Beason v. State

Full title: CHAVEZ MARKESE BEASON, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Aug 13, 2010

No. 05-08-01530-CR (Tex. App. Aug. 13, 2010)

Opinion

No. 05-08-01530-CR

Opinion Filed August 13, 2010. DO NOT PUBLISH Tex. R. App. P. 47.2(b).

On Appeal from the 194th Judicial District Court Dallas County, Texas, Trial Court Cause No. F07-57608-VM.

Before Justices MOSELEY, BRIDGES, and FILLMORE.

OPINION

Opinion By Justice MOSELEY.

A jury convicted Chavez Markese Beason of the capital murder of George Raleigh and the trial court assessed an automatic life sentence. In two points of error, Beason argues the trial court erred by permitting the prosecutor to vouch for the credibility of a police detective in final argument and that the evidence corroborating the testimony of an accomplice is insufficient to sustain the verdict. For the reasons discussed below, we overrule both points of error and affirm the trial court's judgment. The record indicates the shooting arose out of a narcotics transaction. Raleigh arranged to buy three kilograms of cocaine from Beason for what appeared to be a low price. Raleigh met Beason in Dallas, but Beason had to reschedule for the next day because the drugs were not available. The next day, Raleigh and James Drew, who was supplying the money for the buy, went back to Dallas. Drew was suspicious because the price was so low. After Beason arrived, Raleigh and Drew followed him to a house. When they reached the door, Beason turned the doorknob back and forth as if making a signal. The door opened and Beason jumped through as another man came out from behind the door with a gun in each hand. The man yelled and started shooting. Drew turned and ran away. Drew, as an experienced drug dealer, testified that in retrospect, he believed it was never going to be a drug deal because of the low asking price and the way Beason acted. Raleigh was shot twice from approximately two feet away and died of the injuries. Police recovered seven shell casings all fired from the same handgun. Another drug dealer, James Hines, testified that Beason told him the day before the shooting that Beason had a buyer from out of town for three kilograms of cocaine. Hines was not sure if Beason was trying to get him involved in the deal. Beason told Hines that instead of a sale, it was going to be "a lick," meaning a robbery. Hines was cross-examined about some statements in his recorded statement to police that it was going to be a "stain," meaning a plan to deliver fake drugs and take the money. After the shooting, Beason met Hines and said, "We had to take care of business," which Hines said meant Beason had killed the people in the drug transaction. A few weeks after the shooting, Marshall Kirven, an associate of Beason's, told Hines that he and Beason "had to murder that fool." Hines had sold drugs out of the house in the past, but had moved to another house nearby at the time of the shooting. Hines said that he went to the house early the day of the shooting to get some belongings, but he was not there at the time of the shooting. After Hines learned about the shooting, he was worried that he could be connected to the house and voluntarily went to police to give a statement. Beason testified in his own defense. He said he contacted Hines to provide the cocaine for the deal, but Hines did not show up for the first meeting. Beason told Raleigh he would call the next day when the drugs were available. According to Beason, Hines called the next day and said he had the drugs. Beason then called Raleigh and arranged to meet back at the house. Beason arrived after Raleigh's group had arrived. Beason went to the door with Raleigh and Drew behind him. Beason knocked on the door and Hines answered. Once inside, Beason saw Drew reach for a gun and then saw Hines do the same. At that point, Beason fled, hearing gunshots as he ran. Later that night, Hines called Beason and threatened him and his family. Beason testified he did not anticipate the robbery or the shooting, only a drug transaction. Beason denied that he told the detective he did not know anything about the murder, but agreed he did not tell the detective what he told the jury. Beason said the detective repeatedly accused him of being the shooter and did not ask him what he knew about the drug deal. The detective who interviewed Beason testified on rebuttal that Beason repeatedly denied knowing anything about a homicide at the house. Unlike other witnesses, Beason's interview was not recorded because the detective forgot to check that the recording equipment was on during the interview.

Jury Argument

In his first point of error, Beason argues the trial court permitted the prosecutor to vouch for the credibility of the detective when his credibility had not been attacked by the defense. In final argument to the jury, the prosecutor argued that Beason's trial testimony was unbelievable and that he made up a story to exonerate himself and fit the testimony of other witnesses. The prosecutor argued Beason had the opportunity to tell his story to police in his statement, but instead denied knowing anything about the homicide. He then argued that Beason-a drug dealer-told the jury the detective-an Army captain and veteran detective-was a liar. The following exchange occurred:

STATE: And I tell you this, let's do this. If you think Detective Thompson put his career on the line —

DEFENSE: Judge, I'm going to object. . . . That violates my client's due process rights, the prosecutor giving the government's authority a stamp of approval on that detective's testimony.

THE COURT: Overruled.

STATE: And I certainly am.

DEFENSE: Judge, I object again at this last statement saying, "I am" under the same basis, due process right to a fair trial.

THE COURT: Overruled. Go ahead.

Permissible jury argument falls within one of four general areas: (1) summation of evidence; (2) reasonable deductions from the evidence; (3) answers to arguments of opposing counsel; and (4) pleas for law enforcement. Lagrone v. State, 942 S.W.2d 602, 619 (Tex. Crim. App. 1997). We determine harm from improper argument under appellate rule 44.2(b) by balancing: (1) severity of the misconduct (prejudicial effect), (2) curative measures, and (3) the certainty of conviction absent the misconduct. See Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998). Arguments concerning the credibility of a witness are permissible if based on a reasonable deduction from or summary of the evidence. See Loar v. State, 627 S.W.2d 399, 401 (Tex. Crim. App. [Panel Op.] 1981). Further, statements of common knowledge are an exception to the rule against arguing facts outside the evidence. Nenno v. State, 970 S.W.2d 549, 559 (Tex. Crim. App. 1998), overruled in part on other grounds by State v. Terrazas, 4 S.W.3d 720 (Tex. Crim. App. 1999). Courts have recognized that the penalties for perjury are matters of common knowledge. See Bryant v. State, 923 S.W.2d 199, 212 (Tex. App.-Waco 1996), pet. ref'd, 940 S.W.2d 663 (Tex. Crim. App. 1997); Vasquez v. State, 830 S.W.2d 829, 831 (Tex. App.-Corpus Christi 1992, pet. ref'd) ("The fact that a person incurs risks by committing perjury is a matter of common knowledge."). However, jury argument may not vouch for the credibility of witnesses based on the prosecutor's personal opinion. See Menefee v. State, 614 S.W.2d 167, 168 (Tex. Crim. App. 1981). We conclude the first statement by the prosecutor about the detective putting his career on the line was a reference to the consequences of lying under oath and falls within the common knowledge exception. The trial court did not err by overruling Beason's objection to this argument. The second statement-"I certainly am"-we conclude was error because it injected into the case the prosecutor's personal opinion of Thompson's credibility. But we conclude the error was harmless under the harm factors listed above. Although the trial court did not adopt any curative measures, the prosecutor's personal opinion was not overemphasized or repeated and the impeachment value of the detective's testimony was not strong. We overrule Beason's first point of error.

Accomplice Witness Rule

In his second point of error, Beason argues Hines was an accomplice and, absent his testimony, the evidence tending to connect Beason to the murder is insufficient to support the conviction. Texas law requires that the testimony of an accomplice witness be corroborated by independent evidence tending to connect the accused with the crime to support a conviction. Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005); Druery v. State, 225 S.W.3d 491, 498-99 (Tex. Crim. App. 2007). An accomplice is someone who participates with the defendant before, during, or after the commission of a crime and who acts with the required culpable mental state. Druery, 225 S.W.3d at 498. The accomplice must participate with the defendant in the charged offense; "complicity with an accused in the commission of another offense apart from the charged offense does not make that witness's testimony that of an accomplice witness." Id. In short, if the witness cannot be prosecuted for the offense with which the defendant is charged, or a lesser-included offense of that charge, the witness is not an accomplice witness as a matter of law. Id. If the evidence presented by the parties is conflicting and it remains unclear whether the witness is an accomplice, the trial judge should allow the jury to decide whether the inculpatory witness is an accomplice witness as a matter of fact under instructions defining the term "accomplice." Id. Here the trial court instructed the jury on the definition of an accomplice. The jury could have reached a guilty verdict by deciding that either (1) Hines was not an accomplice in the charged offense, (2) he was an accomplice, but his testimony was true and was corroborated by other evidence tending to connect Beason with the crime, or (3) he was an accomplice and his testimony was not corroborated, but other evidence established Beason's guilt. See Yost v. State, 222 S.W.3d 865, 873-74 (Tex. App.-Houston [14th Dist.] 2007, pet. ref'd) (concluding reasonable jury could have found witness was not an accomplice as a matter of fact). Any one of these findings would support the verdict. See id. Here there was conflicting evidence on whether Hines was an accomplice of Beason in the commission of the capital murder. Hines testified he was not involved in the drug transaction or Beason's scheme to either rob Raleigh or sell him fake drugs. Beason's testimony was that Hines was the supplier of the drugs. Moreover, complicity with Beason in the attempted delivery of a controlled substance would not "make [Hine's] testimony that of an accomplice witness." Druery, 225 S.W.3d at 498. Based on the evidence in the record, including that discussed above, the jury could have reasonably concluded that Hines was not, in fact, an accomplice with Beason in the capital murder. See Solomon v. State, 49 S.W.3d 356, 362 (Tex. Crim. App. 2001) (noting that where instruction on accomplice as a matter of fact is raised by the evidence, jury is free to believe witness was not in fact an accomplice). We overrule Beason's second point of error. We affirm the trial court's judgment.