Opinion
No. 11-13-00379-CR
01-21-2016
CHRISTOPHER DESHAWN JOHNSON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 32nd District Court Mitchell County, Texas
Trial Court Cause No. 7413
MEMORANDUM OPINION
Appellant, Christopher Deshawn Johnson, appeals his jury conviction for the offense of attempted capital murder. Appellant and Myron McDonald were tried at the same time for the attempted capital murder of Department of Public Safety Trooper Frank Casares. The jury assessed Appellant's punishment at confinement for life in the Institutional Division of the Texas Department of Criminal Justice and a fine of $10,000. Appellant raises two issues on appeal. We affirm.
The jury also convicted McDonald of attempted capital murder and assessed the same punishment for him. Our opinion and judgment affirming McDonald's conviction is being issued on the same date in Cause No. 11-14-00010-CR. --------
Background Facts
Highway Patrol Trooper Frank Casares testified that he was out on patrol on the morning of January 21, 2013, in Mitchell County along Interstate 20 west of Colorado City. He observed a vehicle speeding at the rate of 109 miles per hour. Trooper Casares activated his overhead lights and pursued the vehicle. Trooper Casares followed the vehicle for approximately four miles before he caught up to the vehicle. The vehicle eventually pulled over, and Trooper Casares exited his patrol car. Trooper Casares walked up and stopped at the rear of the vehicle. He motioned for the driver to step out of the vehicle. Trooper Casares then heard gunshots coming from the vehicle. He jumped behind the vehicle for cover and then ran to the front of his patrol car. Trooper Casares testified that the vehicle sped off at this point.
Trooper Casares returned to his patrol car and pursued the fleeing vehicle. Trooper Casares chased the vehicle for several miles on I-20, through Colorado City, south on Highway 208, then back north on 208, and finally back onto I-20. The vehicle started to slow down and more gun shots were fired toward Trooper Casares. The vehicle then exited I-20 and drove through Colorado City. Trooper Casares pursued the vehicle at 100 miles per hour. Trooper Casares's patrol car camera recorded the high-speed chase.
Other officers joined Trooper Casares in the high-speed chase. Trooper Casares testified that he heard gunshots fired at him when the vehicle made a U-turn and drove toward his patrol vehicle. Eventually, law enforcement lost sight of the vehicle. The vehicle was later found without any occupants inside.
Texas Ranger Phillip Vandygriff testified that the vehicle had been abandoned on a road in western Nolan County. Inside the vehicle was a map with a dot drawn on it over the Seagraves area and an arrow pointing toward Colorado City. Ranger Vandygriff also found 9-millimeter shell casings and live rounds inside the vehicle. Ranger Vandygriff testified that he then went to the sheriff's office in Colorado City for follow-up information. Several police officers met with Ranger Vandygriff and told him that there were three black males at a residence in Colorado City. Ranger Vandygriff, and the other officers, went to that residence and created a perimeter around it. A SWAT team and Special Response Team was dispatched to the residence.
Several people exited the residence when the police first arrived. Two people told officers that there were three people still inside the residence. After repeated requests for the individuals to come out of the residence, and many hours, the SWAT team entered the residence and found Appellant, codefendant Myron McDonald, and codefendant Terry Warner, Jr. hiding in a small closet. An officer searched the residence and found part of a disassembled gun.
Warner testified at trial. He stated that he, Appellant, and McDonald left Oklahoma City on the night of January 20, 2013, and they headed toward Texas. They got lost on their way and stopped in Seagraves to get a map. McDonald was driving, and Appellant was in the front passenger seat. At one point, a trooper attempted to pull over the vehicle. McDonald continued to drive. Eventually, McDonald pulled over. Warner testified that Appellant handed McDonald a handgun and said that McDonald "was going to have to shoot the officer." The trooper got out of his car, told them to get out their car, and then McDonald "discharged the firearm out the window." Warner testified that there was a second firearm in the vehicle and that Appellant "tried to give it back to me and told me I was going to have to shoot. I refused." After the shots were fired, McDonald drove off. McDonald then gave the handgun to Appellant. They drove to a dead end, and McDonald turned the vehicle around. As they were turning, Appellant fired the handgun at Trooper Casares. Warner also testified that Appellant fired shots while they were on the interstate.
Warner stated that they abandoned the vehicle and jumped into a waiting car. He testified that they went to a residence and that police eventually arrived. McDonald took apart the handgun and hid it under a jukebox. Everyone else left the residence except for Warner, McDonald, and Appellant. When the SWAT team entered the residence, they found all three of them hiding in a closet.
Analysis
In his first issue, Appellant contends that Warner's accomplice witness testimony was insufficiently corroborated and cannot support his conviction. Specifically, Appellant asserts that, while Warner's testimony was corroborated by non-accomplice testimony, the corroborating evidence did not connect Appellant to the commission of the offense. Appellant asserts that the non-accomplice testimony did not corroborate that Appellant had the specific intent to kill Trooper Casares, that Appellant fired the gun, or that Appellant encouraged McDonald to fire the gun. We disagree with Appellant's analysis.
We review sufficiency of the evidence issues under the standard of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288-89 (Tex. App.—Eastland 2010, pet. ref'd). Under the Jackson standard, we review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). When conducting a sufficiency review, we consider all the evidence admitted at trial, including pieces of evidence that may have been improperly admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the factfinder's role as the sole judge of the witnesses' credibility and the weight their testimony is to be afforded. Brooks, 323 S.W.3d at 899. This standard accounts for the factfinder's duty to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319; Clayton, 235 S.W.3d at 778. When the record supports conflicting inferences, we presume that the factfinder resolved the conflicts in favor of the verdict and defer to that determination. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.
When, as in this case, the jury's verdict could have been based on the testimony of an accomplice, the sufficiency review must incorporate the accomplice witness rule stated in Article 38.14 of the Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005). In order to support a conviction based upon the testimony of an accomplice, there must be corroborating evidence that tends to connect the accused with the offense. Id.; Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008). In reviewing the sufficiency of the corroborating evidence, we eliminate the accomplice testimony from consideration and focus on the remaining portions of the record to determine whether there is any evidence that tends to connect the defendant with the commission of the crime. Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001); Cathey v. State, 992 S.W.2d 460, 462-63 (Tex. Crim. App. 1999). The corroborating evidence may be direct or circumstantial and need not be sufficient by itself to establish the defendant's guilt; it is sufficient if the combined weight of the non-accomplice evidence tends to connect the defendant to the offense. Solomon, 49 S.W.3d at 361; Gosch v. State, 829 S.W.2d 775, 777 (Tex. Crim. App. 1991). The tends-to-connect standard does not present a high threshold. See Cook v. State, 460 S.W.3d 703, 708 (Tex. App.—Eastland 2015, no pet.). We review the corroborating evidence in the light most favorable to the verdict. Taylor v. State, 328 S.W.3d 574, 578 (Tex. App.—Eastland 2010, pet. ref'd). Once corroborated, testimony of an accomplice may be considered by the jury in the same manner as any other competent evidence. See Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim. App. 2002).
The jury was properly instructed that Warner was an accomplice witness and that it could not convict Appellant on the basis of his testimony, even if found to be credible, unless the testimony was corroborated by other evidence tending to connect Appellant with the commission of the attempted capital murder. See Smith v. State, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011) (an accomplice is a person who participated with the defendant before, during, or after the commission of the crime and acted with the required culpable mental state). Under the applicable standard of review, we are required to review the corroborating evidence in the light most favorable to the verdict. The most significant piece of corroborating evidence in this case is the video of the incident. The video shows Trooper Casares stop the vehicle and then, while Trooper Casares is walking up to the vehicle, shots are fired. Trooper Casares then ducks and runs back to his patrol car. A high-speed chase ensues. Gunshots are heard twice more throughout the chase.
While the video does not show Appellant inside the vehicle, the testimony of another non-accomplice witness, Felicia Diaz, placed Appellant inside the vehicle during the commission of the offense. Additionally, Appellant was found shortly after abandoning the vehicle with his codefendants. Thus, the non-accomplice evidence places Appellant inside the car from which shots had been fired at Trooper Casares at the time of the crime's commission and soon thereafter. See Smith v. State, 392 S.W.3d 190, 195 (Tex. App.—San Antonio 2012, pet. ref'd) (citing Brown v. State, 672 S.W.2d 487, 489 (Tex. Crim. App. 1984)) (non-accomplice testimony that places the defendant at or near the scene of the crime near the time of its commission is a factor that tends to connect the defendant to the crime and can corroborate an accomplice's testimony). Furthermore, a disassembled gun was found near their hiding place. Appellant also gave a false name upon his arrest. See Killough v. State, 718 S.W.2d 708, 711 (Tex. Crim. App. 1986). In this case, the jury could have rationally found that the corroborating evidence tended to connect Appellant to the attempted shooting of Trooper Casares. Malone, 253 S.W.3d at 258-59.
Appellant also contends that the corroboration requirement of accomplice testimony is sometimes analyzed under the specific elements of the crime and, when the corroborating evidence is analyzed in this case, the evidence is insufficient. However, the Court of Criminal Appeals has held that there is no requirement for corroboration of specific elements of an offense, including capital murder. See Anderson v. State, 717 S.W.2d 622, 630-31 (Tex. Crim. App. 1986). There is no requirement in Article 38.14 that a particular element of an offense must be corroborated by non-accomplice testimony, only that non-accomplice testimony must tend to connect the accused with the offense. CRIM. PROC. art. 38.14; Anderson, 717 S.W.2d at 631. In this case, the jury could have rationally found that the corroborating evidence tended to connect Appellant to the attempted capital murder of Trooper Casares. Therefore, we must include Warner's accomplice testimony in our review of the sufficiency of the evidence supporting Appellant's conviction. Based upon his testimony and the non-accomplice evidence, we hold that the evidence is sufficient to support Appellant's conviction. We overrule Appellant's first issue.
In his second issue, Appellant alleges that the trial court erred when it admitted testimony from a jailer regarding a conversation between the codefendants because the probative value was substantially outweighed by the danger of unfair prejudice. The complained of testimony is as follows:
Q. Can you tell the jury what was said?Appellant asserts on appeal that the admitted statement offered no probative value in the context of determining whether the State proved Appellant's guilt beyond a reasonable doubt. Appellant contends that the statement was "only useful to impress the jury in an irrational but indelible way."
A. Yes, ma'am. Wasn't an exact quote, but the best of my knowledge I could hear, "yes, we may have been in the car or fired a gun like they say, but how are they going to prove any of that? They didn't take no fingerprint analysis or gunshot powder analysis on either of us once we came in. They just now running the s**t and ain't nothing going to be on our hands now. If they wanted to pin something on us then they should have done all that when they first arrested us, not now. I need to tell my lawyer about all of that." That was Mr. Johnson in separation cell 5 directly to my right of the control room saying this. Then McDonald said, "real s**t, Cuz."
We review a trial court's ruling on admissibility of evidence for an abuse of discretion. See Coble v. State, 330 S.W.3d 253, 272 (Tex. Crim. App. 2010). We will uphold the trial court's decision unless it lies outside the zone of reasonable disagreement. Salazar v. State, 38 S.W.3d 141, 153-54 (Tex. Crim. App. 2001).
Appellant initially objected to the testimony as hearsay. The trial court overruled that objection as non-hearsay on the basis that it was an admission by a party-opponent. Appellant subsequently asserted that the testimony was "overly prejudicial." Texas Rule of Evidence 403 provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay or needless presentation of cumulative evidence. TEX. R. EVID. 403; see Young v. State, 283 S.W.3d 854, 874 (Tex. Crim. App. 2009). A trial judge is presumed to engage in the required balancing test once Rule 403 is invoked. See Williams v. State, 958 S.W.2d 186, 195-96 (Tex. Crim. App. 1997) (citing Santellan v. State, 939 S.W.2d 155, 173 (Tex. Crim. App. 1997)). Our analysis under Rule 403 includes, but is not limited to, the following factors: (1) the probative value of the evidence, (2) the potential to impress the jury in some irrational yet indelible way, (3) the time needed to develop the evidence, and (4) the State's need for the evidence. Hernandez v. State, 390 S.W.3d 310, 324 (Tex. Crim. App. 2012); Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2006).
Appellant contends that the probative value of the jailer's testimony regarding his conversation with a codefendant was outweighed by the danger of unfair prejudice. He is essentially asserting that the conversation was an admission of his guilt and that, by allowing the conversation to be entered into evidence, the State did not have to prove every element of Appellant's guilt. We disagree.
Under Rule 403, it is presumed that the probative value of relevant evidence outweighs any danger of unfair prejudice. Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009). The admission by Appellant that he was in a car and fired a gun was relevant because it made the likelihood that Appellant participated in shooting at Trooper Casares more probable. Additionally, the time needed to develop the evidence was brief, and it did not constitute the repetition of evidence that was already admitted. While the challenged evidence was prejudicial to Appellant, we do not believe that the evidence had a tendency to confuse or distract the jurors from the main issues in an irrational way. We conclude that the trial court's decision to admit the testimony was not outside the zone of reasonable disagreement. Accordingly, the trial court did not abuse its discretion when it admitted the jailer's testimony of Appellant's conversation with a codefendant. Appellant's second issue is overruled.
This Court's Ruling
We affirm the judgment of the trial court.
JOHN M. BAILEY
JUSTICE January 21, 2016 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.