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Wilson v. State6/20/2003
, Garcia found a particle with lead, barium, and antimony on Hancock's right hand. He found lead and barium with no antimony on Wilson's left hand, which is consistent with firing .22 caliber weapons. Garcia's final conclusion was that Wilson, "possibly fired a firearm, handled a discharged firearm, or was in close proximity to a discharged firearm."
Sufficiency of the Evidence
In his first and second issues, Wilson contends that the trial court erred in failing to grant Wilson's motion for directed verdict because the evidence was legally and factually insufficient to sustain his conviction for attempted capital murder.
We treat any complaint regarding a trial court's failure to grant a motion for directed verdict as a legal sufficiency of the evidence challenge. Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). In reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the prosecution to determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). All of the evidence in the record is considered, both direct and circumstantial, whether admissible or inadmissible. Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). In our factual sufficiency review, we must consider all of the evidence in a neutral light to determine whether the judgment is "so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). A factual sufficiency review must be appropriately deferential, and the appellate court should not substitute its own judgment for that of the jury or substantially intrude upon the jury's role as the sole judge of the weight and credibility of witness testimony. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996). The reviewing court will consider all evidence equally, including "testimony of the defense witnesses and the existence of alternative hypotheses." Stone v. State, 823 S.W.2d 375, 381 (Tex. App.-Austin, 1992, pet ref'd).
The Texas Penal Code provides that a person commits the offense of capital murder of a peace officer if the person intentionally or knowingly causes the death of a peace officer who is acting in the lawful discharge of an official duty and who the person knows is a peace officer. Tex. Pen. Code Ann. §§ 19.02(b)(1), 19.03 (Vernon 2003). A person is guilty of an attempt to commit a crime "if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended." Id. § 15.01(a).
Wilson argues that when the evidence is reviewed in the light of the contradictions of the State's witnesses, the forensic evidence, and the State's theory of a second weapon, there was no more than a modicum of evidence to support the complainant officer's testimony, which was contradicted by the firearm examiner's evidence. The jury serves as the exclusive judge of the credibility of witnesses and of the weight to be given their testimony and can draw reasonable inferences and make deductions from the evidence. Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998); Griffin v. State, 908 S.W.2d 624, 626 (Tex. App.-Beaumont 1995, no pet.). A jury may reject any witness's testimony including an expert. Furthermore, reconciliation of conflicts in the evidence is within the exclusive province of the jury. Mosley, 983 S.W.2d at 254. In this case, the jury could have chosen to believe Hancock, Salinas and Guadalupe's testimony that Wilson pulled out his gun first and shot at Hancock. It was
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