TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-18-00417-CR

Andre Jackson, Appellant

v.

The State of Texas, Appellee

FROM THE 331ST DISTRICT COURT OF TRAVIS COUNTY

NO. D-1-DC-16-302285, THE HONORABLE DAVID CRAIN, JUDGE PRESIDING

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

A jury found appellant Andre Jackson guilty of murder, see Tex. Penal Code 

§ 19.02(b)(1), and assessed his punishment, enhanced pursuant to the habitual-offender provision 

of the Penal Code, at confinement for ninety-nine years in the Texas Department of Criminal 

Justice, see id. § 12.42(d). On appeal, appellant challenges the sufficiency of the evidence 

supporting his conviction. We find no reversible error. However, through our own review of the 

record, we have found non-reversible error in the trial court’s written judgment of conviction. 

We will modify the judgment to correct the error and, as modified, affirm the judgment.

BACKGROUND

The evidence at trial showed that Dequincy Fields was a high-level drug dealer in 

north Austin. Appellant was a mid-level drug dealer associated with Fields. Kenneth Johnson 

and Maurice Taylor were low-level drug dealers associated with Fields and appellant.
2

One November night, appellant, Johnson, and Taylor met at a Studio 6 motel, 

where appellant was staying with his wife, with a plan to go sell drugs in a nearby neighborhood. 

As they left the motel, appellant retrieved a gun from underneath the hood of a blue Buick, 

which, the evidence showed, was registered to Fields’s girlfriend at Fields’s address.

1 The three 

men left together in the Buick; appellant was driving, Johnson was sitting in the passenger seat, 

and Taylor was sitting in the back seat.2

Testimony from Taylor reflected that at one point during the drive, appellant 

confronted Johnson, asking him, “Why’d you do it?”3 In response, Johnson attempted to get out 

of the car. Before he could, appellant shot him multiple times with the gun that he had retrieved

from under the hood. Appellant then drove around for a few minutes until he stopped the car in a 

nearby residential neighborhood. He and Taylor then pushed Johnson’s body out of the car and

drove to Fields’s home.

A resident of the neighborhood saw Johnson’s body as he drove past it on his way 

home and called 911. Police officers responded to the location and found Johnson in the street, 

covered in blood and appearing lifeless. Attempts to resuscitate him were unsuccessful. A

subsequent autopsy confirmed that Johnson died as a result of multiple gunshot wounds. He 

sustained five gunshot wounds: four entered the left side of his neck and one entered his left 

armpit. The medical examiner opined that two of the gunshots—one that entered his neck and 

1

 Testimony at trial reflected that it is not uncommon for individuals who sell drugs to 

store a firearm under the hood of their car.

2

 According to Taylor, this seating arrangement was at appellant’s direction. Taylor 

originally sat in the passenger seat, but appellant told him to get in the back.

3

 Other evidence at trial indicated that Johnson had previously robbed Fields, although 

he later apologized and sought to make amends.
3

transected his brain stem and one that entered his armpit, penetrated his chest cavity, and hit both 

lungs—would have been fatal in and of themselves.

At trial, Taylor testified about the events of the night. In addition, residents from 

the neighborhood where Johnson’s body was dumped testified about finding the body and calling 

911; the motel manager testified about her familiarity with the individuals involved; Johnson’s 

sister testified about her brother’s concerns about his safety before the shooting; police officers 

testified about the crime scene and their investigation, several witnesses testified about the 

disposal of the Buick;

4

several expert witnesses testified about electronic evidence recovered 

during the investigation—including information related to the usage and location of the cell 

phones of the individuals involved that night; and the medical examiner testified about Johnson’s

wounds and the manner and cause of his death. Appellant did not testify at trial or present any 

witnesses on his behalf.

DISCUSSION

Appellant was charged by indictment with intentionally or knowingly causing 

Johnson’s death by shooting him with a firearm. See Tex. Penal Code § 19.02(b)(1). In his sole 

point of error, he contends that the evidence was insufficient to support his murder conviction.

Sufficiency of the Evidence

Due process requires that the State prove, beyond a reasonable doubt, every 

element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 313 (1979); Lang v. State, 

561 S.W.3d 174, 179 (Tex. Crim. App. 2018). When reviewing the sufficiency of the evidence 

4

 During the shooting, the passenger window of the car was shot out. The evidence

showed that, after the shooting, Fields and appellant attempted to have the car repaired, but the 

Buick was ultimately sold for scrap metal and destroyed.
4

to support a conviction, we consider all the evidence in the light most favorable to the verdict to 

determine whether, based on that evidence and the reasonable inferences therefrom, any rational 

trier of fact could have found the essential elements of the offense beyond a reasonable doubt. 

Jackson, 443 U.S. at 319; Braughton v. State, 569 S.W.3d 592, 607–08 (Tex. Crim. App. 2018); 

see Musacchio v. United States, — U.S. —, 136 S. Ct. 709, 711–12 (2016); Johnson v. State, 

560 S.W.3d 224, 226 (Tex. Crim. App. 2018). In our sufficiency review, we consider all the 

evidence in the record, whether direct or circumstantial, properly or improperly admitted, or 

submitted by the prosecution or the defense. Thompson v. State, 408 S.W.3d 614, 627 (Tex. 

App.—Austin 2013, no pet.); see Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016); 

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We assume that the trier of fact 

resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a 

manner that supports the verdict. Jackson, 443 U.S. at 318; Laster v. State, 275 S.W.3d 512, 517 

(Tex. Crim. App. 2009); see Braughton, 569 S.W.3d at 608. We consider only whether the 

factfinder reached a rational decision. Arroyo v. State, 559 S.W.3d 484, 487 (Tex. Crim. App. 

2018); see Morgan v. State, 501 S.W.3d 84, 89 (Tex. Crim. App. 2016) (observing that 

reviewing court’s role on appeal “is restricted to guarding against the rare occurrence when a 

fact finder does not act rationally” (quoting Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. 

App. 2010))).

The trier of fact is the sole judge of the weight and credibility of the evidence. 

See Zuniga v. State, 551 S.W.3d 729, 733 (Tex. Crim. App. 2018); Blea v. State, 483 S.W.3d 29, 

33 (Tex. Crim. App. 2016); see also Tex. Code Crim. Proc. art 36.13 (explaining that “the jury is 

the exclusive judge of the facts”). Thus, when performing an evidentiary-sufficiency review, we 

may not re-evaluate the weight and credibility of the evidence and substitute our judgment for 
5

that of the factfinder. Braughton, 569 S.W.3d at 608; Arroyo, 559 S.W.3d at 487; see

Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012) (stating that reviewing court 

must not usurp jury’s role by “substituting its own judgment for that of the jury”). Instead, we 

must defer to the credibility and weight determinations of the factfinder. Braughton, 569 S.W.3d 

at 608; Cary v. State, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016). When the record supports 

conflicting reasonable inferences, we presume that the factfinder resolved the conflicts in favor 

of the verdict, and we defer to that resolution. Zuniga, 551 S.W.3d at 733; Cary, 507 S.W.3d at 

757; see Musacchio, 136 S. Ct. at 715 (reaffirming that appellate sufficiency review “does not 

intrude on the jury’s role ‘to resolve conflicts in the testimony, to weigh the evidence, and to 

draw reasonable inferences from basic facts to ultimate facts’” (quoting Jackson, 443 U.S. 

at 319)).

Appellant restricts his sufficiency challenge to the element of identity. He does 

not dispute that the evidence at trial was sufficient to demonstrate that Johnson was shot to death 

in the Buick that night, only that the evidence failed to establish his identity as the shooter. 

Specifically, appellant argues that the State failed to exclude Taylor as the shooter, asserting that 

“Taylor is greatly implicated and there is ample evidence from which a rational finder-of-fact 

could have concluded he was much more involved than he lead [sic] the authorities to believe.” 

He maintains that “Taylor’s self-serving testimony and the lack of physical evidence all weigh in 

favor of Appellant.”

The lacking “physical evidence” evidence that appellant laments is the murder 

weapon. He observes that the evidence showed that a gun recovered from underneath the hood 

of appellant’s car—three weeks after the shooting—was not the gun used to kill Johnson. 

However, the murder weapon was not required to prove guilt. “The law requires no particular
6

type of evidence.” Johnson, 560 S.W.3d at 226; see Lee v. State, 176 S.W.3d 452, 458 (Tex. 

App.—Houston [1st Dist.] 2004) (“The lack of physical or forensic evidence is a factor for the 

jury to consider in weighing the evidence.”), aff’d, 206 S.W.3d 620 (Tex. Crim. App. 2006).

Further, appellant’s focus on evidence missing from the trial evidence is contrary to the wellestablished procedure for conducting a legal-sufficiency review. See Clayton, 235 S.W.3d at 778 

(in conducting legal-sufficiency review, courts assess “all of the evidence” admitted at trial to 

determine whether any rational trier of fact could have found essential elements of crime beyond

reasonable doubt). In reviewing the sufficiency of the evidence, we assess whether the jury’s 

finding of guilt was justified considering the evidence that was admitted at trial, not what 

evidence is absent from the record. Here, the jury heard direct evidence from an eyewitness, and

the version of events related by Taylor was corroborated by other evidence at trial.

First, the security video from the motel corroborated the account that Taylor gave 

about the three men leaving the motel together in the Buick—after appellant retrieved a gun from 

under the hood—with appellant driving, Johnson sitting in the passenger seat, and Taylor sitting 

in the back seat. In addition, footage from the Ring video doorbell on Fields’s house

corroborated Taylor’s account of his and appellant’s arrival at Fields’s house after the shooting. 

Further, the medical evidence—including the medical examiner’s testimony about stippling 

around the entrance wounds (which indicated a close distance between the gun and Johnson at 

the time of the shooting), about the angle of entry of the gunshots, and about the trajectory of the 

bullets through Johnson—corroborated Taylor’s description of appellant shooting Johnson as he 

sat next to him in the front seat.

Moreover, while appellant characterizes Taylor’s testimony as “self-serving,” the 

jury was entitled to find his testimony to be credible. The jury, as the exclusive judge of the 
7

facts, is the sole judge of the credibility of witnesses and weight to be given to the testimony 

and may believe all of a witness’s testimony, portions of it, or none of it. Febus v. State, 

542 S.W.3d 568, 572 (Tex. Crim. App. 2018); Thomas v. State, 444 S.W.3d 4, 10 (Tex. Crim. 

App. 2014). As a reviewing court, we must not usurp this role by substituting our own judgment 

for that of the jury. Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017); see Febus, 

542 S.W.3d at 572 (“We may not re-weigh the evidence or substitute our judgment for that of 

the factfinder.”).

The State must prove beyond a reasonable doubt that the accused is the person 

who committed the offense charged. Miller v. State, 667 S.W.2d 773, 775 (Tex. Crim. App.

1984); Roberson v. State, 16 S.W.3d 156, 167 (Tex. App.—Austin 2000, pet. ref’d). The 

evidence in this case—including the eyewitness testimony and the corroborating evidence—

established appellant’s identity as the shooter. See Nisbett v. State, 552 S.W.3d 244, 266 (Tex. 

Crim. App. 2018) (observing that circumstantial evidence, such as physical evidence, forensic 

evidence, or electronic evidence, can link defendant to commission of offense). Therefore, we 

conclude that a rational trier of fact could have found beyond a reasonable doubt that appellant 

intentionally or knowingly caused Johnson’s death by shooting him with a firearm. We hold that 

the evidence is sufficient to support appellant’s conviction for murder and overrule appellant’s

sole point of error.

Error in the Judgment

On review of the record, we observe that the written judgment of conviction in 

this case contains non-reversible error.
8

First, the judgment states that the “Statute for Offense” is “PC 19.02(c).” This 

statutory provision of the Penal Code establishes that the offense of murder is, generally, a firstdegree felony. However, the applicable statutory provision for the offense for which appellant 

was convicted is section 19.02(b)(1) of the Penal Code, the statutory provision that defines the 

offense of intentional and knowing murder.

Second, the judgment indicates that appellant pled “NOT TRUE” to the 

enhancement paragraphs of the indictment. However, the record reflects that appellant formally 

entered a plea of “TRUE” to the enhancement paragraphs of the indictment at the beginning of 

the punishment phase.

Finally, the judgment reflects that the “Findings on Deadly Weapon” are “N/A.” 

However, the indictment in this case alleged the use of a deadly weapon per se.

5

 Further, the 

jury found appellant guilty of murder “as alleged in the indictment.”6 Accordingly, the jury 

made affirmative findings that a deadly weapon was used during the commission of the offense

and that the deadly weapon used was a firearm. See Polk v. State, 693 S.W.2d 391, 393–94

(Tex. Crim. App. 1985) (explaining that “affirmative finding” means trier of fact’s express 

determination that deadly weapon was actually used or exhibited during commission of offense

and outlining circumstances indicative of express deadly weapon finding by trier of fact). The 

trial court was statutorily required to enter those findings in its judgment. See Tex. Code Crim. 

5

 Specifically, the indictment alleged that appellant “did then and there intentionally or 

knowingly cause the death of an individual, namely Kenneth Johnson, by shooting Kenneth 

Johnson with a firearm.” A firearm is a deadly weapon per se. See Tex. Penal Code 

§ 1.07(a)(17)(A) (defining “deadly weapon” as “a firearm or anything manifestly designed, 

made, or adapted for the purpose of inflicting death or serious bodily injury”).

6

 The verdict form returned by the jury stated, “We, the jury, find the defendant, ANDRE 

JACKSON, GUILTY of the offense of Murder as alleged in the indictment.”
9

Proc. arts. 42.01, § 1(21) (requiring judgment to reflect affirmative deadly weapon findings);

42A.054(c) (providing that “[o]n an affirmative finding regarding the use or exhibition of a 

deadly weapon . . ., the trial court shall enter the finding in the judgment of the court”), 

(d) (providing that “[o]n an affirmative finding that the deadly weapon . . . was a firearm, the 

court shall enter that finding in its judgment”).

This Court has authority to modify incorrect judgments when the necessary 

information is available to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 

27–28 (Tex. Crim. App. 1993). Accordingly, we modify the trial court’s written judgment of 

conviction to reflect that the “Statute for Offense” is “PC 19.02(b)(1),” that appellant’s pleas to 

the enhancement paragraphs of the indictment were “TRUE,” and that the “Findings on Deadly 

Weapon” are “YES, A FIREARM.”

CONCLUSION

Having concluded that the evidence is sufficient to support appellant’s conviction

for murder but having found non-reversible error in the written judgment of conviction, we 

modify the judgment as noted above to correct the error and affirm the trial court’s judgment of 

conviction as so modified.

__________________________________________

Edward Smith, Justice

Before Chief Justice Rose, Justices Triana and Smith

Modified and, As Modified, Affirmed

Filed: May 6, 2020

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