Wilson, Jerome Devon v. State

Affirmed and Memorandum Opinion filed January 24, 2006

Affirmed and Memorandum Opinion filed January 24, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-04-00381-CR

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JEROME DEVON WILSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 176th District Court

Harris County, Texas

Trial Court Cause No. 925,625

M E M O R A N D U M   O P I N I O N

Challenging his conviction for capital murder, appellant Jerome Devon Wilson asserts in six issues that the trial court erred in failing to instruct the jury on the law of accomplice witnesses and that the evidence is legally and factually insufficient to support his conviction because the accomplice testimony offered by the State was not credible or sufficiently corroborated. We affirm.

I.  Factual and Procedural Background

On August 22, 2002, Leslie ABo@ Wilson^[1] called his friend Terry Thomas to see if Thomas was available to accompany him to a car stereo store where Wilson=s Impala automobile was located.  A victim of prior robberies, Wilson kept a nine-millimeter Ruger handgun in the passenger=s back-seat pocket of his vehicle.  En route to the stereo store, Wilson, at Thomas=s request, agreed to take Thomas to a location where Thomas could sell some marijuana.  Wilson knew Thomas had a grocery bag full of marijuana, and he proceeded to drive Thomas to the Red Carpet Inn on Highway 59 in Harris County.  On the way to the hotel, Thomas made a call using Wilson=s cell phone.  Upon arriving at the hotel, Wilson drove around the parking lot looking for room number 109.  They saw a man standing in the doorway of that room, but Wilson continued to drive around the block.  Wilson then asked Thomas to get into the back seat to force the man, later identified as appellant, into the front seat.  The men then pulled the car in front of room number 109, and Wilson honked the horn.

Appellant walked out of the room and up to Thomas=s car door. Thomas told appellant to get in the front seat and shut the door.  Appellant complied. Appellant and Thomas conversed and Thomas handed appellant a bag of marijuana.  Appellant smelled the marijuana, asked for a price, and tried to negotiate a lower one. Ultimately, Thomas and appellant agreed on a price; appellant then stated that the Amoney@ was back in his room.  Appellant got out of the car and went back into his hotel room.  When appellant came back out of the room and walked toward the car, appellant reached into his pocket with his right hand and opened the front passenger door.  Leaning inside, appellant then pulled a pistol out of his pocket, put it up to Wilson=s head, and said, ACheck yourself, fool.@  Wilson testified that he closed his eyes, balled up his legs and arms, and started to scream.  A few seconds later, he heard a single gunshot, opened his eyes, and noticed that his friend Thomas had been shot.  Wilson further testified that blood squirted out of Thomas=s neck and shoulder area onto the ceiling of the car and all over the interior of the vehicle.  Appellant grabbed the bag of marijuana and went back into the hotel room. Wilson testified that Thomas said, AI=m going to remember that M.F.  I remember that M.F.  I know that face, when I see it again.  He shot me, he shot me.  Get me to a hospital, quick, quick, quick.@  Frightened and nervous, Wilson drove the car out of the hotel parking lot, called 911, and headed to Memorial Southwest Hospital, reaching that location in approximately ten minutes.  When Wilson arrived at the hospital, he was afraid that someone would find his handgun, so he quickly hid it in the trunk of his car, and ran inside the hospital, screaming for help.  Medical personnel arrived with a stretcher.  Thomas was moaning.  He had sustained one gunshot to his lower right neck.  The bullet had traveled through his right collarbone, torn through the subclavian artery and vein, and lodged inside one of his ribs.  Thomas later died.

At the hospital, Wilson talked to the police officers, but was not completely forthcoming for fear of being blamed for the shooting.  He initially told the officers that he and Thomas were at a gas station when a man came up and shot Thomas.   When the officers later drove Wilson to that gas station, they discovered that no crime had occurred there.  After Thomas=s death, Wilson decided to tell the police the truth about the shooting.  Wilson gave a written statement and assisted the police in creating a composite sketch of appellant.  The police recovered a fired shell casing from the front seat of Wilson=s car.  Wilson=s gun was also found, but testing eliminated it as the murder weapon.

The police went to the hotel to locate potential witnesses and to look at the registration log for room number 109.  This log showed that the room had been reserved by a man named Rozzell Barber. Soon thereafter, in an unrelated incident, the police pulled Barber over for a traffic offense.   Appellant was a passenger in the vehicle.  As Barber opened the glove compartment to look for his insurance card, the officers saw a handgun underneath his seat. The officers cleared the vehicle, seized the gun, and arrested Barber.  At this time, the officers lacked enough information to detain appellant, so they took his contact information and released him. Later, however, after viewing Wilson=s composite sketch, the police realized that the passenger in Barber=s car was the same person displayed in the sketch.  In addition, testing confirmed that the gun found in Barber=s car was the murder weapon.  For further confirmation, the officers showed Wilson a photospread which included a photograph of appellant.  Wilson immediately identified appellant as the individual who shot and killed Thomas.  

Appellant was arrested in January 2003, in Indianapolis, Indiana.  After being charged with the felony offense of capital murder, appellant pleaded not guilty.  A jury found appellant guilty of the charged offense, and the trial court assessed punishment at confinement for life.  Challenging his conviction, appellant asserts six issues on appeal:

(1)     The trial court committed reversible error in failing to instruct the jury that Wilson was an accomplice witness to the capital matter as a matter of law, Wilson was a party under the law of conspiracy.

(2)     The trial court committed reversible error in failing to instruct the jury to consider whether Wilson was an accomplice witness to the alleged capital murder as a matter of fact, where Wilson was party under the law of conspiracy.

     (3)B(4)    The evidence is legally and factually insufficient to support the conviction of capital murder because the State failed to corroborate Wilson=s testimony.

     (5)B(6)    The evidence is legally and factually insufficient to support his conviction of capital murder because Wilson=s testimony was not credible.^[2]

A.      Did the trial court err in failing to give the jury an instruction to consider whether Leslie Wilson was an accomplice witness to the capital murder. 

In his first two issues, appellant argues that the trial court erred in failing to instruct the jury that Wilson was an accomplice witness (as a matter of law and as a matter of fact) to the capital murder.  Appellant contends that Wilson=s testimony at trial was sufficient to establish  his knowledge of the offense being committed and the possibility of Thomas=s death.  Essentially, appellant argues that Wilson was an accomplice and a co-conspirator to the crimes committed.  We disagree.

An Aaccomplice witness@  is one who participates with another before, during, or after the crime.  Paredes v. State, 129 S.W.3d 530, 536 (Tex. Crim. App. 2004).  One is not an accomplice because he knows of the crime but fails to report it or even conceals it.  Id. The test is whether a prosecution will lie against the witness under the accused=s indictment.  Id. An accomplice=s participation must involve an affirmative act that promotes the commission of the charged offense.  Paredes, 129 S.W.3d at 536 (emphasis added).  Even evidence that a witness helped to conceal a crime after it is completed is insufficient to raise the issue of accomplice status.  Medina v. State, 7 S.W.3d 633, 641 (Tex. Crim. App. 1999); see also Paredes, 129 S.W.3d at 537B38 (holding witnesses who helped clean out cars used to transport capital murder victims were not accomplices).

If Athere exists no doubt or the evidence clearly shows that a witness is an accomplice witness as a matter of law [then] >the court is under a duty to so instruct the jury.=@  DeBlanc v. State, 799 S.W.2d 701, 708 (Tex. Crim. App. 1990). Others are accomplices as a matter of fact.  Id. If the evidence presented by the parties is conflicting, and it is not clear whether the witness is an accomplice, the jury initially must determine whether the witness is an accomplice as a matter of fact.  Id.  If the evidence is conflicting, it is proper to leave the question of whether an inculpatory witness is an accomplice witness as a matter of fact to the jury under instructions defining the term accomplice.  Id.  However, it is only when the evidence clearly shows that the witness is an accomplice as a matter of law that the trial court must so instruct the jury.  Arney v. State, 580 S.W.2d 836, 839 (Tex. Crim. App. 1979).

We consider each case on its own facts and circumstances.  Reed v. State, 744 S.W.2d 112, 126 (Tex. Crim. App. 1988). A co‑conspirator is an accomplice.  Chapman v. State, 470 S.W.2d 656, 660 (Tex. Crim. App. 1971).  Appellant relies on section 7.02 of the Texas Penal Code for his argument that Wilson is an accomplice.  This section is inapplicable, however, because there is no evidence that Wilson conspired with appellant to commit any crime.  All of the acts in this case were committed by appellant alone.  Under Section 7.02(a), a person is criminally responsible for a capital‑murder offense committed by another person=s conduct, if

(1) acting with the kind of culpability required for the offense, he causes or aids an innocent or nonresponsible person to engage in conduct prohibited by the definition of the offense; [or]

(2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.

Tex. Pen. Code Ann. ' 7.02(a) (Vernon 2003).  Thus, a person could be found guilty of capital murder under Section 7.02(a) if he had the intent to kill someone during the commission of the felony (in this case, delivery of marijuana), and (1) he caused or aided a person to shoot and kill the victim, or (2) he solicited, encouraged, directed, or aided in the commission of the capital murder.  Id.  Furthermore, section 7.02(b) provides in pertinent part:

If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.

Tex. Pen. Code Ann. ' 7.02(b) (Vernon Supp. 2005).  A person commits the offense of delivery of marijuana if he intentionally or knowingly transfers or offers to sell marijuana to another person. Tex. Health & Safety Code Ann. ' ' 481.002 (8) and 481.120 (Vernon 2004). 

Despite appellant=s contentions, Wilson=s testimony does not establish that he had the intent to commit a felony nor did he conspire with appellant to commit a felony. Wilson never transferred marijuana to another person nor did he offer to sell the marijuana.  Although Wilson may have suspected that foul play might occur when they arrived at the hotel, there is no evidence suggesting that he assisted in the preparation for or planning of the narcotics transaction or any other crime.  See Paredes, 129 S.W.3d at 537.  Wilson and Thomas were good friends at the time of Thomas=s death. Wilson testified that he sometimes carried a weapon in his car because he had been robbed before and wanted it for protection.  This evidence is not enough to show intent to commit a felony or murder.  The record contains no evidence to support the conclusion that Wilson intended to murder Thomas while in the commission of a felony,or even that Wilson was involved in a felony.

Wilson was not an accomplice.  There is no evidence that Wilson was involved, in any way, with the planning of or preparation for the murder.  Because the evidence establishes that he was not an accomplice, and there is no evidence to the contrary, the trial court did not err in denying appellant=s request to instruct the jury on the law of accomplice witnesses as a matter of law or as a matter of fact.  See Lee v. State, 2004 WL 1206019, at *3 (Tex. App.CHouston [14th Dist.] June 03, 2004, no pet.) (not designated for publication) (holding that even though [Garland] sold the murder weapon to the person who gave the gun to [appellant] who committed the crime, there was no evidence that [Garland] was aware of the intended use of the gun); Simon v. State, 2003 WL 22332285, at *2B3 (Tex. App.CDallas October 14, 2003, no pet.) (stating that accomplice witness jury instruction was not warranted during aggravated robbery trial, where evidence showed only that the witness at issue was present at the location of the robbery, not that he actually assisted, encouraged, or participated in the robbery or even knew a robbery would occur, as required to be an accomplice) (emphasis added); Johnson v. State, 651 S.W.2d 303, 317 (Tex. App.CSan Antonio 1983, no pet.) (finding even though witness shared in heroin purchased from stolen money, where witness did not know what was going to be robbed, did not pay attention to further conversations between defendant and others who participated in robbery, witness did not share in proceeds of robbery, and crime for which defendant was being prosecuted was capital murder, for which witness could not be indicted and punished, trial court did not err in refusing to charge witness was accomplice as matter of law or to submit that issue to jury).  Accordingly, we overrule appellant=s first two issues.

B.      Is the evidence legally and factually insufficient to support appellant=s conviction for capital murder?

In issues three through six, appellant contends that the evidence is legally and factually insufficient to support his conviction for capital murder.  Appellant argues that Wilson=s testimony was not credible nor sufficiently corroborated and therefore should have been excluded.  Appellant further argues that without Wilson=s testimony, the remaining evidence is not legally or factually sufficient to support his conviction.  Appellant does not contest that, with Wilson=s testimony, the evidence is legally and factually sufficient. Because Wilson was not an accomplice, corroboration of his testimony was unnecessary.

In evaluating a legal-sufficiency challenge, we view the evidence in the light most favorable to the verdict.  Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The issue on appeal is not whether we, as a court, believe the State=s evidence or believe that appellants= evidence outweighs the State=s evidence.  Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984).  The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt.  Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The jury, as the trier of fact, Ais the sole judge of the credibility of the witnesses and of the strength of the evidence.@  Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999).  The jury may choose to believe or disbelieve any portion of the witnesses= testimony.  Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).  When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party.  Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).  Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm.  McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).

In contrast, when evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence in a neutral light and inquire whether the jury was rationally justified in finding guilt beyond a reasonable doubt.  Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004).  A reviewing court may find the evidence factually insufficient in two ways.  Id. First, when considered by itself, the evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt.  Id. Second, after weighing the evidence supporting the verdict and the evidence contrary to the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met.  Id. at 484B85.  In conducting the factual-sufficiency review, we must employ appropriate deference so that we do not substitute our judgment for that of the fact finder.  Id. at 481B82.  Our evaluation should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony.  Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).  In conducting a factual-sufficiency review, we must discuss the evidence appellant claims is most important in allegedly undermining the jury=s verdict.  Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

A person commits the offense of murder if he intentionally or knowingly causes the death of an individual.  Tex. Pen. Code Ann. ' 19.02(b) (Vernon Supp. 2005).  A person commits capital murder when such person commits murder in course of committing a felony.  See id. at ' 19.03.  A person commits the offense of delivery of marijuana if he intentionally or knowingly transfers or offers to sell marijuana to another person.  Tex. Health & Safety Code Ann. ' ' 481.002 (8) and 481.120 (Vernon 2004). 

Article 38.14 of the Code of Criminal Procedure provides that a conviction cannot stand on accomplice testimony unless it is corroborated by other evidence that tends to connect the accused with the offense.  Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005); Colella v. State, 915 S.W.2d 834, 838 (Tex. Crim. App.1995); see also St. Julian v. State, 132 S.W.3d 512, 516 (Tex. App.CHouston [1st Dist.] 2004, pet. ref=d). Corroborating evidence is insufficient if it merely shows the commission of an offense.  Tex. Code Crim. Proc. Ann. art. 38.14; Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999).

In assessing the sufficiency of corroborative evidence, we eliminate the testimony of the accomplice witness from consideration and examine the testimony of the other witnesses to ascertain whether the non‑accomplice evidence tends to connect the accused with the commission of the offense.  St. Julian, 132 S.W.3d at 516.  The non‑accomplice evidence need not by itself establish the accused=s guilt beyond a reasonable doubt.  Id.  Rather, some evidence must exist that tends to connect the accused to the commission of the offense.  Id.

In this case, it is not necessary for us to evaluate the non-accomplice evidence alone because we have concluded as a matter of law and as a matter of fact that Wilson was not an accomplice.  Furthermore, we find no merit in appellant=s contentions that because Wilson=s testimony purportedly was not credible, the evidence is legally and factually insufficient.  Whether a witness testifying at trial was credible is not an issue for us the appellate court.  When reviewing the evidence, our role is not to become a thirteenth juror. This court may not re‑evaluate the weight and credibility of the record evidence and thereby substitute our judgment for that of the fact‑finder.  Wilson v. State, 863 S.W.2d 59, 65 (Tex. Crim. App. 1993). 

The evidence of appellant=s guilt was overwhelming.  Wilson was an eyewitness to all the events in question.  Wilson observed appellant with the gun before and after the shooting and he saw appellant take the bag of marijuana from Thomas.  Wilson specifically recounted the events as they took place that day and positively identified appellant as gunman.  The testimony of a single eyewitness, such as Wilson, is sufficient to support a felony conviction.  See Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982) (holding that testimony of a single eyewitness can be factually sufficient to support a felony conviction).  In addition, the murder weapon was recovered from the vehicle in which appellant was riding when the police made the traffic stop. Appellant was riding in the vehicle with Barber, the man who was linked to room number 109.  Finally,  proof that appellant was at or near the crime scene at or about the time the crime occurred, coupled with other suspicious circumstances, even seemingly insignificant ones, may well be enough to connect the defendant to the offense.  Dowhitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996); Cox v. State, 830 S.W.2d 609, 611 (Tex. Crim. App. 1992). We conclude that the evidence presented in this case is legally and factually sufficient to support appellant=s conviction of capital murder.  See Conner v. State, 67 S.W.3d 192, 198 (Tex. Crim. App. 2001) (holding that evidence that defendant was seen pointing a gun at murder victim, that money was found scattered around victim=s body, and that blood was found in cash register was sufficient to support finding that defendant shot victim in course of robbing or attempting to rob her); Maldonado v. State, 998 S.W.2d 239, 243 (Tex. Crim. App. 1999) (holding that specific intent to rob may be inferred from circumstantial evidence and from defendant=s conduct); Ross v. State, 861 S.W.2d 870, 873 (Tex. Crim. App. 1992) (stating that a jury may infer the intent to kill from the use of a deadly weapon unless it would not be reasonable to infer that death or serious bodily injury could result from the use of the weapon); Huffman v. State, 746 S.W.2d 212, 215 (Tex. Crim. App. 1988) (en banc) (holding that the evidence was legally sufficient to support the inference that [Huffman] intentionally murdered his victim during the course of or while attempting to commit robbery).   Accordingly, we overrule appellant=s issues three through six.

Having overruled all of appellant=s issues, we affirm the judgment of the trial court.

/s/      Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed January 24, 2006.

Panel consists of Justices Hudson, Frost, and Seymore.

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

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^[1]  Leslie ABo@ Wilson has no relation to appellant, Jerome Devon Wilson.  Throughout this opinion, references to AWilson@ are references to Leslie ABo@ Wilson.  Jerome Devon Wilson is referred to simply as Aappellant.@

^[2]  Because many of the facts and legal arguments overlap in appellant=s issues, we address issues one and two together, and issues three through six together.