No. 01-05-00443-CR
January 12, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 338th District Court, Harris County, Texas, Trial Court Cause No. 972592.
Panel consists of Justices TAFT, KEYES, and HANKS.
TIM TAFT, Justice.
A jury convicted appellant, Felonta Conway Prince, of capital murder. See Tex. Pen. Code Ann. § 19.03(a)(2) (Vernon Supp. 2005) (proscribing murders in the course of, among other crimes, robbery). The State had not sought the death penalty, and the trial court assessed punishment at life imprisonment. See Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3602 (providing for automatic life imprisonment when State does not seek death penalty), amended by Act of May 28, 2005, 79th Leg., R.S., ch. 787, § 1, 2005 Tex. Gen. Laws 2705, 2705 (current version at Tex. Pen. Code Ann. § 12.31(a) (Vernon Supp. 2005)). We determine (1) whether there is sufficient corroboration of accomplice-witness testimony to sustain appellant's conviction; (2) whether the evidence was legally and factually sufficient to show that appellant intentionally committed the murder of Ricardo Rodriguez in the course of committing a robbery; and (3) whether the prosecutor engaged in prosecutorial misconduct by suborning perjurious testimony. We affirm.
Facts
In December of 2003, appellant enlisted Abraham Villagomez to help appellant carry out a rip-off of a drug dealer. On December 27, 2003, appellant arrived at Villagomez's apartment at 9:00 p.m., where they planned the rip-off. About an hour later, the complainant, Ricardo Rodriguez, arrived. Appellant struck the complainant in the head, causing him to fall face down on the floor. They taped the complainant's hands and legs with duct tape that appellant had brought over earlier. Then they carried the complainant to Villagomez's Honda and placed him in the trunk. Villagomez drove north on Loop 610 and entered the Hardy Toll Road. Appellant was in the front passenger seat. They could hear the complainant's struggling in the trunk. Appellant became angry, yelling at the complainant to stop. Appellant then shot his .38 millimeter revolver three times through the back seat into the trunk. After passing through a couple of toll booths, they exited and stopped in a U-turn underneath a bridge. They opened the trunk to find the complainant still alive. Appellant then shot the complainant in the head and told Villagomez to take him out. Villagomez took the complainant out of the trunk, placed him on the side of the curb, and cut off the duct tape. They then got back in the Honda, appellant fired the rest of the rounds at the complainant, and they drove off, "burning rubber." In addition to stealing the complainant's cocaine, appellant took the keys to the complainant's Infiniti, and Villagomez took the complainant's shoes and money. A resident whose home backed up to the Hardy Toll Road near the turnaround heard two gunshots around 10:37 p.m. About 11:00 p.m., a furniture delivery man discovered the body as he drove through the turnaround. He called 911 from a telephone nearby. The next morning, appellant enlisted 19-year-old Frederick Williams, who lived at the same apartment complex as Villagomez, to help remove the tires from the complainant's Infiniti. Williams observed appellant move Villagomez's Honda from one location in the complex parking lot to another location farther back. Williams had previously seen appellant drive the Honda in the company of Villagomez. Appellant told Williams that he had shot a person, taken his drugs and money, and kept his car. Appellant said that he had been a passenger when he turned around and fired at the person in the trunk of the car and that he then had finished him off with a shot to the head. Williams observed two bullet holes in the back seat of the Honda. At 8:29 a.m. that morning, police officers responded to an auto-theft-in-progress call at the same apartments. Houston Police Officer Merlie Brown approached appellant and Williams, who were standing near the complainant's Infiniti. The two appeared to be removing the tires from the Infiniti. Appellant fled and escaped. Williams told a deputy at the scene that appellant and Villagomez were often together. Arrest warrants were obtained for Villagomez and appellant. When Villagomez was arrested, he admitted his participation in the murder of the complainant. The deputy who processed the Honda found bullet holes in the back seat, blood in the trunk, and duct tape with blood on it in the trunk. The deputy medical examiner who conducted the autopsy found wounds consistent with the complainant's having been shot through the back seat and then in the head. The shot to the head produced a contact wound that was the cause of death. Later, Shawn Carville, another person whom appellant had tried to enlist in removing the tires from the complainant's Infiniti, gave a written statement, in which he said that appellant had admitted shooting a guy three times while the guy was in the trunk, opening the trunk, and then shooting the guy in the head. Shawn also testified at trial that Villagomez, a couple times before Christmas, had discussed committing a murder rip, which Shawn described as "setting up a key, the guy doesn't carry, you know, beat his ass, trunk him." Accomplice-Witness Corroboration
In his first point of error, appellant contends that there is insufficient corroboration of accomplice-witness testimony to sustain his conviction. Appellant argues that the testimony of Williams was insufficient to tend to connect appellant to the crime because of inconsistencies between Williams's testimony and that of Villagomez, the investigating deputies, and the deputy medical examiner. Article 38.14 of the Texas Code of Criminal Procedure requires that the testimony of an accomplice witness be corroborated by other evidence tending to connect the defendant with the offense committed. Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005). Because Villagomez was charged by indictment with the same offense, he was an accomplice witness as a matter of law, and the trial court instructed the jury that it must find his testimony corroborated by other evidence tending to connect appellant to the offense. The test for corroboration is to eliminate from consideration the accomplice testimony and then to examine the other inculpatory evidence to see if it tends to connect the defendant to the offense. McDuff v. State, 939 S.W.2d 607, 612 (Tex.Crim.App. 1997). The State points out several types of non-accomplice evidence that tend to connect appellant to the offense: (1) admissions that appellant made to both Williams and Shawn that he had shot a man in the same, unique way in which the complainant had been shot; (2) appellant's possession of the complainant's Infiniti shortly after the murder; and (3) appellant's recent use of the car used to commit the offense. We agree with the State as to the existence of these types of non-accomplice evidence. We hold that any of this evidence would be sufficient in itself, but, in conjunction, they overwhelmingly tend to connect appellant to the capital murder of the complainant. Accordingly, we overrule appellant's first point of error. Legal and Factual Sufficiency of the Evidence
In his second point of error, appellant contends that the evidence is legally and factually insufficient to support his conviction. A. Standards of Review
In a legal-sufficiency review, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). In reviewing a factual-sufficiency challenge, we ask "whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). The factual-sufficiency standard "acknowledges that evidence of guilt can 'preponderate' in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt." Zuniga v. State, 144 S.W.3d 477, 485 (Tex.Crim.App. 2004). Under either type of sufficiency review, the appellate court should not substitute its own judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex.Crim.App. 1996). The fact finder is entitled to believe all, some, or none of any witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). B.Legal Sufficiency Appellant contends that the evidence is legally insufficient to show that he intentionally committed murder while committing or attempting to commit robbery, making the following arguments in support: (1) there was no physical evidence supporting the allegation that the defendant killed Ricardo Rodriguez; (2) there was no physical evidence supporting the allegation that defendant robbed or intended to rob Ricardo Rodriguez; (3) there was no evidence of the firearm used to murder Ricardo Rodriguez, and the actual murder weapon had not been determined; and (4) the prosecution did not scientifically ascertain whether Villagomez or the defendant had fired a weapon recently, despite law enforcement's sizeable opportunity to do so. A legal-sufficiency review considers the evidence in the light most favorable to the verdict. When viewed in the appropriate light, the evidence, detailed earlier, shows that appellant planned to rob and to murder the complainant, that appellant enlisted Villagomez to help him, and that appellant shot the complainant first through the back seat of Villagomez's car, as the complainant lay bound by duct tape, and then point blank in the head, after which appellant fled when police converged on him and Williams the next morning while they were removing the tires from the complainant's car. We hold that a jury, viewing this evidence, could rationally have concluded that appellant committed murder by the alleged means during the course of committing robbery of the complainant. Moreover, appellant's arguments do not undermine this evidence because they are not based on evidence that is viewed in the appropriate light. Indeed, they are based on lack of evidence. Therefore, we hold that the evidence is legally sufficient to support the verdict. C. Factual Sufficiency
Also in his second point of error, appellant argues that the evidence showing guilt is against the great weight and preponderance of the evidence based on the following: (1) Nancy Domiguez testified that her husband, the complainant, had left home between 9:45 p.m. and 10:00 p.m., heading North on I-45 to Gulf Bank road; (2) Armando Martinez testified that he discovered the body a little before 11:00 p.m.; (3) Alva Wade Walker, who lived near the overpass on Hardy Toll Road where the body was discovered, testified that she heard gunshots at approximately 10:37 p.m.; (4) Carville testified that he and appellant had been together in a store at I-45 and Edgebrook and returned to appellant's apartment complex at 10:00 p.m.; (5) Kahlil Ahmed testified that Carville had been in his store with two other individuals until 9:40 p.m. on the night of the murder; (6) Lewis Eakins testified that the distance from appellant's apartment complex to the place of discovery was 37 miles; (7) Villagomez testified that appellant had arrived at his apartment at about 9:30 p.m., that the victim had arrived about one hour later, and that, upon arrival, it had taken him and appellant about 15 to 20 minutes to put the victim into the trunk of appellant's vehicle; (8) it was physically impossible for appellant to have been present at both the One Dollar Bazaar store on Edgebrook until 9:40 p.m. and at Villagomez's apartment at 9:30 p.m. and still to have shot the victim under the overpass at Hardy Toll Road at 10:37 p.m., so that his body could have been discovered at 11:00 p.m. Much of appellant's challenge rests on the credibility of the defense witnesses and the alleged incredibility of the State's witnesses. However, the Court of Criminal Appeals has instructed that, in conducting a factual-sufficiency review, "[t]he reviewing court should not substantially intrude upon the jury's role as the sole judge of the weight and credibility of witness testimony." Ortiz v. State, 93 S.W.3d 79, 88 (Tex.Crim.App. 2002). The jury simply may have disbelieved appellant's evidence and believed that of the State's witnesses, and we will not intrude on the jury's role concerning credibility in these circumstances. Appellant invites this Court to disregard the general rule and to hold instead that "the proof of the [d]efendant's guilt is so obviously weak as to undermine confidence in the determination of the jury and the proof of guilt is greatly outweighed by contrary proof making the jury's verdict manifestly unjust." We decline to do so because, "[a]s an intermediate appellate court, we must follow binding precedent of the Court of Criminal Appeals." McKinney v. State, Nos. 01-03-00565-CR, 01-03-00734-CR, 01-03-00735-CR, 2005 WL 327145, at *3 (Tex.App.-Houston [1st Dist.] Feb. 10, 2005, no pet.). We hold that the evidence on which appellant relies does not so undermine the evidence supporting guilt as to render the verdict clearly wrong or manifestly unjust. Accordingly, we hold that the evidence is factually sufficient to support the verdict. We overrule appellant's second point of error. Prosecutorial Misconduct
In his third point of error, appellant contends that the State engaged in prosecutorial misconduct. Appellant alleges that one of the State's witnesses committed perjury during the trial on the merits, the prosecutor was aware of the perjured testimony, and the prosecutor did nothing to correct the false testimony. A person commits aggravated perjury if, with intent to deceive and with knowledge of the statement's meaning, he or she makes a false statement under oath in connection with an official proceeding, and the false statement is material. Tex. Pen. Code Ann. §§ 37.02, 37.03, 37.04 (Vernon 2003). A statement is material if it could have affected the course or outcome of the official proceeding. Id. § 37.04(a). Testimony that could have affected the course of the proceeding is material when such testimony, if believed by the finder of fact, bears directly on the credibility of the State's witnesses. Mitchell v. State, 608 S.W.2d 226, 228 (Tex.Crim.App. 1980). Materiality refers to statements having some substantial potential for obstructing justice and excludes utterly trivial falsifications. Id. In this case, appellant argues that the testimony of Williams concerning Williams's never touching the Infiniti automobile and concerning appellant's carrying a pistol; wearing a cotton jacket; shooting the complainant in the head, chest, and stomach; placing the body in an empty field; and covering it up with sticks and trees was perjured. When trial counsel for appellant brought the matter up during trial, the prosecutor did not recall any material variances, and trial counsel for appellant twice asserted that he was not questioning the integrity of the prosecutor. The trial court advised that these were matters concerning which trial counsel could cross-examine the witness. Indeed, trial counsel had already attempted to show that the witness varied his description of the material of appellant's jacket from one videotaped statement to the next. When confronted, however, the witness could not remember saying that the jacket was leather and testified in conformity to that videotaped statement in which he had said that the jacket was cotton. Regarding the locations of the gunshot wounds, the witness did not purport to have been present so as to have personally witnessed the wounds. The same is true regarding covering up the body with sticks and trees. Appellant's brief on appeal does not explain how the witness's having testified to observing appellant carrying a pistol constitutes perjury. More importantly, appellant's brief does not explain how any inconsistency mentioned could have affected the course or outcome of the trial. Certainly, trial counsel's use of the inconsistencies in the witness's two videotaped statements and the witness's testimony at trial was abundantly developed before the jury, so that the jury could determine which, if any, version of the witness's testimony was credible. However, even if this Court or the jury had determined that each portion of the witness's testimony of which complaint is made on appeal was perjurious, appellant has not shown that it would have affected the ultimate judgment of the jury that appellant was guilty of capital murder. See United States. v. Bagley, 473 U.S. 667, 678, 105 S. Ct. 3375, 3381-82 (1985) (stating that defendant is entitled to new trial if false testimony could in any reasonable likelihood have affected jury's verdict). Accordingly, we overrule appellant's third point of error. Conclusion
We affirm the judgment of the trial court.