Woodard v. State

Full title: BRANDON LOHRAN WOODARD, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Apr 8, 2003

No. 05-02-00839-CR (Tex. App. Apr. 8, 2003)

Opinion

No. 05-02-00839-CR.

Opinion Issued April 8, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.

Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F00-53218-M. Affirmed.

Before Justices JAMES, BRIDGES, and RICHTER.

OPINION

Opinion By Justice JAMES

Brandon Lohran Woodard appeals his conviction for capital murder. After a jury found him guilty, the court assessed punishment at confinement for life. In five points of error, appellant contends: (1) the evidence was factually insufficient to support the conviction; (2) the evidence was legally insufficient to support the conviction; (3) during final argument, the prosecutor impermissibly referred to appellant's failure to testify; (4) the court erred in charging the jury on the law of parties; and (5) the court erred by failing to adequately instruct the jury concerning accomplice witness testimony. We affirm the trial court's judgment.

Background

David McNulty, a passenger in Mark Hoesterey's Isuzu Rodeo, was shot and killed after his friends Mark Hoesterey and Clay Odom were robbed at gunpoint. The incident began when the three men were returning home after a night out. As they drove on Vickery Boulevard, a car behind them sped up, passed them, and parked in front of them, trapping the Rodeo between that front car and a white car behind the Rodeo. McNulty got out of the Rodeo and walked towards the back of the vehicle. As he did so, two black males approached the Rodeo from the front car. Diomedes McNeal, identified as the man who approached the front driver's side window, pointed a gun at Hoesterey and demanded money. McNeal pulled the keys from the ignition and got into the car. At this time, appellant got into the back seat where Odom was; appellant demanded Odom give appellant his wallet. Hoesterey and Odom surrendered their wallets to the assailants. Shortly thereafter, the assailants exited the Rodeo. Hoesterey got out of the vehicle and stepped towards the front. When he heard a gunshot, he lay on the ground until he heard a car drive away. He then ran to the back of the car and found McNulty on the pavement. In the meantime, Odom had also exited the vehicle and was running down the street when he heard the sound of the gun. Odom saw the white car turn around and drive towards Abrams Road. Odom tried to stop the white car, sticking his head in the driver's side window, but he fell out when the car sped up. Odom then ran to a nearby house for help. Odom returned to the scene with another man who, along with Hoesterey, attempted to perform CPR on McNulty. However, McNulty died as a result of the gunshot wound to his chest. While testifying, Hoesterey identified appellant as the man in the back seat of the car during the robbery. He admitted, though, that in his statement he had not been certain if there was another man other than the one with the gun. Hoesterey had not identified anyone in a photo lineup. Odom testified that he was not sober during the robbery. He did not positively identify anyone in the photo lineup. He also stated he had not gotten a good look at the man in the back seat with him, but Odom did identify appellant as someone who participated in the events that night. Keith Wilson testified he had been riding with McNeal and appellant that night. Wilson stated the three of them, along with Cornelius Richardson, were driving around when McNeal stated he was "going to try to get him an insurance job." According to Wilson, McNeal pulled his car in front of Hoesterey's vehicle, and McNeal and appellant approached Hoesterey's vehicle while Wilson stayed in McNeal's car. Wilson saw McNeal wrestling with a man then heard a gunshot. When McNeal got back into his car, he stated "something like" "he wouldn't give me his wallet." Appellant also got back into McNeal's car, and he had possession of two wallets. The four of them left the scene, and McNeal drove Wilson home without making any stops. Detective Vinyard testified he compared fingerprints he found in the Rodeo to those of appellant and was able to match those fingerprints. He did not find matches with any of the other three men who had been in McNeal's car. Detective Muniz investigated the stolen credit cards. He discovered one card was used at an Exxon station in Duncanville shortly after the robbery and murder. From that security tape, Detective Muniz identified appellant as being at the Exxon station at the same time the stolen credit card was used. That credit card was also used later that day at a Sack N' Save. Appellant's name appeared on the receipt for that transaction, but the Sack N' Save employee identified Richardson as the one who had signed appellant's name.

Legal Sufficiency

In point of error one, appellant argues the evidence is legally insufficient to support the conviction.¹ When we review a challenge to the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Green v. State, 893 S.W.2d 536, 538 (Tex.Crim.App. 1995). We determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App. 2002). We consider all of the evidence presented. Holberg v. State, 38 S.W.3d 137, 139 (Tex.Crim. App. 2000). This standard leaves to the fact finder the responsibility to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic to ultimate facts. See Dumas v. State, 812 S.W.2d 611, 615 (Tex.App.-Dallas 1991, pet. ref'd). The fact finder is the sole judge of the credibility of the witnesses and the weight given their testimony. Id. Thus, the fact finder is free to accept or reject any or all of a witness's testimony. Id.; see also Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991). If there is evidence establishing guilt beyond a reasonable doubt, and we see the fact finder believed that evidence, we will not reverse the judgment on legal sufficiency grounds. Wicker v. State, 667 S.W.2d 137, 143 (Tex.Crim.App. 1984). Capital murder is committed if one intentionally or knowingly causes the death of an individual in the course of committing a robbery. See Tex. Pen. Code Ann. §§ 19.02(b)(1), 19.03(a)(2) (Vernon 2003). A person is a party to this offense if it is committed by one for whom he is criminally responsible. See Tex. Pen. Code Ann. § 7.01(a) (Vernon 2003). Someone may be criminally responsible for another if, in the attempt to carry out a conspiracy to commit one felony (robbery, for example), one of the conspirators commits another felony 'such as murder). See Tex. Pen. Code Ann. § 7.02(b) (Vernon 2003). The specific intent of the defendant is irrelevant, so long as the second felony — the murder — was committed in furtherance of the original felony. Id. A court may use circumstantial evidence to infer parties' understanding to commit an act. Ex parte Prior, 540 S.W.2d 723, 727-28 (Tex.Crim.App. 1976); Barnes v. State, 62 S.W.3d 288, 298-99 (Tex.App.-Austin 2001, pet. ref'd). In determining guilt, the court may also look to events before, during, and after the commission of the offense. Medellin v. State, 617 S.W.2d 229, 231 (Tex.Crim.App. 1981); Avila v. State, 15 S.W.3d 568, 575 (Tex.App.-Houston [1st District] 2000, no pet.). Two witnesses identified appellant in court as participating in the offense. Wilson also identified appellant as the person who participated in the robbery with McNeal, stating appellant went to the Rodeo with McNeal after McNeal stated he was going to "try to get him an insurance job." Furthermore, contrary to appellant's argument on appeal, Detective Vinyard testified fingerprints he found inside the Rodeo matched those of appellant. Viewing the evidence in the light most favorable to the verdict, we conclude a rational jury could have found appellant, in attempt to carry out a robbery, was criminally responsible for McNeal when McNeal committed murder. Furthermore, we conclude a jury could have determined the murder was committed in furtherance of the robbery. Therefore, because we conclude the jury reached a rational conclusion, we likewise conclude the evidence is legally sufficient to sustain appellant's conviction. See Wicker, 667 S.W.2d at 143. We overrule appellant's first point of error.

Factual Sufficiency

In point of error two, his factual insufficiency claim, appellant argues the finding of guilt was contrary to the overwhelming weight of the evidence. Appellant specifically asserts that although the evidence shows appellant may have been present at the scene, the evidence does not show he participated in the offense, thereby being insufficient to support his conviction. When conducting a factual sufficiency review, we must determine, after a review of all the evidence in a neutral light, if the proof of guilt is so obviously weak as to undermine confidence in the verdict or if the proof of guilt, otherwise adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim. App. 2000). In conducting this review, we may not substitute our determination for that of the fact finder. Id.; Scott v. State, 934 S.W.2d 396, 399 (Tex.App.-Dallas 1996, no pet.). Resolution of conflicts in the evidence and credibility of witnesses lies within the fact finder's exclusive province. Johnson, 23 S.W.3d at 11. We may not "find" facts or substitute our judgment for that of the fact finder. Clewis v. State, 922 S.W.2d 126, 135 (Tex.Crim.App. 1996). We do review the fact finder's weighing of the evidence and are authorized to disagree with the fact finder's determination; however, it is not enough that we believe a different result is more reasonable. Id. Appellant relies on the same argument for this point of error as he did in his legal sufficiency claim. He states the finding of guilt is contrary to the overwhelming weight of the evidence, requesting this Court to review the comparative weight of the evidence. After reviewing the evidence in a neutral light, we do not see the verdict as so contrary to the overwhelming weight of the evidence that it is clearly wrong and unjust. See Johnson, 23 S.W.3d at 11. Appellant argues the evidence merely establishes he was present at the scene. However, testimony from witnesses and fingerprint evidence places appellant inside the Rodeo where the robbery was committed. Testimony also revealed appellant was in possession of the two wallets from the robbery when he returned to McNeal's vehicle. Even though there was some conflict as to Hoesterey's and Odom's identification of appellant when the offense occurred, resolving these conflicts in evidence rested upon the jury, as the fact finder. See id. Presented with the fingerprint evidence placing appellant in the Rodeo, we cannot conclude the finding of guilt is contrary to the overwhelming weight of the evidence. Accordingly, having viewed all the evidence while giving deference to the jury's determination, we conclude the evidence was factually sufficient. See id. We overrule appellant's second point of error.

Jury Argument

In his third point of error, appellant argues the prosecutor impermissibly referred to his failure to testify in his argument to the jury. Proper jury argument must encompass one of the following: (1) a summation of the evidence presented at trial, (2) a reasonable deduction drawn from that evidence, (3) an answer to the opposing counsel's argument, or (4) a plea for law enforcement. Shannon v. State, 942 S.W.2d 591, 597 (Tex.Crim. App. 1996). The appellant's state and federal constitutional and statutory right not to be a witness against himself prohibits the State from commenting on the defendant's failure to testify. See U.S. Const. amend. V; Tex. Const. art. I, § 10; Tex. Code Crim. Proc. Ann. art. 38.08 (Vernon 1979); Montoya v. State, 744 S.W.2d 15, 35 (Tex .Crim. App. 1987) (opinion on reh'g), overruled on other grounds, Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996); Sauceda v. State, 859 S.W.2d 469, 474 (Tex.App.-Dallas 1993, pet. ref'd). In an appeal from an allegedly impermissible comment, the reviewing court considers the comment from the standpoint of the jury. See Swallow v. State, 829 S.W.2d 223, 225 (Tex.Crim. App. 1992); Sauceda, 859 S.W.2d at 474. For the prosecutor's argument to violate the defendant's right against self-incrimination and be reversible error, the argument must do more than merely imply or indirectly allude to the defendant's failure to testify; the argument must be manifestly intended or be of such a character that the jury would necessarily and naturally take it as a comment on the accused's failure to testify. See Montoya, 744 S.W.2d at 35; Sauceda, 859 S.W.2d at 474. Argument that points to a lack of evidence that only the defendant personally can supply violates the defendant's right against self-incrimination. See Montoya, 744 S.W.2d at 35; Sauceda, 859 S.W.2d at 474. However, language that can reasonably be construed to refer to a failure to present evidence other than from the defendant's own testimony does not comment on the defendant's failure to testify. See Swallow, 829 S.W.2d at 225. During argument, the prosecutor made the following remarks:

He [appellant] chose to get out of that car. He chose to get in the back seat with Clay Odom. He chose to take the wallet. He chose to brag about it after he got in [McNeal's] car and he offered the goods, the prize[,] up to the other people in the car.

Now, Mr. Ashford said there is no evidence that Brandon ever got out of this car and that Brandon supposedly said all of this stuff. But ladies and gentlemen, you don't have any evidence before you other than conjecture as to what Brandon said. See, you can't speculate — Appellant objected to the last statement as a reference to appellant's failure to testify. The court overruled the objection. On appeal, appellant states the argument called attention to the absence of evidence only appellant's testimony could supply. Appellant also contends the remarks were uninvited. We do not interpret this argument as manifestly intended or of such a character that the jury would necessarily and naturally take it as a comment on the accused's failure to testify. See Montoya, 744 S.W.2d at 35. The prosecutor's argument concerned whether appellant got out of McNeal's car and what he said upon returning to the car. The prosecutor's argument, therefore, did not draw the jury's attention to an absence of evidence that could have been supplied only by the defendant. In fact, witness Keith Wilson testified that appellant left the car with McNeal. Wilson also testified as to what appellant said and did after appellant returned to the car after the robbery. Therefore, the evidence could clearly be provided by testimony other than only from the appellant. Accordingly, unable to construe the argument as a reference to a failure to present evidence only the appellant could have provided, we conclude the argument did not comment on the appellant's failure to testify. See Swallow, 829 S.W.2d at 225. We overrule appellant's third point of error.

Jury Charge

In appellant's fourth and fifth points of error, he complains the court erred in charging the jury. In reviewing a claim of jury charge error, this Court follows a two-step process. First, we decide whether error exists in the jury charge and if so, we determine whether the error caused the defendant to suffer sufficient harm that it requires reversal. See Hutch v. State, 922 S.W.2d 166, 170-71 (Tex.Crim.App. 1996). The degree of harm necessary for reversal depends upon whether the error was preserved. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim. App. 1984) (op. on reh'g). If no objection is made at trial the appellant can obtain reversal only if the error caused him egregious harm. See id. Appellant did not object to the charge.² Accordingly, unless appellant can show egregious harm, he has not preserved this complaint for our review. Egregious harm consists of errors that affect the very basis of the case or that deprive the defendant of a valuable right, vitally affect a defensive theory, or make the case for conviction or punishment clearly and significantly more persuasive. See Saunders v. State, 817 S.W.2d 688, 692 (Tex.Crim. App. 1991). The actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, the argument of counsel, and any other relevant information revealed by the record of the trial as a whole. See Almanza, 686 S.W.2d at 171. When considering whether there was a need for an instruction on accomplice testimony, the lack of such an instruction is harmless "unless the corroborating (non-accomplice) evidence is 'so unconvincing in fact as to render the State's overall case for conviction clearly and significantly less persuasive.'" Herron v. State, 86 S.W.3d 621, 631 (Tex.Crim.App. 2002) (quoting Saunders, 817 S.W.2d at 692). The non-accomplice testimony revealed appellant's fingerprints were found inside the Rodeo. From the security tape, appellant was also identified as present when one of the stolen credit cards was used at an Exxon station very shortly after the robbery occurred. We conclude this evidence is not so "unconvincing in fact" as to render the case clearly less persuasive. See id. Because appellant has not shown egregious harm, he has not preserved this complaint for our review. See Almanza, 686 S.W.2d at 171. Notwithstanding appellant's waiver, appellant's arguments fail. In his fourth point of error, appellant argues the court erred in charging the jury on the law of parties. The court may instruct the jury on the law of parties when the evidence supports a verdict of guilt under the law of parties. See Ladd v. State, 3 S.W.3d 547, 564 (Tex.Crim.App. 1999). Here, the evidence showed at least two persons robbed Odom and Hoesterey. The evidence also showed that McNeal was the shooter. The only dispute was who, among the other three men in McNeal's car, was the person who aided McNeal in the robbery. Appellant's participation as a party was determinative of his guilt of capital murder. Accordingly, a charge on the law of parties was proper. We overrule appellant's fourth point of error. Appellant's argument under his fifth point of error also fails. Appellant argues the jury should have been instructed concerning accomplice witness testimony. See Tex.Crim. Proc. Code Ann. art. 38.14 (Vernon 1979). The accomplice witness rule provides that when an accomplice provides testimony, a conviction may not stand solely on that testimony unless the testimony is corroborated by other evidence connecting the accused to the offense. See id.; Solomom v. State, 49 S.W.3d 356, 361 (Tex.Crim.App. 2001). An accomplice is someone who participated in the offense before, during, or after the commission of the crime being tried. See Herron, 86 S.W.3d at 631. Mere presence during the commission of a crime is not enough to make one an accomplice. Medina v. State, 7 S.W.3d 633, 641 (Tex.Crim.App. 1999). Instead, to be an accomplice, the person must have made some affirmative act assisting or promoting the commission of the offense. Kutzner v. State, 994 S.W.2d 180, 187 (Tex.Crim. App. 1999). Appellant has provided no evidence Wilson was an accomplice. Wilson testified he did not know there was a gun present. He also testified he did not know a robbery was going to take place. Wilson never left the car. After the robbery, Wilson was taken home, and appellant, McNeal, and Richardson then went to the stores to use the credit cards obtained in the robbery. There is not enough evidence to assert Wilson was an accomplice to the crime being charged — that of capital murder. The only evidence supporting the notion that he was an accomplice was his presence at the scene of the crime, which is not sufficient to show he acted as an accomplice. See Medina, 7 S.W.3d at 641. We overrule appellant's fifth point of error. We affirm the judgment of the trial court.