Opinion
No. 05-07-01496-CR
Opinion issued June 29, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 401st Judicial District Court Collin County, Texas, Trial Court Cause No. 401-83185-06.
Before Justices MORRIS, WRIGHT, and MOSELEY.
OPINION
A jury convicted Ronnie Jene Shy, II of capital murder. He now complains on appeal that the evidence against him is factually insufficient and fails to sufficiently corroborate accomplice witness testimony in the case. He further complains the trial court erred in admitting extraneous offenses into evidence and in granting the State's challenge of a prospective juror. Concluding appellant's arguments are without merit, we affirm the trial court's judgment.
Factual Background
In 1990, the deceased's body was found in a deserted area in Wylie, Texas where people sometimes do target shooting. He had been killed by single contact shotgun wound to the back of his head. His abandoned car was discovered in a field in Plano, Texas less than a mile from appellant's home. The stereo from the car was missing. Police found a notebook in the car containing a to-do list including the item "Go see Cinnamon." Nearly sixteen years later, Cinnamon Nemec admitted to her involvement in the crime after police told her they had evidence that put her at the scene. Another woman, Cynthia Schobert, admitted to her involvement in the crime shortly after Nemec confessed. Both women claimed appellant had been the person who actually killed the deceased, who was twenty years old at the time of his death. Nemec had been involved with the deceased to the extent that before his death he had bailed her out of jail following her arrest for failing to pay an expired-vehicle-inspection ticket. She knew he was attracted to her, but she was mostly involved with appellant. Schobert knew the deceased because he had accepted $3,000 from Schobert's boyfriend and some of their associates to purchase drugs for resale. After the transaction, the deceased never purchased the drugs, and Schobert's boyfriend was arrested and jailed. Schobert was pregnant with her boyfriend's child at the time of the arrest. Schobert and her peers suspected that the deceased had turned Schobert's boyfriend in to police. They were aware that after the transaction the deceased had purchased an expensive stereo for his car. Appellant was not a part of the drug transaction. One of the deceased's friends testified that, before the deceased's murder, he was aware the deceased had come into a "lump sum of money" that "had to do something with [appellant] and the little clique they were all dealing with." Police testimony established that the deceased had gotten in touch with the Richardson Police Department shortly before his death. An officer there wanted to question Schobert's boyfriend about a burglary and an outstanding warrant for credit card abuse. The deceased told the officer the location where Schobert's boyfriend was living at that time. He offered to take police to the apartment, but he said he did not want anyone to know that he was an informant in the case. Three officers accompanied the deceased to the apartment. The deceased pointed out the apartment where Schobert's boyfriend was living and then left the scene. The officers entered the apartment and found Schobert's boyfriend hiding under a bed. They arrested him at that time. Days later, the deceased called police saying that he was worried Schobert and her associates had found out he had gone to the police. The deceased was afraid for his life. Nemec testified that on the day of the deceased's murder, appellant — her former boyfriend — told her to call the deceased and ask him to come to her Dallas apartment that night. She made the call from appellant's parents' house. Nemec explained that she was "having trouble extricating [herself] from the relationship" with appellant. That evening, Nemec, Schobert, and appellant were at Nemec's apartment when the deceased arrived. Appellant was armed with a shotgun and a handgun. When the deceased entered the apartment, appellant punched the deceased in the face and forced him to the floor. He held his knee against the deceased so the deceased could not get up. Nemec stood a few yards away holding the handgun. Appellant ordered Nemec and Schobert to get something to tie the deceased's hands. Schobert returned from Nemec's bedroom with a black leather belt and she or appellant tied the deceased's hands. At dusk, the group walked the deceased out to his car, and Nemec followed appellant's instructions to drive the group where she and appellant had been target shooting and camping in the past. When they got to the location, appellant and the deceased left Nemec and Schobert in the car and walked until they disappeared from view. Nemec and Schobert claimed at trial they then heard a shot. Afterward, appellant returned alone and got into the car. He told Nemec to drive to his parent's house, so she did. Once they were in his bedroom, appellant told the two women that if they were questioned by police, they were to say that they had gone to Flagpole Hill in Dallas with appellant and the deceased to listen to the stereo in the deceased's car. Once they got there, according to the story, there was an argument and appellant called friends to pick him up from there. Then, they were to say, the deceased took Nemec and Schobert back to Nemec's apartment. After the women agreed to the story, Nemec went home to her apartment. She later discovered that appellant and a friend had stolen the stereo out of the deceased's car. At trial, Schobert corroborated Nemec's version of the events from the night of the murder. She testified that when appellant returned to the deceased's car after the shooting, he told the women he had asked the deceased if he believed in God and then said, "[Y]ou're going to meet him." Nemec claimed that after the murder, appellant went through the deceased's wallet as she was driving to appellant's house. He discovered the business card of a Richardson police officer and showed it to Schobert. Then one of them said something to the effect of "at least it wasn't for nothing." In addition, Nemec claimed appellant told her that it was easy for him to kill the deceased because "I pictured him doing you." Not long after the murder, appellant gave a voluntary statement to police claiming a man named Christopher Davis (who had participated in the drug transaction with the decased) had told him that Davis and Schobert were going to "take care of the situation" between the deceased and Schobert's boyfriend "within the next few days." He further claimed that Davis had told him several places where Davis was thinking of abandoning the deceased's car, including the location where it was actually found. In the statement, appellant claimed that after he met with the deceased, Nemec, and Schobert at Nemec's apartment on the night of the murder, the three had gone together to Flagpole Hill to listen to the deceased's car stereo. He further claimed he had walked away from an argument between the deceased and Nemec at Flagpole Hill and called a friend to pick him up. According to appellant's statement, he saw Nemec and Schobert at his house a couple of hours later. He claimed the women told him that they had continued arguing for about ten more minutes before the deceased dropped them off at Nemec's home. After Nemec and Schobert left his house at approximately 3:00 a.m. the next morning, appellant "got to thinking about" how Davis had talked about killing the deceased. Approximately one hour later, he and a friend went to the field where Davis had allegedly told appellant he might get rid of the deceased's car. Appellant claimed he found the car there with the "back deck lid . . . ajar." Appellant then admitted in his written statement that he removed the stereo from the car along with three CDs and a pack of cigarettes. Appellant claimed he learned the deceased was dead only when Nemec told him. When he was questioned by officers investigating the murder, appellant brought the deceased's stereo equipment to the Wylie Police Department. Nemec and Schobert continued to tell police the Flagpole Hill story from one week after the 1990 murder until 2006 when they finally confessed. Nemec claimed she had refused to confess in part because of her fear of the legal consequences of her acts and in part because of her fear of what appellant would do if he discovered she had confessed. She claimed appellant had been physically abusive to her during their relationship. Nemec admitted she had seen appellant a "handful" of times since the murder, including attending each other's weddings. Following her confession, Nemec was indicted only for murder rather than capital murder. She had not been tried at the time of appellant's trial. Schobert, who had been indicted for capital murder, also had not been tried at the time of appellant's trial. In 2004, police submitted three strands of hair from the deceased's hand for updated DNA analysis. The testing revealed that one of the strands of hair was sufficiently similar to Nemec's DNA that it could have belonged to one of her female relatives. The hair was not linked to Nemec. Nemec's fingerprint was found inside the deceased's car.Discussion
In his first issue, appellant complains the evidence against him is factually insufficient to support his capital murder conviction. He specifically complains there is no evidence linking him to the crime aside from "the testimony of the two individuals who had the motive and orchestrated the murder." In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury's verdict of guilt was rationally justified. See Lancon v. State, 253 S.W.3d 699, 705 (Tex.Crim.App. 2008). We determine whether (1) the proof of guilt is so obviously weak as to undermine confidence in the jury's verdict, or (2) the proof of guilt, even if sufficient standing alone, is greatly outweighed by contrary proof. See Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). Unless the record clearly reveals a different result is appropriate, we must defer to the jury's determination concerning what weight to give contradictory testimony. Lancon, 253 S.W.3d at 705. We afford almost complete deference to a jury's decision that is based upon an evaluation of credibility. See id. Here, the testimony of Nemec and Schobert established the facts of the capital murder. We must defer to the jury's determination of their credibility. See id. In addition, appellant's statement to police offered the same "Flagpole Hill" story that Nemec and Schobert claimed appellant had devised as the group's version of the events of that night. Appellant admitted he had been with the deceased and with Nemec and Schobert on the night of the murder. He stole the stereo from the deceased's car. And he told police he got the idea to steal the stereo in the early morning hours following the night the deceased was last seen when he suddenly recalled another man's incomplete plan to kill the deceased and abandon his car at the very location where appellant found it. Having reviewed the entire record, we conclude the evidence is factually sufficient to support appellant's conviction for capital murder. We resolve his first issue against him. In his third, related issue, appellant complains the evidence in his case is insufficient to corroborate the testimony of Nemec and Schobert, the two accomplice witnesses. He contends the deceased's attraction to Nemec, Nemec's fingerprint in the car, and the hair containing the DNA of one of Nemec's relatives combined with the deceased's stealing money from Schobert's boyfriend and turning him in to police show that only Nemec and Schobert, and not appellant, were responsible for the deceased's murder. Under article 38.14 of the Texas Code of Criminal Procedure, a conviction cannot stand on accomplice testimony unless it is corroborated by other evidence tending to connect the defendant with the offense. Cathey v. State, 992 S.W.2d 460, 462 (Tex.Crim.App. 1999). To weigh the sufficiency of corroborative evidence, we eliminate from consideration the testimony of any accomplice witnesses and examine the remaining evidence to ascertain whether there is evidence that tends to connect the accused with the commission of the offense. The non-accomplice evidence need not be sufficient in itself to establish the accused's guilt beyond a reasonable doubt or to directly link the accused to the commission of the offense. See Hernandez v. State, 939 S.W.2d 173, 176 (Tex.Crim.App. 1997). In appellant's case, his statement to police established that he was with both the deceased and the two accomplices near the time of the murder. He also admitted stealing the deceased's car stereo shortly after the time of the murder. The car itself was found less than a mile from appellant's parent's house. We conclude this evidence tends to connect appellant with the capital murder. We therefore resolve his third issue against him. In his second issue, appellant complains the trial court abused its discretion in permitting the State to put on evidence showing extraneous offenses committed by appellant against Nemec. The State offered the evidence to show why Nemec went through with the crime and why she did not tell the police the truth about what they had done. Nemec's testimony specifically showed that appellant had threatened her in the past with his fists, with a gun, and with a car and had also kicked her. Before Nemec testified about the previous violence in front of the jury, the trial court instructed the jury as follows,. . . the testimony that you are about to hear is admissible for a limited purpose. And since it's only admissible for a limited purpose, I have to tell you what you can use it for and what you can't use it for.
It is admissible to describe the nature of the relationship, if there was one, between this witness and the Defendant, Mr. Shy; and to assist the jury, if it does, in understanding the actions, if any, of this witness after the events she has testified to, if those events occurred, and for no other purpose.Nemec explained that six months to one year before the murder, she and appellant had gone out for a drive and got into an argument. She testified, "And he was pushing me and yelling at me while driving and the car stalled, and I jumped out and ran. And he got the car going again and he chased me with the car and came up behind me. It was very weedy, and the car stalled again, and I turned and ran in a different direction and hid." When questioned about the gun incident, Nemec stated,
We were at [appellant's] — the house that he lives in with his family, his mom and brother. And we were arguing, and he pushed me against a wall, and I hit the wall and fell down. And I was scared that he was going to hit me again, so I closed my eyes and acted like I passed out in the hallway there. And he walked away into his room and got a gun and came back, and I hear him cock the gun. Then I opened my eyes, and he was over me with the handgun. And his little brother came in the front door, came home from school, and [appellant] just turned around and walked back into his room.Under Texas Rule of Evidence 404(b), evidence of other crimes or bad acts is not admissible to prove the character of a defendant to show the defendant acted in conformity with that character. It may, however, be admissible for other purposes, such as to show motive, knowledge or intent. See Tex. R. Evid. 404 (b). We review a trial court's decision to admit extraneous offense evidence under an abuse of discretion standard. See Casey v. State, 215 S.W.3d 870, 879 (Tex.Crim.App. 2007). The evidence in this case was admitted for the discrete purpose of showing Nemec's reasons for participating in the offense and failing to confess to police. This evidence helped explain Nemec's participation in the offense to the jury, because it appeared Nemec had only benefitted from the deceased's affections and did not have a motive to participate in his murder. It also offered a partial explanation for why Nemec delayed so long in admitting her part in the offense. Furthermore, the jury was specifically instructed that it was to consider the evidence only for these purposes. We conclude the trial court did not abuse its discretion in admitting the evidence. We resolve appellant's second issue against him. Appellant's fourth issue pertains to jury selection. He complains the court abused its discretion in dismissing prospective juror Besch for cause. Besch stated that he had a problem with the testimony of accomplice witnesses who had been given favorable treatment by the State in exchange for the testimony against a defendant; he gave the opinion that "the guy or gal would not have any credibility." Shortly afterward, the following exchange occurred between Besch and a prosecutor:
[PROSECUTOR]: So you don't think that the police or that the D.A.'s offices should enter into agreements with people who are involved in a crime in order to get to someone else who is involved in that crime?
VENIREPERSON: I know it happens, but I struggle with that.
[PROSECUTOR]: Thank you. I appreciate the honesty. So you — in your eyes-, someone who has an accomplice would have no credibility with you.
VENIREPERSON: Correct.
[PROSECUTOR]: And you wouldn't be able to listen to that person's testimony and judge their credibility the same as anybody else's?
VENIREPERSON: I would like to say I think I can, but I'm not sure.When asked by the defense if he could be fair to both sides in the case, Besch said that he could. At the conclusion of jury selection, the State challenged prospective juror Besch for cause, and the trial court granted the strike. Appellant objected to the strike, arguing,
We take the position that although he may have initially stated in response to some questions on accomplice witness testimony that throughout the remainder when it was explained to him a little bit more on further questioning . . . he indicated he could be fair to both sides, that he could do what the law contemplated, and since that area wasn't fully developed legally as to what the law is, we feel he is qualified to be on the jury.The trial judge responded as follows:
Well, if we're talking to the Court of Appeals, you know, starting with my discussion and through the State's discussion, my view of Mr. Besch . . . is I'm looking more at his demeanor, not — I know what he said. I don't think he can do it. I believe him when he says an accomplice witness has no credibility. I thought that was a pretty firm statement.Under article 35.16 a party may make a challenge for cause when some fact renders a prospective juror unfit to serve on the jury. See Tex. Code Crim. Proc. Ann. art. 35.16 (Vernon 2006). Litigants are entitled to jurors "who will be genuinely open-minded and persuadable, with no extreme or absolute positions regarding the credibility of any witness." Jones v. State, 982 S.W.2d 386, 389 (Tex.Crim.App. 1998) (emphasis in original). When reviewing a trial court's decision to grant challenge for cause, we look at the entire record to determine if there is sufficient evidence to support the court's ruling. Davila v. State, 252 S.W.3d 846, 847 (Tex.App.-Dallas 2008, no pet.). We give great deference to the trial court's decision because the judge is in the best position to evaluate the prospective juror's demeanor and responses. We will not reverse the trial court's decision absent a clear abuse of discretion. See id. Having observed prospective juror Besch during jury selection, the trial judge believed Besch honestly felt that accomplice witnesses had "no credibility." Deferring to the trial court's evaluation of Besch's demeanor, we cannot conclude the court abused its discretion here. Moreover, appellant has not shown how any error in the dismissal of Besch harmed him. An improperly granted challenge for cause, so long as the prospective juror was not struck for racial prejudice or opposition to the death penalty, amounts to non-constitutional error that must be disregarded unless it affected the appellant's substantial rights. See Jones, 982 S.W.2d at 391-92. Accordingly, an appellate court may not reverse for an improperly granted challenge for cause unless the record shows that the error deprived the defendant of a lawfully constituted jury. Id. at 394. Appellant has neither alleged nor proved any evidence in the record demonstrates that the trial court's claimed error deprived him of a jury comprised of qualified individuals. See Gray v. State, 233 S.W.3d 295, 301 (Tex.Crim.App. 2007). In the absence of such a showing, we presume the jurors were qualified. Id. Because any error in excusing prospective juror Besch did not affect appellant's substantial rights, his argument is without merit. We resolve his fourth issue against him. We affirm the trial court's judgment.