TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-95-00475-CR
v.
The State of Texas, Appellee
NO. 18,898, HONORABLE CHARLES E. LANCE, JUDGE PRESIDING
The only eyewitness account of the murder came from Chris Evans, a participant. Evans testified at trial that Muhammad told him that Miller owed Muhammad $500. Evans said that on an evening in summer 1994, he and the four defendants took Miller from Kathy Pride's house in a green Buick LeSabre. They got out of the car and Winters held Miller so that Muhammad and Wright could stab him. Winters next took a knife and stabbed Miller, then Evans stabbed Miller. The five left Miller to die.
Several months later, Evans reported finding a skeleton to police. Investigators eventually identified the skeleton as Miller's remains. Evans initially denied knowing who the skeleton was. Over the course of several interrogations, his story evolved, increasing his culpability, until he admitted to delivering the final, fatal stab wound to Miller.
Because Evans was an accomplice to the murder, his testimony cannot be the basis for the conviction of others unless it is corroborated by other evidence tending to connect the defendant with the offense committed; the corroboration cannot merely show commission of the offense. See Tex. Code Crim. Proc. Ann. art. 38.14 (West 1979).
Wright's first point of error, complaining that he was convicted solely on the basis of uncorroborated accomplice testimony is subsumed into his second and third points of error, by which he complains that there was factually and legally insufficient evidence to support his conviction. (2) See Munoz v. State, 853 S.W.2d 558, 560 (Tex. Crim. App. 1993). When reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict, and ask whether any rational trier of fact could have found beyond a reasonable doubt all of the elements of the offense. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Santellan v. State, 939 S.W.2d 155, 160 (Tex. Crim. App. 1997). When reviewing the factual sufficiency of the evidence, we view all the evidence without the prism of "in the light most favorable to the prosecution" and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). We must ensure our review does not substantially intrude on the jury's role as sole judge of the credibility of witnesses. Santellan, 939 S.W.2d at 164.
When reviewing the sufficiency of the corroboration, we must ignore the accomplice witness's testimony and decide whether the remaining evidence confirms material facts in the accomplice testimony tending to connect the accused with the crime. Walker v. State, 615 S.W.2d 728, 731-32 (Tex. Crim. App. 1981). We view the corroborating evidence in the light most favorable to the verdict. Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994); Utsey v. State, 921 S.W.2d 451, 453 (Tex. App.--Texarkana 1996, pet. ref'd). The accomplice witness's testimony need not be entirely corroborated, nor need the corroboration directly link the accused to the crime or be sufficient in itself to establish guilt. Gill, 873 S.W.2d at 48. Evidence that corroborates what the accomplice said he and others did but that does not connect the others to the crime cannot be considered. Walker, 615 S.W.2d at 732 (finding murder weapon where accomplice said they threw it does not connect other defendants to crime). Evidence that merely shows the commission of the offense and the joint presence of the accomplice and accused shortly before or after the offense does not provide sufficient corroboration. Lyman v. State, 540 S.W.2d 711, 714 (Tex. Crim. App. 1976). Additional evidence can make that evidence sufficient corroboration, however. Edwards v. State, 427 S.W.2d 629, 633 (Tex. Crim. App. 1968) (presence shortly before crime with accomplice near crime scene in small town in early morning hours without explanation, immediate journey to city hundreds of miles south, and pawning of victim's pistol after crime provided sufficient corroboration).
Peace officers and scientists testified regarding the discovery of the skeletal remains and the results of tests involving the remains. The tests showed that the remains were Miller's. Fractured ribs and vertebrae were consistent with multiple stab wounds, as were tears in a shirt found nearby that tests showed likely belonged to the victim. Tests on a knife introduced as a possible murder weapon showed nothing linking it to the victim or the appellants. Department of Public Safety crime laboratory chemist Steve Robertson opined that, because the knife in evidence likely did not make some of the tears in the shirt, a second weapon probably was used in the murder. Examination of Wright's car revealed no hairs or fibers matching the victim or his clothing. No physical evidence linked the appellants to the victim.
Some of Miller's friends and family testified that he was selling drugs. A cousin found crack and powder cocaine in his room. An uncle testified that he flushed the drugs down the toilet; the uncle testified that he knew of no connection between the drug sales and the appellants. Other witnesses testified that they never saw Miller sell drugs.
Virgil Crawford testified that he sold drugs with Smith and the appellants. Crawford said he had last seen the victim with the appellants at Kathy Pride's house and that Muhammad said that he was going to "fuck [Miller] up if he didn't have the money" for some drugs that had been advanced to Miller. Crawford said he left the house because he felt something bad was going to happen. He never saw Miller alive again.
Pride testified she had seen the appellants with Crawford at her house, but never all at once. She recalled appellants and the victim being at her house together. She testified that, if Miller had "crossed" the appellants, she believed they would harm him. She also testified, however, that the appellants and the victim were on friendly terms the last time she saw them. She knew of no connection between the appellants and the murder.
April Knight, Pride's niece, gave confusing and contradictory statements and testimony. She gave two written statements to police, the second of which was admitted at trial. She testified before the grand jury and at the trial.
In the admitted second statement, Knight said that in the late summer of 1994, the appellants, Smith, the victim, and Evans left her aunt's house after dark in Wright's green car. Knight never saw Miller again. After an hour, the appellants and Smith returned. The appellants remained outside talking about killing someone, but acted like they did not want her to hear. Smith appeared upset and in shock. Knight said Miller was selling drugs for Muhammad and Wright, but "got crossways" with them over some dope, probably by not paying them for some dope that they had fronted him. Sometime later, Smith told her he was present when Miller was murdered. He did not tell her who did the killing, but said he tried to dissuade them and just watched.
At trial, Knight testified that the four defendants sold drugs at Pride's house. She first testified that she never saw Miller, her cousin, sell drugs; when directed to read her second statement to police, she recalled seeing Miller sell drugs for Wright. She testified that she knew of no problem between Miller and the defendants; when directed to read her second statement, she acknowledged that she had said that there was a problem, but recanted that assertion. She nevertheless maintained that Miller owed the appellants money for drugs. She then stated that Miller had sold drugs for four or five years before the appellants ever came to Rockdale, while admitting that she had only minutes before denied ever seeing him sell drugs. She said that, on the night Miller disappeared, all four defendants were at the house where she lived with her aunt, Kathy Pride; she said Miller showed up briefly and left alone, though she had said in her second statement that he left with the defendants. She said she was scared when she gave the second statement and simply went along with what the officers told her had occurred. She denied that Smith told her he was present when Miller was killed, while acknowledging that she had testified before the grand jury he had done so.
At that point, the trial court excused the jury and admonished Knight that she was committing aggravated perjury, a felony offense for which she could be imprisoned for ten years and fined $10,000. He noted that her grand jury testimony and her trial testimony conflicted and could not both be true. He told her he "did not like to have people come in here and take a solemn oath before God and this Court and then lie. I'm sick of it. . . . I suggest strongly that you start telling this Court the truth." He then asked her why she had lied. When she said she did not know, the court replied, "Give me a break," before recessing court.
When testimony resumed and Knight was confronted with a contradiction between her trial testimony and her grand jury testimony, Knight deferred to her grand jury testimony that the appellants visited every weekend. She conformed her testimony about who she saw getting into a car on the night of the murder to the version in her second statement; she said the defendants, the victim, and Evans got into the car, but that only the defendants returned. She again denied that Smith told her about the stabbing but, when confronted with her second statement to police that he had, she said that he had told her about the stabbing. (The court limited that testimony about Smith's assertion to use against Smith.) After again giving contrary testimony on whether he told her he was present when Miller was stabbed, she stated that her testimony that he had not told her he was present was false.
On cross examination, Knight said the police threatened to take her baby away from her if she did not tell the truth in her statements to them; she said she therefore told the police what they wanted to hear. She denied telling Virgil Crawford that the appellants killed Miller; she said Crawford might lie. She said she never saw Miller afraid of appellants. She denied being told or knowing who killed Miller. When asked what the truth was, she said she did not know. Knight then reasserted her original statement to police that the last time she saw Miller he was walking alone, and said that in her second statement she only went along with the "official version" that he got into the car with the appellants. She said she never saw the defendants sell powdered cocaine; if Miller had some, it was not from them. She said that the defendants were not in Wright's green car but in a rented car the last time they were in Rockdale. She said that the second statement was the police's words, not hers; she said the second statement was the truth, but that she merely went by what they told her, not what she knew.
On redirect examination, Knight said the second statement was not the truth, that she never saw the defendants and Miller get into the car, and that Smith told her nothing. She admitted that some of her grand jury testimony was false. She said she could not remember when she last saw Miller. Though she testified that the appellants did not come to Rockdale during June or July, she admitted she was not in Rockdale then and would not know if they had. On recross examination, however, she said she visited on weekends. She said that the police kept insisting that she tell the truth, when the truth was that she did not know anything about the murder.
At the close of her redirect examination, the State offered Knight's second statement to police in evidence. It was admitted without objection or limitation. The instruction in the jury charge, limiting the consideration of evidence "that was admitted solely against Kenneth Smith" to use only against Kenneth Smith, does not limit the use of evidence admitted without limitation. On contemporaneous request, the court limited a particular part of Knight's testimony about what Smith told her, but that limitation did not apply to the typed statement that was later admitted without objection or limitation. (3)
Viewed most favorably to the verdict, the evidence is legally sufficient to support the conviction. Evans's testimony is easily sufficient if corroborated. Crawford's testimony provides a statement of motive and intent to kill by Muhammad that immediately precedes Miller's disappearance. The destruction of the drugs by Miller's relatives further corroborates Evans's testimony regarding the motive for the slaying. Knight's testimony and statement, viewed most favorably to the verdict, show appellants with the victim shortly before the murder, their motivation to kill him, their discussion of murder after their return without Miller, and Miller's coincidental disappearance. Her relation of Smith's admissions is somewhat corroborative, but not decisive because he did not tell her who did the killing; it does, however, place all appellants at the murder scene. The corroboration allows us to consider Evans's testimony, which provides legally sufficient evidence for every element in the murder charge.
The evidence is also factually sufficient to support the conviction. While Knight's vacillation gives us some pause, the jury is the sole judge of the credibility of witnesses and can believe or disbelieve all or any part of her testimony. Evans's testimony provides ample evidence to support the conviction. We cannot say that the verdict was so against the overwhelming weight of the evidence as to render it clearly wrong and unjust. We overrule points one, two, and three.
By point of error four, Wright contends that the clearly prejudicial effect of the State's display of a vial of crack cocaine for demonstrative purposes outweighed any probative value. The State introduced it through the police chief. Upon admitting it, the trial court gave the following limiting instruction:
State's Exhibit 18 is admitted into evidence for demonstrative purposes only. Again, I caution the jury, this is to be considered only for demonstrative--for demonstration and get you familiar with what "crack" cocaine looks like and its typical patching--packaging. It--other than that, it has no relevance in this case whatsoever and should not be considered against any Defendant to have any other relevance than for demonstrative purposes only.
The trial court must admit relevant evidence unless the probative value of the evidence is substantially outweighed by the risk of unfair prejudicial effect or other deleterious effects. Tex. R. Civ. Evid. 403; Santellan, 939 S.W.2d at 169. We can reverse only if we determine, in view of all relevant facts, the trial court abused its discretion. Id.
The crack had some probative value, although slight. The State showed it to Miller's cousin, who testified that he found "rocks" among Miller's possessions, and the uncle to whom the cousin took the "rocks"; both the cousin and uncle said the substance found looked like State's Exhibit 18. Crawford also recognized it as crack. These demonstrations showed their familiarity with crack, allowing the State to show that its witnesses who said Miller and the defendants sold crack knew what crack was.
On the other hand, the risk of unfair prejudice was similarly small. There was repeated evidence that the victim, the defendants, and many of the witnesses were thoroughly familiar with crack as users, sellers, or both. The State's theory of the case was that the appellants killed Miller for shorting them on a drug deal. The display of a small amount of crack did not inject new, damaging proof. It was far from the only indication to the jury that the defendants were bringing drugs into their town. Jurors who were not already inflamed by hearing about the prevalence of crack were not likely to be suddenly incensed by viewing crack that admittedly did not belong to the defendants. In view of the overall development of the case, we cannot say that the trial court abused its discretion by concluding that the probative value of the demonstrative evidence was substantially outweighed by the risk of unfair prejudice. We overrule point four.
By point of error five, Wright contends that the clothing items found at the crime scene were improperly introduced as evidence because the State failed to prove the chain of custody. The rules of evidence require authentication or identification that supports a finding that the matter in question is what its proponent claims. Tex. R. Crim. Evid. 901(a). A chain of custody is not required if the item possesses characteristics which are fairly distinctive and readily identifiable, and if the substance of which the item is composed is relatively impervious to change. Ramirez v. State, 658 S.W.2d 808, 812 (Tex. App.--Corpus Christi 1983), aff'd, 672 S.W.2d 480 (Tex. Crim. App. 1984); Hammett v. State, 578 S.W.2d 699, 708 (Tex. Crim. App. 1979) (citing McCormick's Handbook on the Law of Evidence, 527 (2d ed., E. Cleary ed. 1972)). The clothing items--a bandana, a sweatshirt, a pair of jeans, a belt, and pair of shoes--are fairly distinctive and readily identifiable. Robertson, the DPS chemist through whom the items were admitted, recognized and identified each item as that which he and other searchers found at the crime scene along with the skeleton. The basic materials of the clothing were essentially impervious to change (Robertson testified multiple slits were in the shirt when it was found in the field). There was no evidence or intimation of replacement of or tampering with the clothes. The State presented sufficient evidence to prove that the items offered in evidence were the items found at the crime scene. Without evidence of tampering, sparse testimony regarding the chain of custody of the items in the interim goes to the weight given the evidence. Lagrone v. State, 942 S.W.2d 602, 617 (Tex. Crim. App. 1997) (citing Alvarez v. State, 857 S.W.2d 143, 147 (Tex. App.--Corpus Christi, 1993, pet. ref'd)). We overrule point five.
We affirm the judgment.
Marilyn Aboussie, Justice
Before Chief Justice Carroll, Justices Aboussie and B. A. Smith
Affirmed
Filed: July 24, 1997
Do Not Publish
1. Winters and Muhammad appeal their respective convictions in Cause Nos. 03-95-00473-CR and 03-95-00474-CR also decided this date. We will refer to them and Wright collectively as "appellants." The three appellants were tried together, and we refer to our other two opinions for a full recitation of the facts and evidence.
2. Wright's complaint, embedded in his discussion of the first point of error, that the court failed to instruct the jury regarding the necessity for corroboration of Evans's testimony, appears unfounded. Paragraph IV of the instruction explains the corroboration requirement for an accomplice witness's testimony, declares that Evans was an accomplice to any murder, and requires the jury to acquit the defendant unless it finds evidence (apart from Evans's testimony) tending to connect the defendant to the offense charged.
3. The exchange leading to the limiting instruction was as follows:
Q. And even though in that statement you say that "Kenneth told me that he was there with 'Rock,' 'T-Top,' 'Tray Man,' and Chris Evans, you're now telling us he didn't say that? Can you answer that question?
A. Yes.
Q. Did he tell you that or did he not tell you that?
A. Yeah, he told me that.
Q. He told you that?
A. Yeah.
Defense counsel then raised his objection, which was overruled, and requested an instruction limiting use of that statement to use against Smith, which was given. This exchange occurred long before the State offered the statement itself into evidence.
.
By point of error five, Wright contends that the clothing items found at the crime scene were improperly introduced as evidence because the State failed to prove the chain of custody. The rules of evidence require authentication or identification that supports a finding that the matter in question is what its proponent claims. Tex. R. Crim. Evid. 901(a). A chain of custody is not required if the item possesses characteristics which are fairly distinctive and readily identifiable, and if the substance of which the item is composed is relatively impervious to change. Ramirez v. State, 658 S.W.2d 808, 812 (Tex. App.--Corpus Christi 1983), aff'd, 672 S.W.2d 480 (Tex. Crim. App. 1984); Hammett v. State, 578 S.W.2d 699, 708 (Tex. Crim. App. 1979) (citing McCormick's Handbook on the Law of Evidence, 527 (2d ed., E. Cleary ed. 1972)). The clothing items--a bandana, a sweatshirt, a pair of jeans, a belt, and pair of shoes--are fairly distinctive and readily identifiable. Robertson, the DPS chemist through whom the items were admitted, recognized and identified each item as that which he and other searchers found at the crime scene along with the skeleton. The basic materials of the clothing were essentially impervious to change (Robertson testified multiple slits were in the shirt when it was found in the field). There was no evidence or intimation of replacement of or tampering with the clothes. The State presented sufficient evidence to prove that the items offered in evidence were the items found at the crime scene. Without evidence of tampering, sparse testimony regarding the chain of custody of the items in the interim goes to the weight given the evidence. Lagrone v. State, 942 S.W.2d 602, 617 (Tex. Crim. App. 1997) (citing Alvarez v. State, 857 S.W.2d 143, 147 (Tex. App.--Corpus Christi, 1993, pet. ref'd)). We overrule point five.
We affirm the judgment.
Marilyn Aboussie, Justice
Before Chief Justice Carroll, Justices Aboussie and B. A. Smith
Affirmed
Filed: July 24, 1997
Do Not Publish
1. Winters and Muhammad appeal their respective convictions in Cause Nos. 03-95-00473-CR and 03-95-00474-CR also decided this date. We will refer to them and Wright collectively as "appellants." The three appellants were tried together, and we refer to our other two opinions for a full recitation of the facts and evidence.
2. Wright's complaint, embedded in his discussion of the first point of error, that the court failed to instruct the jury regarding the necessity for corroboration of Evans's testimony, appears unfounded. Paragraph IV of the instruction explains the corroboration requirement for an accomplice witness's testimony, declares that Evans was an accomplice to any murder, and requires the jury to acquit the defendant unless it finds evidence (apart from Evans's testimony) tending to connect the defendant to the offense charged.
3. The exchange leading to the limiting instruction was as follows:
Q. And even though in that statement you say that "Kenneth told me that he was there with 'Rock,' 'T-Top,' 'Tray Man,' and Chris Evans, you're now telling us he did