NO. 12-05-00358-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
JOHNNY FRANKLIN LEE, § APPEAL FROM THE 159TH
APPELLANT
V. § JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE § ANGELINA COUNTY, TEXAS
MEMORANDUM OPINION
Johnny Franklin Lee appeals his conviction for murder. In six issues, he argues that the trial court should have denied the State’s motion to try him with a codefendant, the evidence was insufficient to sustain his conviction, and the trial court erred in not giving jury instructions he requested. We affirm.
Background
Johnny Lee and his wife, Rebecca, lived together with Rebecca’s two daughters. Appellant had been to prison several times and supported the family by manufacturing methamphetamine and selling it. On May 9, 2003, Appellant and Rebecca killed Candice by injecting her with a large quantity of methamphetamine. According to the medical examiner, Candice, a slight fifteen year old girl, had enough amphetamine and methamphetamine in her system to kill four 150 pound men. She also had a minor wound to her arm where the drugs were injected and finger shaped marks near the injection point that were consistent with her arm being held forcibly. She also had numerous scrapes, cuts, and bruises, although none of them were life threatening injuries.
Elton Reece is a drug user, and he testified that he went to the Lee home early in the morning on May 9, 2003 to buy methamphetamine. He heard fighting or commotion in a back bedroom, and then saw Candice run out of the bedroom and out of the house. Appellant and Rebecca chased her, and Candice tried to hide under a truck. Appellant pulled her from under the truck and took her back to the back bedroom. After a short time, Appellant emerged and told Elton that he thought Candice was dead. Rebecca emerged and said that she told Johnny it was “too much,” and Appellant responded, “I didn’t mean to.”
Hours later, Rebecca called the police and reported that Appellant had found Candice under a truck outside the home, that they had brought her inside, and that Candice was dead. At trial, two of Rebecca’s acquaintances testified that she had admitted injecting Candice with methamphetamine the night she died, and one witness said Rebecca showed her the puncture mark on Candice’s arm at her funeral service. The funeral service was conducted before the autopsy and before the cause of death was known to law enforcement. Appellant’s defense at trial was that he had gone to sleep the evening of May 8, 2003 and had nothing to do with Candice’s death. The jury disbelieved him, found Appellant guilty as charged, and assessed punishment at imprisonment for life. This appeal followed.
Severance
In his first issue, Appellant asserts that the trial court erred when it granted the State’s motion to join his trial with Rebecca Lee’s trial.
Applicable Law and Analysis
Article 36.09 of the Texas Code of Criminal Procedure provides that a court is to sever the trial of two codefendants if there is prejudice to one of them from the joinder. Tex. Code Crim. Proc. Ann. art. 36.09 (Vernon 2006); see also Qualley v. State, 206 S.W.3d 624, 636 (Tex. Crim. App. 2006). In his brief, Appellant argues that he was prejudiced because Rebecca’s attorney said that the two had done a bad job of getting their stories straight, and that he was prejudiced by an outburst by Rebecca during the trial.
Neither of these events prejudiced Appellant. With respect to counsel’s statement, it was essentially an argument that they would have gotten their stories together better if they were lying. Appellant admitted that he had made inaccurate statements to the police, maintaining that he told the truth on the witness stand.1 Rebecca’s counsel’s statements were not an attack against Appellant, but rather a recognition that some aspects of their stories to the police differed from their testimony at trial.
With respect to Rebecca’s outbursts, Johnny testified at the motion for new trial hearing that she began to cry when the pictures of Candice were displayed and that she said something out loud at the end of the trial.2 To preserve a complaint about a joint trial, there must be a timely and specific objection. See Zunker v. State, 177 S.W.3d 72, 78 (Tex. App.–Houston [1st Dist.] 2005, pet. ref’d). Prior to trial, Appellant objected to the joint trial, claiming that he might be prejudiced if Rebecca launched an antagonistic defense. He never asked for a severance on the grounds of Rebecca’s outbursts and never obtained an adverse ruling on that question. Therefore, this portion of the complaint is waived.
Even if Appellant had preserved a complaint, he has not shown prejudice. Generally, when two defendants are jointly indicted for the same offense, they should be tried jointly. Dickerson v. State, 87 S.W.3d 632, 639 (Tex. App.–San Antonio 2002, no pet.). However, the trial court may order separate trials, at its discretion. Tex. Code Crim. Proc. Ann. art. 36.09. When discussing prejudice in joint trials from antagonistic defenses, the Texas Court of Criminal Appeals stated that to establish prejudice, the defendant must show a serious risk that a specific trial right would be compromised by a joint trial, or that a joint trial would prevent the jury from making a reliable judgment about guilt or innocence, and that the problem could not be adequately addressed by lesser curative measures, such as a limiting instruction. Qualley, 206 S.W.3d at 636. This case does not involve antagonistic defenses, and there is no showing that either of the core kinds of prejudice described in Qualley are present here. Appellant has identified no core trial right that has been compromised, nor do we perceive a lack of reliability from the joint trial. Rebecca’s statements were disrespectful, but came at the end of a long trial. We fail to see how her intemperance prejudiced Appellant. Her reaction to the photographs, assuming it happened, is understandable. We have reviewed the photographs. They are unpleasant. In our view, however, a natural emotional response to those photographs is not something that would prejudice Appellant in this matter.
The two defenses were not antagonistic—if anything they supported each other—and Appellant has failed to show that he suffered prejudice from the joint trial. We overrule Appellant’s first issue.
Sufficiency of the Evidence
In his second, third, fourth, and fifth issues, Appellant argues that the evidence is insufficient to support his conviction. Specifically, Appellant argues that the trial court should have granted his motion for a directed verdict at the close of the State’s case, that the accomplice testimony was not corroborated, and that the evidence was legally and factually insufficient to support his conviction.
Standards of Review
The due process guarantee of the Fourteenth Amendment requires that a conviction be supported by legally sufficient evidence. See Jackson v. Virginia, 443 U.S. 307, 315–16, 99 S. Ct. 2781, 2786–87, 61 L. Ed. 2d 560 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex. Crim. App. 2004); Willis v. State, 192 S.W.3d 585, 592 (Tex. App.–Tyler 2006, pet. ref’d). Evidence is not legally sufficient if, when viewing the evidence in a light most favorable to the verdict, no rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993).
While legal sufficiency review is all that is required by the U.S. Constitution, the Texas Court of Criminal Appeals has determined that the Texas Constitution requires further review of the factual sufficiency of the evidence. Clewis v. State, 922 S.W.2d 126, 129–30 (Tex. Crim. App. 1996). We review the factual sufficiency of the evidence without the light most favorable to the verdict, and we determine whether the evidence supporting the verdict is so obviously weak as to undermine our 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); see also Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006) (Evidence is factually insufficient only when reviewing court objectively concludes that the great weight and preponderance of the evidence contradicts the jury’s verdict.).
Under either standard, our role is that of appellate review, and the fact finder is the sole judge of the weight and credibility of a witness’s testimony. Wesbrook v. State, 29 S.W.3d 103, 111–12 (Tex. Crim. App. 2000). The fact finder may choose to believe all, some, or none of a witness’s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).
The sufficiency of the evidence is measured against the offense as defined by a hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct jury charge “accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant is tried.” Id.
As alleged in the amended indictment, the State was required to prove that Appellant intentionally or knowingly committed an act clearly dangerous to human life by injecting Candice Alexander with an excessive amount of methamphetamine, causing the death of Candice Alexander, that he did so in the course of committing the felony offense of delivery of methamphetamine to a minor, and that the death was caused in the course of and in furtherance of the commission of the felony. See Tex. Pen. Code Ann. §§ 19.02 (b)(2), (3) (Vernon 2006). A deadly weapon is a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury, or anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. Tex. Pen. Code Ann. § 1.07(a)(17) (Vernon 2006).
A challenge to the denial of a motion for instructed verdict is a challenge to the legal sufficiency of the evidence. McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997); Cook v. State, 858 S.W.2d 467, 470 (Tex. Crim. App. 1993). We consider all of the evidence for purposes of this review. Cook, 858 S.W.2d at 470.
A conviction may not be sustained on the testimony of an accomplice unless there is other evidence “tending to connect a defendant to the offense committed.” Tex. Code Crim. Proc. Ann. 38.14 (Vernon 2006); Simpson v. State, 181 S.W.3d 743, 753 (Tex. App.–Tyler 2005, pet. ref’d). The corroborating evidence need not directly connect the defendant to the crime or be sufficient by itself to establish guilt, but it must do more than merely show the commission of the offense. Tex. Code Crim. Proc. Ann. 38.14. The corroboration requirement is fulfilled if the combined weight of the nonaccomplice evidence tends to connect the defendant to the offense. Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999). The corroborating evidence may consist of circumstantial evidence. Gosch v. State, 829 S.W.2d 775, 777 (Tex. Crim. App. 1991).
To evaluate whether there is sufficient corroborating evidence, we eliminate the accomplice testimony from our consideration and examine the record to ascertain whether the remaining evidence tends to connect the defendant with the offense. McDuff, 939 S.W.2d at 612. The accomplice witness rule is a statutorily imposed sufficiency review and is not derived from federal or state constitutional principles that are the basis for the legal and factual sufficiency standards. Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002).
Analysis–Identity
Appellant first argues that the trial court should have granted a directed verdict because he was not identified by any of the witnesses during the trial. The State disagrees, pointing to one witness who identified Appellant, and argues that identity was not an issue in this case. A defendant is not required to specifically contest an issue beyond a plea of not guilty to require the State to prove every element of an offense. There was, however, evidence of identity in this case. One witness identified Appellant, and a videotape of Appellant’s statement to the police was played3 for the jury.
The court of criminal appeals has held that in cases where an in–court identification is incomplete, a reviewing court need not presume that the jury chose “wilfully to convict [Appellant] without evidence” that he was the perpetrator of the offense. See Rohlfing v. State, 612 S.W.2d 598, 601 (Tex. Crim. App. 1981). To resolve this matter, however, we need not rely on a presumption. Our review encompasses the entire trial, including Appellant’s case in chief. See Cook, 858 S.W.2d at 470. Appellant testified during his case in chief and identified himself. It is clear that he was the same Johnny Lee whose stepdaughter was killed and who was at the residence before and after she was killed. The evidence was legally sufficient to prove that the Johnny Lee named in the indictment and was the same Johnny Lee who was on trial.
Analysis–Corroboration of Accomplice Testimony
Elton Reece was also charged with Candice’s murder and therefore was an accomplice as a matter of law. See Burns v. State, 703 S.W.2d 649, 651 (Tex. Crim. App. 1985). He testified that he was present in the home when Candice was killed. Reece testified that there was a commotion in a bedroom in Appellant’s home, that Candice ran out of the room, out of the trailer, and tried to hide under a truck outside the house. Reece testified that Johnny pulled her out from under the truck and took her back inside. Appellant and Johnny took Candice to a back room. Reece testified that Johnny and Appellant emerged a short time later and said Candice was dead.
Setting aside Reece’s testimony, there is substantial evidence that links Appellant to the murder. First, the cause of Candice’s death was an overdose of methamphetamine. Shortly after Candice’s death, Appellant told at least one witness that Candice had died of a drug overdose. Another witness testified that Rebecca told her Candice had died of a methamphetamine overdose and, at the funeral service for Candice, told her to look at Candice’s arm. Each of these events occurred before the toxicology report was available concluding that Candice died of an overdose of methamphetamine. Further, Appellant was asked by Candice’s sister if he had killed her. He did not deny it, but made a vague statement that there had been a time when he would have “killed anyone who laid a hand on one of you girls.” Finally, while denying killing his stepdaughter, Appellant testified that he was present in the home before she died, that there were dogs at the house that would have barked at strangers, and that he was the one who found the body. The evidence other than Reece’s testimony is sufficient to link Appellant to the murder.
Analysis–Legal and Factual Sufficiency
With respect to the legal sufficiency of the evidence, Appellant argues only that it was not proven that he was the same Johnny Lee who was indicted. We have previously considered this argument and hold that there was sufficient evidence, including Appellant’s testimony, to prove that he was the Johnny Lee referred to in the indictment and to whom the witnesses were referring when they testified.
Appellant argues that the evidence is factually insufficient to support the verdict. Specifically he argues that another of Appellant’s daughters was present in the trailer and would have awoken had the assault happened the way Reece testified, that Reece’s testimony was unreliable generally, and that the evidence was insufficient to overcome Appellant’s testimony that he was asleep when Candice was murdered. This is primarily an argument about the weight to be given to Reece’s and Appellant’s testimony. The jury determines the weight to be given the testimony and is the arbiter of credibility. Wesbrook, 29 S.W.3d at 111–12. The jury’s decision to credit Reece’s testimony and not Appellant’s is not unreasonable. The testimony of Elton Reece and the medical examiner, if believed, is sufficient to support the verdict. When we consider this testimony along with Appellant’s statements to other witnesses and the remainder of the evidence, we conclude that the evidence that supports the verdict is neither inadequate, standing alone, to support the verdict; nor is it outweighed by the great weight and preponderance of the evidence. We overrule Appellant’s second, third, fourth, and fifth issues.
Jury Instructions
In his sixth issue, Appellant contends that the trial court erred when it declined to give several jury instructions he requested. The instructions requested by Appellant would have invited the jury to examine the testimony of drug addicts, informants, and those testifying under immunity from prosecution with “greater care” or “greater care and caution” than the testimony of an ordinary witness.4
A trial court is required to instruct the jury on the “law applicable to the case,” and it is error for a trial court to refuse to do so. Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon 2006); Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim. App. 2000). Appellant has cited no Texas authority—other than a bare citation to several sections of article I of the Texas Constitution—for the type of instructions he requested and asserts, again without citation, that these instructions are derived from jury instructions used in the federal courts in the Fifth Circuit. See, e.g., United States v. Abrego, 141 F.3d 142, 153 (5th Cir. 1998). Although not precisely denominated as such, we will construe this argument as a good faith argument for an extension, modification, or reversal of existing law.
Existing law forbids the instruction Appellant sought. The court of criminal appeals has acknowledged that “[i]t has long been held that it is reversible error for the trial court to give instructions that refer to the credibility of the witnesses.” Russell v. State, 749 S.W.2d 77, 78 (Tex. Crim. App. 1988). We have held that a credibility instruction need not be given when a child witness testifies, Norman v. State, 862 S.W.2d 621, 628 (Tex. App.–Tyler 1993, pet. denied), and several courts of appeals have considered instructions similar to those proposed here and held that a trial court need not give them. See Reyes v. State, 694 S.W.2d 556, 566–67 (Tex. App.–Corpus Christi 1985), reformed on other grounds and aff’d, 741 S.W.2d 414 (Tex. Crim. App. 1987); Conway v. State, 740 S.W.2d 559, 562 (Tex. App.–Beaumont 1987, pet. ref’d).
In Slaughter v. State, 809 S.W.2d 949, 951–52 (Tex. App.–Beaumont 1991, no pet.), the court of appeals traced the law regarding jury instructions relating to the credibility of witnesses back more than one hundred years and concluded that such instructions were improper and contrary to Texas law. The court in Slaughter noted that, by statute, the jury is the exclusive judge of the weight to be given to testimony and the trial court is forbidden to express an opinion on the weight of the evidence. Id. (citing Tex. Code Crim. Proc. Ann. arts. 38.04, 36.14). The instructions requested by Appellant cannot be given because they are a form of comment on the weight of a witness’s testimony. Id. (quoting Muely v. State, 31 Tex. Crim. 155, 19 S.W. 915 (1892) (“The jury are the exclusive judges of the weight of the testimony and the credibility of the witnesses, and no interference by the court with the prerogative of the jury in these respects can be allowed.”)); see also Russell, 749 S.W.2d at 78 (“Certainly a comment on the weight of the evidence occurs when the judge appraises the credibility of a particular witness. Thus when a judge, in his charge to the jury, suggests that certain evidence is true or is untrue, that is a comment on the weight of the evidence.”).
Appellant argues that reversible error occurred because the jury was not informed to be skeptical of the testimony of drug addicts, those he has called “informants,” and those who had criminal cases pending. Appellant’s argument does not persuade us to depart from established precedent. The crucible of cross examination burns hot enough to allow sufficient probing of a witness who may use drugs, if the evidence is admissible, or who is facing criminal charges. We are not persuaded, even if Texas law allowed it, that a jury needs to be specifically reminded to be skeptical of the testimony of witnesses with these issues. Nor are we persuaded that the Texas or the U.S. constitutions require such instructions. It has long been the law in Texas that the trial court may not make a comment on the weight of the evidence. This conclusion is rooted in our desire that factual determinations in criminal cases, including assessments of credibility, be made by jurors with as little judicial interference as possible. The trial court’s responsibility to read the law to the jury does not include offering suggestions about how to assess credibility. We overrule Appellant’s sixth issue.
Disposition
We affirm the judgment of the trial court.
JAMES T. WORTHEN
Chief Justice
Opinion delivered February 9, 2007.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
1 In response to a question from the district attorney, Appellant said, “Sir [,] I know that I told a big wad of stuff here.” When asked by his attorney to clarify what he meant, Appellant said, “Well, it’s the stuff that I told before, is what I was talking about. This stuff I’m telling you–all today is the truth as I remember it and as I know.”
2 Near the end of his summation during the punishment phase of the trial, the prosecutor said “. . . . after today, there will be nothing left to do for Candice Alexander but to put flowers on her grave.” Rebecca responded by saying, “Oh, bull.” Moments later she said, “That’s okay. God will get him. Sure will.” The last statement appears to refer to the district attorney.
3 We do not doubt that the videotape was persuasive evidence of identity, but on appeal we cannot compare an image on the videotape to the person at trial because we were not present at trial.
4 As required by law, the trial court instructed the jury that Elton Reece was an accomplice and that if an offense was committed, the jury could not consider Reece’s testimony unless it found his testimony to be true and corroborated by other evidence tending to connect Appellant to the charged offense. See Herron v. State, 86 S.W.3d 621, 631–32 (Tex. Crim. App. 2002).