Reset A A Font size: Print

Court of Appeals of Texas,Tyler.

Lionel SIMPSON, Appellant, v. The STATE of Texas, Appellee.

No. 12-03-00379-CR.

Decided: October 31, 2005

Panel consisted of WORTHEN, C.J., GRIFFITH, J., and DeVASTO, J. William M. House, Palestine, for appellant. Mark A. Calhoon, Palestine, Sue Korioth, Dallas, for appellee.


Lionel Simpson appeals his conviction for capital murder.   In three issues, Appellant contends that the trial court erred in admitting certain evidence and that the evidence was insufficient to corroborate the testimony of the accomplice witnesses.   We affirm.


After Geraldine Davidson, an eighty-three year old retired schoolteacher, was reported missing on January 26, 2000, her body was discovered in the Neches River.   Appellant's brother, Danielle Simpson, immediately became a suspect in Davidson's disappearance and murder.   On January 28, as the police searched a known drug house in an attempt to locate Danielle, they discovered Appellant.   He was taken into custody because the officers had probable cause to believe that delinquent conduct was occurring in their presence or view.   Because Appellant was a juvenile, he was taken to the juvenile detention center.   The same day, Jennifer Simpson, an accomplice, made a voluntary statement to authorities implicating Appellant in Davidson's murder.   At a detention hearing in juvenile court on January 31, the court ordered that Appellant remain detained because he was accused of committing a felony offense and/or might be dangerous to himself or others if released.   After the State petitioned the juvenile court for a discretionary transfer to adult criminal court,1 the court ordered a complete diagnostic study of Appellant.2  As a result, Mary Cox, Ph.D., conducted a psychological examination of Appellant.   Cox testified at the transfer hearing, and the examination was admitted into evidence.   The juvenile court waived its exclusive original jurisdiction as to the felony offense alleged and ordered that the case be immediately transferred to the appropriate criminal district court.3  Thereafter, Appellant was charged by indictment with the capital murder of Geraldine Davidson.   Appellant pleaded “not guilty.”

The State presented approximately twenty-seven witnesses at trial. Two were accomplice witnesses.   The first, Jennifer Simpson, testified that she pleaded guilty to Davidson's murder and was sentenced to life imprisonment.   At the time of Davidson's murder, she was married to Appellant's brother, Danielle.   Jennifer testified that, on the morning of January 26, 2000, she, Danielle, and Edward “Pete” McCoy broke into Davidson's house, while Davidson was out, in an attempt to steal money.   When Davidson returned home, Danielle asked her for money, but Davidson stated that she had none.   On Danielle's instructions, Jennifer put tape across Davidson's mouth, and Pete helped Danielle put Davidson in the trunk of Davidson's car.   The three stole forty dollars from Davidson's purse and threw the purse and the contents of her car behind an old Wal-Mart, which was located between some apartments by a field.   They also obtained and smoked some marijuana.   Jennifer testified that the three spent the next few hours traveling to various towns and places in Davidson's car.   When they returned to Palestine, they parked the vehicle and walked to their house.4  At approximately 3:00 to 3:30 p.m., they walked back to the car with Christina Walker, Pete's sister.   As Christina got in the car, she heard Davidson kick the trunk.   According to Jennifer, as they were driving back by their house, Christina asked to be dropped off.   Jennifer, Danielle, and Pete then went to the Swantz Inn to pick up Appellant.   Jennifer testified that Appellant asked Danielle if he “[did] it,” and Danielle responded “yeah.”   Then, Appellant got in the vehicle and they traveled to a Jack-in-the-Box.   Jennifer was sent inside to get food, and Appellant followed her in later, telling her to hurry.   Jennifer testified that Appellant was wearing an orange toboggan and a Green Bay Packers jacket at the time.

After getting the food, they drove to Wal-Mart where Appellant bought heavy gray tape.   Jennifer testified that Appellant and Danielle also talked about a river.   They drove the vehicle to a dead-end spot because Appellant wanted to see Davidson.   All of them got out of the vehicle, and Danielle opened the trunk.   According to Jennifer, Appellant took Davidson from the trunk and threw her “sort of roughly” on the ground.   Appellant “flipped” Davidson over, taped her hands and mouth, and then wound the tape around her head.   Once back in Davidson's car, they went to an old house where Appellant found a cinder block and put it in the trunk.   She believed Appellant began tying the cinder block to Davidson's leg.   Jennifer stated that she heard “something like [Appellant] hitting her.”   Once back in the vehicle, Appellant told them that he had hit Davidson and that “he never liked white folks anyway.”   Jennifer testified that, to her knowledge, neither she, Pete, nor Danielle had hit Davidson.

At that point, they went to the river.   Danielle backed the vehicle up to the river, and he and Appellant got out.   Jennifer pushed the brake and heard them “messing” with Davidson.   Someone told Pete to get out of the car to get a stick, and Pete got out of the car.   Jennifer believed she saw both Appellant's and Danielle's arms move as if they were throwing something.   After they left the river, they took Appellant to McDonald's and to the house of his girlfriend, Occtayvia Clewis.   Jennifer said that throughout the next two days, Danielle attempted to avoid the police and she had sporadic contact with Appellant.   She was taken to the juvenile detention center after she voluntarily agreed to make a statement.

Pete, the other accomplice witness, testified that he pleaded guilty to capital murder and was sentenced to thirteen years in the Texas Youth Commission.   Pete was Appellant's and Danielle's cousin.   Pete testified that he accompanied Danielle and Jennifer to Davidson's house to steal money.   Pete's version of Davidson's kidnapping and murder was similar to Jennifer's, although he denied helping Danielle put Davidson in the trunk of her car.   Pete testified that when they picked up Appellant near the Swantz Inn, Danielle opened the trunk and showed Davidson to other persons, including Appellant.   According to Pete, Appellant was wearing a Green Bay Packers jacket and orange toboggan.   After Appellant saw Davidson in the trunk and before he got in the car, Pete heard Appellant tell Danielle “[l]et's go kill her.”   He testified, as Jennifer had, that Appellant took Davidson out of the trunk and “slammed” her on the ground and back into the trunk after “yank[ing]” the tape around her mouth and legs.   Further, Pete testified that Appellant hit Davidson again.   Pete also heard Appellant hitting Davidson after he put the cinder block in the trunk.

Once they were at the river, Appellant told Pete to get out of the car and he did.   Pete testified that he did not comply when Appellant instructed him to get a stick.   He also testified that, once Davidson was out of the trunk, Danielle kicked her in the face and threw the cinder block into the water.   Then, Danielle and Appellant together swung Davidson and threw her in the river.   According to Pete, Davidson was moaning and kicking when she hit the water.   Danielle went to look for more money in the area where he had thrown Davidson's purse.   There he threw out the trash in the car, including the Jack-in-the-Box bag.   Danielle then took Pete home. According to Pete, he later made a voluntary statement that Danielle picked him up in a car.   In his statement, Pete said that, after traveling to another town, he asked to be taken home when he discovered that Davidson was in the trunk.   He was eventually arrested after further investigation revealed that he had not been truthful.   Pete identified a Green Bay Packers jacket in evidence as Appellant's and identified himself, Jennifer, and Appellant in the January 26 Jack-in-the-Box surveillance tape.

At the conclusion of the trial, the jury found Appellant guilty of capital murder and was sentenced by the trial court to life imprisonment.   This appeal followed.

Admissibility of Appellant's Letter

In his first issue, Appellant argues that the trial court erred in admitting a portion of a letter from Appellant to his girlfriend because the letter was not relevant.

Standard of Review and Applicable Law

 We review a trial court's ruling on admissibility under an abuse of discretion standard.  West v. State, 121 S.W.3d 95, 100 (Tex.App.-Fort Worth 2003, pet. ref'd) (citing Angleton v. State, 971 S.W.2d 65, 67 (Tex.Crim.App.1998)).   We will not reverse a trial court as long as its ruling was within the “zone of reasonable disagreement.”  Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1990) (op. on reh'g);  Reed v. State, 59 S.W.3d 278, 280 (Tex.App.-Fort Worth 2001, pet. ref'd).   Evidence is “relevant” if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.  Tex.R. Evid. 401.   In other words, evidence must satisfy two requirements to be relevant-materiality and probativeness.  Cooper v. State, 95 S.W.3d 488, 490-91 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd) (citing Miller v. State, 36 S.W.3d 503, 507 (Tex.Crim.App.2001)).   Evidence merely tending to affect the probability of the truth or falsity of a fact in issue is logically relevant.  Montgomery, 810 S.W.2d at 376.   To be relevant, the evidence need not by itself prove or disprove a particular fact.  Id. It is sufficient if the evidence provides a small nudge toward proving or disproving some fact of consequence.  Id.


 The trial court admitted into evidence the following excerpt from a letter Appellant wrote his girlfriend while in jail:

[Anyway] my court day was pretty good they just ask me stuff like was I guilty are [sic] not I said not guilty witch [sic] I am I got another court day coming up but I don't know what day but when I find out I'll let you know[.]

The excerpt was material because it was a declaration made by Appellant regarding his guilt.   His guilt or innocence is, in itself, a “fact of consequence” in determining whether he committed capital murder.   See Miller, 36 S.W.3d at 507.   The excerpt could have been read to mean that Appellant pleaded not guilty and was not guilty, or that he pleaded not guilty, but was guilty of the charged offense.   Either reading could provide the jury with a “small nudge” towards determining whether Appellant committed the charged offense, a fact of consequence.   See Montgomery, 810 S.W.2d at 376.   Therefore, the excerpt was probative.   Because the excerpt from Appellant's letter was both material and probative, it was relevant.   See Tex.R. Evid. 401.   The trial court did not abuse its discretion by admitting the letter into evidence.   Accordingly, Appellant's first issue is overruled.

Admissibility of Appellant's Statement

In his second issue, Appellant contends that the trial court erred in admitting a statement he made during a juvenile certification and competency examination.   The State argues that Appellant waived any global statutory and state constitutional objections when he failed to clearly state these objections to the trial court and obtain rulings.   Further, the State contends that Appellant's statement was not the result of a custodial interrogation because it was a volunteered, spontaneous, and unexpected answer to an innocuous question.

Applicable Law

 A juvenile court may waive its exclusive original jurisdiction and transfer a child to the appropriate district court.  Tex. Fam.Code Ann. § 54.02(a) (Vernon 2002).   Prior to the hearing to consider transfer of the child, the juvenile court shall order and obtain a complete diagnostic study, social evaluation, and full investigation of the child, his circumstances, and the circumstances of the alleged offense.  Tex. Fam.Code Ann. § 54.02(c), (d) (Vernon 2002).   The sole purpose of the examination is to provide evidence for the certification hearing.  Cantu v. State, 994 S.W.2d 721, 734 (Tex.App.-Austin 1999, pet. ref'd).   When used only for its intended purpose, the examination is not a custodial interrogation.   See id.

 Notwithstanding the neutral nature of the psychological examination, the statements a juvenile utters during the examination are not automatically removed from the reach of the Fifth Amendment.  Estelle v. Smith, 451 U.S. 454, 465, 101 S.Ct. 1866, 1874, 68 L.Ed.2d 359 (1981).   If the examination exceeds its intended purpose and becomes a source of incriminating evidence against a defendant, the examination constitutes a custodial interrogation to which Fifth Amendment protections apply.  Cantu, 994 S.W.2d at 734.   If a juvenile is not adequately informed of his Fifth Amendment rights with respect to the diagnostic examination or that his testimony during that examination would be used against him in an adjudicatory proceeding, a waiver of his rights is ineffective.  Cantu, 994 S.W.2d at 735;  see also Estelle, 451 U.S. at 469, 101 S.Ct. at 1876.

 The psychological examination, in itself, does not constitute a critical stage triggering Sixth Amendment protection.  Hidalgo v. State, 983 S.W.2d 746, 755 (Tex.Crim.App.1999).   Nor does a juvenile have a right to have counsel present during the examination. Cantu, 994 S.W.2d at 736.   However, when the psychological examination is used both as the basis of the psychologist's determination that the juvenile should be transferred and as a source of incriminating evidence introduced at trial, it serves a “dual purpose.”   See Cantu, 994 S.W.2d at 736.   In that instance, the diagnostic examination is a “critical stage” of the adversarial proceedings against a juvenile defendant warranting Sixth Amendment protection.  Cantu, 994 S.W.2d at 736-37.

Appellant's Objection and Cox's Testimony

Here, the State requested that Mary Cox, Ph.D., a psychologist, be allowed to testify at trial regarding a statement Appellant made during the court-ordered psychological examination.   The State argued that the purpose of the examination was not to elicit incriminating evidence for trial and that Appellant made a spontaneous statement.   According to the State, Cox's question was neutral and Appellant had been warned by a magistrate.   Appellant argued that he was in custody and being interrogated by Cox. He could not waive his right to counsel because he did not have counsel when Cox began the examination.   Further, Appellant contended he was not told that the diagnostic examination could be used against him at trial.   The trial court found that Cox was not the police and that the examination was a neutral hearing for the purpose of evaluating Appellant in order to determine if he should be tried as an adult.   Thus, the trial court overruled Appellant's objection.   The trial court stated that if the purpose of the examination were anything else, it would have sustained the objection.

Cox testified that she performed a psychological examination of Appellant on January 29, 2000.   Although Cox informed Appellant of the purpose of the examination, she did not advise him that she could testify against him.   At the first interview, Cox observed that Appellant was lucid, oriented, and of such intelligence that he understood what was happening.   Cox then began questioning Appellant regarding his competency.   Appellant stated that he did not know the charges against him.   Cox asked Appellant, “Well, what do they tell you you're charged with[?]”  According to Cox, Appellant said, “They say that they're going to charge me with capital murder, but they can't do that.   I know I'm going to have to do some time because I was there.   I went to the river with them, but I didn't get out of the car.   I stayed in the back seat with Pete so they can't get me for capital murder.”   After Appellant's statement, Cox resumed her questions, asking him if he knew who his attorney was and what the attorney's job would be.


 At the outset, we note that Appellant does not separately argue his state and federal constitutional claims or argue that the Texas constitutional protections differ in any significant way from the Fifth and Sixth Amendments to the United States Constitution.   To adequately brief a state constitutional issue, Appellant must proffer specific arguments and authorities supporting his contentions under the state constitution.  Moore v. State, 935 S.W.2d 124, 128 (Tex.Crim.App.1996);  Lawton v. State, 913 S.W.2d 542, 558 (Tex.Crim.App.1995).   Because Appellant failed to do so, we consider the admission of Cox's testimony solely under the federal constitution.   See Jackson v. State, 992 S.W.2d 469, 475 n. 8 (Tex.Crim.App.1999);  Johnson v. State, 853 S.W.2d 527, 533 (Tex.Crim.App.1992).

Did the trial court err?

 We first examine Cox's testimony in light of Appellant's Fifth Amendment protections.   As we noted in a previous opinion in this case, on January 28, Appellant was given two comprehensive magistrate's juvenile warnings, outside the presence of law enforcement officers, pursuant to section 51.095 of the Texas Family Code. See State v. Simpson, 105 S.W.3d 238, 239-40 (Tex.App.-Tyler 2003, no pet.);  Tex. Fam.Code Ann. § 51.095(a)(1) (Vernon 2002 & Supp.2005).   The next day, Cox conducted the diagnostic examination of Appellant during which he made the incriminating statement.   There is no indication in the record that he was warned that statements he made during the diagnostic examination could be used against him at trial.   See Simpson, 105 S.W.3d at 239-40;  Cantu, 994 S.W.2d at 734.   Additionally, Cox never informed Appellant that she could testify against him at trial using statements he made during the diagnostic examination.

The purpose of the examination was to provide evidence for the certification hearing.   However, once the examination exceeded its intended purpose and became a source of incriminating evidence against Appellant, the diagnostic examination constituted a custodial interrogation to which Fifth Amendment protections applied. See Cantu, 994 S.W.2d at 734.   Because there was no evidence that Appellant knew or reasonably should have known that his statements made during the diagnostic examination would be used against him at trial, he did not waive his Fifth Amendment rights by making the statement in question to Cox. See id. at 735.   Therefore, the admission of Cox's testimony at trial violated Appellant's Fifth Amendment privilege against self-incrimination.   See id. at 736.

 We next consider Appellant's Sixth Amendment rights.   At the time of the diagnostic examination, Appellant was not represented by counsel.   Moreover, Appellant had no right to have counsel present during the diagnostic examination.   See id.   However, this rule is restricted to cases in which the only purpose of the examination was to provide a determination of whether a juvenile should be certified as an adult.  Id. Here, the use of Cox's examination was not so limited.   Instead, her examination was also used as the basis of her testimony in the guilt/innocence phase of Appellant's trial.   As such, the examination served a “dual purpose.”   See id.   Thus, the examination was a “critical stage” of the adversarial proceedings against Appellant and warranted Sixth Amendment protections.   See id. at 736-37.   Therefore, the admission of Cox's testimony at trial also violated Appellant's Sixth Amendment right to counsel.

Was Appellant harmed by the trial court's error?

 Because the trial court's error was not “structural” and does not “def [y] analysis by harmless error standards,” it is subject to a harmless error analysis.  Mendez v. State, 138 S.W.3d 334, 339-40 (Tex.Crim.App.2004) (quoting Johnson v. United States, 520 U.S. 461, 468-69, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) and Cain v. State, 947 S.W.2d 262, 264 (Tex.Crim.App.1997)).   Thus, having found that the admission of Cox's testimony constituted constitutional error, we must reverse unless we determine beyond a reasonable doubt that the error did not contribute to the conviction. See Tex.R.App. P. 44.2(a).

In conducting our analysis, we first observe that Appellant's statement as recounted by Cox during the guilt/innocence phase simply placed Appellant in Davidson's vehicle at the river.   His mere presence at the river was not an element of the charged offense, nor a criminal act.   See Tex. Pen.Code Ann. § 19.03(a)(2) (Vernon 2003) (defining “capital murder” as an offense if a person commits murder by intentionally or knowingly causing the death of an individual and intentionally commits the murder in the course of committing or attempting to commit one or more specified offenses);  Wooden v. State, 101 S.W.3d 542, 546 (Tex.App.-Fort Worth 2003, pet. ref'd) (concluding that, standing alone, proof that an accused was present at the scene of the crime is insufficient for conviction as a party).   However, the evidence presented at trial showed that Appellant's involvement went well beyond what he admitted to Cox. In fact, the following evidence showed that Appellant was an active participant in Davidson's murder.

Pete testified that he heard Appellant tell Danielle “[l]et's go kill her.”   Jennifer testified that Appellant wrapped Davidson's head and hands with duct tape, and Pete testified that Appellant wrapped her head and legs.   They both testified that Appellant beat Davidson when he put the cinder block in the trunk.   Jennifer stated that, once at the river, she and Pete stayed in the car while Appellant and Danielle left the vehicle and “messed” with Davidson. According to Jennifer, she believed she saw Appellant's and Danielle's arms move as if they were throwing something.   Pete testified that he left the vehicle and observed Appellant and Danielle swing Davidson into the river.   According to Pete, Davidson was moaning and kicking when she was thrown in the river.

Officer Charles Floyd Lanier, Jr., an administrative captain with the Palestine Police Department, testified that Davidson was found in the Neches River with duct tape wrapped around her mouth and head, her hands behind her back with duct tape on them, and a large cinder block tied to her ankles.   Charles Parker, a latent fingerprint examiner with the Texas Department of Public Safety at the time of Davidson's death, testified that he lifted fingerprints from the exterior, center, and left side of the trunk of Davidson's vehicle.   He identified four fingerprints as Appellant's right ring finger, left middle finger, left little finger, and right thumb.   These fingerprints were found in close proximity to Danielle's fingerprints.

Dr. Jeffrey Barnard, chief medical examiner for Dallas County, Texas and director of the Southwestern Institute of Forensic Sciences, testified that Davidson's hands were duct taped behind her back, her mouth was taped with duct tape, and each ankle was wrapped with a nylon-type rope cord and wrapped together, binding her legs.   According to Barnard, Davidson suffered extensive blunt force injuries to her face, head, and body that included bruises, abrasions, and lacerations.   Barnard testified that Davidson may have drowned, smothered, or been rendered unconscious from her injuries and, thus, was unable to lift her head out of the water.   Further, Barnard stated that the environmental effects of hypothermia may have played a role in her death.   Barnard believed that Davidson was alive when she was thrown into the river and died either from hypothermia or from finally submerging into the shallow water.

Christina Walker, Pete's sister, testified that on January 26, 2000, Jennifer returned to their house and stated that they (Pete, Danielle, and Jennifer) took Davidson to the river and tied her up.   Kenosha Walker testified that she was Pete's sister and Appellant's cousin.   On January 26, Jennifer returned to their house before 9:45 p.m. Kenosha asked Jennifer what they did with the lady in the trunk. According to Kenosha, Jennifer said that they, meaning Appellant and Danielle, “killed the bitch.”

Based upon this record, we cannot conclude that Appellant was harmed by the trial court's error.   Appellant, in his interview with Cox, admitted his presence at the scene of Davidson's murder, but denied any involvement in the offense.   Other evidence confirms his presence at the scene, but also portrays him as an active participant in the murder.   Cox's testimony was unnecessary to establish Appellant's presence at the scene.   The remaining evidence overwhelmingly supports a finding that Appellant participated in Davidson's murder.   Therefore, we conclude beyond a reasonable doubt that the trial court's error in admitting Cox's testimony did not contribute to Appellant's conviction.   See Tex.R.App. P. 44.2(a).   Accordingly, Appellant's second issue is overruled.

Sufficiency of the Non-accomplice Evidence

In his third issue, Appellant argues that the evidence was insufficient to corroborate the testimony of the accomplice witnesses.

Applicable Law

 Article 38.14 of the Texas Code of Criminal Procedure states that “[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.”  Tex.Code Crim. Proc. Ann. art. 38.14 (Vernon 1979).   However, the corroboration is not sufficient if it merely shows the commission of the offense.  Id. It is not necessary that the corroborating evidence directly connect the defendant to the crime or that it be sufficient by itself to establish guilt.  Cathey v. State, 992 S.W.2d 460, 462 (Tex.Crim.App.1999).   The corroborating evidence need only tend to connect the defendant to the offense.  Id. If the combined weight of the non-accomplice evidence tends to connect the defendant to the offense, the requirement of Article 38.14 has been fulfilled.  Id. All facts, both direct and circumstantial, may be examined in ascertaining whether sufficient corroboration exists.  Gosch v. State, 829 S.W.2d 775, 777 (Tex.Crim.App.1991).   The test for sufficient corroboration is to eliminate from consideration the accomplice testimony and then examine the other inculpatory evidence to ascertain whether the remaining evidence tends to connect the defendant with the offense.  McDuff v. State, 939 S.W.2d 607, 612 (Tex.Crim.App.1997).   Moreover, the accomplice witness rule is a statutorily imposed sufficiency review and is not derived from federal or state constitutional principles that define the legal and factual sufficiency standards.  Cathey, 992 S.W.2d at 462-63.

 Even apparently insignificant incriminating circumstances may sometimes afford satisfactory evidence of corroboration.   Trevino v. State, 991 S.W.2d 849, 852 (Tex.Crim.App.1999).   The non-accomplice testimony need not directly link the accused to the commission of the offense.  Dowthitt v. State, 931 S.W.2d 244, 249 (Tex.Crim.App.1996).   Evidence that the defendant was in the company of the accomplice at or near the time or place of the offense is proper corroborating evidence.  McDuff, 939 S.W.2d at 613.   However, while the accused's mere presence in the company of the accomplice before, during, and after the commission of the offense is insufficient by itself to corroborate accomplice testimony, evidence of such presence, coupled with other suspicious circumstances, may tend to connect the accused to the offense.  Dowthitt, 931 S.W.2d at 249.   Evidence of flight can be a corroborating circumstance because it demonstrates consciousness of guilt.  Bradley v. State, 48 S.W.3d 437, 442 (Tex.App.-Waco 2001, pet. ref'd).


 In conducting our review, we eliminate from our consideration the testimony of the two accomplice witnesses, Jennifer Simpson and Edward “Pete” McCoy, and determine whether the remaining evidence and testimony tend to connect Appellant with the charged offense.   See McDuff, 939 S.W.2d at 612.   In addition to the evidence already described, Davidson's son testified that she always parked her car in the garage underneath the house, in the carport up a hill behind the house, or up the driveway.   Thus, it is unlikely that Appellant would encounter and touch the trunk of Davidson's vehicle under neutral circumstances.

In the January 26 surveillance videotape from Jack-in-the-Box, Appellant was shown entering the store in close proximity to Pete and Jennifer.   Moreover, it appeared that Appellant was wearing a Green Bay Packers jacket and orange toboggan as described by Jennifer and identified by Pete. A Jack-in-the-Box sack containing a receipt dated January 26 at 5:14 p.m., an empty straw cover, napkins, and salt containers were recovered from a wooded area off a roadway.   In this area, officers also discovered Davidson's purse and other contents of her vehicle.   Appellant's apparent presence with the other accomplices and the proximity of the Jack-in-the-Box receipt to Davidson's purse tend to link Appellant with her disappearance and murder.  Dowthitt, 931 S.W.2d at 249.   During a search for Danielle after he became a suspect in Davidson's disappearance, Appellant was found hiding under a bed in the middle bedroom of a known cocaine house.   Danielle was also discovered hiding in the house.   Evidence of Appellant's flight demonstrates a consciousness of guilt.   See Bradley, 48 S.W.3d at 442.

Occtayvia Clewis testified that, on January 26, Appellant came to her apartment around “nighttime.”   She admitted seeing Appellant in a Green Bay Packers jacket and identified the jacket in evidence as his.   She could not recall if he was wearing an orange toboggan that night.   Christina Walker testified that Jennifer told her that she, Pete, and Danielle took Davidson to the river and tied her up.   Kenosha Walker testified that Jennifer told her that Appellant and Danielle killed the woman in the trunk.   All this evidence tends to connect Appellant to the charged offense.

In summary, the non-accomplice evidence (1) places Appellant's fingerprints on Davidson's vehicle in close proximity to Danielle's fingerprints, (2) places Appellant at Jack-in-the-Box on the date of the offense at the same time as Jennifer and Pete were there, (3) suggests that he showed a consciousness of guilt when he was found hiding in a known drug house with Danielle, (4) indicates that he wore a Green Bay Packers jacket and orange toboggan, identified as his, on the day of the offense as shown in the surveillance videotape, (5) places him at the river, and (6) suggests that he tied up Davidson and helped throw her in the river, where she died.   This evidence sufficiently tends to connect Appellant to the charged offense pursuant to Article 38.14.   See Tex.Code Crim. Proc. Ann. art. 38.14;  Cathey, 992 S.W.2d at 462.   Accordingly, Appellant's third issue is overruled.


The judgment of the trial court is affirmed.


1.   Tex. Fam.Code Ann. § 54.02(a) (Vernon 2002).   The petition also alleged that Appellant committed a felony offense, i.e., the capital murder of Davidson.

2.   Tex. Fam.Code Ann. § 54.02(d) (Vernon 2002).

3.   Tex. Fam.Code Ann. § 54.02(a), (c) (Vernon 2002).

4.   Danielle, Jennifer, and Pete lived in the same house with Pete's mother and family.


Copied to clipboard