Casey, Larry v. State

Affirmed and Memorandum Opinion filed February 14, 2006 Affirmed and Memorandum Opinion filed February 14, 2006. In The Fourteenth Court of Appeals ____________ NO. 14-04-01165-CR NO. 14-05-00165-CR ____________ LARRY CASEY, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 12th Judicial District Court Walker County, Texas Trial Court Cause Nos. 22166 & 22168 M E M O R A N D U M  O P I N I O N A jury convicted appellant, Larry Casey, of solicitation to commit capital murder of Bert Graham and David Sheetz and assessed punishment at life in the Texas Department of Criminal Justice, Institutional Division and a $10,000 fine. See Tex. Pen. Code Ann. ' 15.03 (Vernon 2003), ' 19.03 (Vernon Supp. 2005). In two points of error, appellant alleges (1) the trial court erred by denying his motion to suppress and (2) the evidence is legally and factually insufficient to support conviction. We affirm. Factual and Procedural Background At various times between 2001 and 2004, appellant bunked near inmate Jerry Hocutt at the Wynne Unit of the Texas Department of Criminal Justice. Both appellant and Hocutt were serving time in prison for murder. Sometime in the spring of 2003, appellant and Hocutt discussed appellant=s desire to have Bert Graham, First Assistant District Attorney for Harris County, and David Sheetz, a Houston police officer, killed. Hocutt approached a prosecutor teaching a business law class at the Wynne Unit and discussed whether Hocutt could get in trouble for knowing about appellant=s intention if it actually happened. The prosecutor set up a meeting between Hocutt; Richard Lee, a police investigator with the Wynne Unit; and an assistant district attorney in Harris County. Lee developed a sting operation to verify whether Hocutt was telling the truth and to prevent these potential murders. Lee asked Hocutt to get appellant to agree to use Hocutt=s services of a Ahit man,@ which he did. No contact occurred between Hocutt and Lee for the next several months. Once Hocutt believed appellant was serious, Gary Johnson, an investigator with the Harris County District Attorney=s office, was assigned to help with the investigation. Johnson posed as a hit man, named ADok Walker.@ Hocutt wrote a fake letter to AWalker@ asking AWalker@ to meet Hocutt at the prison. Lee arranged this meeting between Johnson/AWalker@ and Hocutt, so appellant would believe Hocutt had really contacted a hit man. Hocutt informed appellant the fee for this hit would be $100,000 for Graham and $25,000 for Sheetz. Hocutt agreed to pay the fee to the hit man through his contacts with a drug cartel if appellant would agree to kill two people of Hocutt=s choosing after appellant was released from prison. Appellant agreed, and Hocutt arranged for appellant to meet with Johnson posing as ADok Walker@ on December 3, 2003. Prior to December 3, Lee had a recording device placed in the visitation building where Johnson and appellant met. Johnson also wore a recording device on his left forearm as a back up. On December 3, Johnson met with appellant and recorded their conversation. Thereafter, appellant was charged with two counts of solicitation to commit capital murder. Prior to his jury trial, appellant filed a motion to suppress the tape recording. The trial court held a suppression hearing, but the record before this court does not include a transcript of that proceeding. At trial, a jury found appellant guilty of both counts as charged in the indictment and assessed punishment at life and a $10,000 fine. Discussion I. Motion to Suppress Audio Tape In his first point of error, appellant alleges the trial court erred by denying his motion to suppress an audio tape of a conversation between appellant and Gary Johnson. Appellant argues (1) he had a legitimate expectation of privacy, (2) no order authorized the interception of the audio tape, and (3) no immediate life-threatening situation justified the installation of the recording device. For the reasons set forth below, we consider appellant=s first argument and hold appellant has not preserved his second and third arguments for appellate review. A. Expectation of Privacy In his first argument for this point of error, appellant contends he held an expectation of privacy in the location where the recording was made. We review the trial court=s ruling on a motion to suppress evidence under an abuse of discretion standard. See Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). If supported by the record, a trial court=s ruling on a motion to suppress will not be overturned. Hill v. State, 902 S.W.2d 57, 59 (Tex. App.CHouston [1st Dist.] 1995, pet. ref=d). At a suppression hearing, the trial judge is the sole finder of facts. Arnold v. State, 873 S.W.2d 27, 34 (Tex. Crim. App. 1993); Hill, 902 S.W.2d at 59. We give almost total deference to the trial court=s determination of historical facts that the record supports, especially when the trial court=s findings turn on evaluating a witness=s credibility and demeanor. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000). We give the same amount of deference to the trial court=s ruling on mixed questions of law and fact if the question is resolved by evaluating credibility and demeanor. Id. We consider de novo issues that are purely questions of law. Id. If the trial court=s ruling is reasonably supported by the record and is correct on any theory of law applicable to the case, the reviewing court will sustain it upon review. Villarreal, 935 S.W.2d at 138. In this case, the trial court made findings of fact, and therefore, we give almost total deference to the trial court=s determination. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We review de novo the trial court=s application of relevant Fourth Amendment standards. Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000). In general, an inmate in prison has no legitimate expectation of privacy, which society is prepared to recognize. Hudson v. Palmer, 468 U.S. 517, 525B26, 104 S. Ct. 3194, 3200 (1984). The loss of freedom of choice and privacy are inherent incidents of confinement. Hudson, 468 U.S. at 528, 104 S. Ct. at 3201. Here, appellant met with Johnson in an administrative segregation booth located in the visitation building used for visiting with family and other approved persons on visitation days. The visiting room in this building consists of two long lines of chairs separated by a counter and a chained fence-like barrier. The administrative segregation area consists of approximately six wire cages on the offenders= side of the room where a single offender can be separated from the rest of the offenders and still visit with someone on the visitor=s side of the room. On December 3, 2003, the guard escorted appellant to the visitation room and placed him in one of the wire-cage administrative segregation booths. The physical make-up of this visitation area comports with most other areas in prison where no reasonable expectation of privacy exists. See, e.g., State v. Scheinman, 77 S.W.3d 810, 813 (Tex. Crim. App. 2002) (affirming the admissibility of a recording made between defendant and co-defendant when speaking alone while in jail); Richardson v. State, 902 S.W.2d 689, 694 (Tex. App.CAmarillo 1995, no pet.) (holding expectation of privacy in outbound telephone calls from prison is not one society is prepared to accept as reasonable); Ex parte Graves, 853 S.W.2d 701, 706 (Tex. App.CHouston [1st Dist.] 1993, pet. ref=d) (holding no reasonable expectation of privacy exists when speaking between cells to another prisoner). Appellant and Johnson held their conversation in what is normally a heavily populated area where anyone nearby may overhear. In its conclusions of law, the trial court found the administrative segregation visitation area was not a constitutionally protected area. We agree with the trial court=s assessment and hold no expectation of privacy existed in the administrative segregation visitation area, which society is willing to accept as legitimate. B. Order Authorizing the Interception & Emergency Installation In his second argument, appellant contends no order under the federal or Texas wiretap statutes authorized recording appellant=s conversation with Johnson. In his third argument, appellant contends no immediate life-threatening emergency existed to justify installation of the recording device in the administrative segregation visitation area as provided by the federal or Texas wiretap statutes. Appellant has not preserved error for these arguments because the objections at trial do not comport with the complaint on appeal, nor does the motion to suppress raise the federal or Texas wiretap statutes as reasons to suppress the recording between appellant and Johnson. To preserve error, appellant could have raised these wiretap issues in his motion to suppress. A motion to suppress is a specialized objection to the admission of evidence. See Martinez v. State, 17 S.W.3d 677, 682B83 (Tex. Crim. App. 2000). Appellant=s motion to suppress raises two points, due process and expectation of privacy. The arguments in appellant=s motion differ from the complaint on appeal. Appellant has failed to preserve these wiretap issues for review with his motion to suppress. See Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (holding issues not preserved because objection at trial does not comport with issues raised on appeal); McLendon v. State, 167 S.W.3d 503, 510 (Tex. App.CHouston [14th Dist.] 2005, no pet.) (same). Appellant could have also preserved this issue for appellate review if raised during the suppression hearing, even if omitted from the motion to suppress. See Gallups v. State, 151 S.W.3d 196, 197B98 & n.1 (Tex. Crim. App. 2004) (holding the issue of consent was not waived, though not included in defendant=s written motion to suppress, because the issue was actually litigated at the suppression hearing). Appellant bears the burden to bring forth a record on appeal to show error requiring reversal. Lape v. State, 893 S.W.2d 949, 960 (Tex. App.CHouston [14th Dist.] 1994, pet. ref=d). Appellant may have raised this issue during the suppression hearing, but we have no way of knowing if that was done. The trial court held a hearing on the motion to suppress, but the record does not include a transcript of that proceeding.[1] Without a transcript of the proceeding, we do not know what additional objections may have been made during the suppression hearing. We can only presume they were the same as the objections raised by defense counsel at trial. Because the record contains no transcript of the suppression hearing, appellant fails to provide an adequate record for our review. Appellant=s counsel did bring the issue of this recording to the court=s attention during trial, once during the cross-examination of Richard Lee and again when the State played the recording for the jury. During the cross-examination of Lee, defense counsel argued no one obtained a warrant to record the conversation between appellant and Johnson, and no probable cause existed to obtain a warrant because Hocutt was not a reliable informant. When the State played the tape for the jury, defense counsel also renewed all previous objections without specifically identifying those objections. The objections made at trial are not the same as those raised in appellant=s second and third arguments for this point of error. An objection at trial not comporting with the complaint on appeal does not preserve error for appellate review. Guevara v. State, 97 S.W.3d 579, 583 (Tex. Crim. App. 2003); McLendon, 167 S.W.3d at 510. Therefore, appellant has not preserved error. If, however, we were to broadly construe appellant=s counsel=s argument at trial pertaining to a Awarrant@ as comporting with the argument on appeal for an order under the federal and Texas wiretap statutes, we overrule appellant=s second argument for this point of error. See 18 U.S.C. '' 2510 et seq. (2000); Tex. Code Crim. Proc. Ann. art. 18.20 (Vernon Supp. 2005); Tex. Pen. Code Ann. ' 16.02 (Vernon 2003). The record shows no one filed an application for an order to record appellant=s conversation with Johnson, but one was not required. When one party to a conversation consents to the recording, recording that conversation does not require a court order. See 18 U.S.C. ' 2511(2)(c); Tex. Pen. Code Ann. ' 16.02(c)(3). This exception also applies to a person operating under color of law, including an officer or informant. See United States v. Shedan, 651 F.2d 336, 337 (5th Cir. 1981) (upholding admissibility of recording between appellant and undercover informant under federal wiretap statute when paid undercover informant gave consent to record conversation); Rovinsky v. State, 605 S.W.2d 578, 581B82 (Tex. Crim. App. 1980) (same); Hernandez v. State, 938 S.W.2d 503, 506 (Tex. App.CWaco 1997, pet. ref=d) (upholding admissibility of recording between appellant and police officer under prior version of Texas wiretap statute when officer gave consent to record conversation).[2] Johnson consented to the recording of his conversation with appellant. In addition, the trial judge issued a conclusion of law that the federal and Texas wiretap statutes were not violated because Johnson consented to the recording. We agree and uphold the conclusion of the trial court Accordingly, we overrule appellant=s first point of error. II. Legal and Factual Sufficiency In his second point of error, appellant contends the evidence is legally and factually insufficient to support his conviction for solicitation of capital murder. Specifically, appellant argues the taped conversation between appellant and Johnson does not corroborate the alleged crime. In a legal sufficiency review, we view all the evidence in the light most favorable to the verdict and then determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Salinas v. State, 163 S.W.3d 734, 737 (Tex. Crim. App. 2005). The jury is the sole judge of the credibility of the witnesses and chooses whether or not to believe all or part of a witness=s testimony. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). We do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993); Harris v. State, 164 S.W.3d 775, 784 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d). Thus, if there is evidence establishing guilt beyond a reasonable doubt, we are not authorized to reverse the judgment on sufficiency of the evidence grounds. Harris, 164 S.W.3d at 784. In a factual sufficiency review, we consider all the evidence in a neutral light and determine whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). The evidence may be factually insufficient in two ways. Id. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, where the evidence both supports and contradicts the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. at 484B85. Our evaluation of the evidence should not intrude upon the fact-finder=s role as the sole judge of the weight and credibility of the evidence. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). In conducting a factual sufficiency review, we must discuss the evidence appellant claims is most important in allegedly undermining the jury=s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). The criminal solicitation statute provides in pertinent part: (a) A person commits an offense if, with intent that a capital felony or felony of the first degree be committed, he requests, commands, or attempts to induce another to engage in specific conduct that, under the circumstances surrounding his conduct as the actor believes them to be, would constitute the felony or make the other a party to its commission. (b) A person may not be convicted under this section on the uncorroborated testimony of the person allegedly solicited and unless the solicitation is made under circumstances strongly corroborative of both the solicitation itself and the actor=s intent that the other person act on the solicitation. Tex. Pen. Code Ann. ' 15.03(a)B(b) (Vernon 2003). The offense of solicitation is complete when the defendant has intent that a capital felony or felony of the first degree be committed and acts to induce another to engage in felonious conduct. Whatley v. State, 946 S.W.2d 73, 79 (Tex. Crim. App. 1997). A person commits capital murder if that person Acommits the murder for remuneration or the promise of remuneration or employs another to commit the murder for remuneration or the promise of remuneration.@ Tex. Pen. Code Ann. ' 19.03(a)(3) (Vernon Supp. 2005). A person commits murder for remuneration under section 19.03(a)(3) when the actor kills to receive a benefit or financial settlement paid upon the death of the victim. Beets v. State, 767 S.W.2d 711, 737 (Tex. Crim. App. 1987). The criminal solicitation statute does not allow conviction based solely on the uncorroborated testimony of the person allegedly solicited. See Tex. Pen. Code Ann. ' 15.03(b). The circumstances surrounding the solicitation must strongly corroborate the solicitation itself and the actor=s intent that the other person act on the solicitation. Id; Richardson v. State, 700 S.W.2d 591, 594 (Tex. Crim. App. 1985). The test used to evaluate corroborating testimony requires us to eliminate from consideration the accomplice testimony and then determine whether there is other incriminating evidence tending to connect the defendant with the crime charged. Id. The non-accomplice evidence does not have to directly link appellant to the crime, nor does it alone have to establish appellant=s guilt beyond a reasonable doubt; rather, it merely has to tend to connect appellant to the offense. Burks v. State, 876 S.W.2d 877, 887 (Tex. Crim. App. 1994). Further, although evidence of motive is insufficient in and of itself to corroborate an accomplice=s testimony, it may be considered with other evidence to connect the accused with the crime. Reed v. State, 744 S.W.2d 112, 127 (Tex. Crim. App. 1988). Gary Johnson=s testimony will be eliminated from our analysis when evaluating corroborating testimony.[3] Appellant argues Jerry Hocutt is an accomplice witness, rather than Gary Johnson. However, the jury charge instructs the jury on consideration of accomplice testimony and identifies Johnson as the accomplice witness. Furthermore, Johnson was the person with whom appellant actually discussed the details and expected to carry out the murders. The State presented five non-accomplice witnesses during the guilt/innocence phase of the trial. They included: Richard Lee, a police investigator at the Office of the Inspector General; Robbie Lee, a correctional officer at the Texas Department of Criminal Justice; Jerry Hocutt, an inmate at the Texas Department of Criminal Justice; Bert Graham, an intended victim; and David Sheetz, an intended victim. The testimony from these non-accomplice witnesses reveals: Jerry Hocutt reported to officials at the Wynne Unit that appellant wanted to hire a hit man to kill Harris County Assistant District Attorney Bert Graham and Houston police officer David Sheetz; Richard Lee developed a plan to have Hocutt hire a fake hit man to corroborate Hocutt=s statements; Gary Johnson played the role of a hit man to afford appellant the opportunity to commit the offense of criminal solicitation of capital murder and to further corroborate the statements of Jerry Hocutt; Hocutt wrote a fake letter to the hit man, named ADok Walker,@ and let appellant read it; Hocutt mailed the letter to an address provided by Johnson; Hocutt agreed to pay the hit man, AWalker,@ $100,000 for killing Graham and $25,000 for killing Sheetz; as repayment for the killings, appellant would kill two people of Hocutt=s choosing after appellant was released from prison; Johnson and Hocutt met at the prison, so appellant could learn Hocutt had met with the hit man; on December 3, 2003, Robbie Lee escorted appellant to the visitation building to meet a visitor; a hidden recording device was set up next to the seat where appellant sat in the visitation building to record the conversation between appellant and Johnson; and Johnson placed a second back-up recording device on his arm to record the conversation. The jury also heard testimony from the intended victims, Bert Graham and David Sheetz. Bert Graham described past threats appellant had made to Graham by sending Christmas cards and letters to Graham after appellant had been sentenced to prison. David Sheetz described a confrontation between appellant and Sheetz and a failed attempt for appellant to become an informant for Sheetz prior to appellant=s sentence to prison. This evidence goes to motive and may be considered with other evidence to connect appellant with the crime. See Reed, 744 S.W.2d at 127. More importantly, the jury heard the audio tape recording from the device taped to Johnson=s arm. Appellant argues the audio tape alone does not corroborate the solicitation. However, tape recorded evidence alone may sufficiently corroborate appellant=s intent. Ivatury v. State, 792 S.W.2d 845, 850 (Tex. App.CDallas 1990, pet. ref=d); Varvaro v. State, 772 S.W.2d 140, 143 (Tex. App.CTyler 1988, pet. ref=d). On the recording, the jury heard appellant agree to keep quiet when the murders happened and agree to kill two people for Hocutt to repay his debt by saying, Awhatever Jerry Ray wants.@ Appellant stated he wanted to make sure the murders happened while he was still in prison, and Johnson assured him they would. Appellant gave Johnson a timetable for when appellant would be out of prison. Appellant also stated it was a good idea for the killings to be separate, and an accident for David Sheetz was a good idea. During the conversation, Johnson did most of the talking, and nowhere on the tapes does appellant explicitly ask Johnson to kill Graham or Sheetz. However, appellant also agreed with Johnson=s statements throughout the conversation. See Guthrie v. State, 149 S.W.3d 829, 833 (Tex. App.CWaco 2004, pet. ref=d) (holding tape recording where many of appellant=s statements were affirmative answers to questions was sufficient to corroborate accomplice witness testimony and appellant=s intent to kill); cf. Parish v. State, 640 S.W.2d 669, 673 (Tex. App.CHouston [14th Dist.] 1982, no pet.) (holding tape recordings where conversations between appellant and undercover officers were nothing more than rambling conversations and were not sufficient to show appellant requested, commanded, or attempted to induce or cause the death of the victim). This case differs from our prior holding in Parish because even though appellant never specifically asked Johnson to kill Graham and Sheetz, his intent for that result was clear. In Parish, the defendant jumped from topic to topic and made little sense. Parish, 640 S.W.2d at 673. Therefore, the tape recorded evidence, here, independently corroborates the testimony of both Johnson and Hocutt. Appellant also complains no other independent evidence, besides the recording, creates a connection between appellant and the crime. Appellant points this court to evidence in the record where Johnson testifies Jerry Hocutt is not credible. Appellant also presented two witnesses who testified Hocutt=s reputation in the community for being a peaceful and law abiding citizen or inmate was bad and his reputation for truth and veracity was also bad. This testimony turns on the jury=s determination of weight of the evidence and credibility of witnesses. As the sole judge of credibility, the jury chooses whether or not to believe all or part of a witness=s testimony. Moreno, 755 S.W.2d at 867. Therefore, weighing this testimony against the audio tape, the jury could have easily believed Hocutt was telling the truth. Viewing all the evidence in the light most favorable to the verdict, we find a rational trier of fact could have found appellant requested, commanded, or attempted to induce ADok Walker@ to murder Bert Graham and David Sheetz. Based on the audio recording and the testimony of the non-accomplice witnesses, the solicitation was sufficiently corroborated. Therefore, the evidence is legally sufficient to find appellant guilty of solicitation of capital murder. Viewing the evidence in a neutral light, we conclude the evidence supporting the verdict was not too weak to support the verdict beyond a reasonable doubt and the contrary evidence was not so strong that the beyond-a-reasonable-doubt standard could not have been met. Therefore, the evidence is factually sufficient to find appellant guilty. We overrule appellant=s second point of error. Conclusion Having considered and overruled appellant=s two points of error on appeal, we affirm the judgment of the trial court. /s/ John S. Anderson Justice Judgment rendered and Memorandum Opinion filed February 14, 2006. Panel consists of Chief Justice Hedges and Justices Yates and Anderson. Do Not Publish C Tex. R. App. P. 47.2(b). [1] The trial court issued findings of fact and conclusions of law from the suppression hearing. Two conclusions of law address the federal and Texas wiretap statutes raised in appellant=s second and third arguments: Article 18 U.S.C. Section 2510 et. [sic] seq. does not apply to the conversation between Defendant and Gary Johnson because Gary Johnson was a party to the conversation and he gave the Texas Department of Criminal [Justice] and the Office of the Inspector General permission to record the conversation. Article 18.20 of the Texas Code of Criminal Procedure does not apply to the conversation between Defendant and Gary Johnson because Gary Johnson was a party to the conversation and he gave the Texas Department of Criminal [Justice] and the Office of the Inspector General permission to record the conversation. [2] The current version of the Texas wiretap statute makes section 16.02(c)(3) an affirmative defense to prosecution. See Tex. Pen. Code Ann. ' 16.02(c)(3) (Vernon 2003). [3] We distinguish between Johnson=s trial testimony and the audio recording of his conversation with appellant in prison. For purposes of this analysis, we consider the latter.