ALBERT JACKSON STERLING II v. THE STATE OF TEXAS

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Court of Appeals of Texas, Dallas.

ALBERT JACKSON STERLING II, Appellant v. THE STATE OF TEXAS, Appellee

No. 05–08–00347–CRNo. 05–08–00348–CR

Decided: March 27, 2012

Before Justices Moseley, FitzGerald, and Richter

OPINION

Opinion By Justice FitzGerald

A jury convicted appellant Albert Jackson Sterling II of two counts of solicitation of capital murder and assessed his punishment at thirty years' imprisonment on each count.   In this Court, appellant challenges the sufficiency of the evidence supporting his conviction.   He contends the trial court erred in limiting appellant's cross-examination of the State's key witness, in charging the jury, and in characterizing the convictions in both judgments.   Finally, appellant claims he received ineffective assistance of counsel.   For the reasons discussed below, we affirm the trial court's judgments.

Sufficiency of Evidence of Corroboration

In his first issue, appellant challenges the sufficiency of the evidence supporting his conviction for criminal solicitation.   Specifically, appellant contends there is no evidence corroborating the testimony of Jeffrey Thompson, who testified appellant hired him to kill appellant's wife, Roxane Johnson–Sterling, and her unborn child.1

In order to support a conviction for criminal solicitation, the evidence must establish that the defendant acted knowingly and with a specific intent that a capital murder be committed.  Tex. Penal Code Ann. § 15.03(a) (West 2011);  see also Ivatury v. State, 792 S.W.2d 845, 849 (Tex.App.—Dallas 1990, pet. ref'd).   But evidence of such conduct and intent cannot come solely from the purported solicitee.   Instead, the penal code specifically requires corroboration for conviction:

A person may not be convicted under this section [1] on the uncorroborated testimony of the person allegedly solicited and [2] unless the solicitation is made under circumstances strongly corroborative of both [a] the solicitation itself and [b] the actor's intent that the other person act on the solicitation.

Tex. Penal Code § 15.03(b).  The corroborating evidence must tend to connect the accused with the commission of the offense.  Reed v. State, 744 S.W.2d 112, 126 (Tex.Crim.App.1988).   In evaluating whether sufficient evidence of corroboration exists, this Court eliminates from consideration the solicitee's testimony and then determines whether other incriminating evidence remains and—if it does—whether it tends to connect the defendant with the crime.  Ivatury, 792 S.W.2d at 849.2  The corroboration must go to both the solicitation and the alleged intent;  it need not be sufficient in itself to establish guilt.  Ganesan v. State, 45 S.W.3d 197, 201 (Tex.App.—Austin 2001, pet. ref'd).   Indeed, “[a]pparently insignificant circumstances sometimes afford most satisfactory evidence of guilt and corroboration of the accomplice [solicitee's] testimony.”   See Paulus v. State, 633 S.W.2d 827, 844 (Tex.Crim.App.1981).   We view the corroborating evidence in the light most favorable to the verdict.  Id. We decide on a case-by-case basis whether the evidence adduced at trial is sufficient to corroborate the testimony of the solicitee.   See Holladay v. State, 709 S.W.2d 194, 200 (Tex.Crim.App.1986).

The Solicitee's Testimony

Thompson testified that he met appellant while he (Thompson) was working as a chef at a restaurant frequented by appellant.   They spoke to each other whenever appellant would come in, and—at some point—Thompson told appellant he had been in prison.   Thompson testified he had been to appellant's home in Allen twice.   On the first occasion, November 17, 2006, appellant asked Thompson to ride with him, and Thompson went along “[o]ut of curiosity, just to see what he wanted.”   Thompson estimated they spent five to eight minutes in the house, but in that time appellant walked him through the entire house.   The only specific thing appellant pointed out to Thompson during the walk-through was a picture of Roxane.   Thompson testified he did not initially know why appellant had invited him or taken him through the house.   But on the drive back to Dallas, appellant asked Thompson if he had ever killed anyone;  Thompson replied that he had.   Appellant then asked Thompson whether he had been “scared” when he did it;  Thompson said he had not.   Then appellant drove Thompson back to the restaurant and told Thompson to “meet me up here on the 21st,” which was four days later.

Thompson was not working on November 21, but he returned to the restaurant just before the time he was to meet appellant.   Appellant arrived, and Thompson went with him.   Appellant again drove to Allen and, on the way, asked Thompson specifically if he would kill appellant's wife.   Thompson said he would, and they agreed on a price of $20,000:  $10,00 to be paid up front and $10,000 after “the deed was done.”  (Thompson testified that at this point he never intended to kill Roxane;  his plan was to take the up-front money and “run.”)   Appellant explained as they drove what he wanted Thompson to do:  “put the car in south Dallas and the body, the baby and the lady, in east Dallas.”   Thompson said he was instructed to contact appellant when this was done, referring to the car as the “chariot,” and the bodies as the “trash.”   When they arrived at appellant's home, appellant let Thompson through the gate and told him to hide in the back yard until appellant honked his horn twice (to indicate he was leaving with Roxane) and then to go in a side bedroom door.   Appellant gave Thompson gloves, blankets, and a belt;  he told Thompson he didn't want any blood in the house.   Then appellant told Thompson to cut Roxane's body in half and to put half of the body in south Dallas and half of it in east Dallas.

Thompson testified that he heard the two-honk signal and entered the house.   He had not been paid the up-front money agreed upon, and he had decided to “get” appellant by telling Roxane what appellant had planned.   Thompson waited several hours in the house before he heard Roxane come home.   While he was waiting, appellant called him from Love Field and left a voice-mail message that was recorded by Thompson.   The message stated that “[t]he chicken” had “left the coop,” and that after “she” made a stop at work for an hour, she would return.   Appellant instructed Thompson to “be patient” and to “wait there,” and he told Thompson “no one else will be coming in and out.”

When Roxane did return home, Thompson told her that appellant wanted Thompson to kill her because appellant believed the child Roxane was carrying was not his child.   Thompson told Roxane to call the police and to get away from appellant.   Roxane ran to a neighbor's house and had the neighbor make the 911 call.   Thompson waited and told his story to the police.

Subsequently, under the direction of the Allen police, Thompson called appellant in New Mexico;  the call was recorded.   The conversation begins with Thompson telling appellant “I did it.”   Then almost immediately this exchange took place:

Thompson:  You know that door that you let me in?

Appellant:  Yeah.

Thompson Okay. I come back out the same door.   I didn't go out the garage.

Thompson told him he had done what appellant asked him to do and wanted his money.   Purportedly using a code he had explained to the police before the call, Thompson told appellant “the chariot is in south Dallas and the trash is over there in east Dallas.”   Although much of appellant's side of the conversation is inaudible, when Thompson tells him about the “chariot” and the “trash,” appellant responds “okay.”   When Thompson says he needs “my money,” appellant responds “[a]ll right.”

Corroboration of the Solicitee's Testimony

As for corroboration of Thompson's testimony, the record includes appellant's own words, recorded when appellant called Thompson from the Love Field pay phone after Roxane dropped him off there on November 21.   The message—acknowledged to be from appellant—told Thompson to be patient and to stay and wait for a female, who has gone to work but will “be there,” i.e., at appellant's house.   Appellant assured Thompson that no one else would be “in and out.” 3  And, in fact, no one else came in or out of the house except Roxane.

The record also includes a recording of the telephone call Thompson made from the Allen police station to appellant.   In that call, the State contends, appellant corroborated at least two points from Thompson's testimony:  (1) that appellant let him into the house, and (2) that the two men had devised a code (using the terms “chariot” and “trash”) 4 for Thompson to report back to appellant when he had accomplished the task for which he was hired.

The record further includes a telephone call between appellant and Roxane that was recorded while appellant was in jail.   The majority of the lengthy conversation involved the couple's personal relationship.   But in the course of that conversation, appellant undertook to reassure Roxane that he had not discussed their personal life with Thompson.   Appellant told her that he never told Thompson her name or discussed their marital problems with him.   Appellant said he told Thompson she would be at work, and he instructed Thompson just to pick up the car and leave.5

The record includes evidence from sources other than appellant himself as corroboration of Thompson's testimony.   For example, bank records established that appellant withdrew $2500 from the bank a few days before Thompson alleges appellant attempted to give him $2500 of the promised payment.   Thompson was wearing a pair of appellant's gloves and holding appellant's belt when Roxane arrived home.   Telephone records prove approximately twenty-five telephone calls between the two men during November 2006, and surveillance photos show appellant and Thompson together at the restaurant at the times Thompson testified they were together.   The mere fact they were together shortly before the crime is not sufficient on its own to corroborate Thompson's testimony.   See Paulus, 633 S.W.2d at 846.   However, their presence together may be sufficient when coupled with other circumstances.   See id.

Moreover the evidence does not support appellant's explanation for his connection with Thompson.   Appellant contends he had hired Thompson to steal Roxane's car as part of an insurance scam, and appellant used the opportunity to break into appellant's house and rob him.   But there is no evidence to support this theory of events.   The police searched appellant's house after Thompson was arrested and found no evidence of a burglary, i.e. no evidence of forced entry and no evidence of property either stolen or being prepared to be moved.   Thompson had no burglary tools on his person.   Indeed, the police strip searched Thompson and found no stolen property.   Given the absence of any evidence of burglary, the fact that Thompson remained in the house for several hours adds weight to his testimony that he was actually waiting for Roxane.

Finally, the record contains evidence of appellant's motive to solicit the murders of his wife and unborn child.   Appellant was having significant financial difficulties.   Roxane's life was insured for more than $400,000, and appellant was her sole beneficiary.   Moreover, appellant was seriously involved with another woman, Natalia Sinatora.   Sinatora testified to an affair between she and appellant that lasted more than a year.   Appellant repeatedly assured Sinatora that he was single, and by the Fall of 2006, she and appellant had planned their future together.6  Appellant told her he wanted to sell his home in Allen and get a place in Dallas so he could be closer to her while they were engaged;  they shopped for that new home together with the understanding that she would live there with him one day.   When Sinatora came upon a picture of appellant's son, he told her it was his “godson,” purportedly his cousin's child, whom appellant planned to adopt in the future.   Appellant discussed the three of them living together as a family.7  The State introduced photographs of appellant and Sinatora on a weekend trip to San Antonio, at a Halloween costume party, and at a birthday party appellant gave for Sinatora just four days before he let Thompson into his home.   Sinatora testified that, by that time, appellant was spending three to four nights a week at her home with her.   Although evidence of appellant's motive is insufficient standing alone to corroborate Thompson's testimony, it may be considered in connection with other evidence that links appellant to the crime.   See id.

We conclude ample evidence connects appellant to the offense of capital solicitation, including admissions by appellant that he let Thompson into the house, phone calls, pictures, attempted payments, and motive.   We conclude further that appellant's own words in the recorded Love Field message—instructing Thompson to be patient and stay, that she would be there—strongly corroborate his specific intent that Thompson carry out the murder of Roxane.

Appellant argues that Thompson did not even know Roxane was pregnant until he saw her on November 21, so he could not have believed he was being solicited to murder her unborn child.   But appellant was required to have the specific intent to solicit the murder of the unborn child.   There is no question appellant knew his wife was eight months pregnant.   Thus, the evidence that corroborates solicitation of Roxane's murder also corroborates solicitation of the unborn child's murder.   We conclude that jurors could reasonably infer from all of this evidence that appellant intended the murder of Roxane to cause the unborn child's death as well.   See Estrada v. State, 313 S.W.3d 274, 304–05 (Tex.Crim.App.2010).

We overrule appellant's first issue.

Jury Charge Issues

In two separate issues, appellant challenges the charge given to the jury.   In his second issue, appellant contends the trial court erred by failing to include a corroboration instruction in the charge's application paragraph.   In his fifth issue, appellant argues the court erroneously included an instruction in the charge concerning the law of parties.   When an appellant alleges charge error, we examine the charge as a whole and we evaluate the relationship between the abstract parts of the charge and those parts that apply the abstract law to the facts of the case.  Caldwell v. State, 971 S.W.2d 663, 666 (Tex.App.—Dallas 1998, pet. ref'd).   That relationship is central to both charge issues raised in this appeal.

Corroboration Instructions

Appellant argues the instruction concerning the necessity of corroboration, which is found in the abstract portions of both charges, should have been incorporated into the application paragraphs of both charges as well.   Appellant did not object to the absence of a corroboration instruction in the application paragraphs.   Thus, if there is error, he must establish egregious harm from that error.  Ngo v. State, 175 S.W.3d 738, 743–44 (Tex.Crim.App.2005).

The trial court gave the following instruction in both charges:

A person may not be convicted for criminal solicitation 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 defendant's intent that the other person act on the solicitation.

The definitions and instructions given in the abstract paragraphs serve as a glossary for jurors as they work through the application paragraph of the charge.  Caldwell, 971 S.W.2d at 666.   In this instance, the instruction serves a particular but limited purpose:  it informs jurors that they cannot use the solicitee's testimony unless there is also evidence from other sources connecting the defendant to the crime.   See Herron v. State, 86 S.W.3d 621, 632 (Tex.Crim.App.2002).   Thus, the Court of Criminal Appeals has held that it may be harmless error to give no corroboration instruction at all, so long as the corroborating evidence is not “so unconvincing in fact as to render the State's overall case for conviction clearly and significantly less persuasive.”  Id. (quoting Saunders, 817 S.W.2d at 692).   In appellant's case, the jury's “glossary” included an appropriate instruction concerning the need for corroboration of Thompson's testimony.   The State itself explained the corroboration requirement in closing arguments, and the prosecutor spent a great deal of his time outlining evidence that corroborated Thompson's testimony.   We conclude that, even if it was error not to incorporate the corroboration instruction into the two application paragraphs, there was no egregious harm to appellant given the substantial amount of corroborating evidence in this case.   See id.   We overrule appellant's second issue.

Party Instructions

The abstract portion of each of the trial court's charges contains a two-paragraph instruction on the law of parties that essentially tracks sections 7.01(a) and 7.02(a)(2) of the Texas Penal Code.8

Appellant correctly argues that the State's theory of the case was not that appellant was responsible as a party to the criminal solicitation;  the State contended appellant was the actor, and he solicited Thompson.   The instruction given would have been appropriate had Thompson followed through on appellant's request and killed appellant's wife and unborn child.   That scenario would have made appellant responsible for the murders as a party because he solicited them.   See Tex. Penal Code § 7.02(a)(2).   But the instruction was not consistent with the indictment or proof in this case.

However, the party instruction was not incorporated into the application paragraph.  “When an abstract charge is erroneously given on a theory of law, without specific application to the facts of the case, the overruling of an objection to the abstract charge is not error.”  Hughes v. State, 897 S.W.2d 285, 297 (Tex.Crim.App.1994).   Because the party theory was not included within the application paragraph, the jury was not authorized to convict appellant on that theory.   See id.   The trial court did not err in overruling appellant's objection.   We overrule appellant's fifth issue.

Sixth Amendment Issues

In his third issue, appellant complains of a series of rulings made by the trial court that, he contends, violated his Sixth Amendment right to confront and cross-examine Thompson.   The rulings stemmed from Thompson's exercise of his Fifth Amendment privilege not to incriminate himself.   Thompson invoked the Fifth Amendment on cross-examination, after he had testified on direct that he had killed two people.   The trial court's ultimate ruling allowed cross-examination on the events Thompson had addressed on direct, but limited cross-examination on any other violent acts.   After being held in contempt, Thompson agreed to answer questions as the trial court directed.   Appellant contends the trial court erred in limiting his cross-examination of Thompson and, alternatively, in refusing to strike Thompson's direct testimony in its entirety.   Appellant also finds fault with his trial counsel on this issue because, once questioning was allowed on the limited subjects opened on direct, counsel did not question Thompson on those issues.

Initially, appellant cannot fairly complain concerning any area of inquiry that his counsel did not pursue.   However, we conclude further that questions concerning details of Thompson's prior violent acts, if any, were collateral to his testimony in this case.   Appellant argues the information was important to address because it would either support or undermine the State's theory that appellant had hired Thompson to commit murder.   But getting to the truth concerning details of Thompson's past acts would not have served either of those ends.   Appellant's decision to hire Thompson depended on Thompson's reputation, not on truthful details of his past.   A trial judge possesses wide latitude to impose reasonable limits on cross-examination that raises concerns about confusion of the issues by addressing matters that are only marginally relevant.  Irby v. State, 327 S.W.3d 138, 145 (Tex.Crim.App.2010).   The constitutional right to cross-examine does not include a right to question a witness “in whatever way, and to whatever extent, the defense might wish.”   Id. We conclude the trial court's limitations on cross-examination were appropriate and did not prevent appellant from confronting his accuser on any relevant matter.   We further conclude the trial court did not err in refusing to strike Thompson's relevant testimony on direct.   See Fountain v. United States, 384 F.2d 624, 628 (5th Cir.1967) (invoking privilege as to collateral matters does not require striking of direct testimony).

We overrule appellant's third issue.

Ineffective Assistance of Counsel

In his fourth issue, appellant contends that he received ineffective assistance of counsel due to his lawyer's failure (a) to cross-examine Thompson, as the trial court permitted, concerning his past violent acts and (b) to request a corroboration instruction in the jury charges' application paragraphs.   We examine ineffective assistance of counsel claims under the standard set out in Strickland v. Washington, 466 U.S. 668 (1984) and adopted by Texas in Hernandez v. State, 726 S.W.2d 53, 56–57 (Tex.Crim.App.1986).   Appellant's burden is to show by a preponderance of the evidence that trial counsel's performance was deficient in that it fell below the prevailing professional norms, and but for the deficiency, there is a reasonable probability the result of the proceeding would have been different.   See Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App.1999).   We examine the totality of counsel's representation to determine whether appellant received effective assistance, but we do not judge counsel's strategic decisions in hindsight;  rather, we strongly presume counsel's competence.   Id. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.   Id.

Although appellant filed a motion for new trial in this case, his motion did not allege he received ineffective assistance of counsel at trial.   Thus, counsel was not given an opportunity to explain his actions or trial strategy.   Therefore, as was the case in Thompson, the record provides no discussion of trial counsel's purported errors.   It contains no discernible explanation of the motivation behind counsel's decision not to cross-examine Thompson on the two killings he had admitted to or the decision not to object to the jury charge.   Nor does it contain any discussion of counsel's trial strategy.   Because the record is silent regarding any explanation for counsel's actions, we cannot conclude appellant has met his burden to overcome the strong presumption of reasonable assistance.   See Freeman v. State, 125 S.W.3d 505, 506 (Tex.Crim.App.2003) (“The record in this case is insufficient to support the conclusion [that appellant received ineffective assistance of counsel] because appellant did not develop a record in the trial court for the purpose of establishing this claim.”);  Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994) (appellate court is not required to indulge in speculation concerning counsel's decision-making processes or to imagine reasons why counsel acted or failed to act in particular manner).

We overrule appellant's fourth issue.

Errors in Judgments

In his sixth issue, appellant claims the judgment in each case incorrectly reflects a conviction of a capital felony offense under section 19.03(a)(3) of the penal code when he was actually convicted of criminal solicitation under section 15.03.   The State agrees.   Solicitation of capital murder is a felony of the first degree.   See Tex. Penal Code § 15.03(d)(1) (criminal solicitation is “a felony of the first degree if the offense solicited is a capital offense.”).   We have the authority to modify an incorrect judgment when we have the necessary data and information to do so.  Tex.R.App. P. 43.2(b);  Bigley v. State, 865 S.W.2d 26, 27–28 (Tex.Crim.App.1993).   Accordingly, we modify the judgments in trial court cause number 219–83353–06 and in cause number 219–83354–06 to indicate:

the “Degree of Offense” is First Degree Felony, and

the “Statute for Offense” is Section 15.03(a) Penal Code.

We sustain appellant's sixth issue.

Conclusion

As modified, we affirm the trial court's judgments.

KERRY P. FITZGERALD

JUSTICE

Do Not Publish

Tex.R.App. P. 47

080347f.u05

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

ALBERT JACKSON STERLING II, Appellant

No. 05–08–00347–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 219 th Judicial District Court of Collin County, Texas.  (Tr.Ct.No.219–83353–06).

Opinion delivered by Justice FitzGerald, Justices Moseley and Richter participating.

Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:

the “Degree of Offense” is First Degree Felony, and

the “Statute for Offense” is Section 15.03(a) Penal Code.

As modified, the judgment is AFFIRMED.

Judgment entered March 27, 2012.

/Kerry P. FitzGerald/

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

ALBERT JACKSON STERLING II, Appellant

No. 05–08–00348–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 219 th Judicial District Court of Collin County, Texas.  (Tr.Ct.No.219–83354–06).

Opinion delivered by Justice FitzGerald, Justices Moseley and Richter participating.

Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:

the “Degree of Offense” is First Degree Felony, and

the “Statute for Offense” is Section 15.03(a) Penal Code.

As modified, the judgment is AFFIRMED.

Judgment entered March 27, 2012.

/Kerry P. FitzGerald/

KERRY P. FITZGERALD

JUSTICE

FOOTNOTES

1.  FN1. In appellant's brief, he spells his wife's first name “Roxanne.”   The State's brief and the reporter's record spell her name “Roxane.”   We will follow the spelling in the record.

2.  FN2. This statutory corroboration requirement is analogous to that found in article 38.14 of the code of criminal procedure for corroboration of accomplice testimony.  Saunders v. State, 572 S.W.2d 944, 954–55 (Tex.Crim.App. [Panel Op.] 1978).   The accomplice-testimony statute provides:A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed;  and the corroboration is not sufficient if it merely shows the commission of the offense.Tex.Code Crim. Proc. Ann. Art. 38.14 (West 2005).   Courts have frequently applied accomplice-corroboration law in solicitation cases, and it is not unusual for courts to refer to a solicitee as an accomplice.

3.  FN3. Thompson testified that someone did enter and quickly leave the house about fifteen minutes after appellant and Roxane left;  Thompson assumed it was one of them returning for something.   After the time of appellant's Love Field message, no one entered the house except Roxane.

4.  FN4. We note the code word “trash” is cryptic and not susceptible to a clear meaning absent Thompson's explanation.

5.  FN5. This quote provided the basis for appellant's argument that he had hired Thompson to steal Roxane's car as an insurance scam.

6.  FN6. Over the course of the year's involvement, circumstances would cause Sinatora to question appellant's relationship with Roxane.   He told her Roxane was an ex-fiancee, and he invented an aunt and cousins who purportedly lived with him in the Allen house.   Appellant explained some absences from Sinatora by telling her he was a Navy Seal, that he worked for the CIA, and that he had to leave on “missions.”

7.  FN7. The State correctly points out in its brief that appellant did not discuss adopting an infant in this future he and Sinatora planned together.

8.  FN8. Those sections state:[a] person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both,Tex. Penal Code § 7.01(a), and[a] person is criminally responsible for an offense committed by the conduct of another if:  acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person commit the offense.Id. § 7.02(a)(2).

KERRY P. FITZGERALD JUSTICE

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