Duane Lee Washington v. State ( 2014 )

Opinion issued August 21, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00587-CR
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DUANE LEE WASHINGTON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court
Jefferson County, Texas
Trial Court Case No. 12-14603
MEMORANDUM OPINION1
1
The Texas Supreme Court transferred this appeal from the Court of Appeals for
the Ninth District of Texas to this Court pursuant to its docket equalization
powers. See TEX. GOV’T CODE ANN. § 73.001 (West 2013) (“The supreme court
may order cases transferred from one court of appeals to another at any time that,
in the opinion of the supreme court, there is good cause for the transfer.”).
A jury found Duane Lee Washington guilty of murder2 and assessed
punishment at confinement for life. In two issues, appellant contends that (1) the
evidence was insufficient to support the jury’s verdict and (2) the trial court erred
by allowing certain witness testimony under Texas Rule of Evidence 613. We
affirm.
Background
Appellant was indicted for the December 26, 2003 murder of his
grandfather, Ernest Jackson, by intentionally and knowingly causing his death by
means of a deadly weapon. The indictment was enhanced by two prior
convictions: a state jail felony for drug possession and a second-degree felony
conviction for assault on a public servant. Appellant pleaded not guilty to the
charge and the case proceeded to trial.
The State presented seven witnesses: Beaumont Police Officer Reed Abel,
one of the first officers dispatched to the crime scene; Shirley Gilder, the
complainant’s daughter and appellant’s aunt; Corwin Johnson, appellant’s friend;
Tisha Ogelsby, appellant’s former girlfriend; Ebony Cartwright, the wife of
appellant’s deceased best friend, Jeffrey “Speedy” Maze; Christopher “Yum-Yum”
Thomas, who met appellant while appellant was in jail on an unrelated charge;
Larry Bias, who met appellant while appellant was jailed on an unrelated charge;
2
See TEX. PENAL CODE ANN. § 19.02 (West 2011).
2
Dr. Tommy Brown, the forensic pathologist who performed the complainant’s
autopsy; and Beaumont Police Sergeant Jesus Tamayo, the officer assigned to
investigate the murder.
The jury found appellant guilty of the charged offense and assessed his
punishment at life imprisonment. Appellant timely filed this appeal.
Analysis
Appellant’s first issue contends that the evidence is factually and legally
insufficient to support the jury’s verdict because there is no evidence that connects
him to the crime.
We review evidentiary sufficiency challenges under the Jackson v. Virginia
standard. See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010)
(“[T]he Jackson v. Virginia legal-sufficiency standard is the only standard that a
reviewing court should apply in determining whether the evidence is sufficient to
support each element of a criminal offense that the State is required to prove
beyond a reasonable doubt.”) (referring to Jackson v. Virginia, 443 U.S. 307, 99 S.
Ct. 2781 (1979)). Under this standard, evidence is insufficient to support a
conviction if, considering all the record evidence in the light most favorable to the
verdict, no rational factfinder could have found that each essential element of the
charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at
319, 99 S. Ct. at 2789; In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071
3
(1970); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). The jury is
the sole judge of the credibility of witnesses and the weight to give testimony, and
our role on appeal is simply to ensure that the evidence reasonably supports the
jury’s verdict. Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012).
A person commits murder if he “intentionally or knowingly causes the death
of an individual.” TEX. PENAL CODE ANN. § 19.02(b)(1) (West 2011). A firearm,
such as a handgun, is a deadly weapon. TEX. PENAL CODE ANN. § 1.07(a)(17)(A)
(West 2011).
Ogelsby, appellant’s ex-girlfriend, testified as follows:
Q: A few days after the funeral of [appellant’s] grandfather, were
you-all talking?
A: Yes.
Q: Do you recall what you-all were talking about and where you-
all were?
A: We were sitting in my car and we just started talking and he
was telling me about his grandfather’s death.
Q: Do you recall what he told you about his grandfather’s death?
A: He told me that he had shot him. He said his grandfather had
been abusing his mother and that hurted [sic] him.
Cartwright, the wife of appellant’s deceased best friend, testified as follows:
Q: Ebony, did Corwin [Johnson] ever tell you who shot
[appellant’s] grandpa?
A: Yes.
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Q: What did Corwin tell you?
A: He said they shot—I mean, he said [appellant] shot him.
Q: Appellant shot who, the old man?
A: Yes, sir.
Q: Meaning what, his grandfather?
A: Yes, sir.
Thomas, who met appellant while both were in jail, testified as follows:
Q: While you were in jail, did you ever have a chance to speak
with [appellant] regarding a murder that took place on
Christmas Day, around Christmas Day, 2003?
A: Yes, I did.
Q: What did [appellant] tell you about that murder?
A: That he had killed his grandfather.
Bias, who also met appellant in jail, testified as follows:
Q: Did [appellant] tell you how his grandpa was killed?
A: Yes.
Q: Did he say who killed his grandpa?
A: He said he did.
Q: Did he say how he killed him?
A: He shot him in the head.
Sergeant Tamayo testified as follows:
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Q: And how did [appellant] become a suspect?
A: I received a call from a police officer from Port Arthur who told
me that he had received information from a confidential
informant that [appellant] had been bragging about killing Mr.
Jackson.
Considering this testimony in the light most favorable to the verdict, as we
must, we conclude that a rational jury could have found each element of the
charged offense beyond a reasonable doubt. See Temple v. State, 390 S.W.3d 341,
360 (Tex. Crim. App. 2013). Accordingly, we hold that the evidence is sufficient
to support the jury’s verdict. See id. We overrule appellant’s first issue.
In his second issue, appellant argues that the trial court erred in admitting
Sergeant Tamayo’s testimony under Texas Rule of Evidence 613. The State
asserts that Rule 613 is inapplicable here because the rule does not apply to a
statement made by a defendant to a law enforcement officer but only to another
witness at trial.
At the outset, we note that appellant fails to identify the portion of Sergeant
Tamayo’s testimony to which he objects on appeal.3 Instead, citing pages 199 to
217 of volume four of the reporter’s record, appellant generally states that the trial
3
TEX. R. APP. P. 38.1(i) (requiring appellate brief to contain clear and concise
argument for contentions made, with appropriate citations to authorities and to
record); see also Mims v. State, 238 S.W.3d 867, 874 (Tex. App.—Houston [1st
Dist.] 2007, no pet.) (finding complaint on appeal was waived where appellant
failed to specifically identify statement he claimed was hearsay).
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court erred in “allow[ing] that testimony under 613 T.R.E.” 4 Further, our review
of the record reveals that the trial court did not admit any of Sergeant Tamayo’s
testimony pursuant to Rule 613.5
Appellant also asks this Court “to consider [Code of Criminal Procedure]
Articles 38.21 and 38.23 and the line of cases that illuminate them.” However,
appellant provides no argument, analysis, or legal authority to support his request.
See TEX. R. APP. P. 38.1(i). Further, to the extent appellant is arguing that Sergeant
Tamayo’s testimony regarding appellant’s statements while in jail on an unrelated
charge was inadmissible because appellant was not previously advised of his
4
Rule 613(a) provides, in pertinent part, as follows:
(a) Examining Witness Concerning Prior Inconsistent Statement. In
examining a witness concerning a prior inconsistent statement made by
the witness, whether oral or written, and before further cross-
examination concerning, or extrinsic evidence of, such statement may
be allowed, the witness must be told the contents of such statement and
the time and place and the person to whom it was made, and must be
afforded an opportunity to explain or deny such statement. If written,
the writing need not be shown to the witness at that time, but on
request the same shall be shown to opposing counsel. If the witness
unequivocally admits having made such statement, extrinsic evidence
of same shall not be admitted. This provision does not apply to
admissions of a party-opponent as defined in Rule 801(e)(2).
TEX. R. EVID. 613.
5
Rather, the record reflects that the trial court admitted Corwin Johnson’s July 2,
2012 sworn written statement pursuant to Rule 613 solely for impeachment
purposes.
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Miranda6 rights, appellant has not preserved error, if any, for our review because
he did not object at trial on this ground. See Smith v. State, 721 S.W.2d 844, 855
(Tex. Crim. App. 1986) (concluding where record did not reflect whether appellant
was given Miranda warnings, error was not preserved for review because appellant
did not object at trial). Moreover, we are aware of no evidence in the record, nor
does appellant direct us to any, reflecting that he was not given his Miranda
warnings prior to making the statement at issue. See Smith, 721 S.W.2d at 855. As
such, we overrule appellant’s second issue.
Conclusion
We affirm the trial court’s judgment.
Jim Sharp
Justice
Panel consists of Justices Keyes, Sharp, and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).
6
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
8