Francisco Rodriguez Chacon v. State ( 2008 )

NO. 07-07-0029-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

FEBRUARY 14, 2008

______________________________

FRANK CHACON,

                                                                                                 Appellant

v.

THE STATE OF TEXAS,

                                                                                                 Appellee

_________________________________

FROM THE 47^TH DISTRICT COURT OF RANDALL COUNTY;

NO. 17,290-A; HON. HAL MINER, PRESIDING

_______________________________

Memorandum Opinion

_______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

          Frank Chacon was convicted of murder. He appeals that conviction by contending 1) he was improperly convicted by accomplice witness testimony for which there was no corroboration, and 2) the evidence was legally and factually insufficient to sustain the verdict. We disagree and affirm the judgment.

          Background

          Appellant was part of a drug selling operation in Amarillo which operation was headed by Craig Kimberlin. Other members of that operation included Josh Stocker, Josh Bledsoe, Destry Keeling, and Michael Elliston. In 2002 and 2003, Kimberlin’s group was experiencing problems created by Dustin Pool, the head of a rival drug operation. Pool was believed to have been the informant for a police raid that was conducted at Kimberlin’s house and was threatening Bledsoe who was the drug supplier for Kimberlin’s group. At a meeting at Stumpy’s lounge in February 2003, Bledsoe suggested that he could hire someone to kill Pool for $10,000. Another meeting concerning the Pool problem also took place at Kimberlin’s residence. Thereafter, on March 9, 2003, Stocker, on his own initiative, requested that a woman, Tori Patrick, lure Pool to her apartment. When Pool arrived in the early morning hours of March 10, Stocker and his brother attacked Pool with a fireplace poker. Stocker then called Kimberlin and told him he had Pool.

          Kimberlin arrived at the apartment and called Elliston, who owned a place in the country referred to as “the farm.” Kimberlin asked Elliston to bring a box to the apartment that was big enough to hold a body. When Elliston arrived, Pool was placed in a refrigerator box and transported to Elliston’s farm where he was taken to the second floor of Elliston’s workshop. Stocker beat Pool during the course of the afternoon. Later, appellant, Kimberlin, and Bledsoe arrived. Over a number of hours, Pool was beaten, tortured, and had a sock stuffed in his mouth and his face duct taped. It is believed that he died sometime in the early morning of March 11 from blunt force trauma to the head and/or asphyxiation. Several days later, appellant, Kimberlin, and Keeling buried the body in concrete at an abandoned grain silo.

          

          Accomplice Witness Testimony

          Appellant initially claims that there is no non-accomplice corroboration of his involvement in the murder. We overrule the issue.

          A conviction may not rest upon the testimony of an accomplice unless that testimony is corroborated by other evidence tending to connect the defendant to the offense. Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005). The other evidence need not directly link the accused to the crime or establish his guilt beyond a reasonable doubt. McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997). It need only tend to connect him to the offense. Id. at 613. In addition, “tending to connect” has been interpreted as “to serve, contribute or conduce in some degree or way . . . to have a more or less direct bearing or effect,” and while not contemplating conjecture, “has a tendency to prove the averments in the indictment.” Holladay v. State, 709 S.W.2d 194, 198 (Tex. Crim. App. 1986), quoting Boone v. State, 235 S.W. 580 (Tex. Crim. App. 1922); In re C.M.G., 905 S.W.2d 56, 58 (Tex. App.–Austin 1995, no pet.). Furthermore, each case must be decided upon its own facts and circumstances. Martinez v. State, 163 S.W.3d 92, 94 (Tex. App.–Amarillo 2005, no pet.).  

          Appellant’s own statement appears in the record before us. In that statement, he admits to being present at a meeting where 1) the group spoke about the trouble Pool was causing them and 2) one participant brought up the subject of hiring someone to kill Pool for $10,000. The statement further reveals that appellant traveled to the scene of the murder with Kimberlin, remained abreast of the conduct surrounding the disposition of Pool’s body once Pool died, heard one of his compatriots say that if he “‘got bust [sic] we were all going down,” went to the Home Depot to buy concrete and a trash can for water, and ultimately helped bury Pool’s body in cement so it could not be found. While this alone may not establish appellant’s guilt for murder it does tend to connect him to the crime. See Rule v. State, 890 S.W.2d 158, 170 (Tex. App.–Texarkana 1994, pet. ref’d) (finding the evidence sufficient to connect Rule to the murder because he was present at the murder scene, helped dispose of the body and murder weapon and attempted to flee).

          Sufficiency of the Evidence

          Next, appellant challenges the sufficiency of the evidence to sustain his conviction. We overrule this issue as well.

          The standards by which we make such determinations are well known. We refer the parties to Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) and Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006) for an explanation of the same.           The medical examiner opined that Pool died from blunt force injuries and asphyxia and that either one alone could have caused Pool’s death. Pool had a skull fracture that included both a calvarial fracture and a basilar fracture which could have resulted from multiple blows. The basilar fracture would have required a force much stronger than for the simple linear fracture on top of the head. Furthermore, the injury could have been exacerbated by continued blows to the head.

          Appellant argues that he was not a part of the kidnaping and not responsible for the blow to Pool’s head from the fireplace poker, therefore leaving suffocation as the only possible means of murder by him. Nevertheless, it is undisputed that Pool was alive for a considerable length of time after his initial head injury. Moreover, there was evidence from Bledsoe that appellant struck Pool in the head with pliers when Pool was at the farm. Since Pool could have died as a result of the trauma to his head alone and there is evidence that appellant struck him in the head at the farm and/or encouraged Kimberlin to do so, a rational jury could have found beyond a reasonable doubt that appellant was guilty of murder and such a finding after a review of the entire record does not undermine our confidence in the verdict. It is true that many of the witnesses gave multiple statements to police and lied in some of those statements. However, it was for the jury to resolve any conflicts in the evidence and determine which witnesses and what parts of their stories to believe. Simply put, the evidence is legally and factually sufficient to support the conviction.

          We overrule appellant’s issues and affirm the judgment of the trial court.

 

                                                                           Brian Quinn

                                                                          Chief Justice

Do not publish.

 

           

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NO. 07-09-0377-CR

 

IN THE COURT OF APPEALS

 

FOR THE SEVENTH DISTRICT OF TEXAS

 

AT AMARILLO

 

PANEL E

 

AUGUST 5,  2010

 

 

THE STATE OF TEXAS, APPELLANT

 

v.

 

TY KELLY GARDNER, APPELLEE

 

 

 FROM THE COUNTY COURT AT LAW NO. 2 OF POTTER COUNTY;

 

NO. 124935; HONORABLE PAMELA COOK SIRMON, JUDGE

 

 

Before QUINN, C.J., CAMPBELL, J., AND BOYD, S.J.[1]

 

 

MEMORANDUM OPINION

 

 

            In this appeal, the State of Texas presents three issues which, it contends, demonstrate that the trial court reversibly erred in quashing the information.  In the first count of the two-count indictment, Ty Kelly Gardner (herein Gardner) was charged with intentionally, knowingly, or recklessly causing bodily injury to Charity Cravy (Cravy), at the time a member of Gardner’s household, by striking her with his hand or with a vehicle door.  In the second count, he was charged in identical language except for the allegation that Cravy was a member of his household.  The information was subsequently amended to change the date of the alleged offense but was without any other change.  For reasons we later state, we reverse the order of the trial court and remand the cause for further proceedings.

            In pursuing its appeal, the State presents three issues for our decision:  1) what is the proper standard of review of a trial court order quashing an information,  2) was the information with which this appeal is concerned specific enough to inform the defendant of the accusation against him, and 3) are the two acts alleged in the information separate offenses?  Because its decision is determinative of this appeal, we will proceed directly to consider the third issue.

            Initially, because it is a question of law, we review the sufficiency of a charging instrument de novo.  State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004).  In doing so, we must first determine if the information here in question gave adequate notice of the alleged criminal conduct.  If we find that notice sufficient, our inquiry is ended. However, if we determine the notice was insufficient, we must then determine if, in the context of the case, the lack of notice had an impact on the defendant’s ability to prepare a defense, and finally, if it did, how great the impact was.   Adams v. State, 707 S.W.2d  900, 903 (Tex. Crim. App. 1986). 

              The gist of appellee’s motion to quash was that his fifth, sixth, and fourteenth amendment rights were denied by the “failure of the [i]nformation to allege an essential element of the offense, namely what specific object was used to strike Charity Cravy.” Section 22.01 of the Texas Penal Code provides that “[a] person commits an offense if the person . . . intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse.”  Tex. Penal Code Ann. §22.01(a)(1) (Vernon Supp. 2009).  In instances in which the charging instrument alleges, in a single count, two separate offenses arising under the same penal code provision, the jury must agree on which offense it finds the defendant committed. Jefferson v. State, 189 S.W.3d 305, 311 (Tex. Crim. App. 2006); Dolkart v. State, 197 S.W.3d 887, 892 (Tex. App.–Dallas 2006, pet. ref’d).  Thus, it is necessary to identify the essential elements or gravamen of an offense and the alternate modes of its commission, if any there be.  Pizzo v. State, 235 S.W.3d 711, 714 (Tex. Crim. App. 2007).  This can be best accomplished by diagramming the statutory text according to proper grammar rules.

            As the Pizzo court noted, “the essential elements of an offense are, at a minimum: 1) ‘the subject (the defendant)’; 2) ‘the main verb’; 3) ‘the direct object if the main verb requires a direct object (i.e., the offense is a result-oriented crime’; [4] ‘the specific occasion’; and [5] the requisite mental state.”  Id. at 714-15.  Furthermore, the court opined, “[t]he means of commission or nonessential unanimity elements are generally set out in ‘adverbial phrases’ that describe how the offense was committed” and, it further reasoned, “[s]uch phrases are commonly preceded by” the preposition “by.”  Id. Moreover, the transitive verb indicates the prohibited conduct about which the jury must be unanimous.   See White v. State, 208 S.W.3d 467, 468 (Tex. Crim. App. 2006) (citing Jefferson v. State, 189 S.W.3d at 314 (Cochran, J. concurring)).  The unanimity requirement is not violated when the jury has the option of choosing between alternative modes of commission of the offense. Pizzo v. State, 235 S.W.3d at 715.  Thus, different modes of commission of an offense may be stated in a jury instruction if the charging instrument alleges the different means of committing an offense in the conjunctive.  Id.  Moreover, when the acts and commission all involve the same injury to the same complainant during the same transaction with the same level of culpability, dispensing with jury unanimity does not violate due process.  Jefferson v. State, 189 S.W.3d at 313.

            In this case, the State alleged that appellant (the subject) committed an assault (the verb) by either striking the victim (the direct object) with his cast, his arm, or with the car door (the “adverbial phrase”).  That being so, the State did allege an offense and included alternate ways by which it could have been committed.  Thus, the trial court erred in granting the motion to quash the information.

            Accordingly, we must, and do hereby, reverse the trial court dismissal order and remand the cause for further proceedings.     

 

                                                                                    John T. Boyd

                                                                                    Senior Justice

Do not publish.

 

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[1]John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.  Tex. Gov=t Code Ann. '75.002(a)(1) (Vernon 2009).