Marvin Andre Jones v. State of Texas ( 2002 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Marvin Andre Jones

Appellant

Vs.                   No.  11-01-00233-CR -- Appeal from Dallas County

State of Texas

Appellee

The jury convicted appellant of capital murder, and the trial court assessed his punishment at confinement for life.  We affirm.

There is no challenge to the sufficiency of the evidence.  Linda Marie Duncan testified at trial that her daughter, Semetria Latrice Colbert, and her five-year-old granddaughter, Alexus Shavon Lee, lived at 4202 Copeland in Dallas and that appellant was Semetria=s boyfriend.  On July 29, 2000, Duncan talked to Semetria, and Semetria said that she was going to babysit.  Duncan called Semetria later that night, but was unable to reach her. Duncan went to Semetria=s house around midnight, but she did not see anyone there.  Duncan used her key to try and open the front door.  While she was trying to open the door, it Apopped open@ and appellant was there.   Appellant said that Semetria had gone to babysit.

Duncan testified that she went to bed and that she called Semetria=s house the next morning. Appellant said that he had not heard from Semetria.  Duncan called the police.  Duncan and her husband went to Semetria=s house, but no one was there.  Duncan used her key to enter the house.  Duncan testified that some of the furniture had been moved and that some carpet was cut out in Semetria=s bedroom. Appellant later arrived at the house. Duncan was able to stop a police officer who was driving by, and she took the officer into the house to show him the things that were disturbed.

Ryan Mangrum testified that on July 29, 2000, he was at appellant=s house on Copeland working on cars and that Semetria and Alexus were also there.   Mangrum said that that afternoon, Semetria came outside and asked to use the car.   Appellant told Semetria that she could not use the car, and the two got into an argument. Mangrum testified that appellant and Semetria were in the house arguing when he heard a loud Apop.@ Mangrum went inside to get a tool, and he saw appellant with a gun in his hand and Semetria=s legs Ahanging out from the bedroom.@ Appellant later came outside and told Mangrum, AYou didn=t see nothing or you didn=t hear nothing.@  Later that evening, Mangrum saw appellant moving a trash can, and an arm was hanging out of the trash can.   Mangrum said that appellant=s friend, Rita Webster, arrived at the house that night.  Webster went into the house with appellant, and later she and appellant left together.

Mangrum further testified that that night Alexus came to the door and asked for her mother. Appellant told Alexus to go back inside.  Appellant went into the house. Mangrum went into the house shortly thereafter and saw appellant holding a limp Alexus in his arms.  Mangrum never heard Alexus again.  Mangrum stayed at the house all night sleeping outside in a chair.  The next morning appellant asked Mangrum to help him move a couch and take a piece of carpet outside.  Mangrum then went home.  Appellant later called Mangrum to come back.  Mangrum returned  to appellant=s house where he was arrested for outstanding warrants.

Webster testified that she and appellant were involved in a Asexual@ relationship and that on July 29, 2000, he Apaged@ her to come over between 6:00 and 7:00 p.m.  Webster arrived at appellant=s house around 8:00 p.m. Appellant told Webster that Semetria was Ain the trash can dead.@  Appellant backed the car up to the fence, and called for Webster. Webster went to appellant, and he pulled the trash can over to the car.  Webster testified that Semetria=s body was in the trash can.  Webster helped appellant put the body into the trunk of the car.  Webster said that she and appellant went to the park and dumped Semetria=s body.

Officer Paul Burbulys with the Dallas Police Department testified that he was dispatched to Keeton Park in Dallas where a worker had discovered a body.  The police found Semetria=s body behind some trees in the park, and the body was missing one shoe.  Officer Burbulys testified that Semetria=s body had a Alittle silver band on her head@ and Aa sticker...like you put on fruit@ on her cheek.  Semetria died from a gunshot wound to her back.

Officer Dennis Craig with the Dallas Police Department testified that while he was on patrol, Duncan approached his car and told him that her daughter and granddaughter were missing.  Duncan asked Officer Craig to come into the house because she wanted to show him things in the house that were Adifferent.@  Officer Craig accompanied Duncan into the house and observed that part of the carpet was missing in the bedroom.  Officer Craig asked everyone to leave the house, and he called other officers to the scene.  Outside of the house, the officers found a trash can that contained the body of Alexus as well as other household trash.   Dr. Jennie Duval performed an autopsy of Alexus and determined that she died as a result of blunt head trauma.  Dr. Duval stated that Alexus had a very severe skull fracture that indicated she was struck with the amount of force that is usually seen when someone is involved in a motor vehicle accident.

In his first, second, and third issues on appeal, appellant argues that the trial court erred in  Adenying [his] request to remove the jury charge paragraph, charging the first paragraph of the indictment, because there was no evidence that the two females were murdered during the >same criminal transaction.=@     The charge authorized the jury to convict appellant of capital murder if they found that appellant caused the death of Semetria by shooting her with a firearm, and during the same criminal transaction, caused the death of Alexus by striking her with or against an object. In the alternative, the charge authorized the jury to convict appellant of capital murder if they found that appellant caused the death of Semetria, and during a different criminal transaction but pursuant to the same scheme or course of conduct, caused the death of Alexus.  The jury returned a general verdict finding appellant guilty of capital murder.

The Court of Criminal Appeals has interpreted the phrase Asame criminal transaction@ to mean "a continuous and uninterrupted chain of conduct occurring over a very short period of time...in a rapid sequence of unbroken events." Jackson v. State, 17 S.W.3d 664, 669 (Tex.Cr.App.2000); Rios v. State, 846 S.W.2d 310, 311‑12 (Tex.Cr.App.1992), cert. den=d,  507 U.S. 1051 (1993);  Vuong v. State, 830 S.W.2d 929, 941 (Tex.Cr.App.), cert. den=d,  506 U.S. 997 (1992).  If the evidence supports the rational inference that both victims were killed in the same criminal transaction, we will not disturb the jury's verdict.  Heiselbetz v. State, 906 S.W.2d 500 (Tex.Cr.App.1995).

Mangrum testified that Semetria asked to use the car which led to the argument with appellant sometime between 4:00 and 5:00 p.m.  Mangrum stated that he heard a Aloud pop,@ that he went into the house and saw appellant with a gun and Semetria=s legs hanging out of the bedroom, and that sometime later appellant came outside. Appellant then went back into the house and Mangrum did not see him again until Aclose to dark.@  Webster arrived at the house around 8:00 p.m.; and she and appellant took Semetria=s body out of the trash can, placed it in the trunk of the car, and dumped the body in the park.  Mangrum heard Alexus ask for her mother after Webster arrived, saw Alexus limp in appellant=s arms, and then did not hear her again that night.

            The record shows that both victims were killed at the same residence within hours of each other.  Appellant killed Semetria in the late afternoon, arranged for the disposal of her body, and then killed Alexus sometime after 8:00 p.m. and disposed of her body in the trash can.  There is some evidence to show that appellant caused the deaths of Semetria and Alexus in the same criminal transaction.  See Coble v. State, 871 S.W.2d 192 (Tex.Cr.App.1993), cert. den=d, 513 U.S. 829 (1994).

Moreover, any error in charging the jury that appellant committed the murders as part of the same criminal transaction was harmless.  Appellant objected to the jury charge; and, therefore, reversal is required if the error is calculated to injure the rights of the defendant, which means no more than that there must be some harm to the accused from the error. Ovalle v. State, 13 S.W.3d 774, 786 (Tex.Cr.App.2000);  Almanza v. State, 686 S.W.2d 157, 171 (Tex.Cr.App.1985).  In other words, properly preserved error will require reversal so long as the error is not harmless.  Ovalle v. State, supra.  In reviewing charge error, the actual degree of harm must be assayed in light of the entire jury charge; the state of the evidence, including the contested issues and weight of probative evidence; the argument of counsel; and any other relevant information revealed by the record of the trial as a whole.  Ovalle v. State, supra; Almanza v. State, supra. The "some harm" test does not mandate reversal on a showing of possible harm but, rather,  requires that appellant establish actual harm. Medina v. State, 7 S.W.3d 633, 643 (Tex.Cr.App.1999), cert. den=d, 529 U.S. 1102 (2000).

The jury was also authorized to find appellant guilty of capital murder if they found that he caused the deaths of Semetria and Alexus pursuant to the same scheme or course of conduct.  Because the jury returned a general verdict of guilty, we cannot determine upon which theory appellant was convicted.  The record shows that appellant and Semetria were arguing, that Semetria was shot in the back, and that appellant placed her body in the trash can before taking the body to the park.  Alexus asked appellant where her mother was sometime later that night.  Then appellant went inside with her, and her body was later found in the trash can. We find that appellant has not shown that he was harmed by the jury instruction because the jury was authorized to convict appellant if they found he committed the murders pursuant to the same scheme or course of conduct.  The evidence supports a finding of guilt on that theory.  Appellant=s first, second, and third issues on appeal are overruled.

In his fourth, fifth, and sixth issues on appeal, appellant contends that the trial court erred in denying his request for a jury instruction pursuant to TEX. CODE CRIM. PRO. ANN. art. 38.23 (Vernon Pamph. Supp. 2002).  Article 38.23 provides that evidence obtained by an officer in violation of the United States Constitution or Texas Constitution shall not be admitted as evidence.  Article 38.23 also states that:

In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.

Appellant argues that the initial search of his house was illegal because Officer Craig did not have valid consent to search when he first arrived at the scene.

Officer Craig testified that Duncan flagged him down and said that her daughter and granddaughter were missing.  Duncan told Officer Craig that she wanted to show him some things in the house that were disturbed.  Officer Craig accompanied Duncan into the house.  Appellant was on the front porch at this time, and he did not talk to Officer Craig or contact Officer Craig.  Officer Craig stated that he did not know Duncan was not the owner of the house.  Officer Craig believed that Duncan owned the house and allowed Semetria to live there.  Officer Craig said that appellant later signed a consent to search the residence.

Appellant was entitled to an Article 38.23 instruction only if the evidence raised a fact issue concerning whether the evidence was obtained in violation of the United States Constitution, Texas Constitution, or any other laws.   Bell v. State, 938 S.W.2d 35, 48 (Tex.Cr.App.1996), cert. den=d,  522 U.S. 827 (1997).  When the essential facts concerning a search or arrest are not in dispute, the legality of the search or arrest is a question of law, not fact.  Campbell v. State, 492 S.W.2d 956, 958 (Tex.Cr.App.1973). There is no factual dispute concerning the search of the residence.  Officer Craig believed that Duncan had authority to consent to the search of the house.  When the Officers learned that appellant had authority to consent to the search, they received a written consent to search from him.  The trial court did not err in denying appellant=s request for an Article 38.23 instruction.  Appellant=s fourth, fifth, and sixth issues on appeal are overruled.

In his seventh issue on appeal, appellant complains that he received ineffective assistance of counsel.  In order 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. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.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.  Stafford v. State, 813 S.W.2d 503, 508-09 (Tex.Cr.App.1991).

Appellant specifically argues that his trial counsel was ineffective for Afailing to locate appellant=s alibi witness.@  The trial court held a hearing on appellant=s second motion for new trial.  At that hearing, appellant introduced an affidavit from John Allen, Sr. which stated that on July 29, 2000, he was with appellant for about three or four hours playing pool beginning at 4:30 or 5:00 p.m.  The affidavit also stated that no attorneys or investigators had contacted him about appellant=s case and that he would have appeared for trial if subpoenaed.  Appellant introduced an affidavit from his trial counsel that stated he hired David Wells, a private investigator, to assist him with trial preparation.  Appellant=s trial counsel further stated in his affidavit that appellant gave Wells a list of potential witnesses prior to trial.  Appellant=s trial counsel relied upon Wells to locate witnesses who might be beneficial for trial.

Wells testified at the motion for new trial that he met with appellant about four times at the jail. Wells received a list of witnesses from appellant=s mother.  Allen=s name was on the list. Wells stated that he left messages on a recording for Allen because he did not have a physical address. Wells and appellant=s trial counsel met with appellant to obtain Allen=s address. Appellant did not have Allen=s physical address, but he told them that Allen ran a pool hall. Wells went to the area, but could not find a pool hall.  He again spoke with appellant who then said it was not a pool hall, but a mechanic shop.  Wells still did not have a physical address.  He went to the mechanic shop, and there were some men working on cars.  He left information with these men for Allen to contact him.  Wells never received any response from Allen.

The record shows that appellant=s trial counsel, through his investigator, made a diligent effort to contact Allen. Moreover, Allen=s affidavit indicates he would testify he was with appellant  for several hours during the evening of July 29, 2000.  Appellant presented testimony at trial that he was with Mangrum and Webster during that time.  There was also testimony from Kenneth Singleton that he went to appellant=s house at 4:30 p.m. and stayed until 7:00 p.m.  Therefore, Allen=s testimony would have conflicted with testimony presented at trial.  Appellant has not shown that he received ineffective assistance of counsel.  Appellant=s seventh point of error is overruled.

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.