Hervey v. State

Full title: CHARLES WILLIAM HERVEY, III, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Mar 26, 2007

No. 05-06-00268-CR (Tex. App. Mar. 26, 2007)

Opinion

No. 05-06-00268-CR

Opinion filed March 26, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.

Appeal from the Criminal District Court No. 6 Dallas County, Texas, Trial Court Cause No. F04-52336-X.

AFFIRMED.

Before Justices FITZGERALD, RICHTER, and FRANCIS.

OPINION

MARTIN RICHTER, JUSTICE.

Charles William Hervey, III appeals his jury conviction and life sentence for the murder of Dimp Shanklin. In four points of error, Hervey asserts (a) the evidence is factually insufficient to support his conviction, (b) the trial court erred in ordering him to remain shackled during trial and admitting certain crime scene and autopsy pictures into evidence, and (c) the parole and good conduct time instruction in the punishment charge denied him due process. Finding no reversible error, we affirm.

Background

On May 18, 2004, Detective Randy Laboda of the Dallas police department discovered Shanklin's body and a shotgun shell casing under a pile of tree limbs in a park behind a residential neighborhood. Shanklin's body had been partially covered by a tarp and had begun decomposing and skeletonizing. According to a medical examiner, Shanklin died of multiple gunshot wounds approximately one week prior to the discovery of his body. An investigation into the murder led police officers to Hervey, with whom Shanklin had last been seen. The investigation revealed Hervey and Shanklin were friends and had left Shanklin's apartment on May 10, 2004 around 11:30 p.m. in the car of a friend-Denise Jackson. About three hours later Hervey returned alone to exchange Jackson's car for Shanklin's. Hervey explained to Jackson, and subsequently to Shanklin's uncle, that Shanklin and he "had been shot at" while at a gas station and Shanklin had taken Hervey's car "so he could get a gun or something from a homeboy's house." Shanklin was not seen alive again, but Hervey was seen later that day at a friend's house in Coffeyville, Kansas-a five-hour drive from Dallas. At the time, Hervey was still in possession of Shanklin's car. Nine days later, on May 20, Hervey was arrested and charged with Shanklin's murder. Also arrested was Hervey's friend Juwan Crews, who had arrived in Coffeyville at the same time as Hervey and had told Coffeyville police officers that Shanklin's car was his. Subsequently, officers learned that Crews had asked a friend in Coffeyville, Otis Horner, "for an alibi" and that Hervey had sold his shotgun to Horner shortly after arriving in Coffeyville. A shell shot from this gun matched the shell casing found next to Shanklin's body. At the week-long trial, witnesses for the State testified about the investigation and the events leading to Hervey's arrest. According to witness testimony, both Shanklin and Hervey were "involved with drugs." On the day Shanklin was last seen alive, Hervey mentioned to a girlfriend that he was "upset" at Shanklin for stealing "six quarter sacks of marijuana" from him. Hervey stated to the girlfriend that he "was going to get at [Shanklin]." The girlfriend interpreted this to mean Hervey "might get into a fight or something or would confront [Shanklin]," but she did not believe he would kill him. Although DNA evidence recovered during the investigation linked Crews to the murder and not Hervey, officers believed Hervey acted in concert with Crews. Hervey was in possession of Shanklin's car as well as the murder weapon, and the police could find no evidence to confirm Hervey's account that he and Shanklin had "been shot at" while at a gas station. Hervey, who was shackled during trial, did not testify and did not call any witnesses. Authorized to convict Hervey of murder either as a principal or a party, the jury returned a general verdict finding Hervey guilty "as charged in the indictment."

Trial in Shackles

In his first point, Hervey argues the court erred in ordering him to be shackled during trial. In arguing this point, Hervey asserts that because a defendant's presumption of innocence may be infringed when a jury views him in handcuffs or shackles, shackling is permissible only in exceptional circumstances and must be supported by a record that reflects the particular circumstances justifying its use. See Cooks v. State, 844 S.W.2d 697, 722 (Tex.Crim.App. 1992). Hervey notes that the record in this case is silent as to why he was shackled. Equating the silent record with a lack of justification for the restraints, Hervey maintains he should not have been restrained. Hervey's complaint, however, is not preserved for appeal. To preserve error for appeal, a party must present to the trial court a timely and specific objection. Tex. R. App. P. 33.1(a)(1); Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002); Dixon v. State, 2 S.W.3d 263, 265 (Tex.Crim.App. 1998). Additionally, the complaint on appeal must comport with the objection at trial. Wilson, 71 S.W.3d at 349; Dixon, 2 S.W.3d at 265. Here, the record reflects Hervey made two general objections at trial concerning the restraints, but neither one stated his specific complaint now argued on appeal: that the use of restraints was unjustified. Hervey's first objection, lodged immediately before the commencement of punishment, did not preserve his complaint because it asserted a different ground of error: that the jury might have seen him in shackles as he was escorted out of the courtroom following the jury's guilty verdict. See Wiseman v. State, — S.W.3d. —, 2006 WL 2773088, • 3 (Tex.App.-Houston [1^st Dist.] 2006, pet. ref'd) (appellant waived complaint that use of shackles during trial violated Texas constitution where complaint at trial was that use of shackles violated United States constitution). Hervey's second objection, a general complaint to "being in shackles while the jury's in the courtroom," did not preserve his argument on appeal because it was lodged after the State rested its case in punishment and was thus untimely. See Tex. R. App. P. 33.1. We overrule Hervey's first point of error.

Crime Scene and Autopsy Photographs

In his second point of error, Hervey complains that the trial court abused its discretion in allowing into evidence certain crime scene and autopsy pictures. See Jones v. State, 944 S.W.2d 642, 651 (Tex.Crim.App. 1996) (applying abuse of discretion standard to review of ruling on admission of photographs). Specifically, Hervey complains the following pictures should have been excluded under Texas Rule of Evidence 403:

• State's exhibit 18, a picture of Shanklin's skeletonized head and decomposing body taken at the scene;

• State's exhibit 20, a picture of the autopsy layout of Shanklin's skull and upper body bones and muscles;

• State's exhibit 21, an autopsy picture of Shanklin's lower body;

• State's exhibit 22, a picture of hair recovered at the scene;

• State's exhibit 23, an autopsy picture of a portion of Shanklin's jaw, which had been fractured in two locations;

• State's exhibit 25, an autopsy picture of the top of Shanklin's fractured sternum; and,

• State's exhibits 27, 28, and 30, "close-up" pictures of the top of Shanklin's sternum.¹

Hervey maintains the admission of these pictures "violated" his substantial rights because they "were gruesome and cumulative" and their "unfair prejudicial effect outweighed their probative value." See Tex. R. Evid. 403. However, other than citing generally to case law concerning the admissibility of pictures, Hervey provides no substantive legal analysis, argument, or authority to support his contention that the pictures were unfairly prejudicial. See Tex. R. App. P. 38.1(h). As such, his point is inadequately briefed and presents nothing for review. Williams v. State, 937 S.W.2d 479, 487 (Tex.Crim.App. 1996) (appellant inadequately briefed complaint that trial court erred in admitting autopsy and crime scene pictures where he failed to explain why complained-of pictures would "cause a jury to rely upon emotion"); Rocha v. State, 16 S.W.3d 1, 20 (Tex.Crim.App. 2000) (argument that fails to cite to supporting authority in support of claim presents nothing for review). Nonetheless, in the interest of justice, we have examined the complained-of pictures and conclude they were not "unfairly prejudicial"and the trial court did not abuse its discretion in admitting them into evidence. In reaching this conclusion, we have considered the gruesomeness and size of the pictures, the amount of detail, whether they are in color, whether the autopsy significantly changed the condition of the body as found, and the availability of other means of proof. See Reese v. State, 33 S.W.3d 238, 241 (Tex.Crim.App. 2000); Etheridge v. State, 903 S.W.2d 1, 21 (Tex.Crim.App. 1994). Although the pictures viewed by the jury are in color and by the very nature of the injuries inflicted are gruesome and detailed, they are not "so gruesome" as to render them "unfairly prejudicial." See Chamberlain v. State, 998 S.W.2d 230, 237 (Tex.Crim.App. 1999) (concluding colored photographs of victim, though "gruesome in that they depict disagreeable realities," not "so gruesome" as to be unfairly prejudicial"). The record reflects the State offered them into evidence during its examination of the investigating detective and medical examiner for the purpose of illustrating, clarifying, and accurately depicting the condition of Shanklin's body at the scene and the extent of his injuries. The pictures are not enhanced in any way, are not cumulative, do not reveal any damage caused by the autopsy, and portray no more than "the reality of the brutal crime committed." See id.; Etheridge, 903 S.W.2d at 21 (concluding non-cumulative, colored autopsy pictures depicting no more than injuries sustained by victim, though "gruesome and detailed," "not so gruesome as to be unfairly prejudicial"). We overrule Hervey's second point of error.

Factual Sufficiency of the Evidence

In his third point of error, Hervey asserts the evidence is factually insufficient to support the verdict. Hervey bases his argument on the forensic evidence linking Crews, but not him, to the murder and on the testimony showing that Crews sought an alibi and told Coffeyville police officers that Shanklin's car was his. Hervey also notes that one witness testified Hervey was in Coffeyville as early as May 8, suggesting he could not have been involved in the murder. Hervey maintains this evidence is so strong that the "beyond-a-reasonable-doubt standard could not have been met." Hervey also contends that "the evidence supporting the verdict-testimony showing Shanklin was last seen with him and that a shell shot from his shotgun matched the shell found at the scene-is too weak to support the verdict." As such, Hervey argues, his conviction should be reversed. We disagree. When reviewing a challenge to the factual sufficiency of the evidence, we view all the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). In conducting this review, we are permitted to substitute our judgment for the jury's on the question of witness credibility and weight of evidence determinations, "albeit to a very limited degree." Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006). We will reverse a verdict of guilty on a factual sufficiency challenge when we can say, with some objective basis in the record, that the great weight and preponderance of the evidence contradict's the jury's verdict. Watson, 204 S.W.3d at 417. Based on the indictment in this case, to obtain a guilty verdict, the State had to prove beyond a reasonable doubt that Hervey, acting alone or as a party, either (a) intentionally or knowingly caused Shanklin's death by shooting him with a firearm, a deadly weapon, or (b) intended to cause serious bodily injury to Shanklin and committed an act clearly dangerous to human life by shooting Shanklin with a firearm, a deadly weapon, and causing his death. Tex. Pen. Code Ann. § 19.02(b) (Vernon 2003). The jury could infer the intent to kill from the use of the deadly weapon and could infer the intent to cause serious bodily injury from Hervey's acts or words, the manner in which the offense was committed, and the nature of the wounds inflicted. Brown v. State, 122 S.W.3d 794, 800 (Tex.Crim.App. 2003); Payne v. State, 194 S.W.3d 689, 694 (Tex.App.-Houston [14^th Dist.] 2006, pet. ref'd). Viewing the evidence here in a neutral light, we conclude that the great weight and preponderance of the evidence supports the jury's verdict. Although forensic evidence did not link Hervey to the murder and it was Crews who claimed Shanklin's car as his and sought an alibi, other evidence was presented from which the jury could find guilt beyond a reasonable doubt. While Hervey may have been in Coffeyville on May 8, several witnesses saw him in Dallas on May 10 with Shanklin. Additionally, Hervey's girlfriend testified that Hervey was upset at Shanklin for stealing marijuana from him and wanted to "get at" Shanklin. While the girlfriend did not believe Hervey would kill Shanklin, it was Hervey with whom Shanklin was last seen, Hervey who took Shanklin's car and offered a vague and unverified explanation as to Shanklin's whereabouts, Hervey who was seen driving Shanklin's car in Coffeyville within hours of being seen with Shanklin in Dallas, and Hervey who owned and then sold the shotgun used in the multiple shooting and murder of Shanklin. Hervey's contention that the evidence is factually insufficient to support the verdict is without merit. We overrule Hervey's third point of error.

Parole Instruction in Punishment Charge

Hervey's final point of error stems from the judge's including an instruction in the punishment charge regarding parole eligibility and good conduct time. See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a) (Vernon 2006). Hervey argues his due process rights were violated because, having been convicted of murder with a deadly weapon, he was ineligible for parole and good conduct time credit. See Tex. Gov't Code Ann. § 508.149(a)(2) (Vernon 2004). In making this argument, Hervey recognizes the parole and good conduct time instruction is mandatory. See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a). Hervey further recognizes that the Texas Court of Criminal Appeals has specifically concluded that inclusion of this instruction in the jury charge does not violate a defendant's due process rights even when, as here, the defendant is ineligible for parole and good conduct time credit unless "a reasonable jury probably was actually confused by the [instruction]." See Luquis v. State, 72 S.W.3d 355, 366-67 (Tex.Crim.App. 2002). Hervey argues that his conviction should be reversed and the case remanded for a new punishment hearing because the instruction in his case "was calculated to mislead the jury and there is a reasonable probability that it did mislead the jury." Hervey, however, provides no support in the record for this conclusory statement, and we find nothing in the record to support it. The record contains no notes from the jury indicating or expressing confusion about the possible application of good conduct time and nothing else in the record suggests jurors discussed, considered, or tried to apply what they were told about good conduct time and parole. See id. Hervey's complaint is without merit. Accordingly, we overrule Hervey's fourth point of error. We affirm the trial court's judgment.