Opinion issued January 22, 2009
In The
Court of Appeals
For The
First District of Texas
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NO. 01-07-00895-CR
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DYRONE KEVIN COOPER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court
Harris County, Texas
Trial Court Cause No. 1101643
MEMORANDUM OPINION
A jury convicted appellant, Dyrone Kevin Cooper, of murder and the court assessed punishment at 10 years in prison. We determine (1) whether the trial court erred in not giving the jury an instruction to determine whether Raymond Ray was an accomplice witness as a matter of fact and, if so, whether egregious harm is shown; and (2) whether Ray’s testimony was required to be corroborated by evidence tending to connect appellant with the murder. We also determine whether the evidence is factually sufficient to support the murder conviction. We affirm.
Facts
On April 20, 2006, Robert Jackson was shot while walking in the Luxor Apartment complex. The shooter wore a black shirt, black pants, and a red or orange ski mask. Robert King, Jackson’s father, saw the shooting and later identified appellant as the person who shot his son four times in the head and neck at close range. Immediately after the shooting, appellant fled on foot, with King chasing him. During the chase, appellant pulled the ski mask off and turned to look behind him, giving King about five or six seconds to see appellant’s face. King noticed that appellant wore his hair in dreadlocks in three ponytails with rubber bands, a hairstyle which appellant was known to affect in April of 2006. During the chase, appellant and King ran into a group of people in the pool area where King lost sight of appellant. Spotting a man wearing a black shirt, King began chasing him, mistaking him for appellant. The man ran into an apartment. King told the police at the scene that he was 100 percent positive that the man who shot his son ran into that specific apartment, but later realized that the man in the apartment was not the one who shot his son. At trial, King identified appellant as the shooter.
Appellant had borrowed a gun from Raymond Ray about 30 minutes before the shooting, without indicating what he intended to do with the gun. After Ray gave appellant (whom Ray identified by the nickname “D”) the gun, a young man walked by, and appellant shouted, “There he go, there he go right there.” At the time, appellant was wearing a black shirt and black pants. Appellant, accompanied by his friend, Marty, then walked off in one direction while Ray walked off in a different direction.
Shortly afterwards, Ray saw someone with a black shirt and pants and wearing a red mask run through the driveway and shoot the young man by the stairwell, first in the head, and then several more times after the man fell to the ground. Ray thought the masked man appeared to be appellant. The shooter fled, and, initially, so did Ray.
Ray later turned around and went back to the scene, where he encountered the police, who took him in for questioning. Ray initially lied to the police, telling the detective that he did not know who had done the shooting. Later, he told the police that he had been at the scene, had witnessed the shooting, and knew the identity of the shooter. Ray did not tell the police that he had given appellant the gun used in the shooting, but he told a prosecutor this fact the day before his testimony. In court, Ray identified appellant as the shooter. Also in the area that night was Terrance Perrilloux, who also knew appellant as “D.” Perrilloux had met appellant at the Luxor Apartments in January 2006; they were both part of a group of former New Orleans residents who “hung together.” The night of the shooting, Perrilloux was “hanging out” at the Luxor Apartments after a day of selling drugs. He heard gunshots ring out, and then, within four minutes, he saw appellant, appellant’s de-facto brother-in-law Marty, and appellant’s cousin, Tuna, running across the street. Marty eventually ran towards Perrilloux, pulled out a gun, unloaded the shells, put them in a bag, threw the bag onto a roof, and put the gun back in his pocket. Perrilloux called Crime Stoppers two days later and gave them the name “D.”
Perrilloux did not see appellant again at the apartment complex until January 2007, when appellant showed the murder weapon to Perrilloux and stated that it was the gun “he busted the dude up with.” Appellant boasted that he was now able to walk over to the part of the apartment complex where people from Houston “hung out” because he had received respect as a result of what he had done; appellant told Perrilloux that he felt like “he was the king now.” According to Perrilloux, “just about everyone from New Orleans” knew that appellant had shot Jackson. Perrilloux later helped the police recover the gun from Marty’s brother. Perrilloux received a reward of $2000 from Crime Stoppers for the information he provided in the case.
At trial, appellant’s mother, grandmother, and two sisters testified that appellant was living with his mother in New Orleans in April 2006 and, on the day of the shooting, he had been at a sister’s birthday party at his mother’s house. One of his sisters had evacuated to Houston earlier because of Hurricane Katrina, but she stated that appellant and his mother had stayed behind in Louisiana. Appellant’s mother and one of his sisters testified that appellant did not move to Houston until June 2006.
Appellant’s mother’s neighbor in New Orleans, Albert Robertson, testified that he had left appellant at the April 20th party around noon, after work. Robertson stated that he had employed appellant during the months of March, April, and May of 2006 and had paid him on April 7, 2006, April 21, 2006, and May 1, 2006. Examination of Robertson’s records revealed that the checks to appellant did not appear in sequential order in relation to other checks in the same account and did not appear in the same portion of Robertson’s business records as other records from those same months. Instead of being noted in the portion of the records containing other checks written in March, April or May of 2006, the notations recording checks to appellant followed a section of the records dated August 2006. Review of the checkbook itself revealed that the checkbook first contained check numbers 1037 through 1039, dated in August of 2006, followed by blank checks, and then contained the checks written to appellant, which commenced with check number 1052, but were dated March, April and May of 2006. Robertson explained this discrepancy by stating that he was sloppy with his bookkeeping records, did not keep a sequential checkbook, but did have a special section for appellant alone, which was in sequential order. Robinson testified that he did not have a special section for any other employee. Robertson did not bring any bank records or cancelled checks to trial that would prove that he paid appellant on the dates stated on the check register.
Appellant also testified at trial. He claimed that he never stayed in Houston before June 2006. However, during direct examination, appellant stated that he quit working for Mr. Robertson in May or June because he had saved enough money to “come back” to Houston. Appellant used the term “came back” several times during his testimony when referring to his June 2006 move to Houston, but he later explained that he meant that he was trying “come to Houston with money.” Appellant denied killing Jackson or making any incriminating statements to Perrilloux.
Accomplice Witness Testimony
In his first issue, appellant argues that the evidence was insufficient to corroborate the testimony of Raymond Ray as an accomplice witness as a matter of fact, as required by article 38.14 of the Texas Code of Criminal Procedure. In his third issue, appellant argues that the trial court erred by failing to submit the factual issue of Raymond Ray’s status as an accomplice as a matter of fact to the jury.
At trial, after Ray testified that he gave appellant the gun, defense counsel, outside of the presence of the jury, suggested to the judge that Ray had just admitted to being an accomplice and might need an attorney. The judge responded that she did not believe that Ray had yet said anything inculpating himself. No further discussion on this subject occurred and no accomplice witness instruction was requested by either party. At the charge conference, appellant’s counsel stated that he had “no objection” to the jury charge.
Appellant acknowledges that he made no request for an accomplice witness instruction. Therefore, any jury charge error is reversible only if egregious harm is shown. See Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim. App. 2002) (holding that where accused has failed to preserve jury charge error, he must demonstrate egregious harm). In order to be entitled to a reversal, an appellant must have suffered “actual, rather than theoretical, harm” and the error must be so egregious, and have created such harm, that the appellant was denied a fair trial. Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). “Errors that result in egregious harm are those that affect the very basis of the case, deprive the defendant of a valuable right, or vitally affect a defensive theory.” Warner, 245 S.W.3d at 461–62 (quotations and citations omitted).
“An accomplice is an individual who participates with a defendant before, during, or after the commission of the crime and acts with the requisite culpable mental state.” Cocke v. State, 201 S.W.3d 744, 748 (Tex. Crim. App. 2006). In Texas, a conviction cannot be obtained upon the testimony of an accomplice unless it is corroborated by other evidence tending to connect the defendant to the offense. See Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005). “A witness may be an accomplice either as a matter of law or as a matter of fact; the evidence in a case determines what jury instruction, if any, needs to be given.” Cocke, 201 S.W.3d at 747. An individual is an accomplice as a matter of law if he, like the defendant, could be prosecuted for the offense or a lesser-included offense. Id. at 748. If a witness is an accomplice as a matter of law, the trial court is required to provide an accomplice witness instruction to the jury that informs the jury that it cannot use the accomplice’s testimony to convict the accused unless there also exists some non-accomplice evidence tending to connect the accused to the offense. Herron, 86 S.W.3d at 631, 632. If the evidence is conflicting and it is unclear whether a witness is an accomplice, the trial judge should allow the jury to decide whether the witness “is an accomplice witness as a matter of fact under instructions defining the term ‘accomplice.’” Druery v. State, 225 S.W.3d 491, 498–99 (Tex. Crim. App. 2007).
However, even where there is error by failure to submit the issue of a witness’s status as an accomplice of fact to the jury, such failure is generally harmless where there is other evidence “tending to connect” the defendant to the crime, unless the corroborating evidence is “so unconvincing in fact as to render the State’s overall case for conviction clearly and significantly less persuasive.” See Herron, 86 S.W.3d at 632 (citation omitted); Pena v. State, 251 S.W.3d 601, 612 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (holding that there was no egregious harm from omitted accomplice instruction because corroborating testimony from police officers alone was sufficient to connect accused to crime and such evidence was not so unconvincing as to render State’s overall case for conviction clearly and significantly less persuasive). As noted by the Herron court:
The [article 38.14] instruction does not say that the jury should be skeptical of accomplice witness testimony. Nor does it provide for the jury to give less weight to such testimony than to other evidence. The instruction merely informs the jury that it cannot use the accomplice witness testimony unless there is also some non-accomplice evidence [tending to] connec[t] the defendant to the offense. Once it is determined that such non-accomplice testimony exists, the purpose of the instruction is fulfilled, and the instruction plays no further role in the factfinder’s decision-making. Therefore, non-accomplice evidence can render harmless a failure to submit an accomplice witness instruction by fulfilling the purpose an accomplice witness instruction is designed to serve.
Herron, 86 S.W.3d at 632.
The non-accomplice testimony of Robert King and Terrence Perrilloux was evidence “tending to connect” appellant to the murder, and this corroborating evidence was not “so unconvincing in fact as to render the State’s overall case for conviction clearly and significantly less persuasive.” See Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005); Herron, 86 S.W.3d at 632 (holding that failure to submit issue of witness’s status as accomplice is generally harmless when there is other evidence “tending to connect” defendant to crime, unless corroborating evidence is “so unconvincing in fact as to render State’s overall case for conviction clearly and significantly less persuasive”). The evidence was sufficient to corroborate the testimony of Raymond Ray as an accomplice witness as a matter of fact, as required by article 38.14 of the Texas Code of Criminal Procedure, and therefore it fulfilled the purpose the instruction was designed to serve. Accordingly, even if Ray had been an accomplice as a matter of fact, which question we do not decide, we hold that there was some non-accomplice evidence at trial which “tend[ed] to connect” appellant to the crime and was sufficient to corroborate Ray’s testimony under article 38.14. We hold that the trial court’s failure to submit a factual issue to the jury on whether Ray was an accomplice, if erroneous, was harmless, and so egregious harm by any such charge error is not shown. See Herron, 86 S.W.3d at 632; Pena, 251 S.W.3d at 612.
We overrule appellant’s first and third issues.
Factual Sufficiency of the Evidence
In his second issue, appellant contends that the evidence in this case was factually insufficient to establish that he shot the decedent. Appellant asserts that (1) the State’s evidence was too weak, considered by itself, to support the finding of guilt beyond a reasonable doubt, and (2) the contrary evidence was so strong that his guilt could not be proved beyond a reasonable doubt. Specifically, he argues that the State’s evidence from witnesses Robert King, Raymond Ray, and Terrance Perrilloux, was “undermined and impeached” because (1) King initially identified the wrong person and told the police he saw only the back of the shooter’s neck, but at trial King said that he saw the shooter’s face; (2) Ray’s testimony was “inherently suspect” because he admitted lying to the police, admitted smoking marihuana on the night of the murder, admitted that the murder weapon was his, and testified in court “in an orange jumpsuit with a parole certificate sticking out of his pocket”; and (3) Perrilloux’s testimony was discredited because he received $2000 from Crime stoppers as a result of his involvement in the case. Appellant further argues that, by contrast, his alibi witnesses “were not impeached with prior lies and criminal convictions.”
In reviewing a factual sufficiency claim, we consider all the evidence in a neutral light and determine if the evidence supporting the conviction is so weak that the fact-finder’s determination is clearly wrong and manifestly unjust or whether conflicting evidence so greatly outweighs the evidence supporting the conviction that the fact-finder’s determination is manifestly unjust. Watson v. State, 204 S.W.3d 404, 414–15, 417 (Tex. Crim. App. 2006). Before we may reverse under the second ground, we must determine, with some objective basis in the record, that the great weight and preponderance of the evidence, although legally sufficient, contradicts the verdict. Watson, 204 S.W.3d at 417.
In conducting this review, we must be cognizant of the fact that a jury has already passed on the facts and so we must give due deference to the jury’s determinations. Lancon v. State, 253 S.W.3d 699, 704–05 (Tex. Crim. App. 2008). Thus, while we may disagree with the factfinder, we must afford the factfinder the proper deference in order to avoid substituting our judgment for that of the jury. Id. at 705. The jury, being in the best position to judge the credibility of the witnesses, is the sole judge of the weight to be given contradictory evidence and we should afford almost complete deference to the jury’s decision when it is based on an evaluation of credibility. Id.
Appellant’s arguments under this issue are entirely predicated on an evaluation of the credibility of the witnesses and the determination of the weight to be given to each witness’s testimony. The jury, as the sole judge of the witnesses’ credibility and the weight to be given the testimony, could choose which testimony to believe and which to disbelieve. See id. at 707. It apparently chose to believe the State’s witnesses and disbelieve appellant and his witnesses.
Giving the jury’s determinations of credibility and weight due deference, we conclude that the record does not clearly reveal that the evidence was so weak as to render the jury’s determination clearly wrong and manifestly unjust, nor that the jury’s determination was so contrary to the overwhelming weight of the evidence so as to be clearly wrong and unjust. We hold that the evidence is factually sufficient and we overrule appellant’s second issue.
Conclusion
We affirm the judgment of the trial court.
Tim Taft
Justice
Panel consists of Justices Taft, Keyes, and Alcala.
Do not publish. See Tex. R. App. P. 47.2(b).