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holding that the defendant's statements alone were sufficient evidence to uphold a conspiracy to commit capital murder conviction, despite the fact that the defendant "denied the intention to harm" the intended victim
Summary of this case from BACH v. STATEOpinion
No. 11-05-00387-CR
Opinion filed June 14, 2007. DO NOT PUBLISH. See TEX. R. APP. P. 47.2(b).
On Appeal from the 238th District Court, Midland County, Texas Trial Court Cause No. CR30369.
OPINION
Tracy Ann McCurry appeals her conviction by a jury for the offense of conspiracy to commit capital murder for remuneration or the promise of remuneration. The jury assessed her punishment at fifteen years in the Texas Department of Criminal Justice, Institutional Division. She contends in three points that the evidence is legally and factually insufficient to support her conviction, that the State's counsel improperly struck at her over the shoulders of her attorney, and that the State's attorney engaged in improper closing remarks. We affirm. McCurry contends in point one that the evidence is legally and factually insufficient to support her conviction. In assessing the legal sufficiency of the evidence to support a criminal conviction, we consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). In determining whether the evidence is factually insufficient to support a criminal conviction, we consider all the evidence in a neutral light and determine whether the jury's verdict seems clearly wrong and manifestly unjust or whether the jury's verdict is, though legally sufficient, nevertheless against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006). The elements of criminal conspiracy are contained in TEX. PENAL CODE ANN. § 15.02(a) (Vernon 2003). That section provides that a person commits criminal conspiracy if, with intent that a felony be committed, (1) he or she agrees with one or more persons that they engage in conduct that would constitute the offense and (2) he or she or one or more of them performs an overt act in pursuance of the agreement. Section 15.02(a); McCann v. State, 606 S.W.2d 897, 898 (Tex.Crim.App. 1980). The agreement and overt act in furtherance thereof constitute the corpus delicti of conspiracy. McCann, 606 S.W.2d at 898. A person commits the offense of capital murder if he or she commits murder by intentionally or knowingly causing the death of another for remuneration or the promise of remuneration. TEX. PENAL CODE ANN. § 19.03(a)(3) (Vernon Supp. 2006). McCurry's sister, Christy Jean Cofer, testified concerning conversations she had with McCurry in which McCurry said that she wanted Cofer to kill Maria Isabell Sanchez because Sanchez was interfering in McCurry's relationship with her boyfriend, Juan Earl Williams (Tad). Among other things, Cofer testified that McCurry asked her if she would ever consider killing Sanchez for her; talked with her about killing Sanchez out near a caliche pit on Rankin Highway; asked her if she would go to Sanchez's house, duct tape her, and set her house on fire so she would burn to death; asked her if she would tape up Sanchez and leave her for the coyotes to eat to death; told her she wanted to make it look like a suicide or carjacking; told her she wanted her tortured; instructed her to hit her on the head or choke her or suffocate her; and told her she wanted Sanchez gone. While acknowledging that she initially did not believe McCurry was serious, Cofer testified that McCurry told her she was "dead serious." She said McCurry gave her a leather jacket to pawn so that she could buy bullets to kill Sanchez. Three officers with the Midland County Sheriff's Department were able to confirm the details of Cofer's testimony because Cofer wore a body wire during one of her later conversations with McCurry. While acknowledging that McCurry at one point said that she did not want to hurt Sanchez, just "scare the s — t out of her," one of the officers indicated that, having said that, McCurry continued to talk about having Sanchez murdered. McCurry testified, confirming many of the details herself. However, she insisted that she did not mean it when she told Cofer she was "dead serious" about it. She said she never intended for Sanchez to be hurt. In arguing that the evidence is legally and factually insufficient, McCurry does not contend that there is no evidence to support the elements of the conspiracy to commit capital murder. She argues only that she denied the intention to harm Sanchez even though she admitted the things she said that constituted evidence of the conspiracy, including her statement that she was "dead serious" about it. She also relies on the fact that Cofer initially did not believe she was serious. We hold that the evidence is legally and factually sufficient to support the conviction. We overrule point one. McCurry urges in point two that State's counsel improperly struck at her over the shoulders of her attorney. She refers to the prosecutor's comments that McCurry's attorney made "a lot to do" about the fact that McCurry was charged with conspiracy but Cofer was not, that her attorney had taken the evidence out of context, that her attorney was "grasping for straws," and that her attorney was talking "out of both sides of his mouth." Because no objection was made to any of these comments, nothing is presented for review. Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996). We overrule point two. McCurry urges in point three that the State's attorney engaged in improper closing remarks. She refers to remarks such as: "This Defendant is guilty as charged"; "[T]he evidence is absolutely overwhelming against her"; "[T]hat evidence . . . is overwhelming"; "She's got nothing but her word"; and "[H]er word isn't worth the breath she used to speak with her. . . . I hate to say that, but it's true." Again, because no objection was made to any of those comments, nothing is presented for review. Id. We overrule point three. The judgment is affirmed.