### NO.
__________________ __ INTHE COURT OF CRIMINALAPPEALS
KEVINANTONIO OWENS PETITIONER 

### VS. THE STATE OFTEXAS RESPONDENT
On appealfrom cause number 14-14-00109-CRinthe Fourteenth CourtofAppeals and cause number 1316170 in the248thDistrictCourtofHarris County, Texas PETITIONFORDISCRETIONARYREVIEW

KENGOODE P.O.Box 590947 Houston,Texas 77259 (409) 779-3631 StateBar# 

### 08143200 Goodedkc@msn.comSTATEMENT REGARDING ORAL ARGUMENT Petitioner waives oral argument.TABLE OF CONTENTS Statement ofthe Case...
.......................................................................... 1 Statement of Procedural History.............................................................. 1 Ground for Review WHETHER THE COURT OF APPEALS ERRED BY NOT EXAMINING THE TOTALITY OF THE EVIDENCE IN ITS REVIEW OF THE LEGAL SUFFICIENCY OF THE EVIDENCE Argument...................................................................................................... 2 Prayerfor Relief.............................................................................................. 3 Certificate ofWord Count Compliance
.................................................... 

### 3 Certificate ofService 

### 4INDEX OF AUTHORITIES CASES Connerv. State, 67 S.w.3d 192 (Tex. Crim. App. 2001)

........................................... 2 Guzman v. State, 955 S.w.2d 85 (Tex. Crim. App. 1997)

....................................... 3 Herrin v. State, 125 5.w.3d 436 (Tex. Crim. App. 2002)

....................................... 2TO THE HONORABLE COURT OF CRIMINALAPPEALS: Comes Now Kevin Antonio Owens, petitioner, and files this petition for discretionary review and in support shows as follows: STATEMENT OF THE CASE Petitioner was charged by indictment with the offense of capital murder. Petitioner pleaded not guilty, and proceeded to jury trial. Petitioner was found guilty as charged and punishment was set bythe court at life without parole. STATEMENT OF PROCEDURAL HISTORY In an unpublished opinion dated April 28, 2015 the Fourteenth Court of Appeals affirmed the conviction and sentence. No motion for rehearing was filed.GROUND FOR REVIEW

WHETHER THE COURT OF APPEALS ERRED BY NOT EXAMINING THE TOTALITY OF THE EVIDENCE IN ITS REVIEW OF THE LEGAL SUFFICIENCY OF THE EVIDENCE.

ARGUMENT On appeal petitioner argued that the evidence was insufficient to prove that he formed the intent to rob the complainant before or at the time of the murder. Although the evidence was conflicting on the issue, the lower court failed to discuss evidence in the record that suggested that petitioner's intentto rob the complainant was an afterthought. For a murder involving a theft or attempted theft to constitute a capital murder committed in the course of a robbery, the intent to rob must be formulated before or at the time of the murder. Conner v. State, 67 S.W.3d 192 (Tex. Crim. App. 2001). Proof that the robbery or attempted robbery was committed as an afterthought is not sufficient. Herrin v. State, 125 S.W.3d 436 (Tex. Crim. App. 2002).

2An appellate court must consider the totality of evidence in the record. Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997). The lower court's opinion is at odds with precedent from this court, thus warranting review. PRAYER FOR RELIEF WHEREFORE, petitioner prays that his ground for review be granted and that this Court reverse the decision ofthe lower court.

Respectfully submitted,



### lS/
______ _ KEN GOODE P.O.Box 590947 Houston, Texas 77259 (409) 779-3631; SBN 08143200 Goodedkc@msn.com CERTIFICATE OF WORD COUNT COMPLIANCE Relying on the word count function in the word processing software used to produce this document I certifythat the number ofwords used in this petition for discretionary review is 700. 

### /S/
________ _ KEN GOODE

3CERTIFICATE OF SERVICE 

### I certify that a true and correct copy ofthe foregoing was delivered to the State and the State Prosecuting Attorney this 1st day of May 2015 by first class mail.



### /5/
_______ _ KEN GOODE

4

### Affirmed and Memorandum Opinion filed April 28, 2015.

In The 

## 1J1ourteentq Qtourt of**~ppeul£i** NO. 14-14-00109-CR 

### KEVIN ANTONIO OWENS, Appellant 

## v. THE STATE OF TEXAS, Appellee On Appeal from the248th District Court Harris County, Texas Trial Court CauseNo. 1316170 MEMORANDUM OPINION A jury convicted appellant Kevin Antonio Owens of capital murder committed in the course ofa robbery, and he was sentenced to life withoutparole. See Tex. Penal CodeAnn. §§ 12.31(a)(2), 19.03. illtwo issues, appellant contends the evidence is legally insufficient and the trial court erred by admitting evidence ofanextraneous 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 fonned the intentto rob the complainant before or atthetime ofthe murder. "In detennining whether the evidence is legally sufficient to support a conviction, a reviewing court must consider all ofthe 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 ofthe 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 conflictinginferences, wemustpresumethatthejuryresolved 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 ofcommitting 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 doubtthat appellant fonned the intentto rob before oratthetime ofthe murder. See Connerv. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). "Proof ofrobbery committed as an afterthought andunrelated to a murder is not sufficient evidence ofcapital murder." Id However, evidence is legally sufficient to prove the intent to rob if ''thejury could rationally conclude beyond a reasonable doubt that the defendant fonned the intent to obtain or maintain control ofthe victim's 2property either before or during the commission ofthe murder." Id.; see also Tex. Penal CodeAnn. § 29.02 (robberyrequires "intentto obtain or maintain control of theproperty"). Ajurymayinferthe defendant's intentto rob based onthe conduct and words ofthe 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, andthe conduct ofthe 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 hadbeen one ofZhang's tenants, but appellantwas living withhis girlfriend across thehall from Zhang around the date ofthe murder. Appellant's girlfriend testified that appellant believed Zhang owed him money. She testified that appellant "was upset andhewantedhis moneyback." On the day of the murder, Zhang was with two new tenants in their apartment when he poured water through the screened-inpatio onto some bushes. Some ofthe water splashed appellant, and appellant got upset. Appellant started yelling atZhang aboutthewater, but appellantthen started sayingthatZhang owed appellant money. Appellant pulled a large butcher knife from his pocket, cut throughthe screened-inpatio, andpulled 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 argumg. Appellant was holding Zhang and asked, "Where's the money?" 3Appellant 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 sayingthathe did nothave anymoney. Then, appellant stabbedZhang intheneck, killing him. After threatening to kill several witnesses, appellant fled. He was apprehended laterthat day whenhereturnedtothe condominium complex. 

### InHerrin v. State, the Court ofCriminal Appeals held that evidence ofthe defendant's beliefthat 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 rationaljuryto 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 sawthe 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 at234 (suggesting thatthe "talisman ofan intentto steal" wouldhave been the appellant demandingmoneyfrom the decedentbefore attackinghim). Appellant's first issue is overruled. II. ADMISSION OFEVIDENCE 

### Inhis secondissue, appellant contends thatthe trial court erredbypermitting Houston Police Department Officer lola Simpson to testifY about appellant's resisting arrest and assault on her after the murder. Citing Rule 403 ofthe Texas

4Rules ofEvidence, appellant argues that the probative value ofthe testimony was substantially outweighedbyits prejudicial effect. See Tex. R. Evid. 403. 1 We review a trial court's decision to admit evidence for an abuse of discretion. SeeMoses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). We must affmn so long as ''the trial court's ruling was within the zone ofreasonable disagreement." ld. We give deference to a trial court's decision under Rule 403 that ''the probative value of evidence is not outweighed by the danger ofunfair prejudice." ld. Under the rule, a trial courtmust balance two factors against four others: (1) the inherent probative force ofthe proffered item ofevidence; and (2) theproponent's needforthat evidence. versus (3) any tendency of the evidence to suggest a decision on an improperbasis; (4) any tendency of the evidence to confuse or distract the jury fromthemainissues; (5) any tendency ofthe evidence to be given undue weight by a jurythat has not been equipped to evaluate the probative force ofthe evidence; and (6) the likelihoodthatpresentation ofthe evidence will consume an inordinate amount oftime 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 ofappellant'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 ofthe issues, or misleading thejury, or by considerations ofundue delay, orneedless presentation ofcumulative evidence." Tex. R. Evid. 403 (1998, amended 2015). 5'clear disparity between the degree ofprejudice 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 attemptedto 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 tojaiL 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 ofthe gun, and she thought "this guy is trying to kill me for reaL" He pushed her and thenfled as she fell backwards
.. Shefired athim again butmissed, and she fell to the ground, injuring herhip, elbow, and arm. Appellant escaped custody at that time. Turning to the frrst 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 ofthe murder weapon. See, e.g., Palomo v. State, 352 S.W.3d 87, 90-91 (Tex. App.-Houston [14th Dist.] 2011, pet. refd) (circumstantial evidence of guilt includes proximity to the murder scene near the time of the murder, flight from police, and possession ofthe 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. Itwas found in an apartment complexnearthe murder scene. 6

### 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 ofthe the two tenants who had been present withZhang during themurder). 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 thejury, particularly in light ofthe fact that the evidence did not consume an inordinate amountoftime ormerelyrepeat evidence already admitted. Simpson was one offifteen witnesses, and hertestimony was relatively brief. Thejurywas properly instructed inthe charge onthe use ofextraneous offense evidence, so the jurywas equippedto evaluatethe evidence. Onbalance, we cannot conclude that the trial court abused its discretion by admittingthis evidence. There is not a clear disparityfavoring exclusion. Appellant's secondissue is overruled.

7ill. CONCLUSION Having overruled both of appellant's issues, we affmn the trial court's judgment.
/s/ SharonMcCally Justice Panel consists ofChiefJusticeFrost andJusticesBoyce andMcCally. DoNotPublish-Tex.

### R. App. P.47.2(b).

8