Cedric Deshawnn Green v. State ( 2020 )

NUMBER 13-18-00690-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
CEDRIC DESHAWNN GREEN, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 117th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Perkes, and Tijerina
Memorandum Opinion by Justice Perkes
A jury convicted appellant Cedric Deshawnn Green of murder and engaging in
organized criminal activity, both first-degree felonies, and sentenced him to concurrent
prison terms of fifty-five and sixty-five years. See TEX. PENAL CODE ANN. §§ 19.02, 71.02.
Green challenges the sufficiency of the evidence to support his convictions under both
the legal sufficiency standard and the accomplice-witness rule.1 He also argues that the
State willfully withheld material evidence in violation of the Michael Morton Act, and
therefore the trial court abused its discretion in denying his motion for a new trial. We
affirm the murder conviction and reverse and render an acquittal on the engaging in
organized criminal activity conviction.
I. BACKGROUND
A. Introduction
On the morning of October 21, 2017, Juan “Stephanie” Montez went into a
Church’s Chicken near her residence and exchanged two rolls of dimes for paper money. 2
An employee described Montez, a regular at the store, as “nervous.” Later that day, a
woman living in rural Nueces County heard “pops” on her property. When she looked
through her window, she saw Montez crawling out of the brush asking for help. When
Nueces County Sheriff’s deputies arrived on the scene, they found Montez bloody and
leaning against the house. Montez could hardly talk; the only thing she said to officers
was, “Help me. They’re trying to kill me.” Montez later died from her injuries.
The Nueces County medical examiner ruled Montez’s death a homicide by multiple
gunshot wounds. Montez was shot a total of five times with entry wounds on both the
front and back of her body. The medical examiner recovered several projectiles that
investigators later identified as 9mm bullets.
At the crime scene, investigators recovered twelve casings that were the same
1
Green also challenges the factual sufficiency of the evidence to support his convictions. Texas
courts have not recognized a distinction between legal and factual sufficiency in criminal proceedings for
ten years; the Jackson v. Virginia, 443 U.S. 307 (1979) legal sufficiency standard is the only standard for
reviewing the constitutional sufficiency of the evidence. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.
App. 2010) (plurality op.).
2
We will refer to Montez with feminine pronouns because she identified and lived as a female.
2
caliber as the bullets recovered from Montez’s body. A firearms expert testified that the
casings were fired from a semi-automatic pistol. He further testified that a Taurus 9mm
pistol is a widely available gun and among the many makes and models of guns that could
have fired these casings and bullets.
B. Accomplice-witness testimony
According to Randy Dorsey, an accomplice-witness who testified for the State, he,
Green, Chloe Huehlefeld, and Jace Montange conspired to kill Montez as retribution for
Montez stealing $20 in dimes from Chloe. Earlier that day, Green discovered that a
significant amount of his own money had gone missing. Green initially accused Dorsey,
who is Green’s godbrother. The two of them then went to Montez’s nearby residence,
where Chloe was staying, and Green put a gun in Chloe’s face and said, “B****, where’s
my money?” Chloe, who at times had an intimate relationship with Green, denied that she
took his money, and the three of them returned to Green’s place. Later that day, Montez
came to Green’s house and purchased drugs from him. It was at this point that Chloe
realized that $20 in dimes were missing from her purse.
Dorsey testified that he, Green, Chloe, and Jace drove to a nearby Church’s
Chicken where an employee confirmed that Montez had exchanged the $20 in dimes for
paper money earlier that day. Green then told Chloe that Montez “had to learn a lesson”
and that Chloe needed to “handle it.”
According to Dorsey, Green was the leader of the conspiracy. They collectively
lured Montez to a secluded area under false pretenses where Green prompted Chloe and
Jace to shoot Montez with his gun. Specifically, Chloe called Montez to come to Green’s
house with the promise of a money-making opportunity. Before Montez arrived, sheets
were placed on the floor of Green’s car “[s]o nobody would have no evidence in the car,”
3
and Green directed each member of the conspiracy on where to sit in relation to Montez—
Chloe in the front passenger seat and Jace and Dorsey on either side of Montez in the
back. Green then drove the five of them in his car to the crime scene, a rural area in
Nueces County.
At the scene, Chloe used Green’s pistol to shoot Montez a single time, telling
Montez, “B****, you gonna learn to steal from me.” Green then reloaded the pistol, handed
it to Jace, and said, “Go finish it.” Jace chased after the fleeing Montez, firing
approximately “nine” shots at her.
Afterwards, Green drove the four of them to a jetty where Jace and Green broke
the gun down and threw the parts into Corpus Christi Bay. Dorsey described Chloe and
Jace as “paranoid” and Green as “calm.” When they got back to Green’s house, Green
directed them to take off their clothes “so there is no evidence.” They placed the clothes
into a plastic bag, drove to Green’s sister’s house, and Green burned the clothes in a
barbecue pit.
Dorsey admitted to being high on crack cocaine and PCP at the time of the
shooting, as well as taking prescribed medications for psychiatric conditions, but he
claimed these drugs had no effect on his ability to clearly remember the day’s events.
Dorsey also acknowledged that he accepted a plea bargain in exchange for his testimony;
Dorsey received a ten-year sentence, probated for ten years, for his part in the murder.3
3
Chloe and Jace were also tried and convicted of murder and engaging in organized criminal
activity. See Huehlefeld v. State, No. 13-18-00688-CR, 2019 WL 3331636 (Tex. App.—Corpus Christi–
Edinburg July 25, 2019, no pet.) (mem. op., not designated for publication); Montange v. State, No. 13-19-
00207-CR, 2020 WL _______ (Tex. App.—Corpus Christi–Edinburg Dec. 22, 2020, no pet. h.) (mem. op.,
not designated for publication) (available at http://search.txcourts.gov/Case.aspx?cn=13-19-00207-
CR&coa=coa13).
4
C. Corroborating evidence
A Church’s Chicken employee testified that three men came into the store on
October 21st, asking whether Montez had exchanged the dimes for paper money. One
of those men, who the employee identified in court as Green, became “angry” and “upset”
when the employee confirmed that Montez had exchanged the dimes. A silent
surveillance video of the exchange was played for the jury.
Investigators executed a search warrant at Green’s residence. Inside a lockbox in
Green’s bedroom, they recovered Green’s Texas identification card, a plastic bag
containing a “white rock substance,” and several bundles of paper money and multiple
coins of various denominations totaling approximately $3,500. Other items seized
included an AR-15 rifle, body armor, a small amount of marijuana, a digital scale, drug
paraphernalia, and twelve cell phones.
The cell phones were turned over to Skeeter Upton, an intelligence analyst with
the Drug Enforcement Agency. Upton was able to complete data extraction and file
system transfers on four of the phones; the other phones were inaccessible for various
reasons. Two days after Montez was murdered, the following text exchange occurred
between the cellphone numbers associated with Green and his ex-wife Latoya Davis:4
Latoya’s phone:5 By the way umm how long is she staying at our house
cause we not moving in there real talk
Green’s phone: Yeah… And I’ll let you talk to Chloe… I’m looking at the
big picture… I got her into this so its only right that we
look after her until she can find somewhere to go…
4
Upton testified that he can associate a phone number with a person with the aid of commercial
data bases. In this case, the phone number he associated with Green was linked to Green’s Facebook
account.
5
To maintain readability, we have elected not to correct or indicate the numerous grammatical
errors in the text exchange. Any ellipsis within a text message is the authors.
5
Green’s phone: Like I told you before; you dont have to worry about me
doing nothing so get that through your head Hunnie
cause it’s only going to cause problems between us
Latoya’s phone: How the f*** you get her into this you aint put no gun to
her head she had all the choices yall was just on some
gangster s*** and she wanted to prove to you she
wasnt no punk
....
Latoya’s phone: Idk why i feel like im getting f***** around cause i see
how you act around her
Green’s phone: I could easily wash my hands with you and say you got
it… Lets keep it real…
Green’s phone: I dont act like s*** around her… You tripping
Latoya’s phone: What well if its that easly said then do it
Latoya’s phone: Becareful what you say to me
Green’s phone: S*** and the way you talking doesnt make it any better
so be careful wtf you’re saying ok
Green’s phone: Wtf does that supposed to mean? Please tell me
Green’s phone: You talking about opening your mouth about the s***?!
Latoya’s phone: Naw you say its easy though so how am I suppose to
take that s*** you look at the big picture besides the
rest of this bulls***…idc what yall did n**** I dont talk
my business
Green’s phone: To tell you the truth i really dont like how you’re talking
Latoya’s phone: WhT you mean
Green’s phone: U on some f*** s***
Green’s phone: Like you hanging the s*** over my head…Smmfh…bet
that…I Have nothing more to say…you have a good
day
The cell phone extraction of Green’s cell phone also revealed two images of
6
Taurus pistols—one was a photograph of a black and gold Taurus 9mm pistol and the
other was a screen shot of a silver and gold Taurus 9mm pistol taken while visiting
taurususa.org. Additionally, call logs showed that Green’s phone was used to call the cell
phone of Montez’s mother while Montez was visiting her on the afternoon of October 21st.
This phone call was placed after Green, Chloe, Dorsey, and Jace confirmed that Montez
exchanged the dimes at Church’s Chicken.
D. Green’s statement to police
During an interview with investigators, a video recording of which was played for
the jury, Green admitted to previously owning a “silver and gold” Ruger pistol. He claimed
that the gun, along with $1,700, were stolen from his home prior to Montez’s death. A
witness testified to seeing Green with the black and gold gun depicted in the picture “two
or three” days before Montez’s death. Dorsey testified that the silver and gold gun
depicted in the screen shot was the same gun used to shoot Montez.
During the interview, Green admitted he is a drug dealer and regularly sold Montez
drugs, including crack cocaine on October 21, 2017. He also said that he previously
purchased prescription drugs from Montez, and an investigator later confirmed that
Montez was known to sell both illicit and prescription drugs.
Green also acknowledged that Chloe sold drugs for him, that the $20 in dimes was
money he paid her for selling drugs, and that Chloe complained to him when the money
went missing. He admitted to going to Church’s Chicken and finding out that Montez had
exchanged the coins. He also admitted to going to his sister’s house on October 21st with
Chloe and Dorsey.
He initially denied knowing Jace and insisted that only he, Chloe, and Dorsey were
in the car at Church’s Chicken. After investigators told Green they knew a “white boy” was
7
also with them, Green admitted that a guy named “Frost” had been there. Green said that
he met “Frost” days earlier, did not know him well, and that October 21st was the first time
they spent any significant time together. 6 He said that after they discovered that Montez
had exchanged the coins at Church’s Chicken, he, Chloe, and Dorsey went back to his
home, and “Frost” left. When investigators asked Green whether he thought Montez was
also capable of stealing his missing $1,700, he initially said no, but then agreed that
“anybody” could have been the person that came into his house and stole the money.
At the end of the interview, Green warned the investigators not to accuse him of
the murder “because if you shoot that s*** at me, I’m gonna get on you’re a**, bro.” He
elaborated—in colorful language—that he does not tolerate people who mistreat him. For
example, he told the investigators that if he finds out who stole his $1,700, he would “beat
their mother f****** a**.” “It’s a promise,” said Green.
E. Motion for new trial
The jury convicted Green of murder and engaging in organized criminal activity.
His sentence was imposed on December 11, 2018. On December 12, 2018, the trial court
permitted Green’s trial counsel to withdraw and appointed Green appellate counsel. On
February 15, 2019, Green filed a motion for a new trial. Attached to the motion is a copy
of a December 20, 2018 email from the prosecutor to Green’s appellate counsel, among
others. In the email, the prosecutor implies that although the State previously produced
“the vast majority” of the data extracted from the seized cell phones, not all the data was
6
Prior to the admission of the video, the State agreed to exclude certain statements by Green in
which he acknowledges being a member of a criminal street gang and meeting Jace Montange through his
membership in the same gang. The State explained that it agreed to exclude these statements because
“we don’t have any belief that this was a concerted gang activity[,] [and] . . . the jury could improperly think
that this is somehow a gang activity.” Accordingly, Green was not indicted for, and the jury was not
instructed on, the offense of engaging in organized criminal activity as a member of a criminal street gang.
See TEX. PENAL CODE ANN. § 71.02(a).
8
produced. Green argued in his motion that this data, which he described as GPS
information, text messages, call logs, social media information, and photos, “could prove
to be exculpatory.” The additional data is not attached to Green’s motion, and Green’s
counsel has since acknowledged to this Court that he has not reviewed the undisclosed
data.7 The trial court did not hold a hearing, and the motion was overruled by operation
of law. This appeal ensued.
II. SUFFICIENCY OF THE EVIDENCE
A. Standard of Review & Applicable Law
When reviewing claims of legal insufficiency, the relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution, 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, 319 (1979); Whatley v. State, 445 S.W.3d 159, 166
(Tex. Crim. App. 2014). The fact finder is the exclusive judge of the facts, the credibility
of the witnesses, and the weight to be given to the testimony and is presumed to have
resolved any conflicts in the evidence in favor of the verdict. See Bartlett v. State, 270
S.W.3d 147, 150 (Tex. Crim. App. 2008); see also Hooper v. State, 214 S.W.3d 9, 13
(Tex. Crim. App. 2007) (giving deference to the fact-finder “to fairly resolve conflicts in
testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to
ultimate facts”).
“Circumstantial evidence is as probative as direct evidence in establishing guilt,
and circumstantial evidence alone can be sufficient to establish guilt.” Winfrey v. State,
7
During oral argument, Green’s counsel explained that, “After trial, we were given a list of files that
were not disclosed to the defense.” He further explained that, “Nobody knows whether this information
could have been used” because “[w]e do not know what was in the material given after trial.” When asked
whether he sought the undisclosed files from the State, Green’s counsel responded, “I did not get those.”
9
393 S.W.3d 763, 771 (Tex. Crim App. 2013) (citing Hooper, 214 S.W.3d). Juries are
permitted “to draw reasonable inferences as long as each inference is supported by the
evidence presented at trial. However, juries are not permitted to come to conclusions
based on mere speculation or factually unsupported inferences or presumptions.”
Hooper, 214 S.W.3d at 15.
Sufficiency of the evidence is measured by the elements of the offense as defined
by a hypothetically correct jury charge. Braughton v. State, 569 S.W.3d 592, 608 (Tex.
Crim. App. 2018) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)).
“Such a charge would be one that accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily
restrict the State’s theories of liability, and adequately describes the particular offense for
which the defendant was tried.” Malik, 953 S.W.2d at 240.
Even if legally sufficient, a defendant cannot be convicted solely on accomplice
witness testimony; there must be other evidence tending to connect the defendant to the
offense. TEX. CODE CRIM. PROC. ANN. art. 38.14. As a statutorily imposed rule, the
constitutional legal sufficiency standard under Jackson v. Virginia does not apply to non-
accomplice evidence. Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008).
Instead, to satisfy the rule, “the evidence must simply link the accused in some way to the
commission of the crime and show that ‘rational jurors could conclude that this evidence
sufficiently tended to connect [the accused] to the offense.’” Id. (quoting Hernandez v.
State, 939 S.W.2d 173, 179 (Tex. Crim. App. 1997) (alteration in original). Every case
must be evaluated on its own facts. Id. (citing Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim.
App. 1994)). While a defendant’s mere presence at the crime scene is insufficient, this
fact, coupled with other suspicious circumstances, may tend to connect the defendant to
10
the crime. Id. (citations omitted).
B. The evidence was legally sufficient to support Green’s murder conviction
A hypothetically correct jury charge would instruct the jury to find Green criminally
responsible as a party to Montez’s murder if Chloe and Jace, with the intent to cause
seriously bodily injury, committed an act clearly dangerous to human life that caused
Montez’s death, and Green, acting with the intent to promote or assist in the commission
of the offense, solicited, encouraged, directed, or aided Chloe and Jace to commit
Montez’s murder. See TEX. PENAL CODE ANN. §§ 7.02(a)(2), 19.02(b)(2). We conclude
that Dorsey’s accomplice-witness testimony alone was legally sufficient to support
Green’s murder conviction. See Taylor v. State, 10 S.W.3d 673, 684–85 (Tex. Crim. App.
2000) (explaining that uncorroborated accomplice witness testimony can be legally
sufficient under Jackson v. Virginia). Dorsey identified Green as the leader of the
conspiracy to murder Montez, explaining how Green offered direction, encouragement,
and aid throughout the planning and commission of the offense. Green’s sole challenge
to Dorsey’s testimony was that Dorsey was not credible based on his history of drug use
and mental illness, as well as the plea bargain he received in exchange for his testimony.
However, credibility determinations are the sole province of the jury, and we must
presume that the jury found Dorsey’s version of events credible. See Bartlett, 270 S.W.3d
at 150; Whatley, 445 S.W.3d at 166. We overrule Green’s legal sufficiency challenge to
his murder conviction.
C. The State sufficiently corroborated Dorsey’s accomplice testimony
Even if Dorsey’s testimony was legally sufficient, Green argues that his murder
conviction should be overturned because the State failed to sufficiently corroborate
Dorsey’s testimony under the accomplice-witness rule. See TEX. CODE CRIM. PROC. ANN.
11
art. 38.14. We disagree; the State offered a significant amount of non-accomplice
evidence “tending to connect” Green to the murder. See id.Perhaps the most compelling non-accomplice evidence were the text messages
between Green and Latoya two days after the murder.8 These texts corroborated
Dorsey’s testimony that Green orchestrated the murder and Chole shot Montez,
beginning with Green’s admission that, “I got [Chloe] into this so its only right that we look
after her until she can find somewhere to go.” While Latoya disagreed that Green was
responsible for Chloe’s actions, she nonetheless linked Green to the murder by saying
“yall was just on some gangsta s*** and she wanted to prove to you she wasnt no punk.”
Furthermore, Green asked Latoya if she was “talking about opening her mouth” and then
accused her of “hanging the s*** over [his] head.” See Hyde v. State, 846 S.W.2d 503,
(Tex. App.—Corpus Christi–Edinburg 1993, pet ref’d) (noting that consciousness of guilt
“is perhaps one of the strongest kinds of evidence of guilt.” (citing Torres v. State, 794
S.W.2d 596, 598 (Tex. App.—Austin 1990, no pet.))). Finally, in an attempt to reassure
Green, Latoya implicated him again, saying “[I don’t care] what yall did . . . I dont talk my
business.”9 Because this evidence alone sufficiently connected Green to the murder, we
overrule Green’s challenge to his murder conviction under the accomplice-witness rule. 10
See Cerna v. State, 441 S.W.3d 860, 866 (Tex. App.—Houston [14th Dist.] 2014, pet.
8
Based on the content and context of the messages, it was reasonable for the jury to infer that the
text messages sent from Green and Latoya’s known cell phone numbers were authored by Green and
Latoya. See Butler v. State, 459 S.W.3d 595, 603 (Tex. Crim. App. 2015) (citing Tienda v. State, 358 S.W.3d
633, 641 & n.34 (Tex. Crim. App. 2012)).
9
Davis, who previously testified on behalf of the State in Chloe’s trial, was excluded from testifying
in this case because, contrary to Green’s discovery request, the State failed to disclose that it granted Davis
immunity in exchange for her testimony.
10
We note that later in his brief Green seems to concede that the cell phone data was sufficient
non-accomplice evidence. Describing it as “damaging, harmful evidence,” Green claims that “[w]ithout this
digital evidence consisting of texts, social media pictures, phone calls and websites[,] it would have been
impossible for the jury to convict based on Dorsey’s testimony alone.”
12
ref’d) (finding text messages, among other evidence, corroborated accomplice’s
testimony); see also Walker v. State, No. 06-15-00136-CR, 2016 WL 1600268, at *1 (Tex.
App.—Texarkana Apr. 21, 2016, pet. ref’d) (mem. op., not designated for publication)
(holding text messages from accomplice’s cell phone alone were sufficient to corroborate
accomplice’s testimony).
D. The evidence was legally insufficient to support Green’s conviction for
engaging in organized criminal activity
While the State proved that Green and his three accomplices conspired to murder
Montez, there is no evidence in the record that the murder was committed with the intent
to establish, maintain, or participate in a combination. See TEX. PENAL CODE ANN.
§ 71.02(a)(1); Rodriguez v. State, 90 S.W.3d 340, 354 (Tex. App.—El Paso 2001, pet
ref’d) (“The State is required to prove that the defendant committed the predicate offense
with the specific intent to participate in or facilitate a combination.”)
A hypothetically correct jury charge would instruct the jury to find Green guilty of
engaging in organized criminal activity if, with the intent to establish, maintain, or
participate in a combination, Green conspired to commit Montez’s murder. See TEX.
PENAL CODE ANN. § 71.02(a)(1). A “combination” is “three or more persons who
collaborate in carrying on criminal activities.” Id. § 71.01(a).
The Texas Court of Criminal Appeals has explained that the phrase “collaborate in
carrying on criminal activities” requires the State to “prove more than that the appellant
committed or conspired to commit one of the enumerated offenses with two or more other
people.” Nguyen v. State, 1 S.W.3d 694, 697 (Tex. Crim. App. 1999); see also O’Brien v.
State, 544 S.W.3d 376, 389 (Tex. Crim. App. 2018) (deciding that engaging in organized
criminal activity is a “circumstances surrounding the conduct” offense and explaining that
13
the statute’s primary focus is organized crime). Thus, a conspiracy among three or more
people to commit murder, without more, is insufficient to prove the additional offense of
engaging in organized criminal activity. Nguyen, 1 S.W.3d at 697. The State must also
establish the existence of a combination, and to do so, the State must prove the defendant
committed the murder with the intent “to work together in a continuing course of criminal
activities.” Id. The combination may be ongoing at the time the predicate offense is
committed or the evidence may support a showing that the predicate offense was
committed with the intent to “establish” a combination. Id; see, e.g., Barber v. State, 764
S.W.2d 232, 236–37 (Tex. Crim. App. 1988) (holding evidence sufficient to support intent
element where scheme to steal oil was proven by evidence that collaborators put up
money for the operation, leased property where stolen oil would be stored, set up
telephone service at terminal where oil would be sold, moved oil storage tanks to the
leased property, purchased trucks and hired drivers to transport the stolen oil, opened a
bank account, and made agreements for the sale of the oil).
The State’s theory of the case, as expressed in the indictment, jury charge, and
presentation to the jury, was that it could satisfy the intent element of the offense by
merely proving that the conspirators committed more than one predicate offense. The
State alleged in the indictment that Green and his accomplices committed the offenses
of “Murder and/or Aggravated Assault” with the intent to establish, maintain, or participate
in a combination. Like murder, aggravated assault is a predicate offense under the
organized criminal activity statute. See TEX. PENAL CODE ANN. § 71.02(a)(1). Under the
State’s theory, proving the commission of more than one predicate offense necessarily
14
constitutes “carrying on criminal activities.”11 See id. § 71.01(a). We disagree.
As the Texas Court of Criminal Court has previously explained—and the plain
language of the statute suggests—the State must prove that a predicate offense was
committed with the intent “to work together in a continuing course of criminal activities.”
Nguyen, 1 S.W.3d at 697 (emphasis added). Thus, we fail to see how committing two
predicate offenses simultaneously, especially when one is a lesser-included offense of
the other, see Barrios v. State, 389 S.W.3d 382, 399 (Tex. App.—Texarkana 2012, pet
ref’d), indicates an intent to collaborate in criminal activities over a period of time. See
TEX. PENAL CODE ANN. § 71.01(a); Nguyen, 1 S.W.3d at 697.
Moreover, the engaging statute specifically contemplates that a person commits a
single offense of engaging if, with the requisite intent, “the person commits or conspires
to commit one or more of the [predicate offenses].” TEX. PENAL CODE ANN. § 71.02(a)
(emphasis added); see also id. § 71.02(b) (explaining that “an offense under this section
is one category higher than the most serious offense . . . committed) (emphasis added).
In other words, the intent element is a distinct and separate element and the commission
of multiple predicate offenses may, but does not necessarily, indicate an intent to
establish, maintain, or participate in a combination. See id. § 71.02(a); see also O’Brien,
11
During closing, the State explained the engaging charge and its supporting evidence as follows:
Let’s talk about engaging in organized criminal activity. If you would, please, turn to page
9 of your Charge. You’re going to see here “Combination.” A combination means three or
other [sic] persons who collaborated on any ongoing criminal activities. What we’re talking
about here, very similar to the law of parties, right? You heard of the law of parties. Chloe
and Jace shot, but [Green] set it up, he gave them the gun, he put the gun in Jace’s hand
with the loaded clip and said, “Finish the job.” He encouraged them. And that’s very similar
to what we have here, in engaging in organized criminal activity. Three or more people
engaging in a combination to carry on criminal activity, aggravated assault and murder. It’s
pretty simple. It may sound confusing, but it’s really not, when you look at it. That’s exactly
what we have here, [Dorsey], Jace, Chloe, and [Green] planned out a murder and carried
it out. And because of that, they’re guilty of murder, they’re guilty of engaging in organized
criminal activity.
15
544 S.W.3d at 389 (explaining that the inclusion of the phrase “one or more of the
following” in the statute “demonstrates the Legislature’s focus upon the creation or
existence of a criminal combination rather than upon a specific predicate offense.”). To
hold otherwise would render the intent element superfluous. See Ex parte Forward, 258
S.W.3d 151, 154 (Tex. Crim. App. 2008) (“When engaging in statutory construction, we
generally presume that ‘the entire statute is intended to be effective.’” (quoting TEX. GOV’T
CODE ANN. § 311.021)).
In this case, “[t]he evidence does not indicate that there was any intent to form a
group to carry on criminal activities, and the State does not point to any evidence in the
record that supports such a finding.” See Nguyen, 1 S.W.3d at 697. According to Dorsey,
the conspiracy’s sole objective was to teach Montez “a lesson” for stealing. The State’s
other evidence corroborated his account. There is no evidence in the record that a
combination existed prior to Montez’s murder, and there is no evidence in the record that
the conspirators intended to collaborate in ongoing criminal activities after the murder.
See id. Because a conspiracy among three or more people to commit murder alone is
insufficient to prove the additional offense of engaging in organized criminal activity, we
sustain Green’s legal sufficiency challenge to his conviction for engaging in organized
criminal activity. See id.III. MOTION FOR A NEW TRIAL
Green also argues that the trial court erred in failing to grant him a new trial
because the State failed to timely disclose material evidence under the Michael Morton
Act. See TEX. CODE CRIM. PRO. ANN. art 39.14. We review a trial court’s denial of a motion
for new trial for an abuse of discretion. Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim.
App. 2006) (citing Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995)). “A trial court
16
abuses its discretion in denying a motion for new trial only when no reasonable view of
the record could support the trial court’s ruling.” Id. (citing Lewis, 911 S.W.2d at 7).
During oral argument before this Court, Green acknowledged that his motion for
new trial—filed more than two months after his sentence was imposed—was untimely.
See TEX. R. APP. P. 21.4(a) (establishing a thirty-day deadline to file a motion for new trial
from the date the trial court imposes the sentence in open court). A trial court has no
authority to grant an untimely motion for new trial. State v. Moore, 225 S.W.3d 556, 569
(Tex. Crim. App. 2007). Thus, the trial court did not abuse its discretion in denying Green’s
untimely motion because it had no discretion to grant the motion in the first instance. See
id. Without reaching the merits of Green’s motion for new trial, we overrule his third
issue. 12
IV. CONCLUSION
We affirm Green’s murder conviction. We reverse and render an acquittal on
Green’s conviction for engaging in organized criminal activity.
GREGORY T. PERKES
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
22nd day of December, 2020.
12
We note that the untimely filing by Green’s appellate counsel does not preclude Green from
ultimately having the issue decided on the merits; he may raise the issue in a post-conviction application
for habeas relief. See Diamond v. State, NO. PD-1299-18, 2020 WL 3067582, at *7 (Tex. Crim. App. June
10, 2020).
17