Opinion
No. 05-09-00775-CR.
Opinion Filed January 31, 2011. DO NOT PUBLISH TEX. R. APP. P. 47.
On Appeal from the Criminal District Court No. 6, Dallas County, Texas, Trial Court Cause No. F09-00262-K.
Before Justices BRIDGES, O'NEILL, and RICHTER.
OPINION
Appellant was charged by indictment with the offense of capital murder during the course of committing or attempting to commit a robbery. Appellant pled not guilty and a jury convicted him of the lesser included offense of felony murder and sentenced him to thirty-five years' imprisonment. In three issues on appeal, appellant argues there is insufficient evidence to support his conviction and the trial court erred because there was a variance between the charge at the guilt/innocence phase of trial and the charge at the punishment phase of trial. Concluding appellant's arguments are without merit, we affirm the trial court's judgment.
Sufficiency of the Evidence
In his first two issues, appellant challenges the legal and factual sufficiency of the evidence to support his conviction for felony murder. The Texas Court of Criminal Appeals has overruled Clewis v. State, holding that the Jackson v. Virginia standard is the only standard a reviewing court is to apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010) (plurality op.) This standard requires the reviewing court to determine whether, considering all of the evidence in the light most favorable to the verdict, the jury was rationally justified in finding guilt beyond a reasonable doubt. Id. at 899 (citing Jackson v. Virginia, 443 U.S. at 319). We defer to the jury's determinations of the witnesses' credibility and the weight to be given their testimony because the jury is the sole judge of those matters. Id. Therefore, we will conduct a single review of appellant's sufficiency complaints under the Jackson standard. Appellant contends the evidence is insufficient to support his conviction because the evidence does not establish that there was a robbery or attempted robbery and there was "no nexus between any robbery attempt and . . . the killing of [the victim]." Specifically, appellant argues the evidence is insufficient to show that the robbery or attempted robbery was anything more than an afterthought. Appellant also argues that the evidence is insufficient because the testimony of his accomplice was not corroborated. We are not persuaded by these arguments. To prove that appellant committed felony murder, the State was required to show that appellant "committed or attempted to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, committed or attempted to commit an act clearly dangerous to human life that caused the death of an individual." Tex. Penal Code Ann. § 19.02(b)(3) (West 2003). The underlying offense charged here was robbery. An individual commits the offense of robbery if, "in the course of committing theft . . . and with intent to maintain control of the property, he intentionally, knowingly, or recklessly causes bodily injury to another." See Tex. Penal Code Ann. § 29.02 (a)(1) (West 2003). Theft occurs when an individual unlawfully appropriates property with the intent to deprive the owner of the property. See Tex. Penal Code Ann. § 31.03(a) (West Supp. 2009). The evidence adduced at trial showed that on April 16, 2007, Morris Fuller encountered Shawn Evans driving a truck around the Park Square apartments looking for a man named Isreal Jimenez. Evans gave Fuller his business card and a small baggie of cocaine in an effort to enlist Fuller's assistance in locating Jimenez. Fuller encountered Evans again that evening before he had an opportunity to deliver the business card to Jimenez. Fuller subsequently informed appellant that Evans was looking for Jimenez, and the two began to look for Jimenez. While looking for Jimenez, Fuller and appellant generally discussed "hitting a lick." Later that evening, appellant and Fuller encountered Antwon Douglas. After a brief conversation, appellant, Fuller, Douglas, and another friend headed to an Irving apartment complex to pick up some clothing and other items. As the group headed back to the Park Square apartments, Fuller pulled out a small .25 or .380 handgun and fumbled with it before handing it to appellant. Fuller was wearing gloves because he did not want to leave fingerprints on the gun. After the group arrived at the Park Square apartments, appellant revealed that he and Morris planned to hit a lick on "two drug-dealing esses." After discussing the details, appellant and Fuller insisted they would "draw down," or pull a weapon if necessary. Fuller invited Douglas to participate in the robbery, but he declined and left. The next morning, Fuller and appellant spoke with Jimenez and gave him Evans' business card. Appellant and Fuller inquired about Jimenez's interest in participating in the robbery, but he declined. Fuller went to work, and when he returned, he and appellant discussed in detail their plan for "hitting a lick" on Evans. Fuller testified that they hoped to acquire both money and cocaine. Fuller and appellant also discussed the fact that Evans' propensity to be conned out of money would make him an easy mark. During the conversation, appellant stated that he would shoot Evans if he did not cooperate. The plan was set in motion by informing Evans by telephone that they had located Jimenez at the Park Square apartments. Evans and his friend Jimmy Turner drove to the Park Square Apartments. Turner observed that Evans brought a .45 Ruger and a .357 revolver, and asked what was going on. Evans told him he had enlisted Fuller's assistance in locating Jimenez, who owed his fiancee $220 from a drug deal. When Evans arrived at the apartment complex, Fuller asked if appellant could ride with them since he knew the directions to Jimenez's location. Evans agreed, and Fuller and appellant got into the car. Evans offered appellant and Fuller fifty dollars each, beer, and cocaine in exchange for their assistance in locating Jimenez. Following a stop at Evans' residence to retrieve the beer and cocaine, the group drove to the Lakeview apartments. When they arrived, appellant instructed Evans to park the vehicle. Appellant then stepped out of the vehicle and appeared to be talking to Jimenez on his cell phone. When he returned to the vehicle, appellant asked Evans what he would do if Jimenez came out "trippin," and Evans responded that he had a .357 revolver in the vehicle. At that juncture, appellant reached into his front pocket, pulled out a revolver, and exclaimed "We got guns too [explative], give us your wallets." Appellant demanded that Evans hand over his gun and a struggle ensued, with appellant ultimately gaining control of the gun. In the meantime, Turner gained control of Fuller's gun, and tried to fire without success. Fuller alerted appellant and appellant fired three shots — into Evans' upper body, into Turner's abdomen, and again into Evans' upper body. Appellant and Fuller then fled the scene with cocaine, Evans' .357 revolver, Turner's .45 automatic and appellant's revolver. When Dallas police officers arrived at the scene, they observed Evans and Turner in a burgundy Lincoln Continental. Evans, suffering from gun shot wounds to the chest, was slumped over in the driver's seat. Turner, suffering from a gun shot wound to the lower abdomen, was in the front passenger seat. An initial search of the vehicle revealed a .25 Beretta handgun. The officers received information that two African American males — later identified as appellant and Fuller — were seen running from the scene, but the officers were unable to locate them. Evans died as a result of the injuries he sustained from multiple gunshot wounds. While the police were on the scene, Douglas was working in the Lakeview leasing office and noticed the commotion. When Douglas went outside to the back of the complex, he saw Evans in the driver's seat of the vehicle and Turner sitting outside the vehicle. Douglas began to think about who may have been involved in the shooting. The next day, Douglas voluntarily met with Detective Scott Sayers, the lead detective on the case. During the meeting, Douglas reported that appellant and Fuller may have been involved in the shooting, and disclosed the conversation and interaction he had with appellant and Fuller the previous evening, including the discussion about "hitting a lick." Detective Sayers also spoke with Turner on two separate occasions. As reflected in the notes memorializing his investigation, Detective Sayers learned that appellant had demanded the victims' guns and wallets. Turner also testified to these facts. Fuller also gave a statement to Detective Sayers. At trial, however, he testified that his statement was composed to insulate him from any involvement in the matter. The jury was instructed that Fuller was an accomplice as a matter of law. The evidence also showed that when appellant was arrested, his father consented to a search of the apartment. During the search, the police discovered .357 ammunition, a .357 Magnum revolver, and a .40 Smith Wesson pistol. During trial, a firearm and toolmark examiner testified that given the characteristics of the bullets recovered and the fact that no casings were found at the scene, the type of gun used to fire the shots that killed Evans was a revolver. Having reviewed the record before us, we reject appellant's contention that the evidence only showed the robbery was an afterthought. To the contrary, the evidence reflects that appellant, with the specific intent to commit a robbery, crafted a plan to take money and drugs from Evans, and in attempting to effectuate that plan, shot and killed Evans. Likewise, we reject appellant's argument that the evidence is insufficient because Fuller's accomplice testimony was not corroborated. In support of his argument, appellant claims to have discredited both the accomplice's and Turner's account of events, and insists the "more reliable accounts were of an assaultive shoot out and not a robbery." Appellant's argument, however, is not consistent with the standard under which accomplice testimony is reviewed. In Texas, a conviction cannot be secured upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant to the offense. Tex. Code Crim. Proc. Ann. art. 38.14 (West 2005); Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001); Cao v. State, 183 S.W.3d 707, 710 (Tex. App.-Houston [1st Dist.] 2005, pet. ref'd). When conducting our review, we eliminate the accomplice testimony from consideration and examine the remaining portions of the record to determine if there is any evidence that tends to connect the accused with the commission of the crime. Castillo v. State, 221 S.W.3d 689, 691 (Tex. Crim. App. 2007). In reviewing the specific facts of each case to determine whether evidence is sufficient to corroborate accomplice witness testimony, even insignificant circumstances may satisfy the tends-to-connect standard. See Cantelon v. State, 85 S.W.3d 457, 461 (Tex. App.-Austin 2002, no pet.). Evidence is insufficient if it shows merely that an accused was present during the commission of the offense. See Tex. Code Crim. Proc. Ann. art. 38.14; Solomon, 49 S.W.3d at 361. But evidence of such presence, coupled with other "suspicious circumstances" may tend to connect the accused with the crime. McAfee v. State, 204 S.W.3d 868, 872 (Tex. App.-Corpus Christi 2006, pet. ref'd). Although evidence that tends to connect an accused to an offense may not be sufficient for a conviction, the evidence need not rise to such a high threshold for purposes of corroboration under the prevailing standard. See Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994). Because our corroboration analysis excludes the accomplice testimony, the fact that Fuller, the accomplice, may have been discredited or unreliable is immaterial. Absent the testimony of Fuller, the evidence salient to the issue consisted of testimony given by Douglas and Turner. Douglas described his interaction and conversation with appellant and Fuller on the night of the offense, including appellant's statement that he planned to "hit a lick" on two drug-dealing "esses." Turner, after identifying appellant as the shooter in open court, testified that appellant drew his weapon while exclaiming "We got guns too [expletive], give us your wallets." Thus, even without Fuller's accomplice testimony, there was sufficient evidence tending to connect appellant to the offense of robbery. Accordingly, we conclude the evidence was sufficient to support appellant's conviction for felony murder. Appellant's first two issues are overruled.Charge Error
In his third issue, appellant argues that the punishment is a nullity because the charge option at the punishment phase read "murder" rather than "felony murder." Because the charge was submitted without objection, reversal is required only where there is egregious harm. See Woodard v. State, 322 S.W.3d 648, 658 (Tex. Crim. App. 2010) (citing Almanza v. State, 686 S.W.2d 157, 171-72 (Tex. Crim. App. 1985) (op. on reh'g)). "Errors which result in egregious harm are those which affect the very basis of the case, deprive the defendant of a valuable right, or vitally affect a defensive theory." Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996). Here, even if there was charge error, there was no egregious harm. Appellant does not identify how the alleged error deprived him of a valuable right or in any way affected a defensive theory, and our review of the record does not support such a conclusion. Despite the omission of the word "felony" from the description of the offense appellant was found guilty of having committed, the jury was correctly charged as to the proper range of punishment for felony murder. Thus, there is no basis for concluding appellant suffered egregious harm. Appellant's third issue is overruled. Having resolved all of appellant's issues against him, we affirm the trial court's judgment."Hitting a lick" is street jargon for robbery.
Douglas understood the term "esses" as a reference to Hispanic men.
"Trippin" is street jargon for combative.
An accomplice as a matter of law is one who is susceptible to prosecution for the offense with which the accused is charged or a lesser-included offense. See Paredes v. State, 129 S.W.3d 530, 536 (Tex. Crim. App. 2004).
Specifically, the charge read: "We the jury, having found the defendant, Tracy Lamont Johunkin, guilty of the offense of murder, as included in the indictment, assess his punishment at — — years confinement in the Institutional Division of the Texas Department of Corrections and a fine of $ — — ."