Kevin Lynz Cross a/k/a Kevin Lindsay Cross v. The State of Texas--Appeal from 29th District Court of Palo Pinto County

11th Court of Appeals

Eastland, Texas

Opinion

Kevin Lynz Cross a/k/a Kevin Lindsay Cross

Appellant

Vs. Nos. 11-02-00352-CR & 11-02-00353-CR B Appeals from Palo Pinto County

State of Texas

Appellee

In Cause No. 11-02-00352-CR, the jury convicted appellant of the capital murder of Emma London, and the trial court assessed punishment at confinement for life. In Cause No. 11-02-00353-CR, the jury convicted appellant of the capital murder of Francis Hodges, and the trial court assessed punishment at confinement for life. We affirm.

Appellant brings identical complaints in each appeal. In his first point of error, appellant contends that the evidence is legally insufficient to support his convictions. In order to determine if the evidence is legally sufficient, we must review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000). In his third point of error, appellant complains that the trial court erred in including an instruction on the law of parties in the jury charge.

Eighty-year-old Emma London and her 75-year-old sister, Francis Hodges, were found murdered in the house that they shared on June 30, 1983. Jerry White, the current Chief of Police in Mineral Wells, testified at trial that, at the time of the offense, he was a detective for the Mineral Wells Police Department. Chief White was dispatched to the residence concerning a homicide between 9:00 and 9:15 a.m. Chief White stated that, when he and the other officers entered the residence, it was in disarray and that the two victims were found lying on the kitchen floor. Chief White said that appellant became a suspect during the initial investigation. Palo Pinto County Sheriff Larry Watson testified at trial that the actual investigation of the case lasted about six months. Sheriff Watson stated that the Ainvestigation [had] been off and on over the last 19 years.@

Clyde L. Evans contacted the Palo Pinto County District Attorney=s office in 2000, claiming that he had information concerning the 1983 murders. Evans testified at trial that, in 1983, he came in contact with appellant a few months after the murders. Evans met appellant at the park in relation to a Adrug deal.@ Evans stated that appellant began telling him about the murders of two elderly ladies. Appellant told Evans that Athere was blood splattered everywhere@ in the house. Evans told appellant that he did not want to know about the murders. Appellant then started crying, but Evans again told him that he Adidn=t want to hear nothing else about the murders.@

Evans testified that, in the summer of 1984, he again came into contact with appellant. Appellant went to Evans=s home and wanted to trade two rings for drugs. Evans said that the rings were platinum with large diamonds in them. One ring had an AH@ engraved in the band. Evans gave appellant an Aeightball of methamphetamine for the rings.@ Appellant told Evans not to get rid of the rings in town and that the rings came from the murders of the two elderly ladies. Appellant told Evans that he had a lot more jewelry from the house, and Evans told appellant to bring the jewelry to him when appellant was ready to sell it.

Rosalyn Annette Berkins testified that appellant came to her house at approximately 11:30 p.m. on June 29, 1983. Berkins and appellant Adid some drugs.@ Around midnight, Gerald Taylor and Adrian Wright also came to Berkins=s house, and appellant went outside to talk to them. Berkins testified that she overheard them say that someone would have the back door open and that Athey was going to rob some ladies.@ Appellant, Taylor, and Wright left Berkins=s house around 12:30 a.m., and Berkins went to bed.

Berkins said that appellant returned to her house around 2:00 a.m. After having sexual relations with appellant, Berkins turned on the light and saw blood on the bottom of appellant=s shirt. Berkins testified that Taylor and Wright returned to her house around 3:00 a.m. and that they argued with appellant about how to get rid of some jewelry. Berkins stated that Wright had three or four Abig-sized@ rings on her finger. Berkins said that all three were acting nervous. Appellant took off the bloody shirt and put it in a bag; and he took the bag when he, Taylor, and Wright left Berkins=s house. Berkins testified that she went back to bed and that, when she got up that morning, she noticed blood on her pillowcases. Berkins took the pillowcases to her mother=s house. After she realized that the two victims had been killed, she took the pillowcases to the police station. Tests conducted on the pillowcases revealed that blood type O and blood type B positive were present on the pillowcases. The record shows that the victims both had type O blood and that appellant had B positive blood.

Tinker Haney testified at trial that she and appellant lived together for approximately eight years beginning in 1984. Haney said that in 1988 she found a bloody pillowcase, a bone, and a ring in the bottom of the closet. Haney told appellant what she had found, and the two began fighting. Haney told appellant to Ajust go ahead and kill me@ because she knew Ahe had killed those ladies.@ Haney said that appellant hit her in the head and told her that he would kill her Athe same way he had killed them.@

Raymond Travis Poole testified that he was released from prison in September 1983 and that he Amet up@ with appellant. Poole testified that appellant asked if Poole was sure he wanted to be around appellant because of the murders of the two ladies. Appellant told Poole that he, Taylor, and Curtis Mayfield were arguing because appellant had gotten Amessed out of some of the money.@ Poole said that appellant showed him some rings and asked Poole where he could get rid of them. One of the rings had AF. Hodges@ engraved in it. Poole kept the rings for a while but later returned them to appellant. Poole told appellant to pawn the ring, and appellant responded that Aif he did, they would probably throw him under the jail.@

The indictments allege that appellant caused the death of each victim by hitting the victim with a pipe and that appellant was in the course of committing or attempting to commit the offense of burglary. The charge in each case authorized the jury to convict appellant if they found that he caused the death of the victims by hitting them with a pipe while in the course of committing burglary. The charge also authorized the jury to convict appellant if it found that Taylor or Wright caused the death of the victims by hitting them in the head with a pipe while in the course of committing burglary and that appellant Aacted with intent to promote or assist the commission of the offense by...soliciting, encouraging, directing, aiding, or attempting to aid@ in the commission of the offense of capital murder. The charge also contained an issue on the use of a pipe as a deadly weapon. The jury found that appellant did not use or exhibit a deadly weapon during the commission of the offense.

Appellant argues that the trial court erred in including in each charge an instruction on the law of parties. At the charge conference, the State requested a charge on the law of parties. The trial court initially denied the request. The trial court took the matter under advisement and later determined that Athere is sufficient evidence to raise the issue of the [appellant] acting with the intent to promote or assist the commission of the offense by Gerald Taylor or Adrian Wright.@

The law of parties may be applied to a case even though no such allegation is contained in the indictment. Jackson v. State, 898 S.W.2d 896, 898 (Tex.Cr.App.1995); Barnes v. State, 62 S.W.3d 288 (Tex.App. - Austin 2001, pet=n ref=d). An instruction on the law of parties may be given to the jury whenever there is sufficient evidence to support a jury verdict that the defendant is criminally responsible under the law of parties. Ladd v. State, 3 S.W.3d 547, 564 (Tex.Cr.App.1999), cert. den=d, 529 U.S. 1070 (2000). In determining whether a defendant participated as a party in the commission of an offense, the fact finder may look to events that occurred before, during, or after the offense and may place reliance on acts showing an understanding and common design. Ransom v. State, 920 S.W.2d 288, 302 (Tex.Cr.App.), cert. den=d, 519 U.S. 1030 (1996). An agreement of the parties to act together in a common design can be shown by either direct or circumstantial evidence. Burdine v. State, 719 S.W.2d 309, 315 (Tex.Cr.App.1986), cert. den=d, 480 U.S. 940 (1987). The State must show more than mere presence to establish participation in a criminal offense. See Valdez v. State, 623 S.W.2d 317, 321 (Tex.Cr.App.1981); Barnes v. State, supra. Mere presence or even knowledge of an offense does not make one a party to the offense. See Oaks v. State, 642 S.W.2d 174, 177 (Tex.Cr.App.1982); Barnes v. State, supra. However, mere presence is a circumstance tending to prove that a person is a party to the offense and, when taken with other facts, may be sufficient to show that he was a participant. Barnes v. State, supra.

Berkins testified that she overheard appellant, Taylor, and Wright discussing a plan to Arob some ladies.@ Berkins stated that later that night appellant returned with blood on his shirt, and he, Taylor, and Wright were arguing about some jewelry and how to get rid of the jewelry. Wright had three or four large rings. There was also evidence that appellant tried to tell Evans about the murders. Appellant indicated to Evans that he had been inside of the house and that a lot of blood had splattered everywhere. Appellant later traded two rings with Evans for drugs. One of the rings had the initial AH@ inside of the band. Appellant said that the ring came from the murders of the two elderly ladies.

Appellant told Poole that Athey@ had been in trouble because of the murders of the two elderly ladies. Appellant told Poole that he was involved in the murders. Appellant said that he and Taylor were arguing about the property taken in connection with the murders. Poole recalled a discussion involving appellant and some other guys about who had killed the elderly women. Poole said that appellant never denied being involved in the murders. We find that the trial court did not err in including the charge on the law of parties. Appellant=s third point of error is overruled.

Appellant contends that, because the jury found that he did not use a deadly weapon in the commission of the offense, the jury convicted him under the law of parties. Appellant contends that the evidence is legally insufficient to show that he encouraged or directed Taylor and Wright to commit the offense of capital murder. Viewing all of the evidence in the light most favorable to the verdict and having found the evidence supported a charge on the law of parties, we find that the evidence is legally sufficient to support appellant=s convictions. Appellant=s first point is overruled.

In his second point, appellant complains that the trial court erred in denying his motion for continuance. On August 30, 2002, the trial court granted appellant=s first motion for continuance and set the case for trial on November 4, 2002. On October 30, 2002, appellant filed his second motion for continuance. In his second motion for continuance, appellant stated that Texas Ranger Billy Peterson, one of the original investigators in the case, had recently suffered a heart attack and would be unable to attend the trial. Appellant requested a continuance for Aso long as is necessary for Mr. Peterson to recover and be able to testify.@ A trial court's ruling on a motion for continuance is reviewed for abuse of discretion. Janecka v. State, 937 S.W.2d 456, 468 (Tex.Cr.App.1996), cert. den=d, 522 U.S. 825 (1997); Heiselbetz v. State, 906 S.W.2d 500 (Tex.Cr.App.1995). To establish an abuse of discretion, there must be a showing that the defendant was actually prejudiced by the denial of his motion. Janecka v. State, supra.

At the hearing on appellant=s motion for continuance, the State noted that there were three investigators involved in the case and that there was no indication Texas Ranger Peterson would offer evidence that could not be provided by the other two investigators. At trial, Chief White stated that he had reviewed Texas Ranger Peterson=s report which speculated that the offense occurred between 8:30 a.m. and 12:00 p.m on June 29. Chief White could either agree or disagree with Texas Ranger Peterson=s time frame for the offense. Sheriff Watson also testified at trial that he was familiar with Texas Ranger Peterson=s report. Sheriff Watson reviewed the report at trial and stated that Texas Ranger Peterson was of the opinion that the offense occurred between 8:30 a.m. and 12:00 p.m. on June 29. Sheriff Watson stated that he was unable to agree or disagree with Texas Ranger Peterson=s opinion. Sheriff Watson later testified that he believed the offense occurred during the early morning hours of June 30. The record shows that two of the original investigators testified at trial. Both reviewed the report of Texas Ranger Peterson and noted his opinion as to the time of the offense. There is no indication Texas Ranger Peterson would have added any further details had he testified at trial. Appellant has not shown that the trial court abused its discretion in denying his second motion for continuance. Appellant=s second point is overruled.

In his fifth point, appellant argues that the trial court erred in denying his motion to dismiss. On April 10, 2002, appellant filed a motion to dismiss claiming that the State had not exercised due diligence in preparing for trial and had violated appellant=s right to a speedy trial pursuant to the United States and Texas Constitutions. The motion also stated that the State was ordered to file its notice of intent to seek the death penalty no later than January 11, 2002, and that the State had failed to file the notice of intent. The motion further claimed that the State had failed to provide discovery items as required by the trial court.

The trial court held a hearing on appellant=s motion to dismiss on April 25, 2002. On the day of the hearing, the State provided appellant with a discovery packet. The State also filed notice that it would not seek the death penalty. The State argued at the hearing that the delay in providing the discovery material was due to the fact that they were waiting on information from the Department of Public Safety Crime Lab and on some internal investigation from the sheriff=s department. The State noted that appellant was not deprived of his liberty while awaiting trial because he was in the county jail on a bench warrant from another institution.

In determining whether an accused has been denied his right to a speedy trial, a court must use a balancing test in which the conduct of both the prosecution and the defendant are weighed. Barker v. Wingo, 407 U.S. 514, 530 (1972); Dragoo v. State, 96 S.W.3d 308 (Tex.Cr.App.2003). The factors to be weighed in the balance include, but are not necessarily limited to, the length of the delay, the reason for the delay, the defendant=s assertion of his speedy trial right, and the prejudice to the defendant resulting from the delay. Barker v. Wingo, supra, Dragoo v. State, supra. No single factor is necessary or sufficient to establish a violation of the right to a speedy trial. Barker v. Wingo, supra, Dragoo v. State, supra.

The record shows that appellant was indicted for the offense on August 14, 2001, and the trial began on November 4, 2002. The cause was initially delayed as the State was awaiting information from other agencies. Appellant then filed a motion for continuance on August 15, 2002, and the cause was reset for November 4, 2002. Appellant filed another motion for continuance on October 30, 2002. Appellant was not subjected to oppressive pretrial incarceration because he would have been incarcerated at another institution. We find that the trial court did not err in denying appellant=s motion to dismiss. Appellant=s fifth point is overruled.

In his fourth point on appeal, appellant complains that the trial court erred in failing to exclude hearsay testimony. On redirect examination, the State asked Sheriff Watson if he was aware of where the victims kept their money. Appellant objected to Aanything he might have been told.@ The trial court overruled the objection Asince [appellant] opened the door by having their [the victims=] routine come in through the nephew=s report.@ Sheriff Watson went on to testify that the victims kept their money in a money belt and that the money belt was not recovered.

On cross-examination, appellant asked Sheriff Watson about information in Texas Ranger Peterson=s report. Appellant asked if Texas Ranger Peterson talked to individuals who knew the victims= routine. Sheriff Watson reviewed Texas Ranger Peterson=s report, and then appellant asked, AAnd he also indicated that he - - I believe he talked to a cousin of the victims that related basically what the routine was, right?@ Sheriff Watson answered AYes@ and said that the report indicates Ayou can set the clock by it.@ We find that any error in admitting the testimony did not have a substantial and injurious effect or influence in determining the jury=s verdict. TEX.R.APP. P. 44.2(b); King v. State, 953 S.W.2d 266, 271 (Tex.Cr.App.1997). There was evidence that appellant had jewelry belonging to the victims which allowed the jury to find that the murder had occurred while in the course of committing burglary. Appellant=s fourth point is overruled.

In his sixth point, appellant argues that the trial court erred in admitting inflammatory and prejudicial photographs. During the direct examination of the medical examiner, the State sought to introduce the autopsy photographs of the victims. Appellant objected, stating that the photographs were Aextremely gruesome@ and would be prejudicial to his case. The admissibility of photographs is within the sound discretion of the trial judge. Chamberlain v. State, 998 S.W.2d 230, 237 (Tex.Cr.App.1999), cert. den=d, 528 U.S. 1082 (2000). In determining whether the probative value of the photographs is substantially outweighed by the danger of unfair prejudice, the court may consider the number of exhibits offered, their gruesomeness, their detail, their size, whether they are in color or in black and white, whether they are close up, and whether the body depicted is clothed or naked. Hayes v. State, 85 S.W.3d 809, 815 (Tex.Cr.App. 2002); Wyatt v. State, 23 S.W.3d 18, 29 (Tex.Cr.App.2000). Autopsy photographs are generally admissible unless they depict mutilation of the victim caused by the autopsy itself. Hayes v. State, supra.

Nine autopsy photographs of each victim were admitted. The photographs depict the victims= injuries. The medical examiner referred to the photographs in describing the victims= injuries. We find that the trial court did not abuse its discretion in admitting the photographs. Hayes v. State, supra. Appellant=s sixth point is overruled.

The judgments of the trial court are affirmed.

PER CURIAM

May 22, 2003

Do not publish. See TEX.R.APP.P. 47.2(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.