Opinion
Nos. 01-08-00699-CR, 01-08-00700-CR, 01-09-00157-CR
Opinion Issued: November 5, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On Appeal from the 10th District Court Galveston County, Texas, Trial Court Cause Nos. 07CR0342; 07CR1775; 07CR1774.
Panel consists of Justices KEYES, ALCALA, and HANKS.
MEMORANDUM OPINION
Appellant, Joshua Jermaine Julius, appeals a judgment that convicts him for the murder of Jarian Garrett; for aggravated assault on Jamel Washington; and, for burglary of a habitation. Appellant pleaded not guilty to the three offenses before a single jury. The jury found him guilty and the court determined his sentence at 25 years in prison for each of the offenses to run concurrently. In three issues, appellant contends that his trial attorney rendered ineffective assistance of counsel; that the accomplice witness testimony is insufficient to support his conviction; and that the non-accomplice evidence is insufficient to support his convictions. We conclude that appellant's trial counsel did not render ineffective assistance of counsel, and that the evidence is sufficient to support appellant's convictions. We affirm.
The murder is appellate cause number 01-08-00699-CR, which is trial cause number 07CR0342. The aggravated assault is appellate cause number 01-08-00700-CR, which is trial cause number 07CR1775. The burglary is appellate cause number 01-09-00157-CR, which is trial cause number 07CR1774.
Background
One early morning in January 2007, several men, including appellant and Jamaal Lewis (hereinafter "Jamaal"), raided a house occupied by Jarian Garrett and Jamel Washington, the complainants. Darron Lewis (hereinafter "Darron"), the older brother of appellant's accomplice, Jamaal, said that several hours before the shooting, appellant and Tim Campbell discussed purchasing ammunition. Darron, appellant, Campbell, and Campbell's friend, an unidentified African-American male, then went to Wal-Mart to purchase ammunition. Darron stated that upon arriving at Wal-Mart, the group initially split up. Darron and appellant first looked at air mattresses, while Campbell and his friend went directly to the ammunition counter. After looking at mattresses, Darron and appellant joined Campbell and his friend. Campbell asked Darron to buy the ammunition because Campbell did not have the identification needed to purchase ammunition. Darron purchased 7.62 x 39 millimeter AK-47 ammunition. Darron said that appellant also looked at ammunition, but decided not to purchase any because he said it was too expensive. A Wal-Mart surveillance camera recorded the ammunition purchase. The camera taped Darron, appellant, Campbell, and Campbell's friend, purchasing AK-47 ammunition. Later that evening, appellant and several other men raided a house occupied by Garrett and Washington. The initial assault occurred while Garrett and Washington were sleeping, and occurred so quickly that Washington was shot before he woke up. When he eventually awoke wounded, Washington saw two of the assailants, Jamaal and Williams. Jamaal had a handgun and was standing by the back room, while Williams had an AK-47 and was standing directly above him. When Williams notice Washington was awake, he shot him, causing Washington to black out. Washington then woke up again, so Williams shot him an additional time. However, this time, he stuck the muzzle of the AK-47 in Washington's mouth. When he fired, Washington jerked his head, resulting in a bullet wound to Washington's neck. Washington blacked out again, and when he awoke he heard Williams tell the other assailants to get out of the house because Williams was "fixing to shoot the whole house up" with his AK-47. After William's announcement, several men left the back room. Appellant was one of those men. Washington saw him run out of the back room into the living room, shoot Garrett multiple times with a handgun, and exit the house. Although appellant wore a hood over his head, Washington was able to distinguish appellant from the other assailants because of appellant's skin condition that caused white spotting on this face and body. Before exiting the house, Williams shot Garrett again, and then turned the gun on Washington, shooting him too. In all, Washington was shot 22 times, but survived. Garrett was shot six times and died. One of the men who helped raid the house was Jamaal. At trial, Jamaal testified against appellant as an accomplice witness. Jamaal explained that he, appellant, Williams, Tim Campbell, and Elmo Flowers decided to rob Garrett of drugs and money at Garrett's house after appellant and Campbell proposed the idea. Jamaal testified that appellant and Campbell supplied the two AK-47s used in the shooting. When the group arrived at Garrett's house, they tried to kick-in Garrett's door. When this failed, the group broke the locks by firing on the door with AK-47s. Once inside, Jamaal ran directly to the back room looking for drugs, while appellant and the other accomplices initially stayed in the living room where Garrett and Washington were located. While in the back room, Jamaal heard multiple gunshots come from the living room. After the raid, appellant told Jamaal he shot Garrett. Appellant also helped the other men get rid of evidence by having them dispose of their clothes at a hotel. At trial, the State presented testimony of Washington, Jamaal, Darron, Garrett's mother, a medical examiner, a crime scene investigator, and the Wal-Mart surveillance video. Appellant called Garrett's two neighbors, his father, and Washington's former girlfriend to testify. The two neighbors testified to hearing multiple gunshots at Garrett's house the night of the shooting. Appellant's father testified that appellant was with him at his house the night of the shooting. Appellant's father, however, acknowledged during cross-examination that he could not say for certain what date appellant was with him at his house. Appellant did not testify. The jury was instructed that because Jamaal was an accomplice, the jury could not convict unless his testimony was corroborated by other evidence tending to connect the defendant with the offense.Sufficiency of Non-Accomplice Testimony
In his third issue, appellant challenges the sufficiency of the non-accomplice evidence that establishes his guilt. The trial court instructed the jury that Jamaal was an accomplice as a matter of law. Appellant contends that the purchase of the ammunition at the Wal-Mart is too remote to connect appellant to the offense and that Washington's testimony cannot be used as corroboration because it conflicts with Jamaal's testimony.A. Applicable Law
An accomplice witness is someone who participated before, during, or after the commission of the crime that could be prosecuted for the offense with which the defendant was charged. See Blake v. State, 971 S.W.2d 451, 454-55 (Tex. Crim. App. 1998). Under the Texas accomplice-witness rule, a conviction cannot be had on the testimony of an accomplice unless corroborated by other evidence that tends to connect the defendant with the offense committed, and the corroboration is not sufficient if it merely shows the commission of the offense. Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005); Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999) (en banc). The accomplice-witness rule creates a statutorily imposed review that is not derived from federal or state constitutional principles defining the legal and factual-sufficiency standards. Brown v. State, 270 S.W.3d 564, 567 (Tex. Crim. App. 2008). In conducting a sufficiency review under the accomplice-witness rule, we eliminate the testimony of the accomplice witness from consideration. Castillo v. State, 221 S.W.3d 689, 691 (Tex. Crim. App. 2007). We then examine the testimony of other witnesses to ascertain whether the non-accomplice evidence tends to connect the accused with the commission of the offense. Id. We view the corroborating evidence in the light most favorable to the finding of guilt. Torres v. State, 137 S.W.3d 191, 196 (Tex. App.-Houston [1st Dist.] 2004, no pet.); Cantelon v. State, 85 S.W.3d 457, 461 (Tex. App.-Austin 2002, no pet.). The non-accomplice corroborating evidence need not be sufficient itself to establish the accused's guilt beyond a reasonable doubt. Castillo, 221 S.W.3d at 691. Additionally, the corroborating evidence need not directly link the accused to the commission of the offense. Id. Mere presence of a defendant at the scene of the crime is insufficient to corroborate accomplice witness testimony. Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996). However, evidence of the presence of the accused in the company of the accomplice, coupled with other suspicious circumstances, is proper corroborating evidence. McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997). The court may examine all facts and circumstances to determine whether an accomplice's testimony is corroborated. Munoz v. State, 853 S.W.2d 558, 560 (Tex. Crim. App. 1993) (en banc). Even apparently insignificant incriminating circumstances may sometimes afford satisfactory evidence of corroboration. Dowthitt, 931 S.W.2d at 249. If the combined weight of the non-accomplice evidence tends to connect the defendant to the offense, the requirement of article 38.14 has been fulfilled. Gosch v. State, 829 S.W.2d 775, 777 (Tex. Crim. App. 1991).B. Non-Accomplice Evidence Sufficient
In this case there is sufficient non-accomplice evidence that tends to connect appellant to the offense. Washington, the surviving victim, testified. His testimony directly links appellant to the death of Garrett. Washington testified that appellant was among several individuals who stormed Garrett's house. He testified that appellant shot Garrett "two to three" times. Washington positively identified appellant, remarking that appellant had a skin condition that left white spots on his face and body. Because Washington positively identified appellant as one of the assailants who stormed the house and shot Garrett, that is sufficient to tend to connect appellant to the commission of the offense. See Gosch, 829 S.W.2d at 777. After eliminating the accomplice witness testimony from our consideration and examining the non-accomplice evidence, we conclude that the non-accomplice evidence tends to connect appellant to the offense sufficiently to corroborate Jamaal's accomplice testimony. We hold the evidence is sufficient to meet the corroboration requirements of the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.14; Rios v. State, 263 S.W.3d 1, 7 (Tex. App.-Houston [1st Dist.] 2005, pet. dism'd) (victim's witness testimony that assailants wore masks added to circumstances that tended to connect appellant to the offense sufficiently to corroborate accomplice testimony). We need not address whether the purchase of the ammunition is also evidence that tends to connect appellant to the offense because Washington's testimony, alone, is sufficient. We overrule appellant's third issue for all three appeals.Legal Sufficiency of Evidence
In his second issue, appellant contends the "accomplice witness'[s] testimony [is] insufficient to support conviction." Appellant's entire argument is,As stated from the record, [a]ccomplice did not witness the [a]ppellant shoot the [d]ecedent. The [a]ccomplice, while testifying[,] changed his version of how the [a]ppellant arrived at [the] house of the [d]ecedent three times. Further, it m[ust] be called into question the obvious, glaring disparity between the [a]ccomplice listing three additional co-defendants in direct from confrontation [sic] from testimony of the [w]itness Washington, who names three other completely different individuals.We construe appellant's argument as a legal sufficiency challenge. See Rischer v. State, 85 S.W.3d 839, 843 (Tex. App.-Waco 2002, no pet.) (where defendant does not specify whether his challenge to evidence is factual or legal, appellate court may construe general sufficiency challenge as challenge to only legal sufficiency of evidence); Markey v. State, 996 S.W.2d 226, 229 (Tex. App.-Houston [14th Dist.] 1999, no pet.).
A. Law Pertaining to Legal Sufficiency
In a legal sufficiency review, we consider the entire trial record to determine whether, viewing the evidence in the light most favorable to the verdict, a rational jury could have found the accused guilty of all essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89 (1979); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). The jurors are the exclusive judges of the facts, the credibility of the witnesses, and the weight to give their testimony. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). A jury is entitled to accept one version of the facts and reject another, or reject any part of a witness's testimony. Id. In conducting our review of the legal sufficiency of the evidence, we do not reevaluate the weight and credibility of the evidence, but ensure only that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993). In reviewing the evidence, circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). On appeal, the same standard of review is used for both circumstantial and direct evidence cases. Id. A challenge of insufficient evidence to support the verdict is not the same as a challenge of insufficient corroboration. Utomi v. State, 243 S.W.3d 75, 80 (Tex. App.-Houston [1st Dist.] 2007, pet. ref'd), cert. denied, 128 S. Ct. 2058 (2008). We consider accomplice and non-accomplice evidence in deciding whether evidence is legally sufficient. See Rios, 263 S.W.3d at 7 (using both accomplice and non-accomplice evidence to determine legal sufficiency of evidence).B. Elements of the Offenses
Under Texas Penal Code section 19.02(b)(1), a person commits murder if he intentionally or knowingly causes the death of an individual. See Tex. Penal Code Ann. § 19.02(b)(1) (Vernon 2003). A person commits aggravated assault, under Texas Penal Code section 22.02(a), if he either intentionally or knowingly causes serious bodily injury to another or he intentionally or knowingly causes bodily injury to another with the use of a deadly weapon. See id. § 22.02(a)(1)-(2) (Vernon Supp. 2009). A person acts intentionally with respect to a result of his conduct when it is his conscious objective or desire to cause the result. See id. § 6.03(a) (Vernon 2003). A person acts knowingly with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result. See id. § 6.03(b). A person commits burglary when he, without the effective consent of the owner, enters a building or habitation and commits or attempts to commit a felony, a theft, or an assault. See id. § 30.02(a)(3) (Vernon 2003). A person commits theft when he unlawfully appropriates property with intent to deprive the owner of the property. See id. at § 31.03(a) (Vernon Supp. 2009).C. Sufficiency of Evidence Analysis
Viewing the evidence in a light most favorable to the jury's verdict, the record shows that appellant was one of the men who raided Garrett's house the night of the shooting, that he shot Garrett, and that he helped purchase ammunition for the raid just hours before the raid occurred. Appellant contends the evidence is insufficient to show appellant shot Garrett. However, both Washington and Jamaal testified that appellant was one of the men who stormed Garrett's house and shot Garrett. Washington identified appellant because of white spotting on appellant's skin, and he noted how appellant shot Garrett "two to three" times. Jamaal specifically testified that appellant was one of the men who helped raid the house, and who later told Jamaal that he shot Garrett. Additionally, Darron testified that appellant helped purchase 7.62 x 39 millimeter AK-47 ammunition before the shooting. He testified that it was at appellant's insistence they buy the ammunition, and he testified that appellant was there in the Wal-Mart at the ammunition counter when he purchased the ammunition. A Wal-Mart surveillance video demonstrated that appellant was at Wal-Mart, shopping for and helping Darron purchase ammunition approximately nine hours before the shooting. The crime scene investigator, Officer Mora, also testified that Garrett's door and house were riddled with bullets and covered with multiple 7.62 x 39 and .380 millimeter shell casings. Appellant further contends the evidence is insufficient because Jamaal changed his testimony regarding how appellant arrived at the house. Prior to trial, Jamaal made a statement to the police in which he said appellant was not in the house during the raid. At trial, Jamaal testified that appellant entered the house during the raid, and was one of the men who shot Garrett. When asked why his testimony differed from his original statement, Jamaal explained that he initially covered up for appellant because he knew appellant and his brother were close friends. Jamaal stated that he later decided to tell the truth because he felt badly that a person was dead as a result of appellant's actions. Finally, appellant asserts that the evidence is insufficient because there were inconsistencies between statements by Washington and Jamaal regarding which men stormed Garrett's house. When Washington gave his initial statement to police after the shooting, he listed appellant, Jamaal, Williams, Alfred Spurlock, Chris Spurlock, and Jeremy Jones as the men who raided Garrett's house. Washington later said he could not be sure that Alfred, Chris, and Jones were involved. At trial, Washington stated that he could only identify appellant, Jamaal, and Williams as part of the group that stormed the house. Jamaal, on the other hand, stated prior to trial that appellant was not one of the men who stormed his house. Jamaal later changed his statement, and testified that appellant was one of the men, and that he initially did not identify appellant because he was trying to protect him from prosecution. At trial, he testified that he, appellant, Williams, Campbell, and Flowers were the men who raided Garrett's house. Although the initial statements by Washington and Jamaal differed, their testimony at trial concerning appellant was the same. Both testified that appellant, Jamaal, and Williams were three of the men who raided Garrett's house. Washington testified that he did not know for sure who the other men were, besides those he identified. Jamaal testified that two of those men were Campbell and Flowers. Both testimonies identified appellant as one of men who shot Garrett. When the evidence is viewed in the light most favorable to the jury's verdict, the logical force of the total combined evidence shows that a jury could reasonably find beyond a reasonable doubt that appellant shot Garrett, and was one of the several men who raided Garrett's house. See Vodochodsky, 158 S.W.3d at 509. We, therefore, hold the evidence is legally sufficient to prove that appellant intentionally or knowingly caused the death of Garrett. See Tex. Penal Code Ann. § 19.02(b)(1). We further hold that the evidence was legally sufficient to prove that appellant intentionally or knowingly threatened Washington with imminent bodily injury by pointing a firearm at Washington. See Tex. Penal Code Ann. §§ 22.02(a)(1)-(2). Finally, we hold that the evidence was legally sufficient to show he entered the habitation of Washington and committed a felony. See id. § 30.02(a)(3). We overrule appellant's second issue for all three appeals.Ineffective Assistance of Counsel
In his first issue, appellant contends that trial counsel's representation was ineffective because trial counsel (1) failed to introduce impeachment evidence against accomplice witness Jamaal and (2) failed to timely object to the Wal-Mart in-store video of the ammunition purchase.A. Applicable Law
To prevail on a claim of ineffective assistance of counsel, the appellant must show that his trial counsel's performance was deficient and that a reasonable probability exists that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068 (1984). The first prong of the Strickland test requires that the defendant show that counsel's performance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Thus, the defendant must prove, by a preponderance of the evidence, that trial counsel's representation objectively fell below professional standards. Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). The second prong requires the defendant to show a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceeding would have been different. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Thompson, 9 S.W.3d at 812. Because the reviewing court must, however, indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Any allegation of ineffectiveness must be firmly founded in the record, which must demonstrate affirmatively the alleged ineffectiveness. Thompson, 9 S.W.3d at 813 (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)). We will not speculate to find trial counsel ineffective when the record is silent on counsel's reasoning or strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.-Houston [1st Dist.] 1996, no pet.). In rare cases, however, the record can be sufficient to prove that counsel's performance was deficient, despite the absence of affirmative evidence of counsel's reasoning or strategy. See Robinson v. State, 16 S.W.3d 808, 813 n. 7 (Tex. Crim. App. 2000). Such cases are limited to occasions where no reasonable attorney could have made such a decision. Weaver v. State, 265 S.W.3d 523, 538 (Tex. App.-Houston [1st Dist.] 2008, pet. ref'd). Appellant did not file a motion for new trial, which would have afforded trial counsel an opportunity to explain her strategy, and no direct evidence in the record establishes why appellant's attorney acted as she did. We therefore presume that counsel had a plausible reason for her actions. See Thompson, 9 S.W.3d at 814. We review the record to determine whether this is one of those rare cases where no reasonable attorney could have made the decisions complained of in this appeal. See id.B. Analysis of Lack of Witness Impeachment
Appellant contends he received ineffective assistance when his trial counsel did not offer into evidence a prior inconsistent statement by Jamaal, the accomplice witness. The proper predicate for impeachment by a prior inconsistent statement requires that the witness first be asked if he made the contradictory statement at a certain place and time, and to a certain person. Huff v. State, 576 S.W.2d 645, 647 (Tex. Crim. App. 1979). If the witness denies making the contradicting statement, it can then be proved by the prior inconsistent statement. Id. If, however, the witness admits to the prior inconsistent statement, the prior statement is not admissible. Id. At trial, appellant's trial counsel cross examined Jamaal about inconsistencies between his prior statement and his trial testimony. During cross examination, appellant's trial counsel showed Jamaal his statement and asked him to read it. The State objected, stating this was improper. The trial court agreed, stating, "It is improper. It is not admitted into evidence. You can use it for impeachment purposes. However, you cannot have him read it to the jury." Appellant's trial counsel then asked Jamaal several questions concerning the inconsistencies between his former statement and his later testimony. Jamaal admitted to the inconsistencies. He stated the reason behind the inconsistencies was that he initially tried to protect appellant by not identifying him in his earlier statement. Because Jamaal admitted to making the prior inconsistent statements, the statements would not have been admissible. See id. Appellant contends his attorney was ineffective for not attempting to admit inadmissible statements. We disagree with this contention because an attorney's failure to take a frivolous action does not constitute ineffective assistance of counsel. See Cooper v. State, 707 S.W.2d 686, 689 (Tex. App.-Houston [1st Dist.] 1986, pet. ref'd).C. Analysis of Admission of Surveillance Video
Appellant contends his trial counsel should have moved to exclude the in-store Wal-Mart video of the ammunition purchase because the video was more prejudicial than probative. He contends that because his trial counsel failed to object to the video, he received ineffective assistance of counsel. Appellant asserts that the video was prejudicial because the State relied heavily on the video to support the State's law of parties theory. Appellant notes testimony that he did not personally purchase the ammunition, and asserts the Wal-Mart ammunition was not the same ammunition used in the shooting. Appellant claims that excluding the video from evidence would have damaged the credibility of Jamaal's accomplice testimony. For trial counsel to be rendered ineffective for not objecting to the video, appellant must show that, had his counsel objected to the evidence, the trial court would have erred in overruling his counsel's objection. See Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996) (en banc). To object that the video was more prejudicial than probative, trial counsel would have had to object under Rule 403 of the Texas Rules of Evidence. Rule 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. . . ." Tex. R. Evid. 403. The Court of Criminal Appeals has identified a non-exclusive list of factors to apply in making a rule 403 analysis. See Reese v. State, 33 S.W.3d 238, 240-41 (Tex. Crim. App. 2000). These factors include, but are not limited to,(1) how probative the evidence is;
(2) the potential of the evidence to impress the jury in an irrational but indelible way;
(3) the time the proponent needs to develop the evidence; and
(4) the proponent's need for the evidence.Id. Under the first Reese factor, the video was probative because it showed appellant present at an ammunition purchase several hours before being identified at the shooting by another witness. The video shows appellant, Darron, Campbell, and another unidentified man at the ammunition counter talking to the sales representatives. It shows appellant shopping for the ammunition. The video then shows Darron purchasing the ammunition with appellant and Campbell at the counter. The video also supported Darron's testimony that appellant went to Wal-Mart to purchase ammunition. The second factor requires that we examine the potential of the video to impress the jury in an irrational but indelible way. The videotape visually shows what Darron described in his testimony. The evidence from the surveillance camera would not impress the jury in an irrational and indelible way because it documents the preparation leading up to the shooting. The third factor concerns the time that the proponent needs to develop the evidence. The record indicates that the surveillance video was short, and that it took relatively little time to develop the evidence. The fourth factor, the need for the evidence, would also support a trial court's ruling to admit the evidence. The State used the evidence to support one of its non-accomplice witnesses. Under the factors identified in Reese appellant fails to show that, had appellant's trial counsel objected to the admission of the video, the trial court would have erred in overruling his counsel's objection. See Vaughn, 931 S.W.2d at 566. It is well-established that failure to object to admissible evidence does not constitute ineffective assistance of counsel. See Cooper, 707 S.W.2d at 689. Appellant does not meet the first prong of Strickland because he has failed to show that his counsel's performance fell below an objective standard of reasonableness. See Mitchell, 68 S.W.3d at 642; Thompson, 9 S.W.3d at 812. We hold appellant has failed to show he received ineffective assistance of counsel. We overrule appellant's first issue for all three appeals.