Dunnington, Clarence Dannel ( 2015 )

itio-ts
No.
ORIGINAL
IN THE
COURT OF CRIMINAL APPEALS
RECEIVED IN
OF TEXAS COURT OF CRIMINAL APPEALS
DEC 04 2015
Abel Acosta, Clerk
CLARENCE DANNEL DUNNINGTON
APPELLANT
vs.
COURT OF CRIMINAL APPEALS
STATE OF TEXAS
Abel Acosta, Clerk
PETITION IN CAUSE No. 296-80895-2013
FROM THE 296th DISTRICT COURT OF COLLIN COUNTY, TEXAS
AND APPEAL No. 05-14-00127-CR
FROM THE COURT OF APPEALS FOR THE FIFTH COURT
OF APPEALS DISTRICT OF TEXAS
PETITION FOR DISCRETIONARY REVIEW
ORAL ARGUMENT REQUESTED
Clarence Dannel Dunnington
#1909127
Robertson Unit
12071 F.M. 3522
Abilene, Texas 79601
PRO SE
IDENTITY OF PARTIES AND COUNSEL
Pursuant to TEX. R. APP. P 38.1(a), the parties to this suit are as follows:
1. Appellant - Clarence Dannel Dunnington
2. Appellate Attorney for Appellant
Heather J. Barbieri
Barbieri Law Firm, P.C.
SBOT 24007298
1400 Gables Court
Piano, Texas 75075
3. Trial .Attorney for Appellant
Richard Franklin
SBOT 07378600
Robbie McClung
SBOT 00789772
100 Highland Park Village
Suite 200
Dallas, Texas 75205
4. Prosecutors
By and through Greg Willism Collin County District Attorney
John Rolater, Assistant District Attorney
Collin County Courthouse
2100 Bloomdale Road, Suite 100
McKinney, Texas 75071
5. Trial Judge
Collin County Courthouse 296th
2100 Bloomdale Road
McKinney, Texas 75071
TABLE OF CONTENTS
IDENTITIES OF PARTIES AND COUNSEL 1
TABLE OF CONTENTS ii
INDEX OF AUTHORITIES iii
WORD COUNT ,iv
STATEMENT REGARDING ORAL ARGUMENT .... 1
STATEMENT OF CASE 1
STATEMENT OF PROCEDURAL HISTORY 1
GROUND FOR REVIEW . 1
The Court of Appeals erred when it held there was sufficient
evidence to prove Appellant was guilty under the Law of Parties
when it did not properly consider in its opinion that there was
neither direct nor circumstancial evidence to prove that Appellant
was acting with intent to promote or assist the commission of
the offense, and that he solicited, encouraged, directed, aided,
or attempted to aid another person, to commit the offense.
ARGUMENT 2
PRAYER FOR RELIEF 4
CERTIFICATE OF SERVICE 5
APPENDIX . , 5
11
INDEX OF AUTHORITIES
CONSTITUTION
U.S. Const. Amend. 14th
STATUTES
Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979)
Tex. Penal Code Ann. § 7.01(a) (Vernon 2003)
Tex. Penal Code Ann. § 7.02(a)(2) (Vernon 2003)
Tex. Penal Code Ann. §19.02(b)(1) (Vernon 2003)
Tex. Penal Code Ann. §19.03(a)(2) (Vernon 2003)
Tex. Penal Code Ann. §36.06(a)(1) (Vernon 2003)
CASES
Dewberry-v-State, 4 S.W.3d 735 (Tex. Crim. App. 1999)
Jackson-v-Virginia, 443 U.S. 307 (1979)
Matson-v-State, 819 S.W.2d 839 (Tex. Crim. App 1991)
Moreno-v-State, 775 S.W.2d 866 (Tex. Crim. App 1988)
Nelson-v-State, 405 S.W.3d 113 (Tex. App - Houston 2013)
Perry-v-State, 977 S.W.2d 847 (Tex. App - Houston 1998)
Temple-v-State, 390 S.W.3d 341 (Tex. Crim. App 2013)
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TO THE COURT OF CRIMINAL APPEALS OF TEXAS:
Clarence Dannel Dunnington petitions this Honorable Court to
review the judgement affirming his conviction for Capital Murder in Cause
No. 296-80895-2013.
STATEMENT REGARDING ORAL ARGUMENT
The Appellant, Clarence Dannell Dunnington, requests oral argument
before the Court of Criminal Appeals of Texas, because oral argument will
assist the Court in determining whether the Court of Appeals erred when it
determined that petitioner did not carry his burden to show thattfihe trial
courts denial of his sufficiency challenge was clearly erroneous.
STATEMENT OF THE CASE
The Appellant was charged by indictment with the offense of Capital
Murder for Retaliation./ A jury convicted him under the Texas Penal Code
§ 19.03(a)(9) (C.R. 1-84). Appellant was sentenced to LIFE without Parole
in the Texas Department of Corrections and no fine. The Court of Appeals for the
5th Court of Appeals District of Texas affirmed the judgement and sentence
on August 31st, 2015 in an opinion not desianated for publication.
STATEMENT OF PROCEDURAL HISTORY
A three Justice panel of the Court of Appeals rendered its opinion
on August 31st, 2015. Dunnington-v-State, 05-14-00127-CR (Tex. App - Dallas
August 31st, 2015, pet. filed)(mem. op. not designated for publication).
Subsequently petitioner filed a motion for an extention of time which the
Court of Criminal Appeals extended his time to file a petition for discretio
nary review to November 30, 2015. PD-1170-15. He files this petition timely
in concurrance with this date.
GROUND FOR REVIEW
The Court of Appeals erred when it held there was sufficient
evidence to prove Appellant was Guilty under the Law of Parties when it did
not properly consider in its opinion that there was neither direct nor circum
stantial evidence to prove that Appellant was acting with intent to promote
or assist the commission of the offense, and that he solicited, encouraged,
directed, aided, or attempted to aid another person to commit the offense.
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ARGUMENT
REASON FOR GRANTING REVIEW:
The Court of Appeals affirmed Appellants sufficiency claim holding
that "based on the totality of the evidence, a jury could have reasonably
concluded, beyond a reasonable doubt, that Appellant was guilty as a party
to the murder of Velasquez." (CO.A. op. pg 8); In respects to this decision,
petitioner argues this finding did not consider lack of evidence relevant
to support states claim, that Appellant acted within intent to promote or
assist the commission of the offense, and that he solicited, encouraged,
directed, aided, or attempted to aid another person to commit the murder
of Velasquez.
Under the law of parties, "[a] person is criminally responsible
as a party to an offense if the offense is committed by his own conduct,
by the conduct of another for which he is criminally responsible, or by both."
Tex, PENAL CODE ANN. § 7.01(a)(Vernon 2003). A person is "criminally respons
ible" for an offense committed by the conduct of another if, acting with
intent to promote or assist the commission of the offense, he solicits, encou
rages, directs, aids, or attempts to aid the other person to commit the offense.
Id. § 7.02(a)(2).
A person commits "retaliation" if he intentionally or knowingly
harms or threatens to harm another by an unlawful act in retaliation for,
or on account of, the service or status of another as a public servant, witness
prospective witness, informant, or person who has reported or who the actor
knows intends to report the occurance of a crime. TEX. PENAL CODE ANN. §
36.06(a)(1).
Appellants focus is on the Law of Parties, the Court of Appeals
completely ignored that not person or gunman identified Appellant as a party
to the offense, the Court of Appeals acknowledges the retaliation, (CO.A.
op. pg 6) but not the law of parties under TEX. PENAL CODE ANN. § 7.01(a)
(Vernon 2003). Id. § 7.02(a)(2).
THE SALIENT FACTS
This petition conserns a sufficiency claim at petitioners trial.
Therefore the statement of facts in this petition will limit itself only
to the facts salient to this ground for review. At petitioners trial state
argues Appellant acted with intent to promote or assist a third-party gunman
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in the intentional murder of Jessica Velasquez. In determining the sufficiency
of the evidence, the reviewing court considers all evidence in the light
most favorable to the jury's verdict and determines whether any rational
trier of fact could have found the essential elements of the crime beyond
a reasonable doubt. Jackson-v-Virginia, 443 U.S. 307, 319 (1979). The petitio
ner argues that the State lacked the evidence to present said offense to
the jury,: while the State relies on case law cited out of Temple-v-State;
when the record supports conflicting inferences, the Court presumes that
the jury resolved the conflicts of the verdict and defers to that determination.
Temple-v-State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). The Petitioner
argues that the record lacks support because the alleged gunman was never
presented at trial which is not petitioners sole claim pertaining to the
sufficiency as stated in Perry-v-State, 977 S.W.2d 847, 850 (Tex. App - Houston
1998, no pet.); but the lack of direct evidence comports to the claim petitio
ner brings forth. Respectfully the Court of Appeals claim, "the State is
not required to present evidence of the specific acts or statements that
constitute participation in an offense." (CO.A. op. pg 6) According to the
law of parties TEX. PENAL CODE ANN. § 19.02(b)(1) (Vernon 2003) and according
to "retaliation" read in TEX. PENAL CODE ANN. § 36.06(a)(1) a person must
have "Intentionally" knowledge, of the cause, he must promote or assist in
the commission of the offense. In reviewing the legal sufficiency of the
evidence, the Appellate Court's duty is not "to disregard, realign, or weigh
evidence. This the fact finder has already done." Moreno-v-State, 755 S.W.2d
866, 867 (Tex. Crim. App. 1988), The Appellate.Court may reverse the verdict
only if that verdict is irrational or unsupported by the evidence. Matson
-v-State, 819 S.W.2d 839, 843 (Tex. Crim. App). Also both the State and Court
of Appeals cites Nelson-v-State to show petitioners guilt. (CO.A. op. pg
6). In Nelson-v-State 405 S.W.3dll3, 125-126; the defendant "had knowledge
about the complainant's death that only someone involved in the murder could
have had."
THE COURT OF APPEALS HOLDING
The Court of Appeals held that "the State presented sufficient
evidence to allow the jury to reasonably make this finding", "We conclude
based on the totality of the evidence, a jury could have reasonably concluded
beyond a reasonable doubt, that Appellant was guilty as a party to the murder
of Velasquez."
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THE STATE DID NOT PROVIDE SUFFICIENT EVIDENCE TO SHOW
PETITIONER INTENTIONALLY WITH KNOWLEDGE OF THE CAUSE,
PROMOTE OR ASSISTED IN COMMISSION OF SAID OFFENSE.
The Court of Criminal Appeals has consistently held the Appellates
Court duty is not to realign or re-evaluate the weight and credibility of
the evidence and substitute its judgment for that of the fact finder. Dewberry
-v-State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); Moreno-v-State, 755 S.W.2d
866, 867 (Tex. Crim. App. 1988). In both these cases the duty was for them
to weigh the evidence not be the 13th juror, the State clearly presented
evidence with no direct admonishment from the petitioner nor any other witness
or co-defendant. The State along with the Court of Appeals used cumulative
evidence to bring upon the petitioner none of which shows any intentional
actions taken by petitioner to commit said offense.
In the instant case the Court of Appeals only answers petitioners
claim by piecing it together as a "puzzle" to show petitioners guilty something
in which the jury has done. Respectfully the Courts detoured from actually
answering his claim, petitioner reinterates the States sole issue is that
the petitioner "promoted, solicited, encouraged, directed, aided, or attempted
to aid another person to commit the offense" Id § 7.02(a)(2). All without
showing he intentionally aided in committing this act. However, where as
in this case, the Court of Appeals reviews a case without considering all
the relevant evidence or lack thereof it should remand the cause for a new
factual determination which takes into account all such material or lack
thereof.
PRAYER FOR RELIEF
For the reasons here in alleged, the Court of Appeals erred in
overruling appellants sole error in Appeal No. 05-14-00127-CR. Therefore,
Appellant prays this Honorable Court grant this petition, order briefing
and upon reviewing the judgment entered be loss, reverse the judgment of
of the Court of Appeals and remand this case to the Court of Appeals for
review consistent with this Court's holding.
Respectfully Submitted,
Clarence Dannel Dunnington
#1909127
Robertson Unit
12071 FM 3522
Abilene, TX 79601
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CERTIFICATE OF SERVICE
I hereby certify that, pursuant to Rule 9.5 and 68.11 of the
Texas Rules of Appellate Procedure, a true and correct copy of the above
and foregoing petition for discretionary review has been sent to John Rolater,
Coling County D.A Office, 2100 Bloomingdale Road, Suite 100, McKinney, Texas,
75071 and sent to State prosecuting attorney, P.O Box 13046, Austin Texas
on this day of 2015.
Clarence Dannel Dunnington
Pro Se
APPENDIX
Opinion of the Court of Appeals for the Fifth Court of Appeals District of
Texas, Clarence Dannel Dunnington, No. 05-14-00127-CR (Tex. App - Dallas
August 31st 2015, pet. filed) (mem. op., not designated for publication)
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FILE COPY
Chief Justice Lisa Matz
Carolyn Wright Clerk of the Court
(214)712-3450
Justices theclerk@5th.txcourts.gov
David L. Bridges
Molly Francis Gayle Humpa
Douglas S. Lang Business Administrator
Elizabeth Lang-Miers (214)712-3434
Robert M. Fillmore gayle.humpa@5th.txcourts.gov
Lana Myers Court of Appeals
David Evans Facsimile
David Lewis
jfiftJ) Btstrtct of dexag at ©alias (214)745-1083
Ada Brown
600 Commerce Street, Suite 200
Craig Stoddart Internet
Bill Whitehill Dallas, Texas 75202 www.txcourts.gov/5thcoa.aspx
David J. Schenck (214)712-3400
August 31, 2015
Heather J. Barbieri Greg Willis
Attorney at Law Collin County District Attorney
5600 Tennyson Pkwy Ste 205 2100 Bloomdale Rd., Ste. 20004
Piano, TX 75024-3605 McKinney, TX 75071-8313
* DELIVERED VIA E-MAIL * * DELIVERED VIA E-MAIL *
RE: Court of Appeals Number: 05-14-00127-CR
Trial Court Case Number: 296-80895-2013
Style: Clarence Dannel Dunnington
v.
The State of Texas
Please find attached the opinion that issued in the above cause today.
Respectfully,
/s/ Lisa Matz, Clerk of the Court
cc: The Honorable Mary L. Murphy (DELIVERED VIA E-MAIL)
Andrea Stroh Thompson (DELIVERED VIA E-MAIL)
The Honorable John Roach Jr. (DELIVERED VIA E-MAIL)
Libby Joy Lange (DELIVERED VIA E-MAIL)
AFFIRM; and Opinion Filed August 31,2015.
In The
Court of Appeals
ifitfth. Btstrtct nf Qtexas at Dallas
No. 05-14-00127-CR
CLARENCE DANNEL DUNNINGTON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 296th Judicial District Court
Collin County, Texas
Trial Court Cause No. 296-80895-2013
MEMORANDUM OPINION
Before Chief Justice Wright, Justice Brown, and Justice Stoddart
Opinion by Justice Brown
A jury convicted Clarence Dannel Dunnington of capital murder. The State's theory of
guilt was that appellant, acting as a party, participated in the victim's murder in retaliation for her
providing information to police that resulted in appellant's arrest. In a single issue, appellant
asserts the evidence is legally insufficient to support his conviction. For the following reasons,
we affirm.
On December 14, 2011, Jessica Velasquez was shot and killed on a residential street in an
old and close-knit neighborhood in Piano, Texas, known as the "Douglas Community."
Velasquez was twenty-three years' old at the time of her death. She suffered from bi-polar
disorder, had drug problems, and sometimes engaged in prostitution for drugs and money.
Appellant was one of the dealers who supplied her. He lived in Wylie, Texas, but had close ties
to the Douglas Community, where his grandmother lived, and he was known as "Rabbit."
On December 10, 2011, a few days before she was murdered, Velasquez and her
boyfriend Paul Lankfort rented a motel room at a Motel 6. Appellant had also rented a room at
the motel and supplied Velasquez drugs throughout the night. The following morning, Detective
Jake Wicker was conducting surveillance of the motel. He observed Velasquez exit her motel
room, knock on appellant's door a few rooms down, and enter. She emerged about an hour later
and returned to the room she shared with Lankfort. Wicker knocked on Velasquez's door and
asked her why she had gone to appellant's room. She appeared "high," but denied doing any
drugs. But she also told Wicker she had seen drugs in appellant's room. Wicker then knocked
on appellant's door, told appellant he had information there were drugs in his room and
questioned him about the woman who had just left. Wicker also asked for consent to search.
Appellant consented to the search, and police found crack cocaine, a pistol, a ski-mask, two cell
phones and $410 in cash. Appellant was arrested and booked into jail.
Two days later, and one day before the murder, appellant was released from jail. He went
to the home of Mary Walker who lived in the Douglas Community. Walker testified at trial that
appellant was "pissed off," cursed Velasquez, complained that "bitch" got him "arrested," and
said when he saw her he was "going to run over her, back up, and run over her again."
The next day, Velasquez got into a car with Octavio Reyna-Rivera, a man she did not
know. Reyna-Rivera testified at trial that he agreed to help Velasquez find drugs. Velasquez
directed him to Walker's house. Walker was angry with Velasquez for snitching on appellant,
but she and her boyfriend Marcus Hernandez agreed to make some calls and find drugs for
Velasquez. They used Reyna-Rivera's phone to do so. Phone records show one of the numbers
called was to a Nokia phone. The State presented comprehensive evidence showing appellant
used that phone to conduct his drug business. For example, evidence showed this was the phone
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number Velasquez used to contact appellant during the Motel 6 incident, and it was also the
phone number Hernandez told police he used to contact appellant.'
Although they called appellant's cell phone, they also called another drug dealer who
agreed to bring Velasquez drugs. After the drugs arrived, Velasquez and Reyna-Rivera went to a
parking lot where Velasquez smoked the crack. When she was done, she wanted more. In an
effort to find more cocaine, she began making calls on Reyna-Rivera's phone. Reyna-Rivera
testified Velasquez was not dialing, but just hitting redial, and he could hear only one side of the
conversation. Reyna-Rivera's cell phone records show Velasquez was also receiving incoming
calls. The phone records show one of those incoming calls came from the Nokia phone
appellant used to conduct his drug business, a number Velasquez had not dialed. After speaking
on the phone, Velasquez told Reyna-Rivera that she had found someone who would give her
drugs for free. Reyna-Rivera took Velasquez to meet this man. He was the last person
Velasquez spoke to on Reyna-Rivera's phone.
When they found him, Velasquez did not appear to know the man. Nevertheless, he got
into Reyna-Rivera's car. The man told them he did not have the drugs with him, but directed
them to where they could get them. When they arrived at the location to get the drugs, the man
got out of the car and immediately shot Velasquez several times at close range.
Reyna-Rivera fled into a nearby home. The gunman followed, shooting at Reyna-Rivera
and also at the homeowner. After the gunman fled the scene, Reyna-Rivera returned to
Velasquez, who was dead. His cell phone was gone.
After Velasquez used the Nokia phone number to contact appellant during the night of the Motel 6 incident, he was arrested with two
phones, one a Nokia phone, the other his personal LG phone. When he was jailed, he asked his girlfriend, Jessica Cook, to pick up the Nokia
phone and deliver it to a known drug dealer. Upon his release, appellant immediately called the Nokia phone from his personal cell phone. Cell
tracking information showed the two phones soon thereafter started "traveling together."
Witnesses saw two cars flee the scene after the shooting. One fit the description of
Reyna-Rivera's vehicle and the other was a light-colored vehicle with a square back which fit the
description of appellant's Ford Fusion.
Almost immediately after the shooting, Velasquez's boyfriend Lankfort received a call
from "Shay," another local drug dealer who knew Velasquez. Shay told Lankford Velasquezhad
been killed for being a snitch. Shay also told Lankford where he could find Velasquez's body.
Lankfort then went to the scene, where he told police about Shay's call.
Police discovered that Velasquez, just three days prior, had given police information that
led to appellant's arrest. Police had also received anonymous phone tips that "Rabbit" and
"Cagan" had been involved in a murder.
The State also provided evidence, through phone records, that showed appellant was in
possession of the Nokia phone used by the gunman shortly before the murder. Specifically,
about an hour before the murder, texts were exchanged between the Nokia phone and Susan
Mounsey, a woman with whom appellant had a sexual relationship, but was otherwise without
ties to appellant's associates or the Douglas Community.
The State also presented "cell phone tracking" evidence, specifically evidence from
which the location of a cell phone could be determined. That evidence showed that both the
phone the gunman used and appellant's personal cell phone were in the vicinity of the murder
when it occurred and that both phones then "traveled" to Wylie, Texas, immediately after the
murder. The State further showed the Nokia phone was later found in a search of appellant's
residence after his arrest for this offense.
After hearing the evidence, thejury was instructed in accordance with the law of parties,
and found appellant guilty of capital murder. In his sole issue, appellant contends the evidence is
legally insufficient to showhe was guilty as a party to Velasquez's murder.
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When reviewing the sufficiency of the evidence, we consider all of the evidence in the
light most favorable to the verdict to determine whether, based on that evidence and the
reasonable inferences therefrom, the jury was rationally justified in finding guilt beyond a
reasonable doubt. Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013); see Jackson v.
Virginia, 443 U.S. 307, 318-19 (1979). The jury is the sole judge of the credibility of the
witnesses and the weight to be given their testimony. Temple, 390 S.W.3d at 360. The jury may
draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319.
When analyzing the sufficiency of the evidence, we "determine whether the necessary
inferences are reasonable based upon the combined and cumulative force of all the evidence
when viewed in the light most favorable to the verdict." Clayton v. State, 235 S.W.3d 772, 778
(Tex. Crim. App. 2007). A jury may draw multiple reasonable inferences as long as each
inference is supported by the evidence (direct or circumstantial) presented at trial. Hooper v.
State, 214 S.W.3d 9, 16 (Tex. Crim. App. 2007).
As applicable to this case, a person commits capital murder if he intentionally or
knowingly causes the death of an individual and intentionally commits the murder in the course
of committing or attempting to commit retaliation. Tex. Pen. Code Ann. §§ 19.02(b)(1),
19.03(a)(2) (West 2011). A person commits retaliation if he intentionally or knowingly harms or
threatens to harm another by an unlawful act in retaliation for a person providing information to
police about an offense. See Tex. Pen. Code Ann. § 36.06(a)(1) (West 2011); see also Morrow
v. State, 862 S.W.2d 612, 614-15 (Tex. Crim. App. 1993).
A person is criminally responsible for an offense committed by the conduct of another if,
acting with intent to promote or assist the commission of the offense, he solicits, encourages,
directs, aids, or attempts to aid the other person to commit the offense. Id. § 7.02(a)(2); see
Patterson v. State, 950 S.W.2d 196, 202 (Tex. App.—Dallas 1997, pet. ref d). In reviewing the
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sufficiency of evidence under the law of parties, we consider "events occurring before, during
and after the commission of the offense and may rely on actions of the defendant which show an
understanding and common design to do the prohibited act." Guevara v. State, 152 S.W.3d 45,
49 (Tex. Crim. App. 2004). Each fact need not point directly and independently to the guilt of
the appellant, as long as the cumulative effect of all the incriminating facts are sufficient to
support the conviction. Id. Circumstantial evidence alone may be used to prove that a person is
a party to an offense. Powell v. State, 194 S.W.3d 503, 506 (Tex. Crim. App. 2006); Beardsley
v. State, 738 S.W.2d 681, 684 (Tex. Crim. App. 1987); Wygal v. State, 555 S.W.2d 465 (Tex.
Crim. App. 1977).
According to appellant, the State failed to prove his guilt because it did not present
evidence showing "what actions" he took that amounted to "soliciting, encouraging, directing,
aiding or attempting to aid the unknown gunman." But the State is not required to present
evidence of the specific acts or statements that constitute participation in an offense. See, e.g.,
Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004); Nelson v. State, 405 S.W.3d 113,
125-126 (Tex. App.—Houston 2013, pet. ref d). Instead, the question is whether the jury could
reasonably find, beyond a reasonable doubt, based on the collective force of all of the evidence
presented, whether appellant was a participant in Velasquez's murder and knew he was assisting
in the offense. Guevara, 152 S.W.3d at 50. We conclude the State presented sufficient
evidence to allow the jury to reasonably make this finding.
Velasquez, who was generally known to be a sweet, but troubled young woman, was
murdered just days after she gave police information that led to appellant's arrest. Motive is a
significant circumstance indicating guilt. Guevara, 152 S.W.3d at 50. Moreover, the day before
she was killed, appellant had made threats to harm Velasquez, blaming her for his arrest. On the
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day she was killed, the gunman, using appellant's phone, lured Velasquez with promises of free
drugs and then gunned her down.
Cell phone tracking information showed both the Nokia phone used by the gunman and
appellant's personal cell phone were in the area where the murder occurred. The cell phone
tracking information also showed that immediately after the murder, the cell phones traveled to
Wylie, where appellant resided. Further, a car matching the description of appellant's was seen
fleeing the scene. Finally, the phone used by the gunman was later found in a search of
appellant's bedroom.
Additionally, when appellant heard he was a suspect in this offense, he contacted police
in an effort to exonerate himself. He told them he was in Wylie, Texas, with his girlfriend
Jessica Cook at the time of the murder. However, cell phone data from his personal phone, an
LG phone appellant told police was always with him, showed appellant was not in Wylie at that
time. Cell phone evidence also showed appellant was calling and texting Cook from his personal
cell phone in this same time period when he claimed to be with Cook. Cook testified at trial, and
attempted to provide appellant with an alibi, but she acknowledged that they would not have
needed to text or talk on the phone if she and appellant had been together. Attempts to conceal
incriminating evidence and giving false statements to authorities are also probative of wrongful
conduct and circumstances of guilt. Id.
Court of Appeals
Jfffftlj district of Qtexas at Ballas
JUDGMENT
CLARENCE DANNEL DUNNINGTON, On Appeal from the 296th Judicial District
Appellant Court, Collin County, Texas
Trial Court Cause No. 296-80895-2013.
No. 05-14-00127-CR V. Opinion delivered by Justice Brown. Chief
Justice Wright and Justice Stoddart
THE STATE OF TEXAS, Appellee participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 31st day of August, 2015.
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