NICHOLAS MARSHA BRAZIEL v. THE STATE OF TEXAS (2011)

OPINION

Opinion By Chief Justice Wright

Nicholas Marsha Braziel appeals his convictions for murder, assault, and possession with intent to deliver cocaine.   In three points of error, appellant contends the evidence is legally insufficient to support the murder conviction, and the trial court abused its discretion in finding he violated the conditions of his community supervision.   We affirm the trial court's judgments.

Background

In 2006, appellant waived a jury and pleaded guilty to assault on a public servant and possession with intent to deliver cocaine in an amount of one gram or more but less than four grams.   See Tex. Penal Code Ann. § 22.01(a)(3), (b)(1) (West Supp.2010);  Tex. Health & Safety Code Ann. § 481.112(a), (c) (West Supp.2010).   The trial court deferred adjudicating guilt, placed appellant on eight years' community supervision, and assessed a $1500 fine in each case.   The State later moved to adjudicate guilt, alleging appellant violated several conditions of community supervision, including committing a new offense-murder.   After a jury found appellant guilty of murder and assessed punishment at seventy-five years' imprisonment, appellant pleaded true to the remaining allegations in the motions to adjudicate.   The trial court found all of the allegations true, adjudicated appellant guilty, and assessed punishment at ten years' imprisonment for assault on a public servant and twenty years' imprisonment for possession with intent to deliver cocaine.

Insufficient Evidence

In his first point of error, appellant contends the evidence is legally insufficient to prove he was the person who shot Sheldon Hornbuckle.   Appellant asserts that because there was no physical evidence linking him to the shooting, the witnesses' testimony is not corroborated by any other evidence, the witnesses contradicted one another, and the evidence is insufficient to support the conviction.   The State responds that the evidence is sufficient to support appellant's murder conviction.

Evidence Presented

On November 11, 2008, Sheldon Hornbuckle was shot and killed while sitting on a couch.   Two witnesses testified appellant was the person who shot Hornbuckle.   According to Courtney Garrett, appellant walked up to the front porch where Garrett was sitting and asked him who was inside the house.   Appellant was wearing a “white hoody.”   Garrett told appellant that Hornbuckle, James Blakemore, and Drew Johnson were inside the house.   Appellant hesitated a few minutes and looked around.   Then, he “pulled a gun out of his waist,” kicked in the front door, and fired three or four gunshots.   After firing the gun, appellant ran from the house.   Garrett went inside, saw Hornbuckle on the floor, left the house, and ran around the corner to call for an ambulance.   After he called the ambulance, Garrett went back to the house.   He gave a written statement to the police that same night.   Garrett told the jury that he “hung out” with Blakemore, Johnson, and Hornbuckle at Johnson's house often.   Garrett knew appellant because he saw him daily “in the neighborhood.”   Garrett said that although he stayed on the front porch during the shooting, he saw appellant pull a gun from his waist and he heard the gunshots a few seconds before appellant ran from the house.   Garrett denied he was intoxicated at the time of the shooting or that he had used marijuana or any other drug that evening.   Garrett has a prior possession of marijuana conviction.

Drew Johnson, who is a quadriplegic, testified he allowed Hornbuckle to live in his house because Hornbuckle needed a place to stay and he helped Johnson around the house.   Appellant helped Johnson get his medicine and also ran errands for Johnson.   Johnson, who has a regular source of income, helped purchase drugs for the “common usage” of all of them.   Johnson and his friends would “get high together” whenever they had the money to purchase marijuana or “PCP.” Johnson said that on November 11, 2008, none of them was “high” because they did not have any money for drugs.   At the time of the shooting, Hornbuckle and Blakemore were at Johnson's house watching a movie on the television in the living room.   Hornbuckle was sitting on a couch located about two feet from the front door.   Johnson was sitting in a recliner chair next to the couch, and Blakemore was in the kitchen when appellant came through the front door.   Appellant shot twice at Hornbuckle.   When Hornbuckle got up and tried to run, appellant fired two more shots, then he left.   Hornbuckle fell to the floor.   Johnson said although there was no light on in the living room, the television was on and he clearly saw appellant.   Johnson said he has prior theft and unauthorized use of a motor vehicle convictions.

James Blakemore testified he saw “somebody in a white shirt with a purple and white sweater on” fire several shots at Hornbuckle.   According to Blakemore, he and the others hang out at Johnson's house;  they “get high from time to time;” and they help take care of Johnson.   On the night of the shooting, Blakemore walked to the store with Hornbuckle and Garrett.   They put Johnson in his recliner in the living room before they went to the store.   When they returned, Garrett stayed on the front porch to smoke a cigarette;  Blakemore and Hornbuckle went inside.   Hornbuckle sat on a couch next to Johnson's recliner while Blakemore went into the kitchen to get a drink of water.   The kitchen light was on, but the glare from the television was the only light in the living room.   Blakemore heard the front door open, then he heard gunshots.   When he turned around, he saw Hornbuckle stand up, run toward the kitchen, and then fall on the floor.   The gunman fired two more shots when Hornbuckle stood up, then the gunman ran out the front door.   Blakemore stayed with Hornbuckle until paramedics arrived.   Blakemore said he had only known appellant for a few months, but he had smoked marijuana with appellant at Johnson's house.

Several police detectives testified that both Garrett and Johnson named the appellant as the person they saw shoot Hornbuckle.   Officers could not find appellant at known addresses for several weeks.   The Fugitive Task Force eventually located appellant about six weeks after the shooting.   Appellant was found hiding under a bed in a house.

Applicable Law

In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and 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);  Brooks v. State, 323 S.W.3d 893, 895 (Tex.Crim.App.2010) (plurality op.).   We are required to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony.   See Jackson, 443 U.S. at 326 (“a court faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution”).

The State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly caused the death of Sheldon Hornbuckle.   See Tex. Penal Code Ann. § 19.02(b)(1) (West 2003).

Discussion

The jury heard testimony from two witnesses who identified appellant as the person who shot Hornbuckle.   Garrett described appellant's behavior before appellant entered the house, and said he saw appellant pull a gun from his waist prior to Garrett hearing the gunshots.   Johnson, who was sitting near Hornbuckle, said appellant entered the house and shot Hornbuckle.   The jury also heard evidence from detectives that appellant was apprehended six weeks after the shooting hiding under a bed in a house.   It was the jury's function to resolve any conflicts in the evidence, and the jury was free to accept or reject any and all of the evidence presented by either side.   See Tex.Code Crim. Proc. Ann. art. 38.04 (West 1979);  Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App.2000).

Viewing the evidence under the proper standard, we conclude a rational trier of fact could find beyond a reasonable doubt that appellant shot Hornbuckle.   Thus, the evidence is sufficient to support the verdict.   See Brooks, 323 S.W.3d at 895.   We overrule appellant's first point of error.

Abuse of Discretion

In his second point of error, appellant contends the trial court abused its discretion in finding he violated the conditions of his community supervision by committing the offense of murder.   The State responds that the trial court properly revoked appellant's community supervision and adjudicated his guilt in two cases.

Appellate review of an order revoking community supervision is limited to determining whether the trial court abused its discretion.   See Rickels v. State, 202 S.W.3d 759, 763 (Tex.Crim.App.2006).   An order revoking community supervision must be supported by a preponderance of the evidence, meaning the greater weight of the credible evidence which would create a reasonable belief that the defendant has violated a condition of probation.   Id. at 763-64.   A finding of a single violation of community supervision is sufficient to support revocation.   See Sanchez v. State, 603 S.W.2d 869, 871 (Tex.Crim.App.1980).   Thus, in order to prevail, appellant must successfully challenge all the findings that support the revocation order.   See Jones v. State, 571 S.W.2d 191, 193-94 (Tex.Crim.App. [Panel Op.] 1978).

We have already concluded the evidence is sufficient beyond a reasonable doubt to support the jury's finding of guilt and appellant's conviction for murder.   We, likewise, conclude it is sufficient under the preponderance of the evidence standard to support the trial court's finding that appellant violated a condition of his community supervision.   Additionally, appellant pleaded true to the remaining allegations in the motions to adjudicate.   We conclude the evidence is sufficient to support the revocation of appellant's community supervision.   Therefore, the trial court did not abuse its discretion in revoking appellant's community supervision and adjudication of guilt.   See Rickels, 202 S.W.3d at 763-64;  Sanchez, 603 S.W.2d at 871.   We overrule appellant's second point of error.

We affirm the trial court's judgments.

CAROLYN WRIGHT CHIEF JUSTICE