Opinion
No. 05-11-01051-CR
07-31-2012
ISAAC TREMAIN BUTLER, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion Filed July 31, 2012.
On Appeal from the 363rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F10-53638-W
OPINION
Before Justices FitzGerald, Murphy, and Fillmore
Opinion By Justice FitzGerald
A jury found appellant Isaac Tremain Butler guilty of capital murder, and the trial court assessed his punishment at a term of life without possibility of parole. Appellant raises two issues in this Court, both concerning the trial court's charge to the jury. We affirm the trial court's judgment.
Background
Patrick Pattain was shot and killed while sitting in his car outside an apartment complex in Dallas. Police investigating the scene of the shooting took fingerprints from Pattain's car. A witness who lived in the apartment complex informed police the shooter left the scene in a car that looked like a white Crown Victoria. The police analyzed the fingerprints taken from the scene; prints on the rear passenger door and on the rail of the front passenger window matched appellant's fingerprints. When investigators learned appellant drove a white Crown Victoria, they obtained a warrant and arrested him. The lead detective on the case, Tommy Raley, questioned appellant, and appellant ultimately confessed to shooting Pattain with two different guns: a .40 caliber pistol and a .357 caliber revolver. Appellant told Raley that he and Clisjain Hall had planned only to rob Pattain, but "shit went wrong." The police also arrested Hall for Pattain's murder. She agreed to assist the police by giving information about the crime and was subsequently charged only with aggravated robbery. Based on Hall's testimony, the police also arrested Albert Gant for Pattain's murder. According to Hill, appellant and Gant planned the robbery together.
At trial, Raymond Anderson, a resident of the complex, testified he was awakened by his brother, who heard gunshots the morning of the shooting. Anderson looked outside and saw Pattain's car. He saw the car's driver-side window was broken out. He also saw a man open the driver's door and start to rummage through the car. Then he watched the same man walk around to the passenger side of the car and start rummaging through the car again. This took approximately ten minutes, but eventually the man stepped back, stood up, leaned his hand inside the car, and started firing "a lot of shots" into the car. A second car then pulled up to the parked car; the shooter walked slowly around and got into the second car before it drove away.
A 911 operator testified that she took a call from Pattain's cell phone at 7:30 a.m. on the day of the shooting. The caller told her he had been shot and said, "Please help me, ma'am. I don't want to die." The call ended, and the operator attempted to call him back, but her call went directly to voice mail. The medical examiner testified subsequently that Pattain suffered twelve gunshot wounds. She stated that one of the shots was fired at Pattain's head from close range and would have caused Pattain to die immediately. Another group of four shots would not necessarily have killed Pattain immediately, but-in the medical examiner's opinion-would have rendered him unable to make the 911 call. The remaining group of shots would not have prevented Pattain from making the call.
Police recovered six cartridge cases and three fired bullets from the scene of the shooting; the medical examiner recovered five bullets while performing Pattain's autopsy. The Dallas Police Department's forensic firearms examiner studied all the bullets and casings and testified the same two guns-a .40 caliber pistol and a .357 caliber revolver-fired the bullets found at the scene and during the autopsy.
Accomplice-Witness Instruction
In his first issue, appellant contends Hall was appellant's accomplice as a matter of law and the trial court erred in failing to instruct the jury concerning the legal restriction upon her testimony. The code of criminal procedure directs:
A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.Tex. Code Crim. Proc. Ann. art. 38.14 (West 2005). An accomplice is a person who participates in the offense before, during, or after its commission with the requisite mental state. Smith v. State, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011). A witness may be an accomplice as a matter of law or as a matter of fact; the evidence in a case determines what instruction, if any, needs to be given to the jury. Cocke v. State, 201 S.W.3d 744, 747 (Tex. Crim. App. 2006). If a witness is an accomplice as a matter of law, the trial court is required to provide an accomplice-witness instruction to the jury. Id. The instruction is appropriate when the witness is charged with the same offense as the defendant or when the evidence clearly shows that the witness could have been so charged. Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007); see also Smith, 332 S.W.3d at 439 (witness is accomplice as matter of law if she is indicted for same offense or lesser included offense as accused). In this case, Hall was originally charged with capital murder as appellant was. She testified that her charge was reduced to aggravated robbery after she gave the police all the information she knew concerning the case. Hall also testified at length concerning her part in the plan, including alerting appellant to what she believed was the large amount of money Pattain was carrying, luring Pattain to the apartment complex, and leaving Pattain with appellant in the complex parking lot. We conclude Hall was an accomplice as a matter of law in this case and the trial court erred by failing to instruct the jury concerning article 38.14.
Appellant did not request the accomplice instruction or object to its absence. Accordingly, we will reverse the trial court's judgment on this ground only if appellant suffered egregious harm as a result of the missing instruction. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). The egregious-harm standard is satisfied if "jurors would have found the corroborating evidence so unconvincing in fact as to render the State's overall case for conviction clearly and significantly less persuasive." Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991). In this case, the corroborating evidence is strong. Most importantly, appellant confessed to planning the robbery with Hall and to shooting Pattain. The facts that appellant admitted were also supported by the physical evidence and the testimony of witnesses: Pattain was initially shot several times; he was able to call 911; then, after approximately ten minutes, he was shot fatally by the man who was rummaging through Pattain's car. Appellant's fingerprints were found on Pattain's car near where the shooter was seen firing into the car. Appellant's car matched the descriptions of the car that drove away from the site of the offense. Appellant argues his confession should be eliminated from this analysis, declaring his own admission is neither believable nor reliable. Appellant contends he was clearly covering up for Gant when he took the blame for the shooting. In making this argument, appellant relies on Herron v. State, 86 S.W.3d 621 (Tex. Crim. App. 2002). In Herron, the court reasoned that financial information offered to corroborate the defendant's participation in the arson charged was subject to "persuasive innocent explanations." Id. at 632. As a result, the court concluded the corroborating evidence did not have a very strong tendency to connect the defendant to the crime. Id. Appellant's confession, unlike the financial records in Herron, was not subject to "persuasive innocent explanations." On the contrary, the confession was supported by the physical evidence and the testimony of the witnesses other than Hall at trial. We conclude ample corroborating evidence exists to connect appellant to Pattain's murder. If the corroborating evidence were to stand alone, the jury would not have found the State's overall case for conviction significantly less persuasive. See Saunders, 817 at 692. Accordingly, appellant did not suffer egregious harm because of the failure of the trial court to instruct the jury on the accomplice witness rule.
We overrule appellant's first issue.
Lesser Included Offense
In his second issue, appellant argues the trial court erroneously refused to submit a jury question on aggravated robbery as a lesser included offense of capital murder. We use a two-step analysis to determine whether a lesser included instruction requested by a defendant must be given. Sweed v. State, 351 S.W.3d 63, 71 (Tex. Crim. App. 2011).
We ask first whether the lesser included offense is in fact included within the proof necessary to establish the offense charged, comparing the statutory elements and "descriptive averments" in the indictment for the greater offense with the statutory elements of the lesser offense. Id. In this case, appellant was charged with capital felony murder, which requires the State to prove appellant intentionally caused Pattain's death in the course of committing robbery. See Tex. Penal Code Ann. § 19.03(a)(2) (West Supp. 2011). The indictment alleged that appellant did:
unlawfully then and there intentionally cause the death of PATRICK PATTAIN, an individual, hereinafter called deceased, by SHOOTING THE DECEASED WITH A FIREARM, A DEADLY WEAPON, and the defendant was then and there in the course of committing and attempting to commit the offense of ROBBERY of said deceased.As to the lesser offense requested by appellant, aggravated robbery, the State would have to prove that appellant committed a robbery and used a deadly weapon. See id. § 29.03(a)(2) (West 2011). It is apparent from the face of the indictment that aggravated robbery is included within the proof necessary to establish capital murder as appellant was charged in this case. See Sweed, 351 S.W.3d at 71.
The second step in our inquiry requires us to determine whether there is evidence in the record that would permit a rational jury to determine that-if the accused is guilty-he is guilty only of the lesser included offense. Guzman v. State, 188 S.W.3d 185, 188 (Tex. Crim. App. 2006). In other words, we ask whether the evidence would allow a rational jury to acquit the accused of the greater offense while convicting him of the lesser offense. Sweed, 351 S.W.3d at 71. The only way that a jury could have acquitted appellant of capital murder while convicting him of aggravated robbery, would be if there were evidence in the record that appellant did not intend to kill Pattain. Appellant contends the plan was only to rob Pattain, not to kill him. But we determine the intent to kill in this case not when the robbery plan was devised, but when appellant shot Pattain. See Solomon v. State, 49 S.W.3d 356, 369 (Tex. Crim. App. 2001)(whether appellant intended to kill victim before robbery took place is irrelevant if relevant liability elements were established at time crime was committed). And the evidence concerning appellant's intent at the time of the shooting does not accord with robbery alone. Appellant shot Pattain twelve times. We can infer intent to kill from use of a deadly weapon in a deadly manner. See Adanandus v. State, 866 S.W.2d 210, 215 (Tex. Crim. App. 1993). In this case, appellant actually used two guns and fired two separate rounds of bullets at Pattain. According to all witnesses at the scene, the two rounds of shots were separated by a significant period of time. Eyewitness Anderson testified that between the rounds, the shooter was rummaging through the car. During that time, we know Pattain was able to make his 911 call. However, according to Anderson, the shooter then extended his hand inside the car and fired the second round of shots. According to the medical examiner, at least one of this second round entered Pattain's head from close range and would have caused immediate death. Given the evidence in this record, we conclude a rational jury could not have concluded that-at the time of the shooting-appellant intended only to rob, but not to kill, Pattain. See id. at 231.
Appellant was not entitled to a charge on the lesser included offense of aggravated robbery. We overrule appellant's second issue.
Conclusion
We have decided both of appellant's issues against him. We affirm the trial court's judgment.
KERRY P. FITZGERALD
JUSTICE
Do Not Publish
Tex. R. App. P. 47
111051F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
ISAAC TREMAIN BUTLER, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-01051-CR
Appeal from the 363rd Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F10- 53638-W).
Opinion delivered by Justice FitzGerald, Justices Murphy and Fillmore participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered July 31, 2012.
KERRY P. FITZGERALD
JUSTICE