Larry Dale King v. the State of Texas ( 2024 )

Opinion issued March 21, 2024
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-23-00094-CR
———————————
LARRY DALE KING, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 412th Judicial District Court
Brazoria County, Texas
Trial Court Case No. 91525-CR
MEMORANDUM OPINION
A jury convicted appellant Larry Dale King, Jr. of tampering with physical
evidence—a human corpse—and sentenced him to twenty years’ confinement with
a $9,800 fine. See TEX. PENAL CODE §§ 37.09(c), (d)(1). Though not entirely clear
from Larry’s briefing, we construe his arguments as challenging (1) the sufficiency
of the evidence corroborating an accomplice witness’s testimony; and (2) the legal
sufficiency of the evidence supporting his conviction.1 For the reasons discussed
below, we affirm.
Background
Larry was charged with tampering with physical evidence—specifically, the
remains of his girlfriend, Staysha Lea. He proceeded to a jury trial.
A. Matt’s Testimony
Larry’s accomplice, his brother, Matt, testified for the State.2 He testified that
in late July 2020, he allowed Larry and Lea to move in with him while Larry looked
for a job. Matt did not want any drugs in his apartment, because he was working to
regain custody of his children. Shortly before the August rent was due, Matt noticed
1
Larry only raises one enumerated issue in his appellate briefing, stating: “The
evidence adduced at trial was insufficient to support this conviction under the Texas
Code of Criminal Procedure, article 38.14, a conviction cannot stand on the
accomplice witness’s testimony unless the testimony is corroborated by other, non[-
]accomplice evidence that tends to connect the accused to the offense.” Elsewhere
in his brief, Larry explicitly states that he “challenges the legal sufficiency of the
evidence to support his conviction[]” and discusses the Jackson v. Virginia legal
sufficiency standard. See 443 U.S. 307 (1979). Construing Larry’s briefing liberally,
as we must, we address both arguments. See TEX. R. APP. P. 38.1, 38.9.
2
At the time of trial, Matt had been in jail for twenty-nine months. Matt testified that
in exchange for his testimony, he was given use immunity relating to felony charges
against him for tampering with physical evidence. Use immunity is “immunity from
the use of the compelled testimony and any evidence derived therefrom”; by
contrast, transactional immunity is “immunity from prosecution for offenses to
which [the] compelled testimony relates.” Foyt v. State, 602 S.W.3d 23, 41 n.6 (Tex.
App.—Houston [14th Dist.] 2020, pet. ref’d).
2
that $400 was missing from his wallet. He suspected Lea took the money. After
Larry paid the entire month’s rent, Matt “let it go.”
On Sunday, August 9, 2020, Matt was getting ready for a visit with his
children when he realized his phone was missing. Lea had left the apartment earlier,
claiming she was going to sell some jewelry for money. Matt and Larry searched the
apartment but did not find the phone. Instead, they found a baggie containing white
residue in Lea’s bedroom. Matt left for the visit without his phone, upset that it
appeared Lea had drugs in his apartment.
Lea had taken a car that belonged to Matt’s friend when she left earlier that
day. Larry did not hear from Lea until late in the evening, when she told him that
she had left the vehicle at a nearby Buc-ee’s. Matt, Larry, and some friends drove to
Buc-ee’s to pick up the car, which had run out of gas. Lea was not at the gas station.
Later, Lea told Matt that she had left his phone in the glove compartment of the
vehicle. When Matt retrieved his phone, he discovered that Lea had used the
CashApp application to obtain $200 from Matt’s father, purporting to be Matt.
Matt testified that on the morning of August 10, 2020, between 1:00 a.m. and
2:00 a.m., he received a call from a police officer at the gas station. The officer
testified at trial that Lea had been sitting outside in front of the store, and Lea asked
her to call Larry, because Lea’s phone had died. The officer called Larry, who said
he would come pick up Lea. Matt then got on the phone with the officer, “yelling
3
about the fact that [Lea] possibly took $200 from him.” Matt then arrived at Buc-
ee’s without Larry. According to Matt, he went to Buc-ee’s to get Lea’s key to the
apartment, but she would not return it. Matt told the officer that Lea was not allowed
to return to the apartment. However, the officer advised Lea that Matt could not keep
her out of the apartment “because that’s where she had established residency.” Lea
stayed at the gas station, and Matt returned home.
Matt testified that later that morning, he went to work. As he left the
apartment, he told Larry to sleep on the sofa with the sofa blocking the door to keep
Lea out. Matt stopped at Buc-ee’s on his way to work and saw Lea. On his way out,
he told her not to come back to the apartment. Larry called Matt later and said Lea
had been trying to get in. Subsequently, Lea gained entry to the apartment. Matt
returned home to serve Lea with a homemade eviction notice, stating, “Happy
birthday. You’re getting evicted.”3 He then locked Lea outside on the apartment’s
second-floor balcony while she was smoking. Matt testified that he also changed the
locks, took Lea’s door off its hinges, and removed the thermostat. Matt stated that
he believed Lea was under the influence of drugs and wanted her to be
uncomfortable. He testified that the temperature was in the mid to high nineties that
afternoon.
3
August 10th was Lea’s birthday.
4
Lea called police to report that she had been locked out of the apartment. After
an officer arrived, she was able to use her key to unlock the balcony door. Lea also
called the apartment manager to report Matt’s removal of the door and thermostat,
and the manager called Matt. Matt got the impression that all the occupants would
be evicted if the situation was not resolved.
Matt spent the next few hours at a friend’s apartment down the hall. He
testified that police were dispatched to the apartment two more times following calls
from Lea. Lea called to report that Matt had closed the windows to the apartment
after Lea had opened them. Matt testified that he did this more than once because he
did not want bugs to get into the apartment. The last time police came to the
apartment, around midnight or 1:00 a.m., they advised that the situation was a civil
matter, not criminal, and asked Lea to stop calling. According to Matt, during this
time, Larry was “always walking off . . . playing his little game on his phone.”
Matt attempted to stay at his neighbor’s apartment that night, but he eventually
returned home between 12:30 a.m. and 1:00 a.m. When he entered the apartment,
the light to Larry and Lea’s bedroom was on, but the lights in the other rooms were
off. Matt testified that he observed Larry “sitting on top of [Lea] . . . straddling her
abdomen.” Matt stated that Larry was “sitting on her stomach with her arms pinned
between his legs and her body.” Lea was not moving. He testified that when he was
finally able to see Lea four to five minutes later, she “was blueish gray in the face”
5
and was dead. Matt did not say anything, but Larry saw him. Larry approached Matt,
who was backed up against a wall, and “told [Matt he] was going to help him or
else.”
According to Matt, Larry told him that Lea sent Larry a text message stating
that she was “doubling down.”4 Larry took this as a threat and went upstairs to take
her phone from her. The two got into a “scuffling match” and Larry “ended up on
top of her.” Larry did not tell Matt what exactly happened next, but Larry said he
did not want to go back to jail.
Matt then testified regarding the pair’s efforts to move Lea and hide her body.
Larry spread a blanket out in the bedroom and obtained a roll of duct tape. Next, the
two men rolled Lea into the blanket, taped it up, and dragged her into the living
room, where they waited until the coast was clear to move her to the trunk of Larry’s
car. Matt estimated that they waited an hour or an hour and a half. He could not
recall what they discussed while waiting. He recalled seeing Lea’s smashed cell
phone in the apartment, though he did not see Larry break it. They then dipped Lea’s
cell phone in water “to kill it,” placed it in a baggy, and left it on the countertop.
Matt testified that it was Larry who decided they should take Lea’s body somewhere
4
Larry provided a written statement to investigators on August 27, 2020, which was
admitted at trial. In the statement, Larry recounted that he received a message from
Lea to this effect at approximately 10:45 p.m.
6
to dispose of it. Larry was on his cell phone “looking up places that [they] could take
her to.” When Larry decided on a location, they left the apartment.
When they arrived at the car, Larry removed the light from the trunk5 of the
car, and the men placed her inside. With Larry at the wheel, they first drove to their
parents’ home in Van Vleck to establish an alibi. The drive took fifteen to twenty
minutes. Matt testified that they remained at their parents’ home for approximately
thirty minutes. Larry picked up a bottle of bleach, “stuffed it in his clothing,” and
walked outside with it. Larry Sr. followed Larry outside, and Matt stayed inside with
their mother.
When they left, Matt and Larry traveled east along Highway 35 toward
County Road 477. Ultimately, they drove the car down a pipeline right-of-way and
found a spot to dump the body. The men dragged Lea’s body from the trunk,
unwrapped her, and wiped the body with the bleach and a t-shirt from the trunk. Matt
testified that they wiped the body to remove any fingerprints. They then got back in
the car to return to the apartment. On their way home, they threw out the t-shirt and
bleach bottle at different gas stations. Larry told Matt that he disposed of the blanket
a week or so later. Matt estimated that they arrived back at the apartment at 6:30
a.m. They then went to sleep before heading to work at approximately 9:00 a.m.
5
Photographs admitted at trial demonstrated the removal of the trunk light in Larry’s
car.
7
At some point after the disposal of Lea’s body, Matt and Larry agreed to a
version of events they would tell anyone who asked about Lea’s disappearance. Matt
testified that the story was “[t]hat [Lea] left the apartment on her own free will and
just dropped off the face of the earth.” However, the men “didn’t go over the story
enough times for it to actually stay with [Matt],” and he “fumbled it up.”
On September 5, 2020, a police officer interviewed Matt at work about Lea’s
disappearance. Matt initially told the officer that Lea was at the apartment when he
came back from his parents’ home on August 11, 2020, but then she left.6 Matt
returned to his apartment that day after he got off work. Larry arrived some time
thereafter. Matt testified that Larry “had a sick look on his face and he turned around
and walked out.” Matt found out later that Larry went to their parents’ home. He
tried reaching Larry several times, but only got Larry’s voicemail. On September 7,
2020, Matt called police to let them know that Larry “was on the run.”
A few days later, Matt spoke with his boss, Murray Underwood. Matt told
Underwood that he knew where Lea was and just wanted to say goodbye to his
children before turning himself in. Matt went to his children’s mother’s home in
Texas City, and police met him there. Matt got into the police car, told the officers
6
That same day, Larry told officers a different version of events—that Lea was gone
by the time they returned on August 11, 2020.
8
what happened, and took them to the site of Lea’s remains. The following day, he
provided a written statement detailing his account of the events.
B. Other Testimony
The jury also heard testimony from several other individuals, including Matt
and Larry’s friend and coworker, Eric Tilitzki; their boss, Murray Underwood; and
their brother, Dwayne King. Officers involved in the investigation also testified.
Regarding the incident at issue, Eric recalled that Matt and Larry arrived to
work late on August 11, 2020. He testified that Matt seemed more tired than normal,
was extremely late, and standoffish. Eric knew that Matt and Larry were attempting
to have the landlord evict Lea on August 11, so he thought it was odd that they did
not come discuss the matter with him when they arrived at work. Later that evening,
Matt eventually approached Eric at work. Matt told Eric that he gave Lea $200 and
“she just left.” According to Eric, this “[j]ust didn’t feel right,” so he decided to
question the men further. He asked the men to come by his house that evening. When
they did, he kept asking questions. Eventually, Larry told Eric that “[Lea] had to go
and they took care of it.” When the men left, Eric “didn’t feel good about that
conversation at all” and wanted to press the issue further. He invited them back a
few nights later, and Matt eventually stated that “[Lea] was deceased and her body
was disposed of in another county.” Neither of the men would disclose the location
of Lea’s body. On September 5, 2020, Eric provided a written statement to police.
9
The jury also heard testimony from Murray Underwood, the owner of Brazos
Motorsports. Underwood testified that Matt and Larry began working for him in the
summer of 2020. Matt and Larry were hired as mechanics and were good workers.
When Matt began “messing up pretty bad” on some general repairs, Underwood felt
“his head wasn’t in the game” and decided to terminate him. He also testified that
Matt was distant, very nervous, and was not acting like himself. Regarding Larry,
he said that he changed his appearance by “cut[ing] his hair off” and then stopped
coming to work. When he later came in to pick up his last paycheck, Underwood did
not recognize him. After that, he never heard from Larry again.
Before firing Matt, Underwood decided to ask him about what was going on
with him personally. Matt said he was nervous. Underwood testified that he “could
just tell he had something on his mind he wanted to get off his chest.” Matt told
Underwood that “he was pressured” and that Larry “made him help him get rid of a
body.” Underwood testified that the body belonged to “the girlfriend of his brother.”
Underwood then told Matt he needed to turn himself in, and he also contacted the
police department and provided a statement. The last Underwood heard from Matt
was a text message stating he was turning himself in to police.
Dwayne King also testified at trial. Dwayne explained that he is younger than
Larry but older than Matt. At the time of Lea’s disappearance, Dwayne lived in
Oklahoma. In September 2020, he came to Texas to drop off a truck for his father.
10
When Dwayne arrived, he spent the night at his parent’s house in Van Vleck. On
September 5, 2020, he received a text message from Larry, asking Dwayne to pick
him up. Dwayne went to get Larry and the two went fishing. Later that night, they
returned to their parents’ home. The next day, Larry went to church with Dwayne
and their parents. Dwayne testified that this was unusual for Larry because he is not
religious. After lunch, Dwayne was getting ready to return to Oklahoma. Larry told
Dwayne that he was going to Pennsylvania for work and was taking a bus. He
claimed that his bus was passing through Oklahoma City, and asked Dwayne if he
could ride with him to Oklahoma. Dwayne presumed Lea “wasn’t in the picture” if
Larry was going to work in Pennsylvania without Lea, because Larry typically
“[took] her with him everywhere and he was by himself.”
Dwayne described the ride to Oklahoma as awkward. He testified that Larry
pretended to sleep most of the ride, and talking was minimal. The men arrived in
Oklahoma late that evening. Larry spent the night with Dwayne, and the next day,
Dwayne dropped Larry off at the bus stop on his way to work.
Dwayne recalled that Matt turned himself in the following Wednesday. That
day, Matt called Dwayne to tell him he was about to turn himself in for helping Larry
hide Lea’s body.
Dwayne did not have contact with Larry for ten or eleven months. He testified
that he eventually heard from Larry in summer 2021. Larry called Dwayne from an
11
unknown number and asked if he would come to the bus station to pick him up.
When Larry got in the car, he asked Dwayne “how big it was.” Dwayne explained
that he understood Larry to be asking about Lea’s case. Dwayne told him that it was
“pretty big.” Dwayne knew that police were looking for Larry, and he told Larry
this. He told Larry that he could come to the house to eat and shower, but then he
would have to leave. Larry told Dwayne that “somebody killed [Lea]” and that police
were looking for him. Larry also told Dwayne that “he felt bad for Matt going
through this.” Larry brought gifts for Dwayne and his wife. Dwayne testified that
Larry also had some “skull heads,” which Dwayne thought was strange. Dwayne
testified that Larry explained “it was like [Lea] was with him” and that the skulls
brought him closer to Lea. Larry then left Dwayne’s house after a few hours.
C. Recorded Interviews
Though Larry did not testify at trial, the State showed the jury three recorded
interviews he gave to police, all on September 5, 2020. In these interviews, Larry
gave officers an account of his on-and-off again relationship with Lea, beginning in
2015. Larry knew Lea had a drug problem and had been through drug treatment
before their relationship began. He learned that she began using drugs again in
December 2018. After that, Larry attempted to get Lea into various treatment
programs, but she was not interested. Larry also told officers that she repeatedly took
12
money from him and even when they were broken up, Lea would call him when she
knew he was getting paid.
Regarding the days leading up to Lea’s disappearance, Larry told officers how
Matt believed Lea took $400 from his wallet. Larry told Matt Lea never took money
in such an obvious manner—she preferred more surreptitious methods. Regardless,
Larry covered the $400 they needed to make rent. Larry then took what little money
he had left to buy groceries. Larry knew Lea’s birthday was coming up, and he did
not have money for a present, so he bought the ingredients for her favorite meal.
Instead of being appreciative, Lea was upset that they did not have money for beer
or cigarettes. Lea told Larry she had decided to sell one of her necklaces for money
and then left to meet the buyer, approximately forty-five minutes away.
That same day, Matt’s phone went missing. Larry and Matt searched the house
but could not find the phone. Larry stated that Matt eventually had to leave for an
appointment without his phone. While Matt and Lea were out of the apartment, Larry
searched Lea’s things for the missing phone. When Matt came home, he continued
with the search. At that point, Matt and Larry found what they believed to be a used
bag of drugs under Lea’s dresser. Matt then told Larry that Lea needed to move out
because Matt did not want any drugs in his apartment. Larry called Lea and told her
what they had found, and that Matt wanted her out of the apartment. He then accused
her of taking the phone and the $400. Larry also accused her of leaving to buy drugs
13
and not to sell jewelry. According to Larry, Lea only denied the accusation that the
baggy contained drugs. She then began asking Larry for gas money, even though she
had told him she would take her last ten dollars and fill up before she left. Larry told
Lea that he would not come pick her up. Sometime after midnight, Lea called Larry
and asked for a ride. Larry told Lea that he would not come get her, and that she
needed to return Matt’s car. Eventually, Lea called and stated that the car was at
Buc-ee’s. Matt, Larry, and some friends drove to Buc-ee’s in two vehicles to pick
up the car. There, they found the keys and Matt’s phone inside the car, but did not
see Lea.
Later that night, Lea had an officer call the house to ask the men to let her
back in. According to Larry, Matt went to Buc-ee’s to tell Lea she could not come
back for the night. Larry slept on the couch with the couch blocking the door so that
Lea could not return. Larry told officers that the next day, Monday, was Lea’s
birthday. Matt went to work that morning, but Larry was scheduled to be off. Shortly
after Matt left for work, Lea arrived at the apartment. Larry told Lea that she could
not come in, and she called police. Larry called Matt to let him know Lea had
returned, and Matt came home from work. Subsequently, Matt, an officer, and Lea
had a discussion outside while Larry remained inside. At some point, Matt and the
officer left, and Lea got inside. Larry again called Matt and let him know.
14
Lea told Larry she needed time to get into a program, but he told her she could
not stay at the apartment any longer. When Matt came home from work again, he
removed the thermostat and changed the locks on the front door. Larry and Matt left
to hang out with friends because the apartment was getting hot. Lea and Matt took
turns opening and closing the windows. Following another call from Lea, officers
returned to the apartment. At that time, Matt, Larry, and some friends were outside
the apartment. The officers spoke with Matt, Larry, and their friends. Larry recalled
that the last officer advised them that the situation was a civil matter, and that if they
kept calling police, someone would be arrested. Larry claimed that they then went
inside and began watching television, but it was very hot in the apartment—around
ninety-five degrees. They then decided to go to their parent’s house, sometime after
midnight.
During the interview, Larry told the officers that his parents had been living
in a camper in Van Vleck, Texas. When they arrived, both their mother and father
were at home. Larry claimed they stayed up talking to their father for awhile and did
not go to sleep. They returned to their apartment between 5:30 a.m. and 6:30 a.m.
Larry denied that the pair made any stops on the way to their parents’ home or on
the way back. According to Larry, when they returned to the apartment, the door
was unlocked. Larry reported that Lea was not in the apartment when they returned.
He stated that they then locked the door and attempted to take a quick nap before
15
going to work. Larry indicated that he and Matt arrived at work late because they
overslept, and when they arrived home after work that evening, Lea was still not
there.
Toward the conclusion of the interview, the officer confronted Larry with
Matt’s earlier statement that Lea was at the apartment when the men returned from
the visit to their parents’ house. Larry repeatedly denied that this was true. Larry also
told the officers that he sent a text message to Lea, letting her know that her mother
was looking for her. The officers told Larry that Lea’s phone had not been used since
she called 9-1-1 on the night of August 11, 2020. Officers also told Larry that
someone had reported that Larry said he “took care of the problem” with Lea and
disposed of her body. Larry maintained throughout the interview that he did not do
anything to harm Lea and did not know what had happened to her.
The jury was given an accomplice-witness instruction with regard to Matt,
instructing that Larry could not be convicted upon Matt’s testimony unless it found
(1) Matt’s testimony to be credible and that it showed Larry was “guilty beyond a
reasonable doubt,” and (2) other evidence in the case, outside of Matt’s evidence,
“tending to connect” Larry with the offense charged.7 On January 30, 2023, the jury
7
Larry was not charged for Lea’s murder—only with tampering with physical
evidence. At trial, the jury heard testimony from the medical examiner, who
explained that because only skeletal remains of Lea were recovered, she could not
determine her cause of death.
16
found Larry guilty of tampering with physical evidence, sentenced him to twenty
years’ confinement in the Texas Department of Criminal Justice–Institutional
Division, and imposed a $9,800 fine. The trial court signed a judgment of conviction
on February 8, 2023, and this appeal followed.
Accomplice Witness Testimony
We first consider Larry’s argument that the evidence presented at trial was
insufficient to corroborate Matt’s accomplice-witness testimony.8
A. Standard of Review
An accomplice is a person who participates with a defendant in the charged
offense before, during, or after its commission with the requisite mental state. Smith
v. State, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011). “A conviction cannot be had
upon the testimony of an accomplice unless corroborated by other evidence tending
to connect the defendant with the offense committed; and the corroboration is not
sufficient if it merely shows the commission of the offense.” TEX. CODE CRIM. PROC.
art. 38.14.
“When evaluating the sufficiency of corroboration evidence under the
accomplice-witness rule, we ‘eliminate the accomplice testimony from
consideration and then examine the remaining portions of the record to see if there
8
The parties do not dispute that Matt was an accomplice for purposes of the
accomplice-witness rule.
17
is any evidence that tends to connect the accused with the commission of the crime.’”
Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008) (quoting Solomon v.
State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001)). We view corroborating evidence
in the light most favorable to the jury’s verdict. Brown v. State, 270 S.W.3d 564, 567
(Tex. Crim. App. 2008). If there are two views of the evidence, one tending to
connect the accused to the offense and the other not, we defer to the jury’s view.
Smith, 332 S.W.3d at 442. “[I]t is not appropriate for appellate courts to
independently construe the non-accomplice evidence.” Id.“[T]he corroborating evidence need not prove the defendant’s guilt beyond a
reasonable doubt by itself.” Malone, 253 S.W.3d at 257. Nor is it necessary “that the
corroborating evidence directly connect the defendant to the crime.” Cathey v. State,
992 S.W.2d 460, 462 (Tex. Crim. App. 1999). Instead, the corroborating evidence
must only link the defendant 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.” Malone, 253 S.W.3d at 257 (quoting Hernandez v. State,
939 S.W.2d 173, 179 (Tex. Crim. App. 1997) (internal alterations omitted)). The
corroborating evidence need only “connect the defendant to the crime, not to every
element of the crime.” Joubert v. State, 235 S.W.3d 729, 731 (Tex. Crim. App.
2007); see State v. Ambrose, 487 S.W.3d 587, 598 (Tex. Crim. App. 2016) (“The
corroboration requirement in Article 38.14 does not apply separately to each element
18
of the offense charged or to each aspect of the accomplice’s testimony.”). There is
no set amount of non-accomplice corroborating evidence that is required; instead,
each case must be judged by its own facts. Malone, 253 S.W.3d at 257.
Although a defendant’s mere presence at the scene of the crime, by itself, is
not sufficient to corroborate accomplice testimony, such evidence “when coupled
with other suspicious circumstances, may tend to connect the accused to the crime
so as to furnish sufficient corroboration to support a conviction.” Id. (quoting Brown
v. State, 672 S.W.2d 487, 489 (Tex. Crim. App. 1984)). The corroborating evidence
may be direct or circumstantial. See Smith, 332 S.W.3d at 442. “If the combined
weight of the non-accomplice evidence tends to connect the defendant to the offense,
the requirement of Article 38.14 has been fulfilled.” Cathey, 992 S.W.2d at 462.
B. Analysis
Larry contends that “[t]he non-accomplice evidence does not show that [he]
had both the motive and opportunity to tamper with the physical evidence or was
present at the time of the tampering.” We disagree with Larry’s characterization of
the record evidence. Excluding the testimony of the accomplice (Matt), we are left
with the following evidence:
In his recorded interviews, Larry placed himself with Matt at the time Matt
claims the offense occurred. Larry admitted to officers he was with Matt the entire
evening of August 11, 2020, when he contends that the men last saw Lea. This is
19
also the timeframe that Matt testified that the disposal of Lea’s body took place, and
the last time Lea used her cell phone, according to her phone records. Our courts
have held that the presence of the accused with the accomplice witness at or near the
scene of the crime or about the time of its commission, when coupled with other
suspicious circumstances, may be sufficient to corroborate the testimony of the
accomplice witness to support a conviction. See, e.g., Reed v. State, 744 S.W.2d 112,
127 (Tex. Crim. App. 1988) (corroborating evidence included appellant’s statements
to police acknowledging presence at time of offense, though no non-accomplice
witnesses placed him with accomplice); Custard v. State, 812 S.W.2d 82, 85 (Tex.
App.—Houston [1st Dist.] 1991, pet. ref’d)) (appellant’s statements that he was with
accomplice at time of shooting, though he contended accomplice was shooter,
tended to connect him to murder).
Larry also gave false information to investigators. In his recorded interview,
Larry reported that he sent a text message to Lea on August 12, 2020. However, the
investigator assigned to Lea’s case, Lieutenant Jacqueline Moore, testified that Lea’s
phone records revealed this was untrue. Lying to police officers is conduct showing
a consciousness of guilt and may be considered as circumstantial evidence of guilt.
See King v. State, 29 S.W.3d 556, 565 (Tex. Crim. App. 2000) (making false
statements to cover up crime is evidence indicating consciousness of guilt and
attempt to cover up crime); Torres v. State, 794 S.W.2d 596, 598 (Tex. App.—
20
Austin 1990, no pet.) (defendant’s conduct after crime indicating consciousness of
guilt is “one of the strongest kinds of evidence of guilt”).
Additionally, testimony of other witnesses at trial tended to connect Larry
with the tampering. First, Eric Tilitzki testified that Larry told him that “[Lea] had
to go and they took care of it.” This statement by Larry is an admission of guilt made
to a non-accomplice witness and tends to connect Larry to the offense. See Joubert,
235 S.W.3d at 731 (holding defendant’s videotaped statement wherein he admitted
involvement in offense, but denied shooting victim, tended to connect him to
offense); Matthews v. State, 999 S.W.2d 563, 566 (Tex. App.—Houston [14th Dist.]
1999, pet. ref’d) (holding defendant’s confession to his sister, whose written
statement detailing confession was admitted at trial, tended to connect him to
offense); see also Collier v. State, No. 01-09-00478-CR, 2010 WL 5250885, at *3
(Tex. App.—Houston [1st Dist.] Dec. 9, 2010, no pet.) (mem. op., not designated
for publication) (holding inculpatory statements made by defendant to non-
accomplice roommates, including statement that roommate “might see something
on the news,” corroborated accomplice testimony).
Further, Eric testified that during a second conversation with both Matt and
Larry, Matt stated that “[Lea] was deceased and her body was disposed of in another
county,” and Larry did not refute this. See Paredes v. State, 129 S.W.3d 530, 535–
36 (Tex. Crim. App. 2004) (recognizing silence as adoptive admission by party
21
opponent); TEX. R. EVID. 801(e)(2)(B) (excluding from hearsay adoptive admission
by party opponent); see also Webb v. State, No. 01-11-00403-CR, 2012 WL
1564298, at *5 (Tex. App.—Houston [1st Dist.] May 3, 2012, pet. ref’d) (mem. op.,
not designated for publication) (determining that non-accomplice’s testimony as to
appellant’s silence during conversation wherein non-accomplice witness stated
appellant committed crime corroborated accomplice’s testimony). The jury, as the
trier of fact and sole judge of the credibility of witnesses, was free to believe or
disbelieve all or any part of Eric’s testimony. See Sharp v. State, 707 S.W.2d 611,
614 (Tex. Crim. App. 1986), cert. denied, 488 U.S. 872 (1988).
Dwayne and Lieutenant Moore testified as to Larry’s flight following Lea’s
disappearance. As noted above, Dwayne testified that he drove Larry to Oklahoma
and then did not hear from him for ten or eleven months. Likewise, Lieutenant
Moore testified that after her interview with Larry on September 5, 2020, Larry “left
within a couple of days” despite her request that he stay in town or let her know if
he left. Lieutenant Moore recalled that Larry was gone for eight months or longer
and was eventually arrested in Wisconsin. Evidence of flight serves to corroborate
the accomplice testimony. Cockrum v. State, 758 S.W.2d 577, 582 (Tex. Crim. App.
1988).
In reviewing the evidence to determine whether it tends to connect Larry to
the offense, we must consider the evidence in the light most favorable to the verdict.
22
See Smith, 332 S.W.3d at 442. Larry’s arguments rely on considering the evidence
in a manner contrary to the jury’s verdict. To the extent that the evidence gives rise
to conflicting views, we must defer to the jury’s resolution of any conflicts in the
evidence. See id.Further, we disagree with Larry that the State only presented evidence of
Matt’s motive to harm Lea and tamper with evidence of her death. Larry’s written
statement and recorded interviews detail a long and tumultuous relationship between
the couple, including Lea’s repeated efforts to lie and steal from him, and her drug
use. Larry also admitted that Lea was angry with Larry’s efforts (or lack thereof) to
celebrate her birthday on August 10, 2020, just hours before she was last seen around
midnight on August 11, 2020. Though Larry used the last of his paycheck to buy
groceries to cook Lea’s favorite meal, Lea complained that he did not buy any beer
or cigarettes. From this, as well as testimony from officers who were called out to
the apartment and gas station (which is other evidence that the situation in the
apartment was escalating), and Larry’s discovery of what he believed to be drugs
under Lea’s dresser, the jury could have reasoned that Larry had a motive to tamper
with evidence of Lea’s death (her corpse). Though evidence demonstrating motive
or opportunity of the accused to commit the crime is insufficient alone to corroborate
accomplice witness testimony, it may be considered in connection with other
evidence which tends to connect the accused with the crime. Reed, 744 S.W.2d at
23
127 (concluding evidence of affair could be considered in connection with all other
evidence tending to connect appellant to wife’s murder).
Considering all the non-accomplice evidence, including Larry’s own
statements, we conclude that the State presented sufficient evidence that tends to
connect Larry to the charged offense of tampering with physical evidence.
Legal Sufficiency
As mentioned earlier, Larry appears to confuse the standards of proof for the
sufficiency of corroborating evidence and legal sufficiency to support the jury’s
verdict as a whole. As this Court has explained, “[a] challenge of insufficient
corroboration is not the same as a challenge of insufficient evidence to support the
verdict.” Utomi v. State, 243 S.W.3d 75, 80 (Tex. App.—Houston [1st Dist.] 2007,
pet. ref’d). Because Larry’s brief can be read as challenging both the sufficiency of
the corroborating evidence and the legal sufficiency of the evidence supporting the
verdict, we turn now to the issue of legal sufficiency.
A. Standard of Review and Applicable Law
When, as here, we are asked to review the legal sufficiency of the evidence,
we review all the evidence in the light most favorable to the judgment to determine
whether a rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. See id. We do not eliminate the testimony of the
accomplice witness when analyzing the legal sufficiency of the evidence as a whole.
24
Long v. State, 245 S.W.3d 563, 569 (Tex. App.—Houston [1st Dist.] 2007, no pet.).
The jurors are the exclusive judges of the facts, the credibility of witnesses, and the
weight given to their testimony. Id. (citing Margraves v. State, 34 S.W.3d 912, 919
(Tex. Crim. App. 2000)). A jury is entitled to accept one version of the facts and
reject another or reject any part of a witness’s testimony. Id.Regarding the offense at issue, a person commits the offense of tampering
with physical evidence if the person, (1) knowing that an offense has been
committed, (2) alters, destroys, or conceals any record, document, or thing (3) with
intent to impair its verity, legibility, or availability as evidence in any subsequent
investigation of or official proceeding related to the offense. TEX. PENAL CODE
§ 37.09(d)(1); see also Thornton v. State, 425 S.W.3d 289, 300 (Tex. Crim. App.
2014).
B. Analysis
On appeal, Larry only challenges the legal sufficiency of the evidence as to
the second element of the offense of tampering with physical evidence—the altering,
destroying, or concealing requirement. See TEX. PENAL CODE § 37.09(d)(1).
Specifically, Larry contends that “[t]he evidence of alteration is insufficient”
because “there was no evidence that [the] physical state [of the corpse] was
changed.”
25
While Larry’s argument focuses on the “alteration” language, the statute also
includes destroying or concealing as alternative methods for tampering with
evidence. Further, the indictment included all three alternatives9, as did the trial
court’s charge to the jury. Thus, the State alleged alternate manners and means of
committing the charged offense of tampering with physical evidence. Additionally,
the jury returned a general verdict of “guilty of the offense of Tampering with
Physical Evidence, as alleged in the indictment.”
An indictment may contain as many separate paragraphs charging the same
offense as is necessary to meet the contingencies of the evidence. Graham v. State,
19 S.W.3d 851, 853 (Tex. Crim. App. 2000). When alternate manners or means of
committing a crime are alleged, it is sufficient to prove only one of the manners or
means set forth in the indictment. See Rosales v. State, 4 S.W.3d 228, 231 (Tex.
Crim. App. 1999), cert. denied, 531 U.S. 1016 (2000) (noting that jury was charged
in disjunctive and evidence was sufficient to support finding that appellant killed
victim in one of manners alleged); Kitchens v. State, 823 S.W.2d 256, 258–59 (Tex.
Crim. App. 1991), cert. denied, 504 U.S. 958 (1992) (holding jury’s general guilty
9
The indictment alleged that King, “knowing that an offense has been committed[,
did] alter or destroy or conceal a thing to wit: a human corpse[,] with intent to impair
its verity, or legibility or availability as evidence in any subsequent investigation of
or official proceeding related to the offense.”
26
verdict on indictment charging alternative theories of committing same offense will
be upheld if evidence supports any of theories alleged).
Here, Larry does not argue on appeal that the evidence is legally insufficient
to support a finding that he destroyed or concealed Lea’s body. Because Larry does
not challenge the legal sufficiency of the evidence underlying the two alternative
theories presented to the jury, we are required to uphold the jury’s verdict. See
Henderson v. State, 77 S.W.3d 321, 326–27 (Tex. App.—Fort Worth 2002, no pet.)
(holding that, when appellant fails to challenge legal sufficiency of evidence as to
alternate manners and means, appellate court is required to uphold sufficiency of
evidence if evidence is sufficient to convict under any of submitted allegations);
McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997) (holding that “[w]hen
a general verdict is returned and the evidence is sufficient to support a finding of
guilt under any of the paragraph allegations submitted, the verdict will be upheld”).
Nevertheless, our review of the record evidence in this case demonstrates that
legally sufficient evidence does exist to support a finding that Larry at least
concealed Lea’s body, as alleged in the indictment. First, Matt testified that he and
Larry decided that they “were going to take [Lea] somewhere where [they] could
dispose of her body.” Throughout Matt’s testimony, references were made to
“dumping” Lea’s body “in the woods.” He testified that they located a pipeline right-
of-way, and after walking the area to make sure their vehicle would not get stuck,
27
drove down the right-of-way and removed Lea’s body from the trunk. They then
took the body out of the blanket it was wrapped in and wiped it down with bleach
“to take any fingerprints off of her.”
Later, Michael Thomas, a former crime scene investigator with Brazoria
County Sherriff’s Department, testified about the location of Lea’s body. He testified
that the area was off County Road 477, which he described as “an empty road.” He
explained that the body was found off the pipeline right-of-way, a “40[-]foot[-]wide
remote area [that] was wooded on both sides.” Thomas testified that at night, the
area was “extremely dark” because there were no residences or businesses in close
proximity. The body itself was located in a small opening in the tree line off the
right-of-way, which Thomas explained “could have been for deer and other game
that would have went into the woods.” He further described the opening as “very
dark . . . [j]ust like any area where you have game and wildlife that live, there [were]
holes dug, spiderwebs, grapevines, everything that you can imagine you’re trying to
get through.” Photographs admitted at trial likewise depicted the remote nature of
the area in which investigators located Lea’s remains.
Though the tampering-with-evidence statute does not define “conceal,”
various Texas courts have considered the issue. See, e.g., Thornton v. State, 401
S.W.3d 395, 398 (Tex. App.—Amarillo 2013) rev’d on other grounds, 425 S.W.3d
289 (Tex. Crim. App. 2014); Lewis v. State, 56 S.W.3d 617, 625 (Tex. App.—
28
Texarkana 2001, no pet.). More recently, in Stahmann v. State, the Texas Court of
Criminal Appeals agreed with the lower court in a tampering-with-evidence case
that “[a]ctual concealment requires a showing that the allegedly concealed item was
hidden, removed from sight or notice, or kept from discovery or observation.” 602
S.W.3d 573, 581 (Tex. Crim. App. 2020).
Applying that definition to the present case, legally sufficient evidence
establishes that Matt and Larry’s placement of Lea’s body in a remote, wooded area,
away from the roadway and far from any homes or businesses, kept the body
“hidden” and “removed from sight,” thus establishing concealment for purposes of
the tampering-with-evidence statute. See id. Larry’s concealment is further
demonstrated by the fact that the body was not discovered until Matt revealed the
location to law enforcement. Viewing the totality of the evidence in the light most
favorable to the verdict, including the testimony of Larry’s accomplice (Matt), see
Long, 245 S.W.3d at 569–70, we hold that the evidence is legally sufficient to
establish Larry’s guilt and support the jury’s verdict finding that Larry tampered
with physical evidence.
We overrule Larry’s issue.
29
Conclusion
We affirm the trial court’s judgment of conviction.
Amparo Monique Guerra
Justice
Panel consists of Justices Kelly, Hightower, and Guerra.
Do not publish. TEX. R. APP. P. 47.2(b).
30