Opinion
No. 08-15-00300-CR
08-23-2017
STATEN WILLIAM CORBETT JR., Appellant, v. THE STATE OF TEXAS, Appellee.
Appeal from 372nd District Court of Tarrant County, Texas (TC # 1411307R) OPINION
Even charitably described, this case involves the torture murder of a putative member of the Aryan Brotherhood. The State indicted Staten William Corbett Jr. for murder and felony tampering with evidence (the corpse). The jury found him guilty of murder and he pled guilty to the tampering charge. The trial court assessed sixty years for the murder and a concurrent twenty years on the tampering charge. Finding no error, we affirm.
FACTUAL SUMMARY
This case arises from the death of Earnest Ray Lackey. On August 2, 2012, his badly decomposed body was found in a wooded area of Tarrant County. The bound and gagged body was wrapped in a blanket. Forensic analysis showed at least four incised injuries with a bladed instrument to the neck area. Four ribs were fractured, as was the seventh cervical vertebra, likely from blunt force trauma. The coroner ruled the death a homicide. The stab wounds to the neck area were lethal injuries, but the blunt force trauma to the ribs could also have caused serious bodily injury or death.
This case was transferred from our sister court in Fort Worth pursuant to the Texas Supreme Court's docket equalization efforts. See TEX.GOV'T CODE ANN. § 73.001 (West 2013). We follow the precedents of the Fort Worth Court to the extent they might conflict with our own. See TEX.R.APP.P. 41.3.
The investigation quickly led police to events some three weeks earlier at a property occupied by Ronnie Wayne Freeman. Those events provide an uncomfortable glimpse inside the subculture of methamphetamine users and the Aryan Brotherhood. On the morning of July 12, 2012, the decedent, Earnest, and several other admitted meth users Amber Miller, Jennifer Dalton, and Appellant -- needed to find a place to stay. They contacted Wayne. Earnest and Appellant were partners with Wayne in the drug trade; Wayne sold meth that Earnest and Appellant secured for him.
Earnest, Amber, Jennifer, and Appellant arrived at Wayne's property sometime during the afternoon of July 12. Two other persons were already at the trailer, Cindy Allen and Jimmy Riddle (Jimbo). Everyone was either smoking or injecting meth. The State developed the events of that evening and the next morning from the testimony of Wayne, Amber, Cindy, and Kasie Crosby who arrived sometime later. We set forth summaries of each witness's testimony. The astute reader will quickly discern that their accounts are notably different. The jury below was tasked with deciding whether the differences were from the haze of admitted drug use, foibles of memory, or perhaps some desire to exculpate themselves or implicate others.
Ronnie Wayne Freeman
Wayne, who himself has an extensive criminal history, was also under indictment for Earnest's murder and was awaiting trial. He waived his privilege against self-incrimination and testified without any promise of a plea bargain.
At the time of these events, Wayne was living at a property comprised of two house trailers situated side by side and joined by a porch. He sold meth and marijuana out of the property. The trailer had white supremacist graffiti etched on many of its walls. Another symbol on the wall denoted membership in the Aryan Brotherhood. The Aryan Brotherhood is a white supremacist organization that arose out of the prison system, and is linked to narcotic sales, prostitution, weapons manufacture, and contract killings. Mason v. State, 905 S.W.2d 570, 577 (Tex.Crim.App. 1995); see also Dawson v. Delaware, 503 U.S. 159, 173 n.1, 112 S.Ct. 1093, 117 L.Ed.2d 309 (1992)(Thomas, J., dissenting). Appellant and Jimbo were members of the Aryan Brotherhood. Wayne denied being a member, but rather claimed he was a "friend of the family." He also admitted to being a "prospect" at one time, but he had "dropped his flag" which means he left the gang. A gang expert testified that both Appellant and Jimbo have tattoos identifying them as associating with white supremacist groups, such as the Aryan Brotherhood. Wayne's tattoos were not indicative of gang affiliation.
For instance, the graffiti included the number 88 which corresponds to "h," the eighth letter of the alphabet, and is a shorthand reference for "Heil Hitler."
Sometime after arriving at the residence, Appellant and Earnest borrowed a car from Wayne to obtain more drugs. They returned many hours later accompanied by Kasie Crosby. Upon seeing Kasie, Wayne became upset because he understood that she was to be killed as a snitch. When they first arrived, Wayne head-butted Appellant and had him sit on the couch in the living room. Earnest tried to diffuse Wayne's anger by giving him a soda. But Wayne slashed the plastic bottle with a switchblade and told Earnest to sit as well. Wayne sent Kasie to a back bedroom on one side of the trailer to stay with Cindy. By this time, Wayne had also told Amber and Jennifer to stay in the middle bedroom.
Wayne had something of a penchant for knives, and his trailer walls were filled with penetration marks from thrown knives, hemostats, and even scissors.
Wayne then told Appellant and Earnest that this "ain't happening," referring to killing Kasie. Appellant responded, "Word's come from -- down from the top," and said, "it's supposed to happen." When Wayne insisted that it would not, Appellant and Jimbo tried to call someone on the phone. Wayne, Jimbo, and Appellant then began discussing why Kasie had to die. Wayne turned the conversation to Earnest. He questioned why Earnest always acted "shady," why he would not give out his phone number, or why he took photos of the drug scales. He then asked Earnest to recite the motto for the Aryan Brotherhood which is referred to as the "fourteen words." Earnest began stuttering and could not get the words out.
"We must secure the existence of our people and a future for White children." Lindell v. Casperson, 360 F.Supp.2d 932, 955 (W.D. Wis. 2005), aff'd sub nom. Lindell v. Govier, 169 Fed.Appx. 999 (7th Cir. 2006)(unpublished).
At that point, Appellant dove across the couch and hit Earnest several times in the mouth. Wayne claimed that he tried to pulled Appellant off, but Appellant and Jimbo began a "beat-down" on Earnest, described as a form of "discipline," where the victim is not supposed to fight back. When inflicting discipline, the intent is to cause pain including the breaking of bones. When the beat down began, Wayne told the group in the living room that it was none of his business, and he retreated to the bedroom with Kasie and Cindy. He turned some music up but could feel the fight going on through the subfloor of the trailer. He also heard some occasional screams.
After a time, he left the bedroom and saw that Appellant and Jimbo were still beating on Earnest who was hog-tied, laying on the floor on his stomach. Jimbo then told Wayne to "come get some," at which point Wayne pulled Earnest's pants down and burned him on the buttocks with a hot soldering iron. Wayne then claimed to have smoked some pot and gone to sleep.
Investigating officers recovered the soldering iron from a trash barrel where Wayne had put it. In his initial statements to the investigators, Wayne had claimed that Appellant had used the soldering iron.
By the time Wayne awoke, Earnest was wrapped in a blanket with a foot sticking out. Wayne shot at the wrapped body with a BB gun. He also kicked Earnest hard and got no reaction. Wayne told Appellant and Jimbo "to get rid of that." Wayne backed his car up to the house and put a shower curtain in the trunk. Jimbo and Appellant then loaded the body in the trunk. Appellant claimed he had a place to put the body and left. Wayne instructed Appellant to clean Earnest's fingernails in case he had scratched anyone, and to bring the blanket back to burn.
Amber Miller
Amber was Earnest's girlfriend. She also knew Appellant as a member of the Aryan Brotherhood. Amber recalled the group went to Wayne's sometime in the early afternoon and all smoked meth. Later that afternoon, Earnest and Appellant left to pick-up Kasie. Amber got sleepy and Jimbo took her to the middle bedroom "because they were going to have company." Cindy took her cell phone. Someone turned the music up. She believed someone drugged her with something other than meth.
She also recalled that she, Earnest, and Appellant then left to "hit a lick" at Walmart, which means to steal merchandise, return it for a gift card, and then sell the gift card for cash.
She awoke to hear Earnest scream, "I'm a bro, I'm a bro, I'm a bro." From the bedroom, she heard a swishing sound, like something swinging through the air, and people running in the hallway. She also recalled the sound of fighting, as if someone were being thrown around. Wayne was screaming, and another person was squealing like they were being raped. Finally, she heard Appellant state, "You know you like it; take it like a man," followed by Wayne yelling some more.
In her initial statement to the police, she recalled a different statement--"I'm not a bro."
She passed out and Jimbo woke her in the morning saying they had to leave. As she walked out, Amber saw a modest amount of blood by a reclining chair in the living room. Wayne had blood on his hand and his clothes. Appellant had some splattered blood on his hat and clothes. Amber and Appellant stayed together for the next several days. During that time, she asked him whether Earnest was dead and he said no, Earnest was in a safe place where nobody could hurt him but he could not take her there because it was not safe. Appellant told her to tell anyone who asked that he took Earnest to the bus station and that Earnest went to North Carolina.
In another bizarre twist, Amber was staying at her own trailer in another part of rural Tarrant County on the day Earnest's body was discovered. A woman identified as Winter Lee, who also was affiliated with the Aryan Brotherhood, and Jimbo were at the trailer. Winter confronted Jimbo, stating, "How do you like knowing you killed one of your own, Ho? He was a made bro." She told him that he had 48 hours to bring Earnest's remains to surface or he would be "laying in a gutter next to him." Jimbo immediately got in touch with Appellant, and then left with Winter. An hour later Winter called 911 and reported the body's location, which was within walking distance of Amber's trailer.
Kasie Crosby
Kasie had been dating Appellant about two months before the murder. Appellant and Earnest picked her up on July 12, and they went to buy meth. When they first arrived at Wayne's trailer, Wayne grabbed Appellant by the throat and said, "You brought a snitch to my house." She was taken to the back bedroom and told not to say a word by Jimbo. When she asked what was going on, Jimbo took her outside and told her Appellant intended to kill her based on rumors she was a snitch. They were waiting for a call to confirm the rumor Jimbo then took her into the back bedroom with Cindy. By that time, Wayne was in the hallway watching both the back bedroom and living room, waiving a large deer hunting knife around and "just acting schizzed out."
Kasie, Cindy, and Jimbo smoked a bowl of meth and Jimbo was looking through Earnest's phone. They all then went from the back bedroom down the hall, through the living room, and into Wayne's bedroom at the other end of the trailer. While going through the living room Kasie saw Appellant sitting on the sofa stripping wire with a box knife. Earnest was stuttering something while also seated on the couch. Jimbo went back out into the living room while she, Wayne, and Cindy stayed in the bedroom. Cindy looked through a crack in the door and got excited. Kasie then looked through the crack and saw that Appellant had Earnest by the throat on the couch saying something like, "How do you like that." Appellant then said, "What the f--k do we stand for," and something about the fourteen words. Appellant and Jimbo were saying something that sounded like a rhyme, but Earnest was still just stuttering.
Jimbo then came back into the master bedroom and asked for a blowtorch. Sometime later, Wayne turned up the volume on the music and she could hear nothing else. Wayne stayed with them in the room and never went back to the living room. Appellant then came into the bedroom and took everyone's phones except for Cindy's and Wayne's. Kasie asked to get something to drink and as she walked through the living room, she saw Earnest's body wrapped in what looked like a sleeping bag. Jimbo told her not to look at him. She went back to the master bedroom and asked to take a shower. Linda offered to help with the shower, and quietly told her to take her phone and "find us a ride." Appellant instructed no one to leave until he returned. By then, the body was gone. Kasie, Cindy, and another woman who showed up that morning then left on foot and flagged down a passing car.
A few days later, she agreed to meet Appellant at a place she felt safe. She asked him why Earnest was killed, to which he replied, "Baby Doll, when someone claims to be something that they're not, people like us that have done prison their whole life and dedicated to their brotherhood, we react on it." Several months later, she received letters from Appellant written while he was in jail. The letters asked her to claim that on July 12, both she and Appellant were in Oklahoma.
Cindy Allen
Cindy met Wayne that very day. She, Wayne, and a woman identified as "Boxer" were at the trailer. When the others arrived, they all got high on meth. Appellant then left with Earnest to get Kasie. By the time they finally returned, Wayne was acting like a "psychopath" and was upset at how long they had been away with the car. Cindy, Boxer, and Jennifer were hiding with Jimbo in the other trailer. Cindy had already been disciplined by Appellant earlier that day and Boxer believed that Appellant was going to discipline her for spreading rumors that Kasie was a snitch. By this time, Wayne was on the porch, throwing a knife into the side of the trailer.
As Appellant, Earnest, and Kasie arrived, "Wayne went crazy." He threw a punch at Appellant and was trying to fight Earnest. By the time he settled down, Jimbo was in the back bedroom with Kasie. Wayne was in the living room, along with Earnest and Appellant who were seated on the couch. Cindy went to the back bedroom where Jimbo said they were trying to "figure out what is going on" with Kasie, Earnest, and Appellant. Cindy was asked to watch Kasie, and they went from the back bedroom, through the trailer, to Wayne's bedroom on the other side. As they walked through the living room, Appellant and Earnest were still on the couch. Once in Wayne's bedroom, he told the girls to sit until they figured out what was going on.
Sometime later, Jimbo asked Cindy to come out to the living room. The atmosphere seemed tense, and she was told to ask Earnest whether he was in the Aryan Brotherhood. She asked if he knew the fourteen words. Earnest could not get even the first word out of his mouth. Wayne then threw a lighter at Earnest, but it hit Appellant, then all "hell breaks loose." Wayne charged Appellant, Appellant charged Earnest, and when Jimbo jumped in, all three start attacking Earnest. Both Appellant and Jimbo struck Earnest in the face and Earnest was screaming for help. Appellant put Earnest on the floor. Cindy saw Appellant, Wayne, and Jimbo all kicking Earnest. She then went back to Wayne's bedroom with Kasie. Wayne followed her in, told them to stay there, and went back into the living room closing the door behind him. They continued to hear fighting, including Appellant and Wayne stating, "You know you like it."
Wayne came back into the bedroom and bound Cindy's and Kasie's hands with zip-ties. He then retrieved a soldering iron that has been plugged in. Cindy heard Earnest emit "a very agonizing, murdering scream." Wayne came back into the bedroom and asked the girls if they liked the smell of hot flesh.
Cindy could see into the living room and saw Earnest laying on his stomach. He was hogtied with his arms and feet behind him and a gag in his mouth. Appellant had him in a chokehold and Earnest's face was purple. Appellant stated, "You know you like it." "You know you like it, punk." Based on where she saw Earnest bleeding, Cindy believed he had been sodomized with the soldering iron. Several hours passed from the time when the fighting began until it got quiet again. She never saw Appellant stab or cut Earnest, but she did testify he had a knife in his pocket and he had been stripping wire earlier.
Wayne then came back in the bedroom, closed and locked the door, and stayed with the girls the rest of the night. He claimed that "rank" had showed up. The next morning, she saw the body wrapped in a blanket. Wayne asked Cindy and Kasie to clean the living room which had blood "everywhere." Both Jimbo and Appellant had blood all over their clothing. Wayne had earlier cleaned the blood from himself. Appellant asked her to collect the phones from Jennifer and Amber. Appellant and Jimbo loaded the body into the trunk and Appellant left with it. On his return, Cindy was asked to clean the trunk. Appellant told her later that morning that if she did not want to end up like Earnest, she should keep her mouth shut.
Kathryn Easterling
Important to one issue in this appeal, the State called Appellant's former girlfriend, Kathryn Easterling. She was not present the night of the murder, but sometime later Appellant told her two tales of how Earnest died. First, he told her that Earnest got hog-tied, something happened to his nose, two other guys beat him to death, and a soldering iron was used "on his private part." In a later conversation, Appellant claimed that eleven of them took Earnest out into the woods and "just beat him to death."
Defense counsel recalled Kathryn to the stand during his case in chief and in an apparent effort to impeach her, asked:
Q. Okay. Did y'all split over the drug use?In cross-examination by the State, she testified that the real reason she ended the relationship was that Appellant had verbally abused and physically assaulted her. The physical assault referred to a specific incident when Appellant head-butted her, grabbed her by the neck, threw her on the bed, and began choking her. The State then introduced nine photographs taken after the incident showing the bruise marks. Appellant objected to the testimonial evidence under TEX.R.EVID. 404 and to the photographs under Rule 403. The trial court overruled these objections, but gave a limiting instruction as to this evidence. Appellant then developed on redirect that Easterling had filed a sworn affidavit with the police stating that this incident never happened, and similarly denied the incident to a parole board. She contended that she recanted only because Appellant threatened her.
A. No. Just arguing.
Q. Just argue --
A. Just couldn't get along.
The State had also sought to admit Appellant's subsequent conviction for violating a protective order in favor of Easterling. The trial court sustained Appellant's objection to that evidence.
The Indictment and Jury Charge
The indictment charged Appellant with murder in alternate paragraphs. The jury could have found him guilty: (1) for intentionally and knowingly causing the death of Earnest by (a) an unknown manner or means, or (b) by cutting, stabbing, or slicing him with a sharp object, or (2) with the intent to cause serious bodily injury, he committed an act clearly dangerous to human life by (a) a manner or means unknown, or (b) by cutting, stabbing, slicing Earnest with a sharp object. The second count charged Appellant with altering, destroying, or concealing a human corpse with the knowledge that a murder had been committed.
Following six days of testimony from twenty witnesses, the court submitted a jury charge that followed the indictment, but which added the law of parties. In addition to committing the murder himself, Appellant could be convicted if he: (1) solicited, encouraged, directed, aided, or attempted to aid Wayne or Jimbo under any of the alternate murder paragraphs, or (2) Appellant conspired with Wayne or Jimbo to commit an aggravated assault, and in doing so, Wayne or Jimbo committed the murder in furtherance of the conspiracy, which Appellant should have anticipated. The jury found Appellant guilty.
Appellant pled guilty to Count II (destroying evidence) and the jury was instructed to find him guilty on that count.
ISSUES ON APPEAL
Appellant brings six issues for review. Issues One and Two challenge the admission of the domestic abuse evidence elicited from Katheryn Easterling. Issues Three and Four challenge the admission of Appellant's statement, testified to by Kasie Crosby, that he had been in prison his whole life. Issue Five challenges the legal sufficiency of the evidence that Appellant committed the murder by his own hand, or as a party. Finally, Issue Six contends the trial court erred in permitting a "party" charge when the indictment never included that theory. We turn to Issues Five and Six first.
LAW OF PARTIES
Appellant's sixth issue claims that the trial court erred by including a parties charge when the indictment did not allege party responsibility. That contention has been rejected by the Texas Court of Criminal Appeals and by the Second Court of Appeals. Marable v. State, 85 S.W.3d 287, 287 & n.2 (Tex.Crim.App. 2002)(collecting cases); see Adames v. State, 353 S.W.3d 854, 861 (Tex.Crim.App. 2011), cert. denied, 565 U.S. 1262, 132 S.Ct. 1763, 182 L.Ed.2d 533 (2012)(neither state or federal due process guarantees require defendant's culpability as a party to be plead in the charging instrument); Murkledove v. State, 437 S.W.3d 17, 23-24 (Tex.App.--Fort Worth 2014, pet. ref'd untimely filed)("It is well-settled that a jury may be charged on the law of parties even though no such allegation is contained in the indictment."). This rule applies to each of the two theories submitted in this charge. Montoya v. State, 810 S.W.2d 160, 165 (Tex.Crim.App. 1989), cert. denied, 502 U.S. 961, 112 S.Ct. 426, 116 L.Ed.2d 446 (1991). Because the trial court did not err by including an instruction on the law of parties, we overrule Issue Six.
SUFFICIENCY OF THE EVIDENCE
In his fifth issue, Appellant challenges the sufficiency of the evidence to support the conviction because the State failed to prove (1) that Appellant stabbed or otherwise killed Earnest; (2) that he shared the intent with another to commit the murder; and (3) that he intended to commit an aggravated assault and should have anticipated that another would escalate the conduct to murder. To obtain a reversal, Appellant must overcome each of the alternate theories of murder set out in the charge. Hooper v. State, 214 S.W.3d 9, 14 (Tex.Crim.App. 2007) ("When the trial court's charge authorizes the jury to convict on more than one theory, as it did in this case, the verdict of guilt will be upheld if the evidence is sufficient on any of the theories."); Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App. 2004)(same).
Standard of Review
Our legal sufficiency standard is articulated in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See Brooks v. State, 323 S.W.3d 893, 894-95 (Tex.Crim.App. 2010)(finding no meaningful distinction between the legal and factual sufficiency standards and applying Jackson v. Virginia as the only standard in Texas). The relevant inquiry is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." [Emphasis in original]. Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2789.
Under the Jackson standard, the jury is the sole judge as to the weight and credibility of the evidence. Brooks, 323 S.W.3d at 894-95. If the record contains conflicting inferences, we must presume the jury resolved such facts in favor of the verdict and defer to that resolution. Id. Circumstantial evidence is as probative as direct evidence in establishing guilt, and circumstantial evidence alone may be sufficient to establish guilt. Carrizales v. State, 414 S.W.3d 737, 742 n.20 (Tex.Crim.App. 2013), citing Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007). Not every fact needs to point towards guilt; it is enough that the combined and cumulative force of the evidence supports the verdict. Johnson v. State, 871 S.W.2d 183, 186 (Tex.Crim.App. 1993). On appeal, we serve only to assure that the jury reached a rational verdict; we may not reevaluate the weight and credibility of the evidence; nor may we substitute our judgment for that of the fact finder. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000).
Applicable Law
By statute, a person commits first-degree murder by: (1) "intentionally or knowingly" causing the death; or (2) by intending to cause "serious bodily injury" through an act "clearly dangerous to human life that causes the death of an individual." TEX.PENAL CODE ANN. § 19.02(b)(1), (2)(West 2011). Murder under Section 19.01(b)(1) or (b)(2) is a "result of conduct" offense, which requires that the culpable mental state relate to the result of the conduct -- that is, causing of the death. See Cavazos v. State, 382 S.W.3d 377, 384 (Tex.Crim.App. 2012)(so stating for Section 19.02(b)(2)); Roberts v. State, 273 S.W.3d 322, 328-29 (Tex.Crim.App. 2008)(so stating for Section 19.02(b)(1)); see also Lugo-Lugo v. State, 650 S.W.2d 72, 80-82 (Tex.Crim.App. 1983). A person acts "intentionally" with respect to a result of his conduct when it is his conscious objective or desire to cause the result. See TEX.PENAL CODE ANN. § 6.03(a)(West 2011). A person acts "knowingly" with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result. Id. § 6.03(b).
The State is not required to produce direct evidence of the requisite culpable mental state. Hart v. State, 89 S.W.3d 61, 64 (Tex.Crim.App. 2002). In fact, the requisite culpable mental state is almost always proved circumstantially. See Hernandez v. State, 819 S.W.2d 806, 810 (Tex.Crim.App. 1991)("[M]ental culpability is of such a nature that it generally must be inferred from the circumstances under which a prohibited act or omission occurs."). Accordingly, intent may be inferred from the acts, words, and conduct of the accused. See Guevara v. State, 152 S.W.3d 45, 50 (Tex.Crim.App. 2004); Manrique v. State, 994 S.W.2d 640, 649 (Tex.Crim.App. 1999). Intent may also be inferred from the extent of the injuries to the victim, the method used to produce the injuries, and the relative size and strength of the parties. Patrick v. State, 906 S.W.2d 481, 487 (Tex.Crim.App. 1995); Duren v. State, 87 S.W.3d 719, 724 (Tex.App.--Texarkana 2002, pet. struck). The jury may consider events occurring before, during, or after the offense. Henderson v. State, 825 S.W.2d 746, 749 (Tex.App.--Houston [14th Dist.] 1992, pet. ref'd).
The jury was charged under the law of parties. Relevant here, a defendant is criminally responsible for an offense committed by the conduct of another if "acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense." TEX.PENAL CODE ANN. § 7.02(a)(2). Alternatively, Appellant is guilty of murder if in carrying out a conspiracy to commit one felony, another conspirator commits the murder which Appellant "should have anticipated as a result of the carrying out of the conspiracy." Id. at 7.02(b).
Analysis
Appellant first claims that there is no evidence that he cut, stabbed, or sliced Earnest, or otherwise killed him. The argument is premised on the lack of an eyewitness to the death knell event. Each of the witnesses testified to segments of the torture murder, but no one witnessed the moment when Earnest expired. But a reasonable jury could have fairly concluded that Appellant was himself the murderer.
Of all the potential actors, Appellant had the means, motive, and greatest opportunity of anyone to be the actual killer. The coroner testified that the four incised wounds in the neck area were lethal type injuries. Appellant had a cutting instrument on his person (a pocketknife, or cutter to strip wire). When others saw Appellant handling Earnest, Appellant was holding him in the neck area. Appellant also had motive. He had intended to kill his own girlfriend, Kasie, because of rumors that she was a snitch. When Wayne argued against killing Kasie, Appellant turned the suspicion onto Earnest for concealing his phone number and photographing drug scales. Those accusations painted Earnest as a potential snitch and subjected him to the same fate as Kasie. Additionally, when Earnest bobbled the fourteen words, he could have been seen as falsely claiming membership in the Aryan Brotherhood. The State presented testimony that falsely claiming membership in the Brotherhood has resulted in past murders. Motive is not an element of murder, but it is a circumstance indicative of guilt. Temple v. State, 390 S.W.3d 341, 360 (Tex.Crim.App. 2013); Guevara, 152 S.W.3d at 50 ("Motive is a significant circumstance indicating guilt.").
Of all the participants, Appellant was the only one who was always physically with Earnest. Wayne left the room on several occasions, as did Jimbo. Appellant was with Earnest the entire time at the trailer house, and even until he dumped the body in the woods. The jury might also have believed that the cutting occurred away from the premises after Appellant drove Earnest away. The investigators found very little blood at the trailer, and one witness testified there was only a single spot of blood in the living room. In short, the stabs or cuts to the neck might have occurred after Earnest was removed, and Appellant was the person who disposed of the body.
Alternatively, Earnest may have died from the blows to the ribs, or from being choked to death. The coroner described the four broken ribs as indicative of a serious bodily injury capable of leading to death. There was direct testimony that Appellant participated in kicking Earnest while he was on the ground. Cindy directly testified that Appellant had Earnest in a chokehold to the point he could not breathe and his face turned purple, all while being hogtied and gagged.
Appellant also made a statement tantamount to a confession when he told Kasie, "Baby Doll, when someone claims to be something that they're not, people like us that have done prison their whole life and dedicated to their brotherhood, we react on it." This statement suggests both his direct involvement and motive.
Appellant's conduct after the event also raises a strong inference of guilt. Concealing the victim's body is evidence of guilt. Ex parte Weinstein, 421 S.W.3d 656, 668 (Tex.Crim.App. 2014)("Applicant's attempts to conceal Jerry's body and his implausible explanations to police are strong evidence of applicant's consciousness of guilt."). The same holds true for disposing of evidence. See Castillo v. State, 71 S.W.3d 812, 818 (Tex.App.--Amarillo 2002, pet. ref'd) (holding that evidence defendant threw weapon in a lake was evidence from which rational jury could reasonably infer intent to kill); Miller v. State, 177 S.W.3d 177, 194 (Tex.App.--Houston [1st Dist.] 2005, pet. ref'd)(evidence that defendant directed a friend to bury murder weapon was attempt to hide evidence and was circumstantial evidence of defendant's guilt). In addition to disposing of the body, Appellant was directed to clean the fingernails of potential DNA evidence, and to return the body's wrapping so it could be burned. Appellant also told Amber she should tell people Earnest had gone to North Carolina, which would further ensure his body was not found.
Appellant attempted to cover his involvement by having Kasie falsely claim the two were in Oklahoma on the day of the murder. Attempts to create a false alibi are evidence of guilt. See Longoria v. State, 154 S.W.3d 747, 757 (Tex.App.--Houston [14th Dist.] 2004, pet. ref'd); Huffman v. State, 775 S.W.2d 653, 661 (Tex.App.--El Paso 1989, pet. ref'd). Appellant directly threatened Cindy, telling her to keep her mouth shut if she did not want to end up like Earnest. Threatening potential witnesses is probative of guilt. Peoples v. State, 874 S.W.2d 804, 809 (Tex.App.--Fort Worth 1994, pet ref'd)("Threats or other attempts at coercion are hardly the actions of an innocent accused, and evidence of such is every bit as probative of guilt as would be flight by the accused.")[internal quotes omitted].
Appellant argued below that Wayne was the true culprit and that Appellant was as much a victim as anyone (arguing he was assaulted and threatened with a knife upon entering the residence). Yet when Appellant left Wayne's house trailer, he worked to develop his own alibi, and not to bring the responsible party to justice. A victim would run to the police, and not scurry to cover his tracks. See Clayton v. State, 235 S.W.3d 772, 781 (Tex.Crim.App. 2007)("As with the circumstance of flight, under the specific facts of this case, a juror could reasonably draw an inference of consciousness of guilt based on Clayton's failure to turn himself into authorities.").
We also find sufficient evidence to support a conviction under the parties' charge, by Appellant either aiding in the murder, or being a conspirator to a felonious assault. Evidence is sufficient to convict the defendant under the law of parties when he is physically present at the commission of the offense, and encourages the commission of the offense by either words or other agreement. Cordova v. State, 698 S.W.2d 107, 111 (Tex.Crim.App. 1985); Tarpley v. State, 565 S.W.2d 525 (Tex.Crim.App. 1978). To convict someone as a party to an offense, the evidence must show that at the time of the offense, the parties were acting together, each doing some part to further the common purpose. Cordova, 698 S.W.2d at 111; Brooks v. State, 580 S.W.2d 825 (Tex.Crim.App. 1979). A court may look to actions of the defendant to show an understanding and common design to do the illegal act, and may consider events occurring before, during, and after the commission of the offense. Medellin v. State, 617 S.W.2d 229 (Tex.Crim.App. 1981); Ex parte Prior, 540 S.W.2d 723 (Tex.Crim.App. 1976). Circumstantial evidence will suffice to meet that burden. Wygal v. State, 555 S.W.2d 465 (Tex.Crim.App. 1977).
Appellant at the very least encouraged and aided Jimbo and Wayne. Appellant assisted in beating Earnest. Cindy described Appellant holding Earnest in a headlock and choking him while others beat Earnest, and while Wayne possibly sodomized him. He assisted after the fact in disposing of evidence, hiding the body, and threatening witnesses. The only serious question that Appellant raises is whether his intent was to murder, or merely perform a "beat down." But even if a beat down, the actions here included inflicting serious bodily injury that was clearly dangerous to human life, and which could have taken Earnest's life. Even if he did not use the sharp instrument to cut Earnest's neck himself, the evidence infers he was present when either Jimbo or Wayne did. Moreover, he took affirmative steps to cover up the crime.
Where two or more people jointly torture a victim over an extended period of time, there is evidence that the torturers acted "in concert" in ultimately killing the victim. Carson v. State, 422 S.W.3d 733, 743 (Tex.App.--Texarkana 2013, pet. ref'd)(parent present for two days while child tortured supported conviction under parties charge). We have previously held that evidence is legally sufficient to uphold a defendant's guilt as a party to the offense when the defendant participated in beating the victim with fellow gang members. Romero v. State, No. 08-10-00074-CR, 2012 WL 3834917, at *4 (Tex.App.--El Paso, Sept. 5, 2012, pet. ref'd)(not designated for publication); Meraz v. State, No. 08-98-00196-CR, 2001 WL 857345, at *5-7 (Tex.App.--El Paso, July 31, 2001, no pet.)(not designated for publication). Other courts of appeals have upheld complicity as a party even if the defendant did not actually inflict the deathblow. Anguiano v. State, No. 05-00-00263-CR, 2001 WL 185517, at *2 (Tex.App.--Dallas, Feb. 27, 2001, no pet.)(not designated for publication); see Jalomo v. State, No. 07-10-00345-CR, 2012 WL 222921, at *6-7 (Tex.App.--Amarillo, Jan. 25, 2012, pet. ref'd)(mem. op., not designated for publication)(evidence was legally sufficient to support defendant's conviction as a party for aggravated assault where he participated with others in a beating of the victim); Johnson v. State, No. 05-04-00971-CR, 2006 WL 401127, at *3 (Tex.App.--Dallas, Feb. 22, 2006, pet. ref'd)(not designated for publication)(finding the evidence legally sufficient to support defendant's murder conviction as a party where his joint assault with his co-defendant on the victim evinced a common design to commit the offense).
For the same reason, there is also sufficient evidence of a conspiracy to commit an aggravated assault that Appellant could have foreseen would escalate to murder. Appellant and Jimbo were gang members, and a jury could have concluded that Wayne was as well. Their joint affiliation in a gang is evidence of acting in concert, particularly when all three jumped on Earnest for not saying the fourteen words. Appellant claims that there is no evidence Earnest's death should have been anticipated. We look to the totality of the circumstances to determine whether a particular offense committed by a co-conspirator was "reasonably foreseeable." Anderson v. State, 416 S.W.3d 884, 889 (Tex.Crim.App. 2013). In this case, Earnest was tortured either with a soldering iron or a blow torch, and at a minimum hog-tied, gagged, and kicked hard enough to break ribs and fracture a spinal vertebra. We find this evidence sufficient to support the inference that a "beat down" of this nature would escalate to murder. We accordingly overrule Issue Five.
EXTRANEOUS OFFENSE EVIDENCE
In his first and second issues, Appellant complains of the admission of evidence that he assaulted his former girlfriend, Kathryn Easterling. In his third and fourth issues, he complains that Kasie repeated on the stand his own statement that he had been in prison most of his life. Each issue is premised on the claim that the State injected extraneous offense evidence into the trial of this case.
Standard of Review
We review a trial court's decision to admit or exclude evidence for an abuse of discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex.Crim.App. 2010). A trial court will only be overturned if its ruling is so clearly wrong as to lie outside the zone of reasonable disagreement. Taylor v. State, 268 S.W.3d 571, 579 (Tex.Crim.App. 2008); Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990)(op. on reh'g). We do not substitute our own decision for that of the trial court. Moses v. State, 105 S.W.3d 622, 627 (Tex.Crim.App. 2003).
A trial court's ruling on the admissibility of an extraneous offense evidence is generally within this zone of reasonable disagreement if the evidence (1) is relevant to a material, non- character conformity issue, and (2) the probative value of that evidence is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading of the jury. De La Paz v. State, 279 S.W.3d 336, 344 (Tex.Crim.App. 2009).
Relevance and Evidence of Bad Acts
In deciding whether a particular piece of evidence is relevant, a trial court judge should ask, "would a reasonable person, with some experience in the real world believe that the particular piece of evidence is helpful in determining the truth or falsity of any fact that is of consequence to the lawsuit?" Montgomery, 810 S.W.2d at 376, quoting United States v. Brashier, 548 F.2d 1315, 1325 (9th Cir. 1976). If the trial court believes that a reasonable juror would conclude that the evidence alters the probabilities of contested events to any degree, the evidence is relevant. Id. Relevant evidence is generally admissible, while that which is not, is not. TEX.R.EVID. 402.
We are also guided by Rule 404(b)(1) which commands that evidence of other crimes or bad acts is not admissible to show character conformity. TEX.R.EVID. 404(b)(1). However, that kind of evidence might be admissible for some other non-character-conformity purpose, such as showing motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Id.
Rule 403 Balancing Test
Appellant objected to the photographs of Kathryn Easterling's injuries on Rule 403 grounds. Relevant evidence is generally admissible, but it is properly excluded under Rule 403 when its probative value is substantially outweighed by the danger of unfair prejudice. TEX.R.EVID. 403; Casey v. State, 215 S.W.3d 870, 879 (Tex.Crim.App. 2007). "Virtually all evidence that a party offers will be prejudicial to the opponent's case, or the party would not offer it. Evidence is unfairly prejudicial only when it tends to have some adverse effect upon a defendant beyond tending to prove the fact or issue that justifies its admission into evidence." [Citations omitted]. Id. at 883.
In conducting a Rule 403 balancing test, the trial court must consider (1) the inherent probative value of the evidence and (2) the State's need for that evidence, balanced against (3) any tendency of the evidence to suggest a decision on an improper basis, such as emotion, (4) any tendency to confuse or distract the jury from the main issues, (5) any tendency to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or be needlessly cumulative. Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex.Crim.App. 2006)(noting these factors as a refinement to a four factor test appearing in prior cases). In practice, these factors may blend together. Id.
The Assault
Under this rubric, was evidence of Appellant's assault on his former girlfriend, Kathryn Easterling, relevant to any issue in the case? We start with how the evidence developed. The State called Easterling to repeat several inculpatory statements Appellant made to her about Earnest's murder. During Appellant's case-in-chief, he recalled Easterling to the stand and asked if she and Appellant broke up over drug usage. She answered no, but added that it was because they were arguing. Seizing on this question, the State then admitted details of a specific assault on Easterling that occurred in the process of the break up. The State claimed Appellant opened the door and it admitted the evidence solely on this basis.
Appellant's questions to Easterling developed something of a motive challenging her veracity in recounting the inculpatory statements. The State then bolstered that claim by providing a much more robust reason why she disliked Appellant -- he had beaten and choked her. The State provided a new and better motive for her to testify against Appellant, which then snowballed when Appellant showed that Easterling had filed a sworn statement with the police attesting that the choking incident never occurred. She similarly testified to a parole board that the assault never occurred.
In this context, the trial court did not abuse its discretion in admitting the testimonial evidence under Rule 404(b). Evidence of Easterling's motive to testify against Appellant would be "helpful in determining the truth or falsity" of his inculpatory statements, which were central to the issue before the jury. Montgomery, 810 S.W.2d at 376. Appellant raised the motive testimony first, and the State, whether wittingly or not, merely expanded on Easterling's motive to falsely testify. The State's tactic in turn allowed Appellant to admit evidence that directly inferred that Easterling had committed perjury.
The photographs depicting Easterling's injuries are on a slight different footing. Appellant interposed a Rule 403 objection to the photographs. Though a closer call, we also conclude the trial court did not abuse its discretion in allowing the photographs. Depiction of the actual injuries here was more probative than Easterling's verbal description of the event. The State did not have any real need for the photographs, given the minor role this issue played in the overall context of this trial. Nevertheless, in light of the other evidence, we are not convinced the several photographs would have swayed a jury to render a decision on an improper basis, or confuse or distract the jury. This case centered on a torture murder, testified to by four witnesses present in the trailer that evening. Appellant admitted to concealing the body, and other evidence showed his involvement in the meth trade, his membership in the Aryan Brotherhood, and a plot to murder his girlfriend. Adding photographic evidence of an assault to the mix would have little if any additional negative impact. See King v. State, 953 S.W.2d 266, 273 (Tex.Crim.App. 1997)(potential harm from improperly admitted evidence of extraneous bad acts was defused by properly admitted evidence of other more serious extraneous offenses); Roe v. State, No. 02-13-00217-CR, 2014 WL 584898, at *5 (Tex.App.--Fort Worth Feb. 13, 2014, no pet.)(mem.op.)(not designated for publication)(same). The photos were discussed in only two pages of the trial transcript and were never mentioned in the State's guilt-innocence closing argument.
Moreover, the trial court instructed the jury that it could not consider this evidence to show Appellant's character, but only for other purposes, such as assessing any bias or motive, or weighing the credibility of Easterling. We generally presume the jury follows the trial court's instructions, understanding that the presumption is rebuttable. Thrift v. State, 176 S.W.3d 221, 224 (Tex.Crim.App. 2005). Appellant has not rebutted the presumption here.
Even if we found the admission of the assault evidence was error, we are not convinced it was harmful. Ordinarily, error in the admission or exclusion of evidence is not of a constitutional dimension. Arzaga v. State, 86 S.W.3d 767, 776 (Tex.App.--El Paso 2002, no pet.). We generally disregard non-constitutional error unless a "substantial right" of the appellant is affected. TEX.R.APP.P. 44.2(b); Burnett v. State, 88 S.W.3d 633, 637 (Tex.Crim.App. 2002). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App. 2000); King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). We should not reverse a criminal conviction because of non-constitutional error if we have fair assurance that the error did not influence the jury, or had but a slight effect. See Morales, 32 S.W.3d at 867; Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998).
In making this determination, we review the entire record, including the jury instructions, the parties' theories of the case, and closing arguments. Arzaga, 86 S.W.3d at 776. We consider: (1) the character of the alleged error and how it might be considered in connection with other evidence; (2) the nature of the evidence supporting the verdict; (3) the existence and degree of additional evidence indicating guilt; and (4) whether the State emphasized the complained of error. See Motilla v. State, 78 S.W.3d 352, 356-58 (Tex.Crim.App. 2002).
These factors all weight against a finding of reversible error here. The character of the domestic dispute evidence cuts both ways. The evidence was actually helpful to Appellant in that it gave Easterling a greater motivation to testify against Appellant, and it also opened the door for Appellant to show that she has made a false statement under oath in the past. At the same time, the evidence placed Appellant in a bad light. Nonetheless, there was so much other testimony that impugned Appellant's character that this single event was of little consequence. Trial testimony showed that Appellant was a meth dealer, a member of a white supremacist gang, and that he planned to kill his own girlfriend on the night of Earnest's murder. He pled guilty to concealing a corpse. Other testimony showed he engaged in witness intimidation, and as we note below, testimony was admitted as to his prior prison history.
In addressing the sufficiency challenge above, we set out much of the evidence supporting guilt. Without restating that evidence again, we believe ample other evidence supports the jury's verdict. Nor did the State mention the Easterling assault in closing argument. Because the admission of the evidence of the assault did not affect Appellant's substantial rights, we overrule Issues One and Two.
The jury deliberated thirty-five minutes in arriving at this verdict.
Prior Incarceration
In his third and fourth issues, Appellant contends that the reference to his prior incarceration violates TEX.R.EVID. 401, 403, and 404(b). Kasie testified that Appellant told her, "Baby Doll, when someone claims to be something that they're not, people like us that have done prison their whole life and dedicated to their brotherhood, we react on it." [Emphasis added].
Appellant objected once Kasie repeated the statement. In the discussion that followed, the trial court effectively sustained Appellant's objection and instructed the State to make no further mention of the portion of the statement referring to "people like us that have done prison their whole life." The witness could repeat the balance of the statement. Appellant's counsel twice indicated he approved of this solution. Appellant rejected the option of instructing the jury to disregard. Both Issues Three and Four begin with the preface that the "the trial court abused its discretion" in admitting this evidence, but the trial court sustained Appellant's objection. "The parties do not ordinarily commit error; the trial court does, whenever it acts, or fails to act, over the legitimate objection of a party . . . ." [Emphasis in original]. Snowden v. State, 353 S.W.3d 815, 821 (Tex.Crim.App. 2011). To preserve error, therefore, a defendant must pursue to an adverse ruling some objection. See Archie v. State, 221 S.W.3d 695, 699 (Tex.Crim.App. 2007)(so holding for error in final argument). Consequently, when the trial court sustains a defendant's objection, the defendant should next seek an instruction for the jury to disregard the evidence, or ask for a mistrial. Id.; Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996); Calderon v. State, 950 S.W.2d 121, 138 (Tex.App.--El Paso 1997, no pet.). Appellant made neither motion here, and we fail to discern what error the trial court committed.
The other alternative would be to claim the error was so egregious that no instruction could cure the harm. Mathis v. State, 67 S.W.3d 918, 927 (Tex.Crim.App. 2002). No such claim is made here.
The objection on appeal must also mirror that made below. Clark v. State, 365 S.W.3d 333, 339 (Tex.Crim.App. 2012). While Appellant's brief advances arguments under TEX.R.EVID. 401, 404(b), and 403, the only objection below was that the statement introduced an "extraneous offense." Accordingly, all but the Rule 404 objection would have been waived.
Even if the point were preserved, we see no error. The prison reference is part and parcel of Appellant's inculpatory statement, and gives it context and meaning. The jury had already heard that Appellant was a member of the Aryan Brotherhood, and that gangs such as this operate in the prison system. Appellant's statement, which includes a reference to prison, makes his inculpatory statement of intent more credible. Intent is one of the express reasons for which extraneous offense evidence might properly be offered. TEX.R.EVID. 404(b).
Nor does Appellant convince us that any error would be harmful. The erroneous admission of evidence is generally rendered harmless when similar evidence is admitted without objection. Leday v. State, 983 S.W.2d 713, 718 (Tex.Crim.App. 1998)("Our rule, therefore, is that overruling an objection to evidence will not result in reversal when other such evidence was received without objection, either before or after the complained-of ruling. This rule applies whether the other evidence was introduced by the defendant or the State."); In re A.A.M., 414 S.W.3d 387, 390 (Tex.App.--El Paso 2013, no pet.); Elder v. State, 132 S.W.3d 20, 27 (Tex.App.--Fort Worth 2004, pet. ref'd)("The admission of inadmissible evidence can be rendered harmless if the same or similar evidence is introduced without objection elsewhere during trial."). Appellant failed to object to other evidence of previous incarcerations. The State offered a prior set of photographs showing gang related tattoos taken at a booking in 2004. When Appellant's counsel cross-examined Easterling, he elicited from her that Appellant was "in and out of jail all the time." He also developed that she had testified at Appellant's parole hearing, and specifically asked her whether Appellant had gone to jail on an identification fraud related charge. Given the record here, these other prison references render the single reference in Kasie's testimony harmless. We overrule Issues Three and Four and affirm the judgment of the trial court below. August 23, 2017
ANN CRAWFORD McCLURE, Chief Justice Before McClure, C.J., Rodriguez, and Hughes, JJ.
Hughes, J., not participating (Do Not Publish)