No. 05-03-00688-CR
Opinion Filed August 10, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-53869-KS. Affirm.
Before Justices WRIGHT, O'NEILL, and FRANCIS.
Opinion By Justice WRIGHT.
Stacy Walker appeals his conviction for capital murder. After the jury found appellant guilty, the trial court assessed the mandatory life sentence. See Tex. Pen. Code Ann. § 12.31 (Vernon 2003). In four issues, appellant contends (1) the evidence is legally and factually insufficient to support his conviction; (2) the trial court erred by admitting his statement because it was not voluntary; and (3) the State's improper argument should have resulted in a mistrial. We overrule appellant's issues and affirm the trial court's judgment.
Background
Godwin Okeke was shot and killed while working as an ice cream vendor. Lonnie Jones was on the porch of his friend's house and heard two gunshots. When he looked up, he saw two young men run away from an ice cream truck and then saw Okeke fall out of the truck onto the sidewalk. A short time later, an older man got into the ice cream truck and drove it away. He was unable to identify appellant as the shooter. After an anonymous telephone call the next day, the police questioned appellant and three of his friends Dehaven Richardson, DeMarcus Smith, and Terrance Eldridge about the shooting. Detective Bill Corolla interviewed appellant. During the interview, appellant gave a written statement. In his statement, appellant explained that he was partying with friends including Bryson Sampson, Richardson, Smith and Eldridge. As Okeke came down the street in his ice cream truck, someone told appellant that he should show Okeke his "heat." They were referring to a .380 automatic special appellant had stolen a couple of days earlier. Richardson and appellant acted as if they were going to buy ice cream and got Okeke to stop his truck. Richardson asked for some ice cream and gave Okeke money. When Okeke reached for the ice cream, appellant pulled his gun from his pocket and pointed it at Okeke telling him to "drop out." Okeke, not realizing appellant was serious, laughed. Appellant told him, "I ain't playing, I'm for real." Okeke paused, and Richardson tried to reach into the window to open the door. As he did so, Okeke "went towards" Richardson and then "reached toward the area he normally keeps his gun." Appellant "got scared that [Okeke] . . . was going to shoot [Richardson] . . . so [appellant] shot [Okeke] in the left side of his chest." According to appellant, he was "sorry about what happened but [he] was scared the man was trying to kill him or [Richardson]. [Appellant] plead (sic) for him not to go for his gun but he went for it anyway." At trial, appellant testified to a different version of events; he denied killing Okeke and claimed that two unknown men committed the robbery. Appellant testified he was in the field with Richardson about to walk to a nearby store. Okeke pulled up in his ice cream truck and stopped nearby. As Richardson went to get ice cream, appellant "was looking, and two guys were coming." Richardson asked Okeke for the ice cream and "about the time he handed [Richardson] the ice cream, [appellant saw] one dude pull out a gun and start shooting it. [Appellant] ducked and [he] ran." He explained that his statement was different because after Corolla interviewed him for several hours, Corolla became frustrated with appellant and began yelling and hitting the table, demanding that appellant tell the truth. According to appellant, Corolla took a small needle and syringe from his pocket, showed it to appellant and said, "You want the death penalty? I'm trying to help you out." Appellant became so scared and "brainwashed" that he allowed Corolla to "coach" appellant about what to put into the statement. Appellant believed Smith and Eldridge claimed he committed the murder for the same reasons appellant initially admitted to it-because of pressure by the police. Detective Randy Loboda interviewed Smith, who also gave a written statement. In his statement, Smith explained that he and several of his friends, including appellant and Richardson, were in a vacant lot "hanging around." Appellant had a gun. Smith and some of the others decided to walk to a nearby store. As they did so, the ice cream truck stopped near Richardson and appellant. When Smith turned the corner, he heard two shots. Smith looked back around the corner and saw appellant and Richardson running away from the truck as the ice cream man "jump[ed] out of the truck and fall to the ground." As appellant and Richardson ran away, Bryson Sampson got into the ice cream truck and drove it away. At trial, however, Smith testified that the portions of his statement making the following claims were not true: that appellant had an automatic weapon; that Smith saw appellant and Richardson running away from the ice cream truck; and that Smith saw Sampson driving the ice cream truck away from the scene. Smith also testified that he did not remember telling the prosecutor that when robbery was suggested to appellant, he responded, "On Bloods." According to Smith, he signed the statement even though it was not entirely true because Laboda "coached" him and "threaten[ed] [him] with another charge." Eldridge testified that he, Sampson, appellant, and Smith were members of a Bloods street gang called the Hamilton Avenue Players. The night Okeke was murdered, Eldridge was "hanging out" with appellant and several other friends. According to Eldridge, appellant pulled out a gun and he and some of the others were looking at it. A short time later, Okeke "rolled up" in his ice cream truck. As he did so, Richardson said, "Let's get the ice cream truck." When appellant and Richardson agreed, Eldridge understood that to mean they intended to rob Okeke. Eldridge backed away into a nearby field but saw appellant pull out his gun and point it at Okeke. When he heard two gunshots, Eldridge left. As he did so, he saw appellant and Richardson running away and Okeke fall out of the truck onto the sidewalk. After hearing this and other evidence, the jury found appellant guilty. This appeal followed. Sufficiency of the Evidence
In his first and second issues, appellant contends the evidence is legally and factually insufficient to support his conviction. In particular, appellant claims the State failed to prove appellant intended to kill Okeke or that appellant was the gunman. We disagree. When reviewing the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Herrin v. State, 125 S.W.3d 436, 439 (Tex.Crim.App. 2002). In making this determination, we consider all the evidence admitted, including improperly admitted evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App. 2001); Holberg v. State, 38 S.W.3d 137, 139 (Tex.Crim.App. 2000). Questions concerning the credibility of witnesses and the weight to be given their testimony are to be resolved by the trier of fact. Mosley v. State, 983 S.W.2d 249, 254 (Tex.Crim.App. 1998); Whitaker v. State, 977 S.W.2d 595, 598 (Tex.Crim.App. 1998). In contrast, when conducting a factual sufficiency review, we view all the evidence in a neutral light to determine if the trier of fact was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, No. 539-02, 2004 WL 840786, *7 (Tex.Crim.App. Apr. 21, 2004). There are two ways in which the evidence may be factually insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so that the guilty verdict should not stand Id. Here, appellant admitted to shooting Okeke while attempting to rob him. Appellant was also identified as the shooter by his friend and fellow gang-member, Eldridge. Although appellant later claimed that he did not shoot Okeke during the robbery, conflicts in the testimony and issues of credibility are for the jury, not this Court, to resolve. Similarly, the jury was free to disbelieve appellant's theory that Eldridge, not appellant, was the shooter. Although Jones testified that the shooter left the scene in a car, and the record indicates that Eldridge, not appellant, was the one who left in the car, that evidence does not render the State's proof insufficient to support appellant's conviction. With respect to appellant's claim that the State failed to prove his specific intent to kill Okeke, the record shows Okeke was shot twice at close range, resulting in his death. Intent to kill may be inferred from use of a deadly weapon, unless in the manner of its use it is reasonably apparent that death or serious bodily injury could not result. Flanagan v. State, 675 S.W.2d 734, 744 (Tex.Crim.App. 1984). Furthermore, where a deadly weapon is fired at close range, and death results, the law presumes an intent to kill. Womble v. State, 618 S.W.2d 59, 64 (Tex.Crim.App. [Panel Op.] 1981). After reviewing the record under the appropriate standards, we conclude that a rational jury could have determined that appellant intentionally caused Okeke's death in the course of committing or attempting to commit robbery. Further, we conclude that the evidence supporting appellant's conviction is not too weak to support the finding of guilt beyond a reasonable doubt nor is the contrary evidence strong enough that the beyond-a-reasonable-doubt standard could not have been met. We overrule appellant's first and second issues. Voluntariness
In his third issue, appellant contends the trial court erred by admitting his statement. Specifically, appellant maintains that because Carollo was killed in a car accident prior to trial, there was "no witness presented to testify when, or even if, Walker was given his statutory warnings prior to speaking with Carollo and subsequently providing a written statement." Consequently, appellant argues, the State failed to prove appellant's statement was given freely and voluntarily without coercion. We disagree. We review a trial court's ruling on a motion to suppress for an abuse of discretion, giving almost total deference to the trial court's determination of historical facts. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002); Garcia v. State, 15 S.W.3d 533, 535 (Tex.Crim.App. 2000). Absent an abuse of discretion, we may not disturb the trial court's findings. See Guardiola v. State, 20 S.W.3d 216, 223 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd) (citing Penry v. State, 903 S.W.2d 715, 744 (Tex.Crim.App. 1995)). In reviewing a trial court's ruling on a suppression motion, we must view the record and all reasonable inferences therefrom in the light most favorable to the ruling, and sustain the ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996); Knisley v. State, 81 S.W.3d 478, 483 (Tex. App.-Dallas 2002, pet. ref'd). To determine whether the circumstances render an accused's statement involuntary, we ultimately must determine whether his will was "overborne" by police coercion. Guardiola, 20 S.W.3d at 223. We make this determination based on the totality of the circumstances surrounding the statement. Id. At the top of appellant's written statement, appellant initialed next to the paragraph stating that he had been warned regarding his Miranda rights. Appellant also initialed and dated a "rights card" setting out the warnings to be given to a defendant before taking any oral or written confession. Loboda testified that he was familiar with Carollo's work and had seen him interrogate suspects "at least a dozen times." The first thing Carollo would do was to read the suspect their rights from a "rights card" and confirm that the suspect understood those rights. If a suspect indicated he did not want to speak with Carollo, he would terminate the interview. According to Loboda, he had seen Carollo interrogate suspects "maybe thirty-six times" and had never seen Carollo coerce or threaten a suspect. Kimberly Cooks, a civilian employee of the police department, testified that she was asked to witness appellant's statement. She remembered the statement being read aloud, but could not remember whether it was appellant or Carollo who read it aloud. According to Cooks, once the statement was read, appellant did not in any way indicate that he had been coerced or threatened, that he did not understand his rights, or that he did not intend to waive those rights. The fact that she signed the statement meant that Cooks felt it was a voluntary statement. After hearing this evidence, the trial court overruled appellant's objection to the admission of his statement, noting that "of course, if either side has new evidence that's different, I'll hear that at trial." Subsequently, Darrel Coslin, a Dallas police officer, testified that he was watching the video monitor when Carollo first came into the interrogation room to interview appellant. Coslin saw and read appellant his rights. Coslin watched the monitor off and on during the interview and saw "approximately an hour to an hour-and-a-half" of the interview. During that time, Coslin did not hear Carollo raise his voice. Adam Bush testified that he was a new officer when appellant was arrested and interviewed. His training officer asked him to monitor appellant on the video to make sure he did not attempt to escape or "throw chairs or stuff like that in the interview room." Bush watched appellant alone in the room for five or ten minutes before Carollo entered the room. He watched the entire interview except for two or three times when he went to the bathroom, got something to drink, and moved his car. During the "hour or longer" that he watched, he did not see or hear Carollo threaten, coerce, or make any promises to appellant. Bush did not see Carollo take out a syringe and put it on the table and he did not see appellant cry. After appellant gave his statement, the witness came into the room and Carollo read appellant his rights. Then Carollo read the entire statement and Carollo asked appellant if he understood his rights. After appellant signed the statement, then Carollo and the witness signed it. Thus, although appellant claims he was coerced and threatened into giving his statement, the record contains evidence conflicting with appellant's version of events. Further, although Carollo was unable to testify regarding the interview, the record contains evidence from other sources regarding the circumstances surrounding appellant's statement. Thus, we cannot conclude the trial court abused its discretion by determining that appellant's statement was given voluntarily. We overrule appellant's third issue. Improper Argument
In his fourth issue, appellant contends the cumulative effect of the State's argument should have resulted in a mistrial. Appellant's argument under this point consists of a single paragraph, stating the defense counsel objected to the State's closing argument nine times, four of which were sustained by the trial court. Other than to generally assert that he was prejudiced by the State's argument, appellant offers no argument, analysis, or legal authority (other than citations to the general law regarding improper argument) to support his contention that the trial court should have granted a mistrial. We therefore conclude this issue is inadequately briefed. See Wood v. State, 18 S.W.3d 642, 650 (Tex.Crim.App. 2000) (concluding appellant waived facial validity challenge to penal code provision by failing to support his argument with authority and failing to adequately develop his argument). We overrule appellant's fourth issue.