Damien Lamont Alcorn v. State

Affirmed and Memorandum Opinion filed February 27, 2007 Affirmed and Memorandum Opinion filed February 27, 2007. In The Fourteenth Court of Appeals _______________ NO. 14-05-01195-CR _______________ DAMIEN LAMONT ALCORN, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 228th District Court Harris County, Texas Trial Court Cause No. 1010324 M E M O R A N D U M   O P I N I O N A jury found appellant, Damien Lamont Alcorn, guilty of capital murder and sentenced him to life in prison. In four issues, appellant contends (1) the only evidence connecting him to the crime was the testimony of an accomplice, rendering the evidence insufficient for a finding of guilt without corroborating evidence, (2) a co-defendant=s invocation of his right to remain silent was imputed to appellant, (3) the trial erred by admitting extraneous offenses and other bad acts through the testimony of a third-party witness, and (4) the trial court erred by admitting extraneous offenses and other bad acts described in appellant=s recorded police interview. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4. I. Background Appellant and co-defendant, Zachary Terrell, were childhood friends. Apparently, they spent much of their youth committing theft together. During September 2004, Zachary married Tanya Terrell. During November 2004, Tanya and Zachary=s cousin, Leticia Terrell, started working at a Goodwill store. On December 13, 2004, after the Goodwill store closed, Tanya and store manager, William Musick, were the only two persons that remained. Tanya was waiting for her husband to take her home. While they were counting the money, an African-American man, who wore a large jacket and black skull cap and had pantyhose over his face, entered through an unlocked door in the rear area of the store. He was holding a gun which Tanya recognized as having been previously owned by Zachary. He demanded the money. After taking the money, the man shot Musick in the head. Tanya called 9-1-1. When the police arrived, Musick was dead. While these events were unfolding, Richard Heid was in a near-by restaurant. He approached police when they entered the parking area, and told them he had seen an African-American man in a car which was parked in reverse position next to his car. He thought the situation looked suspicious. Heid told police that he subsequently saw another African-American man wearing a large jacket run out of the Goodwill and get into the car. The African-American men then drove away. While standing in the parking lot talking to police, Heid saw the same car with the same driver enter the parking lot. Zachary was identified as the driver. Tanya was interviewed by two officers at the police station. During the second interview, she identified appellant from a photo spread as the person who entered the Goodwill and shot Musick. Officers then interviewed Zachary. Subsequently, Zachary led officers to the assailant=s gun which was hidden under some bushes in an apartment complex parking lot. After interviewing Zachary and conducting some investigation, police arrested appellant. II. Accomplice Witness Testimony In his first issue, appellant contends that Tanya was an accomplice. Appellant further asserts that Tanya=s testimony was the only evidence that connected him with the crime. Under the Aaccomplice-witness rule,@ a defendant cannot be convicted based on the testimony of an accomplice unless the testimony is corroborated by other evidence tending to connect the defendant with the offense committed. Tex. Code of Crim. Proc. Ann. Art. 38.14 (Vernon 2005). Appellant argues that the remaining evidence is insufficient to connect him to the charged offense if Tanya=s testimony were excluded under the Aaccomplice-witness rule.@ In response, the State contends the trial court properly found Tanya was not an accomplice as a matter of law and submitted the question to the jury. An accomplice is one who participates with a defendant before, during, or after commission of a crime, and acts with the required culpable mental state. Cocke v. State, 201 S.W.3d 744, 748 (Tex. Crim. App. 2006); Paredes v. State, 129 S.W.3d 530, 536 (Tex. Crim. App. 2004) (citing McFarland v. State, 928 S.W.2d 482, 514 (Tex. Crim. App. 1996)). Participation requires an affirmative act that promotes commission of the charged offense. Cocke, 201 S.W.3d at 748; Paredes, 129 S.W.3d at 536. Mere presence during the commission of the crime is not enough. Soloman v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001) (citing Medina v. State, 7 S.W.3d 633, 641 (Tex. Crim. App. 1999)). One is not an accomplice for knowing about a crime and failing to disclose or even concealing a crime. Blake v. State, 971 S.W.2d 451, 454 (Tex. Crim. App. 1998). In this case, the trial court charged the jury with the responsibility of determining whether Tanya was an accomplice as a matter of fact.[1] A witness may be an accomplice either as a matter of law or matter of fact. Cocke, 201 S.W.3d at 747; Blake, 971 S.W.2d at 455. A witness is an accomplice as a matter of law when there exists no doubt regarding his participation, or when the evidence clearly shows that he is an accomplice. Paredes, 129 S.W.3d at 536 (citing Blake, 971 S.W.2d at 455). 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. Id. (citing Blake, 971 S.W.2d at 455); Ex parte Zepeda, 819 S.W.2d 874, 876 (Tex. Crim. App. 1991). The test is whether there is sufficient evidence in the record to support a charge against the witness alleged to be an accomplice for the offense. Blake, 971 S.W.2d at 455. Whether the witness is actually charged with a crime for participation in the offense is irrelevant to the determination of accomplice status. Id. The evidence in the record is what matters. Id. When a witness is deemed an accomplice as a matter of law, the trial court is under a duty to instruct the jury. Id. In contrast, if the evidence presented by the parties is conflicting or unclear as to whether a witness is an accomplice, then the trial court must allow the jury to determine whether the inculpatory witness is an accomplice as a matter of fact under instructions defining the term Aaccomplice.@ Id. Appellant concedes Tanya could not have been charged with capital murder; however, he contends she is an accomplice as a matter of law because she could be charged with the lesser-included offense of robbery. Robbery may be a lesser-included offense of capital murder.[2] See Holiday v. State, 14 S.W.3d 784, 788 (Tex. App.CHouston [1st Dist.] 2000, pet. ref=d). To be charged with a lesser-included offense, the witness must have had specific intent to promote or assist in the commission of the offense. Hanson v. State, 55 S.W.3d 681, 689 (Tex. App.CAustin 2001, pet. ref=d). Tanya testified that she had never met appellant before the events in question. The only time she came close to meeting him was in September 2004, when she and Zachary were married. Zachary drove by appellant=s residence. Tanya stayed in the car while Zachary told appellant that he was married. Tanya began her employment at Goodwill store during November 2004. Zachary=s cousin, Leticia, started working there around the same time. However, a few weeks later, Leticia was fired for stealing and being disrespectful to the managers. Leticia had a lengthy friendship with Zachary and appellant, and they Agrew-up@ together. Tanya suggested Leticia gave appellant inside information about the store. During late November 2004 appellant called Zachary to tell him that he had heard the Goodwill store where Tanya worked was Aan easy lick.@ Tanya told her Zachary that she did not want him to get involved in stealing again, and she did not want to be caught in the middle. Appellant called Zachary sometime after the first conversation, and Tanya heard Zachary tell appellant, AI told you, she not down.@ After the robbery, these prior events supported Tanya=s belief that Zachary was involved. Consequently, she admitted that some of her initial descriptions of the intruder during her first police interview were not accurate. However, she testified that her statements during the second police interview and during trial were true. Appellant testified he never met Tanya. He admitted to a friendship with Leticia, but denied knowing that she had been fired. He testified Zachary was the first person to mention that the Goodwill store was an easy place to rob, and he assumed that Zachary received the information from his wife. Appellant testified that he did not go to Goodwill that night; instead Zachary came by asking if he wanted to go, but appellant told Zachary that he did not want to go. In addition, appellant=s cousin, Benny Lawson, testified that appellant was playing dice and watching a football game with him the night of the robbery. Appellant blamed Zachary and Tanya during his initial interview with the police. He said Zachary initiated conversation about robbing the Goodwill. Appellant further asserted that Zachary told him he would ask ADre@ if appellant refused to go. Appellant told police that Tanya planned to accomplish the robbery alone by just pushing Musick down onto the floor and taking the money. However, the officer who conducted the interview testified that Tanya was seven-months pregnant. In sum, there is conflicting evidence regarding whether Tayna provided inside information about the store assisting Zachery and appellant in committing the robbery. It is also unclear whether Tanya left one of the doors unlocked or Musick forgot to lock one of the doors. Obviously, Tanya was present when the crime occurred. Moreover, she initially attempted to conceal her knowledge of the intruder during her first police interview. However, mere presence, knowledge, failure to disclose, and concealment of a crime do not make an individual an accomplice. See Soloman, 49 S.W.3d at 361; Blake, 971 S.W.2d at 454. We hold the trial court correctly gave the jury the responsibility of determining whether Tanya was an accomplice. See Maynard v. State, 166 S.W.3d 403, 411 (Tex. App.CAustin 2005, pet. ref=d). Accordingly, appellant=s first issue is overruled. III. Co-defendant=s Fifth Amendment Right To Remain Silent In his second issue, appellant contends that Zachary=s invocation of the Fifth Amendment right Ato silence@ was improperly imputed to appellant. Specifically, appellant contends the State sought to impute guilt upon appellant by calling Zachary, who had been granted use immunity, to testify. The trial court admonished Zachary that he had been given use immunity; consequently, he could not assert a Fifth Amendment privilege. Zachary was also informed that each time he invoked the Fifth Amendment, he would be held in contempt. Despite this admonishment, Zachary refused to answer every question. After each refusal, the trial judge stated he was holding Zachary in contempt of court. A witness who has been granted use immunity for his testimony does not have a valid basis for refusing to testify. Coffey v. State, 796 S.W.2d 175, 179 (Tex. Crim. App. 1990); see also Butterfield v. State, 992 S.W.2d 448, 449B50 (Tex. Crim. App. 1999); Perez v. State, 41 S.W.3d 712, 718B19 (Tex. App.CCorpus Christi 2001, no pet.). In Coffey, a witness called by the State was granted use immunity for her testimony but invoked her Fifth Amendment privilege against self-incrimination in front of the jury. 796 S.W.2d at 176B77. The court of appeals held that the witness could not invoke her Fifth Amendment right because she had been granted use immunity for her testimony. Id. at 177. On appeal to the to Court of Criminal Appeals, the defendant argued that the jury would construe the witness=s refusal to testify in a manner that would be detrimental to the defendant. Id. Affirming the court of appeals, the court noted the Afatal flaw@ in the appellant=s argument was the Aunstated assumption that any negative inference made by a jury when a witness refuses to testify is improper.@ Id. at 178. The court explained the that the witness did not have a valid basis for refusing to testify because the grant of use immunity resulted in the loss of the witness=s Fifth Amendment privilege. Id. at 179 (citing Ullman v. United States, 350 U.S. 422, 437 (1956)). Accordingly, we hold appellant was not unfairly prejudiced. Appellant=s second issue is overrruled. IV. Extraneous Offenses Admitted Through Third-Party Witness In his third issue, appellant contends the trial court abused its discretion by allowing Kimberly Templeton, appellant=s live-in girlfriend, to testify about appellant=s extraneous offenses and other bad acts. During -the State=s direct examination of Templeton, the following exchange occurred: Q: During the course of the time you=ve lived together, did he give you money? A: Yes, ma=am, he has. Q: And where did he get the money from? A: Sometimes he works. Sometimes he went out stealing. Q: Okay. And where did he go stealing? A: Everywhere I guess. Q: Okay. What kind of places? [APPELLANT]: Your Honor, I object to this line of questioning. She=s trying to impeach the defendant through this witness. THE COURT: That=s sustained. [THE STATE]: Well B THE COURT: Come forward. Q: (by [THE STATE]): So, some of the money that he gave you was from you stealing and some of it was from his off-and-on jobs? A: Yes, ma=am. Q: Now, [appellant] told someone that he hadn=t worked since June when he committed that robbery in December. He had not worked anytime in those six months. Would you say that=s an accurate statement? A: Yes, ma=am. Q: And so, how is [appellant] helping you financially? A: I just told you, he steals. After this line of questioning, appellant=s only objection came after the State asked Templeton why she never called the police to tell them appellant had been stealing. This objection was on the grounds of relevancy and improper questioning and impeachment. To preserve error for appellate review, the complaining party must make a timely and specific objection and obtain a ruling on the objection. Tex. R. App. P. 33.1; Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (citing Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995)). The objection must be made at the earliest opportunity. Id. (citing Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991)). On appeal, the point of error must comport with the objection made at trial. Id. (citing Thomas v. State, 723 S.W.2d 696, 700 (Tex. Crim. App. 1986)). Appellant made no extraneous offense objections during Templeton=s testimony. The first objection pertained to improper impeachment. The next objection was responsive to the State=s inquiry regarding why Templeton had never called the police. Appellant=s counsel based his objection on relevance and improper impeachment. Because no timely extraneous offense objection was made during Templeton=s testimony, we overrule appellant=s third issue. V. Extraneous Offenses Described In Recorded Police Interview In his fourth issue, appellant argues the trial court improperly admitted evidence of extraneous offenses that appellant mentioned during a tape-recorded police interview. We need not explore the theories of admissibility because we conclude the error, if any, committed by the trial court was harmless. Therefore, for purposes of this analysis, we will assume the trial court committed error. A non-constitutional error that does not affect substantial rights must be disregarded. Tex. R. App. P. 44.2(b). The erroneous admission of an extraneous offense is non-constitutional error. Johnson v. State, 84 S.W.3d 726, 729 (Tex. App.CHouston [1st Dist.] 2002, pet. ref=d). Substantial rights are not affected by the erroneous admission of evidence Aif the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect.@ Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). In conducting the harm analysis, an appellate court should consider everything in the record, including any testimony or physical evidence admitted for the jury=s consideration, the trial court=s instructions to the jury, the State=s theory, any defensive theories, closing arguments, and even voir dire if material to the appellant=s claim. Id. at 355B56; Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). In assessing harm, the factors to be considered are the nature of the evidence supporting the verdict, the character of the alleged error, and how the evidence might be considered in connection with the other evidence in the case. Motilla, 78 S.W.3d at 356; Morales, 32 S.W.3d at 867. The weight of the evidence of appellant=s guilt is also relevant. Motilla, 78 S.W.3d at 359B60. Moreover, improper admission of evidence does not constitute reversible error if the same facts are proved by other properly admitted evidence. See Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999) (en banc) (holding that any error in admitting hearsay evidence was harmless in light of other properly admitted evidence proving the same fact). After examining the record as a whole, we find the error, if any, did not influence the jury or had but a slight effect and did not affect any substantial right. First, the extraneous offenses contained in the police interview transcript were later properly admitted at trial through testimony from appellant and Kimberly Templeton. During the police interview, appellant said he had stolen cars, radios, and speakers and was previously arrested for burglary of a store with Zachary. At trial, appellant testified without objection regarding the same extraneous offenses contained in the police interview and in greater detail. He testified that he had been arrested for burglary of a building with Zachary, convicted of burglary of a habitation, and arrested for stealing two cars. He also testified that he supported himself by stealing radios, speakers, and rims. Furthermore, Templeton, appellant=s live-in girlfriend, testified without a timely objection (addressed in our analysis of appellant=s third issue) how appellant got money to give her: ASometimes he works. Sometimes he went out stealing.@ Further, there is overwhelming evidence establishing appellant=s guilt. Tanya, the only person present at the time of the incident, identified appellant in a photo-spread later that night as the perpetrator who shot Musick. Appellant=s cell-mate, Aaron Charles, testified that appellant said Zachary had called him about robbing the Goodwill. Charles heard appellant admit that Zachary picked him up, bought gloves and pantyhose on the way to the Goodwill store, and loaned appellant a skull cap. Appellant told Charles that the gun fired on his way out of the store. Appellant also told Charles he was worried about hair follicles which might be in the skull cap that fell off when he ran out of the store. Finally, Charles also testified that appellant showed him pictures of Christmas toys and clothes he bought for his children with the robbery proceeds. The black skull cap was recovered at the scene. Houston Police Officer James Kay testified the police dog followed the scent of the perpetrator from the Goodwill to the cap to the perpetrator=s car. Tanya testified she recognized the gun used in the crime because it previously belonged to Zachary. Zachary led police to the hidden gun. During his second interview with police, appellant admitted that Zachary did Apresent him a gun.@ Finally, the jury received a limiting instruction that further reduced the risk the jury might misapply the evidence during its deliberations.[3] See Jones v. State, 944 S.W.3d 653, 654 (Tex. Crim. App. 1996). Considering the record as a whole, we have fair assurance that admission of the extraneous offense evidence in the police interviews did not influence the jury or had but a slight effect. See Motilla, 78 S.W.3d at 355. Accordingly, we overrule appellant=s fourth issue. The judgment of the trial court is affirmed. /s/ Charles W. Seymore Justice Judgment rendered and Memorandum Opinion filed February 27, 2007. Panel consists of Chief Justice Hedges and Justices Yates and Seymore. Do Not Publish C Tex. R. App. P. 47.4 [1] The jury instruction was stated as follows: You are instructed that a conviction cannot be had upon the testimony of an accomplice unless the jury first believes that the accomplice=s testimony is true and that it shows the defendant is guilty of the offense charged against him, and even then you cannot convict unless the accomplice=s testimony is corroborated by other evidence tending to connect the defendant with the offense charged, and the corroboration is not sufficient if it merely shows the commission of the offense, but it must tend to connect the defendant with its commission. Therefore, if you believe from the evidence beyond a reasonable doubt that an offense was committed and you further believe from the evidence that the witness, Danielethi ATanya@ Terrell, was an accomplice, or you have a reasonable doubt whether she was or not, . . . then you cannot convict the defendant upon the testimony of the said Danielethi ATanya@ Terrell unless you further believe that the testimony of Danielethi ATanya@ Terrell is true and that is shows the defendant is guilty as charged in the indictment; and even then you cannot convict the defendant unless you further believe that there is other evidence in the case, outside of the testimony of Danielethi ATanya@ Terrell tending to connect the defendant with the offense charged in the indictment, and then from all the evidence you must believe beyond a reasonable doubt that the defendant is guilty. [2] A person commits robbery if in the course of committing a theft, the person (1) intentionally, knowingly, or recklessly causes bodily injury to another; or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Tex. Penal Code Ann. ' 29.02(a) (Vernon 2003). [3] The jury received the following instruction as to extraneous offenses: You are further instructed that if there is any evidence before you in this case regarding the defendant=s committing an alleged offense or offenses other than the offense alleged against him in the indictment in this case, you cannot consider such evidence for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other offense or offenses, if any, and even then you may only consider the same in determining the motive, knowledge, intent, and defendant=s relationship with other individuals in the case, if any, in connection with the offense, if any, alleged against him in the indictment and for no other purpose.