Yates, Kelton Vondre v. State

Affirmed and Memorandum Opinion filed November 9, 2004 Affirmed and Memorandum Opinion filed November 9, 2004. In The Fourteenth Court of Appeals ____________ NO. 14-03-01231-CR ____________ KELTON VONDRE YATES, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 263rd Judicial District Court Harris County, Texas Trial Court Cause No. 925,472 M E M O R A N D U M  O P I N I O N Kelton Vondre Yates brings this appeal from his conviction for the murder of Gary Cooper in August of 2002. After convicting him, the jury sentenced Yates to sixty years imprisonment and fined him $10,000. In seven points of error, appellant contends that the trial court erred in accepting verdicts signed by less than eleven jurors after one juror was excused; that the evidence was legally and factually insufficient to support appellant’s conviction; and that the accomplice testimony was not properly corroborated. We affirm. Background In the summer of 2002, Lori Cooper, a Westfield High School student, believed that she had been impregnated by appellant, Kelton Yates, with whom she had been “messing around.” Appellant told his mother the news; she, in turn, informed Lori’s parents, Gary and Wanda, who arranged a meeting including them, appellant, his mother, and Lori. At the meeting, Lori’s parents made it known that, should Lori indeed be pregnant, they wished to have the pregnancy terminated. This was contrary to the wishes of Lori and appellant, who exchanged “heated words” with Gary during the course of the meeting. Two nights later, at approximately two in the morning, the Cooper’s doorbell rang. Looking through the front windows, Gary and Wanda saw appellant standing at their door, and went to their separate bedrooms to change clothes. When Wanda returned to the front of the house, she found Gary, bleeding, on the front porch. She asked him who had attacked him; he responded, “Kelton.” Gary Cooper later died from multiple stab wounds. A smudge of Cooper’s blood was found on the passenger side of the car of appellant’s friend Kiondrix Smith. Appellant was arrested and charged with the murder of Gary Cooper, both as a principle and as a party. A jury of eleven convicted appellant. On appeal, he claims that the trial court erred in accepting a verdict signed by less than all eleven jurors and that the evidence to convict him was legally and factually insufficient. The Verdicts In his first and second points of error, appellant claims the trial court erred in receiving a verdict signed by less than eleven jurors in violation of Article 36.29 of the Texas Code of Criminal Procedure, which states as follows: After the charge of the court is read to the jury, if any one of them becomes so sick as to prevent the continuance of his duty, or any accident of circumstance occurs to prevent their being kept together under circumstances under which the law or the instructions of the court requires that they be kept together, the jury shall be discharged, except that on agreement on the record by the defendant, the defendant’s counsel, and the attorney representing the state 11 members of a jury may render a verdict and, if punishment is to be assessed by the jury, assess punishment. If a verdict is rendered by less than the whole number of the jury, each member of the jury shall sign the verdict. Tex. Code Crim. Proc. Ann. art. 36.29(c) (Vernon Supp. 2004). If the verdict is not signed by all eleven jurors, the defendant must object to the form of the verdict to preserve error on appeal. Renner v. State, 758 S.W.2d 890, 891 (Tex. App.—Corpus Christi 1988, pet. ref’d) (“We conclude that by failing to give the trial court the opportunity to cure the complained-of error, appellant waived any such error in the form of the verdicts.”) (citing Shelton v. State, 441 S.W.2d 536, 538 (Tex. Crim. App. 1969)). At trial, a twelve-member jury was empaneled and sworn. After the charge was read and during the guilt/innocence deliberations, one juror became unable to serve due to a knee problem. After holding a hearing, the trial court ruled that the juror was disabled under Article 36.29; both parties agreed to continue with eleven jurors. Both the guilt and the punishment verdicts were returned signed only by the foreman. Appellant made no objection to either verdict. Since appellant failed to object to either verdict for being signed by fewer than all eleven jurors, he waived error. His first and second points of error are therefore overruled. The Accomplice Witness Rule Appellant argues in his seventh point of error that the State relied on improperly-corroborated accomplice testimony and, as a result, the evidence is legally insufficient to support his conviction. We disagree, taking this point out of order as its outcome bears upon the appellant’s remaining four points of error. In order for a conviction based upon an accomplice’s testimony to stand, the Code of Criminal Procedure requires that the testimony be corroborated “by other evidence tending to connect the defendant with the offense committed.” Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon Supp. 2004). Merely proving the offense was committed is not sufficient. Id. To conduct a review under the accomplice witness rule, a reviewing court must eliminate the accomplice testimony from consideration. Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001). The corroborating evidence need not directly connect the defendant to the crime, nor must it be sufficient in itself to establish guilt; the evidence needs only to connect the defendant to the offense. Solomon, 49 S.W.3d at 361; Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999). Evidence of the defendant’s mere presence in the accomplice’s company before, during, and after the commission of the offense is insufficient corroboration; however, this evidence, coupled with other suspicious circumstances, may tend to connect the defendant to the offense. Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996). The requirement of Article 38.14 is thus fulfilled when the combined weight of non-accomplice testimony tends to connect the defendant to the offense. Cathey, 992 S.W.2d at 462; see also Gosch v. State, 829 S.W.2d 775, 777 (Tex. Crim. App. 1991). Here, assuming without deciding that Kiondrix Smith and Lori Cooper are accomplices as a matter of law, we find that evidence outside their testimonies tends to connect appellant to the offense: Wanda Cooper’s testimony that 1) appellant and the victim argued about Lori Cooper’s pregnancy (and whether or not to terminate it) days before the murder; 2) Wanda Cooper saw appellant outside the window on the night of the offense, thus placing him at the crime scene; and 3) the victim identified the appellant as his attacker. Because the requirement of Article 38.14 is thus fulfilled, the jury was properly able to consider the testimony of both Lori Cooper and Kiondrix Smith. Appellant’s seventh point of error is therefore overruled. Legal and Factual Sufficiency In points of error three through six, appellant contends the evidence is legally and factually insufficient to support his conviction, either as a principle or as a party. We find sufficient evidence exists, both legally and factually, to support appellant’s conviction. We utilize the normal standards of legal and factual sufficiency in our review. See Jackson v. Virginia, 443 U.S. 307 (1979); King v. State, 29 S.W.3d 556, 562-63 (Tex. Crim. App. 2000). To obtain a conviction for murder in this case, the State was required to prove beyond a reasonable doubt that appellant 1) intentionally or knowingly caused the death of Gary Cooper or 2) intended to cause serious bodily injury and committed an act clearly dangerous to human life that caused the death of Gary Cooper. Tex. Pen. Code Ann. § 19.02 (Vernon 2003). Given that the jury was free to consider the testimony of Kiondrix Smith and Lori Cooper as well as the other evidence presented in the case, we find that a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See King, 29 S.W.3d at 562. Appellant’s argument with Gary Cooper over Lori Cooper’s possible pregnancy provided a motive for the crime; furthermore, Wanda Cooper testified that she saw appellant on her front porch the night of the crime and that her husband identified appellant as his attacker. This evidence is therefore legally sufficient to support appellant’s conviction as a principle. Id. We also find that a neutral review of the evidence does not demonstrate that the proof of guilt is so obviously weak as to undermine confidence in the jury’s determination. Id. at 563. Neither is the proof of guilt greatly outweighed by any contrary proof. The evidence is therefore factually sufficient to support appellant’s conviction. As a result of our finding regarding the sufficiency of the evidence to support appellant’s conviction as a principle, we need not reach his argument claiming the evidence is legally or factually insufficient to support his conviction as a party. The jury in this case returned a general verdict; in that event, when the evidence is sufficient to support a finding of guilt under any of the allegations submitted, the verdict will be upheld. Alvarado v. State, 912 S.W.2d 199, 225 (Tex. Crim. App. 1995). Appellant’s points of error three through six are therefore overruled. We affirm the judgment of the trial court. /s/ Adele Hedges Chief Justice Judgment rendered and Memorandum Opinion filed November 9, 2004. Panel consists of Chief Justice Hedges and Justices Fowler and Seymore. Do Not Publish — Tex. R. App. P. 47.2(b).