Affirmed and Memorandum Opinion filed March 28, 2006.

In The

Fourteenth Court of Appeals

____________

NO. 14-04-01234-CR

____________

SHELDON EUGENE THOMPSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 180th District Court

Harris County, Texas

Trial Court Cause No. 893,085

M E M O R A N D U M   O P I N I O N

A jury convicted appellant Sheldon Eugene Thompson of capital murder, and the trial court sentenced him to life imprisonment.  In two issues, appellant challenges the legal and factual sufficiency of the evidence supporting his conviction.  We affirm.

Factual and Procedural Background

Around 2:00 a.m. on November 1, 2004, police arrived at the home of Albert Lee Jones in response to a neighbor=s 911 call reporting a shooting.  Responding officers found Jones dead from several gunshot wounds and lying in his driveway near a white suburban and a blue suburban.  Jones=s knees appeared Ascuffed@ and dirty, indicating a possible struggle.  Near Jones=s body, police found shell casings, a bullet, broken glass, two remote controls, a set of keys, and two rings later identified as Jones=s.  Jones=s wallet and driver=s license were still in his pocket, but he had no cash.  Police found blood on the driveway and on the outside of the white suburban, which was locked and later determined to be unrelated to the crime.  In the blue suburban, police found blood on the front passenger seat and on an empty black pouch located in the console area.  Jones=s son later testified that Jones sometimes kept money in his black pouch.

Neighbors told police that a yellow Cadillac had been parked at Jones=s house earlier that night.  As they investigated the scene, police saw appellant slowly drive by three times in a yellow Cadillac.  They stopped the Cadillac and noticed bloodstains inside the car that were later found to be consistent with Jones=s DNA.  Appellant had minor injuries on his left knee and his hands that he said he sustained earlier that evening at a Halloween party.  However, appellant=s girlfriend, Miranda Strickland, attended the party with appellant and did not recall that he was injured there, nor could appellant provide police with a credible alibi for his whereabouts at the time of the shooting.  Appellant was arrested, and his Cadillac was impounded.  Norman Kiesewetter, a vehicle examiner with the Houston Police Department, photographed the Cadillac and collected blood evidence.  Several weeks later, Curtis Scales, a detective with the Houston Police Department, inspected the Cadillac and discovered keys to the blue suburban on the driver=s side floorboard. 

The ensuing investigation revealed that appellant and Jones were cousins, and appellant sometimes assisted Jones in his real estate business.  Appellant often asked Jones=s son for money, and Jones loaned appellant $2,500 to buy a yellow Cadillac.  The day before the shooting, Niesha Butler, an acquaintance who also occasionally helped Jones with his business, overheard appellant ask Jones for money.  When Jones refused, an argument ensued in which appellant complained that Jones Anever [did] anything for him.@  Jones reminded appellant he had bought the Cadillac and was not obligated to do more.  Appellant responded that he Amight as well start jacking,@^[1] after which Jones asked him to leave.  Two weeks before the shooting, Strickland overheard appellant on the phone trying to obtain a gun, and she saw a gun in appellant=s backpack the day before the shooting.  On the night of the shooting, appellant and Strickland returned to their home after attending a Halloween party.  Around one in the morning, appellant left home with his backpack and did not return.

Jones=s neighbor, John Theall, was home when Jones was shot.  Sometime after midnight, John heard Aloud talking@ and heard someone say, AOh, man, come on.  Come on, man.@  Moments later, he heard several gunshots and went outside to investigate.  John saw Jones lying on his driveway with Asomeone slumped over him@ who then got up and drove away in a Ayellow or a cream-colored Cadillac.@  John=s brother Danny, who also lived nearby, had noticed a yellow Cadillac parked near Jones=s house around midnight.  He thought the Cadillac belonged to one of Jones=s relatives.  Later, Danny heard arguing followed by gunshots and, like his brother, went outside to investigate.  The brothers found Jones lying on his back, trying unsuccessfully to lift his head, and struggling to breathe.  They called 911 and waited with Jones as he died.

Analysis

The State charged appellant with capital murder.  To convict him of capital murder, the State had to prove he intentionally or knowingly murdered Jones in the course of committing or attempting to commit robbery.  Tex. Penal Code Ann. _ 19.03(a)(2) (Vernon Supp. 2005).  A person commits robbery if, in the course of committing theft, he intentionally, knowingly, or recklessly causes another bodily injury or places another in fear of imminent bodily injury or death.  Tex. Penal Code Ann. _ 29.02(a) (Vernon 2003).  The intent to rob must be formulated before or at the time of the murder.  Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001).  An attempt is Aan act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.@  Tex. Penal Code Ann. _ 15.01(a) (Vernon 2003). 

In two issues, appellant contends the evidence is legally and factually insufficient to prove that he murdered Jones in the course of robbing or attempting to rob him.  He claims there is no evidence that he took Jones=s property or that the keys to the blue suburban found in the Cadillac belonged to Jones.  In conducting a legal-sufficiency review, we view the evidence in the light most favorable to the verdict.  Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).  We do not ask whether we believe the evidence at trial established guilt beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 318B19 (1979).  Rather, we determine only whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Cardenas v. State, 30 S.W.3d 384, 389 (Tex. Crim. App. 2000).  In our review, we accord great deference A>to the responsibility of the trier of fact [fairly to] resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.=@  Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996) (quoting Jackson, 443 U.S. at 319).  We presume that any conflicting inferences from the evidence were resolved by the jury in favor of the prosecution, and we defer to that resolution.  Id. at 133 n.13.

In conducting a factual-sufficiency review, we do not view the evidence Ain the light most favorable to the prosecution.@  Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).  Instead, we view the evidence in a neutral light and inquire whether the jury was rationally justified in finding guilt beyond a reasonable doubt.  Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004).  We may find the verdict factually insufficient in two ways.  First, when considered by itself, the evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt.  Id.  Second, after weighing the evidence supporting the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met.  Id.  We must discuss the evidence appellant claims is the most important in allegedly undermining the jury=s verdict.  Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).  However, we must employ appropriate deference so that we do not substitute our judgment for that of the fact-finder.  Zuniga, 144 S.W.3d at 482.  Our evaluation should not intrude upon the fact-finder=s role as the sole judge of the weight and credibility given to any witness=s testimony.  Cain, 958 S.W.2d at 407.

Having reviewed the record, we find the evidence legally and factually sufficient to support the jury=s verdict.  John and Danny Theall responded almost immediately when Jones was shot.  They testified that they found Jones lying on his back, struggling to breathe, and unable to lift his head.  Despite Jones=s evident inability to transport himself, his blood was found in the blue suburban on the passenger seat and on a bag in which he sometimes kept money.  Additionally, Jones=s rings and several objects from the blue suburban were scattered on the driveway near his body.  Witness testimony established that appellant often needed money, Jones had recently refused to loan him money, and appellant told Jones that he might start Ajacking.@  Further, Jones and appellant both had physical injuries and Jones=s property was scattered at the scene, suggesting they may have struggled over the property.  Although the evidence is circumstantial, circumstantial evidence alone can support a jury verdict.  See Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999).  We find that, based on this evidence, a rational jury could have found that appellant shot Jones while robbing or attempting to rob him.

Appellant claims the evidence is too weak to support a finding that he robbed Jones.  He points out that the State never proved the keys found in appellant=s Cadillac belonged to Jones or that Jones had money in his black pouch when he was robbed.  In support of this argument, appellant cites Herrin v. State, in which the Court of Criminal Appeals reversed a capital murder conviction after finding legally insufficient the State=s evidence that the victim=s wallet was missing and the appellant thought the victim owed him money.  125 S.W.3d 436, 441B42 (Tex. Crim. App. 2002).^[2]  However, this case is distinguishable from Herrin because here more evidence supports a finding of robbery or attempted robbery.  Here, a witness saw someone crouching over Jones immediately after Jones was shot who then got into a car matching the description of appellant=s car.  Jones=s jewelry and other belongings were scattered near his body, and his blood was found on his black pouch and in his suburban.  Additionally, police found Jones=s blood and keys to the blue suburban in appellant=s car, which they impounded the night Jones was murdered.  To support a capital murder conviction, the State is not required to prove, as appellant seems to argue, that Jones=s property was found in appellant=s possession.  Rather, the State must prove that appellant committed or attempted to commit robbery when he murdered Jones.  See Tex. Penal Code Ann. _ 19.03(a)(2).  Based on the evidence, the jury rationally could have found that appellant removed Jones=s jewelry and items from his suburban when he shot Jones and that he dropped or abandoned some items as he left the scene.  Moreover, even if, as appellant argues, the State never proved the keys found in appellant=s Cadillac belonged to Jones, the jury could have considered their presence evidence that appellant entered the suburban and accessed the black pouch and items found near Jones=s body.

Appellant further complains that police did not discover the keys to the blue suburban in appellant=s Cadillac until several weeks after the Cadillac was impounded and suggests that they were planted.  However, appellant=s suggestion is merely speculative.  Moreover, the jury heard testimony from both Kiesewetter and Detective Scales regarding how the keys were discovered.  The jury, as sole judge of the weight and credibility to be given witness testimony, could reasonably have found their accounts credible.  Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002).

Viewing this evidence in a light most favorable to the verdict, we conclude a rational jury could have found the elements of capital murder beyond a reasonable doubt.  Viewing the same evidence in a neutral light, we conclude the evidence is not too weak, nor the contrary evidence too strong, to support a finding of guilt beyond a reasonable doubt.  Thus, the evidence is legally and factually sufficient to support the verdict.  Accordingly, we overrule appellant=s two issues.

We affirm the trial court=s judgment.

/s/      Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed March 28, 2006.

Panel consists of Chief Justice Hedges and Justices Yates and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).