In the Court of Criminal Appeals of Texas

On Direct Appeal from Bowie County

KELLER, P.J., delivered the opinion of the Court in which WOMACK, KEASLER, HERVEY, and HOLCOMB, J.J., joined. MEYERS, J., filed a concurring opinion in which JOHNSON, J., joined. PRICE, HOLLAND, and JOHNSON, J.J., concurred in the result.

Appellant was convicted in June 1999 of a capital murder committed on September 19, 1997. ⁽¹⁾ Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure art. 37.071 §§2(b) and 2(e), the trial judge sentenced appellant to death. ⁽²⁾ Direct appeal to this Court is automatic. ⁽³⁾ Appellant raises nine points of error. We will affirm.

In point of error two, appellant complains that the State presented insufficient evidence to corroborate accomplice witness testimony. Three witnesses are relevant to resolving appellant's complaint here: Javarrow Young, Virginia Marie Wood, and Christina Davis. According to all three witnesses, appellant, Julius Murphy, Young, Wood, and Davis attended a party at Murphy's mother's home on the afternoon of September 17, 1997. Young testified that appellant engaged him in a conversation about a robbery. Murphy was present during this conversation but did not talk. Appellant later proceeded to show Young a pistol from the glove compartment of Wood's car. Appellant then passed the gun around to several others, including Young and Murphy. The gun was subsequently returned to appellant, who pocketed it.

Young, Wood, and Davis all testified that two vehicles of people traveled together to visit some out-of-town friends. One of the vehicles, a truck, was driven by Young's girlfriend and contained as passengers Young, Young's daughter, and a friend named Phil. The other vehicle, a car, was driven by appellant and contained as passengers Murphy, Wood, and Davis. Upon returning from their out-of-town trip, the two vehicles stopped at a gas station. Young testified that he conversed with appellant. Appellant related that he had seen a man with car trouble on the side of the road, and the man had waved, indicating he needed assistance. Appellant told Young that he was going to "jack him" - a statement Young interpreted as meaning appellant was going to rob the man on the road. Young declined to get involved in the robbery but told appellant "to do what they got to do, and go." Wood and Davis saw appellant engage in a conversation but did not hear what transpired.

Young saw appellant's car stop by the man's car on the side of the road. Young then drove his truck to a different gas station and waited. When appellant's car failed to appear after twenty to thirty minutes, Young drove his truck towards town. On the way, he saw the victim, Jason Erie, lying on the ground. Young flagged down a passing ambulance and directed it to the scene. Later, he talked to the police.

According to Wood and Davis, appellant drove Wood's car, Wood sat in the front passenger seat, Murphy sat behind appellant, and Davis sat behind Wood. Murphy and Davis were not getting along because they had been fighting earlier on the trip. Appellant pointed to the side of the road to Erie, who was apparently having car trouble. Appellant gave Erie's car a "jump," and Erie paid appellant five dollars. According to Davis, as Erie headed away, appellant told Murphy that Erie had a lot of money in his wallet and said something to the effect of "we should jack him." At first, Murphy resisted the idea, but appellant goaded Murphy until he agreed. Murphy then said, "Okay, give me the gun. I'll do it." Appellant then told Wood to take the gun out, Wood removed the gun from the glove compartment, and Murphy grabbed the gun. According to Wood, after Erie paid appellant five dollars, Murphy told her to hand him the gun and she complied.

Wood heard appellant tell Murphy that he should shoot and kill the man because "that's how I got caught the last time." Davis was not listening to the conversation but she heard the last phrase "that's how I got caught the last time." Davis testified that she grabbed Murphy and told him not to go, but Murphy pushed her away and exited the car. Davis put her head down and heard a gun fire. Wood saw Murphy shoot the victim and take his wallet. According to Wood, appellant and Murphy later bragged about the bullet shell remaining inside the gun's chamber, and appellant coldly bragged that he was going to keep the five dollars given by Erie as a souvenir. Both Davis and Wood testified that, sometime after the incident with Erie, Davis ran from the car and contacted the police.

Appellant, Murphy, and Wood were subsequently charged with capital murder. Appellant and Murphy did not testify. Wood, Davis, and Young all testified as witnesses for the prosecution. The jury charge included an accomplice as a matter of law instruction for Wood and an accomplice as a matter of fact instruction for Davis.

Appellant contends that Wood and Davis were accomplices, whose testimony required corroboration. And he contends that Young's testimony should be disregarded because he gave inconsistent statements to the police. Appellant concludes: "Without the testimony of Ms Davis and Ms. Wood[], the evidence is both legally insufficient, as well as factually insufficient, to support the conviction." Appellant further contends that, even if credence is given to Young's testimony regarding the robbery, without the testimony of Wood and Davis, there was no evidence that appellant did anything to aid or encourage the murder.

The accomplice-witness rule provides:

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. ⁽⁴⁾

In conducting a sufficiency review under the accomplice-witness rule, a reviewing court must eliminate the accomplice testimony from consideration and then examine the remaining portions of the record to see if there is any evidence that tends to connect the accused with the commission of the crime. ⁽⁵⁾ "Tendency to connect" rather than rational sufficiency is the standard: the corroborating evidence need not be sufficient by itself to establish guilt. ⁽⁶⁾ The accomplice-witness rule is not based upon federal or state constitutional notions of sufficiency; there simply needs to be "other" evidence tending to connect the defendant to the offense. ⁽⁷⁾

Appellant's argument contains several flaws. First, appellant erroneously assumes Davis to be an accomplice. The only evidence supporting the notion that Davis was an accomplice was her presence at the scene of the crime. But mere presence during the commission of a crime is not enough to make one an accomplice. ⁽⁸⁾ While the trial court gave the jury an accomplice as a matter of fact instruction regarding Davis, that instruction was not raised by the evidence. Even if the instruction had been raised by the evidence, the jury would have been free to believe that Davis was not in fact an accomplice. Because Davis was not an accomplice, her testimony could be used as corroboration. At least two facts revealed in Davis's testimony linked appellant to the crime: 1) appellant formed the idea of robbing Erie and goaded Murphy into committing the robbery, and 2) appellant commanded Wood to hand the gun to Murphy.

Finally, appellant erroneously assumes that the evidence connecting him to the robbery did not also connect him to the murder. We have previously held a defendant's presence at the scene and participation in the underlying offense to be sufficient to connect him to the capital murder for accomplice-witness rule purposes. ⁽¹¹⁾ Young's testimony that appellant said he intended to "jack" the victim was some evidence connecting appellant to the robbery and placing him at the scene of the capital murder. Point of error two is overruled.

In point of error eight, appellant contends that the evidence was legally insufficient to support the jury's answer to the "future dangerousness" special issue. ⁽¹²⁾ In evaluating the sufficiency of the evidence to support the jury's answer to that issue, we utilize the standard articulated in Jackson v. Virginia: we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found beyond a reasonable doubt that there is a probability that appellant would commit criminal acts of violence constituting a continuing threat to society. ⁽¹³⁾

(8) character evidence. ⁽¹⁴⁾

We shall address the first three factors together. These factors all deal with the circumstances of the offense. We have held that the facts of the offense alone can be sufficient to show future dangerousness. ⁽¹⁵⁾ In the present case, Wood testified that appellant told Murphy to kill the victim because "that's how I got caught the last time." That statement by appellant was strongly probative of future dangerousness. Appellant claims that the statement was not corroborated. Even if we were to indulge in the questionable assumption that the accomplice-witness rule had any application to the punishment phase of a trial, ⁽¹⁶⁾ Wood's testimony regarding the offense on trial was adequately corroborated in the guilt phase. In his brief, appellant contends that corroboration should not only connect the defendant to the offense but also connect the defendant to a particular state of mind when the victim was killed. The law imposes no such requirement.

Regarding the fourth factor, the State showed that appellant had committed several prior offenses. In 1996, he shot at a house because a friend would not sell embalming fluid for him. In 1997, appellant shot at another person. In June of 1997, appellant and another person committed a carjacking and threatened to kill the car's owner if he called the police. For that incident, appellant was charged with aggravated robbery, and he was on bond for that offense when he committed the offense before us. This sequence of crimes shows an escalating pattern of violence that constitutes some evidence of future dangerousness. ⁽¹⁸⁾ In addition, committing the offense while on bond is a significant fact showing a bold and dangerous disrespect for the law. It is similar to committing an offense while on parole - which we have held has some tendency to show future dangerousness. ⁽¹⁹⁾

Regarding the sixth factor - whether the defendant acted under the domination of another - the evidence showed that appellant acted as a leader, giving orders concerning the robbery and murder. Finally, the State presented testimony from a neuropsychologist that appellant posed a danger of future violence. The evidence was amply sufficient to support the jury's affirmative answer to the future dangerousness special issue. Point of error eight is overruled.

In point of error four, appellant contends that the trial court erred in permitting a lay witness to give an opinion about the ultimate issue in the case. During Davis's testimony at the guilt phase of trial, the following colloquy occurred:

But even if we were to assume arguendo that the trial court erred in permitting Davis to express the opinion given here, admission of this testimony would be harmless. Texas Rule of Appellate Procedure 44.2(b) provides that a nonconstitutional error "that does not affect substantial rights must be disregarded." We have determined that substantial rights are not affected by the erroneous admission of evidence "if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect." ⁽²²⁾ In the present case, the jury had already heard all of the facts upon which Davis's conclusion was based. Davis did not purport to be an expert or otherwise to be in a position to possess information not already related to the jury. The opinion here added little, if any, weight to Davis's testimony. Under the circumstances, we have a fair assurance that the evidence in question did not influence the jury or had but slight effect. Point of error four is overruled.

In point of error five, appellant contends that the State engaged in prosecutorial misconduct concerning Wood's testimony. At trial, Wood testified that she entered into a plea agreement with the State in which she would plead guilty to aggravated robbery, be sentenced to twenty years in prison, and truthfully testify at appellant's trial. Appellant has filed a motion to supplement the record with a docket sheet that he claims shows that Wood has yet to plead or be sentenced. Appellant suggests that Wood and the State have made a secret "sweetheart" deal in exchange for her testimony against him. The State responds that concluding its agreement with Wood would eliminate any incentive for her to cooperate if appellant's conviction were overturned and new trial became necessary.

While Rule 34.5(c)(1) permits supplementation of an appellate record with material that has been omitted from the appellate record, the rule cannot be used to create a new appellate record. ⁽²³⁾ Point of error five is overruled. We deny appellant's motion to supplement the record.

In point of error nine, appellant contends that the trial court erred in admitting certain photographs at the punishment stage of trial. Jerry Erie, Jr., the victim's brother, was called as a witness for the State during the punishment stage. In testimony that filled three pages, Jerry explained that the victim had a father, a wife, and two children. Jerry identified photographs depicting the victim's wedding, the victim in his sailor's uniform, the victim's children, and scenes of the victim swimming with his children. Appellant contends that the photographs constituted inadmissible victim impact evidence. He claims that the photographs were not relevant to any issue in the punishment phase, and if they were relevant, the probative value was outweighed by the danger of unfair prejudice.

The real question, then, is whether the probative value of the photographs was outweighed by the danger of unfair prejudice under Texas Rule of Evidence 403. ⁽²⁶⁾ We generally consider the following factors in any prejudice versus probative value analysis:

(1) how probative is the evidence;

Regarding the third factor, there were seven photographs presented within three pages of testimony; so, the length of time needed to present the evidence was short. Finally, the State had some need for the testimony. The State did not procure testimony from the victim's wife and children. The photographs were the only exposure the jury had to these close members of the victim's family. After considering the relevant factors, we conclude that the trial court was within its discretion in determining that the photographs' probative value was not substantially outweighed by the danger of unfair prejudice. Point of error nine is overruled.

In point of error one, appellant contends that the trial court erred in failing to submit his requested instruction on "independent impulse." Relying upon Mayfield v. State, ⁽³⁰⁾ appellant contends that he is entitled to such an instruction if he is charged with conspiracy liability for the offense under Texas Penal Code §7.02(b) and the evidence "raises a question whether the offense actually committed was perpetrated in furtherance of the felony, or was one which should have been anticipated by the Defendant."

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. Capital murder, murder, robbery, and attempted robbery are felonies.

Now, if you find from the evidence beyond a reasonable doubt that on or about the 19^th day of September, 1997, in Bowie County, State of Texas that Julius Jerome Murphy, did then and there intentionally cause the death of an individual, JASON ERIE, by shooting him with a firearm, and the said Julius Jerome Murphy was then and there in the course of committing or attempting to commit the offense of robbery of JASON ERIE, and if you further find from the evidence beyond a reasonable doubt that acting with intent to promote the commission of the robbery of JASON ERIE, the said CHRISTOPHER JULIAN SOLOMON, acted with intent to promote, or assist, the commission of the robbery of JASON ERIE, by encouraging, soliciting, directing, aiding, or attempting to aid Julius Jerome Murphy in the commission of the said robbery, if any, and that the shooting of JASON ERIE, by Julius Jerome Murphy, if there was such, was done in furtherance of the conspiracy to rob JASON ERIE, if any, and was an offense that should have been anticipated as a result of carrying out the conspiracy, then you will find the Defendant guilty of Capital Murder.

Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant CHRISTOPHER JULIAN SOLOMON, of Capital Murder.

(Italics added; capitalization in original).

With little explanation, we held in Mayfield that a defendant was entitled to an "independent impulse" instruction in a conspiracy liability case when raised by the evidence. ⁽³¹⁾ That holding, however, is no longer viable in light of our more recent decision in Giesberg v. State. ⁽³²⁾ In Giesberg, we held that defendants were not entitled to a defensive instruction on "alibi" because alibi was not an enumerated defense in the penal code and the issue was adequately accounted for within the general charge to the jury. ⁽³³⁾ Because alibi was merely a negation of elements in the State's case, its inclusion would be superfluous, and in fact, would be an impermissible comment on the weight of the evidence. ⁽³⁴⁾ Likewise, there is no enumerated defense of "independent impulse" in the Penal Code, and appellant's proposed defensive issue would simply negate the conspiracy liability element of the State's case. All that is required, then, is for the appropriate portions of the jury charge to track the language of §7.02(b). To the extent that Mayfield holds to the contrary, it is overruled. Point of error one is overruled.

In point of error three, appellant contends that the trial judge erred in failing to submit, in both the guilt and punishment phase charges, an instruction that accomplices could not corroborate each other's testimony. However, as we have explained in connection with point of error two, Wood was the only accomplice in the case. Although the trial court submitted an instruction concerning Davis being an accomplice as a matter of fact, the submission of the instruction was erroneous because the issue was not raised by the evidence. Since there was only one accomplice in the case, the evidence did not raise an issue regarding accomplices corroborating each other. Point of error three is overruled.

In point of error six, appellant contends that the trial court erred in refusing to submit the lesser-included offense of robbery. A defendant is entitled to the submission of a lesser offense if a two-pronged test is met: (1) the lesser included offense must be included within the proof necessary to establish the offense charged, and (2) some evidence must exist in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser offense. ⁽³⁵⁾ Because robbery is contained within the proof for murder in the course of a robbery, appellant has met the first prong. However, he fails to meet the second prong.

In considering whether there is some evidence in the record that a defendant, if guilty, is guilty only of the lesser offense, "[i]t is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense. Rather, there must be some evidence directly germane to a lesser-included offense for the factfinder to consider before an instruction on a lesser-included offense is warranted." ⁽³⁶⁾ Because appellant was charged with a conspiracy theory of liability for murder in the course of a robbery, the second prong is met only if there is evidence in the record showing either (1) there was no murder, (2) the murder was not committed in furtherance of a conspiracy, or (3) the murder should not have been anticipated.

In his brief, appellant does not directly address the State's theory of the offense. Instead, appellant simply contends that the evidence raises the possibility that he committed only a robbery because Wood and Davis were accomplices and Young's testimony indicated only that appellant intended to rob the victim. However, whether appellant intended to kill the victim before the robbery took place is irrelevant if the relevant liability elements were established at the time the crime was committed. ⁽³⁷⁾ There is no dispute that Jason Erie was shot and killed. The uncontradicted testimony at trial was that Murphy intentionally shot and robbed the victim. Uncontradicted testimony also shows that appellant told Murphy to kill the victim because "that is how I got caught the last time." Appellant points to no evidence raising the lesser offense of robbery through any of the three possible ways it could have been raised in this case, nor have we found any such evidence ourselves. No evidence indicates that a murder did not occur. There is no evidence that the victim's death was not in furtherance of a conspiracy to commit robbery. And finally, there is no evidence that the victim's death was not anticipated, much less any evidence that the death should not have been anticipated. Appellant was not entitled to an instruction on the lesser offense of robbery. Point of error six is overruled.

In point of error seven, appellant claims that the trial court erred in failing to submit an anti-parties instruction in the punishment jury charge. Appellant concedes that the "anti-parties" special issue found in Article 37.071 §2(b)(2) was submitted to the jury. He contends, however, that the trial court should have sua sponte submitted an additional instruction telling the jury to ignore the parties instructions in the guilt jury charge. ⁽³⁸⁾ We have previously decided this issue adversely to appellant's position. ⁽³⁹⁾ Point of error seven is overruled.

Publish

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1. Tex. Penal Code Ann. §19.03(a).

39. McFarland v. State, 928 S.W.2d 482, 516-517 (Tex. Crim. App. 1996), cert. denied, 519 U.S. 1119 (1997).