On Appeal from the 32nd District Court Mitchell County, Texas
Trial Court Cause No. 7420
Appellant, Myron McDonald, appeals his jury conviction for the offense of attempted capital murder. He and Christopher Deshawn Johnson were tried at the same time for the attempted capital murder of Department of Public Safety Trooper Frank Casares. The jury assessed Appellant's punishment at confinement for life in the Institutional Division of the Texas Department of Criminal Justice and a fine of $10,000. Appellant raises four issues on appeal. We affirm.
The jury also convicted Johnson of attempted capital murder and assessed the same punishment for him. Our opinion and judgment affirming Johnson's conviction is being issued on the same date in Cause No. 11-13-00379-CR. --------
Highway Patrol Trooper Frank Casares testified that he was out on patrol on the morning of January 21, 2013, in Mitchell County along Interstate 20 west of Colorado City. He observed a vehicle speeding at the rate of 109 miles per hour. Trooper Casares activated his overhead lights and pursued the vehicle. Trooper Casares followed the vehicle for approximately four miles before he caught up to the vehicle. The vehicle eventually pulled over, and Trooper Casares exited his patrol car. Trooper Casares walked up and stopped at the rear of the vehicle. He motioned for the driver to step out of the vehicle. Trooper Casares then heard gunshots coming from the vehicle. He jumped behind the vehicle for cover and then ran to the front of his patrol car. Trooper Casares testified that the vehicle sped off at this point.
Trooper Casares returned to his patrol car and pursued the fleeing vehicle. Trooper Casares chased the vehicle for several miles on I-20, through Colorado City, south on Highway 208, then back north on 208, and finally back onto I-20. The vehicle started to slow down and more gun shots were fired toward Trooper Casares. The vehicle then exited I-20 and drove through Colorado City. Trooper Casares pursued the vehicle at 100 miles per hour. Trooper Casares's patrol car camera recorded the high-speed chase.
Other officers joined Trooper Casares in the high-speed chase. Trooper Casares testified that he heard gunshots fired at him when the vehicle made a U-turn and drove toward his patrol vehicle. Eventually, law enforcement lost sight of the vehicle. The vehicle was later found without any occupants inside.
Texas Ranger Phillip Vandygriff testified that the vehicle had been abandoned on a road in western Nolan County. Inside the vehicle was a map with a dot drawn on it over the Seagraves area and an arrow pointing toward Colorado City. Ranger Vandygriff also found 9-millimeter shell casings and live rounds inside the vehicle. Ranger Vandygriff testified that he then went to the sheriff's office in Colorado City for follow-up information. Several police officers met with Ranger Vandygriff and told him that there were three black males at a residence in Colorado City. Ranger Vandygriff, and the other officers, went to that residence and created a perimeter around it. A SWAT team and Special Response Team was dispatched to the residence.
Several people exited the residence when the police first arrived. Two people told officers that there were three people still inside the residence. After repeated requests for the individuals to come out of the residence, and many hours, the SWAT team entered the residence and found Appellant, codefendant Christopher Deshawn Johnson, and codefendant Terry Warner, Jr. hiding in a small closet. An officer searched the residence and found part of a disassembled gun.
Warner testified at trial. He stated that he, Appellant, and Johnson left Oklahoma City on the night of January 20, 2013, and they headed toward Texas. They got lost on their way and stopped in Seagraves to get a map. Appellant was driving, and Johnson was in the front passenger seat. At one point, a trooper attempted to pull over the vehicle. Appellant continued to drive. Eventually, Appellant pulled over. Warner testified that Johnson handed Appellant a handgun and said that Appellant "was going to have to shoot the officer." The trooper got out of his car, told them to get out their car, and then Appellant "discharge d the firearm out the window." Warner testified that there was a second firearm in the vehicle and that Johnson "tried to give it back to me and told me I was going to have to shoot. I refused." After the shots were fired, Appellant drove off. Appellant then gave the handgun to Johnson. They drove to a dead end, and Appellant turned the vehicle around. As they were turning, Johnson fired the handgun at Trooper Casares. Warner also testified that Johnson fired shots while they were on the interstate.
Warner stated that they abandoned the vehicle and jumped into a waiting car. He testified that they went to a residence and that police eventually arrived. Appellant took apart the handgun and hid it under a jukebox. Everyone else left the residence except for Warner, Johnson, and Appellant. When the SWAT team entered the residence, they found all three of them hiding in a closet.
In his first issue on appeal, Appellant challenges the sufficiency of the evidence. Specifically, Appellant contends that there was insufficient corroboration of Warner's accomplice testimony. Further, Appellant disputes that non-accomplice testimony showed that Appellant used the gun in a deadly manner or that the evidence was sufficient under a direct or party theory. We disagree with Appellant's analysis.
We review sufficiency of the evidence issues under the standard of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288-89 (Tex. App.—Eastland 2010, pet. ref'd). Under the Jackson standard, we review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). When conducting a sufficiency review, we consider all the evidence admitted at trial, including pieces of evidence that may have been improperly admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the factfinder's role as the sole judge of the witnesses' credibility and the weight their testimony is to be afforded. Brooks, 323 S.W.3d at 899. This standard accounts for the factfinder's duty to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319; Clayton, 235 S.W.3d at 778. When the record supports conflicting inferences, we presume that the factfinder resolved the conflicts in favor of the verdict and defer to that determination. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.
When, as in this case, the jury's verdict could have been based on the testimony of an accomplice, the sufficiency review must incorporate the accomplice witness rule stated in Article 38.14 of the Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005). In order to support a conviction based upon the testimony of an accomplice, there must be corroborating evidence that tends to connect the accused with the offense. Id.; Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008). In reviewing the sufficiency of the corroborating evidence, we eliminate the accomplice testimony from consideration and focus on the remaining portions of the record to determine whether there is any evidence that tends to connect the defendant with the commission of the crime. Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001); Cathey v. State, 992 S.W.2d 460, 462-63 (Tex. Crim. App. 1999). The corroborating evidence may be direct or circumstantial and need not be sufficient by itself to establish the defendant's guilt; it is sufficient if the combined weight of the non-accomplice evidence tends to connect the defendant to the offense. Solomon, 49 S.W.3d at 361; Gosch v. State, 829 S.W.2d 775, 777 (Tex. Crim. App. 1991). We review the corroborating evidence in the light most favorable to the verdict. Taylor v. State, 328 S. W.3d 574, 578 (Tex. App.—Eastland 2010, pet. ref'd). Once corroborated, testimony of an accomplice may be considered by the jury in the same manner as any other competent evidence. See Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim. App. 2002).
The jury was properly instructed that Warner was an accomplice witness and that it could not convict Appellant on the basis of his testimony, even if found to be credible, unless the testimony was corroborated by other evidence tending to connect Appellant with the commission of the attempted capital murder. See Smith v. State, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011) (an accomplice is a person who participated with the defendant before, during, or after the commission of the crime and acted with the required culpable mental state). Under the applicable standard of review, we are required to review the corroborating evidence in the light most favorable to the verdict. The most significant piece of corroborating evidence in this case is the video of the incident. The video shows Trooper Casares stop the vehicle and then, while Trooper Casares is walking up to the vehicle, shots are fired. Trooper Casares then ducks and runs back to his patrol car. A high-speed chase ensues. Gunshots are heard twice more throughout the chase.
While the video does not show Appellant inside the vehicle, the testimony of another non-accomplice witness, Felicia Diaz, placed Appellant inside the vehicle during the commission of the offense. Additionally, Appellant was found shortly after abandoning the vehicle with his codefendants. Thus, the non-accomplice evidence places Appellant inside the car from which shots had been fired at Trooper Casares at the time of the crime's commission and soon thereafter. See Smith v. State, 392 S.W.3d 190, 195 (Tex. App.—San Antonio 2012, pet. ref'd) (citing Brown v. State, 672 S.W.2d 487, 489 (Tex. Crim. App. 1984)) (non-accomplice testimony that places the defendant at or near the scene of the crime near the time of its commission is a factor that tends to connect the defendant to the crime and can corroborate an accomplice's testimony). Furthermore, a disassembled gun was found near their hiding place. Appellant also gave a false name upon his arrest. See Killough v. State, 718 S.W.2d 708, 711 (Tex. Crim. App. 1986). In this case, the jury could have rationally found that the corroborating evidence tended to connect Appellant to the attempted shooting of Trooper Casares. Malone, 253 S.W.3d at 258-59.
As to Appellant's argument that there was no evidence regarding the manner of the weapon's use to establish specific intent to murder, we disagree. In this case, the jury could have rationally found that the corroborating evidence tended to connect Appellant to the attempted capital murder of Trooper Casares. Therefore, we must include Warner's accomplice testimony in our review of the sufficiency of the evidence supporting Appellant's conviction. As noted previously, Warner testified that, as Trooper Casares approached their vehicle, Johnson handed Appellant a handgun and told Appellant that he "was going to have to shoot the officer." Subsequently, Appellant "discharged the firearm out the window" as Trooper Casares approached the car. Additionally, Trooper Casares testified that, when he heard the shots fired, he thought they were fired at him. Shots are heard multiple times during the video. Trooper Casares is seen ducking and running away from the vehicle after shots are fired. Viewing the evidence in the light most favorable to the verdict, a jury could have rationally found that the gun was used in a manner intended to murder Trooper Casares.
Appellant next contends that the evidence was insufficient, absent any accomplice testimony, to convict him based on the law of parties. We have already detailed above the corroborating evidence for the accomplice testimony. In this case, the jury could have rationally found that the corroborating evidence tended to connect Appellant to the attempted murder of Trooper Casares. Therefore, we hold that the evidence is sufficient to support Appellant's conviction. We overrule Appellant's first issue.
In his second issue, Appellant alleges that the trial court erred when it admitted testimony from a jailer regarding a conversation between the codefendants because the probative value was substantially outweighed by the danger of unfair prejudice. The complained of testimony is as follows:
Q. Can you tell the jury what was said?
A. Yes, ma'am. Wasn't an exact quote, but the best of my knowledge I could hear, "yes, we may have been in the car or fired a gun like they say, but how are they going to prove any of that? They didn't take no fingerprint analysis or gunshot powder analysis on either of us once we came in. They just now running the s**t and ain't nothing going to be on our hands now. If they wanted to pin something on us then they should have done all that when they first arrested us, not now. I need to tell my lawyer about all of that." That was Mr. Johnson in separation cell 5 directly to my right of the control room saying this. Then McDonald said, "real s**t, Cuz."
Appellant asserts that the admitted statement offered no probative value in the context of determining whether the State proved Appellant's guilt beyond a reasonable doubt. Appellant contends that the statement had the potential to impress the jury in an indelible way.
We review a trial court's ruling on admissibility of evidence for an abuse of discretion. See Coble v. State, 330 S.W.3d 253, 272 (Tex. Crim. App. 2010). We will uphold the trial court's decision unless it lies outside the zone of reasonable disagreement. Salazar v. State, 38 S.W.3d 141, 153-54 (Tex. Crim. App. 2001).
At trial, Johnson's counsel initially objected to the testimony as hearsay. The trial court overruled that objection as non-hearsay as it was an admission by a party-opponent. Johnson's counsel subsequently asserted that the testimony was "overly prejudicial." Appellant's counsel also asserted that "a statement that [Appellant] didn't make would be highly prejudicial to [Appellant]." The trial court overruled these objections. The trial court additionally granted Appellant's and Johnson's requests for running objections to the jailer's testimony.
Texas Rule of Evidence 403 provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay or needless presentation of cumulative evidence. TEX. R. EVID. 403; see Young v. State, 283 S.W.3d 854, 874 (Tex. Crim. App. 2009). A trial judge is presumed to engage in the required balancing test once Rule 403 is invoked. See Williams v. State, 958 S.W.2d 186, 195-96 (Tex. Crim. App. 1997) (citing Santellan v. State, 939 S.W.2d 155, 173 (Tex. Crim. App. 1997)). Our analysis under Rule 403 includes, but is not limited to, the following factors: (1) the probative value of the evidence, (2) the potential to impress the jury in some irrational yet indelible way, (3) the time needed to develop the evidence, and (4) the State's need for the evidence. Hernandez v. State, 390 S.W.3d 310, 324 (Tex. Crim. App. 2012); Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2006).
Appellant characterizes the jailer's statement as "a factually vague hypothetical complaining of the lack of forensic evidence and the desire to communicate that to a lawyer." He contends that, with respect to the case against him, it had "microscopic" probative value. We disagree.
Under Rule 403, it is presumed that the probative value of relevant evidence outweighs any danger of unfair prejudice. Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009). The admission by Appellant's codefendant in Appellant's presence that they were in the car and that they fired a gun was relevant because it made the likelihood that Appellant participated in shooting at Trooper Casares more probable. Additionally, the time needed to develop the evidence was brief, and it did not constitute the repetition of evidence that was already admitted. While the challenged evidence was prejudicial to Appellant, we do not believe that the evidence had a tendency to confuse or distract the jurors from the main issues in an irrational way. We conclude that the trial court's decision to admit the testimony was not outside the zone of reasonable disagreement. Accordingly, the trial court did not abuse its discretion when it admitted the jailer's testimony of Appellant's conversation with a codefendant. Appellant's second issue is overruled.
In his third issue, Appellant complains of the lack of a jury instruction regarding Johnson's status as an accomplice witness. We note at the outset that Appellant did not object at trial to the lack of an instruction regarding Johnson's accomplice status. Appellant alleges that he suffered egregious harm because the trial court failed to sua sponte give an accomplice witness instruction for Johnson's out-of-court statement made in the presence of the jailer. He contends that the lack of an accomplice instruction heightened the false impression of the value of Johnson's statement—the statement discussed in issue two.
When reviewing jury charge error, we first determine if error actually exists in the jury charge. See Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005); Johnson v. State, 227 S.W.3d 180, 182 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd). If we find error, we then determine whether it harmed Appellant. Ngo, 175 S.W.3d at 743. The degree of harm requiring reversal depends upon whether an objection was raised at trial. Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986). If Appellant did not make a proper objection at trial, he "will obtain a reversal only if the error is so egregious and created such harm that he 'has not had a fair and impartial trial.'" Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g).
The Code of Criminal Procedure provides: "A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense." CRIM. PROC. art. 38.14. Appellant contends that the lack of an accomplice instruction allowed the jury to consider Johnson's hearsay statement as evidence without requiring that it be corroborated and also allowed an accomplice (through Johnson's statement) to corroborate other accomplices.
In Bingham v. State, the Court of Criminal Appeals determined that an out-of-court statement made by an accomplice need not be corroborated and that only the in-court testimony of an accomplice must be corroborated. Bingham v. State, 913 S.W.2d 208, 211-13 (Tex. Crim. App. 1995). The court in Bingham noted the inherent reliability of an accomplice's out-of-court statement when it falls within an exception to the hearsay rule, stated the court's belief that the legislature "did not regard such statements with the same degree of suspicion as it did an accomplice witness who testifies in court," and effectuated legislative intent by "read[ing] Article 38.14 to embrace only the in-court 'testimony' of an accomplice." Id. at 211; see Archie v. State, 340 S.W.3d 734, 737 n.3 (Tex. Crim. App. 2011) (citing Bingham and stating that the testifying accomplice's "out-of-court statement did not itself have to be corroborated under Article 38.14"). Thus, Johnson's out-of-court statement was not testimony within the meaning of Article 38.14. Therefore, the trial court was not required to give an instruction regarding Johnson's accomplice status. We overrule Appellant's third issue.
In his fourth issue, Appellant alleges that he received ineffective assistance of counsel. Appellant contends that his trial counsel possibly provided ineffective assistance in two ways: (1) that trial counsel, to some extent, failed to object to the admission of Johnson's statement on the ground we addressed in the second issue and (2) that trial counsel failed to request a jury instruction regarding Johnson's accomplice status as we addressed in the third issue.
To determine whether Appellant's trial counsel rendered ineffective assistance at trial, we must first determine whether Appellant has shown that counsel's representation fell below an objective standard of reasonableness and, if so, then determine whether there is a reasonable probability that the result would have been different but for counsel's errors. Wiggins v. Smith, 539 U.S. 510 (2003); Strickland v. Washington, 466 U.S. 668 (1984); Andrews v. State, 159 S.W.3d 98 (Tex. Crim. App. 2005); Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999). We must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance, and Appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Strickland, 466 U.S. at 689; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690.
An allegation of ineffective assistance must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 814. Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking as to overcome the presumption that counsel's conduct was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Rarely will the record on direct appeal contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation. Id. In this case, the record is silent as to the reasoning behind trial counsel's actions and decisions as no motion for new trial was filed.
The Court of Criminal Appeals has said that "trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective." Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). If trial counsel did not have an opportunity to explain his actions, we will not find deficient performance unless the challenged conduct was "so outrageous that no competent attorney would have engaged in it." Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). We note at the outset of our analysis that Appellant did not file a motion for new trial. Accordingly, the appellate record does not contain an explanation from trial counsel concerning his actions.
Appellant's first sub-issue concerns the possibility that trial counsel failed to preserve error on the contention that the admission of Johnson's statement was unduly prejudicial. However, we have determined that trial counsel did in fact preserve error. Accordingly, trial counsel's performance did not fall below an objective standard of reasonableness in this regard.
Appellant next asserts that trial counsel was ineffective in failing to request a jury instruction pertaining to Johnson's status as an accomplice witness. To demonstrate deficient performance based on the failure to request a jury instruction, a defendant must show that he was entitled to the instruction. Washington v. State, 417 S.W.3d 713, 726 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd); see Fuentes v. State, 991 S.W.2d 267, 272 (Tex. Crim. App. 1999). As discussed in issue three, Appellant was not entitled to an accomplice witness instruction under Article 38.14 for Johnson's out-of-court statement. Accordingly, trial counsel's representation did not fall below an objective standard of reasonableness. We overrule Appellant's fourth issue.
This Court's Ruling
We affirm the judgment of the trial court.
JOHN M. BAILEY
JUSTICE January 21, 2016 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.