### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 17
- 00734
- CR

Endicott McCray, Appellant

v. The State of Texas, Appellee

FROM THE 147TH DISTRICT COURT OF TRAVIS COUNTY NO. D
- 1
- DC
- 16
- 301466, THE HONORABLE CLIFFORD A. BROWN, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

A jury found appellant En dicot t McCray gui lty of first

- degree murder and found
that he should be sentence d to sixty

- five years in prison. On ap peal, appellant argues that the
evidence is insufficient to p rove tha t h e fir ed the fatal shot s or that he shot into a crowd of
p eople. We will affirm the trial court ’ s judgment of conviction.

SUMMARY OF THE EVIDENCE 1 In July 2016, Sab rina and Teq nika Moultrie visit ed family in Austin. A t about
2:00 a.m. on July 31, the y w ere w alk ing away from Voo do o Dou gh nuts in the 6th Street
entertainment district when the y heard gunshots. F ive people, including Teqnika , were shot. Teqnika died on the scene , and three people required ho spital treatme nt for their wounds

.

1 We wil l summar ize the evidence presented to the jury only to the exten t necessary to determine appellant ’ s issues.2 Austin P oli ce O ffi cer s Thomas Childress and Luke We rner testified that 6th
Street and Voodoo Doughnuts are usually c rowded that time of nigh t as patrons leav e the bars as they close

. W erner remember ed that the night of the shooting w as “ extremely busy. Essentially
it was side wa l k to sidewalk, shoulder to shoulder

. ” S abr ina ’ s brother

- in

- law confirmed that both the donut shop and the street were crowded with people , testif ying that the group waited in line
for “ a tremendously long time ” at Voodoo Do ugh nuts and had ju st left to f in d their ride home
when Teqnika was shot

. Childress testified that at about 2:00 a.m., he and his partner were near Voodoo Dou ghnuts “ breaking up a fight of about 15 people

. ” They were pushing people awa y and telling them to leave the area w he n Childr e ss heard four gunshots “ f airly close in pro ximity ”
to where he was sta nding , at which point “ every body scattered ” and started running away.

Christopher Walker is appellant ’ s brother

- in

- law . He testified that on the night in question , he went to 6th Str e et with his then

- girlfriend, Latoya Walker, and some other friends. He saw appellant and walked over to ask why a ppellant had not gone to appellant ’ s daughter ’ s birthday party , which had upset Shante, appellant ’ s wife and Walker ’ s sister

. Walke r said th a t he

“ was upset ” with appellant but that he and appella nt did not raise the ir voices or get argumentative

. Walker got nervous that appellant might hav e a we apon because h e saw appellant “ fi dgeting at his waistband ” and shoved appellant out of fe a r and to try “ t o g et him further away. ” Walker never saw appellant with a gun in his hand , but w hen he was asked
whet her he “ saw the print or kind of the outline of gun in the pants ” appellant was wearing, he said, “ Yeah, I seen a print, ” ex p lainin g that the “ print ” was on the side of his waistband where appellant was fi dg eting

. When Walker shoved appellant, a ppellant fell backwards but did not
lo se his footing

. Walker back ed up and ran , falling at one point , and explained that he ran
bec au s e he was sca r ed “ [o]f getting shot ” and that h e heard four or five gunshots . Walker ran3

until t he gunshots stopped , a nd when he stopped runni ng, he saw “ a lot of people crying , yelling ”
and “ some people laying down dead like they had been shot. ” Walker t e stified tha t he was wearing a red shi rt and a red baseball hat a nd that he did not remember what appellant was wearing, whether appellant ’ s shoulder

- length dreadlocks were down or pulled back into a ponytail, or whether appellant was w earing a hat. Wal ke r called the police to tell them what had happened after the police contact ed his family for information

.

La toya Walker testified that just before the shooting , she saw Walker and appellant standing face to face talking. She was not close enough to he ar their words and said they were not ye lling. Lat oya had her back to them while she talked to her friends until she heard something that m ade her turn around. Although she did not see Walker push or hit appellant , she saw appellant “ just kind o f m oved bac k ” and then s aw a ppellant pul l a gun from
hi s waistband . La toya said that t he gun appeared to get stu ck on appellant ’ s pants or belt for a
second “ and that ’ s when the first shot went off and hit the ground. ” “ E v ery body started running ”
after the first shot , and Lat o ya testified that she saw appe l la nt raise the gun and a im it , saying
she saw the gun “ the e ntire time it was up ” and that “ when [appellant] was shooting, he was running kind of backwards with the gun. ” H owever, she also agreed when she was asked on

cross
- examination whether she “ heard the shots ring out as [she was] running ” and whether she

was “ running away from that situation. ” La toya testified that she heard four or five gunshots , and s he did not remember what appellant was wearing or whether he was w ea ri n g a hat.

Juliana Gib bs was ou t with Latoya and Christop her on the night of the shooting
and said that 6th Street that night “ was chaos ”

— “ [ t] here was people everywhere. There was fights everywhere. There were lots of drunk people around. There was a l ot of screaming, partyi ng. ” She testified that she found herself in a crowd surrounding a fight, but she did not4

“ see the actual fighting that was going on

. ” Gibbs heard a com motion and remem bered “ being pushed really hard, and I remember feeli ng a lot of pr essure ” as she was shot. She did not see the gun and only heard gunshots. Gibb s testified that a police officer spoke to her at the hospital , showed her a photograph , and said “ this is the person who shot you. ” She said s he did not k now appella nt a nd “ had never seen him

. ”

Desiree Torres was also shot in the incident. She testified that she saw appellant arguing with a man in a white shirt , who pushed appellant. A ppellant then pulled a gun from his waistband using his right hand , and Torres s aid , “ I just hear he ’ s got a gun, I see the gun, and I start running . . . but that ’ s when I got shot. ” Torres said she was about f ifteen feet from appellant and describe d his clothing as “ a red polo and jeans that were kind of saggy , also a
black c ap, an d he had some dreadlocks. ” She could not remember if she had de scribe d appellant ’ s clothing when she gave a statement to the p olice after the shooting.

Crystal Cordero testified that she was on 6th Street on t he night of the shooting
and that her friend was shot in her an kle. Co rdero testified that she panicked when she heard gunshots . She started to run but saw “ a person lying on the ground who appeare d life less ” and thought, “ [O] h, my God, I ’ m running the wrong direction . I ’ m running in the d i rectio n of the gunshots. So I pa nicked for another second, and when I looked up is when I saw the shooter. ”
Cordero testified that t he man was about five

- foot, ni ne
- inches tall, slend er, Afri can
- American,
and light skinned and that he “ appeared to have cornrows , ha ir a b out shoulder leng t h or to the
back of his neck

. ” She explained that “ [t] he only reason that he stood out to me was because
amidst the chaos and everybody runn ing and trying to hide and getaway, he was standing still
and his face looked angry. It jus t di d n ’ t match what ev e rybody else was doing. ” Cor dero
testified that she saw the man “ lowering a black handgun in his right hand ” and explained that5

she saw him “ [ a ] fter the shots had been fired. ” She did not r ecall wha t the shooter was wearing
and thou ght t hat his cornrows w ere down and not pulled into a ponytail

. Cordero was not asked
to iden tify appellant at trial as the shooter.

Police investigators found five cart ridge cas ings at the scene , four of which were
located in th e mid d le of the stre et a cro ss from Voodoo Doug h nuts, in close proximity to a black
baseball hat

. The hat was not subjected to DNA or other testing and the witnesses cou ld no t say with certainty that it was the hat appellant wore in one of his social media p hoto s ; ho wever , on e witness testified that b o th hats have a brand

- name s ticker and a rectangular price sticker and that the position of the stickers on bo th hats are “ consistent ” with each other. The police also

re covered a cell phone and a red baseball hat b elonging to Wa lker , apparently dropped a s he fled , on or near the s idewalk in front of Voodoo Dou ghnuts ; fou nd two bullet holes in nearby

structure s ; an d recovered four “ pro jectiles ” from the scene or the victims

. A fi rearms examiner
tested the ca sings and projecti les and testified that all fou r of t he projectiles were “ consistent
with a 40

- caliber , ” were “ full metal jacket with a flat point desi gn , ” a nd had “ rifling
chara cteristics consistent with a Glock type firearm with polygonal riff ling. ” However, “ b ecause they w ere fired through a polygo n al rifle barrel, ” the expert could not positively state that they

wer e fired from the same gun , although n eit he r could he eliminate that possibility. As for the casings, four of them were 40

- caliber Smith & Wesson cart ridges mar ket ed by Federal , and t he
f irearms examiner testified that they were “ positively identified as having bee n fired in the same
gun ” and ha d characteristics “ consistent with Glock

- type firearms , ” although he could not say the particular type of gun. He teste d a fifth cart ridge that w a s found at the scene and determined
that it was a different brand of ammunition fired by a diff erent gun.6 Fin al ly, the State presented testimony that about th irty

- five minutes after the murder, a man m at chin g appellant ’ s descri ption , driving his v e hicle , and using his credit card bought gas about nine miles from the scene. A dete ctive testif ie d t hat the security footage from the gas station shows that the man ’ s ha ir is in d readlocks that are darker at the top and l igh ter in
col or at the ir ends. Later t h at day, July 31, a ppellant ’ s vehicle was “ disc overed aband oned ”

“ fai rly close ” to his resi de n ce , and a ppellant ’ s sister ’ s vehicle was seen in Shreveport , Louisiana at about 1:00 a.m. on August 1 and then found abandoned in Birmin gham, Ala bama. The
detect i ve also testified that appellant starte d “ turning his phone on and off in what we believed t o b e an effort to avoid detection ” a nd then “ completely switched to a different phone altogether,
and the number we had been tracking wen t silent

. ” Appellant was u lti mately arrested in Georg ia on August 3 , by which time appellant “ had drastically change d h is appearance. ” In a jail call between appellant and his wife, Shante Walker, he tells Shante that he ro d e in a train boxcar to
Atl anta , Georg ia, and Shante tell s appellant that it took her thirty minutes to explain to her
mother “ how you took y our d reads out. ”

STANDARD OF REVIEW
In assessing the sufficiency of the evidence , we consider all of the evidence in the light most favorable to the verdict and ask wheth e r a rational juror could have found the essential
elements of the of

fense beyond a rea so nable doubt. Braughton v. State , 569 S.W.3d 592, 60 8 (Tex. Crim. App. 2018)

. We ask “ whether the necessary inferences made by the trier of fact are reasonable, based upon the cumulative force of all the evidence , ” Adames v. State , 353 S.W.3 d 854, 86 0 ( Te x. Crim. App. 2011) , and t he Court of Criminal Appeals has explained that a jury
does not err in reaching one of mult iple “ permissible views of the evidence ” as long a s it has not7

“ come to conclusions based on ‘ mere speculation or factually unsupporte d in f erences or presumptions , ’ ” B raughton , 569 S.W.3d at 608 (quoting Hooper v. State , 214 S.W.3d 9, 15

- 16 (Tex. Crim. App. 2007) ; E vans v. State , 202 S.W.3d 158, 163 (Tex. Crim. App. 2006) )

. We presume that the jury as factfinder resolved any conflicting inf e rences in favor of its verdict and
defer to that resolution

— w e may not reevaluate the jury ’ s deter minations of the weight and credibility of the evidence or substitute our own judgment for that of the jury

. Id

.

EV IDENCE OF I DEN TITY In his first is sue, a ppellant argues that the evidence is insufficient to prove he was the shooter that night . He insists that “ [a]ny number of guns ” could have fired the f ata l shot , not i ng that the firearms examin er could not conclu sively state that all of the spent bu llet s were fired by the same gun , that a fifth cart ridge found at the scene was determined to have come from

a different gun , and that there was t estimony that “ shots are f i red frequently in that part of town

. ”
He further notes that Torre s only saw him ho ldin g a gun and did not see him actually fire the gun
and argues that , at best, the State proved that he pointed a gun at Walker, and then “ on ly if Latoya Walker ’ s testimon y is believed

. ”

A ppellant asserts that the State did not present a wi tnes s who could tes tify that they actually watched appellant fire his gun toward Teqnika . However , several witnesses provided testimony li nking appellant to a gun
. Walker testified t hat he pushed appellant because he was nervous about appell ant “ fi dgeting ” with his waistband, where Walk er saw a “ print ” of a
gun
. C o rdero testified that immediately after the sho oting, she saw a m an w h o matched appellant ’ s appear ance standing still

— in contrast to the chaos around him

— lowering a hand gu n , and looking angry , a nd Torres testified that she saw appellant with a gun just before the shooting8

started. Further, Latoya testified tha t she saw appellant pull a gun from his wa istband, fire one
shot down toward the ground ; that he raise d and aim ed t he gun , “ shoo ting ” as he moved
backwards ; and that she h eard four or five shots as she ran away

. In addition, t here was expert
testimon y th a t four of the five cartridges found at the scene were 40

- caliber cartridges fire d from the same gu n , “ consistent with Glock

- type firearms , ” 2 and that the four pro j e ct iles retrieved from
the victims and the scene were “ consistent with a 40

- caliber ” and had “ rifling chara cteristics
consistent with a Glock type firearm

. ” A police officer testifi ed that various witn esses gave differing descriptions of the shooter ’ s clothing but that inconsisten cy in such details is not concerning because in such a chaotic scenario , “ it ’ s typical that [witnesses] may c onfuse the
clothi ng ar ticles that are being wor n by one person as opposed to another. It ’ s not that concerning. ” Finally , the Court of Criminal Appeals ha s explained that “ a factfinder may draw an inference of guilt from the circumstance of fligh t, ” Clay ton v. State , 235 S.W. 3d 772, 780 (Tex. Crim. A pp . 2007) , and the State presented evidence that appellant fled Austin after the shooting , abandoning his car in Austin and dri ving his sister ’ s car through Louisiana and
Alabama b efore abandoning it and getti ng onto a train to G eo rgi a, and chang ed his app ea rance by removing his dis tinctive dreadlocks.

Based on the evidence presented to the jury and reasonable inferences that can be
dra wn therefrom, a reasonable jury could have concluded be yond a reasonable d oubt that it was
ap pe lla nt who fired the gunsho t that killed Teqnika. We overrule appellant ’ s first issue.

2 The cartri dge s were f

ound near a black basebal l hat that was consistent with a hat that app eare d in appellant ’ s social media posts

.9 FIRING INT O A CROWD In his second issue, appellant argues that ther e was no evidence that he fired a gun in the direction of a crowd of people. H e contends that the re w e re many people in the a re a and
that discharging a firearm in a crowded area “ is not the same as f iring into or in the directio n of a
crowd. ” Because the jury charge allowed the jury to find him guilty if it found one of several

man ner and means of co mm itt ing the offense, includ in g several that required a finding that he
fir ed into a crowd, appella nt argues , some of the juror s might hav e convic ted him based on a
manner and means for which there was insufficient evidence. 3

Appellant asserts that “ [d] ischarging a firearm while in a place wh ere t here are many people is not the same as firing into or in the direction of a crowd of people ” but cites to no authority for that prop osition. Fur ther, the evidence shows that 6th Street in gen eral was crowded and that specifically there w a s a large n umber of people at or near Voodoo Do ughnuts , with W erner testify ing that the people were “ s houlder to shoulder, ” from “ sidewalk to sidewalk, ”
and with S abr ina ’ s brother

- in

- law testifying that he , Te qnika, and their friends waited for their
donut s for “ a tremend o usly lon g time

. ” “ Crowd, ” in normal usage , is defined as “ a large number of persons especially when collected together ” or “ a large number of things close together , ” Crowd, Merriam

- Webster.co m , https://www.merriam

- webster.com/ dictionary/ c ro wd ( last visited
J an . 29, 2021 ) , or as a “ large number of people gathered together in a disorganized or unruly

3 The jury was instructed to find a ppellant guilty of murder if it determined that he: in te ntio nally or knowingly shot Teqnika with a firearm; comm i tted an act clearly da ngerous to human life with an intent to cause ser i ous bodily injury by shooting a firearm a t a crowd of individuals; intenti onally or knowingly committed or attempted to commit aggravated assault with a deadly weapon and then while f l eeing committed an act clearly dangerous to human life by shooting a fi r earm at a crowd of individuals; or intentio nally or knowingly committed or at tempted to commit the felony offense of deadly conduct by shooting a firearm at a crowd of individuals

.10

way , ” Crowd, Lexi co.com, https://www.lexico.com/en/definition/crowd ( last visited Jan. 29,
2021 )

. And several people in the crowded area w ere st ruck by bullets, thus supporting a findi ng that appellant fired “ into ” or “ in the direction of ” the crowd. We hold that the evidence is thus
suffi cient to support a conclusion that a p pellant fired his fi rea rm in the direction of a crowd

. T he
Court of C ri minal Appeals ha s held that “ when a jury returns a guilty verdict on an indictment charging sev eral acts in the conjunct ive, .

. . the verdict stands if the evidence is sufficient with respect to any of the acts charged. ” Kitchens v. State , 823 S.W .2d 2 56 , 259 (Tex. Crim. App. 1991) (quoting Turner v. United States , 396 U.S. 398, 420 (1970 ) )

. Accordingly, w e overrule appellant ’ s second issue. 4

CONC LUSION

We have overruled appellant ’ s issues. W e therefor e affirm the trial court ’ s judgment of convicti on
.

__________________________________________ Darlene Byrne , Chief Justice

4 The Court of Criminal A ppeals has further e xplained that when a jury cha rge alleg es alternative theories, “ harm must be measured ‘ at least in part, against th e likelihood that the jury ’ s verdict was actually based upon an alternative available theory of culpability not affected by err oneous portion s of the charge. ’ ” Sanchez v . State , 376 S.W.3d 767, 775 (Tex. Crim. App. 2012) ( quoting Atkinson v. State , 923 S. W.2d 21, 27 (Tex. Crim. App. 1996) , o verruled on other grounds by Motilla v. State , 78 S.W.3d 352 (Tex. Crim. App. 2002 ) )

. In Sanche z , the C ourt of Criminal Appeals held that although the charge erroneous ly allow ed the jury to con vict t he defendant for ca using the victim ’ s death by unknown manner and means, the defendant was not harmed because “ the jury could have convicted appel lant for murde r without being unanimous in its determination as to the manner or mean s of death ” and because all of the charge d al ternatives

“ required the jury to be convinced beyond a reasonable doubt that appellant caused the death of the comp laina nt, an d the evidence at trial established this. ” Id

.11

Before Chief Ju stice Byrne, Justices Triana and Smith
Affirme d
Filed: Febr u ar y 1 8 , 202 1
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