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Gaffney v. State3/25/1998
pent rounds of ammunition found at the scene be positively identified or eliminated as having been fired from the twenty-two found at the scene. Hand-swipes of appellant's hands taken some fifteen hours after the shootings failed to show powder residue on his hands. Lab analysis showed no controlled substance in the rock found in Jennings' hat band.
Appellant's voluntary statement to Denison police implicated Childs as the shooter. Appellant did not testify at trial.
In appellant's sole point of error, he contends the evidence is legally and factually insufficient to identify him as the person who shot either victim. Appellant asserts that the testimony at trial presented a reasonable hypothesis tending to exculpate appellant and implicate Childs.
LEGAL AND FACTUAL SUFFICIENCY
In reviewing a challenge to the legal sufficiency of the evidence, we view the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Jones v. State, 833 S.W.2d 118, 122 (Tex. Crim. App. 1992), cert. denied, 507 U.S. 921 (1993); Dumas v. State, 812 S.W.2d 611, 615 (Tex. App.--Dallas 1991, pet. ref'd). The jury, as trier of fact, is the sole Judge of the credibility of the witnesses and the weight given to their testimony. See Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992); Dumas, 812 S.W.2d at 615. The jury may choose to believe or disbelieve any or all of a witness' testimony and may accept or reject any or all of the evidence presented by either side. See Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991); McCray v. State, 861 S.W.2d 405, 407 (Tex. App.--Dallas 1993, no pet.). In reviewing the legal sufficiency of the evidence, we do not re-evaluate the weight and credibility of the evidence, but rather act only to ensure that the jury reached a rational decision. See Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App.), cert. denied, 510 U.S. 837 (1993).
In contrast, in reviewing a challenge to the factual sufficiency of the evidence, we view all the evidence without the prism of "in the light most favorable to the prosecution." See Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). If we determine the verdict is so against the great weight of the evidence presented at trial as to be clearly wrong and unjust, we reverse the verdict and remand for a new trial. See id. at 135. We exercise our fact jurisdiction only to prevent a manifestly unjust result. See id. In conducting a factual sufficiency review, we cannot substitute our Judgement for that of the jury. See id. at 133; see also Van Zandt v. State, 932 S.W.2d 88, 96 (Tex. App.--El Paso 1996, pet. ref'd). The weight given to contradictory testimonial evidence is within the sole province of the jury because it requires an evaluation of credibility and demeanor. See Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997).
A person commits murder if he intentionally or knowingly causes the death of an individual. Tex. Penal Code Section 19.02 (Vernon 1994). A person commits attempted murder if, with the intent to commit murder, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the murder. Tex. Penal Code Sections 15.01, 19.02 (Vernon 1994) .
Viewing the evidence in the light most favorable to the prosecution, we conclude a rational jury could have found beyond a reasonable doubt that appellant was the person who shot Gregor and Jennings. Accordingly, the evidence is legally sufficient to support appellant's convictions.
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