Affirmed and Memorandum Opinion filed April 28, 2015.

In The

Fourteenth Court of Appeals

NO. 14-14-00109-CR

KEVIN ANTONIO OWENS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause No. 1316170

MEMORANDUM OPINION

A jury convicted appellant Kevin Antonio Owens of capital murder

committed in the course of a robbery, and he was sentenced to life without parole. 

See Tex. Penal Code Ann. §§ 12.31(a)(2), 19.03. In two issues, appellant contends 

the evidence is legally insufficient and the trial court erred by admitting evidence 

of an extraneous offense. We affirm.
I. SUFFICIENCY OF THE EVIDENCE

In his first issue, appellant contends the evidence is legally insufficient to 

support the jury’s verdict because the evidence does not establish beyond a 

reasonable doubt that appellant formed the intent to rob the complainant before or 

at the time of the murder.

“In determining whether the evidence is legally sufficient to support a 

conviction, a reviewing court must consider all of the evidence in the light most 

favorable to the verdict and determine whether, based on that evidence and 

reasonable inferences therefrom, a rational fact finder could have found the 

essential elements of the crime beyond a reasonable doubt.” Whatley v. State, 445 

S.W.3d 159, 166 (Tex. Crim. App. 2014) (quotation omitted); see also Jackson v. 

Virginia, 443 U.S. 307, 318–19 (1979). In reviewing historical facts that support 

conflicting inferences, we must presume that the jury resolved any such conflicts in 

the State’s favor, and we must defer to that resolution. Whatley, 445 S.W.3d at 

166. “[A]n inference is a conclusion reached by considering other facts and 

deducing a logical consequence from them.” Id. (alteration in original) (quotation 

omitted). 

Appellant was charged with capital murder by intentionally committing a 

murder in the course of committing or attempting to commit a robbery. See Tex. 

Penal Code Ann. § 19.03(a)(2). The State had the burden to prove beyond a 

reasonable doubt that appellant formed the intent to rob before or at the time of the 

murder. See Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). “Proof 

of robbery committed as an afterthought and unrelated to a murder is not sufficient 

evidence of capital murder.” Id. However, evidence is legally sufficient to prove 

the intent to rob if “the jury could rationally conclude beyond a reasonable doubt 

that the defendant formed the intent to obtain or maintain control of the victim’s 

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property either before or during the commission of the murder.” Id.; see also Tex. 

Penal Code Ann. § 29.02 (robbery requires “intent to obtain or maintain control of 

the property”). A jury may infer the defendant’s intent to rob based on the conduct 

and words of the defendant. See Conner, 67 S.W.3d at 197; McGee v. State, 774 

S.W.3d 229, 234 (Tex. Crim. App. 1989); see also Guevara v. State, 152 S.W.3d 

45, 50 (Tex. Crim. App. 2004) (“Intent may be inferred from circumstantial 

evidence such as acts, words, and the conduct of the appellant.”). 

Here, the jury heard evidence that the decedent, Fusham Zhang, owned 

several condominium units and rented them out to tenants. In the past, appellant 

had been one of Zhang’s tenants, but appellant was living with his girlfriend across 

the hall from Zhang around the date of the murder. Appellant’s girlfriend testified 

that appellant believed Zhang owed him money. She testified that appellant “was 

upset and he wanted his money back.” 

On the day of the murder, Zhang was with two new tenants in their 

apartment when he poured water through the screened-in patio onto some bushes. 

Some of the water splashed appellant, and appellant got upset. Appellant started 

yelling at Zhang about the water, but appellant then started saying that Zhang owed 

appellant money. Appellant pulled a large butcher knife from his pocket, cut 

through the screened-in patio, and pulled Zhang outside. Appellant said he would 

kill Zhang. Multiple witnesses testified that appellant was arguing with Zhang 

about money. One of the tenants testified that appellant told Zhang that Zhang 

owed appellant $2,500; the other tenant testified it was “around like 2,000, in that 

range.”

Two other witnesses were walking down the sidewalk when the 

confrontation began. One of them testified that she saw Zhang and appellant 

arguing. Appellant was holding Zhang and asked, “Where’s the money?” 

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Appellant was “ruffling [Zhang’s] pockets trying to go in his pocket.” It was 

“clear” to this witness that appellant “was trying to rob him.” She saw appellant 

with the knife. Zhang was pleading for his life. Multiple witnesses heard Zhang 

saying that he did not have any money. Then, appellant stabbed Zhang in the neck, 

killing him. After threatening to kill several witnesses, appellant fled. He was 

apprehended later that day when he returned to the condominium complex.

In Herrin v. State, the Court of Criminal Appeals held that evidence of the

defendant’s belief that the decedent owed him money, coupled only with the fact 

that the decedent’s wallet was missing, was insufficient to prove an intent to rob. 

See 125 S.W.3d 436, 442–43 (Tex. Crim. App. 2002). But here, there is ample 

evidence that appellant intended to rob Zhang. Appellant was demanding money 

from Zhang and “ruffling” through Zhang’s pockets immediately before the 

murder. This evidence is sufficient for a rational jury to find beyond a reasonable 

doubt that appellant formed the requisite intent to rob Zhang before or during the 

murder. See Conner, 67 S.W.3d at 198 (evidence sufficient to prove the 

defendant’s attempt to rob when a witness heard a man say “give me all your 

money” and saw the defendant shoot the decedent, although there was no evidence 

that money was taken from the decedent’s cash register); see also McGee, 774 

S.W.2d at 234 (suggesting that the “talisman of an intent to steal” would have been 

the appellant demanding money from the decedent before attacking him).

Appellant’s first issue is overruled.

II. ADMISSION OF EVIDENCE

In his second issue, appellant contends that the trial court erred by permitting 

Houston Police Department Officer Iola Simpson to testify about appellant’s 

resisting arrest and assault on her after the murder. Citing Rule 403 of the Texas 

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Rules of Evidence, appellant argues that the probative value of the testimony was 

substantially outweighed by its prejudicial effect. See Tex. R. Evid. 403.1

We review a trial court’s decision to admit evidence for an abuse of 

discretion. See Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). We 

must affirm so long as “the trial court’s ruling was within the zone of reasonable 

disagreement.” Id. We give deference to a trial court’s decision under Rule 403 

that “the probative value of evidence is not outweighed by the danger of unfair 

prejudice.” Id. Under the rule, a trial court must balance two factors against four 

others:

(1) the inherent probative force of the proffered item of evidence; 

and

(2) the proponent’s need for that evidence.

versus

(3) any tendency of the evidence to suggest a decision on an 

improper basis;

(4) any tendency of the evidence to confuse or distract the jury 

from the main issues;

(5) any tendency of the evidence to be given undue weight by a 

jury that has not been equipped to evaluate the probative force 

of the evidence; and

(6) the likelihood that presentation of the evidence will consume an 

inordinate amount of time or merely repeat evidence already 

admitted.

Gigliobianco v. State, 201 S.W.3d 637, 641–42 (Tex. Crim. App. 2006). The rule 

presumes that the probative value of relevant evidence exceeds any danger of 

unfair prejudice, and a trial court should exclude evidence “only when there is a 

1 At the time of appellant’s trial, Rule 403 stated: “Although relevant, evidence may be 

excluded if its probative value is substantially outweighed by the danger of unfair prejudice, 

confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless 

presentation of cumulative evidence.” Tex. R. Evid. 403 (1998, amended 2015).

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‘clear disparity between the degree of prejudice of the offered evidence and its 

probative value.’” Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009).

Officer Simpson testified that she received a dispatch call to respond to a 

stabbing. She saw appellant near the crime scene and attempted to detain him as a 

possible suspect. Appellant was compliant at first, but when she attempted to cuff 

him for officer safety, he spun around with a large butcher knife and told her he 

was not going to jail. She identified State’s Exhibit 35 as the knife.2

 Simpson 

grabbed appellant’s arm and struggled with him. She pleaded, “Please don’t stab 

me with this knife.” He said, “Just let me go,” and she responded, “I can’t do 

that.” He tried to get her gun, so she tried to do a “side arm, hip shoot,” but he 

pushed her arm and she missed. During the struggle, the magazine clip came out 

of the gun, and she thought “this guy is trying to kill me for real.” He pushed her 

and then fled as she fell backwards. She fired at him again but missed, and she fell 

to the ground, injuring her hip, elbow, and arm. Appellant escaped custody at that 

time.

Turning to the first factor identified above, Simpson’s testimony was highly 

probative to establish guilt. The testimony showed appellant’s spatial and 

temporal proximity to the murder scene, his flight from apprehension by police, 

and his possession of the murder weapon. See, e.g., Palomo v. State, 352 S.W.3d 

87, 90–91 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d) (circumstantial 

evidence of guilt includes proximity to the murder scene near the time of the 

murder, flight from police, and possession of the murder weapon). In particular, 

the evidence of the aggravated assault upon Simpson during appellant’s flight 

shows the lengths to which he was willing to go to escape apprehension for the 

2 Other witnesses identified State’s Exhibit 35 as the knife appellant used to murder 

Zhang. It was found in an apartment complex near the murder scene.

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murder, thus evidencing a consciousness of guilt. Under the second factor, we 

note that the State’s case was strong, and the State did not necessarily need 

Simpson’s testimony: four eyewitnesses to the murder identified appellant in open 

court, and other extraneous bad-act evidence was adduced (such as appellant’s 

kidnaping and threatening the lives of the the two tenants who had been present 

with Zhang during the murder).

Under the remaining four factors, we note that extraneous offense evidence 

is inherently prejudicial and generally creates a risk that jurors will make a 

decision on an improper basis. See, e.g., Abdnor v. State, 871 S.W.2d 726, 738 

(Tex. Crim. App. 1994); Plante v. State, 692 S.W.2d 487, 494 (Tex. Crim. App. 

1985). However, here the evidence did not have a strong tendency to confuse or 

distract the jury, particularly in light of the fact that the evidence did not consume 

an inordinate amount of time or merely repeat evidence already admitted. Simpson 

was one of fifteen witnesses, and her testimony was relatively brief. The jury was 

properly instructed in the charge on the use of extraneous offense evidence, so the 

jury was equipped to evaluate the evidence. 

On balance, we cannot conclude that the trial court abused its discretion by 

admitting this evidence. There is not a clear disparity favoring exclusion.

Appellant’s second issue is overruled.

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III. CONCLUSION

Having overruled both of appellant’s issues, we affirm the trial court’s 

judgment.

/s/ Sharon McCally

Justice

Panel consists of Chief Justice Frost and Justices Boyce and McCally.

Do Not Publish — Tex. R. App. P. 47.2(b).

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