Gregory Lewis v. State

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-08-00011-CV ______________________________ GREGORY LEWIS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 102nd Judicial District Court Bowie County, Texas Trial Court No. 04C0902-102 Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION Appellant, Gregory Lewis, filed a notice of appeal December 13, 2007, from the trial court's December 5, 2007, denial of his motion to rescind an order of forfeiture, requesting the trial court rescind its April 5, 2007, order. The trial court's denial of Lewis' motion to rescind does not constitute a final, appealable order. Unless otherwise statutorily authorized, an appeal may be made only from a final judgment. See Tex. Civ. Prac. & Rem. Code Ann. § 51.012 (Vernon 1997), § 51.014 (Vernon Supp. 2007). If we treat Lewis' appeal as a normal appeal of the April 5, 2007, order, it is too late. See Tex. R. App. P. 26.1. (1) Even if the Court treats this matter as an attempted restricted appeal of the April 5, 2007, judgment, the notice of appeal is untimely. A notice of restricted appeal must be filed within six months after the judgment is signed. Tex. R. App. P. 26.1(c). Lewis filed his notice of appeal on December 13, 2007, well outside the allowed six-month period. Further, we note that the procedure available to extend certain deadlines when a party proves late notice of judgment is not available to extend the time to perfect a restricted appeal. Tex. R. Civ. P. 306a; Tex. R. App. P. 4.2(a)(2). Accordingly, we dismiss this appeal for want of jurisdiction. Josh R. Morriss, III Chief Justice Date Submitted: January 29, 2008 Date Decided: January 30, 2008 1. The deadline to file a notice of appeal is thirty days after the judgment is signed, unless an exception applies. No exception appears here. vascript: self.close()">Close'); floatwnd.document.write( " " ); floatwnd.document.close(); floatwnd.focus(); } } function WPHide( WPid ) { if( bInlineFloats ) eval( "document.all." + WPid + ".style.visibility = 'hidden'" ); } In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-05-00050-CR ______________________________ JERMAINE EASTER, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 102nd Judicial District Court Bowie County, Texas Trial Court No. 04F0537-102 Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Justice Carter MEMORANDUM OPINION Jermaine Easter appeals his conviction for capital murder. Finding the State's witness Danny Goodson was not an accomplice, either as a matter of law or fact, and that Section 7.02(b) of the Texas Penal Code does not apply, we affirm Easter's conviction. Factual Background Warren Earl Murphy was reported missing by his family on or about July 10, 2001. Murphy's friend, Rob Stevens, was with him the night of July 6, 2001. Murphy had a conversation with Easter, codefendant Jason Jackson, and Prince Long. Following that conversation, Stevens saw Murphy engage in another conversation with the same three men, about forty minutes later. Stevens was on a street one block away from Murphy and the three individuals, and Stevens could not see Murphy. He did hear Murphy arguing with someone and heard the sound of Murphy being struck by someone. Stevens said he would recognize Jackson's car if he saw it, but the record is not clear whether Stevens actually saw the car. Stevens testified he tried to walk to where he heard Murphy's voice, but Easter prevented him, and told Stevens to turn around and leave. Stevens further said he heard sounds from a vehicle of "bumping and doors closing" and of a person trying to escape from the vehicle. Stevens said he heard this while standing behind a car, when Murphy was a distance away in a field. Long, who was fifteen years old at the time these events occurred, testified for the State. According to Long, Easter, Jackson (cousin to Long), and Long beat Murphy and put him in the trunk of Jackson's car. The three took their captive to the house of Long's and Jackson's grandmother, who was deceased. Once they arrived at the house, they beat Murphy again and began firing shots around his feet. When one shot accidentally hit Murphy's foot, Easter told Jackson, "You've got to let me do him. I can't go back to prison." According to Long, Easter fired several shots into Murphy's torso. Easter then told Long to "get another gun." Long located and gave a rifle to Easter, which Easter then used to continue to shoot Murphy. Danny Goodson testified he was an acquaintance of Jackson, having let Jackson previously store marihuana on Goodson's property. Goodson said that, about 1:00 a.m. July 6, 2001, Jackson called Goodson and said he needed a favor. Goodson testified he did not know what the favor was until the three men arrived at Goodson's property. Jackson, Long, and Easter arrived at Goodson's property and used Goodson's wheelbarrow to remove Murphy's body from Jackson's trunk. They took the body to an existing hole Goodson used to dispose of animal waste and remains. Murphy's body was thrown in the hole, doused with gasoline, and set on fire. While this was happening, Goodson said Easter bragged about having shot Murphy. Some days later, Jackson contacted Goodson and returned to the site to remove the remains from the waste hole. Goodson and his friend John Blumen (who had been present the night of the burning) helped Jackson dig up Murphy's remains and scatter the remains around Goodson's property. DeKalb Police Chief Dewayne Cannon testified that approximately twenty-seven bones were found around the property, and they appeared to have been gnawed and partially consumed by animals in the wooded area. Murphy's head was severed from the body, placed in a bucket, covered with cement, and thrown into the Red River from the bridge at the Texas–Oklahoma state line. No evidence indicates Goodson was involved in the disposal of the head. Using a saliva sample from Murphy's brother, a medical expert from the Federal Bureau of Investigation was able to conduct mitochondrial DNA testing identifying the DNA sequence from Murphy's brother as the same as that from Murphy's remains. Goodson Is Not an Accomplice as a Matter of Law Easter's first point of error claims the trial court erred in not instructing the jury that Goodson was an accomplice as a matter of law. Alternatively, Easter claims the trial court erred in failing to instruct the jury to determine whether Goodson was an accomplice in fact. At trial, Easter requested the trial court instruct the jury that Goodson was an accomplice as a matter of law. He did not specifically request a jury instruction on the matter of accomplice as a matter of fact. An accomplice is one who participates with a defendant before, during, or after the commission of a crime and who acts with the required culpable mental state. Paredes v. State, 129 S.W.3d 530, 536 (Tex. Crim. App. 2004). A conviction cannot be based on the testimony of an accomplice witness unless corroborated by evidence tending to connect the defendant with the offense committed. Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005). The accomplice's participation must involve some affirmative act that promoted the commission of the offense with which the accused is charged. An accomplice as a matter of law is one who is susceptible to prosecution for the offense with which the accused is charged or a lesser-included offense. Paredes, 129 S.W.3d at 536. The trial court is under no duty to instruct the jury unless there exists no doubt or the evidence clearly shows that a witness is an accomplice witness as a matter of law. Id. Goodson did not deny his culpability for the charge of tampering with evidence, and Chief Cannon said he believed Goodson had committed that crime. Goodson was charged with tampering with evidence, but not murder or capital murder. Tampering with evidence is not a lesser-included offense of capital murder. Further, we do not believe Goodson was susceptible to prosecution for capital murder or any lesser-included offense of capital murder. Paredes is factually similar to this case. In Paredes, a witness, Ayala, received a telephone call to do a favor for the defendant. When Ayala arrived to assist the defendant, he discovered some rugs rolled up in the back of a pickup truck and realized the rugs contained bodies. Ayala then helped load the bodies and assisted in disposing of them. The Texas Court of Criminal Appeals held there was no evidence Ayala was involved with the planning of the murders or ever saw the victims when they were alive. Assisting after the fact in the disposal of the bodies does not subject the witness to prosecution for capital murder. Consequently, Ayala was not an accomplice witness as a matter of law. Id. at 537. Similarly, here, Goodson did not participate in the planning of the murder or commit any affirmative act that promoted the commission of the offense of capital murder. Goodson was not an accomplice witness as a matter of law, and the trial court was not required to instruct the jury that Goodson was such an accomplice witness. See Bulington v. State, No. 06-04-00135-CR, 2005 WL 2847406 (Tex. App.—Texarkana Nov. 1, 2005, no pet.) (where defendant's girlfriend helped him clean murder scene and dispose of victim's bodies because she feared defendant, coupled with lack of evidence she had any anticipatory knowledge that defendant intended to kill or commit a crime of violence against two victims, held girlfriend was not accomplice in either law or fact). Goodson Is Not an Accomplice as a Matter of Fact Easter argues that Goodson was an accomplice as a matter of fact. If there is conflicting evidence, making it unclear whether the witness is an accomplice, the trial court must submit a jury instruction on the issue of accomplice as a matter of fact. Blake v. State, 971 S.W.2d 451, 454–55 (Tex. Crim. App. 1998); Paredes, 129 S.W.3d at 536; Long v. State, 10 S.W.3d 389, 393 (Tex. App.—Texarkana 2000, pet. ref'd). Long, one of Easter's codefendants, stated on cross-examination that shortly after the murder of Murphy, Long had given a statement to authorities wherein Long said he and Jackson left Murphy, alive, with Easter. Long and Jackson went to Jackson's home, where Long heard Jackson telephone someone and tell that party Jackson had "a body . . . to dispose of." Chief Cannon said that, through his investigation, he concluded Murphy was left, alive, in the care of Easter, while Jackson and Long went to their grandmother's house. Easter argues that this evidence, suggesting Murphy was still alive when Jackson telephoned Goodson, amounts to conflicting evidence as to whether Goodson was an accomplice. None of this is evidence that Goodson had any knowledge Murphy was alive or that Goodson committed any act that planned or promoted the commission of the murder. Goodson testified he received a call from Jackson, who said he needed a favor. As we have previously discussed, the Texas courts have held on many occasions that assisting with the disposition of a body does not make one an accomplice to the charge of murder. See Smith v. State, 721 S.W.2d 844, 851 (Tex. Crim. App. 1986); Husting v. State, 790 S.W.2d 121, 124 (Tex. App.—San Antonio 1990, no pet.); Keegan v. State, 681 S.W.2d 806, 812 (Tex. App.—Houston [14th Dist.] 1984, pet. ref'd). There was no conflicting evidence of Goodson's participation in the murder. Easter cites us to Harris v. State as authority that the trial court was obligated to allow the jury to determine whether Goodson was an accomplice as a matter of fact. We find Harris distinguishable. There, the purported accomplice witness was present during the murder, had blood on her clothing, offered conflicting statements about her role in the murder, and expressed a consciousness of guilt. In contrast, in this case, there is no evidence that Goodson was present at the time of the murder or that he was a participant in the murder. There is no evidence Goodson affirmatively acted to assist in the planning or commission of the murder. Even if Goodson was told there was a body to dispose of, such information would have conveyed to him that the murder was completed. In the absence of conflicting evidence, there was no error in the trial court failing to submit to the jury the question of whether Goodson was an accomplice as a matter of fact. Sufficiency of the Evidence Easter's second point of error is that the evidence is insufficient if the accomplice witness testimony is excluded. Since we have found that Goodman was not an accomplice witness as a matter of fact or law, the point is overruled. Goodson Was Not Part of a Conspiracy Finally, Easter complains Goodson "was an accomplice witness under the definition of criminal responsibility as set forth in V.T.C.A., Penal Code, §7.02(b)." Section 7.02(b) of the Texas Penal Code states: (b) 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. Tex. Pen. Code Ann. § 7.02(b) (Vernon 2003). Assuming a conspiracy to kill Murphy existed, nothing in the evidence summarized above indicates Goodson conspired with Easter, Jackson, and Long to harm Murphy. Cf. Paredes, 129 S.W.3d at 539 (trial court instructed jury on Section 7.02(b)'s language; Paredes argued on appeal the trial court should have also instructed on accomplice witness testimony; no evidence purported accomplice witnesses conspired to kill victim). Here, there is no evidence that Goodson knew of any conspiracy to kill Murphy or that Goodson was involved in the murder of Murphy. This point is overruled. We affirm the judgment of the trial court. Jack Carter Justice Date Submitted: November 17, 2005 Date Decided: January 6, 2006 Do Not Publish