## NO. 12

- 14

- 00144

- CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

ERIK DEWAYNE DRAYTON , APPELLANT

V.
THE STATE OF TEXAS, APPELLEE §

§

§ APPE

AL FROM THE 159TH

JUDICIAL DISTRICT COURT

ANGELINA COUNTY, TEX AS

MEMORANDUM OPINION
Eric Dewayne Drayton appeals his conviction for deadly conduct. In one issue on appeal, Appellant challenges the legal sufficiency of the evidence to support his co nviction. We affirm.

B ACKGROUND Appellant was charged by indictment with the offense of deadly conduct, a third degree felony. Appellant waived his right to a jury trial and pleaded “not guilty

. ” After the close of evidence, the c ourt found Appellant guilty as charged in the indictment and assessed his punishment at eight years of imprisonment. This appeal followed.

S UFFICIENCY OF THE E VIDENCE In his sole issue, Appellant argues that the evidence is legally insufficient to support his
conviction. M ore specifically, he contends there is insufficient evidence to support the trial court’s conclusion that Appellant discharged the firearm in question or that he discharged the
firearm in the direction of a vehicle he knew was occupied.
Standard of Revie w In Texas, the Jackson v. Virginia standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a2

criminal offense that the state is required to prove beyond a reasonable d oubt. Brooks v. State
, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). This standard gives full play to the responsibility of the trier of fact to fairly resolve conflicts in the testimony, to weigh the
evidenc e, and to draw reasonable inferences from basic facts to ultimate facts. Padilla v. State
, 326 S.W.3d 195, 200 (Tex. Crim. App. 2010).
S ufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case. Malik v. State , 953 S.W.2d 234, 240 (Tex.
Crim. App. 1997). Such a charge would be one that accurately sets out the law, is authorized by the indictment, does not unnecess arily increase the state’ s burden of proof or unnecessari ly
restrict the state’ s theories of liability, and adequately describes the particular offense for which
the defendant was tried. Id. This standard can uniformly be applied to all trials, whether to the bench or to the jury. Id. When the record supports co nflicting inferences, we presume that the fact finder resolved the conflicts in favor of the prosecution and therefore defer to that determination. Clayton v.
State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the fact finder’s credibility an d weight determinations because the fact finder is the sole judge of the witnesses’ credibility and the weight of their testimony. Jackson , 443 U.S at 319, 99 S. Ct. at 2789; Brooks , 323 S.W.3d
at 899. Direct and circumstantial evidence are treated equall y. Clayton , 235 S.W.3d at 778. Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt. Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 20 07). A conclusion of guilt can rest on the combined and cumulative force of all the incriminating circumstances. Hernandez v. State , 190 S.W.3d 856, 864 (Tex. App.

– Corpus Christi 2006, no pet.)
A pplicable L aw A person commits the offense of deadly condu ct if he knowingly discharges a firearm at or in the direction of a habitation, building, or vehicle and is reckless as to whether the habitation, building
, or vehicle is occupied. See T EX

. P ENAL C ODE A NN . § 22.05(b)(2) (West 2011). The penal code suppli es no definitions to aid in t he application of section 22.05 (b)’s3

prohibition of discharging a firearm “at or in the direction of” a habitation, building
, or vehicle. Gilbert v. State , 429 S.W.3d 19, 22 (Tex. App.

– Houston [1st Dist.] 2014, pet. ref’d); se e, e.g. , T E X

. P ENAL C ODE A NN . § 1.07 (West Supp. 2014) ; § 22.05(b)( 2 ). To discharge a firearm “at” an object is to shoot the weapon toward that object’s location. See, e.g. , M ERRIAM

- W EBSTER ’ S C OLLEGIATE D ICTIONARY 77 (11 th ed. 2011) (defining “at” as “ a function word to indicate the goal of an indicated or implied action or motion”). Similarly, to discharge a firearm “in the direction of” an object also means to shoot toward that object’s
location. See id

. at 353 (defining “direction” as “the line or course on which something is moving or is aimed to move or along which som ething is pointing or facing”); see also id

. at 1322 (defining “toward” as “in the direction of”). Despite the interpretive canon that “each word, phrase, clause, and sentence shoul d be given effect if reasonably possible, ” there is no meaningful difference in ordinary usage between discharging a firearm “at” a habitation, building
, or vehicle and discharging it “in the direction of” a habitation, building
, or vehicle. Gilbert , 429 S.W.3d at 22 (citing Williams v. State , 270 S.W.3d 140, 146 (Tex. Crim. App. 2008); State v. Hardy , 963 S.W.2d 516, 520 (Tex. Crim. App.1997)). The state is required to prove that the accused was the person who committed the crime.
Wilson v. State , 9 S. W.3d 852, 855 (Tex. App.

– Austin 2000, no pet.). The identity of the perpetrator of an offense can be proved by direct or circumstantial evidence. Earls v. State , 707
S.W. 2d 82, 85 (Tex. Crim. App. 1986); Dudley v. State , 205 S.W.3d 82, 88 (Tex. App.

– Tyle r 2006, no pet.). No formalized procedure is required for the state to prove the identity of the
accused. Wilson , 9 S.W.3d at 855.
T he E vidence At trial, Rebecca Childress and her daughters, Lasasha Brown and Whitney (Brown) Edwards, described the event s that resulted in Appellant’s indictment for deadly conduct. Their testimony shows that, s ometime shortly after 9:00 p.m. on August 19, 2013, Brown and Edwards rode in a vehicle operated by Taimeshea Calloway to Winston Park in Lufkin to watch a fight. Childress learned of her daughters’ plans and drove to Winston Park to intervene. Upon arriving at the park , Childress located the vehicle her daughters were in (Calloway’s vehicle) and parked
behind it

. She immediately noticed a group of young men runnin g down a near by hill towards Calloway’s vehicle. Some of the young men were carrying bats and sticks.4

Before the group reached Calloway’s vehicle, shots were fired. Moments later, someone in the group informed the other members that they were mistaken a bout who was in the vehicle. According to Childress, “every body stopped ” at that point, and she saw Appellant hand a black pistol to another person. She also saw Ap pellant and the person with the pistol run into some nearby woods.
When law enforcement of fic ers arrived, C hildress, her daughters, and Calloway al l reported what they saw to Lee Jowell, an officer with the Lufkin Police Department. S hortly thereafter, Officer Jowell found a black Smith & Wesson M&P .40 caliber pistol that had no remaining shel ls in the magazine and none in the chamber. The condition of the pistol and the general surrounding area where it wa s found were such that the pistol did not appear to have been at the location very long. Testing of the pistol verified that it functioned as designed by the
manufacturer and
, in the opinion of the testing officer, was a deadly weapon.
Childress testified that she did not see who fired the shots. Brown and Edwards both
testified that they saw Appellant shoot the pistol , and Brown stated f urther that the shots were
aimed towards the vehicle she was in

. A nalysis The State contends that the evidence is legally sufficient to show that Appellant discharged a firearm “at or in the direction of” the vehicle occupied by Brown, Edwards, and
Call oway and that Appellant knew the vehicle was occupied. We agree.
Brown and Edwards testified that Appellant fired the shots and Childress testified that she saw Appellant hand a pistol to another person. Further, a pistol was found in the woods
where Childress saw Appellant and the other person run after Appellant handed him the pistol. This location was a short distance from the vehicle occupied by Brown, Edwards, and Calloway. The announcement by one of the group that they were mistaken about who was in the vehicle shows that the group, including Appellant, knew the vehicle was occupied.
From th is evidence, the court reasonably could have concluded that Appellant was the person who discharged the firearm on August 19, 2013 at Winston Park
, that he discharged the firearm “at or in the direction of” the vehicle occupied by Brown, Edwards
, and Calloway , and
that he knew there were persons occupying the vehicles w hen he discharged the firearm. Consequently , we conclude that the court reasonably could h ave found the essential elements of5

deadly conduct beyond a reasonable doubt. See T EX

. P ENAL C ODE A NN . § 22.05(b)(2). Therefore, the evidence is legally sufficient to support Appellant’s conviction

. Appellant asserts, however, that Brown was not a credi ble witness; that the eyewitness statements to law enforcement describing the incident were inconsistent in some respects; and that no evidence, such as shell casings or fingerprints, directly linked the pistol to Appellant. However, the trial court, as t he exclusive judge of the credibility of the witnesses and the weight to be given to their testimony, resolved these issues against Appellant. See Clayton
, 235 S.W.3d at 778; Brooks , 323 S.W.3d at 899; Williams , 235 S.W.3d at 750.
W e overrule Appellant’s s ole issue.

D ISPOSITION Having overruled Appellant’s sole issue, we affirm the judgment of the trial court.



### G REG 

### N EELEY Justice
Opinion delivered February 27, 2015

. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO N OT PUBLISH)6 

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

FEBRUARY 27 , 2015

NO. 12

- 14

- 00144

- CR

ERIK DEWAYNE DRAYTON ,

Appellant V. THE STATE OF TEXAS, Appellee

Appeal from the 159th District Court of Angelina County, Texa s (Tr.Ct.No. 2013

- 0725) THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment. It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed , and that this decision be certified to the court
below for observance.

Greg Neeley , Justice

. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.