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Affirmed and Opinion FiledFebruary 27, 1998

In The 

### QJmiri ofAppeals JRf ilf iBtstrtrt sfGkxas at lallas No. 95-01456-CR No. 95-01457-CR JAMES RHYMES, Appellant
V. THE STATE OF TEXAS, Appellee
On Appeal from the 282nd District Court Dallas County, Texas Trial Court Cause Nos. F94-42944-S; F94-42945-S
OPINION Before Justices Lagarde, Whittington, and Roach Opinion By Justice Lagarde Thejury convicted appellant James Rhymes ofmurder and aggravated assault and assessed punishment at life confinement on themurder charge and tenyears' confinement on the aggravated assault charge. In a single point oferror, appellant contends that the evidence isfactually insufficient to support eachconviction. Because weconclude that the 

### evidence was factually sufficient to support each conviction, we overrule appellant's pointof error andaffirm the trial court'sjudgments. Factual Background 

### Earl Douglas was married to Shandra Rodgers, but the two did not live together. ShandratoldEarlthatsomeone inherhousingprojectdidnotwanthimcomingto visittheir daughter at Shandra's apartment. On the day ofthe shootings, Earl called Shandra's apartment andIsaac "Mike-Mike" Harrisanswered the phone. Earl askedMike-Mike if he was theperson who did notwant Earl coming to Shandra's apartment. The two men had an argument and Earl told Mike-Mike to "come over ifhe had something to say." Approximately two hours later, Mike-Mike and Michael Hall drove to Earl's house. 

### Earl was sitting on the front porch with his nephew, L.V. Green, his niece, Senaquia Douglas, and her boyfriend, Travis Gilmore. Mike-Mike and Hall got out ofthe car, walked up to the porch, and lifted their shirts. Each had a handgun tucked into the waistband of his pants. Mike-Mike and Hall returned to the car and drove offbut returned a few minutes later, onfoot, along with appellant. As thethree approached Earl's house, they called Earl a coward, trying to instigate a fight. Earl walked to the sidewalk in front ofhis home and said, "Well, we need to go on and get this over with ... put down your heat." Mike-Mike gave his gun to appellant and appellanttucked it into the waistband of his pants. Earl described the gun he saw Mike-Mike hand appellant as chrome and an automatic. Mike-Mike andEarl began tofight inthe street. Appellantwas standing behind Earl

-2-during the fight. Halljoined in the fight and Earl was knocked to the ground. Mike-Mike and Hall started kicking Earl in the head. During the fight, Earl saw appellant holding a gun in his hands. While on the ground, Earl saw L.V. and Travis start walking toward him. Then, just before he lost consciousness, Earl heard four or five gunshots from behind and saw Travis and L.V. get shot, but did not see who fired the shots. Travis died at the scene, and L.V., who was shot in the leg, was hospitalized. L.V. testified that during the fight between Earl and Mike-Mike, Earl fell to the ground. Hall thenjoined in the fight. L.V. moved to intervene on Earl's behalf. As he did so, L.V. saw Travis get shot. L.V. turned around to see who was shooting and saw appellant standing right behind him holding a gun and firing. L.V. testified that he could not see what kind of gun appellant was holding but that he saw the chrome and the fire from the barrel as it discharged. L.V. heard a total of four or five shots in rapid succession,

one of which struck him in the knee. Senaquia was on the porch when Mike-Mike and Hall initiallydrove up. When they drove off she went into the house. When they returned with appellant, she was still inside the house but observed the fistfight through the screen door. Senaquia saw appellant with a gun in his hand. She testified somewhat inconsistently that she could not recall if she saw him firing the weapon, but she nevertheless saw something red coming out of the barrel. She also saw appellant turn and run from the scene. Shandra, Earl's estranged wife, testified that Mike-Mike and his girlfriend lived with

-3-her in ahousing project. Hall lived next door to Shandra. On the day ofthe shootings, 

### Mike-Mike reported thatEarl had called looking for afight and that he was going to Earl's and beat him up. Shandra then went to a neighbor's apartment. From the neighbor's 

### apartment, Shandra saw Mike-Mike and Hall return and enter her apartment with athird man. Shandra returned to herapartment andsaw appellant sitting on the couch, holding 

### a gun, and saying that he had started shooting because Travis and L.V. were about to intervene in the fight. According to Shandra, appellant said hejust started shooting and "didn't care which way or who he shot." Shandra described the gun appellant was holding as a"silver chrome-plated gun." Shandralateridentified apicture ofarevolver as the type of weapon appellant was holding. Robert Poole, a firearm and toolmark examiner for the Southwestern Institute of Forensic Sciences, testified that he examined two bullets recovered from Travis's body, two bullets recovered from the scene, and one bullet apparently recovered from Travis's leg. 

### Aftermicroscopic examination and comparison, Poole determined that all five bullets were fired from the same weapon and the weapon was either a .38 or a .380 revolver. A .380 semi-automatic could notfire a .38 bullet. InPoole's opinion, a lay person could not tell the difference between a revolver and a semi-automatic by the sound of the firing of the
weapon. Standard ofReview 

### Appellantcontends the evidence is factually insufficientto prove he shotTravis and

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L.V. In reviewing factual sufficiency, we do not view the evidence in the light most favorable to the prosecution. Clewis v. State, 922 S.W.2d 126, 134-35 (Tex. Crim. App. 1996). We set aside the verdict, however, only if it is so contrary to the overwhelming weight ofthe evidence as tobe clearly wrong and unjust. We remain deferential to avoid substituting our judgment for the factfinder's. Id. at 133-36. We will not reweigh the evidence and set aside the verdict merely because we believe a different result is more reasonable. Id. at 135. Thus, we review the factfinder's weighing of the evidence and can 

### disagree with the factfinder's conclusion, but we exercise ourjurisdiction only to prevent a manifestly unjust result. Id. at 132-33.
Discussion Appellant contends the evidence is factually insufficienttoprove he was the shooter because therecord shows hepossessed a different type ofgun than the oneused to shoot Travis and L.V., that he was never actually seen firing the gun he possessed, and that 

### another person could have been the shooter. We disagree with each contention. The testimony of theballistics expert established thatthe same weapon, either a .38 or .380 revolver, was used to shoot both Travis and L.V. Appellant notes that Earl described the weapon that Mike-Mike handed appellant as an automatic rather than 

### revolver. Although L.V. did not see Mike-Mike hand appellant his weapon, L.V. testified that Mike-Mike carried an automatic weapon. The evidence does not establish that the 

### weapon Mike-Mike gave to appellant was necessarily the weapon used in the shooting.

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Appellant could have had his own weaponjust as Mike-Mike and Hall did. L.V. testified 

### that he could not see what type ofgun appellant was shooting, but he did see the chrome 

### handle and sparks coming from the barrel as it discharged. Furthermore, neither Earl nor 

### L.V. is anexpertinweaponry. Thus, eveniftheymisidentifiedtheweaponas anautomatic, that fact alone would not lead us to conclude that the evidence was factually insufficient. Instead, it isjust one piece ofevidence for the factfinder to weigh. 

### We also disagree with the contention that appellantwas not seenfiring the weapon. 

### L.V. testifiedthathe sawTravis getshot, he turnedaroundandsawappellantholding agun and watched him fire a few more shots. Although Senaquia testified she was uncertain 

### whether she actually saw appellant firing the gun, she maintained she did see him holding the gun in the air with something red coming from the end ofthe barrel, and she saw 

### appellant running from the scene. Although Earl did not see appellant firing the weapon, 

### he did see appellant in possession ofaweapon. Further, Shandra testified that appellant, 

### Mike-Mike, and Hall returned to herapartment afterthe shooting. Appellantwas holding the revolver and admitted he began shooting when he saw L.V. and Travis move to 

### intervene in the fight between Earl and Mike-Mike. Shandra's testimony is consistentwith 

### L.V. who testified that he was shot after he sought to intervene in the fight. In light ofall the evidence, we conclude that there is factually sufficient evidence to support a rational factfinder's conclusion that appellant was the shooter. 

### Appellant's theory that someone else could have been the shooter is not supported

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## bythe record. There is no evidence that someone otherthan appellant was discharging a weapon or that appellantdid not discharge aweapon. The evidence was undisputed that 

### appellant was at the scene, in possession ofaweapon, and fled the scene following the shooting. Eyewitnesses identified appellant as the shooter and appellant admitted the shooting to a third person. Appellant's theory that someone else could have been the 

### shooter, without evidence to supportit, cannot sustain afactual sufficiency challenge. Conclusion For the reasons set forth above, we conclude the verdict in each case is not so 

### contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. 

### Accordingly, we overrule appellant's solepointoferrorandaffirmthejudgments ofthe trial

court.

Do Not Publish Tex. R. App. P. 47 951456F.U05

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- //3 Cd Qfourt at Appeals 

### iHf ty Ststrbt ofGLexus at Saiias No. 05-95-01456-CR JAMES RHYMES, Appellant


### THE STATE OF TEXAS, Appellee Appeal from the 282nd District Court of Dallas County, Texas. (Tr.Ct.No F94- 42944-S). 

### Opinion delivered by Justice Lagarde, Justices Whittington and Roach also participating. JUDGMENT 

# AFFIRMED ^ ^ C°UrtS °Pini°n °f*** ^ ^ judgment ofthe triaI court * Judgment entered February 27, 1998.

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