Larry Charles Scott v. State ( 2007 )

Opinion issued August 9, 2007  

In The  

Court of Appeals

For The  

First District of Texas

---

NO. 01-06-00151-CR

---

LARRY CHARLES SCOTT, Appellant

V.

THE STATE OF TEXAS, Appellee

---

On Appeal from the 174th District Court

Harris County, Texas  

Trial Court Cause No. 1003894

---

MEMORANDUM OPINION

Appellant, Larry Charles Scott, appeals from a judgment convicting him of the felony offense of murder. See Tex. Pen. Code. Ann. § 19.02(b)(1) (Vernon 2003). Appellant pleaded not guilty to the trial court. The trial court found appellant guilty and assessed punishment at 60 years in prison. In his sole issue, appellant challenges the factual sufficiency of the evidence to establish his identity as the shooter by pointing to the lack of evidence to connect him to the offense. We conclude that the evidence was factually sufficient to support the conviction under these circumstances that show that a witness identified appellant's voice as the person threatening to shoot the complainant immediately before the complainant was shot; the content of the statements that the witness heard was consistent with a known motive of appellant; and appellant acknowledged his plan to meet the complainant at about the same time that the complainant was murdered. We affirm.

Background  

Appellant's girlfriend, Shirley Jackson, purchased a car from the complainant, Edgar Rabago, and his brother, Luis Rabago, in April or May 2004. Jackson was responsible for making payments of $300 per month to the complainant. About five months later, the complainant went to Jackson's apartment to collect overdue payments, but Jackson was not there. Appellant, who was at the apartment, gave the complainant the keys to Jackson's car so that the complainant could purportedly change the car's paper license plate. Appellant saw the complainant working under the hood of the car. The next morning, when the car would not start, appellant discovered the starter fuse had been removed.

Three days after the starter fuse was removed from the car, appellant called the complainant to request that the complainant come to appellant's apartment to collect $100 for Jackson's car payment. The complainant arrived at the apartment complex at 5:08 p.m.

As was their custom when collecting money, Luis listened over the phone while the complainant was collecting the money. The complainant wore a hands-free ear bud with a microphone attached so Luis could hear the conversation. Luis could clearly hear the discussion about Jackson's car. Luis heard appellant say, "What's up with you disconnecting the fuse. That's some unprofessional s***. You're disrespecting my lady." Luis heard the complainant exclaim, "You're going to shoot me? It's just a car." Appellant responded, "F*** yeah. You're not giving her a break." Luis asked the complainant to cough twice if appellant had a gun pointed at him. The complainant coughed twice. Luis then heard four loud gunshots. Luis screamed the complainant's name, but the line remained silent for five to eight minutes before the call ended. Luis called the police.

Joseph Ratcliff, a resident of the apartment complex, was outside his apartment smoking a cigarette when he saw two men talking in the parking lot. Ratcliff saw a black man talking to another man who was seated in a car. Ratcliff described the black man as being similar in build to the complainant and either bald or wearing a wave cap or "do-rag." Ratcliff watched the two men for between 30 seconds and a minute, then reentered his apartment. When Ratcliff entered the apartment, he heard three or four gunshots.

A police officer with the Houston Police Department was dispatched at 5:30 p.m. in response to a 911 call placed by the apartment complex's assistant manager, who reported that a man had been found shot dead in a car. Detective Holtke of the Harris County Sheriff's Office was led to appellant's address by cross-referencing phone numbers that had called the complainant's cell phone. Detective Holtke attempted to locate appellant at appellant's mother's apartment, but no one answered the door. Police then waited for appellant at Jackson's apartment. Detective Holtke recovered black jeans, a black bandana, a black hat, a green and blue jersey, and a blue "do-rag" from Jackson's vehicle, which appellant had driven that day. Ratcliff identified the "do-rag" as appearing to be similar to the one worn by the black man he saw in the parking lot.

Appellant gave a voluntary statement to police the day of the shooting. He stated,

I called [the complainant] on his cell phone and told him I had some money to give him for Shirley. I asked him to come over and meet me at the apartments and I gave him directions. He told me he would be there in about 15 to 20 minutes. I stood outside and waited for a while, about 20 minutes. After he didn't show I went back inside and called him again. He said he was just around the corner and was on his way. I went back outside and waited for [the complainant] for about another 30 minutes and he never showed up. I went back inside and tried to call [the complainant] again and he never would answer the phone, so I left. It was around 6 or 6:30 [p.m.] when I left my mother's apartment. The whole time I was there I stayed at or outside of my mother's apartment. I didn't talk to anyone at the complex while I was there.

Appellant testified at trial, acknowledging that he called the complainant and arranged to meet him at the apartment complex. Appellant claimed he went outside to meet the complainant after the complainant told appellant he was just around the corner. Appellant said that he waited about 30 minutes before he went inside to take a shower, but the complainant never arrived. Appellant asserts that he never saw the complainant. Appellant also claimed that although he left the apartment complex between 6:00 p.m. and 6:30 p.m., he did not notice any police presence while waiting for the complainant or upon leaving the complex. The State challenged appellant's credibility on the issue of whether appellant saw police officers at the complex by presenting evidence that to exit the parking lot appellant must have driven past the police activity and the purple BMW containing the complainant's body. Patrol cars and the crime scene unit were at the scene from about 5:30 p.m. until 7:30 p.m. Officer Gonzales testified that the police presence was "very obvious" and appellant could only have missed it if he had his eyes closed.

Factual Sufficiency

In his sole issue, appellant challenges the factual sufficiency of the evidence to support his murder conviction. Appellant challenges the factual sufficiency of the State's evidence to prove Scott's identity as the shooter because no "eyewitness" conclusively identified Scott. Appellant further contends the evidence is factually insufficient because no fingerprint, blood, gun, or other similar evidence connects appellant to the murder. Appellant also claims that he was not upset about the fuse because he easily got the car started and therefore had no motive to murder the complainant.

When conducting a factual-sufficiency review, we view all of the evidence in a neutral light. Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997). We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Under the first prong of Johnson, we cannot conclude that a conviction is "clearly wrong" or "manifestly unjust" simply because, on the evidence before us, we would have voted to acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury's resolution of that conflict. Id. Before determining that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. In conducting a factual-sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the jury's verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

The jury is in the best position to evaluate the credibility of witnesses, and we are required in our factual sufficiency review to afford "due deference" to the jury's determinations. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). A person commits murder if he intentionally and knowingly causes the death of an individual. See Tex. Pen. Code Ann. § 19.02(b)(1).

Although appellant is correct that the record fails to include any eyewitness identification, eyewitness testimony is unnecessary, as long as other evidence establishes guilt for the offense. See Greene v. State, 124 S.W.3d 789, 792 (Tex. App.--Houston [1st Dist.] 2003, pet. ref'd) ("Identity of a perpetrator can be proved by direct or circumstantial evidence; eyewitness identification is not necessary."). Similarly, appellant accurately notes the absence of physical evidence such as fingerprints and the murder weapon, but the State was not required to provide any direct evidence as long as the circumstantial evidence was factually sufficient to support the conviction. See id.

The State's evidence to establish appellant's identity as the shooter consisted of the voice identification of him by Luis, combined with circumstantial evidence that supported that identification. Voice identification has been held factually sufficient to support a conviction. See Davis v. State, 180 S.W.3d 277, 286 (Tex. App.--Texarkana 2005, no pet.) (holding voice identification to be legally and factually sufficient to support conviction). Luis identified appellant in a photo spread the day after the murder as the person whose voice he heard speaking with the complainant when the complainant was shot. He also identified appellant in the courtroom. Luis related that he could hear the voices of appellant and the complainant clearly.

In addition to the voice identification of appellant by Luis, circumstantial evidence supports Luis's identification. Before the meeting with appellant, the complainant told Luis that he was going to meet appellant in order to collect money for Jackson's car. The cell phone records corroborated Luis's testimony describing the conversation Luis overheard between appellant and the complainant on the day and time the complainant was shot by showing a 14-minute call beginning at 5:08 p.m. Luis was also able to give exact quotations from the conversation concerning the fuse taken from the car, the complainant being accused of "disrespecting [appellant's] lady," the late car payments, the whereabouts of the car, and Luis heard appellant threaten to shoot the complainant before Luis heard the gunshots. The complainant coughed twice when Luis instructed him to cough twice if appellant had a gun. The evidence that the complainant told Luis he was going to meet the complainant and the content of the conversation that Luis heard is further evidence of appellant's identity as the shooter and appellant's anger with the complainant over Jackson's car.

Ratcliff's testimony is also some evidence that supports Luis's identification of appellant as the shooter. Although Ratcliff could not identify the man he saw in the parking lot, he described the "black man" he saw as being bald or wearing a "do-rag" with hair that was not long enough to reach his collar. A police officer found a "do-rag" in Jackson's car, which is a physical piece of evidence that further supports Luis's identification. Appellant discounts this evidence by pointing to evidence presented by appellant and Jackson that appellant had long, braided hair on the day of the murder. The trial court, however, could have disbelieved the testimony by appellant and Jackson based on an evaluation of their credibility and demeanor, or it could have disregarded the evidence in its entirety by concluding that the other evidence presented by Luis was sufficient to establish appellant's guilt. See Cain, 958 S.W.2d at 409.   

As the fact finder, the trial court could have reasonably disregarded portions of appellant's testimony as not credible, and it could have reasonably determined that other portions of appellant's testimony are consistent with appellant's guilt. See id. Appellant acknowledges his plan to meet the complainant at about the same time that the complainant was killed. The complainant was shot sometime between 5:08 p.m. and 5:30 p.m., when the complainant's body was discovered by an apartment manager. Appellant acknowledges that he spoke to the complainant just before that period of time, at 5:05 p.m., when the complainant told appellant that he was "just around the corner." Appellant thereby acknowledges his plan to meet the complainant at the same time and place that the complainant was killed.

The trial court could have reasonably disbelieved appellant's claims that he did not shoot the complainant due to the State's evidence that challenged appellant's credibility. According to appellant's testimony, he did not witness the police presence at the apartment complex when he was outside waiting for the complainant from 5:05 p.m. until sometime between 5:25 p.m. and 5:35 p.m. That testimony was challenged by Officer Gonzales's testimony that described the police presence as "obvious." According to Officer Gonzales, appellant could have missed the police activity only if he had his eyes closed when he left the complex.

Although the record shows a lack of direct evidence to connect appellant to the offense, the evidence shows a positive voice identification of appellant as the shooter, as well as circumstantial evidence in support of that identification. Viewing the evidence neutrally, the evidence is not so weak as to render the verdict clearly wrong and manifestly unjust, and the judgment is not against the great weight and preponderance of the evidence. See Johnson, 23 S.W.3d at 11. We hold that the evidence is factually sufficient to sustain appellant's conviction for murder. We overrule appellant's sole issue.

Conclusion

We affirm the judgment of the trial court.  

Elsa Alcala

Justice

Panel consists of Justices Alcala, Hanks, and Price. ⁽¹⁾

Do not publish. Tex. R. App. P. 47.2(b).

1. The Honorable Frank C. Price, former Justice, Court of Appeals, First District of Texas at Houston, sitting by assignment.