RICHARD NEIL MANN v. THE STATE OF TEXAS (2010)

OPINION

Opinion By Justice Morris

A jury convicted Richard Neil Mann of capital murder.   He complains on appeal that the evidence against him is factually insufficient to support the kidnapping element of the capital murder offense and the prosecutor made an improper jury argument.   Concluding appellant's issues are without merit, we affirm the trial court's judgment.

Factual Background

Some members of a local Aryan Brotherhood group kidnapped one of their members.   They suspected Anthony Clark, the deceased, was secretly a member of law enforcement.   Eventually, the men decided to kill the deceased and dispose of his body in a pond.   Appellant held the deceased's head back while another man sliced the deceased's throat.   Afterward, appellant helped move the deceased's body further into the pond so it would sink where the water was less shallow.   The deceased died either from the stabbing or the drowning or both.

One of appellant's accomplices testified against him at trial.   Jason Hankins explained that several members of their Aryan Brotherhood had begun believing the deceased was an undercover police officer because he had ruined some drug deals and been caught lying.   Hankins, a former general in the Aryan Brotherhood, said that he had initially assaulted the deceased.   Hankins punched the deceased one time, and he fell and hit his head.   Afterward, Hankins and another member of the group, Dale Jameton, tied up the deceased, who was bleeding from the head.   Jameton believed that they could not let the deceased go.   They decided to call Aryan Brotherhood captain, Courtland Edmonds, to see what he advised.   After speaking to Edmonds, they put the deceased in his Ford Explorer and drove him to Edmonds's home.   The deceased was conscious but quiet.   They had sedated him with the drug Seroquel and continued giving him 300 milligram doses of Seroquel throughout the night until he had taken nine pills.

At Edmonds's home, they saw appellant and another Aryan Brotherhood member, William Patterson.   Hankins had not met appellant before that night.   After some time, Aryan Brotherhood member Stacy Myers arrived at Edmonds's house so he could lead the group over to his house.   Myers had been given the task of finding a place to get rid of the deceased's body.   Patterson and Edmonds did not go to Myers's house, but appellant, Hankins, and Jameton followed Stacy Myers's truck in the deceased's Explorer.   Appellant brought some beer and a .22 caliber pistol with him.   William Griffith, another unranked member of the Aryan Brotherhood, was standing in the driveway when the men arrived.   He saw the deceased in the back of the vehicle, pronounced the group “crazy,” and left.

They pulled the deceased's Explorer around to a vacant lot on the side of Myers's house.   Next, they pulled him out of the truck, put him on a roll of chain link fencing, rolled the deceased up in the fencing, then rolled a tarp around the fencing.   They then tied the bundle up and weighted it with cement blocks.   After that, they laid appellant's body in the back seat of his Explorer.   Hankins, Jameton, appellant, and Myers all participated in the wrapping and transporting of the deceased.   At the time, the deceased was under sedation and was in and out of consciousness.

Myers led the group out to the pond with his truck, and Jameton drove the rest of the group in the deceased's vehicle.   As they traveled, appellant said that he was “not going to miss out on this one” because he had not participated in some previous criminal incident.   He remarked that he wanted to “earn his bones,” which meant that he wanted to shed blood or kill for the Aryan Brotherhood.

At the pond, the men unloaded the deceased from his vehicle, and rolled him down a hill to the water.   The deceased called out that he was not a cop.   Jameton replied, “Well, you should have been.”   Jameton then stabbed the deceased one time in the throat.   Next, he told appellant to hold the deceased's head and appellant complied while Jameton sliced the deceased's throat.   Then Jameton and appellant swam the body out to deeper water and let him go.   They watched as the body sank into the water.

On the way back to the vehicles, Jameton cut his finger on the knife, so the group took him to a local hospital for stitches.   Afterward, they went to Edmonds's house and the deceased's vehicle was washed out with bleach.   Approximately one week later, another member of the Aryan Brotherhood set the vehicle afire.

A paid informant for the FBI within the Aryan Brotherhood also testified for the State.   The informant had recorded a telephone conversation with appellant following the murder.   During the conversation, appellant said there were “just a few of us” who were involved in the crime.   Appellant explained to the informant that he “came in at the tail end of it, found out what was goin' on and jumped in.”   He said he thought his cohorts were “shorthanded” and he volunteered to participate so that Edmonds, a higher ranking member of the Aryan Brotherhood, would not have to be involved and could worry about other things.   Appellant said they believed the victim was an “[o]utsider” and a “[s]uspected Fed.”

Appellant testified in his own defense.   He admitted he had been a member of the Aryan Brotherhood and had joined when he was in the penitentiary.   He claimed that he had been granted “inactive status” in the group at the time of the murder.   He explained that he was friends with Courtland Evans but had no personal relationship with Hankins and did not like Jameton.   Appellant claimed that on the night of the murder, he was at Edmonds's house drinking beer when Hankins and Jameton pulled up in the deceased's vehicle.   Appellant acknowledged that he drank a lot of beer and always had an ice chest of beer in the back of his truck.   Hankins and Jameton approached Edmonds and spoke to him.   Afterward, Edmonds told him and other people in the yard to stay outside and not go in the house.   Hankins, Jameton, and Edmonds then went into the house to talk.

Approximately forty-five minutes later, Edmonds stuck his head out of the door, called out to appellant, and asked him to come in the house.   Appellant walked into the living room of the house.   Edmonds said to appellant that they knew he worked in an oil field.   Appellant claimed Edmonds told him they had a “body that needs to be disposed of” and they wanted to know if appellant knew of a location in the oil field where it could be done.   Appellant said no.   Edmonds decided they should get in touch with Stacy Myers to see if he knew of a place to dispose of the body.   Someone then called Myers on the phone.   When Myers arrived, he said he knew of a pond that was used as a dump site.

Appellant admitted he rode to Myers's house in the deceased's vehicle.   According to him, before the group left for Myers's house, Hankins looked at him and said, “[C]ome on, you're going with us.”   Appellant asserted that he had “no choice whatsoever” but to join the group because in the Aryan Brotherhood “whenever you're given an order by rank, even in an asking manner, you are to follow it without question.”   Appellant denied having a gun with him that night.

According to appellant, he believed he was going to the pond to dispose of a dead body.   He claimed he did not know that the deceased was in the vehicle until they were almost to Myers's house.   Appellant testified, “There was a flash of headlights behind the truck, or a flash of light that seemed kind of odd, caught my attention, and I turned to look back at the lights and as I did, I seen [sic] into the third row seating behind me and [the deceased] was laid in the seat, partially in the seat, partially in the floorboard.”   The deceased was not covered with anything at the time, but his arms were bound.   Appellant stated, “He appeared to be dead.   I mean [he] wasn't moving, making no noise, nothing.”

At Myers's house, Myers went inside and came out with a knife he handed to Jameton.   Then, appellant claimed, Jameton and Hankins took the deceased from the vehicle while he stood nearby.   Appellant claimed he did not help to wrap the body, but he admitted he helped untangle the wire of the chain link fence.   He stated, “․ I didn't touch anything, or [the deceased], from the point after I untangled the wire to where it could be unrolled out to the point to where he was rolled up and put into the SUV.” He denied that the deceased ever did anything during that time to make him believe he was still alive.

After Jameton and Hankins loaded the deceased back into his vehicle, the group followed Myers to the pond, stopping at a gas station on the way to put gas in the deceased's vehicle.   At that point, appellant offered to pay for Myers to fill up his truck's gas tank as well.   Afterward, they drove to the pond and opened the back door of the deceased's Explorer.   Then, according to appellant, Jameton and Hankins slid the deceased's wrapped body onto the ground.   Appellant admitted he helped get the body into the water.   He said he believed he “would have died” if he had refused to participate.

According to appellant, after the deceased was in the water, less than a minute before the stabbing, he learned for the first time that the deceased was not dead.   He was standing in the water next to the deceased's wrapped body, and Jameton made a comment about how the deceased was a “fed.”   The deceased then said he was not a fed.   According to appellant, those were the first words he heard the deceased speak all night.   Jameton told appellant to hold the deceased's head as he pulled out the knife.   Appellant admitted he then held the deceased's head as Jameton stabbed him.   Afterward, he let go of the wrapping enclosing the deceased's body, and the deceased fell into the water.   He then attempted to help Hankins and Jameton sink the body in deeper water.   Appellant claimed he did what he was told because he was in fear for his life.   He denied doing anything to help confine or kidnap the deceased in any way before his death.   He admitted that after the offense he disposed of the deceased's clothing, as Jameton told him to do.

Appellant asserted that he did not trust the informant he spoke with on the telephone.   He claimed he gave the man “just enough truth” to make him believe he was being honest but did not say too much to make the informant suspicious of him.   Appellant stated that it would not have been in his best interest to tell the informant that he did not want to participate and that he only did so because he was given orders to do so.   The morning after his phone discussion with the informant, appellant contacted the police and surrendered himself.   He admitted that in another phone conversation with the informant he said that he had an alibi and a girl who could verify he “wasn't in that area” at the time of the crime.

Appellant claimed he did not know what “to earn your bones” means within the Aryan Brotherhood.   He acknowledged that, in his version of events, his presence was not really necessary for the group to complete the capital murder.

Discussion

In his first issue, appellant claims the evidence against him is factually insufficient to support his conviction.   He specifically argues the evidence is factually insufficient to prove he intentionally or knowingly kidnapped the deceased or intended to assist in his kidnapping.   Appellant was charged with causing the deceased's death while in the course of kidnapping or attempting to kidnap him.   In a factual sufficiency review, we consider all the evidence to determine whether it is so weak that the fact finder's verdict seems clearly wrong and manifestly unjust or whether, considering conflicting evidence, the verdict, though legally sufficient, is nevertheless against the great weight and preponderance of the evidence.   See Berry v. State, 233 S.W.3d 847, 854 (Tex.Crim.App.2007).   A clearly wrong and manifestly unjust verdict shocks the conscience or clearly demonstrates bias.   See id.   In a factual sufficiency review, we may substitute our judgment for the fact finder's on the issues of the weight and credibility to be given to witness testimony only to a very limited degree.   See Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App.2006).

Here, appellant contends he could not be convicted of capital murder because his testimony establishes that he was unaware the deceased was alive until just seconds before his death.   Thus, he contends, he did not intentionally or knowingly commit kidnapping because he believed he was merely helping to transport the body of someone who was already dead and find a place to dump it.   He argues that Hankins's testimony should not be believed because, as an accomplice to the offense, he had an incentive to lie.

The jury, as fact finder in the case, was entitled to disbelieve appellant's claim that the deceased never showed any signs of life from the time appellant was made aware of his presence to the time appellant assisted in killing him.   The jury was similarly entitled to disbelieve appellant's claim that he merely stood by and observed while Jameton and Hankins moved the body and prepared it for drowning.   The entire time appellant was with the deceased, the deceased was confined and sedated and being transported against his will.   After reviewing the entire record, we conclude the evidence is factually sufficient to support appellant's conviction.   We resolve his first issue against him.

In his second issue, appellant complains of error allegedly committed during jury argument.   At guilt-innocence, the prosecutor argued the following to the jury:

Don't fall for his lies.   Don't fall for his testimony today to fool you.   Because that's what he's trying to do.

․

If you find him not guilty because you believe some of this stuff and he walks out of here, can you imagine the message you sent [sic] that when you kill someone, don't have any witnesses-

Defense counsel objected that the argument was a threat to the jury to base its verdict on what someone else might think later, rather than the law and the evidence in the case.

The prosecutor offered to rephrase, and the trial judge, who had not heard the complete argument, overruled the objection.   The prosecutor then continued,

I'm just asking you to follow the law.   I'm asking you to look at the evidence.   But in doing so use your common sense.

You see, these crimes, you all have common sense.   Crimes like this don't happen down Main Street.   The Aryan Brotherhood doesn't work that way.   They went and found trusted, loyal individuals who knew of a place to dump a body and kill him, and only those people went there.   And that's the message you need to send, that when you violate the law and we hear the evidence and the law says convict, we're going to convict.   That's what this is all about.

Proper jury argument must encompass one of the following:  (1) a summation of the evidence presented at trial, (2) a reasonable deduction drawn from that evidence, (3) an answer to the opposing counsel's argument, or (4) a plea for law enforcement.  Dooley v. State, 65 S.W.3d 840, 843 (Tex.App.-Dallas 2002, pet. ref'd).   The purpose of jury argument is to facilitate the jury's proper analysis of the evidence presented at trial.  Harris v. State, 122 S.W.3d 871, 883 (Tex.App.-Fort Worth 2003, pet. ref'd).

Appellant complains that the prosecutor in his case improperly referred to the demands or expectations of the community for a conviction.   A prosecutor does not make an improper appeal to the community's desires simply by referring to the community during argument.   Rivera v. State, 82 S.W.3d 64, 69 (Tex.App.-San Antonio 2002, pet. ref'd).   Although the State may not tell the jury that the community expects a particular verdict, it may, however, argue the impact of the verdict on the community.  Nelson v. State, 881 S.W.2d 97, 102 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd).

Viewing the State's argument as a whole, it is clear the prosecutor was asking the jury to consider that a verdict of not guilty in appellant's case would send a message that criminals in the community could avoid being convicted merely by ensuring that only they and their accomplices witness their crimes.   This argument was a proper plea for law enforcement.   See id.   We resolve appellant's second issue against him.

We affirm the trial court's judgment.

JOSEPH B. MORRIS JUSTICE