Opinion
No. 05-14-01229-CR
01-21-2016
JOHNNY RAY WALKER, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 7 Dallas County, Texas
Trial Court Cause No. F-1360285-Y
MEMORANDUM OPINION
Before Justices Fillmore, Myers, and Whitehill
Opinion by Justice Whitehill
A jury convicted appellant Johnny Ray Walker of murder and assessed punishment at ninety-nine years' imprisonment. The trial court rendered judgment on the jury's verdicts.
Appellant's five "points of error" argue (i) the evidence of identity was insufficient; (ii) a voluntary intoxication jury instruction was erroneous; (iii) a good conduct time jury instruction was erroneous; (iv) a jury instruction that allegedly defined "reasonable doubt" was erroneous; and (v) the trial court lacked jurisdiction due to the absence of written transfer orders.
Although rule of appellate procedure 38.1(f) contemplates that appellants designate their appellate complaints as "issues" or "points," appellant refers to his complaints using the former "points of error" name. We use that designation to clearly track his brief.
As discussed below, we affirm because (i) there is sufficient evidence identifying appellant as the actor; (ii-iv) the instructions were proper based on this record; and (v) a written transfer order among Dallas County district courts is not required for the receiving court to have jurisdiction over the transferred case.
I. BACKGROUND
The indictment charged appellant with shooting Charles Turner to death on or about September 14, 2013.
At trial, evidence showed that the police responded to a shooting call in the 5500 block of Lamar Street in south Dallas at about 4:10 p.m. on Saturday, September 14, 2013. It was an industrial area where people gathered on weekends to barbecue, sell things, and "hang out with each other." There, the police found Turner lying on the ground, motionless and not breathing. Turner was shot five times and died as a result of his gunshot wounds. Appellant was arrested later that same day.
Appellant was charged with murder and pled not guilty. The jury convicted him of murder and assessed punishment at ninety-nine years' imprisonment. Appellant timely appealed.
II. ANALYSIS
A. First Point of Error: Was the evidence identifying appellant as the shooter sufficient to support the murder conviction?
1. Standard of Review and Applicable Law.
We review the sufficiency of the evidence establishing the elements of a criminal offense for which the State has the burden of proof under the single legal sufficiency standard stated in Jackson v. Virginia, 443 U.S. 307 (1979). See Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013).
Under that standard, we review all the evidence in the light most favorable to the verdict and determine whether any rational factfinder could have found the offense's elements beyond a reasonable doubt. Id. The factfinder is the exclusive judge of witness credibility and the weight to be given to the evidence. See Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008). We defer to the factfinder's responsibility to weigh the evidence and to fairly resolve any evidentiary conflicts. See Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
A person commits murder if he intentionally or knowingly causes an individual's death. TEX. PEN. CODE ANN. § 19.02(b)(1) (West 2011). Or a person commits murder if he intends to cause serious bodily injury and commits an act clearly dangerous to human life and causes an individual's death. Id. § 19.02(b)(2).
2. Trial Evidence.
Identity is the only element that appellant challenges. Accordingly, we focus our review on the evidence relevant to identifying Turner's killer.
Charles Nelson
Charles Nelson testified that he and appellant were close and that appellant used to call him "Dad." Nelson saw appellant at around 10:30 or 11:00 on the morning of September 14, 2013. Nelson was sitting under a bridge in the general area where people congregated and where Turner was later shot. Appellant was upset, and he told Nelson that "someone pushed him or something." Then appellant showed Nelson a handgun and told Nelson that if Nelson didn't buy the gun from him, he was going to use it to kill somebody. Nelson, however, did not think appellant was being serious.
Nelson saw appellant again in the same area at around 3:30 or 4:00 that afternoon. He saw appellant cross the street, and then he heard some gunshots. Nelson then went to his car and got in without looking back. But the police stopped him before he could leave the area. The police took him to a police station for questioning.
Nelson also testified that he was an alcoholic. He started drinking alcohol at around 7:00 a.m. on the day of the murder, and he thought he was not sober by 10:30 that morning. He was drunk when he was questioned at the police station.
Jimmy Sheppard
Jimmy Sheppard testified that on September 14, 2013, he was selling "[h]ot links" in the area where the murder took place. He described the scene as similar to a flea market. He got there at around 6:00 a.m. He was a friend of both appellant and Turner.
At some point, Sheppard saw a black car pull up, and he saw appellant "getting high over there in—in the car."
Later, appellant approached Sheppard and got a hot link. Appellant then got a second hot link, and while he was eating it a maroon car backed into a parking space near Sheppard's truck. There was a car parked between Sheppard's truck and the maroon car.
Appellant then jumped up from the curb and went up to the passenger side of Sheppard's truck, where Sheppard was.
Sheppard heard a "click, click," and caught a glimpse of a gun. Then appellant "stepped out from around the truck and shot" a person that Sheppard knew as "Buck." On cross-examination, Sheppard was asked, "[A]re you telling the jury that you saw [appellant] actually shoot Mr. Turner, who you refer to as Buck?" Sheppard answered, "Yes, sir."
Sheppard heard at least four gunshots. Then appellant ran away.
Sheppard called 911. When the operator asked who had shot the victim, Sheppard said it was a "young guy"; he did not give appellant's name. Later, Sheppard went to the police station and told them that appellant had been the shooter. He told the police that appellant was wearing a black shirt, but at trial he testified that he thought it was actually a brown shirt. He also testified that appellant was wearing shorts.
Sheppard acknowledged that he had had some trouble in the past, such as a felony theft in 1990 and a misdemeanor assault in 2012.
Tony Eakles
Tony Eakles testified that he was homeless and had been homeless since 2005. He had many health problems, and he testified that "lately" he had been passing out from some unknown cause. He also said that he was not an alcoholic. He knew both appellant and Turner.
On the day in question, Eakles was sitting in a chair and drinking near the place where the murder occurred. Appellant and another person were drinking with Eakles.
Then Eakles saw "Buck pass by and back up in there." Eakles confirmed that "Buck" was Turner, and that he was driving a maroon Buick.
When Turner got out of his car, Eakles said, "Come get a drink." Then Eakles heard gunshots and saw appellant shooting a gun. He thought he heard four gunshots.
Eakles went over to Turner and took his pulse, "and he breathed about twice and that's it."
Later in Eakles's examination, the State asked Eakles how he knew that appellant had shot Turner, and Eakles answered, "I was looking at him." The State then asked, "You actually saw it?" Eakles answered, "I'm standing up looking at him doing the gun like that."
Curtis Smith
Curtis Smith testified that he lived in a rooming house on St. Clair Street, about two or three blocks from where Turner was shot. Smith knew appellant, but not "personally."
On the afternoon in question, Smith was sitting in the yard having a beer with his wife and a friend named Greg. At some point, appellant walked up to Smith and the others. Smith thought that appellant was acting "kind of unusual." When the State asked Smith whether appellant was agitated, Smith answered, "Yeah, you could say that."
Appellant then walked around to the back of the house and came back with a different shirt on. Smith explained that there was a place in the back where another tenant kept "all of his old clothes and stuff like that." Smith saw appellant put some clothes in a trash can in the yard where he was sitting.
Appellant stayed with Smith and the others for about 15 or 20 minutes. While appellant was there, Smith noticed a helicopter hovering above. Although Smith and his companions talked about the helicopter and wondered what was going on, appellant said nothing about it. The helicopter hovered overhead for about five minutes, and appellant walked away about five minutes after the helicopter left.
Some police officers came by after appellant left and asked Smith if appellant had been there. He told them that he had. In response to further questions, Smith told the officers that appellant had taken off some clothes and put them in the trash can.
Barry Culp
Barry Culp testified that he is a Dallas Police Department senior corporal. He is in the canine unit.
On September 14, 2013, he was dispatched to the location where Turner was killed. He was told that the suspect had run off down some railroad tracks, so he hooked his dog onto a tracking leash and started looking for the suspect.
At some point, Culp got into a police car with some other officers, and at the corner of Bexar and Valentine they encountered a man walking by himself. The man was wearing shorts that were so large that they looked like they had to belong to someone else. The police officers stopped their car and ultimately arrested the man, who turned out to be appellant. The police officers searched appellant, but he did not have a weapon.
Culp and several other officers searched the area for the gun, but they never found it.
Justin O'Donnell
Justin O'Donnell testified that he was a crime scene analyst for the Dallas Police Department. He collected some evidence, including shell casings, at the scene of Turner's murder. He was then called to a location on St. Clair Street, where he collected a brown shirt and a pair of shorts from a trash can. Later that day, at around 7:30 p.m., O'Donnell took a gunshot residue kit swabbing from appellant.
Waleska Castro
Waleska Castro testified that she was a trace evidence examiner for the Southwestern Institute of Forensic Sciences, also known as the Dallas County Crime Lab. She performed gunshot residue analysis on samples taken from appellant's and Turner's hands. She found no gunshot residue particles in any of the samples. She explained that there are several reasons that a gunshot residue analysis might turn out negative even if the person tested had recently shot a gun, such as washing the hands or putting the hands into pockets.
Laura Fleming
Laura Fleming testified that she was a firearms and tool mark examiner with the Dallas County Crime Lab. She tested Turner's clothing for gunshot residue. She found gunshot residue around some of the holes in Turner's clothing. But she was unable to determine how far away the shooter was from Turner when the shooting occurred.
Amanda Webb
Amanda Webb testified that she was a forensic biologist with the Dallas County Crime Lab. She performed DNA testing on a brown t-shirt, a pair of khaki shorts, and a belt that were submitted to her by the police. One sample from the belt provided a low level amount of DNA, and testing showed that both Turner and appellant were possible contributors of that DNA. But Webb explained that the testing of that sample yielded only a single genetic marker, and, given that result, half of the population would be possible matches of that DNA. There was a stain on the shorts that provided a DNA sample that was a close match for appellant's DNA profile. Webb explained that this match would occur one in 2.29 quadrillion times, statistically speaking.
3. Application of the Law to the Facts.
As discussed above, two witnesses—Jimmy Sheppard and Tony Eakles—testified that they saw appellant shoot Turner. Appellant, however, argues that their testimony is insufficient to support the essential element that appellant was the person who shot Turner.
Appellant argues that Eakles's testimony is no evidence of the shooter's identity because Eakles was drunk at the time of the shooting and because crime-scene photographs showed that Eakles could not have seen the shooting from his vantage point.
We have reviewed the record, and it does not show that it was physically impossible for Eakles to have seen the shooting from his vantage point. Moreover, although Eakles said he had been drinking that day, he did not say that he was drunk. Regardless, a witness's intoxication bears on his or her credibility, which remains a matter reserved for the jury, see Cain v. State, 958 S.W.2d 404, 409 (Tex. Crim. App. 1997); and the jury is free to believe or disbelieve all or any part of the State's witnesses' testimony, Davis v. State, 177 S.W.3d 355, 359 (Tex. App.—Houston [1st Dist.] 2005, no pet.).
Appellant's argument as to Sheppard is similar. He says that Sheppard was seated when the shooting occurred, and that his view of the shooting would have been blocked by the parked vehicles. But Sheppard's position at the moment of the shooting is not entirely clear from the record. When the State asked him what he saw from where he was standing, Sheppard answered, "I wasn't standing up," and he then said, "I was sitting down—more or less." It is not clear, however, where Sheppard was in the relation to the shooter and the nearby vehicles when the shooting occurred. And there is no testimony that his view of the shooter necessarily would have been blocked by any of the vehicles in the area. Moreover, on cross-examination, Sheppard testified unequivocally that he saw appellant "actually shoot Mr. Turner." Again, the jury was free to believe or disbelieve his testimony. See Davis, 177 S.W.3d at 359.
It is well established that a conviction may be based on the testimony of a single eyewitness. Id. In this case, there were two eyewitnesses. The jury was entitled to believe their testimony, and we must give its decision deference. Moreover, there was other circumstantial evidence of guilt, such as the evidence that appellant fled the scene, changed clothes soon after the crime, stood with a group while the police helicopter searched the area, and then moved on. See McNeal v. State, No. 05-10-00181-CR, 2011 WL 2420271, at *6 (Tex. App.—Dallas June 17, 2011, pet. ref'd) (not designated for publication) ("Flight is a circumstance from which an inference of guilt may be drawn.").
We hold that the evidence described above was sufficient to support appellant's conviction and so overrule appellant's first point of error.
B. Second Point of Error: Did the trial court commit reversible error by submitting a voluntary intoxication jury instruction?
1. Standard of Review and Applicable Law.
Review of a complaint of jury charge error requires a two-step analysis. See Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015). First, we determine whether the jury charge contained error. Id. If so, we analyze the harm resulting from the error. Id. If the error was preserved by objection, we reverse if the error was not harmless. Id. If the error was not preserved, we affirm unless the error caused egregious harm, meaning error that deprived the defendant of a fair and impartial trial. Id. Here, appellant did not object to the voluntary intoxication jury instruction.
The jury charge must "distinctly set[] forth the law applicable to the case." TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007). The trial court must charge the jury on the law applicable to every issue raised by the evidence. Whipple v. State, 281 S.W.3d 482, 502 (Tex. App.—El Paso 2008, pet. ref'd); Camarillo v. State, No. 05-06-00503-CR, 2007 WL 867019, at *3 (Tex. App.—Dallas Mar. 23, 2007, pet. ref'd) (mem. op., not designated for publication).
In this case, the jury charge contained the following instruction: "Voluntary intoxication does not constitute a defense to the commission of crime [sic]." The instruction quoted § 8.04(a) of the penal code verbatim. See TEX. PENAL CODE ANN. § 8.04(a) (West 2011). If there is evidence from any source that might lead a jury to conclude that the defendant's intoxication somehow excused his actions, a § 8.04(a) instruction is proper. Taylor v. State, 885 S.W.2d 154, 158 (Tex. Crim. App. 1994); Camarillo, 2007 WL 867019, at *3.
2. Application of the Law to the Facts.
Appellant makes two arguments. One, he argues that the instruction was erroneous because he did not rely on intoxication to negate any element of the offense. Two, he argues that there was no evidence to support submission of the voluntary intoxication instruction. We disagree with both arguments.
The court of criminal appeals rejected appellant's first argument in Taylor, where the court held that a § 8.04(a) instruction is proper if raised by the evidence, even if the defendant does not rely on intoxication as a defense. 885 S.W.2d at 158.
We are not persuaded by appellant's second argument either. Sheppard testified that he saw appellant in a car "getting high" before the shooting occurred. And Eakles testified that appellant was drinking with him before the shooting. Because there was evidence that appellant used drugs and drank alcohol on the day of the shooting and before the shooting occurred, the jury might have thought that appellant was intoxicated when he shot Turner and that his intoxication somehow excused his actions. Accordingly, the trial court did not err by submitting the instruction.
Our holding in Camarillo supports our conclusion. In that case, Camarillo was charged with sexually assaulting his step-daughter. 2007 WL 867019, at *1. At trial, there was evidence that Camarillo had smoked methamphetamine at the houses where the family lived during the time the victim was sexually assaulted. Id. at *3. There was also evidence that smoking methamphetamine makes a person "kind of moody" and "hyper." Id. We held that the evidence of Camarillo's drug use supported the trial court's decision to give the instruction. Id. Similarly, in this case there was evidence that appellant got "high" and drank alcohol the day of the shooting and before the shooting occurred. We conclude that this was sufficient evidence to raise the issue of voluntary intoxication.
Because the trial court did not err by giving the voluntary intoxication instruction, we overrule appellant's second point of error.
C. Third Point of Error: Did the trial court commit reversible error by submitting a good conduct time jury instruction?
The punishment phase jury charge instructed the jury that appellant could "earn time off the period of incarceration imposed through the award of good conduct time." This instruction tracked the language of code of criminal procedure article 37.07, § 4(a). See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 4(a) (West Supp. 2015). Appellant's third point of error argues that the instruction was erroneous because government code § 508.149 precludes him from receiving any good conduct time credit.
But the court of criminal appeals rejected appellant's argument in Luquis v. State, 72 S.W.3d 355, 363 (Tex. Crim. App. 2002). And we have repeatedly rejected that argument since Luquis. See, e.g., Anderson v. State, No. 05-13-00253-CR, 2013 WL 6870013, at *4 (Tex. App.—Dallas Dec. 31, 2013, no pet.) (mem. op., not designated for publication); Coppola v. State, No. 05-10-00704-CR, 2012 WL 29318, at *5 (Tex. App.—Dallas Jan. 6, 2012, no pet.) (not designated for publication). We do so again today.
We thus overrule appellant's third point of error.
D. Fourth Point of Error: Did the trial court commit reversible error by defining "reasonable doubt" in the jury charge?
The guilt phase jury charge included the following sentence: "It is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution's proof excludes a 'reasonable doubt' concerning the defendant's guilt."
Appellant argues that this sentence constituted an impermissible definition of "reasonable doubt." We reject this argument, it having been rejected repeatedly by the court of criminal appeals and by this Court. See, e.g., Mays v. State, 318 S.W.3d 368, 389 (Tex. Crim. App. 2010); Woods v. State, 152 S.W.3d 105, 115 (Tex. Crim. App. 2004); O'Canas v. State, 140 S.W.3d 695, 702 (Tex. App.—Dallas 2003, pet. ref'd); Hargrove v. State, No. 05-11-00307-CR, 2012 WL 3553501, at *9 (Tex. App.—Dallas Aug. 20, 2012, pet. ref'd) (not designated for publication).
The jury charges in the cited cases used the phrase "all 'reasonable doubt'" instead of "a 'reasonable doubt'" like the jury charge in this case did. Appellant does not mention this difference or argue that it is material. --------
We thus overrule appellant's fourth point of error.
E. Fifth Point of Error: Did the trial court lack jurisdiction because the case was not transferred to its docket by written order?
Finally, appellant argues that the trial court lacked jurisdiction because (i) the case was originally presented for indictment in a different trial court and (ii) there were no written orders transferring the case to the court that tried the case and rendered judgment. We have repeatedly rejected this argument, see, e.g., Bourque v. State, 156 S.W.3d 675, 678-79 (Tex. App.—Dallas 2005, pet. ref'd); Carson v. State, No. 05-14-00376-CR, 2015 WL 3549779, at *6 (Tex. App.—Dallas June 8, 2015, pet. ref'd) (mem. op., not designated for publication), and do so again today.
We therefore overrule appellant's fifth point of error.
III. CONCLUSION
For the foregoing reasons, we affirm the trial court's judgment. Do Not Publish
TEX. R. APP. P. 47
141229F.U05
/Bill Whitehill/
BILL WHITEHILL
JUSTICE
JUDGMENT
On Appeal from the Criminal District Court No. 7, Dallas County, Texas
Trial Court Cause No. F-1360285-Y.
Opinion delivered by Justice Whitehill. Justices Fillmore and Myers participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered January 21, 2016.