Jessie Lee Shaw v. State

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-05-00238-CR ______________________________ JESSIE LEE SHAW, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 6th Judicial District Court Lamar County, Texas Trial Court No. 20876 Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Justice Carter MEMORANDUM OPINION Jessie Lee Shaw was convicted by a Lamar County jury of using a motor vehicle in evading arrest or detention. The jury found Shaw used or exhibited the automobile as a deadly weapon. Shaw elected to have the trial court assess punishment. Shaw pled true to having been previously convicted for two prior felony offenses enhancing the punishment range. (1) The trial court sentenced Shaw to forty years' incarceration. We affirm the trial court's judgment, as we find that the evidence was legally and factually sufficient. (2) The Chase On June 12, 2005, around 6:00 p.m., Officer Vance Boller (3) had just finished his shift for the Paris Police Department and picked up his two daughters from their day care facility. On the west side of town, at a local wrecker service, which Boller knew to be closed at that time of day, Boller saw a white car backed up to the business' fence, and a male loading the car with items from inside the fence. The male was later identified as Shaw. Finding this activity suspicious, Boller called dispatch to suggest an on-duty officer investigate. After being told there were no available officers, Boller parked his truck about seventy-five yards away and continued to watch Shaw load his vehicle. After a while, Boller approached Shaw. When Shaw saw Boller, who was still in his police officer's uniform, Shaw entered his vehicle, without closing the trunk or the car door, and sped away. Boller returned to his personal vehicle and pursued. Boller called dispatch and was told no officers were immediately available to pursue Shaw. At some point, Trooper Greg Wilson of the Texas Department of Public Safety joined the pursuit, and Boller allowed Wilson to take the lead. Soon thereafter, Paris police officer J. D. Simmons placed "stop sticks" on a road in Shaw's path; after Shaw's vehicle crossed the stop sticks (puncturing two of Shaw's tires), Simmons joined the chase. Shaw proceeded to lead the officers on a high-speed chase, reaching approximately sixty miles per hour in a residential zone where the speed limit was forty-five. During this chase, Shaw passed other vehicles in a nonpassing zone; Boller specifically testified that Shaw led the officers through a residential and "[h]igh pedestrian area" where there was "pretty good traffic." At some points, as Shaw passed other vehicles on the road, there were "a couple" of other vehicles between Shaw and Boller. Boller said there were "a lot of vehicles" on the road as Shaw traveled from Campbell to Graham Streets. Shaw's chase also included: running at least two stop signs; driving through a dip in the road at such speed that his car became airborne momentarily; and traveling as much as a mile after the "stop sticks" punctured at least two of his tires. After crossing the "stop sticks," Shaw ran a stop sign and crossed Loop 286, where intersecting traffic was not required to stop. Boller testified that that particular intersection was "a heavily travel[e]d area" where "major accidents" had occurred. Shaw finally came to a stop in the entrance to the local Kimberly Clark factory. Analysis Shaw's sole points on appeal contend the evidence was legally and factually insufficient to sustain the jury's finding that he used or exhibited the car which he drove as a deadly weapon. In a somewhat similar situation, we recently reversed a finding of a car being used as a deadly weapon in an evading arrest conviction. (4) There, we found the evidence legally and factually insufficient to support the deadly weapon finding where there was "no evidence" Drichas' reckless driving actually endangered another person, and thus, the evidence was legally and factually insufficient to support the deadly weapon finding. Drichas, 152 S.W.3d at 638-39. The Texas Court of Criminal Appeals reversed our holding. As regards our analysis of the legal sufficiency of the evidence, the Texas Court of Criminal Appeals said that Drichas' "manner of using his truck posed a danger to pursuing officers and other motorists that was more than simply hypothetical; the danger was real, and the manner in which [Drichas] drove his truck made it capable of causing death or serious bodily injury . . . . " Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005). As for our finding that the evidence was factually insufficient to support a deadly weapon finding, (5) the Texas Court of Criminal Appeals stated, "[t]he volume of traffic on the road is relevant only if no traffic exists," and capability to cause death or serious bodily injury "is evaluated based on the circumstances that existed at the time of the offense." Id. at 799 (citing Williams v. State, 946 S.W.2d 432, 435-36 (Tex. App.--Fort Worth 1997), rev'd in part on other grounds, 970 S.W.2d 566 (Tex. Crim. App. 1998)). On remand, we applied the Texas Court of Criminal Appeals' language in Drichas as follows: "although the danger to some other motorist must be actual (not just hypothetical), some unspecified degree of proximity is necessary to show that actual danger existed, even though no person was actually endangered." Drichas v. State, 187 S.W.3d 161, 163 (Tex. App.--Texarkana 2006, pet. filed). We examined the record to determine whether there was sufficient evidence that "there was another motorist present on the roadway 'at the same place and time' as Drichas when he drove in a reckless manner." Id. at 166. Under such analysis, we again concluded the evidence was factually insufficient. Id. Shaw's Case The instant case is markedly different from that presented in Drichas. Officer Boller testified that, in his opinion, Shaw operated his car, during the chase, in a way that made the car a deadly weapon. Boller witnessed Shaw pass other vehicles in no-passing zones and drive through a residential area at a high rate of speed. Shaw led officers through a "[h]igh pedestrian area" where other cars were present. Boller described the roads during the chase as having "pretty good traffic," and sometimes there were a "couple of cars" between Shaw and Boller as Boller pursued. A video from Officer Simmons' car shows Simmons placing the "stop sticks"; Shaw's car crossing over the "stop sticks" and passing Simmons; and then Simmons participating in the last minutes of the chase. As Simmons joins the pursuit, at least one vehicle can be seen to have pulled over for Simmons, and as many as five to eight vehicles (other than law enforcement vehicles) are seen at the intersection where Shaw's vehicle came to a stop. Boller specifically said that, during the chase, there were other vehicles on the road. Based on the circumstances present and evidence admitted, we find this case distinguishable from Drichas. Shaw's use of his vehicle "was more than simply hypothetical; the danger was real." Drichas, 175 S.W.3d at 798. There was ample evidence of other vehicles on the roads as Shaw led officers on this pursuit. The evidence was legally and factually sufficient to sustain the jury's conviction. We affirm the judgment. Jack Carter Justice Date Submitted: August 30, 2006 Date Decided: October 20, 2006 Do Not Publish 1. Evading detention with a motor vehicle is a state-jail felony. See Tex. Penal Code Ann. § 38.04(b)(1). With an affirmative finding of the use of a deadly weapon, it becomes a third-degree felony. See Tex. Penal Code Ann. § 12.35(c)(1). Enhancing the third-degree felony with two prior felony convictions increases the punishment range to imprisonment for life or any term of years not more than ninety-nine years or less than twenty-five years. Tex. Penal Code Ann. § 12.42(d). 2. We review the legal sufficiency of the evidence by determining whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt after viewing the evidence in a light most favorable to the prosecution. Cates v. State, 102 S.W.3d 735, 738 (Tex. Crim. App. 2003) (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). The Texas Court of Criminal Appeals has very recently modified the factual sufficiency review. In a factual sufficiency review, we view all the evidence in a neutral light and determine whether the evidence supporting the verdict is so weak that the jury's verdict is clearly wrong and manifestly unjust or whether the great weight and preponderance of the evidence is contrary to the verdict. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); see Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996); Watson v. State, No. PD-0469-03 (Tex. Crim. App. Oct. 18, 2006), available at http://www.cca.courts.state.tx.us/OPINIONS/ HTMLOPINIONINFO.ASP?OPINIONID=14579. 3. The State advises that the officer's name is correctly spelled "Boehler." However, we use the spelling of the court reporter in the reporter's record. 4. See Drichas v. State, 152 S.W.3d 630 (Tex. App.--Texarkana 2004), rev'd, 175 S.W.3d 795 (Tex. Crim. App. 2005). 5. In our original opinion, we noted that the record before us was devoid of any evidence or any of the pursuing "officers or any other person were actually endangered" by Drichas' driving. Drichas, 152 S.W.3d at 638. in 2002, no pet.). We agree that the interpretations of Article 38.14 relating to accomplice witness testimony are persuasive and applicable to Article 38.141. Legal and factual sufficiency standards of review are not applicable to a review of covert witness testimony under Article 38.141, because corroboration of the covert witness testimony is a statutory requirement imposed by the Texas Legislature. Torres, 137 S.W.3d at 196; Cantelon, 85 S.W.3d at 460; see Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999) (accomplice witness testimony). The covert witness rule only requires that there is some other evidence which tends to connect the accused to the commission of the offense alleged in the indictment. Torres, 137 S.W.3d at 196; see Hernandez v. State, 939 S.W.2d 173, 176 (Tex. Crim. App. 1997). In determining whether there is "other evidence" which tends to connect the accused with the offense, we must eliminate all covert witness testimony and determine whether the remaining inculpatory facts and circumstances tend to connect the appellant to the offense. Torres, 137 S.W.3d at 196; Young, 95 S.W.3d at 451; Cantelon, 85 S.W.3d at 461. In our analysis of whether there is sufficient corroboration, we will eliminate from consideration all of Taylor's testimony. Article 38.141 will be satisfied if there was some other evidence that tended to connect Brown with the cocaine transactions. Brown's presence at the scene of the crime was clearly established in both transactions. Taylor's cars were searched before both transactions, a surveillance was conducted following Taylor's movements on both days, and both videotapes recorded the presence of Brown at Brown's residence. However, Brown's presence alone is not enough to corroborate the accomplice testimony. Mere presence of a defendant at the scene of the crime is insufficient to corroborate accomplice testimony. Torres, 137 S.W.3d at 196. However, proof that the accused was at or near the scene of the crime at or about the time of its commission, coupled with other suspicious circumstances, may be sufficient to tend to connect the accused to the crime. Id.; see Brown v. State, 672 S.W.2d 487, 489 (Tex. Crim. App. 1984). Even apparently insignificant incriminating suspicious circumstances may sometimes prove to be sufficient corroboration. Torres, 137 S.W.3d at 196; Cantelon, 85 S.W.3d at 461; see Munoz v. State, 853 S.W.2d 558, 559 (Tex. Crim. App. 1993). Cumulative evidence of "suspicious circumstances" can be sufficient evidence which "tends to connect" a defendant to the alleged offense, even if none of the circumstances would be sufficient individually. Cantelon, 85 S.W.3d at 460–61. We will examine the other evidence that tends to connect Brown to each offense in turn. The State introduced sufficient "suspicious circumstances" tending to connect Brown to the March 5 transaction. Three $20.00 bills found in Brown's possession had matching serial numbers with the money photocopied by the police. Arledge testified he had photocopied the money before he provided it to Taylor. The videotape of the March 5 transaction recorded the following conversation: [Brown]: What you need? [Taylor]: The same thing. [Brown]: What did you get from me the other day? [Taylor]: 1, 5, 0. The money and the above conversation, when combined with Brown's presence at the scene, are sufficient to tend to connect Brown to the offense. Brown argues that the evidence of suspicious circumstances is insufficient to tend to connect him to the February 26 transaction. While Brown's presence was established at the scene of the offense, none of the money, which had previously been photocopied, provided to Taylor to purchase cocaine, was found in Brown's possession. As discussed above, the videotape of the March 5 transaction recorded Brown asking Taylor what he wanted and asking what he had gotten "the other day." While a date is not specified identifying the "other day," the fact Brown had provided "the same thing" to Taylor previously is a suspicious circumstance. In addition, the videotape of the February 26 transaction records Brown entering the house, after a brief conversation with Taylor, and then exiting with something in his (Brown's) hand. The combined effect of Brown's presence at the scene and the suspicious circumstances, including the conversation during the March 5 transaction and the fact Brown entered his residence and returned with something in his hand, is sufficient to corroborate the covert witness' testimony. In Young, the First District Court of Appeals held that the corroboration of a covert witness' testimony was insufficient because the only evidence linking the defendant to the offense was the covert witness' identification of the defendant's voice on an audiotape. Young, 95 S.W.3d at 452. The court noted that, without the informant's testimony, the accused was not linked to the audiotape, which was the only noninformant testimony linking Young to the crime. Id. This case is distinguishable from Young because the police officers, who conducted a surveillance of Taylor's travels, observed Taylor's vehicle at Brown's residence and because the recording of the transaction included a videotape recording rather than just an audiotape recording. We conclude that sufficient corroboration of the covert witness testimony exists. The State introduced sufficient evidence to corroborate both the February 26 and March 5 transactions. We overrule Brown's first point of error. The Variance Was Immaterial Brown contends, in his second point of error, that the evidence is legally insufficient because of a variance between the indictment and the proof at trial. The indictment specified Brown sold the cocaine to "T. Taylor," while the proof at trial established that the undercover officer was "Timothy Taylor." As Brown correctly acknowledges, the State is permitted under Article 21.07 of the Code of Criminal Procedure to indict using one or more of the initials of a person's given name. Tex. Code Crim. Proc. Ann. art. 21.07 (Vernon Supp. 2004–2005). Brown argues, though, that the State is obliged to connect the initial and the actual name at trial. Because the State did not prove Timothy Taylor was the same person as "T. Taylor" in the indictment, a variance existed between the indictment and the evidence at trial. "A 'variance' occurs when there is a discrepancy between the allegations in the charging instrument and the proof at trial." Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001). Only a material variance requires reversal. See Fuller v. State, 73 S.W.3d 250, 253 (Tex. Crim. App. 2002). "The widely-accepted rule, regardless of whether viewing variance as a sufficiency of the evidence problem or as a notice-related problem, is that a variance that is not prejudicial to a defendant's 'substantial rights' is immaterial." Gollihar, 46 S.W.3d at 247–48; see Stevens v. State, 891 S.W.2d 649, 650 (Tex. Crim. App. 1995); see also Rojas v. State, 986 S.W.2d 241, 246 (Tex. Crim. App. 1998). The defendant has the burden of demonstrating surprise or prejudice. Santana v. State, 59 S.W.3d 187, 194 (Tex. Crim. App. 2001). In order to determine whether a defendant's "substantial rights" have been prejudiced, we must consider two questions: whether the indictment, as written, informed the defendant of the charge against him or her sufficiently to allow such defendant to prepare an adequate defense at trial, and whether prosecution under the deficiently drafted indictment would subject the defendant to the risk of being prosecuted later for the same crime. Gollihar, 46 S.W.3d at 248 (citing United States v. Sprick, 233 F.3d 845, 853 (5th Cir. 2000)). In Fuller, the Texas Court of Criminal Appeals held that a variance between an indictment that alleged that the victim was "Olen M. Fuller" and the evidence at trial which referred to the victim as "Mr. Fuller" or as "Buddy" was an immaterial variance. Fuller, 73 S.W.3d at 254. Similar to Fuller, the variance in this case does not involve a statutory element of the offense and there is no showing that Brown was surprised or prejudiced by the variance. The indictment, as written, sufficiently informed Brown of the charge against him and the variance would not subject Brown to another prosecution for the same offense. The variance is immaterial. Legally Sufficient Evidence Exists In our review of the legal sufficiency of the evidence, we employ the standards set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979). This calls on the court to view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Turner v. State, 805 S.W.2d 423, 427 (Tex. Crim. App. 1991). Evidence sufficiency should be measured against a "hypothetically correct" jury charge. See Gollihar, 46 S.W.3d at 253; Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A "hypothetically correct" jury charge is "one that 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 was tried." Malik, 953 S.W.2d at 240. The "'law' as 'authorized by the indictment' must be the statutory elements" of the offense charged "as modified by the charging instrument." Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000). The "hypothetically correct" jury charge cannot "wholly re-write the indictment," but is not required to "track exactly all of the allegations in the indictment." Gollihar, 46 S.W.3d at 253. The hypothetically correct jury charge in this case would have required the jury to find that Brown knowingly delivered the controlled substance to Timothy Taylor rather than T. Taylor. Taylor testified Brown sold him the substances provided to the police. As discussed above, Taylor's testimony was sufficiently corroborated. Ruben Rendon, a criminalist with the Texas Department of Public Safety, testified the substance provided to the police by Taylor on both occasions was cocaine. The cocaine, including some adulterants and dilutants, purchased by Taylor February 26 weighed 1.05 grams, and the cocaine purchased March 5 weighed 1.48 grams. Viewed in a light most favorable to the prosecution, a rational juror could have found Brown guilty of both offenses beyond a reasonable doubt. Because the variance is immaterial and the evidence is legally sufficient, we overrule Brown's second point of error. The Trial Court Did Not Err in Denying the Mistrial In his last point of error, Brown contends the trial court erred in denying his motion for a mistrial because of the difference between the videotape provided to the defense before trial and the videotape admitted into evidence. On the copy of the videotape provided to the defense, the audio was not intelligible. However, on the videotape introduced at trial, the audio could be understood. The State claimed the audio on all copies made at the same time the defense's copy was made was not as intelligible as the original videotape. The State alleged it did not discover the audio could be understood better on the original until shortly before trial and asserted the originals had been available for the defense to examine. The State argues Brown failed to preserve error. To preserve error, an objection must be "timely, specific, pursued to an adverse ruling, and, with two exceptions, contemporaneous--that is, made each time inadmissible evidence is offered . . . ." Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003) (discussing one exception, where evidence is heard outside jury's presence to determine admissibility); see Broderick v. State, 35 S.W.3d 67, 76 (Tex. App.—Texarkana 2000, pet. ref'd). The objection must be made at the earliest possible opportunity. Marini v. State, 593 S.W.2d 709, 714 (Tex. Crim. App. [Panel Op.] 1980); In re G.A.T., 16 S.W.3d 818, 828 (Tex. App.—Houston [14th Dist.] 2000, pet. denied); see Stults v. State, 23 S.W.3d 198, 205–06 (Tex. App.—Houston [14th Dist.] 2000, pet. ref'd). When the videotape was offered into evidence, Brown's counsel stated he had no objection. The State contends this statement waived any error. However, an objection is not required until the basis of relief becomes apparent. Johnson v. State, 878 S.W.2d 164, 167 (Tex. Crim. App. 1994); see Crane v. State, 786 S.W.2d 338, 348 (Tex. Crim. App. 1990); Thornton v. State, 994 S.W.2d 845, 852 (Tex. App.—Fort Worth 1999, pet. ref'd); Morgan v. State, 816 S.W.2d 98, 102 (Tex. App.—Waco), pet. ref'd, 817 S.W.2d 706 (Tex. Crim. App. 1991). The defense may not have been aware of the difference in the videotape when the State introduced that videotape into evidence. While the difference between the videotape provided to the defense and the videotape admitted into evidence may not have been apparent at the time of admission, the difference would have been apparent as soon as the videotape was played. After the basis for relief became apparent, the defense failed to make a timely objection. Taylor provided a play-by-play commentary while the videotape was played before the jury. Taylor was then cross-examined, Rendon provided lengthy testimony concerning the tests he performed identifying the substance as cocaine, the State rested, and the jury was dismissed for lunch before the defense made any objection to the videotape. Because Brown did not make a timely objection as soon as the basis for relief became apparent, he did not preserve error for appellate review. We overrule his last point of error. Conclusion The testimony of the covert witness was sufficiently corroborated by other evidence that tended to connect Brown to the offense. The variance between the indictment and the evidence at trial was immaterial, and legally sufficient evidence exists to support the jury's verdict. Error was not preserved concerning the difference between the videotape provided to the defense before trial and the videotape admitted into evidence. We affirm the judgment. Donald R. Ross Justice Date Submitted: August 16, 2004 Date Decided: December 14, 2004 Publish