COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

BOBBY O’DELL CLARK,

 Appellant,

v.

THE STATE OF TEXAS,

 Appellee.

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No. 08-11-00136-CR

Appeal from the

109

th District Court

of Andrews County, Texas 

(TC# 5604) 

O P I N I O N

Bobby O’Dell Clark appeals from the trial court’s judgment convicting him of murder and 

sentencing him to 99 years’ imprisonment.1 By one issue, Clark contends that the evidence is 

insufficient to support his conviction because the State failed to prove he possessed the intent to 

kill.

2

 We affirm.

INTENT TO KILL

Clark does not dispute that he shot and killed Paul Adair. He does, however, dispute that 

he possessed the intent required to convict of him murder under Section 19.02(b)(1) of the Penal 

Code, which provides that “[a] person commits [murder] if he . . . intentionally or knowingly 

causes the death of an individual . . . .” TEX.PEN.CODE ANN. § 19.02(b)(1)(West 2011). 

Clark argues that he did not possess the intent required to convict him of murder because he meant

to scare Adair, not kill him. We disagree.

 

1 The State did not file a brief in response.

2

In his brief, Clark makes reference to another possible issue. Specifically, he points out that a member of the jury 

had a son who ran around with the victim. Clark, however, did not object at trial and did not brief this “complaint” on 

appeal, and thus, has failed to preserve error for review. See TEX. R. APP. P. 33.1(a); 38.1(i).
2

Standard of Review

In Brooks v. State, the Court of Criminal Appeals abandoned factual sufficiency review in 

those cases where the burden of proof is beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 

893, 894-95 (Tex.Crim.App. 2010)(finding no meaningful distinction between the legal and 

factual sufficiency standards and no justification for retaining both standards, therefore overruling 

the factual sufficiency review adopted in Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 

1996)). The legal sufficiency standard articulated in Jackson v. Virginia, 443 U.S. 307, 319, 99 

S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979), is the only standard a reviewing court applies in 

determining whether the evidence is sufficient to support a conviction. Brooks, 323 S.W.3d at 

894-95. Therefore, we will review the evidence under the Jackson legal sufficiency standard and 

determine whether the evidence is sufficient to support the challenged elements beyond a 

reasonable doubt. See id., citing Jackson, 443 U.S. at 319, 99 S.Ct. at 2789.

When reviewing the sufficiency of the evidence to support a criminal conviction, we view 

the evidence in the light most favorable to the verdict to determine whether, based on that evidence 

and reasonable inferences therefrom, a rational juror could have found the essential elements of the 

offense beyond a reasonable doubt. Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007),

quoting Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2788-89. Under a legal sufficiency review, we 

may not substitute our judgment for that of the jury, who is the exclusive judge of the facts, the 

credibility of the witnesses, and the weight to be given to the evidence. Williams v. State, 235 

S.W.3d 742, 750 (Tex.Crim.App. 2007). We therefore defer to the jury’s resolution of these 

issues and to its responsibility to draw reasonable inferences from basic facts to ultimate facts. 

Hooper, 214 S.W.3d at 13, citing Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2788-89. In resolving 
3

what the facts are and what reasonable inferences may be drawn from them, the jury may accept 

one version of the facts and reject another, and it may reject any part of a witness’s testimony, even 

if uncontradicted. See Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000), overruled 

on other grounds, Laster v. State, 275 S.W.3d 512 (Tex.Crim.App. 2009); Henderson v. State, 29 

S.W.3d 616, 623 (Tex.App.--Houston [1st Dist.] 2000, pet. ref’d).

Applicable Law

To sustain Clark’s murder conviction under Section 19.02(b)(1), the evidence must 

establish that Clark possessed the specific intent to kill Adair. Roberts v. State, 273 S.W.3d 322,

331 n.11 (Tex.Crim.App. 2008); Flanagan v. State, 675 S.W.2d 734, 741 (Tex.Crim.App. [Panel 

Op.] 1984)(op. on reh’g). Whether Clark possessed the intent to kill Adair was a question of fact 

for the jury to determine. Brown v. State, 122 S.W.3d 794, 800 (Tex.Crim.App. 2003).

In determining whether Clark possessed the intent to kill Adair, the jury was permitted to 

use its collective common sense and apply common knowledge and experience and to rely upon 

any evidence that it believed proved the existence of that intent. Brown, 122 S.W.3d at 800; 

Rodriguez v. State, 90 S.W.3d 340, 355 (Tex.App.--El Paso 2001, pet. ref’d). It was therefore 

proper for the jury to rely upon circumstantial evidence such as Clark’s acts, words, and conduct to 

infer that he possessed the intent to kill. Laster, 275 S.W.3d at 524; Guevara v. State, 152 S.W.3d 

45, 50 (Tex.Crim.App. 2004). Likewise, it was proper for the jury to rely upon Clark’s use of a 

deadly weapon – the gun – to infer that he possessed the intent to kill. This is because when a 

defendant uses a deadly weapon in a deadly manner, i.e., by firing a gun at close range, the law 

presumes intent to kill and this inference is almost conclusive. Brown, 122 S.W.3d at 800-01; 

Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996); Womble v. State, 618 S.W.2d 59, 64 
4

(Tex.Crim.App. 1981); Watkins v. State, 333 S.W.3d 771, 781 (Tex.App.--Waco 2010, pet. ref’d). 

If, however, the jury believed that Clark’s use of the gun could not have resulted in death or serious 

bodily injury, it would have been impermissible for it to infer that Clark possessed the intent to kill 

Adair when he fired his gun at close range. Brown, 122 S.W.3d at 800-01; Jones, 944 S.W.2d at 

647; Flanagan, 675 S.W.2d at 741.

Discussion

When viewed in the light most favorable to the verdict, the circumstances surrounding 

Adair’s death support a rational finding that Clark acted with the specific intent to kill Adair. As 

set forth above, the jury was permitted to rely on Clark’s own words and acts to infer that he 

intended to kill Adair. Clark testified that he “thought about going over [to Adair’s house] and 

shooting [Adair]” because he was mad at Adair for stealing money from him. Clark also testified 

that he told his wife that he was going to drive over to Adair’s house to kill him. According to 

Clark, as he sat in his truck, he retrieved his gun, placed it on the seat, and stuck “a bunch” of shells 

in his pocket. While driving to Adair’s house, Clark continued to harbor thoughts of killing 

Adair, though he testified that when he was halfway to Adair’s house, he realized “I ain’t no 

murderer” and resolved not to shoot Adair. As the exclusive judge of the credibility of the 

witnesses, the jury could have chosen not to believe that Clark had second thoughts about killing 

Adair. See Williams, 235 S.W.3d at 750.

It was also permissible for the jury to rely upon the manner in which Clark used his gun to 

infer that he possessed the intent to kill Adair. Clark testified that he shot Adair at close range 

when Adair was “right on top of [him]” with a baseball bat. Clark admitted to pulling the trigger 

while jerking the gun upward in Adair’s direction. While Clark testified that he did not know if 
5

the bullet would strike Adair and was surprised to discover that it had, the jury was justified in 

concluding that Clark’s use of the gun under these circumstances was a “manner of use” in which 

death or serious bodily harm was a likely result.

Clark contends that the jury could not have reasonably inferred that he possessed the intent 

to kill Adair when he fired his gun at close range, because his testimony that he meant simply to 

scare Adair “was the only direct evidence . . . as to [his intent]” and “was not contradicted.”

3

Given the evidence presented, the jury was free to believe that Clark intended to kill Adair 

notwithstanding his testimony to the contrary. See Margraves, 34 S.W.3d at 919; Henderson, 29 

S.W.3d at 623. That the jury chose not to believe Clark was within its exclusive province, and in 

conducting our legal sufficiency review, we are prohibited from re-evaluating the weight and 

credibility of Clark’s testimony or substituting our judgment for that of the jury. See Williams, 

235 S.W.3d at 750.

We conclude that the evidence is legally sufficient to support the jury’s finding that Clark 

possessed the specific intent to kill Adair. Accordingly, we overrule Clark’s single issue. 

CONCLUSION

The judgment of the trial court is affirmed.

November 14, 2012

CHRISTOPHER ANTCLIFF, Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.

(Do Not Publish)

 

3 Clark’s assertion that he meant simply to scare Adair is contradicted by his own testimony. Clark testified that he 

“was hoping the blast would scare [Adair] off.” However, minutes earlier, Clark testified that “[he] didn’t try to shoot 

at [Adair] to scare him or slow him down or anything like that.”