In the Matter of the Marriage of Steve Leon Smith, II and Tami Renee` Smith and In the Interest of Randall Cliff Smith, a Child--Appeal from 6th District Court of Fannin County

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State: Texas

Court: Texas Northern District Court

Docket No: 06-02-00034-CV

Case Date: 10/03/2002

Plaintiff: Kevin Sterling

Defendant: The State of Texas--Appeal from 54th District Court of McLennan County

Preview:Kevin Sterling v. The State of Texas--Appeal from 54th District Court of McLennan County
IN THE TENTH COURT OF APPEALS

No. 10-03-00249-CR Kevin Sterling, Appellant v. The State of Texas, Appellee

From the 54th District Court McLennan County, Texas Trial Court # 2002-816-C MEMORANDUM Opinion A jury convicted Kevin Sterling of attempted murder and assessed his punishment at twenty years imprisonment and a $10,000 fine. Sterling contends in two issues that (1) the court abused its discretion by denying his motion for change of venue due to pretrial publicity and (2) the evidence is factually insufficient to prove that he is the person who committed the offense. We will affirm. Sterling contends in his first issue that the court abused its discretion by denying his motion for change of venue due to pretrial publicity. Sterling supported his motion with his own affidavit and the affidavits of two local attorneys who opined that Sterling could not receive a fair trial in McLennan County because of pretrial publicity. The State countered with the affidavits of two local attorneys who opined that Sterling could receive a fair trial. At the venue hearing, the two attorneys who provided affidavits supporting the motion testified that Sterling could not receive a fair trial because of the pretrial publicity. Sterling offered copies of five local newspaper articles in evidence to demonstrate the amount of pretrial publicity his case received. The most recent of these articles was published about ten months before Sterling s trial. The State presented the testimony of one of the attorneys who provided a controverting affidavit. The State s witness testified that Sterling could receive a fair trial. A change of venue is warranted because of pretrial publicity if the publicity about the case was pervasive, prejudicial and inflammatory. Salazar v. State, 38 S.W.3d 141, 150 (Tex. Crim. App. 2001); accord LaBonte v. State, 99 S.W.3d 801, 805 (Tex. App. Beaumont, pet. ref d), cert. denied, 540 U.S. 927, 124 S. Ct. 335, 157 L. Ed. 2d 229 (2003). Because of the conflicting evidence in the record and because it is not clear that the pretrial publicity was pervasive, prejudicial and inflammatory, we cannot say that the court abused its discretion by denying Sterling s motion to
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change venue. See id. Accordingly, we overrule his first issue. Sterling contends in his second issue that the evidence is factually insufficient to prove that he is the person who committed the offense. There is only one question to be answered in a factual-sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? However, there are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand. This standard acknowledges that evidence of guilt can preponderate in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Stated another way, evidence supporting guilt can outweigh the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004). The complainant Bobby Dixon identified Sterling in a photographic lineup and in court as the person who shot him. Dixon was waiting outside an acquaintance s house in his car when he was shot. He turned and saw Sterling smirking at him and running away. He saw no one else in the vicinity. He testified that Sterling was wearing black sweatpants and had a red shirt or towel half on. A child in the neighborhood was near the street with his sisters at the time of the shooting. He testified that he saw a man wearing dark blue jeans and a red and blue shirt fire shots then run off into the bushes. Sterling points to contrary evidence which he suggests is strong enough that the beyond-a-reasonable-doubt standard could not have been met. See id. at 485. Dixon is a convicted felon who has had prior altercations with Sterling, including one in which he fired several shots at Sterling. When investigators questioned Dixon initially about the shooting which forms the basis for Sterling s prosecution, he told them that he did not know who had shot him. He later identified Sterling from a photo lineup as the person who shot him. Dixon testified that he initially told investigators that he did not know who had shot him because he intended to personally seek revenge against Sterling for the shooting. He changed his mind while he was in the hospital, and it was there that he identified Sterling as the shooter. Sterling also notes that there are discrepancies between Dixon s description of the clothing the shooter wore and the description provided by the child witness. Nevertheless, all of the contrary evidence cited by Sterling merely presented a credibility issue for the jury to resolve. We must defer to the jury on its resolution of this issue. See Zuniga, 144 S.W.3d at 481; Parker v. State, 119 S.W.3d 350, 355 (Tex. App. Waco 2003, pet. ref d). Accordingly, we cannot say that the contrary evidence [is] strong enough that the beyond-a-reasonable-doubt standard could not have been met with regard to Sterling s identity as the shooter. See Zuniga, 144 S.W.3d at 485. Thus, we overrule Sterling s second issue. We affirm the judgment. FELIPE REYNA Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna

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Affirmed Opinion delivered and filed March 23, 2005 Do not publish [CR25]

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