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Court of Appeals of Texas, Dallas.


No. 05–09–00902–CR

    Decided: June 22, 2011

Before Justices Richter, Lang, and Fillmore


Opinion By Justice Richter

A jury convicted appellant of felony murder as a conspirator and assessed punishment at sixty years' imprisonment.   The trial court subsequently entered a deadly weapon finding in the judgment.   In seven issues on appeal, appellant contends the evidence is legally and factually insufficient to support her conviction, the evidence is insufficient to corroborate the accomplice-witness testimony, the trial court erred in denying her motion to suppress, and the trial court erred in entering a deadly weapon finding in the judgment.   Concluding appellant's arguments are without merit, we affirm the trial court's judgment.

Sufficiency of the Evidence

In her first four issues, appellant challenges the legal and factual sufficiency of the evidence to support her conviction.1  The Texas Court of Criminal Appeals has overruled Clewis v. State, holding that the Jackson v. Virginia standard is the only standard a reviewing court is to apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt.   See Brooks v. State, 323 S.W.3d 893, 894–95 (Tex.Crim.App.2010) (plurality op.).   This standard requires the reviewing court to determine whether, considering all of the evidence in the light most favorable to the verdict, the jury was rationally justified in finding guilt beyond a reasonable doubt.  Id. at 899 (citing Jackson v. Virginia, 443 U.S. at 319).   We defer to the jury's determinations of the witnesses' credibility and the weight to be given their testimony because the jury is the sole judge of those matters.  Id. Therefore, we will conduct a single review of appellant's sufficiency complaints under the Jackson standard.

Daniel Barron was at home when he was shot five times at close range and robbed.   Barron did not survive.   The perpetrators absconded with some cocaine, a few digital scales, and $7. Appellant was charged with felony murder as a conspirator in Barron's death.   See Tex. Penal Code Ann. §§ 19.02(b)(3), 7.02(b), 15.02(b) (West 2011).

A person commits murder if he commits a felony, and in the course of and in furtherance of the commission, he commits an act clearly dangerous to human life that causes the death of an individual.  Tex. Penal Code Ann. § 19.02(b)(3).   A person is criminally responsible for an offense committed by another if, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, if the offense was committed in furtherance of the unlawful purpose and should have been anticipated as a result of carrying out the conspiracy.  Tex. Penal Code Ann. § 7.02(b).

The evidence adduced at trial established that appellant, Omar Richardon (“Omar”), Michael Richardson a/k/a “Black Mike” (“Richardson”), Jesse Vasquez and Issac Hernandez a/k/a “Nu Nu” went to Barron's home, a known drug house, to rob him.   The purpose of the robbery was to obtain the money to bond appellant's boyfriend out of jail.

Detective Kenneth Penrod, the Dallas Police Department detective assigned to the case, testified that he received a phone call from one of the victim's relatives who relayed that appellant had “confessed” to the offense in a conversation with her friend, Jesse Mendoza.   After speaking with Mendoza, Detective Penrod and his partner, Detective Scott Sayers went to appellant's home to see if she would voluntarily come to the police station to speak with them.   Appellant agreed, and during her interview with Detective Penrod, voluntarily provided a statement concerning her participation in the offense.2

Appellant's statement was admitted into evidence.   In her statement, appellant explained that the group planned to rob Barron to obtain money to bond her boyfriend out of jail.   Omar arranged to obtain a gun from Vasquez, which appellant described as “ a little black one ․ a Glock maybe.”   Appellant drove her vehicle to Barron's house and she and Omar walked to the front door.   When Barron answered the door, appellant saw that he had a gun.   Appellant and Omar walked back to the car, and Omar told her “he wanted to go take all that guy's money ․ and he said he needed the gun because he was most likely gonna have to shoot him because that guy has a gun, too.”   Appellant further stated that Omar told her “If anybody's gonna go down, its gonna be him, not me.”   Appellant replied “If you're gonna do whatever you're gonna do, do whatever you gotta do.”   So the two walked back to Barron's house and when Barron opened the door, Omar shot him “five or six times.”

Appellant diagramed the house for Detective Penrod and described how she saw Omar take a shoe box from a kitchen cabinet.   The shoe box contained baggies, some cocaine, and some money which the group subsequently discovered amounted to only $7. Appellant also told Detective Penrod that after the group returned to the car, “everyone seemed calm,” except Omar, who was disappointed in the returns from the robbery.   Appellant identified her accomplices from photo line-ups.   Detective Penrod testified that forty minutes into her statement, appellant had told him three times, three different ways that “Omar was gonna shoot.”

Vasquez and Hernandez also testified, and generally corroborated appellant's version of events.   But Vasquez and Hernandez testified that in addition to Omar using a gun during the offense, appellant had carried an SKS assault rifle.   The rifle was introduced into evidence, and Detective Penrod testified that the rifle had been retrieved from appellant's boyfriend's house a few months after the offense.   Appellant's boyfriend testified that at the time of the offense, he was storing many of his belongings in appellant's vehicle, but he could not remember if the assault rifle was included.

Hernandez testified that appellant was really leading Omar on.   After appellant and Omar went to the door the first time, the group drove around the block.   Appellant told Omar it was close to 11:00 and they still did not have the money and said “it's getting too late;  if y'all gonna do it, are you gonna do it?”   After the incident the group was generally disappointed that the robbery yielded so little profit.   Appellant did not appear to be surprised or shocked that Omar had just shot someone five times.   Hernandez stated that after ten minutes, appellant acted “like nothing ever happened, completely normal.”

Vasquez testified that appellant told him prior to the offense that Omar was going to have to shoot or would shoot if he had to.   Appellant told Omar “do whatever you're gonna do.”   According to Vasquez, the group drove around the block because they were trying to figure out if they were “going to do it” or not, and Omar was getting “cold feet.”   Vasquez stated that if it had not been for appellant saying they had to hurry, the incident would never have happened.   Vasquez further testified that after they all decided to “go through with it,” he handed Omar the gun and Hernandez handed appellant a high-powered rifle that Vasquez believed was loaded.   Both Vasquez and Hernandez testified that appellant exited the car first with the assault rifle in hand.   Vasquez and Hernandez also testified that Omar told them that the cessation of gunfire would be the signal for Vasquez and Hernandez to join Omar and appellant in the house.   Vasquez and Hernandez also stated that after the gunfire ceased, they discovered appellant ransacking Barron's home, despite the fact that Barron's dying body was lying a foot or two from the door.

Ashley Rodriguez, a relative of appellant's boyfriend, testified that appellant discussed the murder with her and stated that she felt “no remorse and no sympathy.”   Rodriguez further relayed that appellant said that after the offense she “felt nothing.”

The State also introduced cell phone records showing text messages between appellant and a friend in which appellant asked the friend if he knew anyone they could “jack.” 3  Later, appellant sent a text message to the friend indicating “only need $700 now.”

Viewing the evidence under the appropriate standard, we are not persuaded by appellant's arguments that “no rational jury could have found ․ that appellant should have anticipated a homicide would be committed,” or that “the murder ․ was committed to further the robbery.”   The evidence described above was sufficient to establish that appellant conspired to commit aggravated robbery, and in the course of, and in furtherance of the robbery, one of the conspirators knowingly or intentionally caused Barron's death, and appellant should have anticipated the death as a result of carrying out the conspiracy.   See Tex. Penal Code Ann. § 7.02(b).  Any conflicts in the testimony were within the province of the jury to resolve.   See Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997).   Appellant's first four issues are overruled.

Accomplice Testimony

In her fifth issue, appellant asserts the evidence is insufficient to corroborate the accomplice testimony.   In particular, appellant argues that, excluding the testimony of Hernandez and Vasquez, “there is no evidence tending to connect appellant to the murder at issue.”   We disagree.

Tex.Code Crim. Proc. Ann. art. 38.14 (West 2005) provides, in pertinent part, that “[a] conviction cannot be had on the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed.”   The corroborating evidence need not alone establish a defendant's guilt beyond a reasonable doubt, or even link the defendant directly to the crime.   See Castillo v. State, 221 S.W.3d 689, 691 (Tex.Crim.App.2007).   Instead, evidence “tends to connect” a defendant to the crime if “it simply link[s] the accused in some way to the commission of the crime and show[s] that rational jurors could conclude that this evidence sufficiently tended to connect the accused to the offense.”  Simmons v. State, 282 S.W.3d 504, 508 (Tex.Crim.App.2009).

On appeal, we consider the combined force of all of the non-accomplice evidence that tends to connect the accused to the offense.  Smith v. State, 332 S.W.3d 425, 442 (Tex.Crim.App.2011).   When there are two permissible views of the evidence, appellate courts should defer to the view of the evidence chosen by the fact-finder.   See id.;  Simmons, 282 S.W.3d at 508–09.

Although appellant's detailed statement to Detective Penrod was sufficient to corroborate the accomplice testimony, the State offered additional evidence the jury could have found corroborative.   For example, the State introduced forensic evidence tending to connect appellant to the offense.   Blood collected from appellant's vehicle contained DNA markers belonging to Barron and identified him as the source with statistical certainty.   Bullet casings collected from the crime scene were consistent with the type of firearm used in the offense and described by appellant.   Rodriguez's testimony was additional corroborative evidence, as were appellant's cell phone records.   In addition, Detective Penrod testified that Mendoza provided him with information linking appellant to the offense.   The guns retrieved from the victim's home corroborated appellant's statement that the victim had a gun when he opened the front door.

Appellant focuses on what she deems an absence of non-accomplice evidence that she anticipated the murder.   This emphasis is misplaced.   The corroborating evidence need not prove every element of the offense beyond a reasonable doubt;  it must simply link appellant to the offense in some way that it tends to connect appellant to the offense.   See Simmons, 282 S.W.3d at 508.   Thus, considering the non-accomplice evidence as a whole, viewing the evidence in a light most favorable to the jury's verdict, we conclude that a rational fact-finder could have concluded that the non-accomplice evidence tended to connect appellant to the offense.   Appellant's fifth issue is overruled.

Motion to Suppress

In her sixth issue, appellant argues the trial court erred in denying her motion to suppress.   Appellant contends the statement she made to Detective Penrod when she accompanied him to the police station was the product of an illegal arrest and therefore should not have been admitted into evidence.   The State responds that appellant was not in custody when she gave her voluntary statement and therefore the trial court did not err in admitting the statement.

We apply a bifurcated standard of review to a trial court's ruling on a motion to suppress evidence.   We give almost total deference to the trial court's determination of the historical facts that the record supports;  we review de novo the trial court's application of the law to those facts.   See Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997).   The prevailing party in a motion to suppress is entitled to the strongest legitimate view of the evidence and all reasonable inferences that may be drawn from that evidence.  Id. When conducting our review, we view the evidence in the light most favorable to the trial court's ruling on the suppression motion.  State v. Iduarte, 268 S.W.3d 544, 548 (Tex.Crim.App.2008);  State v. Kelly, 204 S.W.3d 808, 818 (Tex.Crim.App.2006).   When as here the trial judge does not enter findings of fact, we imply the necessary fact findings that would support the trial court's ruling if the evidence, viewed in the light most favorable to the trial court's ruling, supports these implied fact findings.   See Kelly, 204 S.W.3d at 818–19.

A confession obtained by exploitation of an illegal arrest may not be used against a criminal defendant.  Kaupp v. Texas, 538 U.S. 626, 627 (2003).   The warrantless, involuntary transportation of a suspect from his home to the police station constitutes an illegal arrest, and any resulting statements must be suppressed unless sufficient evidence exists to purge the taint.  Id. at 630.   Whether such statements may properly be admitted into evidence turns on whether a defendant voluntarily accompanied officers to be questioned, or whether he was “in custody” at the time of transport and interrogation.   Livingston v. State, 739 S.W.2d 311, 327 (Tex.Crim.App.2007).

Custodial interrogation is “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”  Miranda v. Arizona, 384 U.S. 436, 444 (1966).   A person is in “custody” only if, under the circumstances, a reasonable person would believe that his freedom of movement was restrained to the degree that he was not at liberty to leave.   See Dowhitt v. State, 931 S.W.2d 244, 254 (Tex.Crim.App.1996) (citing Stansbury v. California, 511 U.S. 318 (1994));  Herrera v. State, 241 S.W.3d 520, 526 (Tex.Crim.App.2007);  see also Nguyen v. State, 292 S.W.3d 671, 677–78 (Tex.Crim.App.2009) (custody satisfied when individual formally arrested or when freedom of movement restrained to degree associated with formal arrest).   The determination of custody must be made on an ad hoc basis, after considering all of the (objective) circumstances.  Herrera, 241 S.W.3d at 526.

At least four general situations may constitute custody:  (1) the suspect is physically deprived of his freedom of action in any significant way, (2) a law enforcement officer tells the suspect that he cannot leave, (3) law enforcement officers create a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted, and (4) there is probable cause to arrest and law enforcement officers do not tell the suspect that he is free to leave.  Gardner v. State, 306 S.W.3d 274, 294 (Tex.Crim.App.2009) (citing Dowthitt, 931 S.W.2d at 255).4  In all four of these situations, the restriction on freedom of movement must amount to the degree associated with an arrest.  Dowthitt, 931 S.W.2d at 255.   As to the fourth circumstance, the initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views of the interrogating officer or the person being questioned.  Dowthitt, 931 S.W.2d at 255.   The subjective intent of law enforcement officials to arrest is irrelevant, unless that intent is somehow communicated or otherwise manifested to the suspect.  Stansbury, 511 U.S. at 323–25;  Herrera, 241 S.W.3d at 525–26.

At the hearing on the motion to suppress, Detective Penrod testified that he and Detective Sayers arrived at appellant's home in plainclothes and in an unmarked police car.   The record reflects that the event was being filmed for a television program, and a camera person rode with the detectives in the back of the patrol car.5  On the way to appellant's home, Detective Penrod stated that they hoped to get appellant to come back [to the police station] to talk to them.   Once at appellant's home, the detectives told her they wanted to speak with her about a case.   Appellant inquired as to whether the case involved her boyfriend, and Detective Penrod told her “no.”   Appellant asked Detective Penrod if the questioning could be done later because she had no one to care for her children and he told her “you need to find someone to come get these kids because we need you to come talk with us.”   Before departing for the police station, appellant consented to a search of her vehicle, and supplied the necessary information for Detective Penrod to complete a form reflecting her consent.   Appellant and her children got into Detective Penrod's car.   Appellant was never informed that she was under arrest or otherwise not free to leave, and she was not handcuffed or restrained in any way.   On the way to the police station, appellant was allowed to use her cell phone.   Detective Penrod testified that appellant voluntarily agreed to speak with him and there was “no coercion ․ nothing overbearing” in his conduct.

At the police station, appellant's children were allowed to accompany her in the interrogation room prior to and at the beginning of questioning.6  The interview was videotaped and appellant was aware the interview was being recorded.   At one juncture, after the children had been taken to another room, Detective Penrod left to check on them.   Appellant then looked into the camera, adjusted her hair and clothing, and stated in effect that she could not believe she was being recorded not looking her best.   The videotape of the interview reflects that throughout the interview, appellant's and Detective Penrod's tones were calm and conversational, and appellant frequently laughed.   Detective Penrod described the interview as “lighthearted.”   There is no indication that Detective Penrod ever displayed hostile, threatening, or aggressive behavior toward appellant, and appellant appears relaxed and at ease with the process.

Detective Penrod testified, and the videotape reveals, that Detective Penrod read appellant her rights before he began to question her, and appellant read along (silently) with him as he did so.   Appellant then stated that she understood her rights and indicated twice that she wished to proceed with the interview and speak with the detective.

When Detective Penrod began to explain the incident to appellant, she interrupted him and asked, “do you want me to just tell you what happened?”   Appellant then proceeded to describe her version of the crime in great detail, and illustrated many of the details on a piece of paper the detective provided.   Appellant diagramed the house and indicated where she and her companions were standing as the events unfolded.   She also described the streets near the victim's home, where she parked her car, and the cabinets in the victim's kitchen from which the cocaine and money were retrieved.   Detective Penrod testified that appellant did not request or even mention a lawyer at any point in the interview.   The videotape does not indicate otherwise.   Similarly, appellant never requested that she be permitted to leave or sought to terminate the interview.

Appellant also testified at the suppression hearing.   According to appellant, she told the detective she did not want to go to the police station with the detectives “because of [her] kids,” but they “kept on pursuing for [her] to go.”   Appellant said she believed she had to go with the detectives and felt pressure to go with them.   When appellant's counsel inquired as to whether she had requested an attorney, appellant stated she was “pretty sure” she had mentioned a lawyer, but her “memory [didn't] go back that far.”

In addition to the testimony of Detective Penrod, appellant, and others, the trial court also viewed the videotape of the detectives' encounter with appellant at her home and the videotape of her interview.   Although the trial judge did not file formal findings of fact, at the conclusion of the hearing she stated that appellant “went to the station voluntarily” and did not invoke her right to counsel.7

In support of her argument that the detectives coerced her to come to the police station, appellant notes that Detective Penrod called for a truck to tow her vehicle and told the dispatcher he needed to tow the vehicle of a murder suspect he had arrested.   Appellant further notes that Detective Sayers commented that if all went well, appellant would not see her children that night.   But the record reflects that appellant was inside the home and the officers were outside each time these comments were made.   Because neither statement was made in appellant's presence or where appellant could have overheard the comments, the comments cannot be deemed coercive.   Moreover, even if the detectives had planned or hoped to arrest appellant at some juncture, the detectives subjective intent is immaterial to our analysis.   See Stansbury, 511 U.S. at 323–25;  Herrera, 241 S.W.3d at 525–26.

Having reviewed the record, we conclude appellant failed to establish she reasonably believed she was in custody when she accompanied Detective Penrod to the police station.   Therefore, the trial court did not abuse its discretion in admitting the statement which resulted from appellant's voluntary, noncustodial interview.   Appellant's sixth issue is overruled.   Deadly Weapon Finding

In her seventh issue, appellant asserts the trial court erred in making a deadly weapon finding.   Specifically, appellant contends that because the jury was instructed on the law of the parties, the jury should have been given a special instruction on whether appellant used or knew that a deadly weapon was used.   The State responds that because the indictment alleged use of a deadly weapon and the jury found appellant guilty of murder “as charged in the indictment,” the trial court was required to enter a deadly weapon finding.   We agree with the State.

A trial court may enter a deadly weapon finding in three circumstances:  (1) when the indictment alleges use of a deadly weapon and the jury's verdict reads “guilty as charged in the indictment;” (2) when the indictment alleges the use of a deadly weapon and the weapon is deadly per se;  or (3) the jury affirmatively answers a special issue on the use of a deadly weapon.   See Johnson v. State, 6 S.W.3d 709, 713–14 (Tex.App.—Houston [1st Dist.] 1999, pet. ref'd) (citing Polk v. State, 693 S.W.2d 391, 393 (Tex.Crim.App.1985)).   As one court has observed, “when the indictment alleges ․ that the defendant used or exhibited a deadly weapon ․ and the jury finds the defendant ‘guilty as charged in the indictment,’ the jury has necessarily made a de facto finding that the defendant used or exhibited a deadly weapon.”  Sarmiento v. State, 93 S.W.3d 566, 569 (Tex.App.—Houston [14th Dist.] 2002, pet. ref'd);  see also Crumpton v. State, 301 S.W.3d 663, 664 (Tex.Crim.App.2009) (concluding jury's verdict was deadly weapon finding and verdict of homicide is necessarily a finding that a deadly weapon was used).

Here, the indictment alleged use of “a firearm, a deadly weapon,” and the jury found appellant guilty of murder “as charged in the indictment.”   Therefore, the jury, by its verdict, made an affirmative factual finding with respect to the use of a deadly weapon during the commission of the offense.  Johnson, 6 S.W.3d at 714.   As a result, the trial judge was required to enter the deadly weapon finding in the judgment.   See Tex.Code Crim. Proc. Ann. art. 42.12 § 3g (2) (West Supp.2010).   Appellant's seventh issue is overruled.

Having resolved all of appellant's issues against her, we affirm the trial court's judgment.


1.  FN1. Although the heading for issues three and four sets forth a sufficiency challenge to evidence proving the murder “was committed in furtherance of the conspiracy to [commit] robbery,” the substance of appellant's arguments actually challenge the sufficiency of the evidence on the same basis as issues one and two.   Therefore, we will address these issues collectively.

2.  FN2. Appellant's voluntary participation in the interview is detailed in our discussion of the motion to suppress.

3.  FN3. “Jack” is slang for rob.

4.  FN4. Although much of the “custody” analysis in Texas jurisprudence involves article 38.22 of the code of criminal procedure, which is not at issue here, the court of criminal appeals has concluded the construction of “custody” for purposes of article 38.22 is consistent with the meaning of “custody” for purposes of Miranda.   See Herrera, 241 S.W.3d at 526.

5.  FN5. Although appellant's argument contains no citations to any of the videotapes, we have reviewed these recordings, as did the trial court.

6.  FN6. Although not explained during the hearing on the motion to suppress or pertinent to our analysis, the testimony at trial reflects that the detectives thought appellant had made arrangements for child care and planned to drop the children off at the home of a relative on the way to the police station.   On the way to the police station, appellant informed the detectives that the arrangement wasn't going to work, so the children were taken to the police station along with appellant.

7.  FN7. The trial court also stated that the attorney retained by appellant's mother who was denied access to appellant was not appellant's counsel of record.   On appeal, appellant does not argue that she invoked her right to counsel.   Instead, in connection with her argument that there is no purge of the taint from the allegedly illegal arrest, appellant notes that “she was not told when her lawyer appeared at the station to see her.”


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