Opinion
No. 05-08-01289-CR
Opinion issued March 9, 2010. DO NOT PUBLISH. TEX. R. APP. P. 47.
On Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F06-89332-RW.
OPINION
In this appeal of the judgment in a capital murder case in which the State did not seek the death penalty, appellant Lavelle D. Evans raises two issues challenging his automatic life sentence: legal and factual insufficiency of the evidence to prove he committed capital murder. After reviewing the evidence before us in this case, we resolve both issues against appellant and affirm the trial court's judgment.
BACKGROUND
On December 18, 2006, appellant was indicted for capital murder alleged to have been committed on or about October 8, 2006. In relevant part, the indictment reads that appellant didunlawfully then and there intentionally cause the death of [deceased], an individual . . . by SHOOTING 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 OBSTRUCTION AND RETALIATION of said deceased. . . .The indictment also contained two enhancement paragraphs. The aggravating element of "obstruction and retaliation" alleged in the indictment is the murder of a potential witness against appellant in a drug case in Arkansas. Appellant and deceased were friends at one time. Appellant and deceased were arrested and charged with conspiracy in a drug case in El Dorado, Arkansas along with deceased's sister Felicia and appellant's brother Johnny. The cases against all four of them were consolidated into a single trial set for October 12, 2006 in Arkansas. Of the four accused, deceased was the only one who had no criminal record. In the immediate wake of the arrests, deceased claimed full responsibility for the drugs. In a letter, she stated appellant had no knowledge of the drugs. As the trial date approached, however, deceased, represented by an attorney, negotiated a deal with the district attorney to testify against the co-conspirators in exchange for a lesser sentence. On the morning of October 7, the prosecutor in El Dorado spoke to appellant's attorney, notifying him that deceased had agreed to testify for the State. The prosecutor also conveyed a plea bargain offer of thirty years' imprisonment to appellant. Appellant's attorney met with appellant from 10:00 a. m. until noon on October 7 to discuss his case. Between 7:30 p.m. and 8:00 p. m. on October 7, deceased's brother Brandon saw deceased and appellant together in El Dorado. Brandon and a friend were in a truck waiting at a red light when deceased pulled up behind them in her car. Appellant was the only passenger in deceased's car. Deceased declined an invitation from Brandon to go to a music festival, saying she and appellant were going to the house that deceased shared with another brother. Later that night, deceased's car was found at the house, but deceased was not there. On October 8, 2006, in El Dorado, deceased was officially reported missing. El Dorado police lieutenant Jim Wade began looking for her at that time by interviewing people about deceased's whereabouts. Meanwhile, in Dallas, Texas, Dr. Robert Jones (Jones) was walking around White Rock Lake in the early morning hours of October 8 while it was still dark outside. At 5:03 a. m., Jones heard a gunshot that was followed by three or four more gunshots coming from the other side of the lake. Jones reported the gunfire to the police at 5:05 a.m. Jones saw car headlights moving from the area where he had heard the gunshots. Five or ten minutes later, George Prock, a Dallas police patrol officer, responded to the 911 call. Jones saw a police car and search lights in the area. Jones finished his walk at 6:00 a. m., at which time he saw several police cars in the area where he had heard the gunshots. Near sunrise at about 7:00 a. m., Prock found the body of an unidentified woman in the 300 block of East Lawther Drive on the shore of White Rock Lake. She had been shot three times, including once in the back of her head. The police recovered a cigarette butt with some ash attached near the woman's body, along with a cigarette lighter and a cellular phone. They also recovered bullets and bullet fragments. Police detectives tracked down the cellular phone's owner. The owner cooperated with the police. The police determined the owner had been at the lake with a friend prior to the murder, but neither had any involvement in the crime. A DNA sample collected from the cigarette butt matched the decedent's DNA profile. No other useful DNA evidence was found. The bullets and fragments found near the decedent's body had been fired from the same gun. No other physical evidence was recovered. Robert Ermatinger, a Dallas homicide detective, testified police officers did not find deceased's body until about 7:00 a. m. Dineen Cordon, an officer in the Dallas crime scene response unit, explained that a cigarette butt with ash intact was significant because that meant it had not been there for very long. Kenneth Balagot, a forensic biologist with the Southwestern Institute of Forensic Sciences, testified the cigarette butt found near deceased's body had a DNA profile that matched deceased's DNA. The cellular phone found near the body yielded only a partial DNA profile which was consistent with both deceased's and Cindy Barraza's DNA. The medical examiner could not determine the precise time of deceased's death. The time of death was listed as "Found 7:08 a. m." The time listed on a death certificate does not necessarily show when death actually occurred. Deceased was not identified until ten days after her death. Detectives noticed that deceased was found wearing a unique shirt that said "Smokin in The Cove" on it. They determined the shirt referenced an internet blog for a group of speed board racers who traveled around the country and raced speed boats. On October 18, the police obtained fingerprints and identified the deceased. At that point, the murder investigation began to unfold in Dallas. Meanwhile, in El Dorado, Wade had begun his "missing person" investigation. In the afternoon of October 9, the day after deceased was reported missing, Wade spoke with appellant. Appellant said he last saw deceased on the evening of October 7 at a Subway sandwich shop. Appellant said he and deceased visited for awhile, then appellant left. A surveillance video tape from the Subway shop showed both deceased and appellant were there on that date, but they appeared separately over thirty minutes apart. The videotape showed appellant entered the shop at 7:28 p.m. and left at 7:30 p.m. while deceased entered at 8:16 p.m. and left at 8:19 p.m. Appellant told Wade that when deceased "disappears," she goes to a man named Cedric Cook. Appellant said his calls to deceased on October 8 were unanswered. Wade also spoke to April McGraw (April), who identified herself as appellant's girlfriend. April said her phone number was "870-665-1077." April had no information about deceased's disappearance. After deceased's body was identified, the El Dorado police obtained a search warrant for appellant's residence. Officer David Gates, an investigator with the Union County Sheriff's Department in El Dorado, testified he was part of a team that executed a search warrant on appellant's residence on October 18, 2006. When officers searched appellant's room, they found, among other things, two cellular phones. The phones were seized and listed on the search warrant return, but they were never logged into the property room. Gates kept the phones in his possession. One of the phones was not functional for lack of a battery or SIM card; the other phone was operational. On the operational phone, the police found photographs of appellant, one of April and another of a boy believed to be appellant's son. When the police obtained the records for the operational phone, they found the phone number was registered to Roshanda Sims. At trial, Sims testified she and appellant dated previously. Sims obtained the phone in August 2006 at appellant's request and for his exclusive use, and the number was "678-939-1927." Sims discontinued the account for appellant's phone in November or December 2006. Appellant's brother Johnny was not a suspect because he was in jail on October 7 and 8. At trial, the State introduced into evidence the cellular phone records for appellant's phone. The records reflect that between October 7 and October 9, appellant's phone had made or received at least 197 calls. After focusing on the locations of the cellular towers that transmitted the calls, the police determined and the records revealed that appellant's phone left El Dorado at 10:30 p.m. on October 7, traveled to White Rock Lake in Dallas, then returned to El Dorado no later than 9:38 a.m. on October 8. The records show that in the immediate vicinity of White Rock Lake, four calls were made. Two calls were made at 4:33 a.m., one at 4:38 a.m., and one at 5:07 a.m. Appellant's cousin, Jarvis Moore, received two of the White Rock Lake calls: one at 4:33 a.m. and one at 4:38 a.m. The records also show that Jarvis called appellant's phone at 7:44 a.m. on October 8. When Jarvis woke up that morning, he discovered he had missed two calls from appellant's phone. Jarvis returned appellant's calls. The call lasted ten minutes, during which appellant told Jarvis about his meeting with his attorney, how much prison time he was facing, and that deceased was going to testify against him. When Jarvis spoke to appellant, he thought appellant sounded upset. Concerned about appellant's mental state, Jarvis asked his "Uncle Quinn" to go check on appellant. The records show that Jarvis's call was transmitted to appellant's phone by a cell tower in Marshall, Texas. Marshall is between Dallas and El Dorado. Some of the calls made from appellant's phone were "blocked" so the recipient could not see appellant's number on the caller ID feature. According to the records, at least four calls to appellant's phone were from Quinn Moore, including calls at 10:45 a.m., ll:47 a.m., 3:37 p.m., and 4:39 p.m. At trial, Quinn Moore testified that as a result of Jarvis's call to him, he was worried appellant might be "suicidal or something." Quinn wanted to check on appellant, but he did not talk to him. The testimony of both Jarvis and Quinn was confirmed by the call logs for appellant's phone. The phone records also show at least forty-eight calls were made to and from April's phone, with number "870-665-1077," and at least one call, at 10:46 a.m. on October 8, to the residence appellant shared with his mother. Other numbers listed on the call log were unidentifiable because they were either assigned to pre-paid phones or to accounts with false names or addresses. At the time of deceased's murder, appellant was on supervised release pending his sentencing in an unrelated federal case. One of the conditions of appellant's release was that he could not leave his residence without permission except for work or a medical emergency. Through a monitoring unit that used a phone line to transmit data from a device appellant wore on his wrist, a federal probation officer tracked the times appellant entered and left his home. Records show that at 5:30 p.m. on October 7, the home monitoring unit became disabled when someone disconnected it from the phone line, unplugged it, and opened it to remove the back-up battery. Anti-tamper tape had been removed to gain access to the battery. Records show the unit was re-connected and turned back on at 9:54 a.m. on October 8. Phone records from appellant's phone show he had arrived back in El Dorado no later than 9:38 a.m. on October 8. The monitoring unit recorded appellant's comings and goings before and after the interruption to its power supply, indicating that the unit itself was in good working order. Paul Brockway, an expert in monitoring systems, testified he has worked on monitors like the one used on appellant. He testified that on October 7 at 5:30 p.m., the unit reported "MNU — case tamper." Then, at 9:54 a.m. on October 8, the unit reported "HMU Power up." Brockway personally examined the unit. He determined the unit had been tampered with because the "anti tamper tape" had been pulled back so one could access the screws on the box. He explained that because the unit has a forty-eight-hour backup battery, simply unplugging the unit would not cause it to fail. The "HMU Power up" report meant someone had disconnected the battery and reconnected it. Brockway could not, however, testify when the unit had been tampered with. Jeff Rogers, the Arkansas prosecutor on appellant's drug case, testified the drug case was set for trial on October 12, 2006. After Rogers met with deceased and her attorney about testifying for the State, he provided a summary of her potential testimony to the attorneys of the other co-defendants, as required by Arkansas law. He talked to appellant's attorney on Saturday, October 7, who told Rogers he was going to meet with appellant later that day. On October 8, Rogers learned that deceased was missing. Tammy Albritton, a federal probation officer, testified that in October 2006, appellant was free on bond in a federal case. As a condition of his bond, appellant was required to wear a monitor and to leave his home only for work or other pre-approved outings. On August 30, 2006, Albritton conducted a standard home visit on appellant. She discovered that appellant had taken the monitoring device off his wrist. Appellant said he would "just leave it at home" whenever he wanted to go out. Probation officers could not determine how appellant removed the monitoring device from his wrist without damaging it. After that home visit, the monitor was replaced, and appellant was continued on supervision. On October 12, 2006, Shirley Evans, appellant's mother, called Albritton and said she had tripped over the phone cord and disconnected the monitor on October 7. Evans said the monitor was disconnected for about two or three minutes. When Albritton later asked appellant where he was on October 7, appellant said he was at home most of the day, but was also outside working on some "plumbing problems." Appellant told Albritton he sometimes went to the Subway Shop to use the restroom. Crystal Jones (Crystal) testified she was once romantically involved with appellant's brother Johnny. Sometime in September 2006, without prompting from anyone, Crystal told deceased that if deceased testified in the drug conspiracy trial, her life would be in danger. Crystal testified she felt she was "just giving [deceased] some advice." Appellant's mother Shirley testified that in October 2006, April was staying at her house. During that period of time, appellant was monitored from a unit that was hooked up to the phone line. The monitor box sat atop a television set in appellant's room. Sometime during the day on October 7, Shirley tripped over the phone line that was connected to the monitor, knocking it to the floor. The monitor box was put back on the television. Shirley was unaware, however, that the phone cord had become unplugged from the monitor box. Shirley testified that when she went to bed that night, appellant was in the house. She did not know if appellant remained in the house all night because she went to sleep. Shirley testified that as a result of their plumbing problems, they had to go "up the street" to use the bathroom. Shirley did not remember telling a police detective that appellant had a barbeque that night. The next morning, Shirley left the house without knowing if appellant was there or not. According to Shirley, appellant's cellular phone number at that time was "870-814-9611." Shirley explained to the jury that she was on cancer medication and sometimes had trouble "remembering things." Shirley authenticated several letters written by appellant. In a letter dated June 6, 2008, appellant wrote to a friend that he could not have killed deceased because he spent the night out drinking with three other friends. In a letter dated February 3, 2008, appellant wrote to April, stating, "You say you don't have anything, but what you've lost is because of the choices that you've made and you probably think you have nothing else to lose, but you do, like me and [your child]." On April 26, 2008, April wrote to appellant, stating "I still love you and will do anything for you." Appellant called two defense witnesses: Patricia Kellough and April. Kellough, a Dallas resident who knew both deceased and appellant, testified that during some of the time deceased was a fugitive on the Arkansas drug case, deceased had stayed with her in Dallas. During that time, deceased wrote a letter to the police taking full responsibility for the drugs. Deceased discussed this letter with Kellough. When she heard that deceased was missing, Kellough thought deceased was on the run again. She also thought deceased was the type of person who would go alone in the early morning hours to conduct a drug transaction. April testified she was appellant's former fiancee, but was no longer dating him. April said she never knew appellant to have a phone with the number "678-939-1927." On rebuttal, the prosecution pointed out that April had made numerous calls to that number on October 7, 8, and 9, and she had even left several voice messages on that number. April verified that number "870-665-1077" was her cellular phone number. In October 2006, April lived with appellant and his mother. On October 7, she left for work at 6:30 p.m. Appellant stayed at home with her child. That night, April received several calls from appellant from number "870-881-8234." She also received several phone calls from a blocked number. When she answered the blocked calls, all she heard was static. At 7:10 a.m. the next morning, April returned home from work and saw appellant at his mother's house. When questioned by the prosecutor regarding appellant's June 6 letter in which he stated he was out drinking with friends on the nights of October 7 and October 8, April testified there was "no way" appellant would have left the house, and that he must have been lying in the letter. Following the arguments of counsel, the jury retired to deliberate, after which it returned a verdict finding appellant guilty of capital murder. This appeal ensued.