# 6^-/5

FILED IN COURTOFCRIMINALAPPEALS 

## AUG 272015 Abel Acosta, Clerk IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

PD-0649-15 

# COURTOFCRIMINALAPPEALS AUG 2 7 2015 

## AbelAcosta, Clerk

JASON EARL WOOLEY APPELLANT/PETITIONER

V. § § THE STATE OF TEXAS § APPELLEE/RESPONDENT

On Petition For Discretionary Review from 

### The Fourteenth Court of Appeals in No.l4-.06-O0088-CR Affirming the Conviction in No.997,161 from The 176th Judicial District of Harris County, Texas

APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

JASON EARL WOOLEY ELLIS I UNIT
- TDC#1348672 1697 FM 980 HUNTSVILLE, TEXAS 77343STATEMENT REGARDING ORAL ARGUMENT
Appellant/Petitioner desires not to make oral argumentNAMES OF INTERESTED PARTIES


### Pursuant to TEX.R.APP.P. 38.1(a), Appellant submits that the following are interested parties: Jason Earl Wooley, Appellant- Pro se, TDCJ-ID #1348672 Ellis Unit 1697 FM 980 Huntsville, Texas 77343 Honorable Brian Rains, Judge Presiding 176th District Court of Harris County, 1201 Franklin, 19th Floor Houston, Texas 77002 Eileen Bogar, Assistant District Attorney Trial Division 

### Harris County District Attorney's Office 1201 Franklin Houston, Texas 77002TABLE OF CONTENTS PAGE STATEMENT REGARDING ORAL ARGUMENT 2 NAMES OF INTERESTED PARTIES 3 

### TABLE OF CONTENTS \ 4 INDEX OF AUTHORITIES '
- 5 STATEMENT OF THE CASE 6 ISSUES PRESENTED 7 STATEMENT OF FACTS 7,8 ARGUMENT AND AUTHORITIES ISSUE NO.l 8,9 ARGUMENT AND AUTHORITIES ISSUE NO.2 9 ARGUMENT AND AUTHORITIES ISSUE NO.3 & 4 9 ARGUMENT AND AUTHORITIES ISSUE NO.5 9 CONCLUSION AND PRAYER 10 CERTIFICATE OF SERVICE 10INDEX OF AUTHORITIES

UNITED STATES SUPREME COURT CASES PAGE 

### Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.2781,2789(1979) 9 Cole v. Arkansas, 333 U.S. 196 (1948) 9

5TH CIR. CASES 

### Santellan v. Cockrell, 271 F.3d 190 (5th Cir. 2001) 9

TEXAS COURT OF CRIMINAL APPEALS CASES 

### Malik v. State, 953 S.W.2d 234, 239-40 (Tex.Crim.App.1997) 8 Wooley v. State, 273 S.W.3d 260, 271-73 (Tex.Crim.App. 2008) 8 Lowry v. State, 692 S.W.2d 86,87 (Tex.Crim.App.1985) 8 

### Johnson v. State, 673 S.W.2d 190, 194 (Tex.Grim.App.1984) 8 -'-Peddicord v. State, 942 S.W.2d 100, 103 (Tex.App.-Amarillo 1997 8 -'-Wooley v. State, 223 S.W.3d 732 (Tex.App.-Houston 2007 8 

### -'-Garcia v. State, 634 S.W.2d 888., 893 (Tex.App.-San Antonio 1982 9



### Brooks v. State, 323 S.W.3d 893, 894-95 (Tex.Crim.App.2010) 9

-''Texas Court of AppealsTO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS: 

### COMES NOW JASON EARL WOOLEY, Appellant, acting Pro se, and 

### files this petition/brief in support of my prayer that the judgment of the Court of Appeals be vacated, and that I be granted a new trial or punishment hearing or that the case be remanded to the Court of Appeals for further review.

STATEMENT OF THE CASE 

### Appellant was convicted by a jury of murder, upon a plea of not guilty. The same jury found two enhancement paragraphs to 

### be true and assessed punishment at "forty [40] years confinement in the Texas Department of Criminal Justice, Institutional Division. Judgment was rendered January 11, 2006, by the 176th District Court of Harris County, Texas, in Cause Number 997,161. The trial 

### court certified Appellant's right to appeal and Appellant gave timely Notice of Appeal. 

### Appellant's conviction was affirmed by a three-justice panel of the Fourteenth Court of Appeals in a majority opinion delivered 

### May 1, 2007. Appellant filed a "Petitioner for Discretionary Review" from the Court of Appeal's opinion. This Honorable Court 

### granted Appellant's petition for discretionary review. Appellant's brief, pursuant to this Honorable Court's granting Appellant's Petition for Discretionary Review is timely filed on August 15,2015, 

### by sending it via certified U.S. Mail #7013 1710 0001 0996 3411, return receipt requested, addressed to the Clerk of the Court of Criminal Appeals in Austin, Texas.ISSUES PRESENTED 1. Did the appellate court error in finding that the trial court found Appellant guilty of murder beyond a reasonable doubt when none of the evidence proved the fatal shot came from 

### Appellant's gun, and the State's witnesses testified that 

### Appellant only fired,one shot into the.ground?
2. Did the appellate court error in finding that the evidence was sufficient to support a conviction of murder? 

### 3. Did the appellate court error in affirming Appellant's conviction knowing that appellant's due-process rights were violated when the court of appeals affirmed the conviction under the 

### unsubmitted theory that appellant aided " another " to murder the complainant?


### 4. Did the appellate court error in finding that the State presented evidence from which the jury could have REASONABLY CONCLUDED APPELLANT SHOT AND KILLED THE COMPLAINANT? 

## 5. Did the appellate court error in finding that the Appellant's Federal due process wasftviolated when Appellant's conviction was affirmed based upon facts not submitted to the jury.

STATEMENT OF FACTS 

### A jury found appellant, guilty of murder and sentenced him to confinement for forty years in the TDCJ. The Court of Appeals 

### originally affirmed appellant's conviction, finding the evidencewas legally and factually sufficient when viewed using a hypothetically correct jury charge pursuant to Malik v. State, 953 S.W.2d 

### 234, 239-40 (Tex.Crim.App. 1997). See Wooley v. State, 223 S.W.3d 

### 732 (Tex. App.- Houston [14th Dist.j 2007, pet. granted). The Court of Criminal Appeals reversed and remanded, holding that 

### this court's use of a hypothetically correct charge violated appellant's federal due process rights by affirming the judgment on a theory not submitted to the jury. See Wooley v. State, 273 

### S.W.3d 260, 271-73 (Tex. Crim. App. 2008). Then the Court of Appeals again affirmed the trial court's verdict. Appellant filed a writ of habeas corpus and proved to this Court that Counsel had not provided appellant with notice of his right to file a timely PDR. Thereafter, this Court granted appellant his right
to file an out-of-time PDR.

ARGUMENT AND AUTHORITIES ISSUE N0.1 

### The police could not determine which of the named suspects fired the fatal shot or even which caliber gun caused the complainant's death. The U.S. supreme court has held that it is a violation 

### of the due process clause of the U.S. Constitution 14th Amendment to shift the burden of proof in a criminal case to the defendant. 

### Lowry v. State, 692 S.W.2d 86,87 (Tex.Crim.App.1985). It is incumbent on the State to prove every element of the 

### offense byond a reasonable doubt. This is true whether the State 

### is relying upon circumstantial or direct evidence. Johnson v. 

## State, 673 S.W.2d 190, 194 (Tex.Crim.App. 1984); See also Peddicord 

## v. State, 942 S.W.2d 100, 103 (Tex.App.-Amarillo 1997, no pet.).

### It is reversible error for the trial court, over the objection of the defendant, to fail to charge upon the presumption of innocence. 

### Garcia v. State, 634 S.W.2d 888, 893 (Tex.App.-San Antonio 1982
no pet.).

ARGUMENT AND AUTHORITIES ISSUE NO.2 When the Court of Appeals made a finding that Appellant murdered complaintant without supporting sufficient evidence did the Appellate court error in violating Jackson v. Virginia; Brooks v. State, 

### 323 S.W.3d 893, 894-95 (Tex.Crim.App. 2010)•Santellan v. Cockrell, 271 F.3d 190 (5th Cir. 2001). ARGUMENT AND AUTHORITIES ISSUE NO.3 & 4 

### Did the Appellate Court error by affirming Appellant's conviction
even knowing that the right to a jury trial is not satisfied 

### when the appellant's jury was provided a different theory and instructions than was ever presented to the jury? Appellate courts are not permitted to affirm convictions on any theory they please simply because the facts necessary to support the theory were presented to the jury. The Appellate Court violated Cole v. 

### Arkansas, 333 U.S. 196 (1948), by doing this.

ARGUMENT AND AUTHORITIES ISSUE NO.5 

### Did the Appellate Court error when denying Appellant's right to due process under the federal constitution when it affirmed 

### appellant's conviction knowing that the facts used to obtain the conviction had not been submitted to the jury?CONCLUSION AND PRAYER WHEREFORE, PREMISES CONSIDERED, Appellant prays this Honorable Court will vacate the judgment of the Court of Appeals, reverse • 

### Appellant's conviction so that a new trial be held or the case be remanded for reconsideration. Additionally, Appellant prays for all other relief deemed appropriate.
Respectfully submitted,

10 EARL WOOLEY,; 'PELLANT, PRO SE "O.B. ELLIS UNIT 1697 FM 980 HUNTSVILLE, TEXAS 77343
CERTIFICATE OF SERVICE 

### This is to certify that a true and correct original copy of the 

### foregoing has been mailed to the Clerk of the Texas Court of 

## Criminal Appeals by U.S. mail system, on this the /Q day of August 2015. 

## ^SQN EARL WOOLEY,/l34,66/2 PPELLANT, PRO SIAffirmed and Memorandum Opinion on Remandfiled October 22, 2009.

In The 

## Jfamrteentlj Court ofAppeals

NO. 14-06-00088-CR
JASON EARL WOOLEY, Appellant
V. THE STATE OF TEXAS, Appellee

On Appealfrom the 176th District Court Harris County, Texas Trial Court Cause No. 997,161

MEMORANDUM OPINION ON REMAND 

### Ajury found appellant, Jason Earl Wooley, guilty ofmurder and sentenced him to confinement for forty years in the Institutional Division of the Texas Department of Criminal Justice. This court originally affirmed appellant's conviction, finding the 

### evidence was legally and factually sufficient when viewed using a hypothetically correct 

### jury charge pursuant toMalikv. State, 953 S.W.2d 234, 239-40 (Tex. Crim. App. 1997). SeeWooleyv. State, 223 S.W.3d732(Tex. App.-Houston [14thDist.] 2007, pet.granted). The Court of Criminal Appeals reversed and remanded, holding that this court's use of a 

### hypothetically correct charge violated appellant's federal dueprocess rights by affirmingthejudgment on a theory not submitted to the jury. See Wooley v. State, 273 S.W.3d 260, 271-73 (Tex. Crim. App. 2008). Because we find thatthe evidence is sufficient to support the verdict, we affirm. 

### Factual and Procedural Background An indictment charged appellant with murdering the complainant by shooting him 

### with afirearm.1 The Statepresentedevidence from which ajurycouldrationally find that appellant participated in an "ambush" ofthree unarmed men after luring them into a pool hall parking lot. The attack began when appellant shot his 9-millimeter pistol into the ground as two ofthe intended ambush victims approached him. The complainantwaited in 

### a car in the parking lot. Immediately afterwards, other shots were heard coming from different locations in the parking lot. Shots seemed to be coming from everywhere. Appellant fired several more shots at the two men who had initially approached him. The 

### complainant was fatally wounded, and another victim was wounded but not killed. Appellant and another person got into a car and drove off. The man accompanying 

### appellantwas Pablo Velez, identified as one ofthe shooters. One 9-millimeter shell casing matching appellant's pistol was recovered from the scene. 

### The police investigation identified four potential suspects as the shooters. Only appellant and Velez were identified by witnesses at trial as shooters. Police investigators concludedthat four shooters using at least three different caliberguns were involved in the attack. Becausethe fatal bulletwas notrecovered, police couldnot determine which caliber gun killed the complainant.' 

### Thejury was instructed that it could convict appellant as a principal or as a party to Velez's actions in firing the fatal shot. The jury convicted appellant ofmurder "as charged in the indictment." On appeal, appellant argued that the evidence is factually insufficient to 

### supporthis conviction. We decidedthat the submitted charge incorrectly applied the law of 1 The facts surrounding theshooting aremore fully described bytheCourt ofCriminal Appeals. See Wooley, 273 S.W.3d at 261-66.parties based on the evidence in that it authorized appellant's conviction as a party upon a finding that appellant aided only Velez in causing the complainant's death. A hypothetically correctjury charge shouldhave authorized appellant's conviction as aparty if the jury found that appellant aided Velez "or another person" in causing the 

### complainant's death.2 See id. Measured againstthis hypotheticalparty's charge, we found the evidence factually sufficient to support a finding ofappellant's guilt as a party. See Wooley, 223 S.W.3d at 737-39. 

### On petition for discretionary review, the Court of Criminal Appeals held that althoughMalikapplies to factual sufficiencyreviews, appellant's federal due process rights
were violated when we affirmed appellant's conviction under the unsubmitted theory that 

### he aided "another" to murder the complainant. 273 S.W.3d at 271. The Court ofCriminal 

### Appeals further held that this due process violation is not subject to a harm analysis. The
case was remanded so that we could determine whetherthejudgment may be affirmed on 

### the facts submitted to the jury based on the charge actually submitted, that is, whether sufficient evidence supports the jury's verdict that appellant murdered the complainant either as the principal actor or as a party to Velez's actions. 

### Analysis 

### When reviewing the legal sufficiency ofevidence, we examine the evidence in the 

### light most favorableto the verdict to determinewhether any rational trier of fact could have found the essential elements ofthe offense beyond areasonable doubt. Jackson v. Virginia, 

### 443 U.S. 307, 319 (1979); Masonv. State,905 S.W.2d 570, 574 (Tex. Crim. App. 1995).

2 SeeMalikv. State, 953 S.W.2d 234,239-40 (Tex. Crim. App. 1997)(holdingthat anerroneous juryinstructionisirrelevantto asufficiencyreview andthata"hypotheticallycorrectjurycharge" shouldbe applied to the review). 

### 3 Appellant's due process claim challenged this court's review ofboth the legal and factual sufficiency of theevidence. Therefore, wehave reviewed theevidence forlegal andfactual sufficiency.In a factual sufficiency review, we consider all the evidence in a neutral light and reverse ifthe evidence supporting the verdict is so weak thatthe verdict seems clearly 

### wrong and manifestly unjust, or the supporting evidence is outweighedby the greatweight and preponderance ofthe contrary evidence so as to render the verdict clearly wrong and manifestly unjust. See Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). Murderrequires knowing or intentional conduct, whichmeans either(a) a conscious desire to engage in the conduct causing the result, or (b) an awareness that the conduct is reasonably certain to cause the result. Tex. Penal Code Ann. § 19.02 (Vernon 2003); see alsoArnold v. State, 234 S.W.3d 664, 670 (Tex. App—Houston [14thDist] 2007, no pet.) (holdingjury may presume intent to kill from use ofa deadly weapon). The State presented evidence from which thejury couldhave reasonably concluded appellant shot and killed the complainant. Appellant's firearm was not excluded as the weapon firing the fatal shot. One fired bullet and fifteen spent shell casings collected at the
scene were admitted into evidence. Although only one shell casing was recovered from a 

### 9-millimeterweapon, both crime scene officers testifiedthat additional casings couldhave beenpresent immediately afterthe shooting, butthey were removed from the scene before 

### officers could recoverthem. Witnesses saw appellant fire his weapon multiple times in the parking lot. The complainant and another party to the ambush were both shot in the back during the shoot-out. There was testimony that one or more ofthe shooters was "chasing 

### the victims" and that appellant followed the surviving shooting victim and continued to shoot at him. The surviving victim was certain appellant shot him. The circumstances of 

### the ambush provide sufficient evidence that appellant intended to cause serious bodily harm and that his actions were clearly dangerous to human life. There is no dispute that the 

### complainant died as a result of the shoot-out. Police investigators and another witness described where the shooters stood and how they moved during the shooting. The crime 

### scene video and diagram of the location showed where shell casings and bloody clothing
were recovered. Based on these witnesses' descriptions ofthe shooting scene, the jury

### could have reasonably concluded that appellant was the only person in a position to shoot and kill the complainant. 

### Alternatively, the evidence is legally and factually sufficient to support appellant's conviction as a party.to Velez's actions. A person may be found guilty as a party to an offense ifhe is criminally responsible for the conduct ofthe person who committed the offense. Tex. Penal CodeAnn. § 7.01(a) (Vernon 2003). Aperson is criminallyresponsible for the offense committed by another's conduct if, acting with intent to promote or assist the commission ofthe offense, he solicits, encourages, directs, aids, or attempts to aid the otherperson to committhe offense. Id. § 7.02(a)(2). In making this determination, the fact 

### findermay look to eventsthat occurredbefore, during, or afterthe offense, and mayrely on acts showing an understanding and common design. Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1997). "An agreement ofparties to act together in a common design can seldom be proved by words, but reliance can often be had on the actions ofthe parties showing an understanding and a common design to do a certain act." Wygalv. State, 555 S.W.2d 465, 469 (Tex. Crim. App. 1977). Therefore, participation in an enterprise may be inferred from the circumstances and need not be shown by direct evidence. Id.; Thomas v. State, 915 S.W.2d 597, 599 (Tex. App.-Houston [14th Dist] 1996, pet. refd). We examine the record for evidence thatwould allow arationaljurorto find beyond 

### a reasonable doubtthat: 1) Pablo Velez, Jr. intentionally or knowingly causedthe death of complainant, or, intending to cause serious bodily injury to complainant, caused his death 

### by intentionally or knowingly committing an act clearly dangerous to human life; 2) appellanthadthe intentto promote or assistthe commission ofthe murder; and 3) appellant 

### solicited, encouraged, directed, aided or attemptedto aid that person in the commission of the murder. 

### First, the evidence is legally sufficient to show that Velez intentionally shot and 

### killed the complainantor caused his death by intentionally orknowingly committing an act 

### clearly dangerous to human life. A witness identified Velez from a photo array as one of

### theshooters.4 There was testimonythatinadditiontofiring his weapon during theattack, Velez chased down the intended victims. A police investigator described Velez's location at the shooting scene and where the shells from his weapon were found. According to the testimony ofthe witnesses, as well as the analysis ofthe investigating officers, the gunfire appeared to be in the nature ofan ambush. The circumstances ofthe shooting—a reckless shoot-out without regard for the safety ofpeople in the parking lot—provide sufficient proofthat the person who fired the fatal shot intended to kill or do serious bodily injury, and it was undisputed that the gunshot wound received during the shootout caused the complainant's death. Next, we determine whether the evidence is legally sufficient to establish that 

### appellantintendedtopromote or assistthe murder. Eventhough, as appellantpoints out, no direct evidence of a plan exists, circumstantial evidence showed a plan. Appellant and Velez were known associates; both frequented the pool hall and may have workedthere as 

### bouncers. Appellant challenged one ofthe ambush victims to a fist fight, thereby drawing 

### him to the pool hall. Immediately after appellant fired his first shot into the ground, more 

### gunfire was heard and seen coming from gunmen in the parking lot. Witnesses identified Velez as one of the shooters. According to witness testimony, appellant followed two 

### individuals into the parking lot and fired multiple rounds at them as they fled. Appellant was also seen leaving the scene ofthe crime in a Cadillac along with a gunman from the 

### parking lot, who was later identified as Velez. A police investigator testified that the coordination of the gunmen showed that the ambush was planned. This evidence is legally sufficient to allow a rational juror to conclude beyond a reasonable doubt that appellant

4 Appellant has argued that thetestimony from apolice investigator that thesurviving victim's girlfriend (who hereferred to as his "baby mama") identified Velezas a shooter should not beconsidered because it was hearsay that the witness did not corroborate during her trial testimony. The detective's testimony wasadmittedwithoutobjection,thejury waspermittedtoweighandconsideritsprobativevalue, and this court may consider it onreview. SeePoindexter v. State, 153 S.W.3d 402, 406 (Tex.Crim. App. App. 2005).was involved with other gunmen as part of a coordinated attack without regard for the safety ofanyone who may been with them. 

### The evidence is legally sufficient to show that appellant solicited, encouraged, directed, aided or attemptedto aid the murdererin the completion ofthe offense. Appellant 

### aided the ambushby having the message relayedthat he wantedto fight one ofthe ambush victims. Immediately following appellant's first shot, gunfire erupted from one or more people already at the pool hall. Appellant furthered the ambush by shooting at the victims in the parking lot. During, or shortly after, the shooting, appellant and Velez were seen 

### leaving in the same car. These facts are evidence that appellant actually aided the murderer. The fact that other shots were not heard or seen until appellant fired the first shot toward 

### the ground suggests that he was aiding in the completion of the offense. All of this evidence taken together would allow a rational juror to conclude beyond a reasonable 

### doubt that appellant did indeed aid or encourage the commission of the offense. The lack of direct evidence of a plan or agreement does not overwhelm the circumstantial evidence that 

### appellant and Velez acted together pursuant to a plan. We hold the evidence was legally sufficient to support a verdict of guilty based on appellant's participation as a party. 

### Appellant presented no witnesses. Instead, he sought to cast doubt on the factual sufficiency of the evidence by attempting to impeach the testimony of several witnesses 

## and by identifying inconsistencies in the evidence.5 His cross-examination ofthe State's witnesses suggested that he fired only one initial shot into the ground just before the other shooters started firing their weapons. To support his position, he pointed to the evidence 

### that the police recovered only one 9-millimeter shell casing at the scene. Appellant's cross-examination of the State's witnesses also suggested that he could have been 

### misidentified as the one who got into the car with Velez just after the shooting stopped.

5 An appellate opinion addressing factual sufficiency must include a discussion ofthe most important evidence thatappellant claims undermines thejury'sverdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim, App. 2003).Appellant identifiedthese specific inconsistencies in the evidence: The trial testimony ofthe girlfriend ofthe surviving victimthat appellant and Velez left together conflicted with her statementto police, in which she said she did not see appellant leave. The girlfriend and her friend, another witness at trial, had drunk several alcoholic beverages that evening. There was very little evidence ofa connection between appellant and Velez 

### and no direct evidence that they had conversations orplanned the shooting. There was no evidence showing appellant's connection to the other gunmen such thatthey would participate in the shooting. 

### The surviving victim testified that he was shot in the back, when medical records indicate he was shot in the stomach.6 The surviving victim had committed two robberies and was in prison at the time ofappellant's trial. 

### Testimony conflicted regarding whether the surviving victim took his shirt 

### offin anticipation ofa fist fight as he approached appellantin the parking lot. Appellant's gun was not linked to the shot that killed the complainant. 

### Thejury is the solejudge ofthe credibility ofthe witnesses and the weight to be 

### given to the witnesses' testimony. See Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996). Unless the record clearly reveals that a different result is appropriate, an 

### appellate court must defer to thejury's determination concerning what weight to give contradictory testimonial evidence because resolution often turns on an evaluation of credibility and demeanor, and the jurors were in attendance when the testimony was delivered. Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000). 

### It is thejury's responsibility to resolve conflicts in the evidence. Losada v. State, 111 S.W.2d 305, 309 (Tex. Crim. App. 1986). Thejurycould have concludedthat shooting 

### a gun in the general direction ofa group ofpeople, which included the complainant, was reasonably certain to result in a death. See Rojas v. State, 171 S.W.3d 442, 447 (Tex. 

### App—Houston [14thDist.] 2006, pet. refd) (finding the evidence legally and factually
6 Therecords actually showthesurvivingvictimhada"GSWtoabdomen," andadrawingshowed the entrance wound in the lower right back, with the exit wound on the lower right front ofthe abdomen.

### sufficientto supportacapital murderconvictionforkilling a4-yearold whenthe defendant fired in the direction ofa group ofpeople during a drive-by shooting, even though another person was also seen firing his weapon). 

### Appellantalso arguedthe State failed to rule out otherversions ofevents, primarily, the possibilitythateitherofthe two othergunman couldhave fired the fatal shot. The State 

### is no longerrequired to negate everypossible hypothesis to establish a defendant's guilt in circumstantial evidence cases. See Geesa v. State, 820 S.W.2d 154, 162 (Tex. Crim. App. 1991) (en banc), rev'don other grounds, 938 S.W.2d 718 (Tex. Crim. App. 1996). When we view the evidence in a neutral light, which we must in a factual sufficiencyreview, the greatweight andpreponderance ofthe evidence does notcontradict the jury's verdict. See Watson, 204 S.W.3d at 417. Therefore, we conclude that the evidence is factually sufficient to sustain appellant's conviction. Conclusion Having determined that legally and factually sufficient evidence supports thejury's verdict, we affirm thejudgment ofthe trial court.

/s/ Adele Hedges ChiefJustice

Panel consists ofChiefJustice Hedges and Justices Seymore and Sullivan. Do NotPublish

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