transferred intent. Transferred intent occurs when a defendant, with the required culpable mental state, intends to injure or harm a specific person but injures or harms a different person or both. Tex. Penal Code Ann. § 6.04(b)(2) (Vernon 2003).

The State presented testimony from Boutte that appellant and his accomplice stood on the sidewalk outside an illegal gaming room and waited for Boutte to enter it. Boutte testified that, when he gained entry, appellant tried to push him into the gaming room. He resisted and held appellant outside the door of the gaming room. Appellant then reached through the opening in the door and pointed a gun at him. Boutte testified that, as the straggle continued, appellant fired one shot. Appellant then paused for two seconds and fired another shot, striking the complainant in the abdomen and killing him. Boutte testified that appellant fired the gun “more than two times.” The State also presented testimony from Davis. Davis testified that, during the struggle with Boutte, appellant pulled a gun out of his pocket and placed it through the door frame with his right arm. Appellant fired the gun once, paused for two seconds, and fired the gun again. Davis testified that he pulled appellant’s right arm out of the door frame after the second shot. He and appellant then ran from the scene.

The jury was free to infer that appellant intended to kill either Boutte or the complainant when he pointed the gun at Boutte and fired the shots into the gaming room. See Jones, 944 S.W.2d at 647; Childs, 21 S.W.3d at 635; see also Tex. Penal Code Ann. § 6.04(b)(2). We conclude that the evidence of appellant’s intent to kill was not so weak as to render the verdict clearly wrong or manifestly unjust. See Lancon, 253 S.W.3d at 704-OS. We hold that the evidence presented to the jury was factually sufficient to prove that appellant had the intent to kill the complainant. See id.; Dominguez, 125 S.W.3d at 761-62.

We overrule appellant’s second point of error.

Conclusion

We affirm the judgment of the trial court.

      . See Tex. Penal Code Ann. § 19.03(a)(2) (Vernon Supp. 2008) ("A person commits an offense if he commits murder as defined under Section 19.02(b)(1) [and] the person intentionally commits the murder in the course of committing or attempting to commit kidnap-ing, burglary, robbery, aggravated sexual assault, arson, obstruction or retaliation, or ter-roristic threat.... ”).