David McLain Bailey v. State of Texas ( 2002 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

David McLain Bailey

Appellant

Vs.             No. 11-00-00356-CR  -- Appeal from Dallas County

State of Texas

Appellee

The jury convicted David McLain Bailey of the offense of attempted capital murder and assessed his punishment at confinement for 35 years.  We affirm. 

                                                                   Points of Error

In his first point of error, appellant contends that the evidence is legally and factually insufficient to show that he had the specific intent to commit capital murder.  In this point, appellant also argues that the non-accomplice testimony is insufficient to link him to the crime.  In the second point of error, appellant complains of errors in the jury charge.  In his final point, appellant argues that the trial court erroneously allowed inadmissible testimony into evidence. 

                                               Evidentiary Sufficiency and Corroboration

To determine if the evidence is legally sufficient, we must 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 essential elements of the crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000).  To determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence in support of a vital fact is so weak as to be clearly wrong and manifestly unjust or whether the finding of a vital fact is so contrary to the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.  Goodman v. State, ___ S.W.3d ___, No. 0120-00, 2001 WL 1472597 (Tex.Cr.App., November 21, 2001); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Cr.App.2000); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996).  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. TEX. CODE CRIM. PRO. ANN. art. 38.14 (Vernon 1979); Reed v. State, 744 S.W.2d 112 (Tex.Cr.App.1988).  To determine the sufficiency of the corroboration, we must examine the testimony of the non‑accomplice witnesses and determine if there is inculpatory evidence "tending to connect" appellant to the crime.  Reed v. State, supra at 127.  An accomplice witness need not be corroborated in all her testimony, and the corroboration need not directly link the accused to the crime or be sufficient in itself to establish guilt.  Reed v. State, supra. 

First, we note that appellant was found guilty as a party to the offense.  A person is guilty as a party if the offense is committed by his own conduct and/or by the conduct of another for which he is criminally responsible.  TEX. PENAL CODE ANN. ' 7.01 (Vernon 1994).  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 in the commission of the offense.  TEX. PENAL CODE ANN. ' 7.02(a)(2) (Vernon 1994).  If, during an attempt to carry out the planned conspiracy to commit one felony, another felony is committed: 

[A]ll conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.

TEX. PENAL CODE ANN. ' 7.02(b) (Vernon 1994).  Therefore, appellant himself need not have had the intent to kill the complainant. See, e.g., Fuller v. State, 827 S.W.2d 919, 932‑33 (Tex.Cr.App.1992), cert. den=d, 509 U.S. 922 (1993); Green v. State, 682 S.W.2d 271, 285‑86 (Tex.Cr.App.1984), cert. den=d, 470 U.S. 1034 (1985); Ruiz v. State, 579 S.W.2d 206, 209 (Tex.Cr.App.1979); Wood v. State, 4 S.W.3d 85 (Tex.App. - Fort Worth 1999, pet=n ref=d); Williams v. State, 974 S.W.2d 324, 330 (Tex.App. ‑ San Antonio 1998, pet=n ref'd), cert. den=d, 528 U.S. 908 (1999); Naranjo v. State, 745 S.W.2d 430, 433‑34 (Tex.App. ‑ Houston [14th Dist.] 1988, no pet=n); Flores v. State, 681 S.W.2d 94, 96 (Tex.App. ‑ Houston [14th Dist.] 1984), aff'd, 690 S.W.2d 281 (Tex.Cr.App.1985). 

The accomplice witness, Jennifer Renee Shurden, testified that she had entered an open plea of guilty to the offense of conspiracy to commit aggravated robbery in connection with the offense for which appellant was on trial.  Shurden testified that she had recently met appellant and the complainant and that she became involved in a plan to rob the complainant.  Shurden met appellant at Brandi Bobbitt=s apartment. This apartment was used as a hangout for a number of people to use and to sell drugs.  The night before the offense, several people who were involved in this offense were at Bobbitt=s apartment, including Shurden, appellant, the complainant, Bobbitt, Robert Adams, and Brenton Thomas Massey.  The complainant, Monte Sherrod, who was known as Sonny, was known to carry large sums of cash.  Shurden testified that Sonny had offered her $700 to leave Bobbitt=s apartment with him but that she declined. Shurden testified that Adams and Massey, appellant=s friends, were upset with Sonny because they thought he was involved in a drug deal in which they lost $3,500.  The next day, appellant returned to Bobbitt=s apartment with a backpack containing handguns and called Adams and Massey, who also came over.  After having a conversation in the bathroom, appellant, Adams, and Massey came out wearing rubber gloves and instructed Bobbitt and Shurden to clean the apartment of anything that could get them in trouble.  Before leaving, each decided which gun they wanted to take with them. Appellant subsequently returned to Bobbitt=s apartment and offered to take Shurden home.  Shurden left with appellant. Rather than taking her home, appellant took her to his apartment where they met Norman Chandler.  Appellant said that Chandler was going to have a talk with Sonny later about the money situation.  Appellant had a gun, and he gave Chandler two guns.  Later, they all went to another apartment where appellant and Chandler were still discussing taking Sonny=s money. Shurden testified that she wanted to leave and that she called Sonny to come get her.  Appellant and Chandler started saying that Athis was really going to happen.@  The plan was for Shurden to lure Sonny to the apartment and for her to go outside and get Sonny to stop so that they could Ado what they were going to do.@ Appellant stated that he could not go outside because Sonny would recognize him.  Shurden testified that Chandler was the gopher and that appellant was the motivating force behind the robbery.  According to Shurden, appellant told Chandler to go show Sonny the guns and get his money, basically to rob him at gunpoint.  When Sonny arrived, Shurden and Chandler met him in the parking lot.  Shurden tried to jump in the car and tell Sonny to take off, but Chandler shut the car door and told Shurden that he and Sonny needed to talk.  After she went back into the apartment, Shurden heard three or four gunshots and went into shock.  Appellant, who was also shocked by the shooting, grabbed Shurden and left. Chandler came running up to appellant=s car and wanted in.  Appellant hesitated but let him in.  Chandler, while smiling, said: AI shot him right between the eyes.@  Appellant asked Chandler why he shot him, and Chandler replied: A[B]ecause he was trying to get away.@  As they attempted to drive away, they were stopped by a police officer who questioned and released them when he failed to find any weapons. 

The jury was instructed that Shurden was an accomplice witness and that her testimony must be corroborated by other evidence tending to link appellant to the crime.  Other witnesses, including appellant himself, corroborated various parts of Shurden=s testimony. Appellant testified that he knew about Chandler=s and Shurden=s plan to rob Sonny, that he drove them to the location where the offense occurred, and that he drove them away from the scene.  Appellant also testified that he had informed them that he wanted nothing to do with their plan. 

Bobbitt testified that Adams, Massey, and appellant were good friends and that Adams and Massey were Aagitated@ with Sonny over the drug deal in which they were duped out of $3,500.  She overheard them commenting about taking Sonny=s money.  Bobbitt stated that, when appellant came to her apartment the next morning, he was angry and brought three or four handguns with him. Appellant, Adams, and Massey later congregated in Bobbitt=s bathroom, shut the door, and stayed in there for about two hours.  When they came out, they were wearing rubber gloves and wanted everything removed from the apartment with their name on it. Bobbitt did not know what was being discussed in the bathroom. 

David Johannes Black testified that he was at a friend=s apartment on the night of the shooting when appellant, Chandler, and Shurden arrived.  Black testified that Chandler had two pistols in his waistband and that Chandler and appellant were discussing getting money from someone when that person arrived at the apartments.  Black testified that Shurden called somebody on the phone who needed to get directions to the apartment.  While they were in the apartment, appellant had one of the guns and Chandler had the other.  They were conversing among themselves.  Black was afraid that something bad Awas going to go down.@ Black heard appellant telling Chandler that appellant could not go outside because the guy would not stop if he saw appellant.  Black testified that appellant seemed to be calling the shots and telling Chandler what to do.  Black also stated that appellant knew the guns were loaded, that he watched from the parking lot as Chandler went to meet the man in the parking lot, that appellant and Shurden looked shocked when they heard the shots, and that appellant gave Black a clip from a pistol to get rid of right after the shooting.  Black subsequently took police to the location where he had disposed of the evidence by throwing it from a bridge.  Police recovered a sock containing the bullets but did not recover the clip/magazine. 

An eyewitness who summoned police immediately after the shooting testified that, just prior to the shots, he had seen a man in the parking lot talking to a man in a car.  At trial, the witness=s description of the man in the parking lot matched Chandler.  Officer Mark Kostas was less than a block away from the scene and responded immediately.  He stopped a car as it was leaving the apartment complex.  Appellant was driving the car, and he had one male passenger and one female passenger.  All three were calm and cooperative.  Officer Kostas found no weapons in appellant=s car or on the occupants, so he released appellant and his passengers. 

Soon after releasing appellant and his passengers, police recovered two loaded .45 caliber semiautomatic pistols from the ground on the other side of a concrete wall that bordered the apartment complex.  The magazine was missing from one of the pistols. One of these pistols was identified as the weapon that fired the two shell casings found at the scene and also the bullet fragments found in the complainant=s car. The record also shows that the complainant was shot while sitting in his car.  He had an entrance wound in the side of his head and an exit wound in his forehead.  There was a large amount of blood at the scene.  The first officer to arrive at the scene where the complainant was located testified that the complainant was bleeding profusely and that he had bone and brain matter sticking out of his forehead. 

We hold that the non-accomplice evidence is sufficient to link appellant to the crime.  We also hold that the evidence is legally and factually sufficient to support the jury=s verdict. Even though the evidence shows that appellant was shocked when he heard the gunshots and that he himself had no intent to kill the complainant, the jury was instructed to find appellant guilty of the offense if it found that appellant acted as a party to the crime. The State introduced evidence showing that appellant planned to rob the complainant at gunpoint, that he supplied the guns used during the robbery to shoot the complainant, and that he knew the guns were loaded.  Appellant, therefore, should have anticipated that the complainant might have been shot and killed.  The evidence reflects that Chandler had the requisite intent to kill when he shot the complainant Aright between the eyes.@ Thus, the evidence is sufficient to support the jury=s verdict finding appellant guilty as a party to the offense of attempted capital murder. The first point of error is overruled.

                                                                     Jury Charge

In his second point, appellant argues that the jury charge erroneously allowed the jury to convict him without finding that he had the specific intent to kill and that some of the instructions to the jury were vague and confusing.  We note that appellant did not object to the jury charge.  Consequently, any error in the jury charge is reversible only if it was so egregious that appellant was denied a fair and impartial trial.  TEX. CODE CRIM. PRO. ANN. art. 36.19 (Vernon 1981); Almanza v. State, 686 S.W.2d 157, 171 (Tex.Cr.App.1985). 

The jury was instructed to find appellant guilty of the offense of attempted capital murder if it found that appellant, Chandler, and Shurden entered into a conspiracy to rob the complainant and that, in the course of carrying out the conspiracy, AChandler intentionally attempt[ed] to cause the death of [the complainant] by shooting [him] with a firearm, a deadly weapon.@  The trial court properly applied the law of parties under Section 7.02(b) by instructing the jury that it could find appellant guilty if Chandler had the requisite intent to kill.  See Montoya v. State, 810 S.W.2d 160, 164-65 (Tex.Cr.App.1989), cert. den=d, 502 U.S. 961 (1991). 

Appellant also contends that two portions of the jury charge were vague and confusing.  The first reads as follows: 

The following definition of Aintentionally@ applies to the portion of the application paragraph that requires you to determine whether Athe defendant did intentionally cause the death of@ the deceased. (Emphasis added) 

Although there was no Adeceased@ in this case, it seems evident that this passage referred to the intent to cause the death of the complainant. Furthermore, the definition that immediately followed the quoted passage properly defined the term Aintentionally.@  Appellant=s other complaint relates to the application paragraph where it stated: AChandler intentionally attempt to cause the death,@ rather than Chandler intentionally attempted or Chandler did intentionally attempt. Although both quoted portions of the jury charge contain error, the errors were not so egregious as to deny appellant a fair and impartial trial.  The second point of error is overruled. 

                                                     Admission of Hearsay Testimony

In his final point, appellant argues that the trial court erred by allowing the inadmissible hearsay testimony of Bobbitt and Black to be introduced at trial.  Appellant contends that the trial court erroneously found that Bobbitt and Black were coconspirators.  The trial court did not find that Bobbitt and Black were coconspirators but, rather, admitted the testimony as non-hearsay under TEX.R.EVID. 801(e)(2). The testimony of Bobbitt and Black, to which appellant objected, related to statements made by appellant and also statements made by appellant=s coconspirators during the course of and in furtherance of the conspiracy. Therefore, the trial court properly admitted the testimony under Rule 801(e)(2). 

Under this point, appellant also contends that the trial court erred in admitting Bobbitt=s testimony about the drug deal in which Massey and Adams were cheated out of their money because Massey was available to testify and did testify at trial. Appellant contends that, because Massey had Afirsthand knowledge@ of the Arip-off@/drug deal, Bobbitt should not have been allowed to testify on that topic.  Under Rule 801(e)(2), statements made by a defendant or by his coconspirators in furtherance of the conspiracy are not hearsay. The availability of the declarant is immaterial.  Furthermore, the State did not offer the evidence regarding the drug deal for the truth of the matter asserted (to show that there actually was a drug deal) but, rather, to show appellant=s motive and state of mind after being told of the drug deal and of the complainant=s possible involvement. Appellant=s third point of error is overruled.

The judgment of the trial court is affirmed.

TERRY McCALL

March 14, 2002                                                                       JUSTICE

Do not publish.  See TEX.R.APP.P. 47.3(b).

Panel consists of:  Arnot, C.J., and

Wright, J., and McCall, J.