In The
Court of Appeals
For The
First District of Texas
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NO. 01-05-00443-CR
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FELONTA CONWAY PRINCE, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Cause No. 972592
MEMORANDUM OPINION ON REHEARING
Appellant has filed a motion for rehearing raising five points of error. Appellant contends that our original opinion relied on facts not supported by the record, that we erred in holding that the evidence was sufficient to corroborate accomplice-witness testimony, that we erred in holding that the evidence was legally sufficient to sustain appellant’s conviction, that we erred in following binding precedent, and that we erred in determining that the testimony of Frederick Williams did not affect the jury’s judgment. We grant the motion, withdraw our opinion and judgment dated January 12, 2006, and issue this opinion and judgment in their stead. Although we have clarified some of our factual assertions, our disposition of each of appellant’s original points of error remains the same. Given our disposition of appellant’s motion for rehearing, appellant’s motion for en banc consideration on rehearing is denied as moot.
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, where they planned the rip-off, sometime between 9:00 p.m. to 9:30 p.m. 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. Villagomez and appellant 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 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, Villagomez exited and stopped in a U-turn underneath a bridge. He and appellant 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 and placed him on the side of the curb. Appellant and Villagomez 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.
Alva Wade Walker, a resident whose home backed up to the Hardy Toll Road near the turnaround, heard two gunshots around 10:37 p.m. At approximately 11:00 p.m., a furniture delivery man, Armando Martinez, discovered the body as he drove through the turnaround. He called 911 from his cellular phone.
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. According to Williams, appellant said that he had been a passenger when he turned around and fired twice at the person sitting in the back seat of the car, that he then moved the person to the trunk, and that he then finished the person 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 and blood 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. Carville also testified at trial that Villagomez, a couple of times before Christmas, had discussed committing a murder rip, which Carville 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 witness’s 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, that 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 the complainant; (2) there was no physical evidence supporting the allegation that defendant robbed or intended to rob the complainant; (3) there was no evidence of the firearm used to murder the complainant, 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; 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; and that 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. 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) Kahlil Ahmed, an employee at the One Dollar Bazaar Store on Edgebrook, testified that Carville had been in his store with two other individuals until 9:40 p.m. on the night of the murder; (2) Carville testified that he and appellant had been together at the One Dollar Bazaar Store at I-45 and Edgebrook and had returned to appellant’s apartment complex at 10:00 p.m.; (3) 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; (4) Villagomez testified that appellant arrived at his apartment at about 9:30 p.m., that the victim arrived about one hour later, and that, upon arrival, it took appellant and him about 15 to 20 minutes to put the victim into the trunk of appellant’s vehicle; (5) Walker testified that she heard gunshots at approximately 10:37 p.m.; (6) Martinez testified that he discovered the body at approximately 11:00 p.m.; (7) Lewis Eakins testified that the distance from appellant’s apartment complex to the place of discovery was 37 miles; and (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 as to the precise times at which events happened and the alleged incredibility of the State’s witnesses regarding the time of events. 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, may also simply not have believed that all of the witnesses’ memories were perfectly accurate regarding the time of events, or may instead have believed the State’s witnesses. We will not intrude on the jury’s role concerning credibility in these circumstances. Appellant invites this Court to disregard the general rule concerning credibility stated above. 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, pet. granted).
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 Williams’s testimony concerning Williams’s never having touched the Infiniti—as well as Williams’s testimony that appellant carried a pistol; wore a cotton jacket; shot the complainant in the head, chest, and stomach; placed the body in an empty field; and covered it up with sticks and trees—was perjured. When trial counsel for appellant brought up the matter 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 having said that the jacket was leather and testified in conformity to his 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 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 by appellant 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.
Tim Taft
Justice
Panel consists of Justices Taft, Keyes, and Hanks.
Do not publish. Tex. R. App. P. 47.2(b).