Nos. 05-07-00322-CR, 05-07-00323-CR
Opinion Issued April 25, 2008. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from Criminal District Court No. 3 Dallas County, Texas, Trial Court Cause Nos. F05-01058-NJ F05-53108-NJ.
Before Justices WHITTINGTON, RICHTER, and MAZZANT. Opinion By Justice MAZZANT.
AMOS L. MAZZANT, Justice.
Brandon Wells appeals two convictions for capital murder. In four issues, he argues factual sufficiency and jury charge error and claims the trial court erred in failing to sever the two capital murder cases. For the following reasons, we affirm the trial court's judgments.
Background
In the early morning hours of May 21, 2005, Derrick Johnson, Christopher Vincent, Zeric Jackson, and appellant decided to "go out and make some money" by committing robbery. The four men were in Johnson's Chrysler Fifth Avenue when they decided that, in order to avoid being apprehended, they should "find another car" because they did not "want to hit a lick in [Johnson's] car." Shortly thereafter, they saw a Cadillac Escalade parked near a car wash. Vincent and Johnson jumped out of the Chrysler and approached the parked Escalade. Armed with a .380 pistol, Vincent "went around to the driver's side" and Johnson, armed with a .22 revolver, "went to the passenger's side" of the vehicle. Vincent and Johnson forced the driver of the Escalade, Gregory Cole, out of his vehicle and then climbed into the vehicle and drove off, with Jackson and appellant following in the Chrysler. They parked both vehicles in appellant's neighborhood and stripped the Escalade, unloading electronic equipment into Johnson's Chrysler. Afterwards, the four men got into the Escalade and went "joy riding." Looking for someone to rob, they exited Highway 175 and eventually pulled into the parking lot of a club called the Neon Cowboy. They initially thought about robbing a white male they saw standing in front of the club, but they changed their minds after he left the area in a white truck. The four men then drove around the club. In the parking lot behind the club, they noticed a man and a woman talking to each other. Appellant told Vincent, who was driving, to stop the vehicle. According to Jackson, he and appellant got out of the Escalade and appellant pointed a .380 chrome handgun at the man and the woman — later identified as Scott Durham and Cynthia Rangel — and demanded money. Durham said he did not have any money but removed his wallet from his pocket. Rangel insisted she did not "have her purse." Appellant grabbed the wallet and, according to Vincent and Jackson, shot both Durham and Rangel. Johnson said he heard two or three gunshots but did not see who was shooting. According to the medical examiner, Durham died from a gunshot wound to the abdomen and Rangel died from a gunshot wound to the head. The men then got back into the Escalade and quickly left the parking lot. According to Johnson, appellant said he shot Durham and Rangel because "they didn't give up the money . . . fast enough." Vincent recalled that appellant said he shot the victims "because they didn't have no money." Jackson heard appellant say that the victims "didn't want to give up the money." After leaving the Neon Cowboy, the group drove the Escalade to a dead-end street near Linfield Park. All four men exited the vehicle, then appellant placed a rag inside the open gas tank and set the Escalade on fire. They fled the scene. After setting the Escalade on fire, Johnson and appellant went to a 7-Eleven gas station in Johnson's Chrysler. Appellant used a credit card belonging to Durham to pay for fuel while Johnson waited at the pump. As they were leaving the store, appellant handed the nozzle to another customer and told him to "pump you some gas." Johnson subsequently gave appellant a ride to a "So Serious Auto" store located near Kiest Boulevard. Appellant bought radios and speaker equipment and paid for the merchandise with Durham's credit card. Johnson left a television monitor taken from the Escalade at the stereo store to be repaired. When they left the store, appellant handed Johnson a billfold containing some credit cards and told him to throw the billfold out the window. During the subsequent police investigation, a detective recovered Johnson's fingerprints from the stolen equipment left at the electronics store. In his recorded oral statement to the police, appellant blamed Jackson for the shootings. According to appellant, on the night of the robberies and shootings, he was riding around with his "little partners" — Johnson, Vincent, and Jackson — in the Red Bird area of Dallas. As they circled the parking lot of the Neon Cowboy looking for someone to rob, Jackson thought that the man standing in front of the club might be carrying a firearm. Jackson told the others, "[W]e don't need to hit no lick let's go." Appellant knew that Vincent had a .380 chrome handgun with a black handle, but appellant insisted he was only a bystander and that Jackson and Johnson carried out the robbery. Appellant claimed Jackson and Johnson demanded Rangel's purse while Johnson took Durham's wallet. Rangel was "kind of resisting" and kept saying "she didn't have no stuff." Appellant told the others, ". . . [L]et's go then." A few moments later, he heard two gunshots. He claimed Jackson was "the one shooting." Appellant also denied setting the Escalade on fire. Rickey King was working at the Neon Cowboy on the night of May 20, 2005, and saw Rangel and Durham shooting pool. At approximately 2:50 a.m., shortly before the club closed, King walked around the perimeter of the building for security purposes and noticed Rangel sitting in her car and Durham kneeling down talking to her. King suggested they leave the area because it was not safe, then he walked around to the front of the building to wait for his ride home. He became nervous and armed himself with the butt of a pool cue. A short while later, King saw a white Cadillac Escalade pull into the parking lot. The passenger in the vehicle lowered his window and asked if the club was still open. King told him it had been closed for thirty minutes. The Escalade then circled around the parking lot and drove by King again. Suspicious, he took note of the first three numbers of the vehicle's license plate. The following day, after being told that someone had been murdered at the Neon Cowboy, he called Crime Stoppers and reported the suspicious activity and the partial license plate number. Appellant was arrested and charged with the aggravated robbery of Cole and with the capital murders of Rangel and Durham. In December of 2006, appellant shared a cell at the Dallas County Jail with Billy Hardin, who was charged with aggravated robbery and a parole violation. Hardin claimed that he and appellant got along well during the two months they were "cellies" and that they talked "[q]uite a bit." During one of their conversations, appellant allegedly told Hardin that he had been charged with capital murder and that he shot the female victim in the back of the head. Hardin also claimed that appellant told him the male victim had been shot by "Snoop or Little D, one of them." Hardin admitted that appellant showed him some documents related to the shootings, including a police report, witness statements, and an autopsy report. Appellant did not testify at trial and no defense testimony was offered. Following the jury trial, the jury convicted appellant of all three offenses. In each of the two capital murder cases, the trial court assessed punishment at life imprisonment. In the aggravated robbery case, the trial court sentenced appellant to five years in prison and a $3,000 fine, pursuant to a negotiated plea agreement. Discussion
Factual Sufficiency In his first issue, appellant claims the evidence is factually insufficient to support the capital murder convictions because there is insufficient evidence he was either the principal actor or a party to the offense. In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight is to be given to contradictory testimony. Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App. 2000). The jury was instructed in this case that it could find appellant guilty of capital murder in any of three different ways: (1) as a principal; (2) as a party under section 7.02(a)(2) of the Texas Penal Code; or (3) as a co-conspirator under section 7.02(b). The jury returned a general verdict. 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 guilty will be upheld if the evidence is sufficient on any one of the theories. Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App. 2004); Rabbani v. State, 847 S.W.2d 555, 558 (Tex.Crim.App. 1992). As explained in the trial court's charge, capital murder first requires a person to intentionally or knowingly to cause the death of another. Tex. Penal Code Ann. § 19.03(a) (Vernon 2003). A person commits the offense of capital murder if he intentionally commits the murder in the course of committing robbery. Id. § 19.03(a)(2). Appellant argues the evidence is factually insufficient because of inconsistencies between the trial testimony of Jackson, Johnson, and Vincent — the State's three key witnesses — and their statements to the police. For example, Vincent admitted that, in his written statement to the police, he said that "it was [Johnson] who put the gun in Mr. Cole's face and told him to get out of the truck." Johnson testified that he "probably" told the police that he, not appellant, used the stolen credit card belonging to Durham to purchase gas after the shootings. Johnson admitted that he told the police he was not carrying a gun during the robbery of Cole. He also testified on direct that he thought appellant was the first one to suggest that they rob Durham and Rangel. In his written statement to the police, however, Johnson said that it was Vincent, not appellant, who suggested, "[H]ey, let's go get these fools." Asked to explain the apparent inconsistency, Johnson said, "I just remember someone saying that. I don't remember exactly who said it." Jackson admitted that he lied in his first and second statements to the police when he denied any involvement in the aggravated robbery and that his second statement minimized his involvement in the shootings. In addition, appellant argues that Jackson, Johnson, and Vincent had an incentive to testify falsely against him because they were all charged with aggravated robbery and capital murder. Appellant also notes that Hardin was shown legal documents from appellant's pending cases and that Hardin could have obtained information regarding the shootings from those documents. Viewed under the appropriate standard, we conclude there is factually sufficient evidence that appellant, acting as a principal, caused the deaths of both victims. Jackson and Vincent testified that they saw appellant fire the shots that killed Durham and Rangel. Johnson and Vincent testified that appellant said he shot the victims either because "they didn't give up their money" or "they didn't have no money." Although some of the witnesses gave conflicting or inconsistent testimony about the robberies and the shootings, it was the jury's function to resolve any conflicts in the evidence. See Johnson, 23 S.W.3d at 9. As the sole judge of the credibility of the witnesses, the jury was free to believe or disbelieve all or part of a witness's testimony. Jones v. State, 984 S.W.2d 254, 257 (Tex.Crim.App. 1998). Because we conclude the evidence is factually sufficient to support appellant's capital murder convictions as a principal, we need not consider whether the evidence is factually insufficient to support appellant's convictions as a party under sections 7.02(a) or 7.02(b) of the penal code. We overrule appellant's first issue. Severance In his second and third issues, appellant argues that the trial court erred in failing to grant his motion to sever the aggravated robbery case from the two capital murder cases and that he was harmed by the error. A defendant may be prosecuted in a single criminal action for all offenses arising out of the same criminal episode. Tex. Penal Code Ann. § 3.02 (Vernon 2005). However, a defendant has a right to a severance of the offenses. Id. § 3.04(a). A motion to sever must be raised before trial. See Thornton v. State, 986 S.W.2d 615, 617 (Tex.Crim.App. 1999); Trevino v. State, 228 S.W.3d 729, 733 (Tex.App.-Corpus Christi 2006, pet. ref'd). When a defendant timely requests severance under section 3.04(a), his right to a severance is absolute and severance is mandatory. See Coleman v. State, 788 S.W.2d 369, 371 (Tex.Crim.App. 1990); Trevino, 228 S.W.3d at 733; King v. State, 189 S.W.3d 347, 353 (Tex.App.-Fort Worth 2006, pet. ref'd). During a pretrial hearing, appellant moved to sever the aggravated robbery case under section 3.04(a). The trial court denied the motion. Because the right to a severance is absolute, the trial court erred in denying the motion. See Coleman, 788 S.W.2d at 371. However, because severance error is subject to a harm analysis, we must also determine whether the trial court's denial of appellant's motion to sever affected appellant's substantial rights. Tex. R. App. P. 44.2(b); Scott v. State, 235 S.W.3d 255, 257 (Tex.Crim.App. 2007); Llamas v. State, 12 S.W.3d 469, 470-71 (Tex.Crim.App. 2000); Trevino, 228 S.W.3d at 733. In determining harm, we consider the entire record. Scott, 235 S.W.3d at 257; Trevino, 228 S.W.3d at 733. The State concedes that the trial court erred in failing to sever the aggravated robbery case from the two capital murder cases but argues that the error was harmless because evidence of the armed robbery of Cole was admissible as "same transaction contextual evidence." Same transaction contextual evidence is evidence of another crime or act that is so intertwined with the charged offense that full proof of either crime cannot be had without eliciting testimony of the other. See Delgado v. State, 235 S.W.3d 244, 253 (Tex.Crim.App. 2007) ("Same transaction contextual evidence refers to those events and circumstances that are intertwined, inseparable parts of an event that, if viewed in isolation, would make no sense at all."); Trevino, 228 S.W.3d at 733. The purpose for admission of same transaction contextual evidence is not to show character conformity but to help the jury better understand the nature of the alleged crime. Camacho v. State, 864 S.W.2d 524, 532 (Tex.Crim.App. 1993); King, 189 S.W.3d 354. Jurors have the right to hear evidence concerning events immediately prior and subsequent to the commission of the offense so that they may realistically evaluate the evidence. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App. 2001); King, 189 S.W.3d at 354. Granting a severance does not automatically preclude the admission of extraneous offenses that are same transaction contextual evidence. King, 189 S.W.3d at 354. In a joint trial of two or more offenses, when the offenses are intertwined in one inseparable transaction, all evidence showing the circumstances of the transaction, the events immediately before and after the event, and the general context of the offense is admissible and may be fully considered by the jury. King, 189 S.W.3d at 354. Even when the trial court erroneously denies a motion for severance, if the offenses are intertwined in one inseparable transaction, the error is harmless because evidence of one offense would be admissible as same transaction contextual evidence in the separate prosecution of the other offense. King, 189 S.W.3d at 354; see also Tovar v. State, 165 S.W.3d 785, 795 (Tex.App.-San Antonio 2005, no pet.) (same evidence would have been admissible regardless of whether the offenses were tried separately or jointly). After reviewing the record, we agree with the State that the evidence of the aggravated robbery is so intertwined with the capital murders that full proof of either crime would have required some evidence of the other. We also reject appellant's assertion that the only connection between the offenses is that the stolen Escalade was used in the capital murders. In fact, trial testimony inextricably links the offenses and shows the aggravated robbery of Cole was preparation for the subsequent robbery of murder victims Durham and Rangel. The evidence of the aggravated robbery filled "`in gaps of the interwoven events and consequences of [the co-conspirators'] criminal conduct,'" thus aiding the jury "`to understand the case in context.'" King, 189 S.W.3d at 355 (quoting Prible v. State, 175 S.W.3d 724, 732 (Tex.Crim.App. 2005)). Because any severance error did not affect appellant's substantial rights, we overrule his second and third issues. Jury Charge In his fourth issue, appellant argues the trial court erred in charging the jury on the law of parties under section 7.02(a)(2) of the penal code. Appellant claims the instruction was improper because the theory of criminal responsibility under the law of parties was not raised by the evidence. During the charge conference, defense counsel objected to "that portion of the parties charge which authorizes conviction as a party under the provisions, Section 7.02A of the Penal Code, and with respect to — suggest to the Court that there is no inference that would justify a charge on that section of parties. . . ." The trial court overruled the objection. We conclude it is unnecessary for us to determine whether the trial court erred in submitting an instruction on the law of parties under section 7.02(a)(2). It is well-settled that where the evidence clearly supports a defendant's guilt as a principal actor, any error of the trial court in charging on the law of parties is harmless. See Ladd v. State, 3 S.W.3d 547, 564-65 (Tex.Crim.App. 1999); Black v. State, 723 S.W.2d 674, 675 (Tex.Crim.App. 1986). In this case, there is factually sufficient evidence that appellant acted as a principal to the offenses. Because the evidence was sufficient to support appellant's guilt as a principal actor, any error in charging on the law of parties was harmless. See Ladd, 3 S.W.3d at 564-65. We therefore overrule appellant's fourth issue. We affirm the trial court's judgments.