Opinion
NUMBER 13-15-00463-CR
04-20-2017
ORVILLE CLAY RUSSELL, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 253rd District Court of Liberty County, Texas.
MEMORANDUM OPINION
Before Justices Contreras, Benavides, and Longoria
Memorandum Opinion by Justice Benavides
The State indicted appellant Orville Clay Russell (Russell) for the murder of his estranged wife Angela Deanne Russell (Angela), a first-degree felony. See TEX. PENAL CODE ANN. § 19.02 (West, Westlaw through 2015 R.S.). Russell pleaded not guilty and was tried before a jury, which found him guilty as charged and sentenced him to seventy- five years' imprisonment with the Texas Department of Criminal Justice—Institutional Division. By two issues on appeal, Russell asserts that (1) the trial court erred by denying his motion to suppress; and (2) the evidence is insufficient to support his conviction. We affirm.
I. BACKGROUND
This appeal was transferred from the Ninth Court of Appeals pursuant to a docket equalization order issued by the Texas Supreme Court. See TEX. GOV'T CODE ANN. § 73.001 (West, Westlaw through 2015 R.S.).
Angela Russell went missing on or about December 18, 2014, after spending the day celebrating the births of her twin grandchildren. Angela's daughter, Amanda, testified that she, Angela, and her father (Russell), had visited Amanda's brother, his wife, and the newborns that evening at the hospital before heading to dinner at Denny's restaurant. According to Amanda, at the time, Angela and Russell had been estranged and separated for approximately one year.
Amanda recalled that later at dinner, Russell told Angela that "he had a surprise for her" at his house, to which Angela replied "What? My divorce papers?" After dinner, Angela dropped off Amanda at a home where they were both staying and told her that she was going to Russell's home. Amanda testified that she later received a call from her mother sometime "after 8:00, 9:00, somewhere between there" to notify her that she had arrived at Russell's home. Amanda next received a text message from her mother's cell phone at 1:20 a.m. stating, "Tell your dad and everybody else I'm gone. I'm so tired of all this." Amanda replied back to her mother's text, but received no response. The next morning, Amanda discovered that her mother was not home, so she called her repeatedly on her cell phone, but, again, received no response. Amanda, who was in high school at the time, then called Russell, who picked her up that morning and took her to school.
After two days, Amanda and her aunt, Peggy Stewart, filed a missing person's report with the Montgomery County Sheriff's Office. Amanda testified that she and her aunt created missing-person flyers with Angela's photo and descriptive information on it, including that she was last seen driving a 2008 white Ford Taurus and needed to take her medication. Amanda told jurors that her mother enjoyed shooting pool and carried with her a pair of custom billiard sticks and custom case for those sticks, which had her name, address, and phone number on it. Amanda recalled that she last saw Angela's pool sticks in the trunk of Angela's car. Amanda also recalled that her mother had a purse the night that she went missing.
Russell's friend, William Lynn Jones, testified that in December of 2014, he had traded a .22-caliber pistol to Russell in exchange for a 9-millimeter pistol, after Russell told him that he wanted to use the .22 pistol "to shoot some dogs." A short time after trading pistols, Russell returned to Jones's residence to drop off some pool sticks and a woman's purse, with instructions to burn the items. At trial, Jones positively identified Angela's custom pool stick case as "the one I was supposed to burn" for Russell. Jones told jurors that he burned the contents of the purse and gave the empty purse to a friend as a gift. Without recalling a specific date or timeframe, Jones also told jurors that he caravanned with Russell to a truck stop near Huntsville. According to Jones, Russell drove a 2008 white Ford Taurus to the truck stop, parked it, and returned in Jones's vehicle, while leaving the Ford Taurus behind at the truck stop. After Angela went missing, Jones eventually called the police to tell them about the items that Russell had left with him to burn. Police eventually located a burn pile on Jones's property and recovered a metal identification plate that had Angela's name, address, and phone number. Additionally, police recovered two pool sticks from Jones's residence (one which had Angela's name on the stick), two shovels, and a leather case. Lastly, police were able to recover a purse, identified as Angela's purse, from an individual who said that it was gifted to her by her daughter "around Christmastime" in 2014. According to the individual, her daughter told her that she had received the purse from Jones.
Detective Christopher Evans of the Montgomery County Sheriff's Office testified that his office received notice on December 29, 2014 that Angela's 2008 white Ford Taurus had been found at The Hitching Post truck stop near Huntsville and was towed to a local wrecker yard. Detective Evans obtained a warrant to search Angela's car, but was unable to recover any evidence from the vehicle. Detective Evans also obtained a search warrant for Angela's phone records, which revealed that her phone had not made any phone calls after December 19, 2014, but had "pinged off . . . cell towers" indicating that her phone was on and moving after December 19, 2014. Toward the end of January of 2015, Detective Kenneth Dagle of the Montgomery County Sheriff's Office received information of a body that was found and unearthed at the Highway 105 Bypass, between F.M. 1010 and U.S. Highway 59. Jurors learned that the body found was Angela's.
Russell's daughter, Tristin, testified that shortly after Russell's arrest, she visited Russell in jail along with her brother Colton. Tristin testified that during the visits, she and her brother communicated with Russell through a telephone receiver, separated by a pane of glass. Tristin testified that the communication system alerted both parties that the communication would be recorded. The State then played a copy of this conversation for the jury. Tristin testified that during her conversation with her father, he admitted to killing Angela.
The actual recording was not made a part of the appellate record, and was unavailable for our review. However, the State provided written transcriptions of excerpts of the recordings in its brief.
The jury found Russell guilty as charged and sentenced Russell to seventy-five years' imprisonment, after Russell pleaded true to five previous felony convictions. See id. § 12.42(d) (West, Westlaw through 2015 R.S.) This appeal followed.
II. MOTION TO SUPPRESS
By his first issue, Russell asserts that the trial court erred by "failing to suppress his confession and the fruit of the [illegally] obtained confession after a request for an attorney had been made." After reviewing Russell's brief, the State's response, and the record in this case, we are puzzled by Russell's argument on this issue.
These are the relevant facts: before any evidence was received by the jury at trial, the trial court held a hearing on Russell's motion to suppress his confession to police and subsequent evidence collected as a result of that confession. At the hearing, the trial court heard evidence that police arrested Russell "sometime after 2 o'clock in the morning" on January 24, 2015 based on an arrest warrant for Angela's murder. Detective Kenneth Bivens and Ranger Wesley Doolittle then proceeded to interview Russell at 2:20 a.m. At approximately 3:45 a.m., Russell told Detective Bivens and Ranger Doolittle "I want a lawyer." Despite this request, Detective Bivens and Ranger Doolittle continued to interview him until "after 7 o'clock" in the morning. After the interview ended, Detective Bivens and Ranger Doolittle began the process to book Russell at the Montgomery County jail, when Russell asked for a private meeting with Detective Bivens and Ranger Doolittle.
According to Detective Bivens, Russell requested to speak to his son who was in the military, and if allowed to call his son, he would identify on a map the location of Angela's body. Police obliged Russell's request, and Russell circled on a map where Detective Bivens and Ranger Doolittle could find Angela's body. Russell next requested to personally speak to the Montgomery County District Attorney, Brett Ligon. Ranger Doolittle complied with Russell's request, and after that meeting, which was not recorded, Russell rode with Detective Bivens and Ranger Doolittle to provide them with "turn-by-turn directions" to the location of Angela's body. According to Detective Bivens, Russell admitted to shooting Angela "three or four" times with a .22 caliber pistol.
After successfully locating Angela's body, Russell then told police that he would show them "where the gun and Angela's cell phone and some other items were thrown into Lake Livingston." Detective Bivens testified that Russell told them that he had disposed of a .22 caliber pistol, bullets, and Angela's cell phone in the lake. After this, Detective Bivens booked Russell in the Montgomery County jail at 3:30 p.m.
In making its ruling on Russell's motion, the trial court made two relevant conclusions of law: (1) Detective Bivens and Ranger Doolittle violated Russell's Miranda rights during the interrogation when he requested an attorney at 3:45 a.m.; and (2) the information received by Detective Bivens and Ranger Doolittle from Russell was obtained through actual coercion. See Baker v. State, 956 S.W.2d 19, 22-23 (Tex. Crim. App. 1997) (en banc) (holding that the "fruit of the poisonous tree" doctrine requires suppressing the fruits of a defendant's statement only when the statement was obtained through actual coercion). As a result of these conclusions, the trial court suppressed: (1) recordings of Detective Bivens and Ranger Doolittle's interrogation of Russell; (2) any evidence related to the finding of Angela's body; (3) the autopsy report regarding Angela's cause of death; (4) a recovered .22 bullet casing; and (5) evidence regarding the recovery of Angela's cell phone from Lake Livingston.
On appeal, Russell contends in a short, one-paragraph argument that the trial court erred by denying the suppression of Russell's confession to police and fruits obtained from this confession. However, the record shows that the trial court suppressed such evidence now complained about on appeal. Furthermore, the State concedes on appeal that this evidence was suppressed and was not considered by the jury at trial. Accordingly, we overrule Russell's first issue as moot.
The following is the entirety of Russell's argument, as published in his brief:
By his first issue, Appellant argues that the Trial Court erred by failing to suppress his confession and the fruit of the illegal obtained confession after a request for an attorney had been made. It is well settle[d] law that officers should not continue to interrogate a suspect after a request for an attorney has been made. In this case at hand no conversation was reinitiated by appellant.
Additionally, we note that Russell does not brief or specifically assert that the conversations recorded at the jail between himself and his children should have been suppressed, and accordingly, we will not address them in our analysis. See TEX. R. APP. P. 47.1; see also id. R. 38.1(i) ("[Appellant's] brief must contain clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.").
III. SUFFICIENCY CHALLENGE
By his second issue, Russell contends that the evidence is insufficient to support his conviction for murder.
A. Standard of Review
In reviewing sufficiency of evidence to support a conviction, we consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013); Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)); see Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.). In viewing the evidence in the light most favorable to the verdict, we defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given to their testimony. Brooks, 323 S.W.3d at 899. It is unnecessary for every fact to point directly and independently to the guilt of the accused; it is enough if the finding of guilt is warranted by the cumulative force of all incriminating evidence. Winfrey, 393 S.W.3d at 768. In our sufficiency review, direct and circumstantial evidence are treated equally—that is, circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
The elements of the offense are measured as defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). Such a charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried. Id.
Under a hypothetically correct jury charge in this case, Russell is guilty of murder if he intended to cause serious bodily injury and committed an act clearly dangerous to human life that caused Angela's death. See TEX. PENAL CODE ANN. § 19.02(b)(2).
B. Discussion
The record shows that the last time anyone heard from Angela alive, she had just arrived at Russell's home. Furthermore, Russell's friend, Jones, testified that in December 2014, he traded his .22-caliber pistol with Russell for Russell's 9-mililmeter pistol because Russell said he was going "to shoot some dogs." Jones further told jurors that in December of 2014, Russell asked Jones to burn some items for him, including custom pool sticks, a custom pool-stick carrying case, and a purse. During their investigation, police recovered these items either in a partially burned state or undisturbed, and all of the recovered items were identified as belonging to Angela. Jones also testified that he followed Russell to The Hitching Post truck stop in Huntsville to drop off a 2008 white Ford Taurus, which police later recovered and identified as Angela's vehicle.
Lastly, jurors heard excerpts of recordings of conversations between Russell and his children, Colton and Tristin, while Russell was incarcerated at the Montgomery County jail. In these recordings, Russell admitted to shooting Angela "once in the chest and twice in the head" and then burying her body, after Angela became agitated with him and began to hit him. Russell further admits he took and parked Angela's car in Huntsville with Jones's assistance. In one of the excerpts, Russell told Colton that Jones is the one that "ratted" him to the police.
Accordingly, after considering all of this evidence in the light most favorable to the verdict, based on that evidence and reasonable inferences therefrom, we conclude that a rational fact finder could have found beyond a reasonable doubt that Russell murdered Angela. See Winfrey, 393 S.W.3d at 768; see also TEX. PENAL CODE ANN. § 19.02(b)(2). We overrule Russell's second issue.
IV. CONCLUSION
We affirm the trial court's judgment.
GINA M. BENAVIDES,
Justice Do not publish.
TEX. R. APP. P. 47.2 (b). Delivered and filed the 20th day of April, 2017.