Zachary Tyler Smith v. State ( 2004 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Zachary Tyler Smith

Appellant

Vs.                   No. 11-02-00262-CR B Appeal from Erath County

State of Texas

Appellee

The jury convicted Zachary Tyler Smith of the capital murder of Jerry and Kelly Thomas, and the trial court assessed his punishment at confinement for life.  We affirm.

Central to his complaints on appeal are appellant=s contentions that the tape recordings of his telephone conversations with Jeffrey Harold Oslin were inadmissible.  Appellant argues that the tapes of these conversations were improperly admitted because appellant was never told that his conversations were being recorded, because he was never given his Miranda^[1] warnings prior to the conversations, and because Oslin was acting as an agent of the State.

The record reflects that, shortly after the August 2001 murders, Oslin gave appellant a ride from the Fort Worth area to the bus station in Houston.  During the trip, appellant told Oslin that he and a Aguy named Flea@ went to a house to kill some people for the money from an insurance policy, that he shot the man in the chest, that Flea shot the woman who was Flea=s aunt, and that the woman was not dead so he finished her off.  Flea was a nickname for Bobby Landon DeWeese.  Oslin told law enforcement authorities about the conversation.  Appellant was located and taken into custody.  Later, in December 2001 while he was in custody, appellant called Oslin=s mother=s house A[m]any, many times.@ During this time, Oslin was in the Harris County Jail on unrelated charges.  Oslin=s mother told appellant that Oslin would be home around noon.  Law enforcement officers brought Oslin to his mother=s house on December 21, 2001, and taped the incoming calls from appellant to Oslin.  Texas Ranger Andrew Carter testified that no promises were made to Oslin and that, while he did instruct Oslin not to speak in any sort of code, he did not have a conversation with Oslin about what they wanted to achieve during appellant=s phone call to Oslin.

Oslin testified at the suppression hearing that it was his idea to aid the law enforcement. Oslin was in custody on a new drug charge at the time of the phone calls. Oslin stated that he was not promised anything and that he was returned to jail after the calls.  Oslin also testified that the only instruction he was given was to Afind out what [appellant] was calling for.@  Oslin said that he had Aenough trouble going on@ of his own and that he did not want to be involved in appellant=s situation with the murders.

At the suppression hearing, appellant testified that he was confined in the Erath County Jail at the time he called Oslin.  Appellant stated that the only reason he called Oslin was because Oslin=s mother had told him to.  Oslin did not say that he was in custody at the time; he did not say that anything appellant said might be used against appellant; and he did not tell appellant that he had the right to counsel or that he could terminate the conversation at any time.  Appellant stated that he initiated each call and that he had previously called A[n]umerous@ times wanting to speak with Oslin.  Appellant testified that he called on December 21 because he wanted to talk to Oslin Areal bad.@

Appellant argues in his third point of error that the trial court erred by denying his motion to suppress the tapes of his phone calls to Oslin.  We disagree.

In Manns v. State, 122 S.W.3d 171, 178 (Tex.Cr.App.2003), the Court of Criminal Appeals recited the standards of review set forth in Guzman v. State, 955 S.W.2d 85 (Tex.Cr.App.1997), as follows:

An appellate court should afford Aalmost total deference@ to a trial court=s deter- mination of the historical facts and to its determination of mixed questions of law and fact that turn on an evaluation of credibility and demeanor.  Mixed questions of law and fact that do not turn on credibility and demeanor are to be reviewed do novo.

A question Aturns@ on an evaluation of credibility and demeanor when the testimony of one or more witnesses, if believed, is always enough to add up to what is needed to decide the substantive issue.  Loserth v. State, 963 S.W.2d 770, 773 (Tex.Cr.App.1998).  The record must be reviewed in the light most favorable to the trial court=s ruling, and the trial court=s ruling will be sustained if it is reason- ably correct on any theory of law applicable to the case.  Guzman v. State, supra.

The record does not support appellant=s contentions that Oslin was acting as an agent of the  State and that, therefore, Oslin should have given appellant Miranda warnings for the tapes to be admissible.  In each phone call, appellant initiated the call by phoning Oslin=s mother=s house collect.  The record also reflects that both appellant and Oslin were in custody at the time of the conversations and that their relationship was analogous to conversations between inmates. Such conversations are admissible unless one of the inmates is acting as an agent of the State.  Manns v. State, supra; State v. Scheineman, 77 S.W.3d 810, 813 (Tex.Cr.App.2002).  While the record clearly reflects that Oslin was hopeful that his cooperation would benefit him with his other Atrouble@ with the law, nothing in the record reflects that Oslin was acting under the direction of, or on behalf of, the State. Without the involvement of an agent of the State, appellant=s rights to counsel, to Miranda warnings, or to the requirements of TEX. CODE CRIM. PRO. ANN. art. 38.22 (Vernon Pamph. Supp. 2004) were not invoked. Therefore, the trial court did not err in denying the motion to suppress.  The third point is overruled.

In the first and second points, appellant challenges the legal and factual sufficiency of the evidence.  Under these points, appellant appears to base his arguments at least in part on Oslin=s testimony and on his argument that Oslin acted as an agent of the State.  In his fourth point, appellant contends that the trial court erred in overruling his motion for directed verdict because the State did not prove its case beyond a reasonable doubt and because the accomplice testimony was not sufficiently corroborated. We note that a challenge to the trial court=s denial of a motion for directed verdict is a challenge to the legal sufficiency of the evidence.  Canales v. State, 98 S.W.3d 690, 693 (Tex.Cr.App.2003); Fluellen v. State, 104 S.W.3d 152 (Tex.App. - Texarkana 2003, no pet=n).

In order 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).  In order to determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak as to render the conviction clearly wrong and manifestly unjust or whether the evidence supporting guilt, although adequate when taken alone, is so greatly outweighed by the overwhelming weight of contrary evidence as to render the conviction clearly wrong and manifestly unjust.  Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Cr.App.2002); Goodman v. State, 66 S.W.3d 283 (Tex.Cr.App.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 determining whether accomplice witness testimony has been sufficiently corroborated, the appellate court must review all of the non-accomplice evidence presented and determine if that evidence tends to connect appellant to the offense.  Gosch v. State, 829 S.W.2d 775, 777 (Tex.Cr.App.1991); Reed v. State, 744 S.W.2d 112, 126 (Tex.Cr.App.1988). Corroboration is not sufficient if it merely shows that the offense was committed.  TEX. CODE CRIM. PRO. ANN. art. 38.14 (Vernon 1979).

Tally-Kaye Roberts testified that she went to her parents= home on Highway 281 north of Stephenville in Erath County and found the body of her father, Jerry Thomas, in the kitchen and the body of her mother, Kelly Thomas, outside a bedroom window.  Dr. Jennie Duval testified that she performed the autopsy on Jerry and that she reviewed the autopsy report on Kelly.  Dr. Duval stated that both Jerry and Kelly died of multiple gunshot wounds and that they died Awithin minutes to hours of each other.@  Texas Department of Public Safety firearms examiner William Sorrow testified that the bullets recovered from Jerry=s abdomen and back and the bullet recovered from Kelly=s head were fired from the same gun, but that the bullet recovered from Kelly=s thigh was fired from another gun.

Oslin testified that appellant stated that he shot the man two or three times in the chest and that he shot the woman to Afinish[] her off.@ Oslin also stated that appellant said that he left the home in Jerry=s vehicle and that the vehicle was later burned.  The jury heard the recordings of appellant=s phone calls to Oslin.  In the conversations, appellant denied that he killed anyone, asked Oslin to act like nothing happened and to tell law enforcement authorities that Oslin did not give him a ride to Houston, and eventually offered to take Oslin=s drug charge by telling the officers that the drugs were his and to pay Oslin $20,000.

Scott Byrd testified that, while appellant and he were confined in the same jail in Louisiana, appellant said that he had shot a man and a woman in Texas.  Sonia Hoesch testified that she saw appellant and Flea in a Ablue Chevy truck@ and that appellant, Flea, and Wesley Ray Cole, Jr. later left to destroy the vehicle.

Cole testified that he went with appellant and DeWeese to Jerry and Kelly=s home.  Appellant and DeWeese went around to the back of the home while Cole sat in the car and listened to the radio.  Cole heard three gunshots and then saw a woman open a window.  The woman looked like she was struggling to get out. She put her right foot out of the window, and then her body went limp and fell out of the window.  Next, Cole saw appellant lean out of the window and shoot the woman.

DeWeese testified that he shot Kelly once as she tried to climb out of the window and that she fell to the ground.  DeWeese stated that appellant shot Jerry Aa number of times.@ Cole left in the vehicle that they had driven to Jerry and Kelly=s home. DeWeese and appellant left in Jerry=s blue Chevy pickup.  They discussed selling the pickup.  However, later, they removed the VIN number from the pickup and burned the pickup in a field Ain the middle of Arlington.@

The non-accomplice testimony of Dr. Duval, Sorrow, Oslin, and Byrd sufficiently corroborate Cole=s and DeWeese=s accomplice testimony.  When all of the evidence is viewed in the light most favorable to the verdict, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Therefore, we find that the evidence is legally sufficient. When all of the evidence is viewed in a neutral light, the evidence supporting guilt is neither so weak as to render the conviction clearly wrong and manifestly unjust nor so greatly outweighed by the overwhelming weight of contrary evidence as to render the conviction clearly wrong and manifestly unjust.   We find that the evidence is also factually sufficient.  The first, second, and fourth points are overruled.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

JUSTICE

June 30, 2004

Do not publish.  See TEX.R.APP.P. 47.2(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.

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^[1]Miranda v. Arizona, 384 U.S. 436 (1966).