Koy Timon Moore v. State ( 2009 )

Affirmed and Memorandum Opinion filed October 8, 2009.

In The

Fourteenth Court of Appeals

NO. 14-08-00295-CR

Koy Timon Moore, Appellant

v.

The State of Texas, Appellee

On Appeal from the 208th District Court

Harris County, Texas

Trial Court Cause No. 1066922

MEMORANDUM OPINION

Appellant, Koy Timon Moore, appeals from his conviction for murder.  A jury found appellant guilty and assessed punishment at sixty years’ imprisonment.  In four issues, appellant contends that the evidence was legally and factually insufficient to sustain the conviction and that evidence of appellant’s drug dealing was admitted in violation of Rules 403 and 404 of the Texas Rules of Evidence.  We affirm.

Background

Sometime around midnight on April 25, 2006, Jermore Jones was shot and killed at the Miami Gardens apartment complex in Houston.¹  Hortencia Martinez testified that around 11:00 or 11:30, she heard about eight or nine gunshots outside the window of her apartment.  She went to her grandchildren’s bedroom to check on them, and when she looked out the window, she saw a man lying on the ground but did not see anyone else.  About a minute later, after attending to her grandchildren, Martinez again looked out the window and this time saw two black men kneeling by the prone man and looking through his pockets.  She recognized the two men from having seen them around the apartment complex.  One of the men took a plastic bag out of the prone man’s pocket, and one of them also extracted “a white metallic” object, which could have been a cellular telephone or a small pistol.  Both men then left the scene.

Tiffany Preston testified that she is originally from New Orleans and came to Houston when her home was destroyed in the aftermath of Hurricane Katrina.  In Houston, she met appellant, who was also from New Orleans, and they entered a romantic relationship and eventually had a child together.  Preston admitted that at the time of trial, she was on probation for felony possession of a controlled substance with intent to deliver.  Preston pleaded guilty and received probation on May 1, 2006, but she stated that she did not have an agreement to testify in the present case at the time she pleaded.  At some point while on probation, Preston was arrested for aggravated assault.  The pending charges, however, were dismissed about a week before appellant’s trial, and she was placed back on probation.  Preston again stated that there was no agreement between her and any prosecutor by which charges would be dismissed in exchange for her testimony.  She testified that in March 2006, she moved in with appellant at the Miami Gardens.  She said that during that time period, appellant was making money selling cocaine.  She identified photographs of two other men, whom she knew as “Shorty” and “Tyrone,” who purchased drugs from appellant at the complex.  She also stated that Jermore Jones, the murder victim, also sold drugs at the complex.  Appellant objected to Preston’s testimony regarding appellant’s drug-dealing based on her having given prior inconsistent statements and arguing that such testimony was more prejudicial than probative.  The trial court overruled the objection.

Preston stated that appellant left their apartment at around 11:00 p.m. on April 25, 2006.  About an hour and a half after appellant had left, Preston heard seven or eight gunshots.  She tried contacting appellant using the walkie-talkie function of her cell phone, but he did not answer.  She then heard someone running up the steps to their apartment.  She opened the door, and appellant entered, holding an automatic pistol, and sat on the sofa. Appellant said that he “had just killed somebody,” and asked her to go on the balcony to see if the police had arrived.  When the police did arrive, an officer asked Preston whether she had seen anything, and she responded “no.” Later, Preston asked appellant how he could sleep knowing he had just killed someone, and appellant replied that he would “just go to sleep.  They’ll go to sleep on [me], so [I’ll] go to sleep on them.”  Preston also asked appellant why he had shot the man, and appellant responded “reppin’.”  Preston explained that this meant that the other man had been making more money selling drugs.  She said that the next time appellant left the apartment, he took the gun with him.

In a subsequent conversation about the shooting, appellant told Preston that shortly before the shooting, he had had a conversation with someone named “Ugg.”  Ugg then began a conversation with Jermore Jones, whom Preston knew as “Ace.”  During this conversation, Ugg “talked Ace out of [his] gun.”  Ugg then flashed the gun so that appellant could see that Ace was no longer armed, and appellant “walked up and shot Ace.”  According to Preston, appellant told her that he shot complainant “three times in the back and five times in the front.”

            A few days after the shooting, police officers entered Preston’s apartment and arrested her for cocaine possession.  During the arrest, officers asked her if she knew someone named “T.”  They discovered crack cocaine in the apartment she shared with appellant.  While in custody, Preston was visited by Detective Brian Harris, who wanted to speak to her about the murder investigation.  According to Preston, Harris threatened to charge her with murder and take her children away from her if she did not tell him what he wanted to hear.  Harris also threatened to implicate Preston’s family members in the murder, including her younger brother.  She said it “[s]cared [her] to death.”  Preston said that Harris did not tell her what to say but that she then told him that appellant had confessed the murder to her.  She admitted that during that first meeting, she told Harris that appellant did not have a gun on the night of the shooting, and she did not tell him about the pre-shooting conversation appellant allegedly had with Ugg.  She told Harris that appellant sometimes went by the nickname “K.”

After pleading guilty to the possession charge, Preston remained in jail for some time.  When Harris returned to question her, she again related the events of the night in question and continued to deny that appellant had possessed a weapon that night.  She also again failed to mention the conversation with Ugg.  Preston stated that she did not tell everything she knew sooner because she was afraid that appellant would get in trouble.

On cross-examination, Preston provided additional details regarding the pressure she said was applied by police officers and members of the district attorney’s office.  She said that she was kept in confinement and that they made it clear to her how she was to testify.  She further stated that on March 22, 2007, she spoke with an investigator for appellant’s defense, whom she told that her statements to police were false and that she was scared that they would retaliate against her or her family if she did not say what they wanted her to say.  She indicated that she was saying certain things because she was afraid and that she was more afraid of the police than appellant.  On re-direct, Preston acknowledged that she still loved appellant and had never been afraid of him.  She further stated that Detective Harris, as well as members of the district attorney’s office, had encouraged her to tell the truth and not lie about events.  She identified a letter that she received from appellant in which appellant instructed Preston to “[p]lead the Fifth” and say that the police had scared her into implicating him in the murder.  When pressed as to which story was the truth, Preston said that appellant had admitted killing someone.

Marcus Pruitt testified that he was currently incarcerated at the Harris County Jail because of convictions for drug possession, pistol possession, and forgery.  Pruitt further acknowledged that he had previously been convicted of robbery as well as other drug possession violations.  While at the jail, he met appellant, who asked Pruitt to help him with some legal matters on his case.  Pruitt agreed but insisted that appellant be honest about the case.  According to Pruitt, appellant then denied committing the murder.  Pruitt also testified that he wrote a letter to the prosecutor in appellant’s case, requesting that charges be filed against appellant for throwing urine on Pruitt while in jail.  In the letter, Pruitt stated that appellant had confessed to the murder of Jermone Jones and had told his girlfriend to change her statement to police.  Pruitt testified that the statements in the letter were untrue and that he had made them in retaliation for appellant’s having thrown urine on him.  Pruitt denied ever telling the prosecutor in person that appellant had confessed to the murder.[2]  Although Pruitt had been presented in the State’s case-in-chief, in his closing argument, the prosecutor urged the jury to simply disregard any evidence concerning Pruitt.    

Tyrone Jackson testified that he was living at the Miami Gardens apartments at the time of the shooting.  Jackson has a criminal record including armed robbery, and he admitted to having been a user of crack cocaine while at Miami Gardens.  Jackson identified appellant as someone he knew by the nickname “T” and stated that he (Jackson) had purchased drugs from appellant on a few occasions.  He testified, however, that he had purchased most of his drugs from people he knew as “Shorty” and “Ace”; Ace being Jermore Jones.  On the night of the shooting, Jackson was standing talking to some people when he heard gunshots.  He turned toward the sound and saw two men running.  He then saw “a few muzzle flashes,” and a third man, “the shooter,” walked away.  Jackson identified appellant as the shooter.  While he did not see anyone actually shot, Jackson said that when he walked back toward his apartment, he heard someone scream and then saw Ace lying on the ground. Jackson knelt by Ace and asked him what had happened and why it had happened, but Ace was not able to respond.  Ace was bleeding from several points, and Jackson tried to console him.  Another person, someone named Richard, pulled a couple of items out of Ace’s pockets, including a bag of marijuana and perhaps a phone.  Jackson said that Ace carried a gun with him “pretty much” all the time, but Jackson did not see it that night.

Jackson acknowledged that he had been arrested for Jones’s murder a couple of days after the shooting.  Jackson initially lied to the police, telling them that he did not know anything about the shooting.  He said he was scared and did not want to implicate appellant for fear appellant might hurt his sister, who lived nearby.  He figured he would “go through the motions” because he knew he was not guilty and thus would not be convicted. About nine months later, after Jackson’s sister moved away from Miami Gardens, he told the prosecutor about his observations on the evening in question.  He said that he “was prepared to do what he had to do . . . to clear [him]self,” but indicated that he was not just making up a story to be released.  Indeed, he said that he has not been offered any “deal” for his testimony, although the charges against him, both the murder charge and a robbery charge, were subsequently dropped.  Defense counsel objected to the relevance of Jackson’s testimony regarding appellant’s drug dealing, but the court again overruled the objection.

Brian Harris, a sergeant with the Houston Police Department, explained why investigators had initially suspected Jackson, based on Martinez’s photo identification of the two men she saw knelling beside Jones’s body, but how later the investigation came to focus on appellant. About a week after the shooting, Harris called appellant’s cell phone number.  According to Harris, after he identified himself to appellant over the phone, appellant said “You the police?  Catch me if you can, [expletive deleted],” and then hung up the phone.  Harris said that when he arrested appellant the next day, he [Harris] recognized appellant’s voice as being that of the person he had spoken to on the phone the day before.  Harris further testified that .45 caliber ammunition was found in the apartment occupied by Tiffany Preston.

Dr. Albert Chu, an assistant medical examiner at the Harris County Medical Examiner’s Office, performed an autopsy on Jermore Jones.  Chu testified that Jones died from multiple gunshot wounds, including at least one that entered through his back.

Mohamed Almohamed, a criminalist for the firearms section of the Houston Police Department, testified that nine fired cartridge casings found at the scene of the murder were all from a .45 automatic.  He further concluded that all of the casings had been fired from the same weapon. Additionally, Almohamed stated that seven bullets retrieved from the scene were all .45 caliber and were fired by the same weapon.  He could not say with certainty, however, that the same weapon from which the casings came also fired the retrieved bullets.

Sufficiency of the Evidence

In his first two issues, appellants attacks, respectively, the legal and factual sufficiency of the evidence to support the jury’s verdict.  Because appellant does not differentiate in his arguments between the differing standards for legal and factual sufficiency analysis, we will address the arguments altogether while keeping in mind the distinct standards of review.  Appellant was convicted of murder for either (1) unlawfully, intentionally, or knowingly causing Jermore Jones’s death by shooting him with a deadly weapon, or (2) causing Jones’s death by intentionally or knowingly committing an act clearly dangerous to human life, namely shooting Jones with a deadly weapon, while unlawfully intending to cause serious bodily injury to Jones.  See generally Tex. Penal Code § 19.02(b) (1) and (2).

In a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and determine whether a trier of fact could have found each element of the offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex. Crim. App. 2000).  The jury is the exclusive judge of the credibility of witnesses and of the weight to be given to their testimony; it is the exclusive province of the jury to reconcile conflicts in the evidence.  Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).  Thus, when performing a legal sufficiency review, we may not reevaluate the weight and credibility of the evidence and substitute our judgment for that of the fact-finder.  Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999).  We must resolve any inconsistencies in the testimony in favor of the verdict.  Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).

In a factual sufficiency review, we consider all of the evidence in a neutral light, favoring neither party.  Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006); Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005).  We then ask whether (1) the evidence supporting the conviction, although legally sufficient, is nevertheless so weak that the jury’s verdict seems clearly wrong and manifestly unjust, or (2) considering conflicting evidence, the jury’s verdict is against the great weight and preponderance of the evidence.  Watson, 204 S.W.3d at 414-15, 417; Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Additionally, we must give due deference to the jury’s determinations, particularly those concerning the weight of the evidence and the credibility of witnesses.  See Johnson, 23 S.W.3d at 8-9.

Appellant contends that the evidence was legally and factually insufficient because the key witnesses against him were not credible. As stated, generally speaking, the credibility and weight to be assigned to witness testimony is for the jury to decide; however, at least when analyzing the factual sufficiency of the evidence, a reviewing court may “substitute its judgment for the jury’s on these questions ‘albeit to a very limited degree.’” Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006) (quoting Watson, 204 S.W.3d at 416-17).  Appellant points to the testimony of three witnesses in particular as being incredible:  Tiffany Preston, Marcel Pruitt, and Tyrone Jackson.  Appellant argues that absent the testimony of these witnesses, there was no evidence “to put [a]ppellant’s hand on the gun that killed Jermore Jones.”

Unquestionably, there were credibility issues concerning the testimony of Preston and Pruitt.  Although Preston testified that appellant had confessed to shooting Jones, she also acknowledged having given multiple versions of events at different times, and indeed, she appeared to give conflicting testimony in this very trial, telling both the prosecutor and defense counsel what they wanted to hear.  Ultimately, when pressed by the prosecutor as to where the truth lay, Preston said that appellant had confessed the murder to her.  There was also evidence that Preston may (1) have been pressured by authorities to testify a certain way, and (2) still have feelings for appellant.  As is usually the case, it was incumbent upon the jury to assess these opposing pressures on Preston and to determine what to believe of her testimony and what to reject.  Newby v. State, 252 S.W.3d 431, 436 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d) (“The jury may believe or disbelieve all or part of any witness’s testimony.”).  It was within the jury’s authority to give Preston’s assertion at trial that appellant confessed the murder at least some weight in their determination of his guilt.

Regarding Pruitt, neither the State nor appellant’s appellate counsel suggests that any weight be given to Pruitt’s testimony or to the letter he sent to a prosecutor.  Based on the parties’ positions on appeal and the prosecutor’s urging the jury to disregard evidence relating to Pruitt, we will not consider evidence relating to Pruitt in assessing the sufficiency of the evidence for conviction.

Lastly, we look at Jackson’s testimony.  Similar to Preston, Jackson testified about appellant’s drug dealing as a motive for the murder.  Jackson also testified that he saw appellant fire a handgun in a location where, shortly thereafter, Jackson discovered Jermone Jones lying on the ground, bleeding.  This evidence, if believed by the jury, strongly supports a finding of guilt.  Appellant points to the fact that Jackson acknowledged having initially lied to the police, telling them that he did not know anything about the shooting, and to the fact that Jackson himself was initially charged with Jones’s murder and only implicated appellant some nine months later.  Jackson, however, explained his early reluctance to implicate appellant by stating that he did not want to get involved and that he was scared for his sister who lived close to appellant.  He said that he revealed his information only after his sister had moved away.  He further denied that he had been offered any “deal” in exchange for his testimony.  In short, Jackson’s explanations for his change of story are rational and logical.  It was within the jury’s authority whether to believe his trial testimony.  See Newby, 252 S.W.3d at 436.

It should further be noted that other evidence could have been considered by the jury as indicative of appellant’s guilt.  First, .45 caliber bullets, the same caliber used to shoot Jones, were found in the apartment appellant shared with Preston.  See, e.g., Perkins v. State, 887 S.W.2d 222, 225 (Tex. App.—Texarkana 1994, pet. ref’d) (holding that fact bullets of the same caliber as those used to commit a murder were found in the defendant’s car linked the defendant to the crime).  Additionally, Sergeant Harris testified that appellant told him over the phone: “Catch me if you can, [expletive deleted].”  See, e.g., Butler v. State, 990 S.W.2d 298, 304 (Tex. App.—Texarkana 1999, no pet.) (considering defendant’s statement to police, “[y]ou-all couldn’t catch me,” as indicative of guilt).  Based on this evidence and the testimony of Preston and Jackson, we find that the evidence was legally and factually sufficient to sustain the verdict.  We overrule appellant’s first two issues.

Admission of Evidence

In his third and fourth issues, appellant contends that the trial court erred in admitting evidence of his drug dealing because such evidence permitted the jury to convict him based on general bad acts and because the probative value of such evidence was outweighed by the danger of unfair prejudice.  Evidence is relevant if it makes the existence of a fact that is of consequence to the determination of the action more probable than it would be without the evidence.  Tex. R. Evid. 401.  Evidence of extraneous offenses, however, is generally inadmissible.  Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003).  Evidence of other crimes, wrongs, or acts may be admissible only if such evidence has relevance apart from character conformity, for example, to establish identity, intent, motive, opportunity, or preparation.  Tex. R. Evid. 404(b); Moses, 105 S.W.3d at 626.  If evidence is relevant, it is presumed admissible.  Tex. R. Evid. 402.  However, even if relevant, extraneous acts evidence can still be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Id. 403; Moses, 105 S.W.3d at 626.  In conducting this balancing test, a trial court has “wide latitude to exclude, or particularly in view of the presumption of admissibility of relevant evidence, not to exclude misconduct evidence as he sees fit.  So long as the trial court thus operates within the boundaries of its discretion, an appellate court should not disturb its decision, whatever it may be.”  Montgomery v. State, 810 S.W.2d 372, 390 (Tex. Crim. App. 1990).  Factors to be considered include: “(1) the probative value of the evidence; (2) the potential to impress the jury in some irrational, yet indelible, way; (3) the time needed to develop the evidence; and (4) the proponent’s need for the evidence.”  Erazo v. State, 144 S.W.3d 487, 489 (Tex. Crim. App. 2004).

The evidence that appellant was a drug dealer was essential to the State’s theory regarding appellant’s motive for killing Jones.  See Clayton v. State, 235 S.W.3d 772, 781 (Tex. Crim. App. 2007) (holding that evidence of defendant’s involvement with drugs was relevant to theory that murder was drug-related).  According to Preston and Jackson, appellant and Jones were rival dealers in the same complex.  In her testimony, Preston testified that she understood appellant as saying that he killed Jones over the issue of who made more money selling drugs.  Proof of motive was important to the State’s case because the State was unable to produce an eyewitness who actually saw appellant shoot Jones.  Thus, the evidence was both quite probative of appellant’s guilt for the murder and important to the State’s case.

             While it is possible that evidence of appellant’s drug dealing, an illegal endeavor held in low-esteem, could have impressed jurors in an irrational, indelible way, it should also be noted that dealing drugs is not a violent offense; hence, it would not be likely to suggest to jurors that if appellant sells illegal drugs he probably also murders people.  In short, the danger of unfair prejudice was not particularly high.

Lastly, the time spent attempting to prove that appellant sold illegal drugs was not out of proportion to the time required to present such evidence or to the time spent on other inculpatory evidence.  In other words, our review of the record does not reveal any undue emphasis on this evidence.  Based on our analysis of the four balancing-test factors, we find that the trial court did not abuse its discretion in admitting evidence of appellant’s drug dealing.  We overrule appellant’s third and fourth issues.

We affirm the trial court’s judgment.

                                                                                    /s/ Adele Hedges

Chief Justice

Panel consists of Chief Justice Hedges and Justices Seymore and Sullivan.

Do Not Publish — Tex. R. App. P. 47.2(b).

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¹  Testimony from different witnesses placed the time of the shooting either slightly before midnight on April 25, or slightly after midnight on April 26.

[2] Woody Woodruff, an investigator with the Harris County District Attorney’s office, testified that when he met with Marcus Pruitt, Pruitt stated that appellant had confessed to the murder of Jermore Jones.  Pruitt further told Woodruff that he had told appellant that it was “stupid” for appellant to have confessed to his girlfriend and that he (appellant) should get his girlfriend to retract her statement to police.  According to Woodruff, Pruitt additionally said that appellant had committed the murder “to sew up the drug dealing in Miami Gardens.”