Donnell Duane Kemp v. The State of Texas--Appeal from 262nd District Court of Harris County

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State: Texas

Court: Texas Northern District Court

Docket No: 14-08-00780-CR

Case Date: 12/03/2009

Plaintiff: Donnell Duane Kemp

Defendant: The State of Texas--Appeal from 262nd District Court of Harris County

Preview:Affirmed and Memorandum Opinion filed December 3, 2009.

In The

Fourteenth Court of Appeals
NO. 14-08-00780-CR DONNELL DUANE KEMP, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 262nd District Court Harris County, Texas Trial Court Cause No. 1144601

MEMORANDUM

OPINION

Appellant Donnell Duane Kemp challenges his conviction for attempted capital murder. The jury assessed punishment as life imprisonment. The trial court entered judgment on May 14, 2008. Appellant appeals from this judgment contending that (1) the evidence is legally and factually insufficient to support the jurys verdict; and (2) he received ineffective assistance of counsel. We affirm.

Background Appellant was driving through a parking lot as Larry Hernandez was backing out of a parking spot on February 4, 2007. Appellant was by himself and Larry Hernandez was with his nephew Paul Hernandez. The two cars almost collided. Appellant

confronted Larry Hernandez and struck him in the face before driving off. Larry and Paul Hernandez drove to a nearby bar called Jeannes Joint after the confrontation to meet Rafael Hernandez, who is Larrys brother and Pauls father. Appellant then appeared at Jeannes Joint with a loaded 9mm automatic handgun and five to seven men as "backup." Appellant confronted Larry, Paul, and Rafael Hernandez in the parking lot. Appellant pulled out his gun and began "shooting nonstop" at Larry, Paul, and Rafael Hernandez, who were only a few feet away. Appellant shot Larry and Rafael Hernandez and continued shooting his firearm after both men lay wounded on the ground. Paul Hernandez was not injured. At trial, Paul and Larry Hernandez testified about the details of both confrontations and identified appellant as the shooter. Rafael Hernandez testified about the shooting. Martinmina Velazquez, who was at a nearby Laundromat at the time of the shooting, testified that he saw appellant and five to six men "[p]ointing towards [Jeannes Joint] . . . saying, yes, yes, theyre over there. Theyre over there." He also testified that the same group of men ran away from Jeannes Joint, jumped into cars, and drove away immediately following the shooting. He testified that appellant was carrying a 9mm automatic handgun and that, after the shooting, the gun slide was open, indicating that all of the guns bullets had been fired. Donald Bradley also testified; he said appellant called him on the day of the shooting and he met appellant at Jeannes Joint as "backup." He also testified that he saw Larry, Rafael, and Paul Hernandez come out of Jeannes Joint with a knife and a broken beer bottle, and that appellant did not have a gun. The jury found appellant guilty and sentenced him to life imprisonment.

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Analysis In his first two issues presented, appellant contends that the evidence is legally and factually insufficient to support the jurys verdict. In his third and fourth issues

presented, appellant contends that he received ineffective assistance of counsel. We address each in turn. I. Legal and Factual Sufficiency In reviewing legal sufficiency of the evidence, an appellate court examines all of the evidence in the light most favorable to the verdict to determine whether any rational factfinder could have found proof of the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007). The court does not sit as a thirteenth juror and may not re-evaluate the weight and credibility of the record evidence or substitute its judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). Reconciliation of conflicts in the evidence is within the exclusive province of the factfinder. See Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998). The appellate courts duty is not to reweigh the evidence but to serve as a final due process safeguard ensuring only the rationality of the factfinder. See Williams v. State, 937 S.W.2d 479, 483 (Tex. Crim. App. 1996). An appellate court faced with a record that supports conflicting inferences must presume -- even if not obvious from the record -- that the factfinder resolved any such conflicts in favor of the verdict and must defer to that resolution. Jackson, 443 U.S. at 326; Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006). In reviewing factual sufficiency of the evidence, an appellate court must determine whether (1) the evidence introduced to support the verdict is "so weak" that the factfinders verdict seems "clearly wrong and manifestly unjust," or (2) the factfinders verdict is nevertheless against the great weight and preponderance of the evidence.
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Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2008).

In a factual

sufficiency review, the court views all of the evidence in a neutral light. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000) (en banc). If the court finds the evidence factually insufficient, the court must remand the case for a new trial. Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996). In order to declare that an evidentiary conflict justifies a new trial, an appellate court must rely on some objective basis in the record demonstrating that the great weight and preponderance of the evidence contradicts the jurys verdict. See Lancon v. State, 253 S.W.3d 699, 706-07 (Tex. Crim. App. 2008). An appellate court should not intrude upon the factfinders role as the sole judge of the weight and credibility of witness testimony. Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002). The factfinder may choose to believe or disbelieve any portion of the testimony presented at trial. Bargas v. State, 252 S.W.3d 876, 887 (Tex. App.--Houston [14th Dist.] 2008, no pet.) (citing Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986) (en banc)). Due deference must be given to the factfinders determinations concerning the weight and credibility of the evidence and reversal of those determinations is appropriate only to prevent the occurrence of a manifest injustice. Martinez v. State, 129 S.W.3d 101, 106 (Tex. Crim. App. 2004). An individual commits the offense of attempted capital murder if (1) "he does an act amounting to more than mere preparation that tends but fails to effect the commission of" capital murder, (2) with specific intent to commit capital murder. Tex. Penal Code Ann.

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