Opinion
No. 05-06-00191-CR
April 30, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 265th Judicial District Court Dallas County, Texas, Trial Court Cause No. F05-00681-HR.
Before Justices FitzGerald, Richter, and Francis
OPINION
Alton Lamont Rodgers appeals his conviction for capital murder and life sentence. In five issues Rodgers argues: the evidence was legally and factually insufficient to support his conviction; the trial court erroneously rejected his requested jury instruction; the State improperly introduced evidence of an extraneous offense; and the State engaged in improper jury argument. We decide each of these issues against Rodgers and affirm the trial court's judgment.
Sufficiency of Evidence
Rodgers was charged with capital murder, based on the aggravated kidnapping and murder of fourteen-year-old Kendrick Hardy. In his first two issues, Rodgers challenges the legal and factual sufficiency of the evidence supporting his conviction. In a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003). In a factual sufficiency review, we view all of 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 any event, the fact finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). The State presented a series of witnesses that testified to Rodgers's activities on March 20 and 21, 2005. Through that series of witnesses, the State attempted to tie Rodgers to Hardy and to a gun and a vehicle a rational juror could have believed were involved in Hardy's murder. Christopher Turner was Hardy's cousin, but he also knew Rodgers and Rodgers's brother. Turner testified he had seen Rodgers the night before Hardy disappeared. Turner had gone to Rodgers's home on Sunday evening, March 20, to talk about a car Rodgers was selling. Turner testified Rodgers was wearing a Lakers jersey that night. Rodgers told Turner that Hardy had stolen a gun from Rodgers, and Rodgers told Turner that if he saw his cousin, he should tell him Rodgers needed his gun back. The vehicle was a gray 1986 Mercedes-Benz owned by Rodgers's neighbor, Edward Brooks. Brooks testified that he loaned the car to Rodgers the morning of Monday, March 21, 2005, because Rodgers said he needed to take his girlfriend to the doctor for a couple of hours. Brooks checked back around noon, but Rodgers had not returned. At approximately five o'clock that evening, Rodgers returned on foot and told Brooks the car had been stolen, but he asked Brooks not to tell the police he had been in the car. Evidence concerning the kidnapping — and Rodgers's whereabouts between ten o'clock and five o'clock on March 21 — was pieced together by a series of witnesses. Several of those witnesses were young men who lived, or spent time around, an apartment complex called Woodland City. Jerry West, one of those young men, testified that he went to Woodland City between ten and eleven o'clock that morning. He saw Hardy, whom he knew, and their paths crossed over the course of the day. At around two o'clock, Jerry and Hardy set off together to buy a snack. As they were walking, Hardy asked Jerry whether he had seen the "gray Benz" driving around the complex. Jerry told him he had seen the car: he had seen Rodgers (whom Jerry had not known at the time) driving the car around the complex hours before as if he were looking for someone. Jerry said there had been a passenger in the car, but he did not see the passenger's face. He testified the Mercedes was a distinctive car around Woodland City, so it drew his attention. He testified that as he and Hardy were talking about the car, he saw it parked some fifty yards ahead of them; someone was in the passenger seat, but not the driver's seat. Just then, Rodgers came around the corner of the building with a gun. Rodgers threatened Hardy and told Hardy to get in the car. Jerry saw clearly both Rodgers's face and the "old black revolver" Rodgers carried. He testified Rodgers held the gun on Hardy, walked him to the car, and put him in the back seat. Then Rodgers got in and drove off, all the while holding the gun on Hardy. According to Jerry, Hardy did not go with Rodgers voluntarily: he was forced to go with Rodgers at gunpoint. Jerry was sure Hardy did not have a gun with him that day. Another young man, Brandon West, testified he was at Woodland City about two o'clock that day. Brandon saw Rodgers, who was wearing a Los Angeles Lakers jersey, emerge from a section of apartments with a gun. He testified Rodgers ran up on Hardy, grabbed Hardy by the head, and started walking him down the sidewalk. Brandon did not hear Rodgers say anything, but he heard Hardy say something like "Man, I ain't got your stuff," when Rodgers grabbed him. Rodgers pointed a short black revolver at Hardy's head. Brandon did not know Rodgers before that day and was unable to pick Rodgers out from a photo lineup during the investigation. However, Brandon identified Rodgers at trial with certainty. Christopher Turner, who had spoken to Rodgers on Sunday evening, also saw Rodgers during this time. On Monday afternoon, Turner was walking toward Woodland City when he saw Rodgers driving a Mercedes in the opposite direction. Rodgers sped by and blew the horn; he acknowledged Turner, but did not stop. Turner testified he saw passengers in the front and back of the Mercedes, but he could not tell who they were. Rodgers was next seen that afternoon between two o'clock and two thirty by Marcus Hester, who worked at a neighborhood store. Hester testified he was sitting outside the store that afternoon when Rodgers drove up in Brooks's Mercedes; Rodgers's brother and "somebody else" were in the car with Rodgers. (Hester knew Brooks from school; Rodgers and his brother were frequent customers at the store.) According to Hester, Rodgers entered the store to buy cigarettes. While Rodgers was in the store, Hester did not see anyone holding or carrying a gun. The man in the back seat was slumped down and wearing a hood. Hester said the man was not calling out for help or anything. When Rodgers returned, he got in the car and drove off. Hester testified that about ninety minutes later, he saw Brooks's car speed by the store in the opposite direction; Rodgers was still driving. The State also called witnesses whose testimony related to the murder and discovery of Hardy's body. Stacy Wall testified that she was cleaning house at about three o'clock on the afternoon of March 21. She heard series of six gunshots; then she went out on her porch and heard three more shots. She described them as sounding very loud and very close, and she thought the sound came from the south end of her dead-end street. She testified she went back inside her house, but watched the road in front. Shortly, she saw a gray Mercedes drive by with its trunk partly open. The car was going fast, but she saw a driver and two passengers. She described all three occupants as black men in their teens or early twenties. Wall testified she called her husband, and he called the police. Officers responded and went down the street, but they did not find anything at that time. Later that evening, Wall, her husband, and a neighbor walked down the street. They found three dimes with what appeared to be blood on them, but they did not see Hardy's body. Wall's husband, Aaron, also testified at trial. When he learned several days later the police were searching in the area close to his home for a missing boy, he called the police again to remind them about his report of gunshots that Monday. The police returned, and this time they found Hardy's body. It was located some twenty to thirty feet off the road, up against a fence. The body was not visible from the road. The police recovered four nine millimeter shell casings more than seventy yards from the body. They also recovered nine twenty-two caliber shell casings within ten feet of the body. There was testimony that the twenty-two caliber casings were consistent with a certain type of revolver. Hardy's autopsy revealed nine gunshot wounds; he had been shot by both a .22 caliber weapon and a nine millimeter weapon. Police eventually discovered Brooks's car; it had been burned. When police informed him, Brooks told the police the truth about Rodgers's borrowing the car. Wall identified a picture of the car as the one she had seen; even after the fire, the trunk was stuck open as it had been when she saw the car on her street that day. Rodgers's argument on appeal begins with a litany of possible evidence that the State did not present: the guns, the Lakers jersey, fingerprints, etc. Our inquiry in this case is not what the State did not offer, but whether what it did offer was sufficient for a rational jury to convict. Rodgers also challenges the credibility of the State's witnesses, declaring that all of those witnesses were given "some type of assistance" from the State in return for their testimony. He complains that witnesses told different stories at trial than they had earlier told investigators. Our review of the record establishes that counsel for Rodgers confronted each of these witnesses with the "assistance" the witness allegedly received and with any inaccuracies he perceived in their testimony. Resolution of inconsistencies and judgments concerning the credibility of witnesses were questions for the jury. Harvey, 135 S.W.3d at 717. When we examine the evidence in the light most favorable to the verdict, we are persuaded that any rational trier of fact could have found the essential elements of capital murder beyond a reasonable doubt. See Jackson, 443 U.S. at 319. Likewise, when we look at all the evidence neutrally, we conclude the jury was rationally justified in finding guilt beyond a reasonable doubt. See Watson, 204 S.W.3d at 415. Ample evidence supported the jury's findings. We decide Rodgers's first and second issues against him.Jury Instruction
In his third issue, Rodgers argues the trial court erroneously rejected the following proposed addition to the jury charge:That the jury be instructed that if they believe the defendant is guilty of either the greater or the lesser of the two choices before them, but they have reasonable doubt as to which charge the defendant is guilty of, that they must resolve that doubt in the defendant's favor and find him guilty of the lesser offense only. The court refused to give this instruction, and Rodgers argues he was "harmed by the lack of an application paragraph." Rodgers relies on Williams v. State, 622 S.W.2d 578 (Tex.Crim.App. 1981). In Williams, the defendant was charged with attempted murder and was convicted of the lesser included offense of aggravated assault. Id. at 578. The court's charge, however, contained no application paragraph on the offense of aggravated assault. As the court stated, the "charge fail[ed] to instruct the jury as to which of appellant's actions, if believed true beyond a reasonable doubt, would constitute aggravated assault." Id. at 580.Rodgers's reliance on Williams is misplaced. The jury charge in his case contains application paragraphs for both the capital murder and aggravated kidnapping offenses. And each of those paragraphs properly identifies the actions which, if believed true beyond a reasonable doubt, would constitute the charged offense. See id. Although the particular instruction Rodgers sought was not given, the jury was given proper application paragraphs in their charge. We overrule Rodgers's third issue.
Extraneous Offense
In his fourth issue, Rodgers argues that he was harmed when the State made reference to two extraneous offenses at trial. Rodgers complains first that the prosecutor asked an investigating detective whether one of the witnesses "might be fearing retaliation" from Rodgers. Rodgers objected to this question as calling for speculation. The judge sustained the objection and instructed the jury to disregard the "comment." Rodgers's request for a mistrial was denied, but he does not brief or argue the mistrial point on appeal. Instead he argues this reference to an extraneous offense was irrelevant or, if relevant, was unfairly prejudicial. Rodgers did not object to the question on this ground at trial, and he may not raise an unpreserved evidentiary complaint on appeal. Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002) ("the point of error on appeal must comport with the objection made at trial"). Rodgers complains next about passing references to a witness who had died before trial. We need not address whether the rules on extraneous offenses could have been implicated by these references, because Rodgers failed to object to them, on any ground, at trial. In the absence of a specific objection and ruling, he has preserved nothing for our review. See id. Rodgers's fourth issue lacks merit.Jury Argument
In his fifth and final issue, Rodgers argues he was harmed by the State's jury argument. Specifically, Rodgers complains of the following statement by the prosecutor in her closing argument to the jury:[A prosecutor] asked Jerry [West], he said, Were you scared" Did you think something was going to happen to you" Sure did. Were you going to get in the car" No, man, he was going to have to shoot me before I got in the car with him. Why" He knew what this man is capable of.Rodgers argues the emphasized sentence was a misstatement of West's testimony. West had testified he did not know Rodgers. Thus, according to Rodgers, West could not know Rodgers was capable of shooting him, and to suggest otherwise to the jury was highly inflammatory and prejudicial. We disagree. Rodgers did not object to the prosecutor's argument and therefore failed to preserve error. Threadgill v. State, 146 S.W.3d 654, 667 (Tex.Crim.App. 2004). But if Rodgers had objected below, we would nonetheless reject his argument. West testified he watched as Rodgers grabbed Hardy, held a gun to his head, threatened to kill him, dragged him into a car, and drove away. West further testified he would not have gotten into the car with Rodgers had he been in Hardy's place and that Rodgers "would have had to shoot me on the spot." One could reasonably deduce from West's testimony that he recognized getting in the car with Rodgers would be dangerous because Rodgers was capable of violent conduct. West did not need to be personally acquainted with Rodgers to form that belief. The State's argument was not improper given the testimony in this case. See Rocha v. State, 16 S.W.3d 1, 21 (Tex.Crim.App. 2000) (reasonable deductions from evidence are permissible jury argument). We overrule Rodgers's fifth issue.