Opinion
No. 12-07-00254-CR
Opinion delivered January 30, 2009. DO NOT PUBLISH.
Appeal from the 1st Judicial District Court of Sabine County, Texas.
Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.
MEMORANDUM OPINION
Rusty Wayne Horton appeals his conviction for murder. In three issues, Appellant argues that the evidence is insufficient to corroborate the testimony of an accomplice and that the trial court erred in overruling his objections to certain evidence. We affirm.
Background
In September 2006, sheriff's deputies and firefighters were dispatched to a fire at the trailer of Fred Boyce Easter. The trailer was seriously damaged by the fire, and the authorities found Easter's badly burned body inside the trailer. Easter was dead, and his body had several knife wounds to the front and the back of his torso. Sheriff's deputy Sergeant James Blackwell received a tip that Appellant was involved in Easter's murder. The day after the murder, he found Appellant and Leon Alex at Appellant's home, and he found Easter's truck in Appellant's neighborhood. Blackwell interviewed Appellant while Texas Ranger Daniel Young interviewed Alex. Appellant told Blackwell that he had been drinking with Easter the day of the murder and that he and "Pee Wee," a nickname for Leon Alex, had left for Louisiana that afternoon and gone to a bar. Alex initially gave a similar story but eventually told the authorities that he had witnessed Appellant stab Easter. The authorities recovered bloody clothes that the men had been wearing the day Easter was killed and were able to corroborate that the two men had gone to a bar in Louisiana the day of the murder. The DNA from the blood on Appellant's clothes was matched to Easter. A Sabine County grand jury indicted Appellant for the capital murder of Fred Easter, alleging that he murdered Easter by stabbing him in the course of committing a robbery. Alex was also indicted. He pleaded guilty and received a twenty-five year prison sentence. Alex testified at Appellant's trial that Appellant stabbed Easter and then went back into the trailer with a big red jug. Alex testified that Appellant returned to the truck and that he saw flames and smoke coming from the trailer as they drove away. The jury found Appellant guilty of the lesser offense of murder and assessed punishment at sixty years of imprisonment. This appeal followed.Accomplice Testimony
In his first issue, Appellant argues that he must be acquitted because the accomplice testimony is not sufficiently corroborated by other evidence.Applicable Law
A conviction may not be sustained on the testimony of an accomplice unless there is other evidence "tending to connect a defendant to the offense committed." Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005); Simpson v. State , 181 S.W.3d 743, 753 (Tex.App.-Tyler 2005, pet. ref'd). The corroborating evidence need not directly connect the defendant to the crime or be sufficient by itself to establish guilt, but it must do more than merely show the commission of the offense. Tex. Code Crim. Proc. Ann. art. 38.14; Vasquez v. State , 67 S.W.3d 229, 236 (Tex.Crim.App. 2002). The requirement of article 38.14 is fulfilled if the combined weight of the nonaccomplice evidence tends to connect the defendant to the offense. Cathey v. State , 992 S.W.2d 460, 462 (Tex.Crim.App. 1999). The corroborating evidence may consist of circumstantial evidence, Gosch v. State , 829 S.W.2d 775, 777 (Tex.Crim.App. 1991), and even apparently insignificant incriminating circumstances may be satisfactory corroborating evidence. Trevino v. State , 991 S.W.2d 849, 852 (Tex.Crim.App. 1999). To evaluate whether there is sufficient corroborating evidence, we eliminate the accomplice testimony from our consideration and examine the record to ascertain whether the remaining evidence tends to connect the defendant with the offense. McDuff v. State , 939 S.W.2d 607, 612 (Tex.Crim.App. 1997). The accomplice witness rule is a statutorily imposed sufficiency review and is not derived from federal or state constitutional principles that define the legal and factual sufficiency standards. Vasquez , 67 S.W.3d at 236.Analysis
Leon Alex was Appellant's accomplice as a matter of law because he was indicted for the same offense. See Burns v. State , 703 S.W.2d 649, 651 (Tex.Crim.App. 1985). The evidence, other than the testimony of Alex, that tends to connect Appellant to the offense is as follows:1) Appellant admitted to the police that he was present at Easter's house the day Easter was killed.
2) Appellant admitted to a reporter that he was at Easter's house shortly after, in his version of events, Leon Alex stabbed Easter.
3) Easter's truck was found in the vicinity of Appellant's home, and Appellant admitted driving the truck to Louisiana at a time that would have been after the murder.
4) An analysis of DNA recovered from Appellant's clothing showed a mixture of Appellant's and Easter's DNA.
5) Some of Appellant's clothing had been discarded by the side of the road, and he had placed his pants in the washing machine at his house. Appellant was not forthright at first with the authorities about which clothing he had been wearing the day of the murder.
6) Other nonaccomplice witnesses corroborated that Appellant went to a bar in Louisiana. While at the bar, Appellant tried to use a debit card but declined to attempt to use it when told a PIN was necessary.
7) An inmate who was housed with Appellant prior to trial said that Appellant threatened that he would "kill [him] just like he did that old [man]."Mere presence at the scene of the crime is not sufficient to corroborate accomplice testimony, but it may tend to connect the accused to the crime when coupled with other suspicious circumstances. See Malone v. State , 253 S.W.3d 253, 257 (Tex.Crim.App. 2008). In Brown v. State , No. AP-75,294, 2008 Tex. Crim. App. LEXIS 852, at **6-8 (Tex.Crim.App. Sept. 24, 2008), for example, evidence including witness statements, the defendant's unusual conduct, and the defendant's admission that he was present at the scene of the offense was sufficient to corroborate accomplice testimony that the defendant had committed a murder. We view the evidence in the light most favorable to the jury's verdict. See Gill v. State , 873 S.W.2d 45, 48 (Tex.Crim.App. 1994). In that light, the evidence in this case goes beyond simply placing Appellant at the scene of the offense. He had Easter's blood on his clothing, gave the authorities incomplete information, and made an admission to a fellow inmate. This nonaccomplice evidence tends to connect Appellant to the crime. Accordingly, we overrule Appellant's first issue.
Right to Counsel
In his second issue, Appellant argues that the trial court erred in allowing the jury to hear that he had invoked his right to counsel and his right to remain silent after being read his rights.Facts
Deputy Blackwell testified that he interviewed Appellant, and he authenticated a statement that Appellant wrote during the interview. Appellant wrote his statement on a preprinted form that included a section advising him, among other things, that he had the right to have a lawyer appointed to advise him prior to and during questioning. By marking in the appropriate place on the form, Appellant acknowledged that he was waiving his right to a lawyer before or during questioning. The State asked Blackwell why Appellant did not write more in his statement. Appellant's counsel objected on the grounds that he anticipated the answer to the question would be that Appellant "exercised his right to request a lawyer" and that such evidence should not be admitted. The trial court overruled the objection, and Blackwell testified that Appellant said "he wouldn't say anything else until he had a lawyer."Applicable Law and Analysis
Appellant did not preserve his present complaint that the trial court erred by allowing testimony about his invocation of his right to remain silent. To preserve a complaint for appellate review the party must make a timely request, objection, or motion stating the grounds of the objection with sufficient specificity that the trial court is aware of the complaint. Tex. R. App. P. 33.1(a). An objection to a comment on postarrest silence must be made at the time the evidence is offered. See Wheatfall v. State , 882 S.W.2d 829, 836 (Tex.Crim.App. 1994). Appellant did not object to the evidence on the grounds that the jury should not hear that he had invoked his right to remain silent, and so that complaint is not preserved for appellate review. Id. Appellant did object to the admission of his invocation of his right to counsel. Such evidence is inadmissible if the person is under arrest or has been given Miranda warnings. See Doyle v. State , 426 U.S. 610, 618, n. 9, 96 S. Ct. 2240, 2245, n. 9, 49 L. Ed. 2d 91 (1976); Griffith v. State , 55 S.W.3d 598, 605-06 (Tex.Crim.App. 2001) ("We therefore hold that evidence of one's invocation of the right to counsel is inadmissible as evidence of guilt."); Hardie v. State , 807 S.W.2d 319, 322 (Tex.Crim.App. 1991); see also Tex. Code Crim. Proc. Ann. art. 38.38 (Vernon 2005) ("Evidence that a person has contacted or retained an attorney is not admissible on the issue of whether the person committed a criminal offense."). However, the erroneous admission of evidence is harmless when the same evidence is admitted elsewhere in the trial. See Saldano v. State , 232 S.W.3d 77, 102 (Tex.Crim.App. 2007) (citing Leday v. State , 983 S.W.2d 713, 717-18 (Tex.Crim.App. 1998)). In this case, Appellant caused the same evidence to be admitted in the trial. While cross examining Ranger Young, Appellant asked the following questions:Q: He says he wants to talk to a lawyer, and you think he's a murderer because of that?
. . . .
Q: . . . he says he wants to see a lawyer, and that makes him guilty in your eyes?These questions reintroduced, as an implicit answer to the questions asked, the fact that Appellant had invoked his right to counsel. Appellant also introduced part of an article that contained an interview with him. In the interview, Appellant says that the deputy brought Alex's statement in to him and that Appellant read some of the statement and "told him that I wanted to see an attorney, a lawyer." Portions of the article were redacted, but Appellant did not seek to redact the reference in the article to his invocation of his right to counsel. Accordingly, any error admitting evidence that Appellant had invoked his right to counsel is harmless because Appellant introduced the same evidence. We overrule Appellant's second issue.