Opinion
NO. 01-11-00090-CR
04-12-2012
VERNELL HARVEY, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 208th District Court
Harris County, Texas
Trial Court Case No. 1285555
MEMORANDUM OPINION
A jury convicted Vernell Harvey of murder and assessed his punishment at sixty-two years' confinement. See TEX. PENAL CODE ANN. § 19.02(b) (West 2003). On appeal, Harvey contends the evidence is legally and factually insufficient to support his conviction. We affirm.
Background
One Friday night in August 2009, Shirley Lusk and her adult daughter, Chaka Toles, went to dinner and a movie. Afterward, Toles accompanied Lusk on the city bus to her home in Houston's Fifth Ward. They heard yelling and cursing as they got off the bus and saw what they initially thought was a man with a belt chasing his son, but, as the mother and daughter got closer, they realized that they were seeing a larger man holding a machete and chasing a smaller man. The larger man wore a white shirt, dark pants, and stained white tennis shoes, and the smaller man wore a dark shirt and pants.
The larger man shouted, "I'm going to catch you, . . . I'm going to get you," as the smaller man fled from him. Eventually, the smaller man, later identified as Lewis White, tripped on some rocks and fell face-down on the ground. The larger man caught up to where White had fallen and began swinging the machete, striking the back of White's head and neck five or six times. Lusk screamed at the man to stop. As the man turned and walked away from them, still holding the machete. Toles ran up to White and knelt beside him. She saw that the machete had blood running from it. While Lusk ran to call for an ambulance, Toles remained with White and urged him to hold on, but he died almost immediately.
When Houston Police Department (HPD) Officer D. Riggs arrived at the scene, emergency medical personnel were attending to White's body. He spoke briefly with Lusk and Toles and had them wait in the patrol car for further questioning. By then, a crowd of neighbors and others had gathered. Some confirmed that they had seen someone running after someone else and identified a potential suspect—Harvey—who was White's next-door neighbor in a small residential area a short distance from the street where the incident had taken place.
Police found Harvey inside his home. After Harvey consented to a search of the premises, the officers searched Harvey's home and yard. It was very dark and hard to see, even with flashlights. Detective A. Semmelrock, a sergeant in HPD's Homicide Division, looked specifically for dark-colored clothing consistent with the witness's description of the assailant's pants. He seized a pair of black jean shorts with what appeared to be a bloodstain. Due to the lack of visibility, the officers decided to resume their search during daylight hours. A day and a half later, after they had interviewed Lusk and Toles and secured a search warrant, the officers returned to complete the search. Among other debris in the backyard was an old stove with a rolled-up carpet on top. The officers observed a handle sticking out of the carpet and unrolled it to find a machete, a broken cell phone, and travel-size liquid soap and shampoo bottles. A kitchen knife that had been underneath the carpet lay on the stove. No DNA was found on the knife or machete. DNA testing of the inner waistband of the black shorts identified contact DNA from Harvey inside the waistband, while the bloodstain contained White's DNA.
An autopsy showed that White had sustained a total of eight "chop" wounds—caused by a combination of sharp and blunt force—to the head, neck, and left arm. The blow to White's hand cut through the knuckles of most of his fingers, nearly severing them. One chop wound penetrated the scalp and skull, and another severed White's spinal cord, an injury that causes simultaneous death. These wounds were inflicted with a heavy, beveled-edge weapon like a machete. White's body also had a laceration on the chest, an injury that likely resulted from a smaller, sharper implement, such as a kitchen knife. Expert testimony introduced at trial showed that the machete found in Harvey's backyard was capable of inflicting the chop wounds found on White's body, and neither the machete nor the kitchen knife could be excluded as having caused White's corresponding injuries.
Discussion
Standard of Review
We review legal and factual sufficiency challenges using the same standard of review. Ervin v. State, 331 S.W.3d 49, 54 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd) (construing majority holding of Brooks v. State, 323 S.W.3d 893, 912, 926 (Tex. Crim. App. 2010)). Under this standard, the evidence is insufficient to support a conviction if, considering it in a light favorable to the verdict, no rational factfinder could have found the essential elements of the charged offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071 (1970); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We presume that the factfinder resolved any conflicting inferences in favor of the verdict and defer to that resolution. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the factfinder's evaluation of the credibility and weight of the evidence. See Williams, 235 S.W.3d at 750.
Murder
Under the Texas Penal Code, a person commits the offense of murder if the person "intentionally or knowingly causes the death of an individual" or "intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual." TEX. PENAL CODE ANN. § 19.02(b) (West 2003). Harvey's appeal primarily challenges the jury's finding that he committed the murder. "[T]he State may prove the defendant's identity and criminal culpability by either direct or circumstantial evidence, coupled with all reasonable inferences from that evidence." Gardner v. State, 306 S.W.3d 274, 285 (Tex. Crim. App. 2009).
Sufficiency Analysis
Harvey contends that the State's evidence linking Harvey with White's murder—namely, Lusk's eyewitness testimony and the DNA found on Harvey's black shorts—is insufficient to support the jury's finding of guilt. In claiming that Lusk's trial testimony identifying Harvey as the killer cannot support the verdict, Harvey points to the fact that Lusk's identification of Harvey as the killer from the investigator's photo array was only "tentative," showing that she was unable to positively identify Harvey just days after the crime. The record, however, does not require the conclusion that Lusk was unable to identify Harvey as the killer, only that she was initially unwilling to cooperate with the investigation. Lusk testified that she did not cooperate at the beginning of the investigation because it was dangerous to be a "snitch" and she did not want to get involved, but later had a change of heart.
The jury alone decides whether to believe eyewitness testimony, and the jury alone resolves any conflicts or inconsistencies in the evidence. Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998); Orsag v. State, 312 S.W.3d 105, 115 (Tex. App.—Houston 2010, pet. ref'd). A rational jury could reasonably accept Lusk's explanation of the discrepancies between her initial statement to the police and her trial testimony and resolve them accordingly.
Harvey also contends that the fact that White's DNA was found on his shorts does not support the jury's finding that he murdered White. First, he claims that the shorts did not meet either eyewitness's description of the murderer's clothing that day. We disagree. Lusk explained that she did not recall whether the pants Harvey wore were long or short, but, consistent with the shorts recovered in Harvey's home, she did describe them as dark in color. The eyewitnesses also testified to other circumstances, such as the speed and the horrific nature of the events unfolding that night, and some of the events' taking place in darker areas further from the streetlight. The jury was entitled to take these circumstances into consideration in determining the credibility and weight of the eyewitness's testimony.
Harvey also asserts that White's DNA "could have been from spit or sweat as easily as blood," and, given the proximity of their homes, could have gotten onto his shorts by other means. Contrary to this assertion, the record shows that the HPD crime lab criminalist who conducted serology testing found that the some of the stains on the shorts yielded a positive presumptive result for the presence of human blood. Later DNA testing identified White as a major contributor to the DNA found in those stains, and Harvey could not be excluded as a minor contributor. The DNA expert explained that the shorts were
screened and found positive for the presence of blood. So I would expect this DNA came from blood. But it's also possible that maybeBased on this testimony, viewed in a light favorable to the verdict along with the other evidence in the record, a rational jury could reasonably find that Harvey's shorts became stained with White's blood while Harvey committed mayhem and, ultimately, White's murder.
one of the donors spit in that area. . . . It's possible. We know blood was there; so, I would expect this to be blood DNA. But DNA testing can't tell you what type of cell it came from.
Harvey also complains that neither Toles's testimony nor the presence of the machete and knife at Harvey's home links him to White's murder. These complaints lack merit. We note that the verdict could stand on Lusk's testimony alone; the testimony of a single eyewitness is sufficient to support a felony conviction. Davis v. State, 177 S.W.3d 355, 359 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (en banc). Even so, Toles's testimony lends further support to the jury's finding. While Toles could not identify Harvey in a photo array, she testified that she saw the murderer holding a machete with blood dripping from it immediately after the murderer stepped away from White's body. Her testimony is consistent with the medical examiner's testimony concerning the probable murder weapon, and the police found a machete rolled inside a carpet in Harvey's backyard. The jury could reasonably infer that these circumstances showed Harvey's attempt to hide the machete and thus his guilt of the murder. See Miller v. State, 177 S.W.3d 177, 184 (Tex. App.—Houston [1st Dist.] 2005, pet. ref'd) (referring to proof that defendant burned clothes he wore on day of murder and directed friend to bury defendant's gun in backyard in concluding that defendant's "attempts to hide evidence constitute circumstantial evidence of his guilt"). The absence of DNA on the machete does not undermine that inference. The officers also found small bottles of soap and shampoo rolled into the carpet along with the machete, and the HPD criminalist explained that soap and water would easily remove DNA from a nonporous surface, such as a knife blade. Considering all the evidence in the light most favorable to the verdict, and giving deference to the jury's determination of credibility and resolution of conflicts in the evidence, we hold a rational jury could find beyond a reasonable doubt that Harvey murdered White. See Brooks, 323 S.W.3d at 899.
Conclusion
We hold that the evidence supports the conviction. We therefore affirm the judgment of the trial court.
Jane Bland
Justice
Panel consists of Justices Keyes, Bland, and Sharp. Do not publish. TEX. R. APP. P. 47.2(b).