RAKEEM LEVON RHODES, APPELLANT v. THE STATE OF TEXAS, APPELLEE
Rakeem Levon Rhodes appeals his conviction for murder. Appellant raises four issues challenging the sufficiency of the evidence and the admissibility of certain evidence. We affirm.
Appellant was charged by indictment with capital murder. He pleaded “not guilty,” and the matter proceeded to a jury trial.
At trial, the evidence showed that late in the evening of June 12, 2013, Appellant and A.N.1 walked to the home of Albert Hodge. A.N. stayed behind while Appellant approached the door. Appellant knocked on the door, paused, and knocked again. When Hodge opened the door, Appellant pointed a gun at his chest and demanded money. Hodge refused to give Appellant any money, and instead started hitting Appellant with a pipe. Appellant fired the gun at Hodge about six times. He then took the money and keys from Hodge's pockets, unsuccessfully attempted to steal his car, and ran away. Hodge died at the hospital within hours of the shooting.
Ultimately, the jury found Appellant “not guilty” of capital murder, but “guilty” of murder. The trial court assessed his punishment at imprisonment for life. This appeal followed.
ADMISSIBILITY OF EVIDENCE
In his first, second, and third issues, Appellant contends that the trial court erred in admitting into evidence (1) lineup photographs and related testimony, (2) cell phone records and related testimony, and (3) certain impeachment evidence.
Standard of Review
Generally, we review a trial court's decision to admit evidence under an abuse of discretion standard. See Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005). We must uphold the trial court's ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002). We will not reverse a trial court's ruling admitting evidence unless that ruling falls outside the zone of reasonable disagreement. See Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001).
We review nonconstitutional error to determine whether it affected the defendant's substantial rights. TEX. R. APP. P. 44.2(b); Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001). An error affects a substantial right if it had a substantial and injurious effect or influence on the verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (nonconstitutional error that does not affect substantial rights must be disregarded), TEX. R. APP. P. 44.2(b).
Julian Parks testified that at the time of the murder, he lived with his grandparents in Hodge's neighborhood. That night, he was sitting outside his home in his car when he heard a tap on the car. He stepped out of the car to see what made the noise and saw two males, a shorter one and a taller one.2 He warned them to be careful walking near his house so late because his grandfather was losing his mind and might shoot them. The individuals walked away and Parks stopped paying attention to them. Moments later, he heard gunshots. Parks saw the taller individual standing in the distance. He heard one more gunshot and then saw the man run away. Parks later identified Appellant from a photographic lineup as the tall man he saw that night.
At trial, Appellant objected to the admission of evidence related to the photographic lineup because (1) the out of court identification was hearsay, (2) the out of court identification was uncertain, (3) the prejudice outweighs the probative value of the evidence, (4) the men in three of the photographs had different hairstyles from Appellant, rendering the procedure suggestive, and (5) the men in two of the photographs were people with whom Parks was familiar, rendering the procedure suggestive. On appeal, Appellant argues that the trial court erred by overruling his objection because Parks was (1) familiar with three people in the lineup, rendering the procedure suggestive, and (2) uncertain in his identification of Appellant. We disagree.
A pre-trial identification procedure may be so suggestive and conducive to mistaken identification that subsequent use of that identification evidence at trial would deny the accused due process of law. Barley v. State, 906 S.W.2d 27, 32-33 (Tex. Crim. App. 1995). In determining whether a particular pretrial identification procedure amounted to a denial of due process, we determine whether (1) the procedure was impermissibly suggestive, and if so, (2) the suggestiveness gave rise to a substantial likelihood of irreparable misidentification. Nunez-Marquez v. State, 501 S.W.3d 226, 235 (Tex. App.—Houston [1st Dist.] 2016, pet. ref'd.).
A defendant bears the burden of establishing by clear and convincing evidence that the pretrial identification procedure was impermissibly suggestive. Burkett v. State, 127 S.W.3d 83, 86 (Tex. App.—Houston [1st Dist.] 2003, pet. ref'd.). Suggestiveness may result from the manner in which the procedure is conducted, such as when the police point out the suspect or suggest that a suspect is included in the lineup. Barley, 906 S.W.2d at 33. It may also result from the lineup itself if the suspect is the only person closely resembling the witness's pre-procedure description. Id.
Whether a pretrial identification procedure was impermissibly suggestive is a mixed question of law and fact that does not turn on an evaluation of credibility and demeanor; therefore, we apply a de novo standard of review. Gilmore v. State, 397 S.W.3d 226, 234 (Tex. App.—Fort Worth 2012, pet. ref'd.) (citing Gamboa v. State, 296 S.W.3d 574, 581–82 (Tex. Crim. App. 2009)). In determining whether the photographic identification procedure was so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification, we consider the totality of the circumstances. Gamboa, 296 S.W.3d at 581-82. The factors to be considered include the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of the witness's prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. Neil v. Biggers, 409 U. S. 188, 199, 93 S. Ct. 375, 382, 34 L. Ed. 2d 401 (1972).
In this case, Parks testified that he gave a statement to the police on the night of the murder. Five days later, he went to the police station and was given six envelopes containing photographs of different men. Parks testified that a detective asked him, “[T]o the best of your recollection, are any of these people somebody you saw that night?” The detective gave him the envelopes containing the photographs one at a time. Parks said, “I guess at that point in time the first photo really resembled the taller guy that I seen that night.” None of the men in the remaining photographs looked like anyone he saw that night.
Parks further testified that he knew “a couple” of the men in the lineup because they were from his hometown.3 He was thus able to automatically exclude them. After looking at all of the photographs, Parks picked and signed the first one.
Appellant has not met his burden of showing by clear and convincing evidence that the procedure here was impermissibly suggestive. See Burkett, 127 S.W.3d at 86. That Parks knew two or three of the six men in the lineup is certainly suggestive of the fact that none of those men was the criminal, but it is not suggestive of the fact that Appellant was the criminal as opposed to the remaining two or three men in the lineup. Each of the six photographs shows a young, fit African American man taking a picture of himself in a mirror. Nothing in the record shows that the police knew Parks was familiar with any of the men, so there is no indication the procedure was purposely suggestive. For these reasons, we hold that the identification procedure, while somewhat suggestive, was not impermissibly so. See Herrera v. State, 682 S.W.2d 313, 318 (Tex. Crim. App. 1984) (identification procedure using only one photograph, though suggestive, is not impermissible per se).
Furthermore, even assuming that the procedure was impermissibly suggestive, the totality of the circumstances does not indicate it was so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification. See Gamboa, 296 S.W.3d at 581–82. First, Parks had the opportunity to view the two individuals when he exited his car to confront them moments before the murder. See Biggers, 409 U. S. at 199, 93 S. Ct. at 382. He said that it was dark, but they were close, and he looked “right in [the taller man's] eyes.” Parks also testified that he saw the two individuals a couple of times previously in his girlfriend's neighborhood.
Second, Parks testified that although he was unaware at the time he confronted the individuals that a crime was soon to occur, he was “cautious of something going on at [his] grandmother's house at 11:30 at night.” This testimony tends to show that he likely paid a high degree of attention to the individuals he confronted. See id.
Regarding Parks's level of certainty at the time of the lineup, he testified that the man in the first photo looked “very familiar,”4 but he was not one hundred percent certain the man was the same man he saw at the scene. See id. He could not see the man's hairstyle at the scene because the man wore a hoodie. However, the nose of the man in the photograph “looked familiar,” and “the eyes were very familiar.” The State asked Parks, “Do you remember telling the officer [on the day of the lineup] that you were certain, but you were scared because you had a man's life in your hands?” Parks responded as follows:
Right. Right. Which means that, you know, somebody could be put behind bars—somebody has already—you know, that I know has already been killed, you know, they were murdered. And then you've got a guy sitting here that's been accused of it, or whatnot. You know, like I said, three years into trial—if they asked me before three years, I might be a little bit more certain that that was the guy, but I'm not—you know, I'm not 100 percent certain now.
Appellant correctly notes that Parks did not identify him in court. However, at the time of trial, over three years had passed since the murder occurred. When reviewing the certainty of a witness's identification of a suspect in a lineup, the relevant time period is the time of the lineup. See id.
Finally, the timing of the photographic lineup in this case does not indicate a risk of misidentification. The length of time between the offense and the time Parks made the identification was five days. Five days is not so great a period of time to dull a witness's memory. Thompson v. State, 480 S.W.2d 624, 627–28 (Tex. Crim. App. 1972).
Based on the totality of the circumstances, we conclude that the photographic identification procedure was not so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. See Gamboa, 296 S.W.3d at 581–82. Accordingly, we overrule Appellant's first issue.
Cell Phone Records
At trial, the evidence showed that the police received information the day after the murder that led them to A.N. They obtained A.N.'s cell phone and called Detective Jamie Jinkins to retrieve the data from it.
Detective Jinkins testified that he specializes in computer forensics in addition to his detective caseload. His training includes extracting cell phone data and rendering it presentable for use in court. A.N. told Jinkins that he had Appellant's phone number in his phone and showed him a number listed as “nawfside Keem.” Jinkins performed an extraction of the phone's data, and the State offered the extracted data on a DVD as evidence.
Before the trial court admitted the DVD, Appellant took Detective Jinkins on voir dire outside the presence of the jury. On voir dire, Jinkins testified that the extraction showed contacts between A.N.'s phone and Appellant's phone number, but there was no way to know for sure that Appellant was in possession of his phone at those times. Appellant objected to admission of the extraction DVD on grounds that the predicate was insufficient to establish a link to him. The trial court overruled the objection, granted Appellant a running objection, and admitted the evidence.
Detective Jinkins proceeded to testify that calls were made from A.N.'s phone to Appellant's phone on June 12 at 1:09 a.m. and 2:58 a.m., and on June 13 at 2:58 a.m., 4:28 a.m., and 6:22 a.m. Other calls were made from Appellant's phone to A.N.'s phone on June 12 at 2:12 a.m., 2:59 a.m., and 7:29 p.m., and on June 13 at 4:34 a.m. and 5:21 a.m. On cross-examination, Jinkins told the jury that the data extraction process does not reveal who is actually using the phone.
Subsequently, Senior Inspector Michael Nagle with the United States Marshal Service testified that he served a court order on Verizon Wireless for Appellant's cell phone records and received a USB drive containing the records. Lisa Upton of the Texas Department of Public Safety's Telephone Analysis Unit testified that, based on those records, she produced maps showing the location of Appellant's cell phone on the night of the murder. The maps show that the phone was in the general location of the murder at the time of the murder, and that it traveled to Nacogdoches shortly thereafter.
On appeal, Appellant contends that the trial court erred in admitting the cell phone records and related testimony into evidence because the records were not properly authenticated.5 Whether to admit evidence is a preliminary question to be decided by the trial court. TEX. R. EVID. 104(a); Tienda v. State, 358 S.W.3d 633, 637–38 (Tex. Crim. App. 2012). A bedrock condition of admissibility of evidence is its relevance to an issue in the case. Tienda, 358 S.W.3d at 638. Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence, and the fact is of consequence in determining the action. TEX. R. EVID. 401. Evidence has no relevance if it is not authentically what its proponent claims it to be. Tienda, 358 S.W.3d at 638. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what its proponent claims. See TEX. R. EVID. 901(a).
The issue of authentication—that the proffered evidence is what the proponent claims it to be—arises when the relevancy of any evidence depends upon its identity, source, or connection with a particular person, place, thing, or event. Campbell v. State, 382 S.W.3d 545, 548–49 (Tex. App.—Austin 2012, no pet.). In a jury trial, the preliminary question for the trial court to decide is simply whether the proponent of the evidence supplied facts that are sufficient to support a reasonable jury determination that the evidence he has proffered is authentic. Tienda, 358 S.W.3d at 638. The ultimate question of whether the evidence is what the proponent claims becomes a question for the jury. Id.
Appellate review of a trial court's ruling on a preliminary question of admissibility is deferential, and the standard is abuse of discretion. Id. If the trial court's ruling that a jury could reasonably find proffered evidence authentic is at least “within the zone of reasonable disagreement,” the reviewing court should not interfere. Id. (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh'g)).
Appellant contends that the cell phone evidence is not relevant because the State failed to sufficiently connect him to the actual use of the phone. Evidence that a cell phone number is associated with a particular person, standing alone, might be too tenuous to establish that person's identity as the user of the phone at a particular time. See Butler v. State, 459 S.W.3d 595, 601 (Tex. Crim. App. 2015). But the user's identity may be established by other authenticating evidence, either direct or circumstantial. See id. at 602.
In this case, other direct and circumstantial evidence supports a reasonable jury finding that Appellant was using the phone during the relevant time period. A.N. testified that Appellant called him on the day of the murder, and that he called Appellant the day after the murder. Further, A.N. testified that he was with Appellant in the vicinity of the murder that night. Moreover, Parks testified that he chose Appellant's photograph from a lineup as someone who looked very similar to a man he saw near the murder scene that night. Finally, fourteen-year-old Z.D. testified that he knows Appellant and saw him coming out of the woods near the murder scene that night. We conclude the trial court's implicit ruling that the jury could reasonably find the proffered evidence authentic is at least “within the zone of reasonable disagreement.” See Tienda, 358 S.W.3d at 638. Accordingly, we overrule Appellant's second issue.
Lufkin Police Detective Lance Standridge, the lead detective in this case, testified that in May 2014, he contacted an inmate at the Angelina County Jail named Larry Mitchell after Mitchell told authorities he wished to speak with an officer about the case. Mitchell told Standridge in a videotaped interview that he had known Appellant for some time and cut his hair on occasion. Shortly after the murder, while getting his hair cut, Appellant confessed to Mitchell that he killed Hodge.
When the State called Mitchell to testify at trial, he repeatedly stated that he did not want to answer questions about the case. After being instructed to answer, Mitchell denied telling Detective Standridge about Appellant's confession. When the State offered the videotape as impeachment evidence, Appellant objected to its admission on grounds that (1) its prejudicial value greatly outweighs its probative value in violation of Texas Rule of Evidence 403, (2) the State failed to establish the proper predicate for impeachment, (3) the videotape contains hearsay statements by Standridge, and (4) Appellant was denied the right to confront and cross-examine Mitchell. The trial court then allowed the State to play only those portions of Mitchell's statement that were inconsistent with his testimony after giving the jury the following limiting instruction:
This video is being played for impeachment purposes only. It is being offered to show inconsistent statements were made by the witness. Statements made by the witness are not being offered for the truth.
On appeal, Appellant argues that the trial court erred by admitting the videotaped statements because (1) they are improperly prejudicial, (2) they were not properly authenticated in accordance with Texas Rule of Evidence 901, (3) Appellant was denied the right to confront Mitchell, and (4) the statements were not corroborated in accordance with Texas Code of Criminal Procedure Article 38.075. We overrule Appellant's issue with respect to his second and fourth arguments because they were not preserved for appeal by a timely, specific objection in the trial court. See TEX. R. APP. P. 33.1(a).
Nor do we grant relief based on Appellant's assertion that Mitchell's videotaped statements are improperly prejudicial. At trial, Appellant objected under Rule 403 and argued that the prejudicial value of the evidence was extremely high because the jury would be inclined—despite a limiting instruction—to consider the statements for their truth. He further argued that the probative value was weak because Mitchell's testimony was inconsequential and his credibility therefore was not a major issue.
Any party, including the party that called the witness, may attack a witness's credibility. TEX. R. EVID. 607. One permissible way of attacking a witness's credibility is through impeachment by prior inconsistent statements. See TEX. R. EVID. 613(a). However, a trial court may exclude impeachment evidence if its probative value is substantially outweighed by a danger of unfair prejudice. See TEX. R. EVID. 403. Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. Hayes v. State, 85 S.W.3d 809, 815 (Tex. Crim. App. 2002).
Appellant does not offer any reason why the jury would have been inclined—despite a limiting instruction—to consider Mitchell's statements for their truth. We generally presume, although the presumption is rebuttable, that a jury follows the trial court's instructions in the manner they are presented. Rose v. State, 752 S.W.2d 529, 554 (Tex. Crim. App. 1987). Moreover, the theory of attack by prior inconsistent statements is based on the notion that talking one way on the stand and another way previously is blowing hot and cold, and therefore raises a doubt as to truthfulness of both statements. Del Carmen Hernandez v. State, 273 S.W.3d 685, 689 (Tex. Crim. App. 2008). The jury here could have decided that Mitchell's inconsistent statements demonstrate that he was not a credible witness, and therefore that none of his statements could be believed. See id. We conclude that Mitchell's recorded statements were properly admitted as impeachment evidence over Appellant's Rule 403 objection.
Furthermore, even if the trial court erred in admitting Mitchell's recorded statements, the error is harmless. See TEX. R. APP. P. 44.2(b). Overwhelming evidence of guilt is a relevant factor in any Rule 44.2(b) analysis. Werner v. State, 412 S.W.3d 542, 551 (Tex. Crim. App. 2013). Here, in addition to other direct and circumstantial evidence of Appellant's guilt, there is evidence that Appellant confessed his guilt not only to Mitchell, but also to his mother's boyfriend, Kenneth Boyd. Boyd testified that on the night of the murder, Appellant told him that he “messed up” and shot Hodge. Later that night, Appellant's mother gave Boyd a gun. Boyd hid the gun on his family's property. He later led the police to the gun, which testing revealed was the murder weapon. Considering the strong evidence corroborating Boyd's testimony, in addition to all of the other evidence of Appellant's guilt, evidence that Appellant confessed to Mitchell likely impacted the jurors' deliberations only marginally, if at all. See id.
Finally, we do not grant relief based on Appellant's argument that he was denied the right to confront Mitchell. The Sixth Amendment to the Constitution of the United States guarantees the right of the accused to be confronted with the witnesses against him. A primary interest secured by the Confrontation Clause is the right of cross-examination. Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim. App. 2000). The record here shows that Appellant not only had the opportunity to confront Mitchell, but that he actually cross-examined both Mitchell and Detective Standridge. Therefore, the trial court did not err by overruling Appellant's objection regarding his right to confront the witness. Accordingly, we overrule Appellant's third issue.
In his fourth issue, Appellant contends that the evidence is legally insufficient to support a finding of his identity as the murderer because (1) certain witnesses gave conflicting testimony, (2) certain witnesses lack credibility, (3) no physical evidence connects him with the murder, and (4) two witnesses were accomplices whose testimony was not sufficiently corroborated.
Standard of Review and Applicable Law
In Texas, the Jackson v. Virginia standard is the only standard that a reviewing court should 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. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). Under the Jackson standard, the relevant question is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact would have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). The responsibility of the trier of fact is to fairly resolve conflicts in the testimony, to weight the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Id. The jury is the exclusive judge of the credibility of witnesses and the weight to be given their testimony. Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000). Likewise, reconciliation of conflicts in the evidence is within the exclusive province of the jury. Id. Because the jury is the sole judge of a witness's credibility, and the weight to be given the testimony, it may choose to believe some testimony and disbelieve other testimony. Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008).
To satisfy the elements of murder as alleged in the indictment, the State was required to prove that Appellant intentionally or knowingly caused Hodge's death. See TEX. PENAL CODE ANN. § 19.02(b)(1) (West 2011).
We first observe that, even assuming the truth of the bases of Appellant's first three arguments—i.e., that certain witnesses gave conflicting testimony, certain witnesses lack credibility, and no physical evidence connects him with the murder—these arguments are not grounds for holding that the evidence of his identity is legally insufficient. First, it is within the exclusive province of the jury to reconcile conflicts in the evidence. Wyatt, 23 S.W.3d at 30. Second, the jury is the exclusive judge of the credibility of witnesses and the weight to be given to their testimony. Id. Finally, the jury may find guilt without physical evidence linking the accused to the crime. Bradley v. State, 359 S.W.3d 912, 917 (Tex. App.—Houston [14th Dist.] 2012, pet. ref'd). Therefore, we conclude that none of these reasons render the evidence insufficient.
Nor is the evidence insufficient for lack of corroboration of accomplice witness testimony. Appellant argues that the testimony of both A.N. and Boyd should be considered accomplice witness testimony, and that it is insufficiently corroborated under the accomplice witness rule. Article 38.14 of the Texas Code of Criminal Procedure provides that a conviction cannot be had on the testimony of an accomplice unless it is corroborated with other evidence tending to connect the defendant with the offense. TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005). An accomplice is an individual who participates with a defendant before, during or after the commission of the crime and acts with the requisite culpable mental state. Paredes v. State, 129 S.W.3d 530, 536 (Tex. Crim. App. 2004). Participation requires an affirmative act that promotes the commission of the offense with which the defendant is charged. Id.
A witness is an accomplice as a matter of law when he has been charged with the same offense or a lesser included offense, or when the evidence clearly shows that he could have been so charged. Zamora v. State, 411 S.W.3d 504, 510 (Tex. Crim. App. 2013). When a witness is an accomplice as a matter of law, the trial court instructs the jury that he is an accomplice and that his testimony must be corroborated. Id. In contrast, when the evidence as to the witness's complicity is conflicting or inconclusive, the trial court instructs the jury to decide whether he is an accomplice and apply the corroboration requirement only if it decides that he is. Id. When the jury is properly instructed to determine whether a witness is an accomplice and the jury convicts the defendant, we regard this on review as an implied finding that the witness was not an accomplice. Castillo v. State, 517 S.W.3d 363, 376 (Tex. App.—Eastland 2017, pet. ref'd).
In this case, the trial court instructed the jury to decide whether A.N. and Boyd were accomplices, and to apply the corroboration requirement if it decided that they were accomplices. Appellant argues that “their testimony should be considered as accomplice witnesses' testimony” and that it “was not corroborated in order to sustain the conviction.” We construe this as an argument that (1) the trial court should have instructed the jury that A.N. and Boyd are accomplices as a matter of law, (2) their testimony is not corroborated by other evidence tending to connect Appellant with the murder, and (3) without their testimony the evidence is insufficient to support Appellant's conviction. We do not reach the question of whether A.N.'s and Boyd's testimony was sufficiently corroborated because we conclude the trial court did not err by failing to instruct the jury that A.N. and Boyd are accomplices as a matter of law.
First, we find no evidence in the record that A.N. performed any affirmative act to promote the commission of the murder. See Paredes, 129 S.W.3d at 536. A.N. testified that he met Appellant a short distance from Hodge's residence and walked there with him to purchase marijuana. Appellant told A.N. to wait while he went to the door because Hodge would not sell marijuana to someone so young. A.N. waited by the stop sign. He saw Appellant knock, wait a minute or two, and knock again. Then Hodge opened the door, and Appellant shot him. A.N. immediately ran to a friend's house. Prior to the shooting, A.N. did not know that Appellant had a gun. Thus, A.N.'s testimony shows both that he did nothing to promote the murder's commission and he did not even know that Appellant planned to commit it.
Nor does the testimony of the other witnesses show that A.N. performed any affirmative act to promote the commission of the murder. To the contrary, the evidence shows that Appellant, a tall man dressed in black with a red bandanna, committed the murder while A.N., a short male wearing a black hoodie and khaki shorts, simply walked to the scene with Appellant and left when the shooting started.
Ja'Bryant Davis testified that he dropped Appellant and A.N. off at a carwash near Hodge's neighborhood. Appellant was wearing a black shirt and black pants.
Parks testified that he saw a tall male and a short male by his house on Cain Street.6 The tall male wore black pants, a black shirt, gloves, and a red bandanna around his neck. The short male wore a black shirt and khaki shorts. After they walked away, Parks stopped paying attention to them until he heard gunshots. He heard several shots, looked up, saw the tall male, heard one more shot, and then saw the tall male run away.
Tanya Pate testified that on the night of the murder, she was sitting on the couch with Hodge when they heard a knock at the door. Hodge asked who it was. Someone responded, but they could not hear what he said. When he knocked a second time, Hodge grabbed a “pole” and told Pate to go into the kitchen. When Hodge opened the door, Pate heard someone say, “where is my money, old man? I know you got my money.” She saw a red laser dot on Hodge's chest and then heard a gunshot. Pate went and hid in the kitchen. She heard the sounds of fighting and eventually quiet. Pate looked through a crack by the kitchen door and saw someone leaning over Hodge. The man told Hodge, “you should have listened the first time, old man,” and then he shot Hodge six more times. The shooter wore all black with something red on his neck.
Henry White testified that he was walking to the corner of Weaver and Culverhouse to visit some friends when he heard a gunshot. He saw a short male run through the bushes. White asked his friends where the shot came from, and they said from Hodge's residence. He ran to Hodge's residence and heard arguing. A tall man said, “Give me your money,” and Hodge replied, “I ain't got no money ․ I ain't giving you nothing.” White saw the man reach for Hodge's pocket. Hodge pulled the man's hoodie down and began hitting him with a “stick.” With each blow, the man fired his gun at Hodge. The man took Hodge's keys and tried to start Hodge's car. White went to check on Hodge. The man then chased after White and fired at him once.
Bridgette Moore testified that her grandmother owns a home near Hodge's residence. On the night of the murder, Moore was at the home with two other adults and about fifteen children. They were outside in the yard talking and laughing when they heard a gunshot. They saw a short male wearing a black hoodie and khaki shorts come from the direction of the gunfire and run into the woods. When they saw the short male, they continued to hear gunshots. The short male was not the one shooting. Moore's cousin, Adelrica Daniel, testified similarly.
Accordingly, the record contains no evidence that A.N. was charged with the same offense as Appellant or a lesser included offense, or that he could have been so charged. See Zamora, 411 S.W.3d at 510. His mere presence at the crime scene does not render him an accomplice. See Cocke v. State, 201 S.W.3d 744, 748 (Tex. Crim. App. 2006). Therefore, we conclude the trial court did not err by failing to instruct the jury that A.N. is an accomplice as a matter of law. See id.
Similarly, we find no evidence in the record that Boyd performed any affirmative act to promote the commission of the murder. See Paredes, 129 S.W.3d at 536. Boyd testified that he was dating Appellant's mother, Robin Griffin, at the time of the murder. Boyd left Griffin's home in Lufkin that night to be with his family in Center because he and Griffin were arguing. While Boyd was in Center, Appellant called him and said that he “fucked up.” Griffin took Appellant to Center that night, and Appellant confessed the murder to Boyd. Boyd then helped Appellant by burning the clothes he wore during the murder, hiding the murder weapon, and relocating Appellant to evade the police.
Although the evidence shows that Boyd assisted Appellant after the crime was committed, the record contains no evidence that Boyd was charged with the murder or a lesser included offense, or that he could have been so charged. See Zamora, 411 S.W.3d at 510. A witness is not an accomplice witness merely because he may have known about the offense, did not disclose it, or even concealed it. Kunkle v. State, 771 S.W.2d 435, 439 (Tex. Crim. App. 1986). Assisting a murderer after the fact in disposal of clothes and the murder weapon does not transform a witness into an accomplice witness. See Druery v. State, 225 S.W.3d 495, 500 (Tex. Crim. App. 2007). Assisting a murderer in evading arrest is also insufficient to make one an accomplice. See Guillory v. State, 877 S.W.2d 71, 74 (Tex. App.—Houston [1st Dist.] 1994, pet. ref'd). Therefore, we conclude that the trial court did not err by failing to instruct the jury that Boyd is an accomplice as a matter of law. See Zamora, 411 S.W.3d at 510.
Furthermore, even assuming that the trial court's instruction for the jury to determine whether A.N. and Boyd were accomplice witnesses as a matter of fact was proper, we construe on appeal the jury's conviction of Appellant as an implied finding that they were not accomplices. See Castillo, 517 S.W.3d at 376. Thus, the accomplice witness corroboration rule does not apply. See TEX. CODE CRIM. PROC. ANN. art. 38.14. Consequently, we conclude that even if A.N.'s and Boyd's testimony is not corroborated, the lack of corroboration does not render the evidence of Appellant's guilt insufficient.
Viewing the evidence in the light most favorable to the jury's verdict, we conclude that the jury was rationally justified in finding, beyond a reasonable doubt, that Appellant committed murder. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; see also Brooks, 323 S.W.3d at 899; TEX. PENAL CODE ANN. § 19.02(b)(1). Accordingly, we overrule Appellant's fourth issue.
Having overruled Appellant's first, second, third, and fourth issues, we affirm the trial court's judgment.
Opinion delivered May 8, 2018.
THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below be in all things affirmed, and that this decision be certified to the court below for observance.
1. Because the evidence indicates that A.N. was a juvenile at the time of these events, we use only his initials in this opinion.
2. The record shows that Appellant is 6'2” and A.N. is 5'5”.
3. On cross-examination, with the photographs in front of him, the record appears to indicate that Parks picked out three men he knows.
4. When asked what he meant by “familiar,” Parks responded, “Familiar to the guy I seen that night.”
5. In his brief, Appellant additionally cites Texas Rules of Evidence 403, 702, and 705 and related case law. To the extent that he raises any additional issues based on those authorities, we overrule them because they were not preserved for appeal by a timely, specific objection in the trial court. See TEX. R. APP. P. 33.1(a).
6. The record shows that Hodge's residence was on the corner of Weaver Avenue and Cain Street.
James T. Worthen, Chief Justice.