No. 01-09-00971-CR
Opinion issued December 16, 2010. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 183rd District Court, Harris County, Texas, Trial Court Case No. 1099166.
Panel consists of Chief Justice RADACK and Justices MASSENGALE and MIRABAL.
The Honorable Margaret Garner Mirabal, Senior Justice, Court of Appeals for the First District of Texas, participating by assignment.
SHERRY RADACK, Chief Justice.
Appellant, Robert Dion Williams, was charged with capital murder in the course of committing robbery. See TEX. PEN. CODE ANN. § 19.03(a)(2) (Vernon Supp. 2010). The jury found appellant guilty. The State did not seek the death penalty and the trial judge assessed the mandatory punishment of life imprisonment without the possibility of parole. In two points of error, appellant contends that the evidence is legally and factually insufficient to sustain a conviction of capital murder. We affirm.
BACKGROUND
Jessica Thorn was complainant Akil Walkes's girlfriend. At the time of Walkes's death, Thorn and Walkes had been dating a few months. Walkes sold illicit drugs, specifically marijuana and codeine. Thorn was aware of this and also knew that Walkes personally used codeine from time to time. She did not know if he had used any drugs on the day of his murder. Thorn routinely spent the night at Walkes's house and had done this for approximately three months. One evening in November 2006, Thorn was at Walkes's house when he received a call on his cell phone. He immediately got dressed and went outside. Although she was suspicious that Walkes might have been meeting another woman, Thorn primarily believed his purpose in going outside was to complete a drug transaction. After Walkes went outside, Thorn checked his phone and saw that the call was from someone recorded as "Big Boy." She remembered that Walkes had received several other phone calls that evening, but did not remember any other specific caller from either of his two phones. Thorn next looked out the window and noticed a car, but she did not see any people and could not identify the car. Shortly after, she returned to bed. A short time later, Walkes and appellant entered the room and sat on the bed. Appellant was holding a silver semiautomatic handgun. Thorn began to cry and appellant yelled at her to stop. Appellant then forced Thorn to give him her money and to look for money under the mattress and through the drawers in the room. Appellant then took Thorn around the inside of the house, forcing her to look for cell phones and other property. While being forced to rummage around the home, Thorn noticed three other men. One man was looking through some DVDs. Thorn described him as a short African-American man carrying a long black gun. She described the second man as a tall African-American man. The third man was in the living room, where no lights were on, and Thorn was later unable to describe him. While in the living room, Thorn also noticed that the men had moved Walkes to the living room where he now sat with his arms tied behind his back. The men subsequently tied her hands behind her back and forced her and Walkes to the floor. Appellant repeatedly asked Walkes, "Where is the rest of it? I know you have more." Walkes replied, "I told you I gave it all to you." Appellant then shot Walkes in the head and he and the other men fled the scene. Once the men fled, Thorn was able to free herself from the braided belt binding her hands. She first called an ex-boyfriend, Willie Earl Potts, who was an acquaintance of Walkes and had just been released from prison on drug charges. She also called 9-1-1, remaining on the line with the police until they arrived at the scene. Subsequently, she called both her mother and the mother of Walkes's children. Both women came to the scene; Potts did not. At trial, Thorn testified that appellant looked like he weighed "maybe two-something" and that there was a big difference between the way he looked at the time of the murder and the way he looked at trial, the difference being his increased weight. Thorn's descriptions of the other gunmen included only references to their heights and weights. Officer D. Garcia testified that when he arrived at the scene, "a female [came] running out, screaming and yelling, waving [her] arms and then [went] back in the house." He remembered turning at least one light on, although he could not recall which light in the house he turned on. Officer Garcia spoke with Thorn intermittently and looked around the home, preparing a supplemental report as part of his investigation. Officer D. Nunez, a crime scene investigator with the Houston Police Department's Homicide Division, testified that he arrived on the scene at "around 2:29 in the morning." Nunez explained that lighting conditions are often altered by the time of his arrival. He collected the belt that Thorn said she had been tied up with, but not the thermal shirt that Walkes had been tied up with. Officer E. Aguilera was the crime scene investigator responsible for fingerprinting. He did not include in his report which items he had attempted to lift fingerprints from; however, he did lift a partial print from the front door of the home. Saldivar, an employee of the Houston Police Department's Identification Division, Latent Print Section, testified that identification could not be made based on prints found at the home. Sergeant E. Carstens testified that when he arrived on the scene, he spoke with Officer Garcia, and began to document the scene. Sergeant Carstens recovered a .380 shell casing from the living room and noted the bloodstains on the carpet, a do-rag resting on one of the bloodstains, and the tan braided belt that was used to restrain Thorn. He also found .357 cartridges and 44 rounds of .45 caliber ammunition in the bedroom. Carstens collected Walkes's cell phone, noting that an outgoing call was made to "Big Boy" at 12:29 a.m. The phone reflected incoming calls from "Big Boy" at 12:41 a.m., 1:03 a.m., and 1:12 a.m. The last two incoming calls were made after Walkes was shot. The phone number for "Big Boy" listed on Walkes's phone was appellant's phone number. Kevin Booker, a close friend of appellant, testified that he obtained a second line on his cellular service for appellant's sole use; the number was the same as that for "Big Boy" in Walkes's cell phone. On the night of the shooting, records showed that appellant called Booker a number of times beginning at 12:50 a.m. and ending at 1:44 a.m. These calls each show a call time of one minute, and Booker testified that he could not recall if he and appellant actually spoke. Booker also testified that appellant's nickname was "Fro," that he had heard appellant referred to as "Big Rob," but that he had never known him to be called "Big Boy." He also provided law enforcement with pictures of both himself and appellant. He testified that appellant never told him to deny knowing him or not to turn over photographs. The follow-up investigation was conducted by Officer J. Bonaby. As part of his investigation, he presented photo spreads of appellant and Booker to Yanetra Chanel Cole (the mother of Walkes's children), Lashay Walkes (Walkes's mother), and Thorn. Ms. Cole was able to identify appellant, but not Booker. Ms. Walkes identified appellant by the name "Big Boy" and made no identification when shown Booker's spread. Cole and Walkes also both identified appellant in a large, single photograph. When shown the photo spread containing appellant's photo, Thorn began "shaking and crying and [was] physically just unable to control herself." In position 6, the photograph of appellant, she wrote "this is the guy that I know as Big Boy, [t]his is the person who shot [Walkes] with a silver handgun." Officer Bonaby testified that she subsequently made the same comment on the single photo, though this was not included in his report. Officer Bonaby also presented each spread to Walkes's friend, Elmus White, who identified appellant as "Big Boy" and did not identify Booker. Booker marked appellant's name on the photo as "Cuz." Sergeant C. Elliot was the investigator working with Officer Bonaby. He testified that a search for the name "Big Boy" in the Fondren Crime Analysis Unit (covering the area of the murder) produced several hundred suspects known as "Big Boy." Sergeant Elliot confirmed that no attempt was made to obtain cell tower records for the phones on the scene. Sergeant Elliot was also responsible for compiling the photo spreads that were shown to the witnesses. He explained the process of putting together these spreads and explained that the reason for not shuffling the position of pictures from witness to witness was a tenfold increase in probability of making an error. M. Feeney, an assistant medical examiner for Harris County, performed the autopsy in the case. She did not note any marks on either Thorn or Walkes that would indicate that they had been tied up. She did confirm that Walkes had PCP in his system at the time of his death and that he had "various non-specific scars." Feeney testified that cause and timing of an injury cannot be determined from a scar alone, but she confirmed that it was possible that a bullet had grazed his head, leaving a scar, four or five months prior to his death. Dr. Gahn, Forensic Biology DNA and Trace Section supervisor at the Houston Police Department Crime Laboratory, was responsible for supervising the testing of DNA samples from the braided belt with which Thorn was tied. She testified at trial that she took a scraping sample and a swabbing sample from the belt. She further testified that appellant's DNA was not present on the scraping sample, and that the swabbing sample could neither confirm nor exclude appellant as a contributor. Lashay Walkes also testified at trial. Walkes had lived with her at the time of his death, but his mother spent many nights in Missouri City with her boyfriend. Lashay testified that she had been under the impression that Walkes worked at a detail shop and did not know that he dealt drugs. Lashay testified that she did not remember Thorn spending the night at her home. She said that she did remember seeing appellant at the house, but that she was never introduced to him. She also testified that Elmus White was at the house frequently. Heather Barker is a Human Resources Director at Noble Logistics Inc, where appellant began working shortly after the murder. She is the custodian of records at Noble and confirmed appellant's phone number via his job application. Barker testified that she recognized appellant because appellant had visited his mother, who also worked there, prior to his employment with the company. However, the defense counsel pointed out at a bench conference that it was impossible for this to be true because appellant was arrested and confined before Barker began working at Noble. She stated in the presence of the jury that she was mistaken when she identified appellant in court. SUFFICIENCY OF THE EVIDENCE
In two issues, appellant contends that the evidence is both legally and factually insufficient to sustain a conviction of capital murder. A. Standard of Review
An appellate court reviews both legal and factual sufficiency challenges using the same standard of review. Brooks v. State, No. PD-0210-09, 2010 WL 3894613, at *14, 21-22 (Tex. Crim. App. Oct. 6, 2010); Ervin v. State, No. 01-10-00054-CR, 2010 WL 4619329, at *3 (Tex. App.-Houston [1st Dist.] Nov. 10, 2010, no pet. h.). Under this standard, evidence is insufficient to support a conviction if, considering all the record evidence in the light most favorable to the verdict, no rational fact finder could have found that each essential element of the charged offense was proven beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Viewed in the light most favorable to the verdict, the evidence is insufficient under this standard in two circumstances: (1) the record contains no evidence, or merely a "modicum" of evidence, probative of an element of the offense; or (2) the evidence conclusively establishes a reasonable doubt. Laster, 275 S.W.3d at 518; Williams, 235 S.W.3d at 750. If an appellate court finds the evidence insufficient under this standard, it must reverse the judgment and enter an order of acquittal. See Tibbs v. Florida, 457 U.S. 31, 41-42, 102 S.Ct. 2211, 2218 (1982). An appellate court determines whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). An appellate court presumes that the fact finder resolved any conflicting inferences in favor of the verdict and defers to that resolution. See Jackson, 443 U.S. at 326, 99 S.Ct. at 2793; Clayton, 235 S.W.3d at 778. An appellate court may not re-evaluate the weight and credibility of the record evidence and thereby substitute its own judgment for that of the fact finder. Williams, 235 S.W.3d at 750. B. Capital Murder
Under the law applicable to this case, a person commits the offense of capital murder if he intentionally or knowingly causes the death of an individual in the course of committing robbery. See TEX. PEN. CODE ANN. § 19.03(a)(2) (Vernon Supp. 2010); TEX. PEN. CODE ANN. § 19.02(b)(1) (Vernon 2003). It is well established that the testimony of a single eyewitness can be legally sufficient to support a conviction. Davis v. State, 177 S.W.3d 355, 359 (Tex. App.-Houston [1st Dist.] 2005, no pet.) (citing Aguilar v. State, 468 S.W.2d 75,77 (Tex. Crim. App. 1971)). C. Sufficiency Analysis
Here, the testimony of Thorn alone is enough to support conviction. Thorn identified appellant from a photo spread as "the guy I know as Big Boy, [t]he person who shot [Walkes] with a silver handgun." Thorn provided a narrative for the jury of the night of the incident, including the events leading up to and surrounding both the robbery and Walkes's murder. During her description of the events, Thorn identified appellant in the court room as the man who murdered Walkes. Thorn noted at trial that she was able to "get a good look at [appellant's] face" and that "he had a gun facing towards [her]." When describing Walkes's murder, she noted she clearly saw appellant when he shot Walkes. She further noted that appellant made Walkes lie on his stomach, and that she saw appellant shoot Walkes in the head when Walkes told appellant that he had no more drugs to give appellant. When asked by the State, "[d]id you see the defendant shoot [Walkes]," appellant responded affirmatively. She also noted that appellant shot Walkes with the silver handgun that she had seen him with earlier. Appellant makes the contention that there were inconsistencies in Thorn's statements; however, we must defer to the jury to decide the credibility of her testimony. See Petro v. State, 176 S.W.3d 407, 412 (Tex. App.-Houston [1st Dist.] 2004, pet. ref'd). Evidence also indicates that the murder was drug-related. See Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004) (motive is significant circumstance indicating guilt). Thorn testified at trial that it was her perception that appellant was looking for drugs when he robbed Walkes. Additionally, immediately prior to shooting Walkes, appellant demanded "Where is the rest of it? I know you have more. Where is the rest of it?" Thorn's testimony indicates that the purpose of Walkes's initial interaction with appellant was drug related. It further indicates that appellant was looking for drugs when he robbed and murdered Walkes. Viewing all evidence in the light most favorable to the verdict, the evidence shows that a jury could reasonably find beyond a reasonable doubt that appellant knowingly caused the death of another while in the course of committing robbery. Thus, the evidence is legally sufficient. See Davis, 177 S.W.3d at 359 (holding testimony by one witness can be legally sufficient to support conviction). We overrule appellant's first and second issues. CONCLUSION
We affirm the judgment of the trial court.