11th Court of Appeals
Eastland, Texas
Opinion
Otis T. Minafee
Appellant
Vs. No. 11-01-00238-CR C Appeal from Dallas County
State of Texas
Appellee
The jury convicted appellant of murder and assessed his punishment at confinement for life and a $10,000 fine. We affirm.
In his fourth point of error, appellant complains that the evidence is factually insufficient to support his conviction. In deciding whether the evidence is factually sufficient to support the conviction, we must review all of the evidence in a neutral light favoring neither party to determine if the evidence is so weak or the verdict is so against the great weight of the evidence as to be clearly wrong and unjust. Goodman v. State, 66 S.W.3d 283 (Tex.Cr.App.2001); Johnson v. State, 23 S.W.3d 1 (Tex.Cr.App.2000); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996). We review the fact finder=s weighing of the evidence and cannot substitute our judgment for that of the fact finder. Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, supra. Due deference must be given to the jury=s determination, particularly concerning the weight and credibility of the evidence. Johnson v. State, supra; Jones v. State, 944 S.W.2d 642 (Tex.Cr.App.1996), cert. den=d, 522 U.S. 832 (1997). This court has the authority to disagree with the fact finder=s determination Aonly when the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice.@ Johnson v. State, supra at 9.
Officer Michael Hunter with the Balch Springs Police Department testified that on August 9, 1999, he was dispatched to 11216 Erich Drive in Balch Springs at 4:10 a.m. in response to a shooting at that residence. Officer Hunter was met at the scene by a slightly injured female, who took him into the bedroom where appellant was lying on the floor beside the bed. Officer Hunter stated that shots had been fired into the front of the house. Appellant was taken to the hospital shortly after Officer Hunter arrived.
Detective Jim Spurger arrived at the scene after appellant had been taken to the hospital. Detective Spurger received consent to search the residence from Shanta Calloway, appellant=s girlfriend who lived at the residence with appellant. Detective Spurger stated that the officers found a large amount of marihuana in the garage and scales in the living room. Detective Spurger also found a bullet hole in the kitchen ceiling which was inconsistent with the shots fired at the front of the house. Ashes were still smoldering in a trash can in the backyard.
Detective Spurger met with Calloway later that morning, and Calloway gave a written statement about the marihuana that was found at the residence. Calloway gave consent for the officers to search a gray Buick that was parked in front of the residence. After giving her statement, Calloway was arrested for possession of marihuana and outstanding traffic warrants.
Detective Spurger then met with appellant at the hospital, and appellant gave a written statement about the marihuana. After he had taken appellant=s statement, Detective Spurger called the Dallas Police Department to see if they were Aworking anything whatsoever that could possibly relate to this offense.@ Based upon information received from the Dallas Police Department, Detective Spurger questioned Calloway about appellant being involved in the murder of the victim. Calloway gave the officers a second consent to search the residence and the Buick.
Detective Spurger and Detective Tim Harshbarger went to meet with appellant again at the hospital. During this time, Dallas police officers found the victim=s body. Appellant gave a written statement to Detective Spurger and Detective Harshbarger on August 9 at about 6:00 p.m. Detective Spurger read the statement to the jury at trial. In his statement, appellant said that he met the victim at the victim=s mother=s house and that they went to the end of the street to load the marihuana. Appellant and the victim then went to appellant=s house and unloaded the marihuana. Appellant went to the garage to get the money, and the victim saw appellant=s pistol. Appellant stated that he and the victim fought over the gun and that appellant called for help from his cousin, Keino Thomas. Thomas came in with a shotgun and held the shotgun to the victim=s head. The victim tried to use appellant as a shield, and the victim hit the shotgun in the air resulting in a struggle over the shotgun. The victim Amomentarily got ahold of the gauge and tried to fire@ at appellant. Thomas knocked the gun in the air as it went off, leaving a hole in the ceiling. Appellant then shot the victim four times Abecause I thought he had shot me.@ Appellant became paranoid and told Thomas to Aget rid of [the victim=s] body.@ Thomas drove the victim=s vehicle and dumped the body. In his statement, appellant stated that he was supposed to pay the victim $93,375 for the marihuana. Appellant gave his pistol to a friend, Montreal Blair, and put the shotgun under his bed. Detective Spurger testified that, after he had given his written statement, appellant was considered to be under arrest for capital murder.
After taking appellant=s statement, Detective Spurger went to where the victim=s body was found. The body was found in the alley on the street where Thomas lived. Thomas gave a statement to the police, and both appellant and Thomas were charged with capital murder. After further investigation, Detective Spurger met with appellant on August 13, and appellant gave another written statement.
Detective Spurger read the August 13 statement to the jury. In this statement, appellant again said that he met the victim and that they went to appellant=s house to unload the marihuana. Appellant came in from the garage, and the victim said, A[H]ey, man, what=s going on.@ Appellant asked what the victim was talking about. The victim said, A[T]his is what I=m talking about@; and the victim grabbed appellant and tried to get appellant=s gun from his back waistband. Appellant called for Thomas to help him, and Thomas came in with a shotgun. The victim grabbed Thomas, and the shotgun went off. The victim used Thomas as a shield, and appellant fired his gun three times. Appellant said that he Ahit [the victim] in the head a few times@ and that A[h]e fell to the ground.@ Appellant stated that the victim then got up and tried to use his car phone. Appellant panicked and Ashot him the final time killing him.@ Appellant and Thomas dragged the victim to the garage and put him in appellant=s car. Appellant drove the victim=s vehicle and abandoned it. Appellant and Thomas put anything belonging to the victim or anything with blood on it in a trash can in the backyard and burned it.
Margaret Medellin, the victim=s wife, testified at trial that, on August 7, she last saw the victim at 6:30 or 7:00 p.m. The victim called her at 11:25 p.m., but he did not say anything. Medellin could hear people in the background yelling and cursing, and then they were disconnected. Medellin tried to call back but could not get through to the victim. Medellin learned the following day that her husband had been killed.
Arthur DeCardenas with the Physical Evidence Section of the Dallas County Sheriff=s Office testified that he was called out to appellant=s residence by the Balch Springs Police Department to assist in their investigation. Officer DeCardenas found blood in the garage and in the trunk of the Buick. Officer DeCardenas took blood samples from the garage and from the Buick; the DNA from those samples matched that of the victim. Officer DeCardenas also testified that the victim only had one tennis shoe when his body was found and that remnants of a tennis shoe were found in the trash can at appellant=s residence.
Calloway testified at trial that she stayed at her aunt=s house on August 7 and that, on August 8, appellant and his friend Blair came and picked her up. Calloway and appellant went to their home and were watching television when Thomas came to the house in the Buick. Calloway noticed the bullet hole in the ceiling and blood on the carpet, but she did not ask appellant about it until after they took Thomas home. Calloway testified that appellant told her that he and Thomas were involved in a Adrug deal@ and that the Aguy got nervous...and picked up the shotgun.@ Appellant told Calloway that appellant=s gun hit the other gun and that it went off, creating the hole in the ceiling. Appellant then shot the victim. Appellant told Calloway that Thomas dumped the body in Dallas. Calloway said that early the next morning she and appellant were in bed when she heard a knock at the door. Calloway woke up appellant, and then she looked out of the window. Appellant looked out of the window, and then shots were fired into the front of the house. Calloway called the police; and, after they arrived, she gave them consent to search the house.
Blair testified at trial that, on the morning of August 8, appellant called Blair and asked him to take appellant to church. Blair went and picked up appellant. Appellant was carrying a CD case. Blair and appellant went to Blair=s brother=s house, and appellant asked Blair if he could leave the CD case at the house. Appellant told Blair that there was a gun in the CD case. Blair and appellant went to church. After church, they picked up Calloway, and then Blair took appellant and Calloway home. Blair said that, on August 9, the police came to his mother=s house and questioned him about the gun. Blair called his brother who brought the gun and gave it to the police.
Appellant testified at trial that he sold drugs for a living and that his older brother was in prison for selling drugs. Appellant met the victim through appellant=s older brother. Appellant=s cousin had a Aconnection@ that wanted to buy some marihuana, and appellant arranged to buy the marihuana from the victim. Appellant had agreed to pay the victim $93,375 for the marihuana, and he had received $120,000 from his cousin=s Aconnection@ to purchase the drugs. Appellant met the victim at the victim=s mother=s house. They went to the end of the street to load the marihuana into the trunk of appellant=s car. Appellant and the victim went to appellant=s house and unloaded the marihuana in the garage. Appellant testified that he paid the victim and then went back into the garage to close the garage door and the trunk of the car. When he went back into the house, appellant had his pistol in the waistband of his pants. While he was walking, the pistol began to slip down into appellant=s pants. Appellant was trying to grab his pistol; and the victim, who was on the phone, saw appellant reaching for the gun. The victim asked appellant, A[W]hat=s going on?@ Appellant responded, A[N]othing.@ Appellant said that the victim grabbed him and that the two began Atussling.@ Appellant testified that he was pleading with the victim for his life and calling to his cousin, Thomas, for help.
Appellant stated that Thomas came into the room with a shotgun and told the victim to let go of appellant. The victim pushed appellant and grabbed the shotgun. The victim and Thomas were struggling over the gun, and it fired. Appellant said that he then shot the victim and also shot Thomas. Appellant testified that he knew the victim was dead. Appellant was scared, so they took the body and abandoned it. Appellant then contacted the people who were buying the marihuana from him and told them to come over. When they arrived, appellant told them that he had killed his supplier, and they requested their money back and left.
Appellant testified that he tried to clean up the house and that he saw the victim=s shoe on the floor. Appellant said that he burned the victim=s shoe and the towels he used to clean the house. Appellant said that he did not have any intention of taking the victim=s property when he killed him. Appellant took the victim=s vehicle to Blair=s house, and he told Blair what had happened. Blair told appellant to get rid of the vehicle. Appellant and Blair took the victim=s vehicle and abandoned it with the keys in the ignition. Blair and appellant spent the night at appellant=s house.
The next morning, they took the pistol to Blair=s brother=s house and then went to church. After church, Blair took appellant to get Calloway, and appellant and Calloway went home. Appellant testified that, early the next morning, someone shot through all of the front windows of his house. Appellant said that he was shot in the leg and was taken to the hospital.
Appellant specifically argues that the evidence is insufficient to support his conviction for murder because a rational trier of fact could not have found against him on the issue of self-defense. The State has the burden of persuasion in disproving evidence of self‑defense. Saxton v. State, 804 S.W.2d 910, 913 (Tex.Cr.App.1991). The State is not required to affirmatively produce evidence which refutes the self‑defense claim; rather, the State has the burden to prove its case beyond a reasonable doubt. Saxton v. State, supra. Self‑defense is subject to a factual sufficiency challenge and review under the Clewis standard. Shaw v. State, 995 S.W.2d 867, 868 (Tex.App. - Waco 1999, no pet=n). In our review for factual sufficiency of the evidence, we consider all the evidence in the record related to the contested issue. Shaw v. State, supra. We reverse the conviction only if the jury=s rejection of the defendant=s evidence of self‑defense is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Shaw v. State, supra.
Appellant testified at trial that he was afraid for his life when Thomas and the victim were struggling over the shotgun and the gun fired. The State presented evidence that appellant and his cousin were both armed during the drug transaction and that the victim did not fire a weapon during the altercation. The jury heard evidence that the victim was using Thomas as a shield when he was shot. The jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. TEX. CODE CRIM. PRO. ANN. arts. 36.13 & 38.04 (Vernon 1979 and 1981). The jury views the demeanor of the witnesses and can choose to believe all, some, or none of the testimony. Chambers v. State, 805 S.W.2d 459 (Tex.Cr.App.1991). Viewing all of the evidence, we do not find that the jury=s verdict of guilty and its rejection of appellant=s claim of self-defense are so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, supra. Appellant=s fourth point of error is overruled.
In his first point of error, appellant contends that the State made an impermissible jury argument. In his second point of error, appellant argues that the trial court erred in denying him the right to reopen his case for additional testimony after the State=s impermissible jury argument. At trial, appellant testified that, after he gave his second statement, Detective Harshbarger accused him of lying. Appellant said that Detective Harshbarger told him that he had a witness named AJorge@ who had seen appellant with the victim and who would prove that appellant lied about the events that occurred. Detective Harshbarger also said that he had witnesses who heard appellant arguing with the victim on the phone. Appellant testified that he gave a third statement because Detective Harshbarger accused him of lying and said that he had witnesses to prove appellant was lying.
Appellant called Detective Harshbarger to testify, and the State informed the trial court that he was Aunavailable at this time.@ Appellant and the State agreed to a stipulation regarding Detective Harshbarger. The following stipulation was read to the jury:
It is hereby stipulated and agreed by the State and the Defense that Detective Harshbarger has never met nor interviewed the witness mentioned earlier, who has come to be known as Jorge, concerning any matter in relation to this case.
The State made the following statement regarding Detective Harshbarger during its closing argument:
Let me respond to some things he said about the detectives. I did not call Detective Harshbarger. They had a very limited role in this case. Dallas discovered the body, notified the next of kin, found the [victim=s vehicle]. The next day they came and talked to [appellant] just as a marihuana investigation for five minutes. That=s all Harshbarger had to do with this case. And that=s why I didn=t call him.
Now, [appellant=s counsel] goes up and down about Jorge. Jorge is not relevant to anything here. The stipulation was that Harshbarger never interviewed him. Not that he never talked to him.
Appellant objected to the argument; and the trial court instructed the jury, AYou hear the argument ladies and gentlemen, you will be bound [by] jury argument.@ Appellant requested to reopen his case and also requested a mistrial which were both denied.
We find that the State=s argument is in response to the argument of appellant=s trial counsel that the State did not call Detective Harshbarger because Athey got a problem with Harshbarger=s testimony.@ See Coble v. State, 871 S.W.2d 192 (Tex.Cr.App.1993). Appellant argues that the argument misstates the stipulation. Although the State=s argument does not precisely follow the stipulation, the entire stipulation was read to the jury. We find that any misstatement did not affect appellant=s substantial rights. TEX.R.APP.P. 44.2(b).
The decision to reopen a case is left to the sound discretion of the trial court. Cain v. State, 666 S.W.2d 109, 111 (Tex.Cr.App.1984). The trial court abuses its discretion if it refuses to reopen a case when the following conditions are met: (1) the witness was present and ready to testify; (2) the request to reopen was made before the charge was read to the jury and final arguments were made; (3) the court had some indication of what the testimony would have been and was satisfied that the testimony was material and bore directly on the main issues in the case; and (4) there was no showing that introduction of the testimony would have impeded the trial or interfered with the orderly administration of justice. Sims v. State, 833 S.W.2d 281, 286 (Tex.App. ‑ Houston [14th Dist.] 1992, pet=n ref'd). Appellant has not shown that the trial court abused its discretion in refusing to allow him to reopen his case. Appellant=s first and second points of error are overruled.
In his third point of error, appellant argues that the State failed to reveal favorable evidence in violation of Brady v. Maryland, 373 U.S. 83, 87 (1963). The Supreme Court held in Brady that the prosecution violates due process when it suppresses evidence in its possession favorable to an accused "where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Wyatt v. State, 23 S.W.3d 18 (Tex.Cr.App.2000). Evidence withheld by a prosecutor is "material" if there is "a reasonable probability that, had the evidence been disclosed to the defense, the outcome of the proceeding would have been different." Wyatt v. State, supra at 27. A "reasonable probability" is a "probability sufficient to undermine confidence in the outcome." Wyatt v. State, supra at 27. Thus, a due process violation has occurred if a prosecutor (1) fails to disclose evidence (2) favorable to the accused (3) which creates a probability of a different outcome. Wyatt v. State, supra.
Appellant contends that Detective Harshbarger lied to him and that the State was aware of Detective Harshbarger=s actions because of the agreed stipulation and because of the fact that Detective Harshbarger was unavailable to testify. Detective Spurger testified that, to his knowledge, Detective Harshbarger never lied to appellant. Appellant has not presented any evidence that the State failed to disclose evidence favorable to him. Moreover, appellant testified at trial that Detective Harshbarger lied to him; therefore, appellant has not shown that the State withheld evidence which would have resulted in a different outcome. Appellant=s third point of error is overruled.
The judgment of the trial court is affirmed.
JIM R. WRIGHT
September 26, 2002 JUSTICE
Do not publish. See TEX.R.APP.P. 47.3(b).
Panel consists of: Arnot, C.J., and
Wright, J., and McCall, J.