No. 05-09-01099-CR.
Opinion issued January 31, 2011. DO NOT PUBLISH TEX. R. APP. P. 47.
On Appeal from the 292nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F08-53000-MV.
Before Justices BRIDGES, O'NEILL and RICHTER.
Opinion By Justice BRIDGES.
Appellant Laderek Adarious Fuller appeals his capital murder conviction and accompanying life sentence. In three issues, appellant argues: (1) the trial court erred by failing to allow him to question the venire about the differences in burdens of proof; (2) the evidence was factually insufficient to prove the shooting was intentional; and (3) the trial court erred in failing to instruct the jury on the lesser included offense of felony murder. We affirm.
Background
On the night of March 11, 2008, Demetrius Ellis played pool and talked with appellant, Ronald Griggs and "Little Macky" about committing a robbery at Dominque May's house, where Ellis had gone earlier that night to buy a drug known as "drank." That evening, Ellis had borrowed the car of his girlfriend, Laquita Hunt, after telling her he was "going to get some drank." The four men went in two cars to commit the robbery. Ellis drove Hunt's dark-colored Daewoo, while Griggs drove his white Crown Victoria. Appellant rode in the Daewoo and Little Macky rode in the Crown Victoria. Ellis testified everyone knew they were going to rob the place. When they arrived, Little Macky got out of Griggs's car, entered the Daewoo, and told appellant about the situation-that somebody was going to get shot. In his testimony, Ellis explained someone had to get shot, because "[i]t's a drug house and drug houses keep guns in there." Ellis, appellant and Little Macky then went into the house, while Griggs waited in his car. Dominique May and one of his friends, Octavius Williams, were inside the house when the three men arrived. Williams testified May had been selling the illegal purple drug, "drank", from his house. In his testimony, Williams described the sale that occurred prior to the shooting incident: "First, one guy came to the door, a bright guy with braids, came to the door, knocked on the door. He (May) let him in. He gave him the money. He (May) went, got the jar, came back, told the guy, `I told you to call before you come.' Who the guy was, I don't know. I ain't never seen him. He didn't say no names. The guy went out the door and left." Williams testified that within three to five minutes after the sale, he and May heard a knock at the door. May opened the door and three guys came in. The bright one with the braids gave May the money, and May retrieved the drank from the kitchen, saying, "I told you to call, a while ago, before you come back." Williams testified that one of the men made a gesture to indicate May had a gun in his back pocket. According to Williams, May accidentally dropped a cell phone and, as he was standing up "the darker dude standing by the door shoots him." Williams explained that the man then said, "Ah, shit," and they started "kicking [Williams's] ass." Williams testified that after shooting May, "the shooter puts the gun to my head, tells me, `Either lay down or I'm going to lay you down.'" Williams then heard kitchen pantry doors opening and running through the house. As the shooter was stomping Williams and the other two were ransacking the house, Williams heard the shooter yell at him, "Where is it at?" which Williams understood as a reference to the drank. Williams then lost consciousness. According to Ellis, upon entering the house, appellant stood closest to the front door and the kitchen, while Ellis stood in the middle and Little Macky stood to his right. Ellis introduces appellant to May and then May goes to the kitchen to retrieve the drank. When May comes out of the kitchen with the drank, the shooting takes place. Ellis testified appellant was the shooter and that, following the shooting, appellant ran through the house, while Little Macky ran into the kitchen to get the drank from the refrigerator. Williams testified he regained consciousness when he heard gunshots and saw his friend, Marcus Elmore, come through the back door. Williams told him, "D. May got shot. . . . I'm pretty sure he's dead." Elmore testified that he went to the house to pickup Williams to go to a club. He knocked on the door and, when no one came to the door, he peaked through a top window and saw Williams and May "laying down on the ground." Just as he realized that a robbery was taking place, Elmore heard glass jars clanking together, which indicated to him that the robbers were getting jars of drank. He also heard somebody say, "You get the chopper," which referred to an assault rifle. He explained that May had an assault rifle as well as a chrome revolver. From the porch, Elmore saw two men come around the house, and he pulled out his gun and shot at them. The men ran toward the street and got into a white "Crown Vic" that sped off. Elmore then got into his car and chased them, but when he lost sight of them, he went back to the house. After seeing May was dead, Elmore and Williams left. Elmore then called Randell Love, May's cousin, who indicated he would call the police. Ellis testified about being shot at as he and Little Macky ran from the back yard. Little Macky was able to get in Griggs's car, but the car took off before Ellis could get in so he ran back to the pool hall. At the pool hall, he got a ride back to the house and retrieved Hunt's car, which he then drove to her house. Appellant also arrived at Hunt's house. Appellant had been left in the back yard of the drug house, but he had his girlfriend bring him to Hunt's house. Ellis testified that in addition to the syrup being taken in the robbery, appellant took a revolver off May: "After he got shot, he reached up under him and took it off of him." Ellis testified that, when appellant arrived at Hunt's house, they went into a room and discussed what happened. When Ellis told Hunt what had happened, she was shaken and wanted everyone to leave. Everything that had been taken out of the drug house was then divided up, and appellant got his "stuff" at that time. Hunt testified that she let Ellis use her Daewoo on the night of the shooting. Ellis had been talking for a week about needing to get some money and said that he would "hit a lick." Hunt testified that she next saw Ellis at her house early then next morning. Ellis, appellant, Griggs, and Griggs's cousin were "talking and dividing up some syrup." The men were talking "regular" and no one was angry. Following the telephone call from Elmore, Love went to May's house to check on him. Love found the house ransacked and saw May on the floor. It was apparent there had been a robbery and May had been shot and was dead. Love called the police, but left because he did not want to be there when the police arrived. Detective Michael Mendez of the Homicide Unit of the Dallas Police Department was sent to the house. Mendez learned that the officers responding to the initial call had observed a Daewoo parked in front of the house and had called into the dispatcher with the license plate number to see if it was stolen. With that information, Mendez was able to connect Hunt with the vehicle, and she led the investigators to Ellis. In an interview with Ellis, he indicated appellant was one of his accomplices. Information from a witness concerning the white Crown Victoria led to Ronald Griggs. Detective Mendez interviewed appellant, and a DVD video of the interview was admitted into evidence for the jury to watch. At first, appellant stated he was with his girlfriend on the evening in question and that they watched a comedian on television. When Mendez suggested appellant had been in the area of the offense, appellant stated he had been to a nearby CVS store. When Mendez brought up the subject of fingerprints, appellant said he had been in that house a week before to buy some drank. Later, appellant stated he had been there around 5:00 p.m. Still later in the interview, appellant admitted being at the scene at the time of the offense and indicated that he panicked when he heard a shot fired and ran out. Appellant indicated those who were present at the house included: Ellis, himself, a person he called "Slim" and the person he was buying the drugs from. He also indicated there was a guy on the couch who pulled out a gun, which Mendez believed to be a reference to Williams. Appellant stated that when he heard the shot, he was standing by the front door and that Slim and Ellis were standing on the side of him. Appellant stated that, after he ran out, he first hid and then called his girlfriend to pick him up. When asked where he went from there, he first denied stopping anywhere, but later admitted that he stopped at Hunt's house. Appellant first denied going inside her house, but later admitted he went inside. Officer Gary Collins with the Crime Scene Response Unit of the Dallas Police Department testified the house was ransacked and things were disheveled. It appeared a chair had been placed below a ceiling panel in order to look in the attic. Collins further described a bullet hole found in the wall from which a bullet was recovered. Collins testified the location of the fired cartridge casing was consistent with a person standing toward the right wall and firing a gun at May. Janis Townsend-Parchman, one of the Dallas County Medical Examiners, testified that she performed the autopsy on May. Her report shows that May suffered a gunshot wound that entered the left mid-chest and exited the left mid-back. Vicky Hall, a trace evidence examiner with the Southwestern Institute of Forensic Sciences, testified that tests of May's clothing indicated the barrel of the gun that shot him was located a distance of more than six inches but less than three feet from his clothing. The conclusion of the autopsy was that May died of a gunshot wound to the chest and that the manner of death was homicide. Ellis further testified that, while in jail, he signed State's Exhibit 23, a document that stated that appellant was not the gunman in the shooting of May. Ellis explained that he only signed the statement because he was scared, that he was surrounded in a jail tank by appellant's friends, that he had to fill it out "to keep [him]self from getting beat up on," and that appellant said, "all you got to do is fill out an affidavit for me saying I wasn't the shooter and we cool." The State also offered a recording of a phone conversation when appellant called his girlfriend from jail. In that conversation, appellant told his girlfriend that Ellis had given him a statement clearing him and that he (appellant) had his friends to surround Ellis. In his trial testimony, contrary to the document he signed while in jail, Ellis named appellant as the person who pulled the trigger and killed May. After the State rested at trial, the defense called Riley Harris, who testified that he witnessed the signing of State's Exhibit 23 by Ellis. Harris testified that appellant had asked Ellis in jail "why he was lying on him." According to Harris, Ellis is the one who decided to create the document and he freely volunteered to sign it. On cross-examination, Harris first testified that no one surrounded Ellis when he signed the affidavit. After the recording was played again; however, Harris acknowledged appellant had told his girlfriend that Ellis was surrounded. James Curry, the next defense witness, testified that he was also in the same jail tank with appellant and Ellis when State's Exhibit 23 was created. Curry testified that Ellis denied ever stating appellant had been the shooter. According to Curry, Ellis was not threatened or coerced into signing the statement, and they "went on for like three or four months as a happy family." On cross-examination, Curry testified that the tank was small, that seven inmates had beds there, and that "everybody was standing right there" when appellant and Ellis signed the affidavit. Appellant's wife, Kimberly Fuller, testified that, on the night of the shooting, she and appellant went to eat with one of his cousins and that appellant received a call from Ellis. Kimberly then dropped appellant off at a 7-Eleven and took his cousin home. She understood that appellant was riding with Ellis to purchase some drank. She next heard from appellant around 1:00 a.m. when he called and asked her to come pick him up at a CVS. When she picked him up, appellant was nervous. When she asked him what was wrong, he replied, "Don't ask questions, just take me over to [Hunt's] house." Kimberly testified that when she and appellant walked into Hunt's house, the people there included Hunt, Ellis, Griggs and one other person. Ellis said he was happy to see appellant and that they were about to go back to the house to pick him up. Kimberly then asked, "Why did you leave him?" She testified that Ellis said, "You should have seen the way that n***** fell when I shot him." Kimberly next quoted appellant as saying, "Oh, that was you shooting. I didn't know who was shooting. I just heard a shot and I ran." Kimberly further testified that she did not see anyone divvying up jars of drank. When Kimberly spoke with Detective Mendez, she told him that she and appellant had not gone anywhere and used a short in her headlight as an excuse. During trial, she testified she lied to Mendez because she did not know how involved she was by picking up appellant. Finally, Griggs testified that, on the night of the shooting, he was getting high and playing pool. He saw Ellis sipping drank and gave him $50 so that Ellis could purchase some drank and bring it back to him at the pool hall. When Ellis did not return, Griggs drove to the drank house in his white Crown Victoria and parked across the street after seeing the car that Ellis was driving. Griggs testified that when he heard gunshots, he drove back to the pool hall. Griggs stated that he later stopped by the house Ellis was staying in and spoke to him outside the house, asking for the drank or his money back. Griggs then testified that Ellis told him the following: "That something been-well, he went to the house, him and a dude-I don't know, he made it seem like they had an altercation or something and he said that he had shot the dude." Griggs received a jar of drank, but denied knowing anything about the plan to rob the drank house. He testified he lied to the detective by telling different stories because he was scared. On cross-examination, Griggs testified he believed he saw appellant at Hunt's house that night. Griggs admitted that when he spoke with the detective, he "lied about everything." Griggs acknowledged telling the detective that Ellis had said appellant did something, but testified that was what Ellis wanted him to say. After hearing the foregoing evidence, the jury convicted appellant of capital murder and sentenced him to life in prison. This appeal ensued. Analysis
In his first issue, appellant alleges the trial court erred by failing to allow him to question the venire about the differences in burdens of proof. Specifically, "the defense wanted to explain and define `preponderance of the evidence' and `clear and convincing evidence,' and ask each and every venire member if they understood that `proof beyond a reasonable doubt,' while undefined, was the highest of all burdens in the legal system." The trial court has broad discretion over the process of selecting a jury. Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002) (citing Allridge v. State, 762 S.W.2d 146, 167 (Tex. Crim. App. 1988)). The main reason for this is that voir dire could go on forever without reasonable limits. Barajas, 93 S.W.3d at 38. We leave to the trial court's discretion the propriety of a particular question and the trial court's decision will not be disturbed absent an abuse of discretion. Id. A trial court's discretion is abused only when a proper question about a proper area of inquiry is prohibited. Id. A question is proper if it seeks to discover a juror's views on an issue applicable to the case. Id. at 38 (citing Smith v. State, 703 S.W.2d 641, 643 (Tex. Crim. App. 1985)). A voir dire question that is so vague or broad in nature as to constitute a global fishing expedition is not proper and may be prevented by the trial judge. Barajas, 93 S.W.3d at 39. In the instant case, appellant sought to explain the different burdens of proof and to elicit whether the jury understood that proof beyond a reasonable doubt is the highest burden. We conclude that such an explanation would not seek to elicit information from potential jurors, but only seek to explain the burden of proof. Only where there is a denial of a specific question that seeks to discover a juror's views on an issue applicable to the case is there an abuse of discretion. See Smith, 703 S.W.2d at 643. Therefore, we conclude the trial court did not abuse its discretion in denying the request. See Barajas, 93 S.W.3d at 38; see also Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000) (decision cited by the trial court, which states: "We find that the better practice is to give no definition of reasonable doubt at all to the jury."). We overrule appellant's first issue. In his second issue, appellant argues the evidence is factually insufficient to prove that the shooting was intentional. We note the Texas Court of Criminal Appeals has overruled Clewis v. State, holding the Jackson v. Virginia standard is the only standard a reviewing court is to apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010) (plurality op.). Therefore, we will address appellant's issue under the Jackson v. Virginia standard. In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks, 323 S.W.3d at 894-95. We are required to 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 their testimony. See Jackson, 443 U.S. at 326 ("a court faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution"). The State was required to prove beyond a reasonable doubt that appellant intentionally committed the murder in the course of committing or attempting to commit robbery. Tex. Penal Code Ann. § 19.03(a)(2) (West 2010). The evidence must show appellant had the specific intent to kill. See Rousseau v. State, 855 S.W.2d 666, 673 (Tex. Crim. App. 1993); Dillard v. State, 931 S.W.2d 689, 695 (Tex. App.-Dallas 1996, pet. ref'd). The jury, however, may infer the intent to kill from the use of a deadly weapon unless it would not be reasonable to infer that death or serious bodily injury could result from the use of the weapon. Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998) (citing Ross v. State, 861 S.W.2d 870, 873 (Tex. 1992); Godsey v. State, 719 S.W.2d 578, 581-82 (Tex. Crim. App. 1986)). A firearm is a deadly weapon. Tex. Penal Code Ann. § 1.07(a)(17)(A) (West Supp. 2010). In the instant case, the autopsy report stated that Dominique May's death was a homicide caused by a gunshot with the bullet traveling through the chest, heart and lung. According to the medical examiner, the gun's barrel was six inches to three feet from the front of the victim. Ellis testified that appellant stood beside him at the scene and that he saw appellant shoot May. He explained that appellant stood closest to the front door and closest to the kitchen. Williams also testified that the shooter was standing by the door when he shot May. Although appellant did not admit to shooting May, he did tell Detective Mendez he was standing by the front door when he heard gunfire. Williams testified that, following the shooting of May, the shooter put the gun to his (Williams's) head and told him: "Either lay down or I'm going to lay you down." As the judge of the witnesses's credibility, the jury was entitled to believe Ellis's testimony that appellant was the shooter. See Jackson, 443 U.S. at 326. Further, the fact that the shooting was from close range weighs in favor of the shooter's intent to kill. See Mosley, 983 S.W.2d at 255. The jury was also entitled to believe Williams's testimony that, after shooting May, the shooter held the gun to Williams's head and threatened him. See Jackson, 443 U.S. at 326. A reasonable interpretation of the evidence, therefore, demonstrates appellant shot May with a gun at close range through the heart and the shooting caused his death. From these facts, we conclude the jury could have also reasonably inferred appellant's intent to kill May. Mosley, 983 S.W.2d at 254. We overrule appellant's second issue. In his third issue, appellant contends the trial court erred in failing to instruct the jury on the lesser included offense of felony murder. A two-pronged test applies to the determination of whether a defendant is entitled to an instruction on a lesser included offense. Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993); Royster v. State, 622 S.W.2d 442, 446 (Tex. Crim. App. [Panel Op.] 1981). First, the lesser included offense must be included within the proof necessary to establish the offense charged. Rousseau, 855 S.W.2d at 673. Second, there must be some evidence in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser included offense. Hall v. State, 225 S.W.3d 524, 536 (Tex. Crim. App. 2007); Id. When considering the second step, anything more than a scintilla of evidence may be sufficient to entitle a defendant to a lesser charge. Hall, 225 S.W.3d at 536. It is not enough; however, that the jury may disbelieve crucial evidence pertaining to the greater offense. Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim. App. 1997). Rather, there must be some evidence directly germane to the lesser included offense for the factfinder to consider before an instruction on the lesser included offense is warranted. Id. In the case before us, appellant complains the trial court erred in failing to instruct the jury on the lesser included offense of felony murder. Felony murder is a lesser included offense of capital murder, so the first prong is satisfied. See Threadgill v. State, 146 S.W.3d 654, 665 (Tex. Crim. App. 2004); Rousseau, 855 S.W.2d at 672. To satisfy the second prong, the record must contain some evidence that would permit a rational jury to find that appellant is guilty only of the lesser offense. Hall, 225 S.W.3d at 536. There are two ways in which the evidence may indicate that a defendant is guilty only of the lesser offense. Saunders v. State, 840 S.W.2d 390, 391 (Tex. Crim. App. 1992). First, there may be evidence which refutes or negates other evidence establishing the greater offense. Id. Second, a defendant may be shown to be guilty only of the lesser offense if the evidence presented is subject to differing interpretations. Id. at 392. The element distinguishing capital murder from felony murder is the intent to kill. Threadgill, 146 S.W.3d at 665. Thus, to be entitled to an instruction on felony murder, there must be some evidence that would permit a jury to rationally find appellant had the intent to commit robbery but not to cause the death of May. Id. If a defendant presents evidence that he did not commit any offense, McKinney v. State, 627 S.W.2d 731 (Tex. Crim. App. 1982), or if he presents no evidence at all, Denison v. State, 651 S.W.2d 754 (Tex. Crim. App. 1983), and there is no other evidence raising an issue, a charge on the lesser offense is not required. Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985); Royster, 622 S.W.2d at 447. In this case, there was no evidence presented by appellant that if he was guilty of an offense, he was guilty only of the lesser included offense. Instead, appellant argued someone else was the shooter who caused May's death and presented the defensive theory that he was only at the house to buy drugs, lacking the intent to rob or kill May. Thus, appellant was not entitled to an instruction on the lesser included offense of felony murder. See Aguilar, 682 S.W.2d at 558; Marles v. State, 919 S.W.2d 669, 672 (Tex. App.-San Antonio 1996, pet ref'd). We conclude, therefore, that the trial court did not err in refusing to submit an instruction on felony murder as a lesser included offense of capital murder. See Aguilar, 682 S.W.2d at 558 ; Saunders, 840 S.W.2d at 391-92. We overrule appellant's third issue. Having overruled all of appellant's issues, we affirm the judgment of the trial court.