Opinion issued December 4, 2003
In The
Court of Appeals
For The
First District of Texas
NO. 01-02-00859-CR
____________
NATHAN NEIL MCKINNEY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 339th District Court
Harris County, Texas
Trial Court Cause No. 877895
MEMORANDUM OPINION
A jury found appellant, Nathan Neil McKinney, guilty of capital murder. The State did not seek the death penalty, and the trial court assessed appellant’s punishment at confinement for life. In five points of error, appellant contends that the trial court erred in denying his motion to suppress evidence and the evidence was legally and factually insufficient to support his conviction. We affirm.
Facts
Michelle Parson, appellant’s girlfriend, testified that, on the night of April 7, 2001, appellant sold “tabs” of ecstasy to Nathan Pratt, the complainant, for $1,000. After appellant delivered the narcotics to the complainant and began counting the proceeds from his sale, he realized that the complainant had given him counterfeit money. Appellant immediately telephoned the complainant and arranged to meet him at a nearby gas station. Appellant, with Parson, went to the gas station, but the complainant never showed up. As a result, appellant was “real[ly] angry” and he stated that he had to “get a hold” of the complainant.
After they were “stood up,” Parson contacted Michelle Roden, a friend of the complainant. Appellant and Parson then, at around 1:30 a.m., went to Roden’s house, where they found several people, including Roden, Ashley Daulton, and Jonathan Jones, having a party. Appellant told everyone what had happened, and then he devised a plan to lure the complainant to Roden’s house so that he could recover “the tabs or the money.” Roden telephoned the complainant and invited him over to her house. After the complainant arrived, Jones invited him outside to “smoke a joint.” The complainant accepted the invitation, and once they were outside, appellant jumped out from behind some bushes and pointed his shotgun at the complainant’s head. Appellant then walked the complainant over to appellant’s car, shoved him into the back seat, and instructed Parson to drive them to Birnamwood Road. Along the way, appellant ordered the complainant to empty his pockets, but he was only carrying two counterfeit $20 bills.
When they arrived at Birnamwood Road, Parson parked near some “woods,” and appellant immediately got out of the car. He pointed his shotgun at the complainant, “got him out” of the car, and then walked him into “the woods.” At this point, Parson telephoned appellant’s best friend, Kathy Kalich, and told her what was happening. While the two women were talking on the telephone, they both heard a gun shot. Parson abruptly “hung up” on Kalich and then she heard another gun shot. About five minutes went by, and then appellant returned to the car carrying his shotgun. He told Parson to “move over,” and then he got behind the wheel of the car and drove them back to their apartment.
Bobbie Pratt, the complainant’s mother, testified that, on April 8, 2001, she telephoned the Montgomery County Sheriff’s office and reported her son missing. Twelve days later, the Montgomery County Sheriff’s office turned the case over to the Harris County Sheriff’s office.
Harris County Sheriff’s Detective F. Barnes testified that he was assigned to investigate the complainant’s disappearance. During his investigation, he interviewed Michelle Roden, Ashley Daulton, and Johnathan Jones. From these interviews, Barnes determined that the complainant had been kidnapped and that appellant and Parson were his primary suspects. After consulting with the Harris County District Attorney’s office, Barnes obtained a warrant to search appellant’s apartment and arrest appellant and Parson for aggravated kidnapping.
Harris County Sheriff’s Detective W. Kuhlman testified that, on April 26, 2001, he and Detective Barnes executed the search and arrest warrant at appellant’s and Parson’s apartment. During their search of the apartment, the Detetctives found a “pistol grip pump” shotgun, a “scoped” .22 caliber rifle, and a small “tote bag” containing .12 gauge shotgun shells and .22 caliber ammunition. Following the search, the detectives arrested appellant and Parson for aggravated kidnapping and transported them to the sheriff’s office.
At the sheriff’s office, Detective Kuhlman questioned Parson concerning “the whereabouts” of the complainant. Parson confessed to her role in kidnapping the complainant and she took Kuhlman and another deputy to “the woods” on Birnamwood Road. In the “the woods,” Kuhlman found a decapitated body, a skull with a stick in it, one “spent” .22 caliber casing, and a couple of “spent” .12 gauge casings.
Matthew Clements, a forensic firearm and tool mark examiner with the Harris County Sheriff’s office, testified that the shotgun pellets found in the complainant’s body were identical to the shotgun pellets found in the brand of ammunition used by appellant. However, Clements was unable to determine whether the shotgun pellets found in the complainant’s body were fired from appellant’s shotgun because, unlike ammunition fired from rifles, shotgun pellets never come into contact with the barrel of a shotgun so “[there are] never any markings left on the pellets from the barrel.”
Kathy Kalich testified that, while appellant was in jail, he wrote her several letters instructing her to tell the police that Ross Saylor and his brother killed the complainant. Furthermore, appellant told Kalich in one of his letters that she needed to know the details of his story “inside and out” so that “[his] story [would be] believable.”
Appellant testified that he kidnapped the complainant, but that Ross Saylor forced him to do it. Moreover, he testified that, on the night in question, he met up with the Saylor brothers in “the woods,” they told him to leave, and then they shot the complainant as appellant walked away.
Ross Saylor testified that he never pointed a handgun at appellant’s head and never threatened to kill him. He also stated he was not in “the woods” that night. Furthermore, Saylor testified that appellant admitted to him that appellant walked the complainant into “the woods” and shot him twice.
Motion to Suppress Evidence
In his first point of error, appellant argues that the trial court erred in denying his motion to suppress evidence found in the search of his and Parson’s apartment because the affidavit supporting the search and arrest warrant “was insufficient to state probable cause that appellant had engaged in the alleged offense, since it was based on information supplied by a party to the same offense.”
We review a trial court’s ruling on a motion to suppress evidence using the bifurcated standard of review set forth in Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997). We give almost total deference to a trial court’s determination of historical facts that depend on credibility choices, but we review de novo a trial court’s application of the law of probable cause. Wilson v. State, 98 S.W.3d 265, 271 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). In conducting our de novo review in this case, we give great deference to the magistrate’s decision to issue the search and arrest warrant and determine, whether, considering the totality of the circumstances, the magistrate had a substantial basis for determining that there was probable cause. Id.
A search warrant may not issue unless it is supported by an affidavit setting forth the following sufficient facts to establish probable cause: (1) that a specific offense has been committed; (2) that the specifically described property or items that are to be searched for or seized constitute evidence of that offense or evidence that a particular person committed that offense; and (3) that the property or items constituting evidence to be searched for or seized are located at or on the particular person, place, or thing to be searched. Tex. Code Crim. Proc. Ann. art. 18.01(c) (Vernon Supp. 2003). We examine the four corners of the affidavit to determine whether probable cause exists. Wilson, 98 S.W.2d at 270-71. However, reasonable inferences may be drawn from the affidavit, and the affidavit must be interpreted in a common sense and realistic manner. Id. at 271.
Appellant asserts that Detective Barnes, in his affidavit, relied solely on information obtained from Johnathan Jones to establish that appellant kidnapped the complainant. Appellant contends that any information that Barnes obtained from Jones was “insufficiently [sic] reliable” because Jones participated in the kidnapping. Therefore, appellant argues that Barnes was required to include corroborating information in his affidavit to establish probable cause.
To support his corroboration argument, appellant relies on Roeder v. State, 768 S.W.2d 745 (Tex. App.—Houston [1st Dist.] 1988, pet. ref’d). In Roeder, this Court observed that, under Colorado law, a co-participant in a crime is not a reliable informant absent additional factors demonstrating credibility. Id. at 751. Thus, we held that an uncorroborated co-participant’s confession implicating another co-participant was not sufficient to establish probable cause as to the other participant. Id. at 752. However, this is not the standard in Texas. Instead, when a Texas search warrant affidavit specifies a named informant as supplying the information upon which probable cause is based, the affidavit is sufficient if it is sufficiently detailed to suggest direct knowledge on the informant’s part. Matamoros v. State, 901 S.W.2d 470, 478 (Tex. Crim. App. 1995).
Detective Barnes’s affidavit was sufficiently detailed to show that Jones had direct knowledge that appellant kidnapped the complainant while using a shotgun. The affidavit provides, in pertinent part, as follows:
That your affiant obtained a copy of Jones’ statement from Kuhlman and that statement reflected that on a weekend night about two weeks ago from April 25, 2001, Jones was at the home of Michelle Roden. While there, he saw [appellant] point a shotgun at the head of [the complainant] and force[] [him] to get into a car; further, that [the complainant] was holding his hands in the air and acting as if he did not want to get into the car. Jones stated that he saw [appellant] sitting in the backseat of the car with [the complainant] as it was being driven away by Michelle Parson. Jones described the shotgun as being a pump, black in color, with a short barrel, [and] a pistol grip handle.
This portion of Barnes’s affidavit contains both a detailed description of the shotgun used in the kidnapping and the events of the kidnapping itself. Given the detail contained in the affidavit, we conclude that the magistrate had a substantial basis for finding probable cause to issue the search and arrest warrant. Accordingly, we hold that the trial court did not abuse its discretion in denying appellant’s motion to suppress evidence found during the search of his and Parson’s apartment.
We overrule appellant’s first point of error.
Legal Sufficiency of the Evidence
In his second and fourth points of error, appellant argues that the evidence was legally insufficient to support his conviction because he proved “the defense of duress by a preponderance of the evidence” and the State failed to prove that he or any party caused the complainant’s death.
We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine if any rational fact finder could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). Although our analysis considers all evidence presented at trial, we may not reweigh the evidence and substitute our judgment for that of the fact finder. Id.
A person commits capital murder if he intentionally commits murder in the course of committing or attempting to commit kidnapping. Tex. Pen. Code Ann. § 19.03(a)(2) (Vernon 2003). Duress is an affirmative defense that applies when an accused engaged in the proscribed conduct because he was compelled to do so by threat of imminent death or serious bodily injury to himself or another. Id. § 8.05(a) (Vernon 2003). When determining the sufficiency of the evidence to disprove a defendant’s statutory defense, the State is not required to affirmatively produce evidence that refutes a defendant’s statutory defense, but rather to prove its case beyond a reasonable doubt. Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991).
In regard to his argument that the State failed to prove that appellant or any party caused the complainant’s death, appellant asserts that “there were no eyewitnesses to the alleged shooting” and the State was unable to establish that “the decomposed body found in the woods was the body of the complainant.”
However, Parson testified that she and appellant kidnapped the complainant from Roden’s house, drove him to Birnamwood Road, and appellant walked him into “the woods.” Parson heard two gunshots, and, within a few minutes, appellant returned to the car without the complainant. Parson also testified that, as she and appellant were booked into jail, appellant told her, “I did it.” Detective Kuhlman testified that he found a decapitated body and a skull in the same general area where the complainant was last seen alive. Moreover, Matthew Clements testified that the shotgun pellets recovered from the body found in “the woods” were identical to the shotgun pellets found in the brand of ammunition used by appellant. In light of this evidence, a rational fact finder could have found the essential elements of capital murder beyond a reasonable doubt.
In regard to his affirmative defense, appellant asserts that he proved duress by a preponderance of the evidence because he testified that he kidnapped the complainant and took him to the woods “out of fear that Ross Saylor would shoot him.” Appellant further asserts that Saylor’s testimony that he did not threaten appellant, “under all the facts and circumstances of this case,” was simply not “credible.”
However, as the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given their testimony, a jury may believe or disbelieve all or any part of a witness’s testimony. McKinny v. State, 76 S.W.3d 463, 468-69 (Tex. App.—Houston [1st Dist.] 2002, no pet.). The jury’s verdict of guilt in this case was an implicit rejection of appellant’s testimony that he acted under duress. See Saxton, 804 S.W.2d at 914. We will not substitute our judgment for that of the fact finder.
Because the State established the essential elements of capital murder beyond a reasonable doubt and the jury had ample evidence to reject appellant’s affirmative defense, we hold that the evidence was legally sufficient to support appellant’s conviction.
We overrule appellant’s second and fourth points of error.
Factual Sufficiency of the Evidence
In his third and fifth points of error, appellant argues that the evidence was factually insufficient to support his conviction because he proved “the defense of duress by a preponderance of the evidence” and the State failed to prove that he or any party caused the complainant’s death.
We review the factual sufficiency of the evidence by examining all of the evidence neutrally and asking whether 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).
In regard to his assertion that the State failed to prove that appellant or any party caused the complainant’s death, appellant reiterates that “there were no eyewitnesses to the alleged shooting of the complainant” and “the State was unable to establish that the badly decomposed body found in the woods” belonged to the complainant.
As we previously noted, Parson testified that she and appellant kidnapped the complainant, drove him to Birnamwood Road, and appellant walked him into “the woods.” Parson heard two gunshots, and, within a few minutes, appellant returned to the car without the complainant. Moreover, while being booked into jail, appellant told Parson, “I did it.” Again, Detective Kuhlman found a decapitated body and a skull in the same general area where the complainant was last seen alive, and Matthew Clements testified that the shotgun pellets recovered from the body found in “the woods” were identical to the shotgun pellets found in the brand of ammunition used by appellant. After reviewing all of the evidence neutrally, we cannot conclude that the proof of appellant’s guilt was so weak as to undermine confidence in the jury’s determination or that the proof of appellant’s guilt was greatly outweighed by contrary proof.
In regard to his affirmative defense, appellant again asserts that he proved duress by a preponderance of the evidence because he testified that “Ross Saylor threatened to shoot him if he did not bring the complainant to the woods.” Appellant also reiterates that Saylor’s testimony that he did not threaten appellant “was simply not credible.”
Here, Saylor testified that he did not in anyway threaten to kill appellant and that appellant admitted to him that appellant walked the complainant into “the woods” and shot him twice. Moreover, Kathy Kalich testified that appellant instructed her to lie for him and tell the police that Saylor and his brother killed the complainant.
Again, what weight to give contradictory testimonial evidence is within the sole province of the jury as it turns on an evaluation of credibility and demeanor. Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997). Thus, the jury was free to believe or disbelieve all or any part of appellant’s or Saylor’s testimony. A court of appeals must show deference to such a jury finding. Id. at 409. A jury decision is not manifestly unjust merely because the jury resolved conflicting views of the evidence in favor of the State. Id. at 410.
Accordingly, we hold that the evidence was factually sufficient to support appellant’s conviction.
We overrule appellant’s third and fifth points of error.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Justices Taft, Jennings, and Hanks.
Do not publish. Tex. R. App. P. 47.2(b).