Opinion
NO. 12-11-00135-CR
04-30-2012
RICKY DALON RAINS, APPELLANT v. THE STATE OF TEXAS, APPELLEE
APPEAL FROM THE 411TH JUDICIAL DISTRICT COURT TRINITY COUNTY, TEXAS
MEMORANDUM OPINION
Ricky Dalon Rains appeals his conviction for aggravated assault. In three issues, Appellant argues that the evidence is insufficient to support the verdict and that the jury's punishment verdict was not sufficiently definite. We affirm.
BACKGROUND
In November 2008, Appellant attended a gathering at the home of Tim Smith, in Trinity County, Texas. Chason Breward was at the gathering as well. Breward worked as a police dispatcher, and she and Smith were dating. Breward knew Appellant because he had gone to school with her brothers and had "dealt with [Appellant] also through [her] job." Appellant asked Breward if she wanted him to leave, and she said that she did. Appellant began to leave. As he walked out, he "flicked" Brewer's shirt-it was her work shirt-and said, "F the Trinity Police Department."
When he got to the road, Appellant appeared to change his mind about leaving. He demanded to know who was "going to make [him] leave[.]" Smith, the homeowner, told Appellant that he would make him leave and approached him in the street. Appellant punched Smith in the face and got into his car. He revved the engine and drove back and forth trying to hit Smith with the vehicle. He did not succeed, but he did hit Breward's brothers, who were both standing in the yard. Appellant finally left. Smith left to drive a person home, and Breward remained with her cousin. The police arrived, and Breward told them what had happened. Her cousin left after the police did, leaving Breward at the home alone.
Breward went back inside, sat on a couch, and called a friend. After sitting for a few minutes, she heard loud popping noises. The noises were gunshots. One of the bullets hit her, and she called 911. In short order, Smith returned and found Breward injured and hiding in a closet. The police and an ambulance arrived. Breward was taken to a local hospital and then to a hospital in Tyler by helicopter.
The police suspected that Appellant committed the offense but lacked sufficient evidence to charge him. The police repeatedly interviewed those who had been at the house where Appellant was staying at the time of the shooting and also interviewed his associates. Those individuals were Joey Gray, Christian Winzenreid, Shyan Spikes, Ronnie Allbright, and Angela Fannin. Eventually, Gray told the police that Appellant shot the house from the bed of a pickup truck. Others apparently also gave statements implicating Appellant. Appellant was arrested and charged with aggravated assault for shooting Brewer. Appellant pleaded not guilty, and a trial was held.
At the trial, Joey Gray testified that Appellant shot the house. Shyan Spikes testified that he had given several interviews about the shooting. He recounted his statement to a police officer that he heard from Joey Gray "that one of the few, whoever it was, the four or three, Angie, Cole, Dalon, Joey, whichever ones, one of them shot the house up." He was presented with a written statement he made, and he read the last line from the statement in which he stated that "Dalon [Appellant] shot the house." Spikes was in Illinois when the shooting occurred and testified that the "only thing [he] was told was by Joey Gray." He also testified that he told Cole Brown that if Appellant "gets locked up for a long time for this that [he] would beat his ass for a long time every time [he] saw him."
Ronnie Allbright testified that Angela Fannin sold him a rifle in November 2008. It was an SKS rifle, and he turned it over to the police. Angela Fannin testified that Joey Gray, Cole Brown, and Appellant were with her the night of the shooting. Later in her testimony, she said Cole Brown was not there. She said she did not see Appellant leave in a black pickup truck with a rifle. She did say that she sold a rifle to Ronnie Allbright.
Pete Maskunas was a Texas Ranger when the shooting occurred-he retired prior to trial-and he helped with the investigation of the case. He testified, without objection, that Cole Brown "indicate[d] he had knowledge of the shooting and was at the location where we believe that the shooting originated from or that the planning of the shooting originated from." He also testified that he spoke to Eric Ramsey and that Ramsey "implicated Joey Gray and Angela Fannin very heavily." Finally, he stated that Eric Ramsey gave a statement that was consistent with what he had observed at the crime scene and consistent with the accounts of Shyan Spikes and Christian Winzenried. The statements were not admitted at trial, but Maskunas testified that he got arrest warrants for Appellant, Joey Gray, Angela Fannin, and Cole Brown based on those statements. Maskunas further testified that Fannin told him the whereabouts of the gun used in the shooting. When it was offered, Maskunas identified the rifle as "believed to be the weapon used in the drive-by." He testified that Joey Gray gave a statement to corroborate the statements he received from Angela Fannin, Shyan Spikes, Christian Winzenreid, and Eric Ramsey. He further testified that Gray implicated himself in the shooting. He testified that Fannin and Gray were indicted for organized criminal activity and aggravated assault with a deadly weapon and that Fannin was indicted for tampering with evidence.
The trial court instructed the jury that Joey Gray was an accomplice and, pursuant to Texas Code of Criminal Procedure, Article 38.14, the jury could not convict Appellant unless it believed Gray's testimony to be true and found that there was other evidence tending to connect Appellant with the offense. The court also instructed the jury to evaluate Angela Fannin's testimony in the same way if it determined that she was an accomplice. The jury found Appellant guilty as charged and assessed punishment at imprisonment for twenty years and a fine of ten thousand dollars. This appeal followed.
ACCOMPLICE WITNESS TESTIMONY
As part of his first issue, Appellant argues that there was insufficient evidence to corroborate the testimony of an accomplice. Applicable Law
A conviction may not be sustained solely on the testimony of an accomplice unless there is corroborating evidence that tends to connect the defendant with the offense committed. See TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005). The accomplice witness rule is a statutorily imposed review and is not derived from federal or state constitutional principles that define the legal sufficiency standards. See Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008).
In order to determine whether the accomplice witness testimony is corroborated, we must eliminate all accomplice evidence and determine whether the other inculpatory facts and circumstances in evidence tend to connect the defendant to the offense. See McDuff v. State, 939 S.W.2d 607, 612 (Tex. Crim. App. 1997).
The nonaccomplice 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; but rather, the nonaccomplice evidence merely has to tend to connect the defendant to the offense. Id. at 613. The appellant's presence in the company of the accomplice before, during, and after the commission of the offense coupled with other suspicious circumstances may tend to connect the defendant to the offense. See Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996). Moreover, evidence that the defendant was near or at the place of the offense around the time of its occurrence is proper corroborating evidence. See Burks v. State, 876 S.W.2d 877, 888 (Tex. Crim. App. 1994). Analysis
The State argues that Joey Gray was not an accomplice and so his testimony did not need to be corroborated. The State also argues that his testimony was sufficiently corroborated.
The jury was instructed that Joey Gray was an accomplice as a matter of law. The State did not object to that instruction. This court has held that such a designation is binding on the State if it did not object to the jury charge. See Williams v. State, 864 S.W.2d 81, 84 (Tex. App.-Tyler 1993, pet. ref'd). That holding was good law at the time, but it was based on the then recently decided case of Boozer v. State, 717 S.W.2d 608, 610 (Tex. Crim. App. 1984). The court of criminal appeals overruled the Boozer decision in 1997 and appears to allow the State's present argument that Gray was not an accomplice even though the State did not object to the jury instructions identifying him as an accomplice. See Malik v. State, 953 S.W.2d 234, 240 n.6 (Tex. Crim. App. 1997).
An accomplice is a person who participates in the offense before, during, or after its commission with the requisite mental state. See Smith v. State, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011). The individual must, before or during the commission of the crime, and with the required mental state, participate with the defendant by "an affirmative act that promoted the commission of the [same] offense with which the defendant is charged." Paredes v. State, 129 S.W.3d 530, 536 (Tex. Crim. App. 2004). Presence at the crime scene does not make a person an accomplice, and an accomplice must have engaged in an affirmative act that promotes the commission of the offense that the accused committed. Smith, 332 S.W.3d at 439. There must be sufficient evidence connecting the person to the criminal offense to render them a "blameworthy participant." Blake v. State, 971 S.W.2d 451, 455 (Tex. Crim. App. 1998). A person merely present at the scene of the offense is not an accomplice. Id.at 454. "[O]ne is not an accomplice for knowing about a crime and failing to disclose it, or even concealing it." Id.A witness who is indicted for the same offense, or lesser included offense, as the accused is an accomplice as a matter of law. Id.That designation endures even if the indictment is dismissed if the witness agreed to testify against the accused in exchange for the dismissal of the charge. Id.
We conclude that the evidence in this case does not show that Joey Gray was an accomplice. Gray was indicted for the same offense as Appellant. However, the only evidence in the record about the result of this indictment came from Gray's testimony. He testified that the charge was dismissed along with an "organized crime" indictment and that he pleaded guilty to the charge of tampering with evidence. He testified that he did not reach an agreement to give testimony. He testified that he was guilty of the tampering offense, although he did not specify what he did to merit that charge, and that he was not guilty of the other offenses.
Indeed, the only evidence of Gray's involvement in this offense was his own testimony. Unsurprisingly, he did not admit that he participated in the offense with the requisite mental state. His testimony was that he tried to dissuade Appellant from doing anything, that Appellant persisted, and that he rode as a passenger in a pickup truck with Appellant in the bed of the truck to the scene of the shooting. After the shooting, the driver, Gray, and Appellant returned to Gray's home. There was no other testimony to show that Gray acted with the intent to assault Breward or that he engaged in an affirmative act to promote the commission of the offense. It is not clear what Gray did to tamper with evidence, but helping to conceal the commission of an offense is not enough to make a person an accomplice. Smith, 332 S.W.3d at 439 ("A person is not an accomplice if the person knew about the offense and failed to disclose it or helped the accused conceal it."). Accordingly, because there is no evidence that Gray was an accomplice, the State was not required to corroborate his testimony. We overrule this part of Appellant's first issue.
Appellant did not respond to the State's argument that Gray was not an accomplice. We note that Appellant tried, and failed, to get Gray to admit that the more serious charge was dismissed in exchange for his testimony. Further, Appellant could not have relied upon the State's failure to object to the jury instruction identifying Gray as an accomplice because that did not happen until after the close of the presentation of evidence.
SUFFICIENCY OF THE EVIDENCE
In his second issue and as part of his first issue, Appellant argues that the evidence is legally insufficient to support the verdict. Specifically, he argues that there is insufficient evidence to show that he shot the gun at Smith's trailer or that he intentionally or knowingly caused bodily injury to Breward. Applicable Law
The due process guarantee of the Fourteenth Amendment requires that a conviction be supported by legally sufficient evidence. See Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 917 (Tex. Crim. App. 2010) (plurality opinion). Evidence is not legally sufficient if, when viewing the evidence in a light most favorable to the verdict, no rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; see also Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007). Under this standard, a reviewing court does not sit as a thirteenth juror and may not substitute its judgment for that of the fact finder by reevaluating the weight and credibility of the evidence. See Brooks, 323 S.W.3d at 899; Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). Instead, a reviewing court defers to the fact finder's resolution of conflicting evidence unless that resolution is not rational in light of the burden of proof. See Brooks, 323 S.W.3d at 899-900. The duty of a reviewing court is to ensure that the evidence presented actually supports a conclusion that the defendant committed the crime. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
The sufficiency of the evidence is measured against the offense as defined by a hypothetically correct jury charge. See Malik, 953 at 240. A hypothetically correct jury charge "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 is tried." Id.
As charged in the indictment, the State's evidence had to show that Appellant knowingly or intentionally caused bodily injury to Chason Breward by shooting her with a firearm and that he used or exhibited a deadly weapon during the commission of the assault. See TEX. PENAL CODE ANN. §§ 22.01, 22.02(a)(2) (West 2011). Analysis
Appellant argues that the evidence is insufficient to show that he is the person who shot Breward and that it is insufficient to show that he did so with the intent to cause bodily injury.
There is no reasonable question that someone shot the trailer and Breward. A neighbor heard the shots and heard the vehicle driving by the trailers, there were bullet holes in the trailer, and Breward was shot. Appellant certainly had a motive to shoot at the trailer. He had previously assaulted people at a party held there, he had been forcibly ejected from the property, and the vehicle he was driving was damaged. Witnesses Fannin and Spikes had apparently made statements that incriminated Appellant, but they declined to repeat those statements to the jury. Because the witnesses did not cooperate, the trial did not unfold exactly as the State had anticipated. In the end, the proof that Appellant was the shooter rested almost entirely on Gray's testimony. It was for the jury to determine whether Gray's testimony that Appellant shot the gun was credible and worthy of belief. See Brooks, 323 S.W.3d at 899. The jury's determination to credit Gray's testimony is not irrational, and viewed in a light most favorable to the verdict, we hold that the evidence is legally sufficient to support the conclusion that Appellant was the shooter.
We reach the same conclusion with respect to whether the State proved that Appellant acted with the intent to cause bodily injury. As charged, the State had to show that Appellant acted knowingly or intentionally when he shot Breward. A person acts intentionally with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result. See TEX. PENAL CODE ANN. § 6.03(a) (West 2011). A person acts knowingly with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist and when he is aware that his conduct is reasonably certain to cause the result. Id.§ 6.03(b).
From the evidence presented, we have no direct evidence as to Appellant's intentions when he fired a rifle multiple times at Smith's trailer. However, Breward was one of the people he had argued with, to the point where he made physical contact with her person, or at least her clothing. He had been unrestrained in his violence towards the people at the party, striking some with his vehicle and attempting to strike others. Between the competing conclusions that he intended only to do property damage and that he was reasonably certain that his conduct would cause bodily injury to Breward, we conclude, when viewing the evidence in a light most favorable to the verdict, that the jury's verdict that he knowingly injured Breward is supported by the evidence.
The facts that support this conclusion include Appellant's motive to do harm to Breward, the number of shots fired, and the timing of the shooting-shortly after the altercation. There are also facts that do not support a conclusion that Appellant knowingly injured Breward. There was no evidence that he knew specifically that Breward was in the trailer or that he knew anyone was in the trailer. Specifically, there was no testimony as to the lighting conditions, whether Breward was visible from the road, whether her vehicle was parked outside, or any other details of Appellant's actual knowledge. We reach our conclusion in light of the deference we must give to "the responsibility of the trier of fact fairly to resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." See Jackson, 443 U.S. at 318-19, 99 S. Ct. 2789. In light of the standard of review, we conclude that the jury's conclusions about the evidence were reasonable and supported by the evidence. We overrule Appellant's first and second issues.
THE SENTENCE
In his third issue, Appellant argues that we must remand for a new sentencing hearing. He asserts that the jury's verdict is ambiguous as to the sentence imposed. And indeed it is. The jury was given a sheet to fill out that read as follows:
We, the jury, having found the defendant guilty beyond a reasonable doubt of the offense of Aggravated Assault with a Deadly Weapon, as charged in the indictment, assess his punishment at confinement in the Texas Division of Criminal Justice for ____ (confinement in the Institutional Division of the Texas Department of Criminal Justice for not less than two years nor more than twenty years).
In the blank provided was handwritten "20." Appellant points out that the jury did not specify whether it intended to sentence him to twenty hours, days, or months. When the trial court judge received the verdict, he interpreted the sentence assessed to be twenty years. The judge recited that the "punishment is 20 years confinement and a $10,000 fine." After questioning the jury about the fine-the presiding juror had not selected between "we do" and "we do not [impose a fine]" on the form-he pronounced the sentence of "20 years confinement" and a fine of $10,000 and thanked and excused the jurors.
Because the jury's verdict was incomplete, it was an informal verdict, and the trial court was obligated to call it to the attention of the jury and to reduce the verdict to its proper form. See TEX. CODE CRIM. PROC. ANN. art. 37.10(a) (West 2006). In fact, the trial court did employ this procedure with respect to the fine. The jury had indicated an amount for the fine, but failed to say whether it had elected to impose the fine or not to impose the fine.
Appellant did not object to the informal nature of the verdict with respect to the length of the sentence. The "general rule is that a jury's verdict should be held good if the jury's intention can be reasonably ascertained." See Perez v. State, 21 S.W.3d 628, 631 (Tex. App.-Houston [14th Dist.] 2000, no pet.) (citing Brinson v. State, 570 S.W.2d 937, 939 (Tex. Crim. App. 1978); Ainsworth v. State, 517 S.W.2d 274, 277 (Tex. Crim. App. 1975)). Furthermore, our construction of the verdict should receive a liberal rather than a strict interpretation, and a verdict is to be held sufficient when the intent of the jury can be reasonably ascertained. Perez, 21 S.W.3d at 631 (citing Smart v. State, 144 Tex. Crim. 93, 161 S.W.2d 97, 99 (1942); Tapley v. State, 673 S.W.2d 284, 290 (Tex. App.-San Antonio 1984, pet. ref'd)).
The intent of the jury in this instance can be reasonably ascertained. The question they were asked was denominated in years in prison ("not less than two years nor more than twenty years"). They could have answered that question in terms of months or weeks, but it is a fair baseline assumption that a question asked with a range of specific units of measure would be answered using those same units of measure. Furthermore, and perhaps most persuasive to the ascertainment of the jury's intent, the verdict was repeated twice in open court while the jury was present. Surely one of the jurors would have objected if it was the jury's intent to sentence Appellant to twenty months and the judge recited a term of twenty years. And, finally, no other construction makes sense. A term of twenty minutes, or days, or hours, or months, or decades, or centuries would be a sentence outside the range presented to the jury for their determination. No lawyer asked the jury to impose a sentence denominated in months or weeks, and there is no reason to conclude that the jury meant to assess a sentence of anything other than imprisonment for twenty years. We overrule Appellant's third issue.
DISPOSITION
Having overruled Appellant's three issues, we affirm the judgment of the trial court.
BRIAN HOYLE
Justice
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.