Opinion
No. 05-11-00086-CR
07-27-2012
ABLE JUNIOR QUEVEDO, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion Filed July 27, 2012.
On Appeal from the Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause No. F08-50661-Y
OPINION
Before Justices Morris, Moseley, and Myers Opinion By Justice Myers
Appellant Able Junior Quevedo was convicted of murder and sentenced to seventy-five years in prison. In two issues, he contends the accomplice witness testimony was insufficiently corroborated, and the trial court abused its discretion by refusing to admit certain evidence. We affirm. Discussion Corroboration of Accomplice Witness Evidence
In his first issue, appellant asserts that the accomplice witness testimony is not sufficiently corroborated to support the conviction.
The indictment against appellant alleged that on or about November 21, 2007, he intentionally and knowingly caused the death of Ryan Chambers by shooting him with a firearm. The penal code provides that a person commits the offense of murder if he intentionally or knowingly causes the death of an individual. Tex. Penal Code Ann. § 19.02(b)(1) (West 2011). The jury charge included an accomplice witness instruction, which reads in part as follows:
Upon the law of accomplice testimony, you are instructed that David Renteria was an accomplice, if any offense was committed, as alleged in the indictment. With this in mind, you are further instructed that you cannot convict the Defendant upon David Renteria's testimony, unless you first believe that his testimony is true and shows the guilt of the Defendant as charged in the indictment, and then you cannot convict the defendant unless David Renteria's testimony is corroborated by other evidence tending to connect the defendant with the offense charged. The corroboration is not sufficient if it merely shows the commission of the offense, but it must tend to connect the defendant with its commission, and then from all the evidence, you must believe beyond a reasonable doubt that the defendant is guilty of the offense charged against him.
When, as in this case, the State's case is based in part on the testimony of an accomplice, the sufficiency review must incorporate the accomplice witness rule stated in article 38.14 of the code of criminal procedure:
Article 38.14 provides that a conviction cannot stand on accomplice testimony unless there is other evidence tending to connect the defendant to the offense. The corroborating evidence under 38.14 need not be sufficient, standing alone, to prove beyond a reasonable doubt that a defendant committed the offense. All that is required is that there is some non-accomplice evidence tending to connect the defendant to the offense. . . . . There need be only some non-accomplice evidence tending to 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) (emphasis in original; internal footnotes omitted). “An accomplice is a person who participates in the 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).
“When reviewing the sufficiency of non-accomplice evidence under [a]rticle 38.14, we decide whether the inculpatory evidence tends to connect the accused to the commission of the offense.” Id. at 442. The non-accomplice evidence does not have to directly link the defendant to the crime, “'nor does it alone have to establish his guilt beyond a reasonable doubt.”' Castillo v. State, 221 S.W.3d 689, 691 (Tex. Crim. App. 2007) (quoting McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997)). There must simply be some non-accomplice evidence which tends to connect the defendant to the commission of the offense. Id. (citing McDuff, 939 S.W.2d at 613). In addition, testimony of an accomplice need only be corroborated as to facts “tending to connect the defendant with the offense committed and not as to the corpus delicti itself.” Id. (quoting Gribble v. State, 808 S.W.2d 65, 71 n.13 (Tex. Crim. App. 1990)).
“The sufficiency of non-accomplice evidence is judged according to the particular facts and circumstances of each case.” Smith, 332 S.W.3d at 442. Direct or circumstantial non-accomplice evidence is sufficient if rational jurors could have found it tended to connect the accused to the offense. Id. “So when there are conflicting views of the evidence-one that tends to connect the accused to the offense and one that does not-we will defer to the factfinder's resolution of the evidence.” Id. Thus, it is not appropriate for an appellate court to independently construe the non- accomplice evidence. Id.
Motive and opportunity evidence is insufficient, on its own, to corroborate accomplice witness testimony, but both may be considered in connection with other evidence that tends to connect the defendant to the crime. Id. Likewise, “evidence that the defendant was in the company of the accomplice at or near the time or place of the offense is proper corroborating evidence” that may, when combined with other suspicious circumstances, sufficiently connect the defendant with the offense. McDuff, 939 S.W.2d at 613; Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996). “[S]ufficient accomplice-witness corroboration may be furnished by the suspicious conduct of a defendant, and under most circumstances, an admission or confession will be sufficient to corroborate the accomplice-witness testimony.” Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008).
The appellate court views the corroborating evidence in the light most favorable to the jury's verdict. Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994). “The appellant's liability as a principal or under a parties theory is of no relevance under an Article 38.14 analysis. The question is whether some evidence 'tends to connect' him to the crime; the connection need not establish the exact nature of his involvement (as a principal or party).” Joubert, 235 S.W.3d at 731.
According to the record, on November 21, 2007, shortly before 7 a.m., the body of Ryan Chambers was found lying on a remote street in west Dallas, Texas. Twenty-seven years old at the time of his death, Chambers died from a single gunshot wound to the back of the head. The medical examiner, Dr. Joanie McClain, testified that the gun had been placed directly against the base of Chambers's head before it was fired.
The police investigation focused on a group of drug dealers and users that included appellant, also known as “Weto,” and his cousin, David Lucian Renteria. Both appellant and Renteria were friends with Chambers, who likewise sold and used drugs. Renteria gave a videotaped statement to the police implicating appellant in the murder: Renteria told the detectives he saw appellant shoot Chambers in the back of the head.
Renteria did not want to testify against his cousin. But while jailed on unrelated criminal charges (credit card abuse), Renteria told a fellow inmate that he assisted appellant with planning Chambers's murder, and helped Chambers get out of the car shortly before appellant shot him. The inmate notified authorities, and Renteria was charged as a party to the murder. Renteria later agreed to testify against appellant in return for a five-year prison sentence, based on a plea of guilty to the murder charge. Renteria testified that, at the time of his death, Chambers owed appellant money. Appellant was also upset with Chambers because some drugs and a gun that belonged to appellant had been stolen from a motel room where Chambers had been staying. According to Renteria, the only person who could have taken those items was Chambers because he was the only one in the room.
On the night of the murder, Renteria drove to Chambers's motel to pick him up. Renteria testified that appellant did not come with him to the motel because they knew Chambers would not get in the car if he saw appellant. As Renteria explained, “there was tension going on between the two.” Once Chambers was in the car, Renteria went to a relative's house to pick up appellant. They drove around for several hours. At some point, Renteria heard Chambers talking on the phone to “somebody,” and heard him say he “was with me and my cousin.” Later, they pulled over on a dark street in west Dallas, and Renteria helped Chambers out of the car. After ordering Chambers to get down on his knees, appellant stood behind him, put the gun to his head, and pulled the trigger. Renteria said he was “[s]hocked” when appellant shot Chambers: “I didn't know my cousin was going to do it. I thought he was just going to beat him up and leave him there, but it escalated too far.”
Chambers's girlfriend, Ashley Mitchell, testified that she was with Chambers at the motel when Renteria came to pick him up on the night of November 20, 2007. At the time, Mitchell and Chambers had been dating for “a couple of months.” Mitchell heard Renteria say that he wanted Chambers to come with him because a gun belonging to appellant had disappeared from the motel room where Chambers had been stayed the previous night: “[Renteria] said it was, um, [appellant's] gun. And that's pretty much all, that he wanted Ryan to go with him because the gun got stolen or got taken out of the hotel room when it was just me and Ryan in the room.” According to Mitchell, however, the gun had been stolen by Chad Jones, who was upset about a debt owed to him by one of Chambers's friends, Donnie Mason. Mitchell recalled that Chambers left with Renteria, and that Renteria later drove back to the motel and dropped Mason off, but Chambers did not get out of the car. “And then after that,” Mitchell added, “I didn't see [Chambers] again.”
Donnie Mason testified that he had known Chambers “for roughly a year and a-half” to two years, and that, at the time of the murder, Chambers owed appellant money and was attempting to collect approximately $800 worth of drugs because he needed the money to pay off a debt to appellant. The plan, according to Mason, was for Chambers to “score” four ounces of drugs with a street value of approximately $800 from Mason's “connect,” then use the proceeds from the sale to pay off the debt to appellant. Mason saw both Renteria and appellant pick up Chambers at the motel. Mason left the motel with them at around 7:30 or 8:00 p.m. He rode with them for a short while, then got out of the car. That was the last time Mason saw Chambers. Shortly after 10 p.m. on the night of the murder, Mason called Chambers to “see how he was doing.” Chambers told Mason he was with appellant and Renteria. Mason did not hear from Chambers again.
The State also presented evidence that a friend of appellant, Armando Navarro, gave an affidavit to detectives less than two months after Chambers's murder. When called to testify, Navarro denied making the statement and refused to testify despite being ordered by the trial court to do so. The trial court held Navarro in contempt. According to the redacted version of Navarro's affidavit admitted into evidence, Navarro stated when he told appellant that Chambers “had been killed,” appellant replied, “Yea[h], I know I did it.” Then, appellant “started laughing and said he was just bullshitting . . . just playing with you.”
Viewed in the light most favorable to the verdict, the record contains non-accomplice evidence tending to connect appellant to the offense. That non-accomplice evidence may not have been sufficient to prove guilt beyond a reasonable doubt. See Joubert, 235 S.W.3d at 731. But it was sufficient for a rational jury to conclude the corroborating evidence tended to connect appellant to the offense. See id.; Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999). We overrule appellant's first point. Exclusion of Evidence
In his second issue, appellant argues the trial court abused its discretion by refusing to allow appellant “to enter relevant evidence that was more probative than prejudicial.” At issue is the court's refusal to allow the defense to offer evidence of out-of-court statements allegedly made by Chad Jones regarding Chambers's murder. Appellant contends this evidence was needed to “counterbalance the testimony given by the Detective that Navarro signed a statement in which he [alleged] [a]ppellant told him he killed Chambers.”
Prior to the start of trial, Chad Jones's attorney told the court that Jones would, if called as a witness, invoke his Fifth Amendment right not to testify. The trial court then discussed with defense counsel the application of the hearsay rule to Chambers's out-of-court statements:
THE COURT: Let's assume that I decide that the witness is unavailable as that is defined in Rule [804](a) of the Texas Rules of Evidence, [defense counsel], is there former testimony from this witness?
[DEFENSE COUNSEL]: Your Honor, it depends on how the other testimony in the trial comes forward. Mr. Jones knew the deceased very well. He was in business with him as far as drug dealing goes.
THE COURT: Has he testified in a prior proceeding, though? That's my question. Has he testified in a prior proceeding?
[DEFENSE COUNSEL]: Not that I know of.
THE COURT: Quoting from the rule in criminal cases, testimony given by a witness at another hearing of the same or a different proceeding if the party against whom the testimony is now offered had an opportunity and similar motive to develop the testimony by direct, cross or redirect examination, that is the only way the evidence comes in under the hearsay exception for former testimony. You agree with that, [defense counsel]?
[DEFENSE COUNSEL]: I agree with what the Court said, Your Honor, but, however, there was no opportunity for him to appear as far as this case is concerned in any hearing.
THE COURT: Okay. Well, what does that have to do with anything? You're saying for former testimony, and it doesn't--
[DEFENSE COUNSEL]: The point being, Judge, if I can make a record later on, his testimony could be very critical to the outcome of this case. And he is refusing to testify, therefore, the defendant does not have an opportunity to bring that evidence forward. Therefore, he's unavailable and we wish to have the Court make a ruling that he is unavailable and possibly to allow some hearsay testimony during this proceeding.
THE COURT: And what Rule of Evidence are you citing for saying that the hearsay testimony should come in?
[DEFENSE COUNSEL]: Just that he is unavailable.
THE COURT: Okay. That's an insufficient showing under [Rule 804(b)(1)], the exact language I previously gave. And even if there was some residual hearsay exception, the testimony, as I have it based on the proffer of [defense counsel], would not be significant enough to permit it in and confuse the jury under Rule 403.
Later, at trial, during a hearing held out of the jury's presence, the defense proffered testimony from Grand Prairie Police Detective Randy Holton, who investigated an unrelated murder case involving Chad Jones. The subject of the proffer was statements allegedly made by Jones to a woman named Tracy Gander regarding Chambers's murder:
Q. [DEFENSE COUNSEL:] Back around Thanksgiving of '07, what was your capacity with the department?
A. [HOLTON:] I was a detective with the Crimes Against Persons Division.
Q. And were you investigating a report of a missing woman?
A. Yes, sir.
Q. And did that investigation turn up a possible suspect by the name of Chad Jones?
A. Yes, sir.
Q. And during that investigation did you interview a witness by the name of Tracy Gander?
A. Yes, sir.
Q. Now, my request of you through my investigator was to see if you had any way of trying to find Tracy Gander, is that a correct statement?
A. Yes.
Q. What did you try to do to find Tracy Gander?
A. We have a names file on all people that we make contact with, and I went to the names file, seen when the last contact was with Ms. Gander, and then I provided him that information and she was not at that location.
Q. So you were unable to find Tracy Gander?
A. No, sir.
Q. Were you able to find Tracy Gander back three years ago?
A. Yes, sir.
Q. And did she--well, strike that. Did you also during your investigation understand that there was a murder case on a victim by the name of Ryan Chambers?
A. Yes.
Q. And did you have an opportunity to converse with the detectives that were investigating that murder?
A. Yes.
Q. In fact, at some point, did you turn over all your files to those detectives?
A. Yes.
Q. And that information you gave the detectives over here, did Tracy Gander make certain statements to you concerning Chad Jones?
A. Yes.
Q. Did she tell you that Ryan owed Chad Jones some money?
A. Yes.
Q. Did she tell you that Chad Jones went over to collect his debt from Ryan Chambers?
A. Yes.
Q. And upon Mr. Jones' return, did she say that Mr. Jones had gotten his money and that the victim, Ryan Chambers, was found in Oak Cliff with a bullet in his head?
A. I remember her saying he was found dead in Oak Cliff with a bullet in his head. I don't remember the entire conversation.
Q. But you remember this Tracy Gander saying that Chad Jones made that statement, I got my money and Chambers is dead with a shot in his head?
A. I believe so, yes.
After making the proffer, defense counsel asked the trial court to rule on “whether or not this evidence--this hearsay evidence from . . . Tracy Gander is probative at the issue before the Court at this time.” The court asked for a response from the prosecutor, and the relevant portion of the record reads as follows:
[PROSECUTOR]: Well, Judge, that would be hearsay.
THE COURT: Response?
[DEFENSE COUNSEL]: Your Honor, this is along the lines of what was previously allowed with regard to Mr. Navarro in that Mr. Jones, if he appeared, would refuse to testify.
Based on the Court's ruling with Mr. Navarro allowing the officer to then testify about Mr. Navarro's affidavit, I think it should be allowed--the testimony of the detective and the hearsay testimony of Ms. Gander should be admitted along the same lines that Mr. Navarro's testimony was admitted.
THE COURT: Any response?
[PROSECUTOR]: I would, Judge. There [are] two problems with that. One, trying to get in something that Chad Jones said. That's one issue, that is there anything about that statement, you have to call him obviously.
And then two would be, okay, if you had Tracy here to try to get in the hearsay statement from Chad. But they don't even have Tracy. They want to call a detective to say what Tracy said, which is complete hearsay about hearsay which is what Chad said.
THE COURT: Okay. The testimony--the testimony of Mr. Jones is precluded because the defendant would invoke his right. That makes him unavailable. But there's no exception to the hearsay rule. There's no former testimony. The distinction between him and Mr. Navarro is that Mr. Navarro had no Fifth Amendment rights.
As to all other witnesses, the ruling of the Court is that all of that testimony would be hearsay. And that even if it wasn't hearsay, it is far more prejudicial than probative. It's a rabbit trail. It is collateral. It has nothing to do with what this case is about, certainly not enough to allow it into evidence.
And I'm citing in that Rule 403, the Texas Rules of Evidence. So, three bases for my ruling. First with regard to Mr. Jones, would invoke his rights. Second, that the evidence would be hearsay. And third, that even if it wasn't hearsay, that it would be violative of Rule 403.
In considering a trial court's ruling on the admissibility of evidence, we must determine whether the trial court abused its discretion. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002). We will uphold the court's ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Id.
Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). Hearsay evidence is generally inadmissible unless it falls within one of the many exceptions to the hearsay rule. See Tex. R. Evid. 802; Willover, 70 S.W.3d at 845. In order to have evidence admitted under a hearsay exception, however, the proponent of the evidence must specify on which exception he is relying. Willover, 70 S.W.3d at 845-46.
Appellant does not dispute that the proffered evidence-testimony as to statements made by Tracy Gander regarding statements supposedly made to her by Chad Jones-was hearsay (indeed, it was hearsay within hearsay). It was appellant's responsibility to specify on which exception to the hearsay rule he was relying. See id. But on appeal, as in the trial court, appellant does not cite to an applicable hearsay rule exception. He instead focuses his argument on rule 403, arguing the testimony was necessary to “balance” the case. Yet, even if we were to conclude the disputed evidence was admissible under rule 403, and we do not, appellant does not address the hearsay issue. We therefore conclude the trial court did not abuse its discretion by excluding the testimony as inadmissible hearsay. See Wheatfall v. State, 882 S.W.2d 829, 837 (Tex. Crim. App. 1994) (noting that while disputed evidence “may have been relevant, appellant's argument fails to address the hearsay issue”); Schuldreich v. State, 899 S.W.2d 253, 255-56 (Tex. App.-Houston [14th Dist.] 1995, pet. ref'd) (trial court did not err in excluding hearsay evidence where defendant never relied on a hearsay exception but merely claimed excluded testimony was necessary to “show the jury the complete story”). We overrule appellant's second issue.
We affirm the trial court's judgment.
LANA MYERS
JUSTICE
Do Not Publish
Tex. R. App. P. 47
110086F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
ABLE JUNIOR QUEVEDO, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-00086-CR
Appeal from the Criminal District Court No. 7 of Dallas County, Texas. (Tr.Ct.No. F08- 50661-Y).
Opinion delivered by Justice Myers, Justices Morris and Moseley participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered July 27, 2012.
LANA MYERS
JUSTICE