Date issued November 14, 2002

In The

Court of Appeals

For The

First District of Texas

NO. 01-01-00730-CR

BRANDON ODOM, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 12th District Court

Walker County, Texas

Trial Court Cause No. 20,689

O P I N I O N

          Brandon Lee Odom, appellant, was convicted of murder, and the jury assessed punishment at 40 years’ confinement. In one point of error, appellant argues that the evidence was factually insufficient to sustain his conviction. We affirm.

Facts

          On June 4, 1999, Micha Johnson disappeared. His remains were found on May 6, 2000. Johnson died from two gunshot wounds, one to the head and the other to the back.

          Appellant confessed to the murder. His written statement delineated the following course of events. On the morning of June 4, 1999, at approximately 7:30 a.m., appellant stopped by Rodna Marr’s and Joey Gray’s home, where he spoke with Johnson. Johnson suggested they “go riding and talk.” After driving for a while, Johnson asked appellant to stop. Appellant stopped at the gate to his family’s deer lease. Appellant and Johnson talked for a while longer. Then Johnson stated he wanted to begin dating Stevie Odom, appellant’s girlfriend, now appellant’s wife. Appellant hit Johnson, and Johnson pulled a pistol. Appellant grabbed Johnson’s arm, and they wrestled on the ground. The gun went off. Appellant and Johnson both had blood on them. Appellant picked up the gun and shot Johnson. Appellant left the deer lease, cleaned himself up, and went to work. Appellant later took a shovel, dug a hole at the deer lease, and buried Johnson’s body. Later that week, appellant used a backhoe to dig a deeper hole, where he re-buried Johnson’s body.

          At trial, appellant denied committing the offense. Appellant testified that he spent the night of June 3, 1999, and early morning hours of June 4, 1999, with Kelly Beckworth, Alicia Davis, and Kelly Beckworth’s cousin. Appellant, Beckworth, Davis, and Beckworth’s cousin left a local bar at approximately 2:00 a.m. and drove to the sand pits, a local hang-out, in Beckworth’s truck. Davis left her car parked at a local church. Appellant had borrowed Randall Ellis’s truck and left it parked on the side of the road. The group stayed at the sand pits until approximately sunrise. Beckworth dropped Davis off at her car and dropped appellant off at Randall Ellis’s truck. Appellant then drove to Randall Ellis’s home, where no one was awake. Appellant left the house and drove to his uncle Sam Ellis’s home to see if his uncle’s shop was open. The sun had risen by this time. Appellant returned to Randall Ellis’s home to take him to work. The two men left the house and drove to Sam Ellis’s, where they retrieved the keys to open the shop. Appellant denied seeing or talking to Johnson on June 4, 1999. Appellant presented the alibi testimony of Davis, Randall Ellis, and Sam Ellis.

          The State produced at least four witnesses who corroborated appellant’s prior written statement, in which appellant confessed to killing Johnson. Gregory Schanfish testified that, in December, 1999, appellant said he took Johnson to his father’s deer lease and got into an argument. Appellant shot Johnson once, and Johnson stumbled into a ditch where appellant shot him a second time with Randall Ellis’s .22 magnum pistol. Schanfish further testified that appellant poured lime over Johnson’s body and used a backhoe to bury it.

          Bobby Puckett testified to appellant’s demeanor as they drove home from work on May 5, 2000, and to a conversation they had while driving. Puckett testified that appellant was visibly upset and crying. Appellant explained to Puckett that he was possibly going to jail for murder. Appellant admitted to Puckett that “he did do it.”

          Stevie Odom, appellant’s wife, testified that appellant told her on May 5, 2000, after returning from work, that he had murdered Johnson. She further testified that when he arrived home from work that evening, after being dropped off by Puckett, appellant was crying. Appellant told Stevie that he had told Schanfish where the body was buried and that Schanfish had told the Texas Rangers. Stevie further testified that appellant had told his mother, in August, 1999, that he had committed the murder and where the body was buried.

          Robert Odom, appellant’s father, testified that, on May 7, 2000, he asked appellant whether appellant knew anything about Johnson’s disappearance. Appellant told Robert that he did know something. Appellant was questioned at the Walker County Sheriff’s Department and was allowed to leave. Robert told appellant to write down everything he knew about the disappearance. Some time later, appellant and Robert returned to the Sheriff’s Department with the written statement in which appellant confessed to killing Johnson. At the time that appellant gave the statement to the authorities, Robert believed appellant.

           Some of appellant’s admissions were corroborated by Dr. Harold Gillking, a forensic anthropoligist. Gillking testified that Johnson was shot twice with a .22 caliber bullet at close range. Dr. Gillking testified that lime was found on the remains.

          Appellant’s admissions were further corroborated by other testimony and evidence. Randall Ellis confirmed that he owned a Savage .22 magnum firearm and that it was in his truck, which appellant was using on June 3 and 4, 1999. Johnson’s remains were found on appellant’s family’s deer lease. Appellant had rented a backhoe on June 11 and 12, 1999. The bucket teeth of the backhoe rented by appellant matched the ruts made by the backhoe used to dig the hole where Johnson’s body was found. There were two holes found at the deer lease, further corroborating appellant’s statement. The first, shallower hole contained the top of Johnson’s skull. The second, deeper hole, which showed the ruts made by the backhoe bucket, contained the rest of Johnson’s remains.

Sufficiency of the Evidence

          In his only point of error, appellant argues that the evidence was factually insufficient to sustain his conviction for murder.

          In reviewing factual sufficiency, we examine all of the evidence neutrally and ask whether proof of guilt is so obviously weak or greatly outweighed by contrary proof as to indicate that a manifest injustice has occurred. King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000); Valencia v. State, 51 S.W.3d 418, 423 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d). The jury as trier of fact is the sole judge of the credibility of the witnesses and the weight to be given the testimony. See Jones v. State, 944 S.W.2d 642, 648-49 (Tex. Crim. App. 1996); Henderson v. State, 29 S.W.3d 616, 623 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). The jury may accept or reject all or any part of any witness’s testimony. We may disagree with the jury’s determination, even if probative evidence supports the verdict, but we must avoid substituting our judgment for that of the fact finder. King, 29 S.W.3d at 563.

          In this case, appellant argues, first, that the evidence was factually insufficient to overcome his denial of any knowledge of the crime in his testimony at trial, his testimony before the grand jury in August, 1999, and his first statement to the police on May 7, 2000. However, appellant’s own written statement that he had killed Johnson, how he killed Johnson, and where he had buried Johnson’s body was read into evidence. The written statement was corroborated by evidence found at the grave and by the testimony of Schanfish, Puckett, Stevie Odom, and Robert Odom. The jury was free to disbelieve appellant’s testimony at trial and to credit the testimony of Schanfish, Puckett, Stevie Odom, and Robert Odom, as well as appellant’s own prior written statement.

          Second, appellant argues that no physical evidence linked him to the disappearance or murder of Johnson. Appellant argues that the bullet found at the deer lease was never matched forensically to the .22 magnum firearm that was introduced into evidence, that the evidence that the backhoe that appellant rented was used to dig the grave was mere speculation because the tracks discovered on the deer lease could not be identified as having been made specifically by the backhoe, and that the first indication that appellant had committed the crime was the statement by Schanfish that appellant had pointed out a spot on the deer lease where Johnson was buried and had admitted that he had shot Johnson.Direct evidence directly demonstrates the ultimate fact to be proven, whereas circumstantial evidence is direct proof of a secondary fact which, by logical inference, demonstrates the ultimate fact to be proven. Taylor v. State, 684 S.W.2d 682, 684 (Tex. Crim. App. 1984). If the accused admits or confesses killing the deceased, proof of the admission or confession is direct evidence of the main inculpatory fact. Barefoot v. State, 596 S.W.2d 875, 880 (Tex. Crim. App. 1980). Circumstantial evidence often has equal or even greater probative value than direct evidence. See Goodman v. State, 66 S.W.3d 283, 296 (Tex. Crim. App. 2001).

          The State introduced the following direct evidence of appellant’s guilt: (1) appellant’s written statement; (2) Schanfish’s testimony recounting the same events as in appellant’s statement; (3) Stevie Odom’s testimony that appellant had told her he had admitted to his mother that he murdered Johnson; and (4) Puckett’s and Stevie Odom’s testimony that appellant said he “had [done] it” and that appellant was visibly upset when he returned home from work on May 5, 2000. The State introduced the following circumstantial evidence of appellant’s guilt: (1) Dr. Gillking’s testimony that Johnson was shot twice with .22 caliber bullets; (2) a receipt for a backhoe rented by appellant; (3) the match between the bucket teeth on the backhoe and the ruts found at the grave site; and (4) the location of Johnson’s remains in two different holes on appellant’s family’s deer lease. This evidence corroborated the details of appellant’s confession. We find that the direct and circumstantial evidence presented is factually sufficient to support the verdict.

          Third, appellant argues that Schanfish was not a credible witness. The fact finder is the sole judge of the credibility of the witnesses and of the weight attributable to the testimony of those witnesses. See Henderson, 29 S.W.3d at 623; see also Jones, 944 S.W.2d at 648-49. The jury heard testimony from Douglas Hunter Smith that Schanfish had told Smith that he had killed Johnson because Johnson was a “snitch.” The jury was free to find Schanfish credible and believe his testimony over appellant’s and Smith’s testimony.

          Fourth, appellant argues that his statement was the product of police coercion because Stevie Odom was told by one of the officers interviewing her that she would lose her children if she went to jail. Appellant further testified that he gave the statement to the police to prevent his wife’s going to jail and losing her children. Stevie Odom testified that the officer told her that she could lose her children and that someone else would have to take care of them while she was in jail if she did not tell the officer what she knew. Appellant filed a motion to suppress his confession because the confession “was involuntary, coerced and/or enticed” from him. The trial court denied the motion, and appellant does not contest the ruling on appeal. Therefore, this argument is waived and will not support his factual sufficiency claim. See Tex. R. App. P. 38.1(h) (a brief must contain a clear and concise argument for the contentions made).

          Fifth, appellant argues that the testimony of the alibi witnesses shows that his commission of the crime was impossible. Marr testified that she last saw Johnson on June 3, 1999, before going to bed, and that she discovered Johnson missing when she awoke between 7:00 and 8:00 a.m. the morning of June 4, 1999. Davis testified that she and Beckworth, appellant, and Beckworth’s cousin left the sand pits at 4:30 a.m. Davis then decided, later in her testimony, that they must have left the sand pits later, because the sun was rising. She testified that she was sure she arrived at her home between 6:00 and 6:30 a.m. Appellant testified that they left the sand pits when the sun was beginning to rise. Beckworth testified that he could have dropped Davis and appellant off at their vehicles between 4:00 and 6:00 a.m.

          Randall Ellis testified that he was “guesstimating” the time that appellant arrived at his home and the time that they arrived at Sam Ellis’s shop. Randall testified that appellant arrived at his home between 7:00 and 8:00 a.m. He then testified that appellant arrived at his house before daylight, left for 30 to 45 minutes, and returned to the house. Randall Ellis further testified that he and appellant left for Sam Ellis’s shop between 8:00 and 9:00 a.m. Sam Ellis testified that appellant arrived at his home between 7:00 and 7:30 a.m., but he later testified that he was just estimating the time. Appellant did not testify to any specific times, but his testimony places him at the sand pits before daylight, while his written statement places Johnson’s murder after dawn.

          The jury was free to believe or disbelieve the testimony of the alibi witnesses. See Henderson, 29 S.W.3d at 623; see also Jones, 944 S.W.2d at 648-49. Moreover, times for which these witnesses provide an alibi do not preclude appellant’s having driven with Johnson to the deer lease, having argued with him there, and having shot him. Therefore, we hold that the jury’s decision to disbelieve appellant’s alibi witnesses is not so contrary to the overwhelming weight of the evidence as to be manifestly unjust.

          Sixth, appellant argues that a statement made by Joel Gray to Ranger Marcus Hilton implicated Allen Dunaway as Johnson’s killer. The jury heard testimony from Hilton that he had interviewed Gray regarding the disappearance of Johnson in December, 1999. Hilton testified that Gray told him that Johnson had been shot and dismembered by several individuals, including appellant, Beckworth, Dunaway, and others. Gray implicated Dunaway as the shooter. Gray said that he handed Clint Schanfish his knife to “gut” the body. Appellant, Beckworth, Dunaway, and the others then threw Johnson’s body into the Trinity River. Hilton testified that, after Gray voluntarily provided him the knife, he had it examined, and no blood was detected. Hilton confronted Gray, who then recanted his entire statement. Hilton had divers search the Trinity River in the area Gray had pinpointed after Gray had recanted his story, but they found nothing. The jury was free to believe Hilton’s testimony and disbelieve the statements made by Gray. See Henderson, 29 S.W.3d at 623; see also Jones, 944 S.W.2d at 648-49. Therefore, we hold that the jury’s finding that appellant murdered Johnson is not so contrary to the overwhelming weight of the evidence as to be manifestly unjust. The jury’s verdict is not manifestly unjust, does not shock the conscience, and does not demonstrate bias. See Jones, 944 S.W.2d at 649.

          We overrule appellant’s sole point of error.

Conclusion

          We affirm the judgment of the trial court.

                                                             Evelyn V. Keyes

                                                             Justice

Panel consists of Justices Hedges, Keyes, and Duggan. Do not publish. Tex. R. App. P. 47