No. 05-06-00551-CR
Opinion issued February 12, 2008. DO NOT PUBLISH Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 2 Dallas County, Texas, Trial Court Cause No. F05-01415-KI.
Before Justices MORRIS, BRIDGES, and O'NEILL. Opinion By Justice MORRIS.
JOSEPH B. MORRIS, Justice.
A jury convicted Eno Nkanga of capital murder. He now complains on appeal that the trial court erred in denying his motion to suppress and the evidence against him is legally and factually insufficient. Concluding appellant's arguments are without merit, we affirm the trial court's judgment.
Factual Background
The deceased's body was found dumped under a bridge. He had been shot at such close range that his skull no longer contained his eyes or his brain. Huey Kennedy, a confidential narcotics informant, told police he had information about a murder where the body had been dumped under a bridge. Kennedy had been convicted of a federal "[d]rugs and guns" offense and was working with officers to try to decrease his sentence. He had learned of the murder through his cousin, Anthony Haywood. Haywood testified he had learned of the murder from an associate of his named "Len." Kennedy and Haywood had gone to a duplex on Forney Road where the murder had occurred. Haywood stated, "You could tell someone had been shot there." There they saw appellant and Leonard Allen attempting to clean up the evidence of the murder. According to Kennedy, appellant told him at that time that he had shot a "guy" in the back with an old 12-gauge shotgun, and when the guy turned around, he shot him in the head and "brain fragments flew everywhere on another guy that was there." Haywood testified that appellant later told him he had shot the deceased with a 12-gauge shotgun. When a crime scene detective went to the duplex, he found blood, brain matter, and bone fragments there. The officer also found a shot cup, a couple of live shotgun shells, and an empty box of 12-gauge ammunition. DNA found on the shotgun shot cup was linked to the deceased. A 12-gauge shot cup was also found inside the deceased's body. DNA evidence from cigarette butts collected at the duplex where the murder occurred were linked with appellant. George Hubbard testified that he was with Jerry Matatall on the other side of the duplex when he heard arguing about money, plus kicking, slapping, and moaning. Matatall, too, recalled hearing a "ruckus." At one point, the deceased knocked on the door begging the men to help him, but Hubbard refused to let him in. Hubbard remembered the deceased looking "scared." Hubbard and Matatall watched as appellant and another "boy" dragged the deceased away from Hubbard's door. Later, both Hubbard and Matatall heard two to three gunshots next door. Hubbard had identified appellant in a photographic lineup as one of the men who dragged the deceased away from his door, but he was not able to identify appellant at trial. Matatall identified appellant at trial but was unable to identify him in a lineup. After police linked the deceased's body with the murder reported by Kennedy, they received information that appellant could be found at a particular apartment. When officers arrived at the apartment without a warrant, appellant answered the door but refused to let them in. The officers could smell marijuana in the apartment. An officer knocked on the door again, and when appellant answered the door, the officer prevented appellant from closing the door by blocking it with his foot. The officers saw marijuana inside the apartment at that time. When backup officers arrived at the scene minutes later, they entered the apartment and found marijuana and crack cocaine in plain view. They arrested appellant. Also inside the apartment they found an empty box of 12-gauge shotgun shells and prescription bottles with the deceased's name on them. Discussion
In his first issue, appellant complains the trial court erred in denying his motion to suppress the evidence found in the apartment where he was arrested. He specifically complains the officers involved "had no authority . . . to enter the residence without a warrant and conduct a search, and any evidence seized as a result of those illegalities was tainted and subject to suppression." As noted by the State, however, appellant does not dispute the trial court's ruling that he did not have standing to raise a motion to suppress complaining of the legality of the search. A defendant seeking to suppress evidence obtained during a search always has the burden of proving standing to complain of the search. See Handy v. State, 189 S.W.3d 296, 299 n. 2 (Tex.Crim.App. 2006). Thus, appellant had to show he personally had a reasonable expectation of privacy in the apartment. See id. But when appellant was arrested, he told police he did not live at the apartment and gave an officer a different address for his residence. He admitted at trial he did not live at the apartment, which he claimed was owned by a friend of his. He stated that at the time of his arrest, he was only "staying" at the apartment that day but not residing there. He was not on the apartment's lease and did not receive mail there. He had only a black jacket and pants at the apartment, plus his toothbrush and a face towel. He had no groceries at the apartment. He stated that during the previous month and a half, he had "come in once in a while" to the apartment just "to visit." He claimed, however, that he had "the right to stay and spend the night . . . over there any time [he] chose to." He asserted that he was in possession of the apartment "with the permission of the legal occupant." We must defer in this suppression issue to the trial court's factual determinations. See Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App. 2007). Here, the trial court found appellant was nothing more than an occasional guest of the apartment's owner. Accordingly, because appellant failed to meet his burden of proving standing to complain of the search, the trial court did not err in denying the motion to suppress. We resolve appellant's first issue against him. In his second and third issues, appellant challenges the legal and factual sufficiency of the evidence against him. He specifically contends that inconsistencies and weaknesses in the testimony of the State's witnesses render their testimony unreliable. He further argues the evidence is legally and factually insufficient to prove he kidnapped the deceased or stole the deceased's prescription medications and is therefore insufficient to support his conviction for capital murder. The jury in the case was instructed to find appellant guilty of capital murder if it believed beyond a reasonable doubt that appellant murdered the deceased in the course of committing or attempting to commit robbery or kidnapping. When reviewing challenges to the legal sufficiency of the evidence, we apply well-established standards. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). We view 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. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App. 2005). The jury, as sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all of the evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000). In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). In conducting this review, we are permitted to substitute our judgment for the jury's on the question of witness credibility and weight of evidence determinations, "albeit to a very limited degree." See Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), cert. denied, ___ U.S.___, 128 S. Ct. 87 (2007). We will reverse a verdict of guilty on a factual sufficiency challenge only when we can say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. See Watston, 204 S.W.3d at 417. After reviewing the entire record under the appropriate standards, we conclude the evidence in this case is legally and factually sufficient to support appellant's conviction for capital murder. Kennedy claimed appellant told him he shot a "guy" in the back and then again in the head, causing brain matter to fly "everywhere." Evidence collected at the duplex included bits of brain matter and bone. Haywood claimed appellant told him he had shot the deceased with a 12-gauge shotgun. Boxes of 12-gauge ammunition were found at the duplex and at the apartment where appellant was arrested. A 12-gauge shot cup was found inside the deceased, and a shot cup containing the deceased's DNA was found at the duplex. Moreover, both of the neighbors at the duplex recalled the night they heard and saw the deceased threatened and harmed. Each remembered the deceased begging for help, and each identified — either at trial or in a photographic lineup — appellant as one of the men who was attacking the deceased. Both men heard gunshots the same night. Hubbard specifically recalled the argument between the men involving money. The evidence is legally and factually sufficient to support the conviction. We resolve appellant's second and third issues against him. We affirm the trial court's judgment.