Affirmed and Memorandum Opinion filed March 11, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-02-01178-CR
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COREY DEWAYNE PHILLIPS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 178th District Court
Harris County, Texas
Trial Court Cause No. 856,244
M E M O R A N D U M O P I N I O N
Appellant Corey DeWayne Phillips was found guilty of the offense of capital murder, and the jury sentenced him to confinement for life in the Texas Department of Criminal Justice, Institutional Division. In four points of error, appellant claims (1) the trial court improperly admitted evidence of an extraneous offense; (2) the trial court=s supplemental instructions to the jury on the law of parties constituted an improper comment on the weight of the evidence; (3) the trial court improperly denied a requested jury instruction on independent impulse; and (4) the evidence is factually insufficient to sustain the conviction. We affirm.
I. Background
On September 17, 2000, appellant and three other individuals abducted Matthew Carter, a first-year medical student, from a Blockbuster Video store as he returned a movie. The following morning, a maintenance worker for the Scottish Rite Temple found Carter=s body in his car in the temple=s parking lot. Carter had been shot and killed.
On the evening Carter was murdered, appellant was approached by Perry Williams, James Dunn, and Kinita Star Butler. They told appellant they were Afixing to flip@ C a slang term for committing robberies. Appellant went home to change clothes and was picked up by the group about thirty minutes later.
The four went in an Oldsmobile driven by Williams to a grocery store and parked next to Anthony Gonzalez=s Honda Accord. When Gonzalez returned to his car and opened its door, Williams stepped out of the Oldsmobile and pointed a gun at Gonzalez. Williams told Gonzalez to get in the driver=s seat of the Honda and to not look at him. Williams crawled over Gonzalez to get into the passenger=s seat. Appellant then moved from the passenger=s seat to the driver=s seat of the Oldsmobile. Williams told Gonzalez to drive the Honda. Gonzalez exited the parking lot of the grocery store onto South Post Oak. As Williams was taking Gonzalez=s wallet, necklace, and watch, Gonzalez noticed the Oldsmobile was following them. Williams told Gonzalez to turn down a dark road, Willowbend. Gonzalez did so, but then suddenly turned into a Walgreen=s parking lot. The Oldsmobile continued straight on Willowbend. Williams became nervous, and told Gonzalez to get back on Willowbend. A few seconds after Gonzalez pulled back onto the street, appellant drove the Oldsmobile up close to the Honda, honked the horn, and motioned to Williams as if he were signaling ALet=s go.@ At this point, Williams told Gonzalez to pull into an upcoming shopping center. Williams told Gonzalez to not say anything and to look towards the driver=s window. Williams took the keys from the Honda=s ignition, and ran in the direction of the Oldsmobile. During the robbery, Williams had demanded Gonzalez=s ATM password.
After Williams got back into the Oldsmobile, appellant drove the car to another grocery store. Williams and Dunn went into the store to use Gonzalez=s ATM card. They told appellant and Butler they were unable to get any money. Across the street from the grocery store was a Blockbuster Video. Appellant drove to the Blockbuster parking lot to wait for another victim.
When Williams saw Carter returning the videotape, he said twice, AI=m fixing to get this [expletive].@ Williams got out of the Oldsmobile, pulled out his gun, and pushed Carter into his Chevy Cavalier. Appellant drove the Oldsmobile to the parking lot of the Scottish Rite Temple; Williams followed appellant in the Chevy, having forced Carter into the passenger=s seat. After appellant stopped in the parking lot behind the temple, Williams pulled up very close to the Oldsmobile. The cars were so close together that appellant had to squeeze out of the car. As he was getting out of the Oldsmobile, appellant noticed that Carter was looking at him and said, AThe [expletive] is looking at me.@ Appellant started telling Carter to stop looking at him, at which time Williams shot Carter in the head. Appellant looked in the car and saw Carter slumped over. Appellant told Williams, A[Expletive], you done shot the [expletive], let=s go, let=s go.@ Appellant then reached into Carter=s car, grabbed his backpack, and got back into the driver=s seat of the Oldsmobile. As he drove to a nearby gas station where they went through Carter=s belongings, appellant noticed Williams was nervous and told him to Ajust calm down.@ When appellant later got out of the car, Williams gave appellant a few dollars. Appellant=s later comment about the money was, A[Expletive], I don=t think it was even a couple of dollars.@
II. The Extraneous Offense
In his first point of error, appellant contends the trial court erred in allowing testimony concerning an extraneous offense in violation of rule 404(a) of the Texas Rules of Evidence. The trial court permitted Gonzalez to testify about the aggravated robbery committed by appellant and his co-defendants earlier on the same evening Carter was murdered. Officer Todd Miller, a Houston Police Department (AHPD@) investigator, also testified about his connecting appellant to the robbery of Gonzalez.[1] The trial court also allowed the jury to hear an audiotaped statement of appellant discussing his involvement in the robbery. We find the trial court did not abuse its discretion in admitting evidence regarding this extraneous offense.
Upon timely objection to evidence of other crimes, wrongs, or acts[2] the proponent of the evidence must persuade the trial court that the extraneous evidence tends to establish motive, opportunity, intent, identity, or one of the other factors set out in rule 404(b). Montgomery, 810 S.W.2d at 387. If the trial court determines the offered evidence has relevance apart from or beyond character conformity, it may admit the evidence, and instruct the jury the evidence is limited to the specific purpose the proponent advocated.[3] Id. Admission of an extraneous offense is generally within the discretion of the trial court as long as the trial court=s ruling is within the zone of reasonable disagreement Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1999).
Although admissible under 404(b), the same evidence may be inadmissible under rule 403 if the probative value of such evidence is substantially outweighed by unfair prejudice.[4] McFarland v. State, 845 S.W.2d 824, 837 (Tex. Crim. App. 1992), cert. denied, 508 U.S. 963 (1993). When the trial court is presented with relevant evidence, it presumes the evidence will be more probative than prejudicial. Long v. State, 823 S.W.2d 259, 271 (Tex. Crim. App. 1991), cert. denied, 505 U.S. 1224 (1992). An appellate court reviews the trial court=s ruling on whether to exclude evidence under rule 403 by an abuse-of-discretion standard. Montgomery, 810 S.W.2d at 391. However, an appellate court must do more than decide if or whether Athe trial judge did in fact conduct the required balancing and did not rule arbitrarily or capriciously. The appellate court must measure the trial court=s ruling against the relevant criteria by which a Rule 403 decision is to be made.@ Id. at 391B92. Thus, to determine if the trial court operated within the boundaries of its discretion in deciding whether the prejudice of an extraneous offense outweighs its probative value, the appellate court must look to the Montgomery-Mozon factors. Rankin v. State, 974 S.W.2d 707, 718 (Tex. Crim. App. 1998). If, after taking into consideration those factors, the record reveals it reasonably probable that substantial unfair prejudice outweighed the probativeness of the evidence, then the appellate court should conclude the trial court acted irrationally in admitting the evidence and abused its discretion. Montgomery, 810 S.W.2d at 393.
In this case, the State had the burden to prove appellant conspired to commit a felony, and during the commission of the felony, appellant should have anticipated a death could result. Appellant acknowledges that the Atruly relevant fact was whether or not [appellant] could have known, understood, or anticipated that Williams would commit a killing in the course@ of the robbery. Appellant contends, however, that the extraneous-offense evidence was not relevant to a fact of consequence in the case and Adoes little to help illustrate whether or not [appellant] could have known anything useful.@ We disagree.
ARelevant@ evidence is evidence that has Aany tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it could be without the evidence.@ Tex. R. Evid. 401. The State argues the extraneous-offense evidence showed that (1) appellant knew what was going to happen when the defendants pulled into the Blockbuster parking lot; (2) appellant was aware Williams had a gun; and (3) appellant knew what was going to be done with the gun. Appellant=s participation in a robbery with his co-defendants just prior to the robbery of Carter was evidence that appellant conspired with his co-defendants to commit robberies. The extraneous-offense evidence tended to make the facts that appellant knew what was going to happen when Carter was abducted and that he should have anticipated the likelihood of Carter=s murder more probable than they would have been without the evidence. Because the extraneous-offense evidence was relevant to prove essential elements of the charged offense, we cannot say the trial court=s decision to admit such evidence falls outside the zone of reasonable disagreement.
Having determined the trial court did not abuse its discretion in determining that the extraneous-offense evidence has some relevance apart from showing appellant=s bad character, we now examine whether the trial court conducted a proper rule 403 analysis. To do so, we apply the Montgomery-Mozon factors to the evidence. Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App. 2003). The first factor asks how compellingly the evidence serves to make a fact of consequence more or less probable. Id. (quoting Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999)). Under the 404(b) analysis, we found the evidence did make facts of consequence more probable. The evidence that appellant knew Carter was going to be robbed when Williams got out of the Oldsmobile and was aware Williams had a gun, along with Gonzalez=s testimony that his assailants did not want to be seen, was very compelling evidence because it was strong evidence of a conspiracy and proof that appellant should have anticipated that a murder could result.
The second factor is the potential the extraneous-offense evidence has to impress the jury Ain some irrational but nevertheless indelible way.@ Id. Appellant argues that the State presented this evidence at the end of its case, and in doing so, it would have been the last thing the jury heard from the prosecution. However, the State presented this evidence at the appropriate time in its case. In Montgomery, the Court of Criminal Appeals found error when the court admitted extraneous-offense evidence early in the presentation of the State=s case because the State had not yet presented the particular events for which appellant stood trial or other evidence relevant to proving its case. 810 S.W.2d at 395. Having very little of the evidence before it, the trial court was not in a position to reliably weigh the probative value of the evidence against the State=s need for admitting it. Id.
The Court of Criminal Appeals has stated that the concern here is only with the danger of Aunfair prejudice.@ Manning, 114 S.W.3d at 927. A>[T]he term >unfair prejudice,= as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged.=@ Id. at 928 (quoting Old Chief v. United States, 519 U.S. 172, 180 (1997)). In this case, the evidence was obviously prejudicial to appellant, but it was not unfairly prejudicial because it related directly to elements of the offense for which appellant was charged. Nor did it have a great potential to impress the jury in an irrational way. The robbery of Gonzalez did not result in physical injury or death, such that the jury would be incited to convict appellant of capital murder. Thus, the risk that the jury would convict appellant of capital murder solely because it believed he had committed a robbery did not substantially outweigh the probative value of the evidence when the evidence specifically pertained to the charged offense.
The third factor is Athe time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense.@ Id. at 926 (quoting Mozon, 991 S.W.2d at 847). The extraneous-offense testimony consumes about thirty-four pages of the trial record. The remaining portion of the State=s case-in-chief consumes about 165 pages. We do not find the proportion of time spent detailing and proving up the extraneous-offense to be significant.
The fourth, and final factor, is Athe force of the proponent=s need for this evidence to prove a fact of consequence, i.e., does the proponent have other probative evidence available to him to help establish this fact, and is this fact related to an issue in dispute.@ Id. Without evidence of a conspiracy and evidence that appellant should have anticipated a murder could occur as a result of carrying out the conspiracy, the State would have failed to meet its burden. Hence, the State=s need for this evidence was crucial. There is no evidence in the record nor argument in appellant=s brief that the State had other evidence to establish these facts. AIf the issue is disputed and the proponent has no other evidence to prove the fact, then the proponent=s need for the evidence is great, and that weighs in favor of admitting the evidence.@ Id. at 928.
All four of the Montgomery-Mozon factors weigh in favor of admissibility. Thus, the trial court did not abuse its discretion in admitting the extraneous-offense evidence concerning the Gonzalez robbery. We overrule appellant=s first point of error.
III. Factual Sufficiency
In his fourth point of error, appellant contends the evidence is factually insufficient to support the jury=s conviction for capital murder. Specifically, appellant claims the State failed to prove that he intended to cause the death of Carter or knew that Williams was going to kill Carter. He maintains that, at best, the evidence shows he was guilty of aggravated robbery or aggravated kidnaping. We affirm the jury=s verdict.
We conduct a factual-sufficiency review by asking whether a neutral review of all the evidence demonstrates 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). We may set aside the jury=s 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). Although we review the fact-finder=s weighing of the evidence, and we are authorized to disagree with the fact-finder=s determination, our evaluation should not substantially intrude upon the fact-finder=s role as the sole judge of the weight and credibility given to witness testimony. Johnson, 23 S.W.3d at 7. In particular, we must defer to the jury=s determination concerning what weight to give contradictory testimonial evidence, because resolution often turns on an evaluation of credibility and demeanor, an evaluation better suited for jurors who were in attendance when the testimony was delivered. Id. at 8. A proper factual sufficiency review Amust include a discussion of the most important and relevant evidence that supports the appellant=s complaint on appeal.@ Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
The State charged appellant with capital murder, alleging in the indictment that appellant did during the course of robbing Carter Aintentionally cause the death of [Carter] by shooting [him] with a deadly weapon, namely, a firearm.@ The jury could convict appellant of capital murder if he carried out the killing himself or engaged in conduct that made him criminally responsible for another=s commission of the offense. Tex. Pen. Code Ann. ' 7.01(a) (Vernon 2003). Appellant could be held criminally responsible for an offense committed by another under the law of parties, which provides:
If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.
Tex. Pen. Code Ann. ' 7.02(b) (Vernon 2003). Appellant was a part of a conspiracy if, with the intent that a felony be committed, he agreed with one or more persons that they or one or more of them would engage in conduct that would constitute the offense and he or one or more of them performed an overt act in pursuance of the agreement. Tex. Pen. Code Ann. ' 15.02(a) (Vernon 2003). Importantly, an agreement constituting a conspiracy may be inferred from acts of the parties. Id. ' 15.02(b). Thus, the State had the burden to show that appellant participated in a conspiracy to commit a felony, that during the felony Williams intentionally killed Carter in the furtherance of the felony, and that Carter=s murder should have been anticipated.
In support of his argument, appellant contends he was not driving the vehicle in which Carter rode, did not possess or fire the weapon that killed Carter, did not obtain the weapon for Williams, did not know anyone would be harmed during the robbery, and was stunned when Williams pulled the trigger. Appellant argues the State presented no testimony from any co-conspirator, no forensic evidence linking appellant to the offense, no identification by Gonzalez that appellant was one of the persons who robbed him before the abduction of Carter, and no eyewitnesses to the shooting of Carter. However, the State introduced taped confessions of appellant concerning the robberies of Gonzalez and Carter. Appellant admitted to participating in the Gonzalez robbery. In fact, appellant=s confession definitively linked him to the crime because, although Gonzalez was able to identify Williams as one of the individuals who robbed him, he was unable to identify the driver and passengers of the Oldsmobile involved in the robbery.
During his confession concerning the Carter murder, appellant admitted he was picked up by Williams, Butler, and Dunn, after being told they were Afixing to flip.@ Appellant denied knowing that meant they were about to rob anyone. At the time appellant confessed his involvement in the murder, he was not aware HPD knew about the Gonzalez robbery and appellant had not discussed that robbery with the police. His confession essentially begins with being picked up by the group and driving into the Blockbuster parking lot. He denied knowing that when they pulled into the parking lot someone was going to be robbed. Appellant contended he was surprised when Williams jumped out of the Oldsmobile to rob Carter, and did not know Williams had a gun. Appellant claimed that when he was driving the Oldsmobile he was told where to drive by Butler and Dunn. Appellant=s confession supplied the subsequent details of what happened when he got out of the Oldsmobile at the Scottish Rite Temple. Appellant discussed Carter looking at him, Williams then pulling the trigger, appellant getting Carter=s backpack out of his car, appellant calming down Williams, and the subsequent rummaging through, dividing up, and disposing of Carter=s belongings.
The State also introduced the testimony of Darrell Stein from HPD=s firearms laboratory, who indicated that the gun used during the Carter murder required approximately eight to eight-and-a-half pounds of pressure to activate the trigger. Stein said that, because of the force needed to pull the trigger, the shooting could not have been accidental. Moreover, the State introduced forensic evidence that showed the gun was only one to three inches away from Carter=s head when it was fired by Williams.
Although appellant denied knowing that Carter was going to be robbed, that Williams had a gun, and what Williams was going to do with the gun, the jury heard evidence that indicated appellant agreed to participate in robberies that evening, knew Carter was going to be robbed, should have anticipated a murder during the robbery was possible, and shared in the proceeds of the robbery. There was also evidence that indicated the defendants did not want their faces seen by the victims during the robberies and that the murder was committed intentionally. Furthermore, the weight to be given conflicting testimony lies within the sole province of the jury, and the reviewing court must show deference to the jury=s determination. See Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997). Accordingly, we conclude the jury=s verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. We overrule appellant=s fourth point of error.
IV. Comment on the Weight of the Evidence
In his second point of error, appellant argues the trial court improperly commented upon the weight of the evidence by instructing the jury what it could consider in deciding whether appellant was guilty as a party to the offense. During deliberations, the jury sent the trial court a note, asking A[o]n page 4 of the charge, paragraph two, regarding criminal responsibility, does the promotion or aiding in the commission of the offense have to precede or coincide with the time of the offense or can it follow the offense.@ The trial court responded that Ain determining whether a defendant participated in an offense as a party, the jury may examine the events before, during, and after commission of the offense and may rely on any actions by the defendant that show an understanding and common design to commit the offense.@ We find appellant did not preserve this argument for appeal.
As a prerequisite to presenting a complaint on appeal, appellant must make a timely and specific objection to the trial court. See Tex. R. App. P. 33.1(a)(1). An objection at trial not comporting with the complaint on appeal does not preserve error for appellate review. See Dixon v. State, 2 S.W.3d 263, 273 (Tex. Crim. App. 1998) (citing Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995)). Instead, an objection must draw the court=s attention to the particular complaint raised on appeal. See Tex. R. App. P. 33.1(a)(1)(A); Little v. State, 758 S.W.2d 551, 564 (Tex. Crim. App. 1988).
At trial, appellant objected to the submission of the supplemental jury instruction because (1) the note was ambiguous as to what paragraph of the written charge the jury was referring[5] and (2) the trial court=s response did not track any statutory language. On appeal, appellant argues the instruction improperly commented on the weight of the evidence in violation of article 36.14 of the Texas Code of Criminal Procedure. Accordingly, appellant=s issue on appeal does not comport with his objection at trial and is waived. We overrule appellant=s second point of error.
V. Denial of Instruction on Independent Impulse
In his third point of error, appellant complains the trial court erred in denying his request for a jury charge on independent impulse. Appellant acknowledges that the Court of Criminal Appeals determined in Solomon v. State, 49 S.W.3d 356, 367B68 (Tex. Crim. App. 2001), that a criminal defendant is not entitled to an instruction on the defensive theory of independent impulse. Nonetheless, appellant asks this court to reconsider the Court of Criminal Appeals= holding in Solomon because (1) the Solomon decision does not truthfully follow Geisberg v. State, 984 S.W.2d 245 (Tex. Crim. App. 1998); (2) Solomon ignores the constitutional implications of denying a jury charge; (3) Solomon ignores Texas constitutional problems; and (4) Solomon defies sense, good public policy, and 125 years of common-law experience. We decline to reconsider the Solomon opinion. See Rodriguez v. State, 47 S.W.3d 86, 94B95 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d) (stating that as an intermediate appellate court, we are bound to follow the law as declared by the state=s highest courts and noting that, because the Court of Criminal Appeals is the highest court on matters of criminal law, when it has deliberately and unequivocally interpreted the law in a criminal matter, we must adhere to its interpretation). Accordingly, we overrule appellant=s third point of error.
Having overruled all of appellant=s points of error, we affirm the trial court=s judgment.
/s/ Leslie Brock Yates
Justice
Judgment rendered and Memorandum Opinion filed March 11, 2004.
Panel consists of Justices Yates, Fowler, and Frost.
Publish C Tex. R. App. P. 47.2(b).
[1] Appellant admitted to Officer Miller that he was the driver of the car during the Gonzalez robbery.
[2] At trial, appellant objected to the admission of the extraneous-offense evidence on the basis that it was irrelevant and because the evidence=s prejudicial value greatly outweighed any probative value. AOptimally the opponent should object that such evidence is inadmissible under Rule 404(b). An objection that such evidence is not >relevant= . . . although not as precise as it could be, ought ordinarily to be sufficient under the circumstances to apprise the trial court of the nature of the complaint.@ Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1991) (op. on reh=g).
[3] The trial court provided a limiting instruction to the jury.
[4] An appellate court will only conduct the second part of this analysis if the opponent made a specific objection to the extraneous-offense evidence based on prejudice. Montgomery, 810 S.W.2d at 389. Here, appellant did.
[5] On appeal, appellant mentions his trial objection concerning the alleged ambiguity, but only during a harm analysis. Appellant does not argue that the instruction actually created confusion nor does he provide any support for his argument. In any event, the jury=s question quotes language directly from the second paragraph of page four of the jury charge. We see no ambiguity as to which paragraph of the charge the jury=s question referred.