Opinion
NO. 02-15-00152-CR
05-05-2016
KENDRION LAMONT WILEY APPELLANT v. THE STATE OF TEXAS STATE
FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
TRIAL COURT NO. 1320810D MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
I. Introduction
Forty-four-year-old divorcee Rebecca Bates was living alone in a two-bedroom apartment with no electricity when someone broke into her apartment, beat her with a board, and stabbed her. She identified appellant Kendrion Lamont Wiley, her neighbor, as her assailant, and a jury convicted him of burglary of a habitation with intent to commit aggravated assault and aggravated assault with a deadly weapon. See Tex. Penal Code Ann. § 1.07(a)(17)(B) (West Supp. 2015), §§ 22.02(a)(2), 30.02(a) (West 2011). In two issues, Wiley complains that there is insufficient evidence to show that he was the perpetrator or that the perpetrator intended to use a deadly weapon before he entered Bates's apartment. We affirm.
II. Factual and Procedural Background
According to Bates, on March 30, 2013, around 10 p.m., she walked over to Wiley's apartment next door and asked him for a cigarette. Wiley, who was in his apartment with someone else, asked her to wait for a moment. A few minutes later, he gave her a cigarette, and she returned to her apartment.
One of the responding officers recited a slight variation in Bates's account—Bates told police that when she went to her neighbor's for a cigarette, he was on the phone and told her to hold on. She left, walked to a gas station, and bought a pack of cigarettes.
Shortly thereafter, Bates was sitting on her patio, which was illuminated only by the apartment complex's outside lights, and a man she later identified as Wiley entered through the patio door, punched her in the face, and knocked her over, sending her cell phone flying. Bates testified that he then dragged her by her feet, swung her into a sliding glass door, and stomped on her head and chest. Before leaving, he kicked her. Bates grabbed her damaged cell phone, retreated into her apartment—locking her patio door and the door between the patio and the apartment behind her—and went into her bedroom where she began to reassemble her phone.
Witnesses, including Bates, described her apartment as having an enclosed patio outside with a separate door from the patio area into the residence.
Fifteen to thirty minutes later, Wiley returned. This time, according to Bates, he "kicked it or broke it or ran through [the door]," knocked her down, and choked her until she passed out and urinated on herself. Even though no lights were on in the apartment, Bates said that she recognized Wiley because he spoke to her, accusing her of having "disrespected him." After Bates regained consciousness, Wiley used a white wooden board—swinging it like a baseball bat—to strike her back, her head, and her face. Bates said that she had no boards inside her apartment that he could have used and that she did not know where the board came from.
Bates also testified that there was some light in the bedroom coming from the lighting outside.
According to a detective who subsequently investigated the incident, Bates claimed that Wiley had picked up a piece of wooden shelf. At the time, the detective assumed that the piece of shelf was from Bates's apartment, but at trial he clarified that Bates never said that it had come from her apartment, nor did he see any wooden shelves in her apartment or in Wiley's apartment.
The beating stopped after Wiley broke the board on her face, but the attack continued. According to Bates, using a piece of the broken board, Wiley began to stab her in the face, throat, and chest area, causing multiple lacerations, including a large wound just outside of the socket of her left eye. Bates testified that when he stabbed at her heart, she put her hand up to defend herself, and the stick penetrated her hand instead. Bates grabbed ahold of the wood that was lodged in her hand, and when Wiley told her to let go, she refused, so he lifted her up by the stick and began punching her with his fist.
Bates testified that at that point, "it got really warm, like a lot of blood came out of my ear and the pressure was gone." Then Wiley told her that he was going to light her on fire. According to Bates, he threw clothes on top of her and went outside to get a gas can from her porch. At that point, Bates got up, grabbed her cell phone and battery, placed the battery inside the cell phone, and dialed 911.
The trial court admitted the 911 recording and allowed the State to publish it to the jury. In the twelve-minute recording, Bates told the 911 operator that her assailant, whom she identified as Kendrion Lamont Wiley, had stabbed her in the eye, face, and chest and was coming back to set her on fire. Bates described Wiley as a thirty-six year old black male, said that he broke the door in, and said that she was bleeding "everywhere." The police arrived approximately seven minutes after Bates initiated the call.
According to Arlington Police Corporal Jacob Williams, who was dispatched after 911 received Bates's call, when he arrived at the scene he noticed that the door to the patio entrance area was "wide open" and appeared to have been forced open with the lock still engaged. The patio door's hinges were still intact, but the doorjamb, where the locking mechanism locked into the wall, had been completely destroyed and detached from the door frame. When Corporal Williams called out, Bates—who he described as very frightened, with blood running down her face—opened the door to the apartment. When he asked her what happened, Bates told him that "Monte" had broken in, beaten her, broke a piece of wood over her, stabbed her in the eye, and then left to get a gas can so that he could set her on fire.
Photographs of the damaged door were admitted into evidence and published to the jury.
Arlington Police Officer Jessica Adams, who also responded to the scene, said she observed a broken sliding glass door and described the scene as having "blood everywhere"—on Bates's face and clothes and on her bed and the floor. Officer Adams testified that Bates begged the police not to leave her because "Monte" was going to come back and hurt her, and Officer Adams had to continuously reassure Bates she would not be harmed any further. According to Officer Adams, when Bates related the details of the assault, she did not hesitate in her identification of Wiley as her assailant.
Later, when Officer Adams gathered Bates's clothes from the hospital, she noticed that Bates's pants seemed to be saturated with what smelled like urine.
Bates had also described her assailant to the police as a black male, "approximately 6 foot 3," with a tattoo on his arm and gold teeth, who lived in the apartment "catty-corner" from hers. The trial court admitted several photographs of Wiley that were taken at the jail after his arrest. The photographs reveal that Wiley is a black male with gold teeth and a tattoo on his arm who appeared to be between the ages of 25 and 40.
Approximately five minutes after arriving on the scene, and after searching Bates's apartment to make sure no one else was inside, Corporal Williams and two other officers went to Wiley's apartment. The officers called out multiple times and knocked fifteen to twenty times before they finally heard a male voice, like a low mumbling, from behind the patio wall, and Wiley came to the door and identified himself as "Monte." Corporal Williams testified that Wiley, who answered the door in his boxer shorts, was sweating profusely and had scratches and abrasions on his body. He also had dried blood on his hands and underneath his fingernails. The police arrested Wiley, transported him to jail, and took crime scene photos.
The photographs admitted into evidence also depict abrasions and dried blood on Wiley's body.
During a protective sweep of Wiley's apartment, the police also identified another man named Ignacio Amora. Arlington Police Officer Michael Adams, who had also responded to the 911 call, testified that there was nothing unusual about Amora—he did not seem nervous or sweaty and had no blood on him, but he appeared to be tired, like he had just awakened, and seemed confused about why the officers were there. Amora was not arrested.
Arlington crime scene investigator Shannon Fallentine testified that she was dispatched to the scene and arrived after Bates had already been transported to the hospital. Fallentine took latent fingerprints, one of which, from the exterior of Bates's apartment's front door, matched Wiley's fingerprints, although she could not determine when the print was put there. Although Fallentine collected some wood fragments at Bates's apartment, she testified that she saw no furniture, cabinetry, or shelving inside the apartment from which the fragments could have come and that she would have photographed broken pieces of furniture if she had seen any.
Dr. Daniel Ziegler, one of the physicians at John Peter Smith hospital (JPS) who examined and treated Bates that evening, testified about her medical condition and injuries. Dr. Ziegler testified that Bates reported that she had been kicked multiple times in the head, chest, and abdomen and had been choked and lost consciousness. Her injuries included facial trauma with a two-inch laceration near her left eye and other cuts on her lip and left jaw. In addition, according to Dr. Ziegler, a CT scan had revealed three fractured ribs and a partially-collapsed lung.
Bates's urine was tested at JPS, revealing that she had amphetamines in her system.
Dr. Ziegler testified that Bates's fractured ribs would have required a "pretty heavy blow" and agreed that the injury could have been caused by the swinging of a solid object, like a piece of wood. He further confirmed that such a blow could produce serious bodily injury, such as protracted loss of use of a limb, permanent disfigurement, risk of death, or death itself and that Bates's injuries would be painful to receive and to endure while recovering.
Two days after the assault, the case was assigned to Arlington Police Detective Hugh Trinh for investigation. Detective Trinh prepared a photo lineup with six different photographs, including a photograph of Wiley, in random order, and he and Arlington Police Detective Melissa Heisel took the lineup to Bates at the hotel where she was staying. Detective Heisel showed the photo lineup to Bates, who immediately identified Wiley as the perpetrator.
At trial, Wiley objected to the admission of the photo lineup because his photo was the only one in which the suspect was shirtless. The trial court overruled his objection and admitted State's Exhibit 82.
To increase the fairness and impartiality of the process, Detective Heisel served as a "blind administrator," meaning she did not know who the suspect was or indeed anything about the investigation at all, except that Bates was the victim, when she showed the photo line-up to Bates.
Bates's identification of Wiley on this and other occasions conflicts with Bates's description of her assailant to medical personnel at JPS as her "boyfriend who still resides at the home." Bates testified that she and Wiley had never dated, and she confirmed that she never would have considered him to be her boyfriend. Bates also admitted at trial that she had some short-term memory issues.
After Bates identified Wiley from the photo lineup, she provided a written statement to Detective Trinh. Detective Heisel described Bates during this process as afraid, physically upset, and apprehensive about prosecuting; Detective Trinh recalled that she was crying and her hands were shaking. By the time the two detectives left her hotel room that day, Bates had equivocated and had signed an affidavit of nonprosecution. But as Detective Trinh left, he advised her to call him if she changed her mind. The very next day she did, expressing to him that she had changed her mind and wanted to prosecute after all.
At trial, Bates explained that she signed an affidavit of nonprosecution because she was scared to go forward with the case, but then she changed her mind.
Several weeks later, Detective Trinh obtained two search warrants—one to search Wiley's apartment for any articles of clothing with blood stains, any shoes with blood on them, or any broken wooden sticks, and the other to obtain a saliva sample from Wiley. In the meantime, Bates voluntarily provided a saliva sample to the police.
Wiley resisted giving the saliva sample and had to be strapped down by eight detention officers before it could be obtained.
When Detective Trinh and the accompanying officers executed the first search warrant, they found an apartment in disarray, with clothes everywhere and a mattress turned upside down. The electricity had been turned off and the apartment appeared as though it had been abandoned for a while. Except for a pair of blood-stained jeans found in the laundry room, no other items that were listed on the search warrant were found. Detective Trinh later sent the jeans and saliva samples obtained from Wiley and Bates to be tested.
On cross-examination, Detective Trinh acknowledged that Wiley had been incarcerated since the incident and that he had no knowledge of who might have occupied the apartment between March 31 and April 30, the date the search warrant was executed.
Jennifer Valentine, who at the time of the investigation was the senior forensic biologist with the Tarrant County Medical Examiner's Office, performed a DNA analysis of various items at Detective Trinh's request. She analyzed pieces of wood, an artificial fingernail obtained from Bates's apartment, buccal swabs from Bates and Wiley, palm swabs from Wiley, and the jeans and belt collected from Wiley's apartment. From the jeans and a swab taken from the pieces of wood collected at the scene, Valentine obtained a female DNA profile that matched Bates.
Bates admitted that prior to trial she visited Wiley in jail as many as seven times. She testified that she visited him because she wanted to find out why he had attacked her, although she never got an answer to her question. But she testified that each time she visited him, he asked her to sign an affidavit of nonprosecution. During one visit, Wiley told her that he was going to send her a letter but would mail it to his own apartment address because he did not know her apartment number. She testified that she checked his mailbox after that visit and found an envelope addressed to her with letters inside. The trial court admitted the packet of letters Bates identified, along with the envelope in which they had been sent, which was addressed to Bates at Wiley's apartment address and sent from the Tarrant County Jail's address.
Bates also accepted between five and ten phone calls from Wiley from the jail.
Bates testified that she recognized Wiley's handwriting from a Christmas card he had sent her the previous December.
In the letter, Wiley apologized for "not exercising more self-control," assured her that "it won't happen again," and requested that she execute five copies of a "non-prosecuting affidavit." He also cautioned her that "[d]ue to the fact that there was blood on my hands and priors," the State might try to "force the issue," in which circumstance he advised her that she would have to "make it vivid through a small-time illustration with words" and "detach [him] from the physical aspect of the attack itself." He went on to suggest that she "simply institut[e] a third party," and claim that Wiley "was on the scene after the assault looking to gather answers," and that "in shock and trauma, panic," she sent the police to Wiley "for information . . . but they arrested [him]" instead—in sum,"[s]hit got misconstrued, misinterpreted and voila."
He explained the need for five copies: "Number 1, district clerk; number 2, DA; number 3, lawyer; number 4, us; number 5, judge."
The jury found Wiley guilty of aggravated assault with a deadly weapon—a piece of wood—and the trial court sentenced him to forty-five years' confinement. The jury also found Wiley guilty of burglary of a habitation with intent to commit another felony—to wit, the aggravated assault with a deadly weapon—and the trial court sentenced him to forty years' confinement, to run concurrently with the other sentence.
III. Sufficiency
In his two issues, Wiley contends that Bates's identifications of him were tainted by the amphetamines found in her system at the time of the assault, her memory issues, and the photo lineup in which he was the only shirtless suspect. He also claims that the State showed no evidence that the perpetrator intended to use a deadly weapon before he entered Bates's apartment.
Wiley further insists that although the wood found in Bates's apartment had her DNA on it, it did not link him to the crime scene, and he speculates that the jeans found in his apartment with Bates's DNA on them were irrelevant because the crime scene "was never sealed and was most likely contaminated."
In our due-process review of the sufficiency of the evidence to support a conviction, we view all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). This standard gives full play to the responsibility of the trier of fact 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, 99 S. Ct. at 2789; Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.), cert. denied, 136 S. Ct. 198 (2015).
The trier of fact is the sole judge of the weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). Thus, when performing an evidentiary sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the factfinder. See Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we determine whether the necessary inferences are reasonable based upon the cumulative force of the evidence when viewed in the light most favorable to the verdict. Murray, 457 S.W.3d at 448. We must presume that the factfinder resolved any conflicting inferences in favor of the verdict and defer to that resolution. Id. at 448-49.
To determine whether the State has met its burden under Jackson to prove a defendant's guilt beyond a reasonable doubt, we compare the elements of the crime as defined by the hypothetically correct jury charge to the evidence adduced at trial. Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014); see Crabtree v. State, 389 S.W.3d 820, 824 (Tex. Crim. App. 2012) ("The essential elements of the crime are determined by state law."). Such a charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried. Thomas, 444 S.W.3d at 8. The law as authorized by the indictment means the statutory elements of the charged offense as modified by the factual details and legal theories contained in the charging instrument. See id.; see also Rabb v. State, 434 S.W.3d 613, 616 (Tex. Crim. App. 2014).
The standard of review is the same for direct and circumstantial evidence cases; circumstantial evidence is as probative as direct evidence in establishing guilt. Dobbs, 434 S.W.3d at 170; Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim. App. 2014). We must review circumstantial evidence of intent with the same scrutiny as other elements of an offense. Thornton v. State, 425 S.W.3d 289, 304 (Tex. Crim. App. 2014). Conduct itself is sufficient to infer intent. Connell v. State, 233 S.W.3d 460, 467 (Tex. App.—Fort Worth 2007, no pet.).
Wiley was charged with intentionally or knowingly entering a habitation owned by Bates without her effective consent and with the intent to commit aggravated assault with a deadly weapon. See Tex. Penal Code Ann. § 30.02(a)(1) (stating that it is an offense to enter a habitation without the effective consent of the owner and with the intent to commit a felony, theft, or assault). Wiley was also charged with intentionally or knowingly causing bodily injury to Bates by hitting or stabbing her with a piece of wood, a deadly weapon used or exhibited by him that in its matter of use or intended use was capable of causing death or serious bodily injury. See id. § 1.07(a)(17)(B) (stating that a deadly weapon is anything that in the manner of its use or intended use is capable of causing death or serious bodily injury), § 22.01(a)(1) (West Supp. 2015) (stating that an assault occurs when a person intentionally, knowingly, or recklessly causes bodily injury to another), § 22.02(a)(2) (stating that it is an offense for a person to intentionally or knowingly use or exhibit a deadly weapon during the commission of an assault). Serious bodily injury is "bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." Id. § 1.07(a)(46) (West Supp. 2015).
Although Bates's drug use and short-term memory issues might not have made her an ideal witness, she clearly identified Wiley on numerous occasions as the perpetrator of the assault. The jury, as the sole judge of the facts, was entitled to evaluate Bates's credibility and to weigh it and her testimony with the rest of the evidence—including the 911 call that Bates made after the attack, in which she identified Wiley as her assailant; the contents of the letter Wiley sent to Bates from the Tarrant County Jail; the photographs taken of Wiley's bloody hands and fingernails; the DNA evidence on the blue jeans found at Wiley's apartment; and the testimony of the first responders on the scene and the crime scene investigator. See Dobbs, 434 S.W.3d at 170. Because we must presume that the jury resolved any conflicting inferences in favor of the verdict and defer to that resolution, we overrule Wiley's first issue. See Murray, 457 S.W.3d at 448.
Wiley further complains that the State "was required to prove that [he] formed the requisite intent to use a deadly weapon prior [to] entering the premises." He argues that there is no evidence of his "required pre-entry mental state on the use of a deadly weapon," and that there is no evidence that the wooden board was in his possession prior to his entry.
Wiley refers us to Aaron v. State, No. 02-12-00029-CR, 2013 WL 4507861, at *3 (Tex. App.—Fort Worth Aug. 22, 2013, pet. ref'd) (mem. op., not designated for publication), for the proposition that there is no additional requisite mental state attached to the aggravating element of use of the deadly weapon. In Aaron, the appellant challenged the sufficiency of the evidence to support her aggravated assault conviction when, although she intentionally squirted her lover with lighter fluid and threw a lit cigarette at him, she claimed it was an accident and that she did not intend to set him on fire or know that doing so would cause him serious bodily injury. Id. at *1. We, in turn, held that in an aggravated-assault-with-a-deadly-weapon prosecution, there is no additional requisite mental state attached to the aggravating element of use of the deadly weapon. Id. --------
"[I]t is . . . well settled that a substantive felony and a burglary by entering a home without the consent of the owner and with the intent to commit that felony are two distinct offenses." Langs v. State, 183 S.W.3d 680, 686 (Tex. Crim. App. 2006). Therefore, to convict Wiley of the burglary count, the jury had to find that Wiley intentionally or knowingly entered Bates's habitation without her effective consent and with the intent to commit an aggravated assault with a deadly weapon. See id.
As set out above, the jury determined the witnesses' credibility. The jury therefore could have chosen to believe Bates's testimony that although she did not know where Wiley obtained the board he used to strike and stab her, he did not obtain it from her apartment. The jury could have determined from Bates's testimony that when Wiley entered her apartment and beat her for the second time that evening, he came prepared to do more damage on that occasion by breaking in the door and bringing the wooden board with him, before he left again to make preparations to burn her alive. See Connell, 233 S.W.3d at 467 (stating that intent can be inferred from conduct). And the jury could have believed the crime scene investigator's testimony that she did not see any broken furniture, cabinetry, or shelving inside Bates's apartment, leaving the only logical conclusion that Wiley brought the piece of wood into the apartment with him. From all of this, the jury could have determined that Wiley had the intent to commit an aggravated assault with a deadly weapon when he armed himself with a wooden board and forcibly entered Bates's apartment and then proceeded to beat and stab her with it. We overrule Wiley's second issue.
IV. Conclusion
Having overruled both of Wiley's issues, we affirm the trial court's judgment.
/s/ Bonnie Sudderth
BONNIE SUDDERTH
JUSTICE PANEL: LIVINGSTON, C.J.; DAUPHINOT and SUDDERTH, JJ. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: May 5, 2016