### 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 DISTR ICT COURT OF TRAVIS COUNTY NO. D
- 1
- DC
- 16
- 302285 , THE HONORABLE DAVI D CRAIN, JUDGE PRESI DING

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 ye ars 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 e rror. 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

- lev e l drug dealer in

n orth Austin . Appellant was a mid

- level drug dealer associated with Fields

. Kenneth Johnson and Mau r ice Taylor were low

- level drug dealers associated with Fields and appellant.2 One November night, appellant, Johnson, and Taylor met at a Studio 6 m otel , where app ellant was staying with his wife, with a plan to go sell drugs in a nearby neighborhood. As they left the motel , appellant retrieved a g un from underneath the hood of a blue Buick , which, the evidence showed, was registered to Fields’s girlfriend at Field s’s address

. 1 The three men left together in the Buick; a ppellant 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

co nfronted Johnson , asking him, “Why’d you do it?” 3 In response , Johnson attempted to get out of the car . Before he could, appellant shot h im multiple times with the gun that he had retrieved from under the hood

. Appellant then drove around for a few minu tes until he sto pped the car i n a

n earby residential neighborhood . He and Taylor then pushed Johnson’s body out of the car and drove to Field s ’ s home.

A resident of the neighborhood saw J o hnson ’ 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 l ifeless

. Attempts to resuscitate him were unsuccessful. A subsequent autopsy confirmed that Johnson died as a result of multiple gunshot wounds

. He sustained five gu nshot wounds : fou r entered the left side of his neck and one entered his left armpit. The medical examiner opined that two of the gunshots

— one tha t entered his neck and

1 Testimony at trial reflec ted that it is not uncommon f o r individual s who sell drugs to store a firearm under the hood of their car.

2 According to Taylor, t h is seating arrangement was at appellant ’ s direction. Taylor originally sat in the passenger seat, but appe llan t told him t o get in the back.

3 Other e vidence at trial indicated that Johnson had previously rob bed Fi e lds , although he later apol ogized and sought to make amends.3

transected his brain stem and one that entered his armpit, penetr a ted his chest cavity , and hit both lu ngs

— would have been fatal in and of themselves

.

At trial, Taylo r testified about the events of the night. In addition, resident s from the neighborhood where Johnson’s body was dumped testified about finding the body and calling 911 ; the m otel manager te stified about her familiarity with the individuals involved ; Johnson’s sister testified about her b r other’s concerns about his saf ety before the shooting ; police officers testified about the crime scene and their inves t igation, several w it nesses testified about the dispos al of the B uick ; 4 several expert witnes ses testified about electronic evidence recovered during the investigation

— including information related to the usage and location of the cell phones of the indivi d uals involved that n i ght ; and the med ical examiner testified about Johnson ’ s wounds and the ma nner 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 in tentionally or knowi ngly causing John son’s death by shooting him with a firearm. See Tex. Pen al 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 Evidenc e Due process requ ires that the Sta te 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 evi dence

4 During the shooting, the passe nger window of the car was shot out. The evidence show ed that, aft er the shooting , Fields and ap pellant attempt ed to h ave the car repaired, but the Buick w as ultimately sold for scrap metal and destr oyed.4

to support a convi ction, we conside r all the evidence in the light most favorable to the ver dict to determine whether, based on that evidence and the reasonable inferences therefrom, any rational trier of fa ct could have found the essential elemen ts of the offense beyond a reasonable doubt. Jackson , 443 U.S. at 319; Braughton v. State , 569 S.W.3 d 592, 607

– 08 (Tex. Crim. App. 2018);

see Musacchio v. United States , — U.S.

— , 136 S. Ct. 709 , 711

– 12 (2016); Johnson v. S tate , 560 S.W.3d 224, 226 (Tex. Cri m. App. 2018). In our sufficien cy review, we con sider all the evidence in the record, whether direct or c ircumstantial, properly or improperly admitted, or submitted by the prosecution or the defense. Thompson v. State , 408 S.W.3d 614, 627 (Tex. App.

— Aus tin 2013, no pet.); see Jenkins v. State , 493 S.W .3d 583, 599 (Tex. Crim. App. 2016); Clayton v. State , 23 5 S.W.3d 772, 778 (Tex. Crim. App. 2007). We assume that the trier of fact resolved conflicts in the testimony, we ighed the evidence, and drew rea son able inferences in a manner that supports the ver dict. 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 rea ched a rational decision. Arroy o v . State , 559 S.W.3d 484, 487 (Te x. Crim. App. 201 8); see Morgan v. State , 501 S.W.3d 84, 89 (Tex. Crim. Ap p. 2016) (observing that reviewing court’s role on appeal “is restricted to guarding against the rare occurrence wh en a fact finder does not act ra tio nally” (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); s ee 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 evi dence and substitute our judgmen t for5

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 “subst itu ting its own judgment for that o f the jury”). In stead, we must defer to the credibility and weight determ inations 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

con fli cting 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 appellat e s ufficiency review “does not intr ude on the jury’s role ‘to resolve conflicts in the testimony, to weigh th e evidence, and to draw reasonable inferences from basic facts to ultimate facts’” (quoting Jackson , 443 U.S.
at 319)). Appellant restricts his s uff iciency challenge to the element of identity

. He does not dispute that the evidence at trial was sufficie nt to demonstrate that Johnson was shot to death in the Buick that night, only that the evidence failed to establish his identity as t he shooter. Spe cifically, appellant argues that the State failed to exclude Taylor as the sho oter , 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 [s ic] the authorities to believe .” He maintains th at “ Taylor’s self

- serving testimony and the lack of physi cal evidence all weigh in favor of Appellant. ”

T he lack ing “physical evidence” evidence that appellant laments is the murder
weapon . He obser ves th at the evidence showed that a gun recovered fr om underneath the hood of appellant’s car

— three weeks aft er the shooting

— was not the gun used to kill Johnson

. However, the murder weapon was not required to prove guilt. “The law requires no particular6

type of evidence.” Johnson , 560 S .W.3d at 226; see Lee v. State , 1 76 S.W.3d 452, 458 (Tex. App.

— Houston [1st Dist.] 2004) (“The lack of physical or forensic evidence is a factor for the jur y to consider in weighing the evidence.”), aff ’ d , 206 S.W.3d 620 (Tex. Crim. App. 2006). Further, a ppellant ’ s focus on evidence miss ing from the trial evidence is contrary to the well

established procedure for conducting a legal

- sufficiency review. See C layton , 235 S.W.3d at 778 (in conducting legal

- sufficiency review , cour ts assess “all of the evidenc e” admitted at tr ial t o determine whether any rational trier of fact could have found essential elements of crime beyond reasonable doub t)

. In review ing the sufficiency of the evidence, we assess whether the jury ’ s findi ng of guilt was justified consideri ng the evidence t hat 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 evid ence a t trial.

First, the securit y video from the motel corroborate d 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 pas se nger s eat, and Taylor sitting in the back s eat. In addition , footage from the Ring video doorbell on Fields’s house corroborate d Taylor’s account of his and appellant’s arrival at Fields ’ s h ouse after the shooting

. Further, the medical evidence

— includi ng the med ical e xaminer’s testimony about stipp ling around the e ntrance wounds ( which indicat ed a close distance between the gun a nd J o hnson at the time of the shooting ) , about the angle of entry of the gunshots , and about the trajectory of the bullets thr ough Johns on

— corroborate d Taylor’s descript ion 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

. T he jur y , as the exclusive judge of the7

fact s, is the sole judge of the credibility of witnesses an d weight to be given to the testimony and may believe all of a witn ess ’s testimony, portions of it, or none of it. Febus v. State , 542 S.W.3d 568 , 572 (T ex. Crim. App. 2 018) ; 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 Feb us , 542 S. W.3d a t 572 ( “ We may not re

- weigh the evidence or substitute our judgment for that of the fa ctfi nder. ”).

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, 77 5 (Tex

. Crim. App. 1984); Roberso n 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. Se e Nisbett v. Sta te , 552 S.W.3d 244, 266 (Tex. C rim. App. 2018) (observing that c ircumstantial evidence , such as physical evidence, forensic evidence, or electronic evidence, can link defendant to commission of offense )

. Th erefore, we conclude that a ratio nal trier of fac t could have found beyond a rea sonable doubt that appellant intentionally or kn owingly caused Joh nson ’ s death by shooting him with a firearm. We h old that the evidence is sufficient to support appellant ’ s conviction for murder and overrule appellant ’ s sol e point of error

.
Error in th e Judgment

On review of the record, we observe that th e written judgment of conviction in this case contains non - reversible error .8 F i r st, t he judgment states that the “Statute for Offense” is “ PC 19.02(c) .” This
sta tutory provision of the P e n al Code es tablishes that the offense of murder is, generally, a f irst

degree felony. However, the applicable statutory provision for the offense for which appellant was convicted is section 19.02(b)( 1 ) of the P e nal Code , the sta tutory provision that defin e s the off ense of intentional and knowing murder.

Second, t he judgment indicates that appellant pled “NOT TRUE” to the enhancement paragraph s of the indictment. However, t he record reflect s that appellant formally
ent ered a p lea of “ TRUE” to the enhanc em ent para graph s of the indictment at the beginning of the punish ment phase

.

Finally, the judgment reflects that the “ F indings on Deadly Weapon ” are “N/A.” However, t he indictment in this case alleged the use of a dead ly weapo n per se . 5 Further, the ju ry found a

ppellant guilty of murder “as alleged in the indictment .” 6 Accordingly, the jury made affirmative finding s that a deadly weapon was used during the commission of the offense and that the deadly weapon used was a firear m . S ee Polk v. State , 693 S.W.2d 391 , 393

– 94 (Tex. Crim. App. 1985) (explaining that “affirmat ive finding” means trier of fact ’ s express determination that deadly weapon was actually used or exhibited during commission of offense and outlining cir cumstanc es indic ative of express deadl y weapo n fi nding by trier of fact )

. The trial court was statutor ily 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 cau se the death of an individual, namely Kenn eth Johnson, by shooting Kenneth Johnson with a firearm.” A firearm is a deadly weapon per se . See Te x. Penal Code § 1.07(a)(17)(A) (defining “deadly weapon” as “a firearm or anything manifestly designed, mad e, o r adapted fo r the purpose of inflicti ng de ath or serious bodily injury”).

6 The verdict form return ed by the jury stated, “We, the jury, find t he 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 w eapon fi ndings); 42A.054(c) (providing that “[o]n an affirma tive 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 dea dly weap on . . . was a firearm, the
court shall ente r that finding in its judgment”).

This Court h as 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 2 6, 27

– 28 (Tex. Crim. App. 1993). Accordin gly, we mo dify the trial court ’ s written judgment of convi ction 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 “TR UE,” and that th e “Findings on Deadly
Wea pon” are “YES, A FI REARM.”

CONCL U S ION

Having conclude d 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

m odify t he judgme nt as noted above to correct the error and affirm the trial court ’ s judgment of conviction as so modified.

__________________________________________ Edward Smith , Justic e Before C hief Ju stice Rose, Justices Triana and Smith
M o d i fi ed and, As M o dified , Affirmed Filed: May 6, 2020 Do Not Publish