No. 05-05-01693-CR
Opinion Filed February 26, 2007. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the 204th Judicial District Court Dallas County, Texas Trial Court Cause No. F04-35378-MQ.
Before Justices MORRIS, LANG, and LANG-MIERS.
ELIZABETH LANG-MIERS, JUSTICE.
A Dallas county jury convicted appellant Loyd Virgil Hamill of murder and sentenced him to seventy-five years' confinement. On appeal, appellant argues that the evidence was legally and factually insufficient to support the verdict and that the State made three improper jury arguments. We affirm.
FACTS
At the time of his death, the victim, David Holloway, was working for and occasionally living at Reeves Plumbing. Reeves Plumbing was a multi-million dollar business under Reeves' father, but based on testimony at trial, Reeves "tore it down" by allegedly selling narcotics and hiring prostitutes. Reeves and Holloway fought all the time about money. Holloway threatened to report Reeves to police for his alleged illegal activity. But Charles Moore, Holloway's friend and co-worker, testified that "everybody knew" that Holloway would not report Reeves. In the weeks leading up to his death, Holloway fell in love with one of the women who allegedly worked for Reeves as a prostitute. Reeves was jealous of their relationship. Holloway decided to start a new life with her and, two days before he was murdered, came to Moore's house with a nice hair cut, a clean-shave, clean clothes, and new shoes. Holloway was planning to turn himself into the Farmers Branch police station and sit out several traffic tickets in jail. Farmers Branch police officer Richard Burton testified that Holloway did turn himself in on June 29, 2004, and the police booked him into a cell. However, because he complained that his heart was hurting, they released him that evening and reactivated his traffic warrants. Moore testified that he first met appellant at the plumbing company, although appellant did not work there, but had only seen him three or four times. Appellant was "chummy-chummy" and "got along" with Holloway. The day after Holloway told Moore that he planned to turn himself into the Farmers Branch police station, Reeves asked Moore to work on a motorcycle he was buying. Reeves and Adam Chapa met Moore at a gas station to talk about the motorcycle. They first talked about the motorcycle and then discussed Reeves and Holloway's most recent fight. Moore said to Reeves, "He's gonna snitch on you again. What's it about?" Reeves looked shocked and scared. Moore had never seen him scared like that. Chapa, who was driving, pulled out a sword and said, "I got a way to take care of you." He then reached between his legs and said, "If that ain't good enough, this is" and pulled out a hammerless .38 revolver. Moore was unsure whether Chapa was serious and wanted to get away from the situation. Moore testified that Reeves "would have somebody else do his dirty work." When Moore arrived at Reeves Plumbing the next day to work on the motorcycle, neither Reeves nor the motorcycle were there. "Everybody was acting kind of, whoa. You know, did not want to talk." He never saw Chapa and appellant interacting at the plumbing company. Irving officer Brian Crum testified that in the early morning hours of June 30, 2004, he noticed a Toyota Camry driving without lights. He suspected that the driver was drunk and followed the car. When officer Crum turned on the flashing lights on top of his car, the Camry made a u-turn and re-entered the freeway going the opposite direction. Crum chased the car for thirty minutes, traveling at speeds up to ninety miles per hour. At one point, Crum saw something come out of the passenger-side window. He assumed it was drugs but did not stop to check. The chase ultimately ended when police threw spikes across the road to stop the car. The car kept going, but the car's passenger set fire to its interior. Police finally removed appellant and Chapa from the vehicle and arrested them. The vehicle belonged to Reeves. Ultimately, fire completely engulfed the car, destroying the car and any evidence. Following book-in, and once appellant was in his cell, officer Andrew Terrell noticed that appellant had removed his shirt and was dipping his sock in the toilet and then washing his chest, abdomen, and under his arms. Appellant was not intoxicated. Around 3:00 a.m. on June 30, police discovered Holloway's body in a portable toilet at Campion Trails Park. Medical examiner Sheila Spotswood testified that Holloway died from multiple gunshot and stab wounds. Holloway's toxicology report showed a .11 blood alcohol content and evidence of marijuana and methamphetamine use. The gunshot wounds matched a .38-caliber handgun and .410-caliber shotgun. A bloody shoe print recovered from the toilet had traits similar to those of the shoe appellant was wearing on the night of the murder, and appellant's shirt, jeans, shoes, and ring bore the victim's blood spatter. David Spence, supervisor of the trace evidence unit at Southwestern Institute of Forensic Sciences, testified that the spatter pattern on appellant's clothes was high velocity, meaning that appellant was within three and a half feet of the victim when he was shot. It was not a pattern that would have resulted from merely moving a body. Forensic biologist Angela Fitzwater testified that police submitted some of appellant's clothing in the same bag, including appellant's shirt, boxer shorts, and socks. Police also discovered a charred knife in the seats of the burned-out Camry. The defense called detective Joe Hennig as a witness. He testified that police did not recover any murder weapons or fingerprints and that appellant's handwashings tested negative. Hennig testified that Reeves was a suspect but that he had died of a massive heart attack after the murder. He also testified that Holloway was killed sometime between 9:00 p.m., June 29 and 3:20 a.m., June 30. Pam Hamill, appellant's sister, testified that on June 29, she spoke to appellant by phone around 10:30 p.m. and attended a party with Chapa from 9:00 p.m. to 10:30 p.m. SUFFICIENCY OF THE EVIDENCE
In his first and second issues, appellant claims that the evidence is legally and factually insufficient to support the verdict. In support of both issues, he highlights Hennig's defense testimony that police did not know where or when the offense occurred and did not locate the specific murder weapon, that no witnesses or records connected appellant to Holloway, that police failed to recover any fingerprints, and that appellant's shoe print did not exactly match the print in the portable toilet. He also argues that Hennig identified Reeves as a main suspect. And although appellant concedes that DNA evidence matched the victim's blood to the spatter on appellant's clothes, he argues that the State should have presented evidence regarding when the blood spattered on appellant's clothes. He also argues that appellant's clothing may have been cross-contaminated because police submitted some items for DNA testing in the same brown bag instead of individual bags. And no witnesses could place appellant and Holloway together on the day of the offense. The State responds that the jury was rationally justified in finding appellant guilty of Holloway's murder either as a principal or as a party. We agree. Standards of review In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and determine whether any 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); Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003). We are mindful that the jury exclusively judges the credibility and weight of testimony. Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996). The jury may draw reasonable inferences from basic to ultimate facts. Sanders, 119 S.W.3d at 820. Nevertheless, evidence that rationally supports a verdict of guilt beyond a reasonable doubt under the Jackson v. Virginia legal sufficiency standard can still be factually insufficient when the verdict seems clearly wrong or manifestly unjust or against the great weight and preponderance of the evidence. Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006). The legal and factual sufficiency standards both require the reviewing court to consider all of the evidence. Id. The difference between the two standards is that the former requires the reviewing court to defer to the jury's credibility and weight determinations while the latter permits the reviewing court to substitute its judgment for the jury's on these questions "albeit to a very limited degree." Id. (quoting Watson v. State, 204 S.W.3d 404, 416-17 (Tex.Crim.App. 2006)); see also Johnson v. State, 23 S.W.3d 1, 9 (Tex.Crim.App. 2000) (holding that factual-sufficiency review requires reviewing court to afford "due deference" to a jury's determinations); Clewis v. State, 922 S.W.2d 126, 135 (Tex.Crim.App. 1996) (holding that factual-sufficiency review requires "deferential standards of review applied" to jury verdicts). A factual-sufficiency review is barely distinguishable from a Jackson v. Virginia legal sufficiency review. Marshall, 210 S.W.3d at 625. Elements of the offense In this case, the charge authorized the jury to convict appellant of the lesser-included offense of murder as either a principal or a party under sections 7.01 and 7.02 of the Texas Penal Code. Section 19.02 of the Texas Penal Code defines murder: (b) A person commits an offense if he: (1) intentionally or knowingly causes the death of an individual; (2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual[.] Analysis Viewing the evidence in a light favorable to the verdict, the testimonial and forensic evidence supports the verdict. Chapa, Reeves, appellant, and Holloway all knew each other through Reeves Plumbing. Reeves had at least two motives to kill Holloway: 1) he was jealous of Holloway's relationship with a woman, and 2) he was afraid Holloway would turn him into police for his alleged illegal activities. Further, Chapa had indicated to Moore that he would kill for Reeves, and Moore testified that Reeves would have had someone else do his "dirty work." On the night of Holloway's murder and within the same time frame during which Holloway was murdered, appellant and Chapa engaged police in a high-speed car chase in Reeves' car. At the end of the chase, they burned the interior of Reeves' car, thereby destroying any evidence. After police booked appellant into a cell, he attempted to remove blood and other evidence from his torso by washing it with his sock and toilet water. Additionally, Holloway was shot with .38-caliber and .410-caliber weapons, and Chapa had displayed a .38-caliber weapon to Moore several hours before the murder. A shoe print recovered from the crime scene resembled appellant's shoe. See Livingston v. State, 739 S.W.2d 311, 330 (Tex.Crim.App. 1987) (noting that a shoe print comparison less than positive may still be sufficient to prove identity when combined with other evidence); Chaney v. State, 775 S.W.2d 722, 727 n. 3 (Tex.App.-Dallas 1989, pet. ref'd). Both Holloway's and Chapa's shoes and shirts bore the victim's blood spatter. Forensic analyst Spence testified that the spatters were high velocity and that a person cannot get a high-velocity blood spatter on his clothes by simply moving and dropping a bloody body. He testified that appellant must have been within three and a half feet of the victim when he was shot. See Lewis v. State, 737 S.W.2d 857, 863-64 (Tex.App.-Houston [1st Dist.] 1987, pet. ref'd) (holding evidence legally sufficient to support defendant's conviction when blood spatter evidence showed that defendant was in close proximity to victim at time of murder). And although appellant's boxer shorts and socks were in the same bag as his shirt, only his shirt bore the victim's blood, undermining appellant's claim that the evidence was cross-contaminated. Accordingly, a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Drone v. State, 906 S.W.2d 608, 614 (Tex.App.-Austin 1995, pet. ref'd) (holding that the evidence was legally sufficient to support defendant's murder conviction when a bloody footprint at the murder scene matched shoes belonging to the defendant, and blood on his shoes belonged to the victim). Viewed in a light neutral to the verdict, the evidence showed that appellant fled from police, destroyed evidence, and was wearing clothing that bore the victim's blood spattered in a high-velocity pattern. It also showed that a shoe print at the scene resembled his. See Hinojosa v. State, 4 S.W.3d 240, 245-46 (Tex.Crim.App. 1999) (holding that the evidence was factually sufficient to support the defendant's conviction when "impressive" DNA evidence connected the defendant to the crime, and a footprint found at the scene matched defendant's shoes). Evidence that police failed to recover a murder weapon or incriminating fingerprints, plot an exact time line of the murder, or that they still suspected Reeves does not render the verdict clearly wrong or manifestly unjust or against the great weight and preponderance of the evidence. See Reeves v. State, 969 S.W.2d 471, 479-80 (Tex.App.-Waco 1998, pet. ref'd) (holding evidence legally and factually sufficient despite absence of evidence indicating cause, time, or location of victim's death); Giesberg v. State, 945 S.W.2d 120, 123-24 (Tex.App.-Houston [1st Dist.] 1996) (holding evidence factually sufficient despite absence of fingerprint evidence), aff'd on other grounds, 984 S.W.2d 245 (Tex.Crim.App. 1998). We overrule his first two issues. JURY ARGUMENT
Third and fourth issues In his third issue, appellant argues that he was harmed by the State's argument that "[a]ppellant had something to lose if David Holloway turned in Larry Reeves. . . . [injecting] the idea that [a]ppellant was involved in drug transactions as a reason for motive for [a]ppellant to kill the victim." Appellant did not object to the State's argument during trial. In his fourth issue, he argues that he was harmed when the State argued, "Look at [the victim's] family right here, `cause they're the ones with a life sentence." He objected at trial that this was "improper punishment argument." He argues now that the State improperly asked the jury to decide the issue of guilt based upon sympathy for the victim's family. Preservation of error If a defendant fails to object at trial or objects on a ground that does not comport with the ground he raises on appeal, he fails to preserve error for review. Tex. R. App. P. 33.1. Appellant did not preserve error because he did not object at trial to the State's argument that appellant had something to lose if Holloway turned in Reeves. Threadgill v. State, 146 S.W.3d 654, 667 (Tex.Crim.App. 2004) (holding that appellant failed to preserve error when he did not object at trial to the argument he contested on appeal). And although he objected that the State's argument, "Look at this family right here, `cause they're the ones with the life sentence," constituted "improper punishment argument," the objection was not specific and failed to alert the trial court to the complaint he now raises. See Swain v. State, 181 S.W.3d 359, 365 (Tex.Crim.App. 2005) (holding that appellant's global statements in his pretrial motion to suppress were not sufficiently specific to preserve the arguments he raised on appeal). Further, shortly after the trial court overruled defense counsel's objection, the State repeated the argument, "They're the ones with a life sentence. They didn't ask for it, but they got it," and defense counsel did not re-assert his objection. The objecting party must continue to object each time the objectionable evidence is offered. Fuentes v. State, 991 S.W.2d 267, 273 (Tex.Crim.App. 1999); Ethington v. State, 819 S.W.2d 854, 858-59 (Tex.Crim.App. 1991). A trial court's erroneous admission of evidence will not require reversal when it received other such evidence without objection, either before or after the complained-of ruling. Leday v. State, 983 S.W.2d 713, 718 (Tex.Crim.App. 1998). We overrule his third and fourth issues. Fifth issue In his fifth issue, appellant argues that he was harmed when the State argued: Ladies and gentlemen of the jury, these defendants, and particularly this defendant, is absolutely guilty. I mean, he would have to be the unluckiest man in the world to have just been there. That is pure speculation, but let's address it. I mean, okay, he was just there and just a victim and all these other people killed his friend and he had to help. Well, why run from the police? As soon as they're pulling you over, you stop, say, "Hey, man, I need your help." As soon as you get to the jail and you're safe in the jail, say, "I got information. These guys just killed my friend." You didn't hear that, did you? Because it's not true. Defense counsel objected that the State's argument was a "comment on failure to testify and improper argument." The trial court sustained the objection and ordered the jury to disregard the statement. It denied appellant's motion for mistrial. Standard of review and law Although appellant has framed his claim as an issue of harm, the reviewing court employs a harm analysis only when there is error, and ordinarily, error occurs only when the trial court makes a mistake. Hawkins v. State, 135 S.W.3d 72, 76 (Tex.Crim.App. 2004). Here, the trial court sustained appellant's objection and granted the requested instruction to disregard. The only ruling that the trial court could have erred in making was the denial of the motion for mistrial. Therefore, the proper issue is whether the trial court abused its discretion in refusing to grant the mistrial. Id. at 77 (citing Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App. 2003)). The question of whether the trial court should have granted a mistrial involves most, if not all, of the same considerations that attend a harm analysis. Id. A mistrial is the trial court's remedy for improper conduct that is "so prejudicial that expenditure of further time and expense would be wasteful and futile." Id. (citing Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999) and Simpson, 119 S.W.3d at 272). In effect, the trial court conducts an appellate function and determines "whether improper conduct is so harmful that the case must be redone." Id. It conducts the harm analysis in light of its curative instruction and grants a mistrial only when the prejudice is incurable. Id. In evaluating whether the trial court abused its discretion in refusing to declare a mistrial, the appellate court balances three factors: (1) the severity of the misconduct (prejudicial effect), (2) curative measures, and (3) the certainty of the punishment assessed absent the misconduct (likelihood of the same punishment being assessed). Id.; see Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998). Analysis Initially, appellant failed to show that the State's argument was prejudicial. Counsel did not repeat the argument after the court instructed the jury to disregard. Further, the State was responding to appellant's closing argument that a "million scenarios" could have involved appellant with the death of Holloway but not inculpate him for murder or capital murder. Appellant had suggested variously: Could [appellant] have been there watching, later on gets a call, goes over to Reeves Plumbing? Could have been a situation w[h]ere [appellant] went there and, "What's going on? What are you doing with David?" Bang, bang, bang. What happens there? He's standing watching. "Don't you do anything [appellant], or you'll get it [too]." Anyway to be held back when he's presently standing there, doesn't mean he's the shooter when his friend's getting shot. You don't know if there was one person there, three people. Could have been 10 people there. All the people running dope with Larry Reeves could have been there as well. You don't know if Adam Chapa forced him to go with him or not. Is he guilty of moving a corpse? Maybe. Maybe not. Is he guilty? That doesn't get him in as a party to capital murder. Doesn't wrangle him if he moves the body later. Doesn't make you a party whether you [are] forced or not forced to, and we don't know. See Canales v. State, 98 S.W.3d 690, 695 (Tex.Crim.App. 2003) (finding no error when prosecutor's rhetorical comment, asking if there was any other way for appellant to explain why he wrote the letter, responded to defense counsel's argument speculating on why appellant wrote the letter). The trial court also took two curative measures: it immediately instructed the jury to disregard the improper argument and instructed the jury in the charge not to consider appellant's failure to testify. See Hawkins, 135 S.W.3d at 84. Additionally, the evidence had already shown that appellant was involved with Reeves Plumbing and knew Holloway. It showed that he engaged police in a high-speed car chase on the night of the murder which ended with his passenger setting fire to the interior of the car. It also showed that he attempted to scrub himself in his jail cell, that the victim's blood was all over his shoes and shirt, and that a bloody shoe print at the crime scene resembled his. Because the jury had enough evidence to link appellant to the murder as a principal or a party, the prosecutor's argument was isolated and responsive to defense counsel's arguments, and the court took curative measures to prevent harm, the trial court did not abuse its discretion in denying appellant's motion for mistrial. We overrule his fifth point of error. CONCLUSION
We conclude that the evidence was legally and factually sufficient to support the verdict, that appellant failed to preserve two of his claims of improper jury argument for review, and that the trial court did not abuse its discretion in denying appellant's motion for mistrial after the trial court sustained his objection to a third jury argument. We affirm the trial court's judgment. Tex. R. App. P. 43.2(a).