Hudson, Ronnie Dale v. State

Affirmed and Opinion filed October 31, 2002 Affirmed and Opinion filed October 31, 2002. In The Fourteenth Court of Appeals ____________ NO. 14-01-01153-CR ____________ RONNIE DALE HUDSON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 180th District Court Harris County, Texas Trial Court Cause No. 812,704 O P I N I O N Appellant, Ronnie Dale Hudson, was charged by indictment with capital murder. He entered a plea of not guilty, but a jury convicted him of capital murder as charged in the indictment. The State did not seek the death penalty, and the trial court sentenced appellant to life imprisonment. On appeal, appellant contends (1) the trial court erred in excluding evidence of violent extraneous offenses perpetrated by a State=s witness, and (2) the evidence is legally and factually insufficient to support his conviction. We affirm. On April 29, 1999, Cherie Taylor, the complainant, went to Rascal’s, a Montrose-area nightclub in Houston. Shortly before going to the club, the complainant was in possession of approximately one thousand dollars in cash. Upon leaving the club, the complainant saw an acquaintance, Anitra Jenkins, driving a champagne-colored car. Jenkins was accompanied by appellant who was seated in the front passenger’s seat. The complainant joined Jenkins and the appellant, and the threesome departed the club in Jenkins’ car. Jenkins had a pistol-grip shotgun in the car, and the appellant proposed they should “jack” someone, i.e., hijack or rob someone. The complainant offered to lead her companions to a drug dealer they could rob. The proposed victim, however, was not home, so Jenkins, the complainant, and the appellant began driving around searching for other potential victims. Eventually, the appellant became frustrated with the complainant because she could not find any other prospective victims. Jenkins then stopped at a darkened construction site so the appellant could ostensibly use the restroom. However, the appellant exited the car, dragged the complainant from the back seat, and shot her in the head. The shotgun blast sprayed blood inside Jenkin=s car, as well as on the appellant’s shoes. The appellant dragged the complainant’s body a short distance from the car before leaving the scene with Jenkins. I. Admissibility of Extraneous Offenses In eight issues, appellant contends the trial court erred in excluding evidence of extraneous offenses allegedly perpetrated by Jenkins. Appellant offered, and the trial court excluded, the testimony of Angela Verdine who said that in April of 1999 Jenkins got into an argument with Verdine’s boyfriend. When the boyfriend hit Jenkins in the mouth, Jenkins began walking toward her car where she kept a firearm. Before reaching her car, however, a friend intervened and talked Jenkins out of doing anything foolish. On another occasion, Verdine claims Jenkins abducted her at gunpoint and subsequently fired at least one shot in her direction. Jenkins was thereafter convicted of aggravated assault stemming from this incidentCa fact which Jenkins admitted while testifying before the jury. Appellant contends Verdine’s testimony, if admitted, would have supported his defensive theory that Jenkins, not appellant, shot and killed the complainant. Appellant claims Verdine=s testimony would have shown Jenkins=s intent to kill Taylor, as well as her access to a firearm; thus, he argues, Verdine’s testimony was admissible under Texas Rules of Evidence Rule 404(b).[1] Appellant further argues the evidence shows Jenkins had the intent to commit violent offenses and the necessary knowledge of firearms to do so. We review a trial court’s decision to exclude evidence under an abuse of discretion standard. Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001). An abuse of discretion occurs when the trial court acts without reference to any guiding principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990); Thompson v. State, 44 S.W.3d 171, 174 (Tex. App.CHouston [14th Dist.] 2001, no pet.). The standard requires us to uphold a trial court’s decision when that decision is within “the zone of reasonable disagreement.” Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). Generally, evidence of crimes, wrongs, or acts are not admissible to show that a person acted in conformity with that character on the occasion in question. Tex. R. Evid. 404(b). Such evidence may only be admitted if it shows proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Id. Here, appellant has not provided us with any explanation as to how Verdine’s testimony is rationally related to showing she had an intent to kill Taylor. Moreover, we cannot discern any logical relevance for Verdine’s testimony other than to show Jenkins acted in conformity with her allegedly violent character. Appellant also contends the trial court erred in excluding the evidence because the testimony was more probative than prejudicial. As we have already held, however, the evidence was not relevant apart from showing Jenkins’s character conformity on the occasion in question. Thus, it is unnecessary to apply the Rule 403 balancing test here because the evidence is “substantially outweighed” by the danger of unfair prejudice as a matter of law. Montgomery, 810 S.W.2d at 387. Appellant’s first eight issues are overruled. II. Legal and Factual Insufficiency In his ninth and tenth issues, appellant argues the evidence is insufficient to support his conviction. Specifically, appellant contends Jenkins was an accomplice witness as a matter of law and, thus, his conviction cannot be supported by Jenkins’ testimony unless corroborated by other evidence tending to connect him with the offense. Tex. Code Crim. Proc. Ann. Art. 38.14 (Vernon 1979). Because Jenkins= testimony was not sufficiently corroborated, appellant claims her testimony may not be considered in support of the jury=s verdict. An accomplice witness is someone who participated before, during, or after the commission of the crime. Blake v. State, 971 S.W.2d 451, 454 (Tex. Crim. App. 1998). The participation necessary to be considered an accomplice must involve an affirmative act or omission by the witness to promote the commission of the offense. Jester v. State, 62 S.W.3d 851, 854 (Tex. App.CTexarkana 2001, pet. ref’d). A person who is merely present at the scene of an offense is not an accomplice. Long v. State, 10 S.W.3d 389, 393B394 (Tex. App.CTexarkana 2000, pet. ref’d). In fact, one is not an accomplice for knowing about a crime and not disclosing it, or even concealing it. Id. Furthermore, a witness= complicity with the accused in the commission of another crime does not make her an accomplice to the offense for which the accused stands trial. May v. State, 618 S.W.2d 333, 340 (Tex. Crim. App. 1981). Some witnesses are accomplices as a matter of law. For example, a person is an accomplice as a matter of law if he or she was indicted, or could be indicted, (1) for the same offense with which the defendant is charged or (2) for a lesser included offense based upon alleged participation in commission of the greater offense. Mize v. State, 915 S.W.2d 891, 894 (Tex. App.CHouston [1st Dist.] 1995, pet. ref’d); Jester, 62 S.W.3d at 854. If there is no doubt, or if the evidence clearly shows, that a witness is an accomplice, the trial court has the duty to instruct the jury of this fact and of the necessity of corroborative evidence. DeBlanc v. State, 799 S.W.2d 701, 708 (Tex. Crim. App. 1990). Some witnesses are accomplices as a matter of fact. For example, if the evidence presented by the parties is conflicting, it is proper to leave the determination of accomplice status to the jury under instructions defining the term “accomplice.” Green v. State, 72 S.W.3d 420, 423 (Tex. App.CTexarkana 2002, no pet. h.) Here, the evidence presented by the parties regarding Jenkins’ participation in the murder was conflicting, i.e., Jenkins and appellant both denied involvement and blamed each other for having perpetrated the offense. Accordingly, the trial court instructed the jurors on the law regarding accomplice witnesses and properly left the issue of Jenkins’ status to their determination. Because Jenkins was not an accomplice as a matter of law, we must assume that to the extent Jenkins= testimony was necessary to sustain appellant=s conviction, the jury found she was not an accomplice. Worthen v. State, 59 S.W.3d 817, 821 (Tex. App.CAustin 2001, no pet.). Even if the jury concluded that Jenkins’ was an accomplice, the record contains sufficient evidence to corroborate her testimony. To support a conviction when accomplice testimony is used, the State must present nonaccomplice evidence tending to connect the defendant to the offense. Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 1979); Colella v. State, 915 S.W.2d 834, 838 (Tex. Crim. App. 1995). The corroborating evidence need not directly connect the defendant to the crime or be sufficient by itself to establish guilt; rather, it need only tend to connect the defendant to the offense. Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999). If the combined weight of the nonaccomplice evidence tends to connect the defendant to the offense, the requirement of article 38.14 has been fulfilled.[2] Id. Here, the State presented evidence that (1) shoe patterns found at the crime scene matched the type of shoes worn by appellant; (2) upon his return home, appellant told his girlfriend, Corina Pinkston, that he killed a girl in Houston; (3) Pinkston also noticed appellant was nervous; (4) appellant obtained cleaning supplies from Pinkston, including Pinesol, bleach, and detergent; and (5) although appellant did not take any clothes with him on the night of the murder, he returned home wearing different clothes. Taken together, this evidence tends to connect appellant to the complainant’s murder. Therefore, we conclude that the record contains more than sufficient evidence to meet the corroboration requirements of article 38.14 of the Texas Code of Criminal Procedure. Appellant’s ninth and tenth points are overruled. The judgment of the trial court is affirmed. /s/ J. Harvey Hudson Justice Judgment rendered and Opinion filed October 31, 2002. Panel consists of Chief Justice Brister and Justices Hudson and Fowler. Do Not Publish C Tex. R. App. P. 47.3(b). [1] Rule 404(b) governs the admission of extraneous offenses not only against the accused, but against third persons as well. Castaldo v. State, 78 S.W.3d 345, 349 (Tex. Crim. App. 2002). [2] Appellant argues that the evidence presented at trial was legally and factually insufficient to corroborate the testimony of the accomplice witness. However, appellate courts should not impose legal and factual sufficiency standards upon a review of accomplice witness testimony under article 38.14. Cathey, 992 S.W.2d at 462.