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11th Court of Appeals
Eastland, Texas
Opinion
D=Angelo Taylor
Appellant
Vs. No. 11-01-00380-CR B Appeal from Dallas County
State of Texas
Appellee
The jury convicted appellant of capital murder. TEX. PENAL CODE ANN. ' 19.03 (Vernon 1994). Because the State did not seek the death penalty, appellant was sentenced to confinement for life. TEX. PENAL CODE ANN. ' 12.31 (Vernon 1994). We affirm the conviction.
Background Facts
Cory Jones, an accomplice, testified that around 9 or 10 p.m. on May 4, 2000, appellant had noticed a woman sitting in a green Explorer. Appellant told Jones that he wanted to Ahit a lick,@ meaning commit a robbery. Appellant walked to the Explorer, pulled out a gun, and tapped the driver=s side window with the gun. Appellant demanded money from the driver, the victim. The victim told appellant that she did not have any money. Appellant forced the victim into the backseat of the Explorer and drove away. Jones rode in the backseat with the victim. Appellant drove to a secluded place and switched places with Jones. Jones drove the car while appellant sexually assaulted the victim. Appellant switched seats with Jones and drove to a secluded spot. Appellant bound the victim=s arms behind her back with her shirt. Appellant then pulled the victim out of the vehicle and shot her in the head. Appellant and Jones dumped the victim=s naked body over a railing and covered it with a piece of plywood lying nearby.
Later that night, appellant and Jones met two friends, and they all went to a restaurant. One of the friends, Richard Allen Wilson, noticed blood on appellant=s shoes. Wilson asked appellant about the blood on his shoes, and appellant told him that they had Ajacked the woman that had the Explorer,@ that he also had had sex with the woman, and that he had shot her in the head. After eating, the four drove to Jones=s sister=s house. Appellant drove alone in the Explorer; and Wilson, Jones, and a fourth person drove in another vehicle. While Jones and the others went into the house, appellant drove the Explorer down a side road. Later, appellant ran into the house with burns on his body and clothes. Appellant told them that he had burned the Explorer on the train tracks.
Early the next morning, the police received a call regarding a vehicle on the railroad tracks. The police found the burning Explorer. On May 6, the police received an anonymous call regarding the location of a body. The police investigated and found the victim=s naked body with a gunshot wound to the head. The victim=s arms had been bound behind her back with a shirt.
The police, while investigating an unrelated crime, arrested Jones who told police that he and appellant committed the murder in question. Wilson, who was also arrested with Jones, gave the police his statement and told them where appellant lived. Later, the police arrested appellant. After appellant=s indictment, the police obtained several search warrants. One of the warrants was to search appellant=s father=s apartment. The police recovered a pair of bloodstained tennis shoes from the apartment. The tennis shoes belonged to appellant. The police later matched the blood on the tennis shoes to the victim=s DNA. The police subsequently obtained a search warrant to obtain a DNA sample from appellant. Appellant=s DNA matched the sample from the rape examination performed on the victim. At the time of the offence, appellant was 16 years old, and Jones was 17 years old.
Appellant presents ten points of error on appeal. The first seven points challenge the validity of two search warrants. The eighth and ninth points of error contend that the trial court erred by admitting crime scene photographs into evidence. The last point contends that the trial court abused its discretion in admitting the testimony of Jones.
The Apartment Search Warrant
Appellant lived with his father in the apartment where his bloodstained tennis shoes were found. Appellant complains in his first point that the evidence collected pursuant to the search warrant of the apartment should be excluded under TEX. CODE CRIM. PRO. ANN. art. 38.23 (Vernon Pamph. Supp. 2002) because it was illegally obtained under the Fourth and Fourteenth Amendments of the United States Constitution and under Article I, Section 9 of the Texas Constitution. Appellant contends that: (1) probable cause contained in the affidavit was obtained by an unlawful warrantless search; (2) the affidavit did not reflect sufficient probable cause; (3) the issuing judge was not a magistrate authorized to issue a search warrant pursuant to TEX. CODE CRIM. PRO. ANN. art. 2.09 (Vernon Supp. 2002); (4) the police exceeded the authority of the warrant; and (5) the allegations contained in the warrant were either intentionally false or were made with reckless disregard for the truth. We shall address each contention in turn.[1]
The affidavit consisted of six paragraphs, and the information contained in it arises from the police investigation and from the voluntary statements given by Wilson and Jones to the police. There is no evidence in the record to support appellant=s assertion that the information in the affidavit was obtained as a result of an unlawful warrantless search.
Appellant=s second complaint regarding the affidavit supporting the warrant for the search of the apartment is that the warrant was issued illegally because it failed to reflect sufficient probable cause. More specifically, appellant alleges that the affidavit failed to state sufficient underlying circumstances from which a conclusion could be drawn that the evidence was at the location alleged and that the affidavit failed to show the basis for believing that the informant was credible or reliable.
Probable cause exists where the police have reasonable trustworthy information sufficient to warrant a reasonable person to believe that a particular person has committed or is committing an offense. Guzman v. State, 955 S.W.2d 85, 87 (Tex.Cr.App.1997). The determination of the existence of probable cause concerns the factual and practical considerations of everyday life on which reasonable and prudent people, not legal technicians, act. Guzman v. State, supra. Probable cause deals with probabilities and requires more than mere suspicion but far less evidence than is needed to support a finding by a preponderance of the evidence. Whether the facts alleged in a probable cause affidavit sufficiently support a search warrant is determined by examining the totality of the circumstances. Ramos v. State, 934 S.W.2d 358, 362-63 (Tex.Cr.App.1996). The allegations are sufficient if they justify the conclusion that the object of the search is probably on the premises. Ramos v. State, supra. The magistrate is permitted to draw reasonable inferences from the facts and circumstances alleged, and reviewing courts should accord great deference to the magistrate=s determination. Ramos v. State, supra.
The affidavit showed that the basis for the search was facts obtained from the police investigation of the offense, including statements by co-defendant Jones and witness Wilson. The statements made by Jones and Wilson included details of the offense that corroborated each other=s statements and what the police already knew about the case. The affidavit showed that Jones admitted to the police that he and appellant abducted the victim and that appellant shot the victim in the head. The affidavit also showed that Wilson saw appellant and Jones driving the victim=s Explorer and that Jones admitted to Wilson that the Explorer belonged to the victim. The affidavit showed how the police found the victim=s body and the victim=s burned Explorer. The affidavit stated that appellant was arrested at the apartment in question.
Jones=s participation in the offense for which the warrant was issued did not diminish his credibility. See Janecka v. State, 937 S.W.2d 456, 464 (Tex.Cr.App.1996). On the contrary, the Court of Criminal Appeals has held that a statement by a source that includes an admission of wrongdoing in the offense is indicative of credibility. Janecka v. State, supra. We believe that these facts were sufficient for the magistrate to conclude that there was probable cause to believe that appellant had murdered the victim and that the evidence sought would be found where appellant was residing.
Appellant=s third complaint regarding the validity of the search of the apartment is that the issuing judge was not a magistrate authorized to issue a search warrant pursuant to Article 2.09. Article 2.09 states:
Each of the following officers is a magistrate within the meaning of this Code: The justices of the Supreme Court, the judges of the Court of Criminal Appeals, the justices of the Courts of Appeals, [and] the judges of the District Court.
The search warrant for the apartment was signed by District Judge Manny Alverez of the Criminal District Court No. 5. Pursuant to Article 2.09, Judge Alverez was authorized to issue the warrant. Appellant=s fourth complaint regarding the validity of the search of the residence is that the officers exceeded the scope of the warrant by seizing items not listed on the warrant. The warrant specifically included Abloodied clothes, shoes.@ The record does not contain any reference to any other items seized. The only evidence from the search used in the trial was the bloodstained shoes. The police did not exceed the scope of the search warrant.
Appellant=s last complaint regarding the validity of the search of the residence is that the allegations contained in the warrant were either intentionally false or were made with reckless disregard for the truth. Appellant does not list which allegations contained in the warrant were either false or were made with reckless disregard for the truth, and we cannot find any allegations in the affidavit supporting the warrant that are inconsistent with the record.
We overrule appellant=s points of error relating to the apartment search warrant.
Search Warrant for DNA
Three search warrants were issued to seek a sample of appellant=s DNA. The first warrant sought a buccal swab. Appellant filed a motion to suppress, alleging that the affidavit supporting the warrant contained false statements and resulted in an illegal seizure of evidence. The State then prepared a second warrant, seeking another buccal swab, that did not contain the allegations complained of in the first warrant. The second buccal swab was inconclusive; therefore, a third warrant was issued seeking a blood sample. The results of the blood sample were ultimately used at trial. The evidence from the first and second warrants was not used at trial. At the hearing on the motion to suppress, appellant contended that the subsequent warrants and evidence obtained thereby were tainted as fruit of the Apoisonous tree.@ The trial court denied appellant=s motion.
Appellant=s complaint about the initial warrant for a buccal swab is that: (1) it was not based upon probable cause; (2) the affiant knowingly and intentionally, or with reckless disregard for the truth, included false statements in the affidavit in support of the search warrant; and (3) the affidavit omitted critical information to any probable cause determination. Appellant=s only complaint about the second and third warrant is that they are Afruit of the poisonous tree.@
As to probable cause, the affidavit stated that appellant had been arrested and indicted by the grand jury for the murder of the victim. Seminal fluid had been recovered from her body during the autopsy and rape examination. A sample of appellant=s DNA was being sought to compare with the DNA from the seminal fluid as well as the DNA from the bloodstained tennis shoes obtained from the search of appellant=s residence. Given this information and making a realistic and common sense interpretation of the affidavit and the reasonable inferences that could be drawn from it, we hold that the magistrate did not err in finding that the affidavit showed probable cause to support the warrant to take a DNA sample from appellant. See State v. Anderson, 917 S.W.2d 92, 96-98 (Tex.App. B Houston [14th Dist.] 1996, pet=n ref=d).
Appellant=s second point about the warrant to collect a DNA sample complains that the affiant knowingly and intentionally, or with reckless disregard for the truth, included false statements in the affidavit in support of the search warrant, making the affidavit misleading. Citing Franks v. Delaware, 438 U.S. 154 (1978), appellant argues that information must be excluded from the affidavit because: (1) the affidavit listed the wrong cause number and (2) the autopsy report did not mention anything about sexual assault or seminal fluid being recovered. Appellant points out that the affidavit states in part:
I have personally conducted a post arrest investigation into the May 6, 2000 Capital Murder, which suspect Dangelo Taylor has been indicted in Cause No. F00-71708, styled The State of Texas vs. Dangelo Taylor.
It is undisputed that Cause No. F00-71708 is unrelated to appellant. However, we hold that the cause number in this context is immaterial and that its removal would not impact the finding of probable cause. See Janecka v. State, supra at 464 (holding that misstatements of the dates that information was obtained were immaterial and not within the purview of Franks v. Delaware, supra). Appellant also complains that the autopsy report did not mention anything about sexual assault or seminal fluid being recovered. Officer Tony Robinson stated in his affidavit in pertinent part:
I have also talked to and read the reports of Forensic Biologist Norma Garza and Forensic Lab Supervisor Dr. Tom Slider and have determined from them the following:
On May 7, 2000, an autopsy was performed by Dr. David Dolinak, M.D. and determined that the cause of death was the result of a gunshot wound to the head. The autopsy also disclosed that the complainant was sexually assaulted. Seminal fluid was recovered from the complainant=s body during autopsy and rape examination. On May 17, 2000, Norma Garza, a Forensic Biologist at SWIFS, processed the rape kit performed on the complainant. She confirmed seminal fluid was present. I personally spoke with Dr. Tim Slider, Phd. Supervisor of the Forensic DNA lab at SWIFS. He confirmed that seminal fluid analyzed by his department was determined to have come from a male and blood analyzed from the shoes to be that of human blood.
Officer Robinson=s affidavit was based on the reports and his conversations with the SWIFS[2] personnel. The autopsy report does not mention sexual assault or seminal fluid being recovered, but the report does mention a rape examination. The affidavit clearly stated that SWIFS personnel recovered seminal fluid. The affidavit is materially correct and is not misleading.
Appellant=s last complaint about the search warrant for a DNA sample is that the affidavit deliberately omitted information that there was another suspect, Jones, who was charged with the offense. This point was not presented to the trial court; therefore, it was waived. However, even if the point was not waived, it is not relevant. Appellant is arguing that probable cause would not exist if the affidavit stated that Jones and appellant both participated in the offense. Including a statement that Jones admitted participating in the offense with appellant would not reduce but enhance the finding of probable cause. See Janecka v. State, supra at 464. Appellant=s points of error regarding the DNA search warrant are overruled.
Photographs
In Points of Error Nos. 8 and 9, appellant argues that photographs of the victim should have been excluded under TEX.R.EVID. 403. The photographs showed the victim=s naked body from several angles as she appeared after the piece of plywood covering her was removed. Two of the photographs showed the victim=s body from the back after she had been turned over to reveal the way her arms had been restrained. The photographs accompanied Officer William R. Knoble=s testimony.
The admission of photographs is within the sound discretion of the trial court. Ramirez v. State, 815 S.W.2d 636, 646-47 (Tex.Cr.App.1991). The trial court=s decision whether to admit or exclude evidence in the face of an objection under Rule 403 will not be reversed unless the trial court abused its discretion. Santellan v. State, 939 S.W.2d 155, 169 (Tex.Cr.App.1997); Montgomery v. State, 810 S.W.2d 372, 389-91 (Tex.Cr.App.1991). Photographs are generally admissible when verbal testimony as to the matters depicted in the photographs is also admissible. Emery v. State, 881 S.W.2d 702, 710 (Tex.Cr.App.1994), cert. den=d, 513 U.S. 1192 (1995); Hicks v. State, 860 S.W.2d 419, 426 (Tex.Cr.App.1993). Several factors may be considered in determining whether the danger of unfair prejudice substantially outweighed the probative value of the photographs, including the number of exhibits, their gruesomeness, their detail, their size, whether they are black and white or color, whether they are close-up, whether the body is naked or clothed, and the availability of other means of proof and the circumstances unique to each individual case. Chamberlain v. State, 998 S.W.2d 230, 237 (Tex.Cr.App.1999), cert. den=d, 528 U.S. 1082 (2000).
The photographs were used by Officer Knoble to explain how the body was found. The photographs also corroborated Jones=s testimony that the victim=s arms had been tied behind her back, that appellant and Jones covered her body with plywood, and that she had been shot. When the power of visual evidence Aemanates from nothing more than what the defendant has himself done,@ a trial court does not abuse its discretion merely because it admitted the evidence. Accord Sonnier v. State, 913 S.W.2d 511, 519 (Tex.Cr.App.1995).
The trial court did not abuse its discretion in admitting the photographs. Points of Error Nos. 8 and 9 are overruled.
Accomplice Testimony
Appellant=s tenth point of error asserts that the trial court erred by allowing Jones to testify because Jones=s testimony was motivated by the hope that it would cause the State to be more lenient in Jones=s case. Appellant contends that the testimony was inherently tainted and should have been excluded.
Accomplice testimony alone is insufficient to support a conviction and must be corroborated by other evidence tending to connect the defendant with the offense committed. TEX. CODE CRIM. PRO. ANN. art. 38.14 (Vernon 1979).
There is no doubt that Jones was appellant=s accomplice, and the jury was properly instructed as such. Jones=s testimony was corroborated by Wilson=s testimony and by the physical evidence used at trial. Wilson testified that he saw appellant and Jones driving the victim=s Explorer and that appellant told him that they Ajacked the woman that had the Explorer.@ The DNA test verified that appellant=s seminal fluid was found in the victim and that the victim=s blood was found on appellant=s tennis shoes. Jones testified, both during direct examination and cross-examination, about his motivation for testifying in this case. Jones testified that he currently did not have a deal with the State but that he hoped his testimony at appellant=s trial would help him.
Appellant=s tenth point of error deals solely with the credibility of the testimony at issue and, as such, was properly left to the consideration of the jury. Blake v. State, 971 S.W.2d 451 (Tex.Cr.App.1998). We overrule appellant=s tenth point of error.
This Court=s Ruling
The judgment of the trial court is affirmed.
TERRY McCALL
JUSTICE
November 14, 2002
Do not publish. See TEX.R.APP.P. 47.3(b).
Panel consists of: Arnot, C.J., and
Wright, J., and McCall, J.
[1]Appellant does not explain how the protection offered by the Texas Constitution differs from that of the United States Con-stitution. Therefore, we will not address the application of the Texas Constitution to appellant=s claims. Ramos v. State, 934 S.W.2d 358, 362 n.5 (Tex.Cr.App.1996); Johnson v. State, 853 S.W.2d 527, 533 (Tex.Cr.App.1992), cert. den=d, 510 U.S. 852 (1993).
[2]Southwestern Institute of Forensic Sciences.
Document Info
Docket Number： 11-01-00380-CR
Filed Date： 11/14/2002
Precedential Status： Precedential
Modified Date： 9/10/2015