Opinion
No. 05-02-00850-CR
Opinion Filed May 20, 2003 Do Not Publish
On Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-21553-TW AFFIRMED
Before Justices BRIDGES, O'NEILL, and FRANCIS.
OPINION
A jury convicted Jacob Cleveland Jackson of murder and assessed punishment at twenty-three years in prison. In three points of error, appellant complains about the legal and factual sufficiency of the evidence and charge error. We affirm. Police officers, responding to a concerned person call at a DeSoto residence, discovered the brutally beaten bodies of thirty-four-year-old Hong Sae Lee and his sixty-four-year-old mother, My Hyee Lee. Both died of homicidal violence, meaning there was more than one potentially fatal cause. Lee had been hog-tied and his body was found near the door exiting to the garage. Lee had extensive blunt-force head injuries, two lacerations on his forehead, and hemorrhage in the muscular part of the upper chest. A ball was found in his mouth, which had been taped shut. Mrs. Lee's body was found in a bedroom. She had blunt-force injuries, chest compression, and three stab wounds to her abdomen, chest, and hip. Her skull, collar bone, and half of her ribs were fractured, and there were lacerations on her uterus and vagina. Almost immediately, police developed four suspects in the case, all teen-agers: appellant, Demarcus Joe, Kenneth Edwards, and Jermaine Galloway. All were initially charged with capital murder. Galloway, who was fifteen at the time of the murders, was the State's chief witness at trial and had previously pleaded guilty to aggravated robbery in juvenile court and received twenty years for his part in the crime. Galloway testified that Edwards and Joe came by his house, said they were going to "hit a lick" or "jack" someone, and asked him and appellant to go with them. Both did, although appellant initially tried to talk Galloway out of going. The group left in a Jeep that belonged to Lee, who was a friend of Joe's. When they arrived at the Lees, Joe opened the door with a key, spoke to Lee, who told them to come in. The four sat in the den drinking alcohol and talking with Lee. At some point, Lee left the room, and Joe and Edwards followed him. Shortly, Galloway heard Lee crying, "Oh, bro," and saw Joe dragging Lee by his hair to the den. Lee was tightly wrapped in a blanket, and Edwards was kicking him. Galloway and appellant joined in, kicking Lee several times and stomping on him. The four also took turns beating Lee in the head with a hammer, pole, and fire extinguisher. Galloway specifically testified that appellant used the fire extinguisher to beat Lee in the head and also jumped on Lee like he was "jumping on a trampoline." Joe, Edwards, and appellant left the room and told Galloway to watch Lee. Galloway heard someone scream, walked to the back of the house, and saw the three beating Lee's mother. Galloway testified appellant jumped on Mrs. Lee, and Edwards and Joe beat her with a hammer and then sexually assaulted her with the hammer handle. Galloway grabbed a knife and stabbed Mrs. Lee. Her screams for help were muffled by a blanket covering her. All four rummaged through the house looking for money and ultimately took two TVs, a VCR, and clothing. Before leaving, Joe and Galloway hog-tied Lee with electrical cord and tied the other end to a door knob. Joe put a Styrofoam ball in Lee's mouth and taped it shut. Joe also poured Pine Sol and salt on the victims and sprayed Raid on the bodies. The group left in the Lees' vehicles: the Jeep and a Mustang. They quickly abandoned the Jeep and one of the TVs in a field. They took the remaining items to Edwards's house and then went to a "bootleg" liquor store to buy alcohol and a "wet house" to buy embalming fluid to smoke. While riding around drinking and smoking cigarettes dipped in embalming fluid, they crashed the Mustang into a house. Appellant, Galloway, and Joe fled the Mustang, but Edwards was unconscious and was taken to the hospital by ambulance. Galloway awakened the next morning and did not remember the wreck. Other evidence reflected that after the wreck, appellant, Joe, and Galloway walked to the house of Joe's cousin, Kathy Adams, who was also an ex-girlfriend of Lee's. Galloway was throwing up, and Adams gave him milk to "calm down" his high. According to Adams, Joe told her that Lee and his mother were "deceased." Adams, concerned about the Lees' safety, asked appellant where Lee was. Appellant lied and told her Lee had dropped them off and went home. At the time, Adams believed appellant because he was the only person who appeared to be sober. The next day, Adams was visiting Edwards's mother when Edwards arrived wearing a hospital gown. Later that night, Edwards asked Kathy for money to buy drugs, and Kathy agreed to give him $10 if he would tell her what happened. Edwards told Kathy that Joe beat Lee the night before but said Lee was still alive. He also told her Joe said she "was next." Kathy told her parents, who called the police. After appellant was arrested, he made videotaped statements admitting to being present with Joe, Edwards, and Galloway when the Lees were murdered. He admitted that he kicked Lee once in the leg during the murder but said he acted only because he feared Joe and Edwards. At trial, he emphasized his limited role in the commission of the offenses, and again said he only participated because he was afraid. According to appellant, Joe robbed drug houses for Lee. On the night of the murders, appellant said he did not want to go with Joe and Edwards but did so to watch out for Galloway, who he thought of as a brother. When Joe and Edwards jumped Lee, appellant admitted kicking Lee once in the leg because he was told to by and Edwards, who had a gun. He said he and Galloway then went to the garage for fifteen to thirty minutes because he did not want to see the blood. When they went inside the house again, Joe and Edwards were tying Lee's hands and feet. Joe and Edwards told Galloway to stay with Lee and had appellant follow them to the back of the house where they intended to get money. They rushed through a bedroom door, threw a sheet over Mrs. Lee, and began beating her. Appellant said Edwards hit Mrs. Lee in the head with a gun. Joe and Edwards beat Mrs. Lee with a hammer and also sexually assaulted her with the hammer handle. At Joe's direction, appellant said he looked through her dresser drawers for money but could not find any. He denied any involvement in Mrs. Lee's death. Before leaving the house, appellant said Joe poured Pine Sol on the Lees and sprayed them with something. Appellant admitted getting the tape placed over Lee's mouth. In rebuttal, Joe testified he was serving two life sentences for his participation in Lees' murders and, in exchange for the State not seeking the death penalty, he agreed to testify against his codefendants. Joe testified that neither he nor Edwards threatened appellant or Galloway that night. He also testified that appellant kicked Lee and Mrs. Lee. After hearing the evidence, the jury, apparently unpersuaded that appellant was involved in Mrs. Lee's death, rejected the capital murder charge and convicted appellant of murder. This appeal ensued. In his first and second points of error, appellant contends the evidence is legally and factually insufficient to support his murder conviction because the accomplice testimony is not corroborated. In particular, he contends that Galloway was the only witness to testify that appellant hit Lee in the head and jumped on him "like a trampoline." He argues that because this evidence was uncorroborated, we must eliminate it from our consideration, which leaves only appellant's admission that he kicked Lee in the leg one time. He argues Lee did not die from leg injuries and further argues the evidence only shows he was present at the offense and does not demonstrate that he encouraged others to commit the offense. Thus, he asserts the evidence is legally and factually insufficient to convict him either as a principal or a party. Initially, we note appellant errs in contending that we must ignore Galloway's testimony. Accomplice witness corroboration is not reviewed under standards of either legal or factual insufficiency. Cathey v. State, 992 S.W.2d 460, 462-63 (Tex.Crim.App. 1999). Rather it is a statutorily imposed sufficiency review requiring only that there be evidence "tending to connect the defendant with the offense." Id. at 463. Thus, we reject any attempt by appellant to superimpose a legal and factual sufficiency review upon the accomplice witness standard. Reviewing the evidence by well-established standards, we conclude it is both legally and factually sufficient. See Jackson v. Virginia, 443 U.S. 307, 319 (1979) (legal sufficiency); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000) (factual sufficiency). The evidence showed the four assailants went to Lee's house and brutally beat Lee. According to evidence, appellant actively participated in the attack, kicking Lee several times and beating him in the head with a fire extinguisher. Although appellant admitted only limited involvement and said he acted out of fear of Joe and Edwards, the jury made any credibility determinations with respect to his testimony and that of Galloway. Under the evidence presented, a reasonable jury could have concluded appellant, as a party, intentionally or knowingly caused Lee's death. Further, this evidence is not so weak that it renders the verdict clearly wrong and manifestly unjust nor is the verdict contrary to the great weight and preponderance of the evidence. To the extent appellant's complaint can be construed as a claim that the accomplice witnesses were not sufficiently corroborated, we disagree. Under article 38.14 of the Texas Code of Criminal Procedure, a conviction cannot stand unless it is corroborated by other evidence tending to connect the defendant with the offense; the evidence is insufficient if it merely proves the commission of the offense. Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 1979); Cathey, 992 S.W.2d at 462. In conducting a sufficiency review under the accomplice-witness rule, a reviewing court must eliminate the accomplice testimony from consideration and then examine the remaining portions of the record to see if there is other evidence that tends to connect the accused with the commission of the crime. Solomon v. State, 49 S.W.3d 356, 361 (Tex.Crim.App. 2001). The corroborating evidence need not directly connect the defendant to the crime, nor be sufficient by itself to establish guilt. Cathey, 992 S.W.2d at 462. Evidence of the defendant's presence at the scene, coupled with other suspicious circumstances, even seemingly insignificant ones, may well be enough to connect the defendant to the offense. Dowhitt v. State, 931 S.W.2d 244, 249 (Tex.Crim.App. 1996). All facts and circumstances in evidence may be looked at to determine whether an accomplice's testimony is corroborated. Munoz v. State, 853 S.W.2d 558, 560 (Tex.Crim.App. 1993). It is the combined weight of all of the direct and circumstantial non-accomplice evidence that is measured to determine if it tends to connect the defendant. Perkins v. State, 450 S.W.2d 855, 855 (Tex.Crim.App. 1970). In this case, there is ample evidence tending to connect appellant with the crime, most notably appellant's own admissions that (1) he was present during the murders, (2) when Lee was being attacked, he kicked Lee in the leg, (3) while Joe and Edwards were beating Mrs. Lee, he rummaged through her dresser drawers looking for property to steal, and (4) he got the tape used to tape Lee's mouth shut. This evidence places appellant at the crime scene and establishes participation on his part, thus corroborating the accomplice testimony. See Simmons v. State, 650 S.W.2d 108, 110 (Tex.App.-Houston [14th Dist.] 1983, no pet.) (concluding defendant's self-incriminating statement, detailing attack on robbery victims, location of attack, and conduct of various participants, tended to connect defendant to offense and was sufficient to corroborate accomplice testimony). Additionally, Adams's testimony placed appellant with Joe and Galloway shortly after the murders. Moreover, Adams, who had just been told Lee was dead, specifically asked appellant about Lee, and appellant lied to her and led her to believe Lee was still alive. We conclude this evidence is sufficient to connect appellant with this offense. We resolve the first and second issues against appellant. In his third point of error, appellant contends the trial court reversibly erred in failing to charge the jury on the parole law applicable to the case, specifically the language contained in section four, article 37.07 of the code of criminal procedure. The State agrees the trial court failed to give the appropriate charge but argues appellant, who did not object at trial, was not egregiously harmed. We agree with the State. Texas courts agree that the State, not the defendant, benefits from the parole law instructions. Grigsby v. State, 833 S.W.2d 573, 576 (Tex.App.-Dallas 1992, pet. ref'd). The parole instructions inform the jury how good-conduct time combines with actual time served to determine parole eligibility. Id. The instruction was designed to increase jury sentences. Id. Appellant was convicted of murder, a first-degree felony punishable by confinement for up to life in prison and up to a $10,000 fine. See Tex. Pen. Code Ann. § 12.32 (Vernon 2003). The jury assessed punishment at twenty-three years in prison and no fine; thus, the jury assessed a comparatively minimal sentence. In doing so, the jury had before it the particularly brutal facts of this case as well as appellant's stipulation he previously had been adjudicated as a juvenile for indecency with a child, criminal trespass, and theft. Finally, the jury was instructed not to discuss "how long the defendant will be required to serve any sentence you decide to impose. Such matters come within the exclusive jurisdiction of the Board of Pardons and Parole and are no concern of yours." Considering these circumstances, we fail to see how not giving a charge meant to increase the length of a sentence harms appellant in this case. Grigsby, 833 S.W.2d at 576. (concluding defendant suffered no actual harm under similar circumstances). Issue three is without merit. Judgment is affirmed.