No. 05-02-00344-CR.
Opinion Filed January 9, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.2(b).
Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-74866-KN. AFFIRM.
Before Justices WRIGHT, BRIDGES, and O'NEILL.
Opinion By Justice CAROLYN WRIGHT
Cleotis Raymond Jones, Jr. appeals his conviction for capital murder. After the jury found appellant guilty, the trial court assessed a mandatory life sentence. See Tex. Pen. Code Ann. § 12.31(a) (Vernon 1994). In three points of error, appellant contends the trial court erred by admitting certain evidence and the evidence is factually insufficient to support his conviction. We overrule appellant's points of error and affirm the trial court's judgment.
Background
Jadrian Whaley, appellant's friend, testified that Whaley, Claude Marshall, Xavian, Marlin, Amad, and appellant met at Marlin's house and planned to go to a Halloween party. All of the men wore either face paint or a mask; appellant had his face painted with white and black face paint. Whaley overheard appellant, Claude Marshall, and Xavian talking about "hitting a lick," or robbing someone. The young men decided to go to Marlin's house. They left in three cars: appellant and Xavian in one car; Marlin and appellant in another; and Whaley and Amad in the third. Appellant and Xavian turned into a mall parking lot. As Whaley and Amad continued down the street, Whaley saw appellant "run up to a dude and hit a dude." Whaley thought appellant was hitting him "over and over." A short time later, at Marlin's house, appellant told Whaley he was trying to get money from the man and they got into "an altercation." Whaley asked appellant if he hit the man, and appellant replied he stabbed him. Harmon Williams testified he was in his car near where Hisham Tagi was murdered. Williams saw a man "swinging" at Tagi and then saw Tagi fall to the ground. Williams got out of his car. The man who had been "swinging" at Tagi ran by Williams. The unidentified man had his face painted and matched appellant's height and build. He was holding a "very large hunting knife" in his hand and said, "If you want some, come get some." Williams saw the man drive away in a red, four-door Grand Am. According to Williams, the man with the knife did not have a noticeable limp. Tedrick Williams testified that Marshall, Marlin, "a couple other guys," and appellant came into the barbershop where he was working. Some of the men, including appellant, had their faces painted. Marshall spoke with Tedrick while the others washed their faces. Marshall told Tedrick he and the others had been "riding around fixing to hit a lick." They asked a man in front of the Toys "R" Us for money. According to Marshall, when the man told them he did not have any money, appellant "immediately started stabbing the guy." Manuel Herrera testified he was in jail with appellant. After the newspaper had a story about Tagi's murder, appellant told Herrera that what he, appellant, had done was wrong. Appellant explained to Herrera that he had robbed Tagi to get money to buy "whack." According to appellant, Tagi "didn't want to give it up" so he "shanked him." Herrera explained that "shanked him" meant appellant stabbed Tagi. Appellant also told Herrera the incident occurred near Red Bird Mall. Detective Gary Grable testified that he is a homicide detective with the Dallas Police Department. He spoke with appellant about Tagi's murder. During that interview, appellant initially claimed he was at home when Tagi was killed. Later the same night, appellant admitted to being at the Toys "R" Us when Tagi was killed, but he claimed Marshall "did it all." Grable described appellant as being about six feet tall and weighing about 170 pounds. Marshall was 6'1", and weighed 265 pounds. Grable also testified that Marshall walks with a "significant" limp. After hearing this and other evidence, the jury found appellant guilty of capital murder. This appeal followed. Discussion
In his third point of error, appellant contends the evidence is factually insufficient to support his conviction. According to appellant, we must reverse his conviction because "there is no real direct evidence to connect" appellant to the offense. We disagree. In a factual sufficiency review, we review the evidence in support of and contrary to the verdict to determine whether the evidence is so weak that it renders the verdict clearly wrong and manifestly unjust or the verdict is contrary to the great weight and preponderance of the evidence. See Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000); see also Scott v. State, 934 S.W.2d 396, 398-99 (Tex.App.-Dallas 1996, no pet.). We examine the fact finder's weighing of the evidence and are authorized to disagree with the fact finder's determination. Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996). This review, however, must employ appropriate deference to prevent an appellate court from substituting its judgment for that of the fact finder, and any evaluation should not substantially intrude upon the fact finder's role as the sole judge of the weight and credibility given to witness testimony. Johnson, 23 S.W.3d at 6. Here, the record shows appellant admitted stabbing Tagi to both Whaley and Herrera. Appellant also admitted to the police that he was present during the commission of the offense, although he claimed Marshall "did it all." Williams testified he witnessed Tagi's murder. Although he could not positively identify appellant, the person Williams saw stabbing Tagi matched appellant's, not Marshall's physical description. Finally, witnesses to Tagi's murder described the murderer's face as painted with white face paint. A short time after the murder, appellant came into the barbershop where Tedrick worked and used the bathroom to wash white face paint from his face. Although eyewitnesses to the murder testified the car he drove was a red Grand Am, rather than a red Escort, these contradictions in the evidence were for the jury, not this Court to resolve. After reviewing the evidence in support of and contrary to the verdict, we cannot conclude the evidence is so weak that it renders the verdict clearly wrong and manifestly unjust or that the verdict is contrary to the great weight and preponderance of the evidence. Thus, we conclude the evidence is factually sufficient to support appellant's conviction for capital murder. We overrule appellant's third point of error. In his first two points of error, appellant contends the trial court abused its discretion by admitting Tedrick's testimony about a statement, made to Tedrick by appellant's co-defendant Marshall, implicating appellant in this offense. Specifically, appellant contends the complained-of testimony was admitted in violation of (1) Texas Rule of Evidence 803(24), and (2) the Confrontation Clause of the United States Constitution. We need not determine if the trial court erred, because even assuming it did, after reviewing the record, we conclude appellant was not harmed by the admission of the complained-of evidence. Tedrick's testimony about Marshall's statements against appellant's interest comprised only a small portion of the evidence implicating appellant in Tagi's murder. Appellant admitted to two people that he stabbed Tagi. Appellant told the police he was at the scene of the crime, but that Marshall killed Tagi. However, eyewitnesses to the crime testified the man who killed Tagi matched appellant's, not Marshall's, physical description. The totality of this evidence renders the complained-of evidence relatively insignificant. See Guidry v. State, 9 S.W.3d 133, 151-52 (Tex.Crim.App. 1999). After reviewing the record in this case, we conclude beyond a reasonable doubt, in light of this evidence, that admission of Williams's testimony regarding Marshall's statements implicating appellant as the person who stabbed Tagi did not contribute to his conviction or punishment. See id. We overrule appellant's first and second points of error. Accordingly, we affirm the trial court's judgment.