No. 05-06-00323-CR
Opinion issued July 10, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 204th Judicial District Court Dallas County, Texas, Trial Court Cause No. F06-00009-IQ.
Before Justices MORRIS, WRIGHT, and FITZGERALD.
JOSEPH B. MORRIS, Justice.
A jury convicted Freeman Johnson Evans of capital murder. He complains on appeal that the evidence against him is legally and factually insufficient to support his conviction and the trial court erred in admitting his written statement into evidence. Concluding appellant's arguments are without merit, we affirm the trial court's judgment.
Factual Background
Appellant admitted he was present for a drug deal involving the sale of more than twenty pounds of marijuana and five kilograms of cocaine. The deal was facilitated by Chateto Brown and took place at his apartment. Appellant was armed with a .40 caliber semi-automatic pistol at the time, and his three companions — Troy Dorn, Mareio Anderson, and Timothy Scoggins — were armed as well. His co-defendant, Anderson, was posted outside the apartment with a civilian equivalent of an M16 rifle. After the marijuana was exchanged for over $10,000, there was a significant break in proceedings before the drug sellers returned with the cocaine. In the midst of the cocaine deal, Dorn and the seller Elihu Hernandez shot each other. Then appellant shot and killed Alejandro Pena, who was acting as backup for Hernandez. Appellant claimed Pena had reached for a gun in his waistband. Appellant thought he was going to shoot him. Appellant further claimed he had not looked at Pena when he shot him. Pena died of a single gunshot wound to the head. Stippling around the wound indicated Pena was shot at close range. After appellant shot Pena, he shot one time at Hernandez, who was still moving. Outside, Anderson came running up the back stairs of the apartment complex after Dorn contacted him on a two-way radio and, he claimed, he heard shots fired in the apartment. Anderson saw Brown outside the apartment. Anderson fired several shots from the automatic rifle at Brown, nearly tearing one of his legs from his body. Brown also sustained several fatal gunshot wounds to his back. Anderson claimed in his written statement to police that he shot Brown when Brown grabbed his gun and tried to pull it from him. He denied telling Scoggins that Brown had implored him not to shoot before he tried to grab Anderson's gun. Anderson and appellant then took the kilos of cocaine from the scene. Each claimed the other man had originally picked up the kilos. As Anderson and Appellant left the apartment complex with Scoggins, Scoggins stopped to shoot at a Ford Taurus. Inside the Taurus was an armed man who had arrived with one of the drug sellers. Scoggins, Appellant, and Anderson split the cocaine among themselves. Neither appellant nor Anderson nor Scoggins was injured or shot at during the offense. Police found $10,500 in cash in a backpack at the apartment where the drug deal was supposed to have occurred, but no other money was retrieved. Dorn was supposed to pay approximately $90,000 cash for the cocaine. The purchase price of five kilos of cocaine is between $75,000 and $125,000. A police investigator testified that, based on the absence of the larger amount of money at the scene and the fact that appellant, Anderson, and Scoggins had taken and split up the five kilograms of cocaine, he suspected the occurrence was actually a robbery. Although appellant and Anderson claimed they acted in self-defense, they both left town after the offense. Appellant claimed he had no knowledge of the events when he was originally questioned by police. When he later gave a written statement to police, appellant said that while he was in the apartment for the drug deal, he heard someone running up the apartment stairs and then heard Dorn tell the drug sellers to "drop out." A police detective testified that "drop out" is a term that means "give up your property" because "you're about to be robbed." Appellant admitted at trial he heard Dorn tell Hernandez to "drop out" and stated that he did not know whether Dorn shot Hernandez before Hernandez shot him. Scoggins testified at trial for the State. He testified that Dorn wanted him to "watch his back" during Dorn's purchase of twenty pounds of marijuana. Scoggins claimed he asked Dorn before the deal whether there was going to be any "drama" during the deal. Dorn told him no, but told him they needed to be armed because he had "too much money" on him. Scoggins claimed that while he was waiting outside for Anderson, appellant, and Dorn, he heard shots go off inside the apartment before he heard shots outside. Scoggins further claimed the man he shot at in the Ford Taurus was pointing a firearm at their car. During his testimony, Scoggins acknowledged he knew before the shooting that the group was going to a drug deal and that every person in his group was armed. Scoggins testified he was supposed to be paid for his participation. In his written statement to police, Scoggins had said Dorn had called Anderson and him "soldiers." Scoggins claimed he flushed his portion of the cocaine down the toilet. He denied any knowledge that a robbery was going to take place with the drug deal. Anderson also testified at trial. He stated that he was supposed to have been paid $1,000 for "watching [Dorn's] back" during the drug deal. Anderson, in turn, hired Scoggins to help him. Anderson testified at trial that the exchange was only supposed to be a drug deal and not a robbery. He acknowledged he was armed for the drug deal so that he could kill someone if necessary. He admitted to selling his portion of the cocaine. Anderson's former girlfriend testified Anderson told her before the shooting that he, appellant, and Dorn had a plan to "hit a lick" on some "Mexicans" at an apartment. She testified that this meant they were going to exchange money for drugs. A police detective who had worked in the robbery division of the Dallas Police Department testified that the term actually means to commit a robbery. A man named Leonard Woodson told police appellant had admitted to him that he and Dorn "had went over to do a robbery against some Mexicans" and "explained to him about the Mexicans being shot." At trial, Woodson stated that appellant had brought him some cocaine after the homicides and he had helped appellant sell it. Woodson claimed appellant told him he had to "kill somebody" to get the cocaine. He stated that appellant had said Dorn "had called him early that morning and they went somewhere and they . . . did some murdering and [Dorn] got shot in the mix." In his written statement to police, Woodson stated that appellant had told him he and Dorn had gone "to meet some Mexicans and to roll them." Woodson said that to "roll" means "a lot of things on the street" and does not necessarily mean robbing. Appellant denied ever telling Woodson he and Dorn had planned to "roll" or rob the drug dealers. Appellant claimed he had never heard of the terms "roll" or "hit a lick" used to mean commit robbery. Discussion
In his first two issues, appellant challenges the legal and factual sufficiency of the evidence against him. He claims the evidence proving his commission of the offense and disproving his claim of self-defense is insufficient. We review a challenge to the legal sufficiency of the evidence to support a verdict of guilt by viewing the evidence in the light most favorable to the verdict to determine if any rational trier of fact could have found beyond a reasonable doubt the essential elements of the offense. See Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999). Under this standard, the fact-finder is the exclusive judge of the witnesses' credibility and the weight given to the evidence. The jury may draw reasonable inferences from basic to ultimate facts and is entitled to resolve any conflicts in testimony and reject or accept any or all of the evidence presented by either side. See Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996). Under the standard of review for challenging the factual sufficiency of the evidence, we determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt by viewing the evidence in a neutral light. See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). In conducting this review, we are permitted to substitute our judgment for the jury's on the question of witness credibility and weight of evidence determinations, "albeit to a very limited degree." See Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), pet. for cert. filed, — U.S.L.W. — (U.S. March 13, 2007) (No. 06-11318). We will reverse a verdict of guilty on a factual sufficiency challenge only when we can say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. at 417. In this case, the jury could convict appellant under four alternate theories: (1) if the jurors believed appellant knowingly or intentionally caused the death of Alejandro Pena and caused the death of Elihu Hernandez; (2) if the jurors believed appellant caused the death of Pena and acted as a party to Troy Dorn's murder of Hernandez; (3)if the jurors believed appellant, Dorn, and Anderson, entered into a conspiracy to commit the felony offense of robbery and, in the attempt to carry out the conspiracy, Dorn murdered Hernandez and Anderson murdered Chateto Brown, and the jurors further found that the murders were committed in furtherance of the unlawful purpose to commit robbery and should have been anticipated as a result of carrying out the conspiracy to commit robbery; or (4) if the jurors believed appellant, Dorn, and Anderson entered into a conspiracy to commit the offense of possession of more than four hundred grams of cocaine and, in the attempt to carry out the conspiracy, Dorn murdered Hernandez and Anderson murdered Brown, and if the jurors further found that the murders were committed in furtherance of the unlawful purpose to commit possession of more than four hundred grams of cocaine and should have been anticipated as a result of carrying out the conspiracy to commit possession of more than four hundred grams of cocaine. The evidence in the case showed appellant and his cohorts knew they were going into a major drug deal. Appellant, Anderson, and Scoggins were all on hand with firearms to protect Dorn's money. Moreover, some evidence in the case indicated the event was planned as an armed robbery all along. The absence of the $90,000 supposedly possessed by Dorn at the scene supports this theory. Although both appellant and Anderson claimed they acted in self-defense, the jury did not have to believe their testimony. Their splitting of the five kilograms of cocaine, fleeing from the scene, and appellant's original denial to police of any involvement in the shootings belie their claims of innocence. After viewing the evidence under the appropriate standards, we conclude it is legally and factually sufficient to support appellant's capital murder conviction. We resolve his first two issues against him. In his third issue, appellant complains the trial court erred in admitting his written statement to police into evidence. Appellant claims the evidence shows he had not been advised of his Miranda rights before making the statement. We review a trial court's ruling on a motion to suppress for an abuse of discretion under a bifurcated standard of review. See Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002). We give almost total deference to the trial court's rulings on questions of historical fact, but we review de novo a trial court's application of search and seizure law. Id. at 768. At a suppression hearing, the trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). Here, although appellant claimed he had not been advised of his Miranda rights before making the statement, the police officer who took the statement explicitly denied this claim. The officer acknowledged that he may not have had appellant initial the Miranda warnings card read to him before he started to give his statement. In fact, the card was not initialed by appellant. Nevertheless, the officer affirmed that he had read the warnings on the card to appellant before he interviewed him. Moreover, appellant's statement contains the Miranda warnings and is signed by appellant The detective testified that he also read aloud the Miranda warnings on the sheet for appellant's statement before he took the statement. The trial court specifically found the officer had read appellant the Miranda warnings both off the card and in the statement. Deferring to the trial court's role as sole judge of witness credibility, we conclude the court did not err in admitting appellant's statement into evidence. We resolve appellant's third issue against him. We affirm the trial court's judgment.