MICHAEL EDWIN LEWIS, Appellant v. THE STATE OF TEXAS, Appellee

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AFFIRM; Opinion Filed December 7, 2006.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-05-00512-CR
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MICHAEL EDWIN LEWIS, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 283rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F04-26492-T
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OPINION
Before Justices Bridges, FitzGerald, and Lang
Opinion By Justice Lang
        Appellant Michael Edwin Lewis was convicted of the offense of capital murder and sentenced to life imprisonment. In three issues, Lewis asserts: (1) the evidence is insufficient to corroborate accomplice testimony as required by art. 38.14 of the Texas Code of Criminal Procedure, (2) the trial court erred in excluding evidence of Lewis' prior emotional and behavioral examinations, and (3) the evidence is factually insufficient to sustain Lewis' conviction for capital murder. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
 
        Michael Rush, Michael Lewis, and Randall Scott Campbell lived as roommates in an apartment in Garland. On May 13, 2004, Campbell was killed in the apartment. His body was discovered by the Garland Police at the bottom of a steep embankment near a creek. An autopsy revealed multiple blunt force trauma injuries to the victim's head and chest and the body was badly burned and covered in melted plastic. The medical examiner also found ligature abrasion marks on his neck, consistent with strangulation.
        Lewis and Rush were arrested and taken into custody. At the police station, Lewis gave a voluntary written statement regarding the events of the murder, including a statement that he helped “pick up Campbell and place him on Rush's back.” The police also videotaped interviews with Lewis, Rush, and Rush's girlfriend, Teri Boyer. Boyer stated, at that time, that she did not see Lewis strangle Campbell or act violently toward him.
        Lewis pleaded not guilty to the charge of capital murder for intentionally causing the death of Campbell during the course of committing the offense of robbery. Rush and Boyer were also charged with capital murder. Rush pleaded guilty to the charge. At the time of Lewis' trial, Boyer was indicted for the offense, but released on bond. A jury trial was conducted on March 28, 2005 through April 1, 2005.
        At trial, Boyer testified that Lewis picked her up and brought her to the apartment he shared with Rush and Campbell. Boyer told Rush that she was “uncomfortable” with how Campbell was looking at her. She remembered Rush asking Lewis to wake up Campbell. Before Campbell came into the living room, Rush grabbed a cable and stuck it between the sofa cushions. When Campbell came into the living room, Rush asked Campbell about money that Rush believed Campbell had stolen. Boyer told Campbell he was making her “uncomfortable” whenever he would “stare” at her. Boyer remembered Rush told Campbell, “I told you not to look at my girl like that.” Then, Rush knocked a cigarette lighter out of Campbell's hand and they began fighting. Boyer left the room, but she heard Rush and Lewis asking Campbell where he had put his checkbook. Rush asked Boyer to go to Campbell's car and retrieve Campbell's checkbook. After she brought the checkbook into the apartment, she left the living room where Rush and Campbell were fighting. A short time later, Lewis called Boyer back into the living room because Rush wanted her to check Campbell's pulse. When she entered the room, Rush was standing over Campbell. Campbell was on his back with newspaper over his face. Boyer said she felt Campbell's wrist, but was “unable to tell if there was a heartbeat or not.” Then, Lewis stated that he heard Campbell make a noise. Lewis and Rush grabbed either end of the cable that was wrapped around Campbell's neck and began to pull. Feeling ill from observing this scene, Boyer left the living room and went into the back bedroom.
        Next, Rush entered the back bedroom and asked Boyer to get a suitcase. When she came out of the bedroom and entered the living room, she saw Lewis and Rush put Campbell's body in a trash bag. Rush asked Boyer to get some tape. After retrieving the tape, Boyer and Lewis wrapped the tape around Campbell's body. Rush and Lewis put Campbell's body in the suitcase. Rush asked Boyer to go into the kitchen and retrieve two coffee cans. Lewis pulled his van around to the apartment door, and he and Rush loaded the suitcase in the back of the van. Then, Lewis and Rush dropped Boyer off at her home.
        Lewis testified at trial in his own defense. According to Lewis, on the night of the murder, Rush asked Lewis to pick up his girlfriend, Boyer. When Lewis and Boyer arrived at the apartment, Rush and a few of his friends were smoking methamphetamine. Later that evening, Rush's friends left and Campbell went to bed. Rush asked Lewis to wake up Campbell. Rush claimed that Campbell had stolen $100 from Rush and that Campbell had been “looking strangely” at Boyer. Campbell came into the living room and denied having taken any money. Campbell told Rush he did not intend to “stare” at Boyer or make her “uncomfortable.” Then, Rush jumped up, knocked a cigarette out of Campbell's hands, and began fighting with Campbell. Boyer ran out of the room. Lewis claimed he remained seated on the couch while Rush and Campbell were fighting. Rush overpowered Campbell and knocked him to the ground. According to Lewis, Rush yelled for Boyer and Rush sent her out to Campbell's car to retrieve Campbell's checkbook. Rush then told Campbell to sign two blank checks. Rush continued to beat and kick Campbell and eventually wrapped a cable around Campbell's neck. Lewis recalls that Rush held Campbell, strangled him for fifteen to twenty minutes, and directed Lewis to check Campbell's pulse. Campbell did not have a pulse and at that point Lewis believed he was dead.
        Lewis claimed he did not break up the fight between Campbell and Rush because he did not want to draw attention to himself. Also, Rush threatened Lewis saying, “Don't go anywhere,” while pointing a fire poker at Lewis. Lewis said that during the course of the beating, he simply sat in the living room and did not move. He denied Boyer's statements that he participated in strangling Campbell. Also, he claimed he could not remember placing Campbell's body on Rush's back, although that fact was included in his previous written statement to the police.
        Lewis maintained that he did not kill or help kill Campbell. However, he admits helping dispose of the body. Specifically, he admitted that he went to get plastic bags, helped tape and cover Campbell's body with the plastic bags, put the body in a suitcase and, then, put the suitcase into the back of the van. After dropping Boyer off at her home, Lewis acknowledges he and Rush went to a gas station and filled two empty coffee cans with gasoline. Next, they drove to a location near a steep embankment. There, according to Lewis, Rush requested him to take Campbell's body out of the suitcase, and pick up Campbell's legs to help Rush carry the body. Lewis returned to the van to wait for Rush. When Rush returned to the van, they went to their apartment. Lewis helped Rush vacuum and clean. The following morning Lewis and Rush went to cash the checks signed by Campbell the night before. Lewis filled out “the payment and pay to part” of the checks. One check was made out to Rush and one to Lewis. Finally, Lewis stated that Rush threatened to kill his mother and his daughter if he told anyone what happened.
        At trial, Katrina Turnispeed testified she had a conversation with Rush and Lewis a week prior to the murder of Campbell. Turnispeed's husband worked with Rush at a restaurant. She admitted that she and her husband frequently smoked drugs with Rush and Lewis at their apartment. According to Turnispeed, Rush and Lewis informed her they were going to have Campbell sign over checks and the title to his car. When she asked Rush and Lewis how they planned to accomplish that, Rush said, “Fear, we are going to scare him,” and Lewis nodded his head in agreement. Lewis denied this conversation.
        The jury found Lewis guilty and assessed punishment at life imprisonment. On April 1, 2005, the trial court overruled Lewis' motion for new trial. He now brings this appeal.
II. ACCOMPLICE WITNESS TESTIMONY
 
        In his first issue, Lewis argues the accomplice testimony of Boyer is uncorroborated and insufficient to connect Lewis to the murder of Campbell. The State responds, non-accomplice testimony, including Lewis' own statements, is sufficient to connect Lewis to the offense and to corroborate Boyer's accomplice testimony.
        A. Standard of Review and Applicable Law
        Under Article 38.14, a conviction cannot stand on accomplice testimony unless it is corroborated by other evidence tending to connect the defendant with the offense. The evidence is insufficient if it merely shows the commission of the offense. Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005); Colella v. State, 915 S.W.2d 834, 838-39 (Tex. Crim. App. 1995); see also Davis v. State, 68 S.W.3d 273, 281-82 (Tex. App.-Dallas 2002, pet. ref'd). This rule reflects a legislative determination that accomplice testimony implicating another person should be viewed with caution because accomplices often have incentives to lie, in order to avoid punishment or shift blame to another person. Blake v. State, 971 S.W.2d 451, 454 (Tex. Crim. App. 1998); Hardie v. State, 79 S.W.3d 625 (Tex. App.-Waco 2002, pet. ref'd). An accomplice is one who participated with the defendant before, during, or after the commission of a crime. McFarland v. State, 928 S.W.2d 482, 514 (Tex. Crim. App. 1996); Kunkle v. State, 771 S.W.2d 435, 439 (Tex. Crim. App. 1986). A person is an accomplice if there is sufficient evidence connecting him to the criminal offense as a blameworthy participant. Blake, 971 S.W.2d at 455.
        Accomplice witness corroboration is not reviewed under standards of either legal or factual insufficiency. Cathey v. State, 992 S.W.2d 460, 462-63 (Tex. Crim. App. 1999). Rather, a statutorily imposed sufficiency review requires that there be evidence “tending to connect the defendant with the offense.” Id. at 463; Lee v. State, 29 S.W.3d 570, 577 (Tex. App.-Dallas 2000, no pet.); Article 38.14. In conducting a sufficiency review under the accomplice witness corroboration rule, a reviewing court must eliminate the accomplice testimony from consideration and examine the remaining portions of the record to see if there is other evidence that tends to connect the accused with the commission of the crime. Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001); Gosch v. State, 829 S.W.2d 775, 777 (Tex. Crim. App. 1991). The non- accomplice evidence alone does not have to establish the defendant's guilt beyond a reasonable
doubt, nor must it directly link him to the commission of the offense. Lee, 29 S.W.3d at 577. There must be only some non-accomplice evidence tending to connect the defendant to the crime. Id.
        B. Application of the Law to the Facts
        Lewis argues his own testimony and Turnispeed's testimony are insufficient to corroborate and support his conviction. Lewis argues Turnispeed's testimony does not connect him to the murder of Campbell, but only provides remote evidence that Rush wanted to get money from Campbell and that Lewis nodded his head in agreement. However, Lewis concedes his own testimony placed him at the scene of the murder. Mere presence at the scene of an offense is not by itself enough, but it is an important factor in determining corroboration. Jackson v. State, 745 S.W.2d 4, 13 (Tex. Crim. App. 1988). Lewis argues his presence did not establish his participation in the crime and does not tend to connect him to the offense. We disagree.
        There must be only some non-accomplice evidence tending to connect the defendant to the crime. Lee, 29 S.W.3d at 577; Article 38.14. Lewis' own admissions connect him to the offense: (1) he was present during the murder, (2) he retrieved plastic bags and helped to tape them around Campbell's body, (3) he helped Rush put Campbell's body into a suitcase and then put the suitcase in the van, (4) he helped dispose of the body near a creekbed, (5) he cleaned the apartment, (6) he filled out blank checks signed by Campbell, and (7) he went to the bank with Rush to cash the checks the day after the murder. Moreover, Turnispeed's testimony connected Lewis to the murder. At trial, Turnispeed testified when she asked Rush and Lewis how they planned to get money and the title to Campbell's car, Rush said, “Fear, we are going to scare him.” Campbell nodded his head in agreement.
        In applying this standard, we conclude the record reflects there is sufficient evidence to corroborate the testimony of the accomplice witness, Boyer, which tends to connect Lewis to Campbell's murder and meet the corroboration requirement of Article 38.14. Accordingly, we resolve Lewis' first issue against him.
III. EXCLUSION OF EVIDENCE
 
        In his second issue, Lewis argues the trial court erred in not allowing into evidence the testimony of his prior emotional and behavioral examinations and records from Buckner Children's Home and Garland ISD. The State responds, the trial court properly excluded evidence of Lewis' childhood abuse and his examinations because the evidence was not relevant.
        A. Standard of Review and Applicable Law
        We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001); Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996). Thus, absent an abuse of discretion, we do not disturb a trial court's ruling on the admissibility of evidence. Coffin v. State, 885 S.W.2d 140, 149 (Tex. Crim. App. 1994). As long as the trial court's ruling is within the zone of reasonable disagreement, an appellate court will not disturb that ruling. Feldman v. State, 71 S.W.3d 738, 755 (Tex. Crim. App. 2002).
        Error may not be predicated upon a ruling which excludes evidence unless a substantial right of a party is affected and the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked. Tex. R. Evid. 103(a)(2); Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App. 1998). Texas Rule of Evidence 103(b) states the offering party shall be permitted “as soon as practicable, but before the court's charge is read to the jury,” to make its offer of proof. Tex. R. Evid. 103(b).
        B. Application of the Law to the Facts
        Prior to the presentation of the defense and outside the presence of the jury, the trial court heard and ruled on testimony and exhibits offered by the defense. The proffered expert testimony and records related to Lewis' stay at Buckner Children's Home for nine months during the years 1992-93 and while Lewis attended Garland ISD in 1998. Specifically, the testimony and records included observations, assessments and interviews from two experts regarding Lewis' emotional and behavioral condition. The evidence was offered to support his theory of non-participation in Campbell's murder.         The first expert to testify was Michelle Apple, a licensed social worker and Lewis' therapist at Buckner. Apple stated that Lewis was the victim of childhood physical and sexual abuse. She testified that victims of sexual abuse carry the trauma with them their entire life and often become paralyzed if faced with traumatic events. Apple admitted that she had not spoken to appellant since he left Buckner in 1993 and that she had no knowledge of his state of mind at the time of the offense.
        Next, Lewis offered testimony from Teresa Ogle, Lewis' school psychologist at Garland ISD. Ogle testified that she examined and diagnosed Lewis with an anxiety disorder in 1998. She said, “it would not surprise” her if Lewis might emotionally shut down or withdraw if faced with a physical threat of force. She also stated that she had no further communication with Lewis since her diagnosis in 1998 and that she did not know his state of mind at the time of the offense.
        The State objected to the proffered testimony and exhibits arguing the evidence was irrelevant because neither Apple, nor Ogle could give an opinion on Lewis' state of mind at the time of the offense because they had not communicated with Lewis in years. The trial court sustained the objection and excluded the testimony of both Apple and Ogle and the records.
        Lewis argues the testimony of Apple and Ogle supported his defensive theory that he did not participate in the crime and that he was emotionally disengaged during Campbell's murder. However, the record reflects neither Apple, nor Ogle had knowledge of Lewis' emotional or behavioral condition at the time of his admitted action. Further, neither could testify about whether Lewis continued to suffer from an anxiety disorder or the trauma of his childhood abuse at the time of the offense. See Werner v. State, 711 S.W.2d 639, 645 (Tex. Crim. App. 1986)(holding expert's testimony regarding effect of Holocaust Survivor's Syndrome on Werner properly excluded because syndrome not shown to affect state of mind at the time of the offense) . Determinations of relevance are within the province of the trial court and an appellate court should not substitute its perception of relevance for that of the trial court. Green, 934 S.W.2d at 101. We conclude the trial court did not abuse its discretion. Accordingly, Lewis' second issue is resolved against him.
IV. FACTUAL SUFFICIENCY
 
        In his third issue, Lewis argues the evidence is factually insufficient to sustain his conviction for capital murder. He asserts Boyer's testimony was “riddled with inconsistencies.” Therefore, Lewis argues, the verdict is against the great weight of the evidence presented at trial.
        A. Standard of Review and Applicable Law
        A review of the evidence for factual sufficiency is guided by three principles. Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Lee v. State, 186 S.W.3d 649, 655 (Tex. App.-Dallas 2006, pet. ref'd). First, deference is given to the findings of the fact finder; the evidence will not be reweighed. Cain, 958 S.W.2d at 407; Lee, 186 S.W.3d at 655. Second, a finding of factual insufficiency must be supported by a detailed explanation because the fact finder can accept witness testimony or reject it. Cain, 958 S.W.2d at 407; Lee, 186 S.W.3d at 655. However, the existence of contrary evidence is not enough to support a finding of factual insufficiency. See Goodman v. State, 66 S.W.3d 283, 287 (Tex. Crim. App. 2001); Lee, 186 S.W.3d at 655. Third, all of the evidence is viewed in a neutral light. See Cain, 958 S.W.2d at 408; Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002); Johnson v. State, 23 S.W.3d 1,11 (Tex. Crim. App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996); Lee, 186 S.W.3d at 655.
        The evidence weighed by the fact finder tending to prove the existence of the fact in dispute is compared to the evidence tending to disprove that fact. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997); Lee, 186 S.W.3d at 655. This standard is applied to both circumstantial and direct evidence. King v. State, 29 S.W.3d 556, 565 (Tex. Crim. App. 2000); Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999); Lee, 186 S.W.3d at 655; Smith v. State, 895 S.W.2d 449, 452 (Tex. App.-Dallas 1995, pet. ref'd). Reversal for factual insufficiency occurs only when there is some objective basis in the record that shows the great weight and preponderance of the evidence contradict the jury's verdict. See Watson v. State, No. PD-469-05, 2006 WL 2956272, *10 (Tex. Crim. App. Oct. 18, 2006); see also Vasquez, 67 S.W.3d at 236; Johnson, 23 S.W.3d at 11; Clewis, 922 S.W.2d at 129.
        B. Application of the Law to the Facts
        Lewis argues the verdict is contrary to the overwhelming weight of the evidence because of inconsistencies in Boyer's testimony. Lewis offers several examples of inconsistencies. At trial, Boyer testified that she saw Lewis assist Rush by pulling the cable to strangle Campbell, but in an earlier videotaped statement to the police, Boyer stated she did not see Lewis strangle Campbell or act violently toward him. In addition, Lewis suggests that Boyer changed her testimony to put herself in a better position with the police. However, we note, even though Lewis denied pulling the cable and killing Campbell, he admitted his own involvement in the murder. Lewis testified: (1) he was present during the murder, (2) he retrieved plastic bags and helped tape them around Campbell's body, (3) he helped Rush put Campbell's body into a suitcase and then put the suitcase in the van, (4) he helped dispose of the body near a creekbed, (5) he cleaned the apartment, (6) he filled out blank checks signed by Campbell, and (7) he went to the bank with Rush to cash the checks the day after the murder.
        Questions concerning the credibility of witnesses and the weight to be given to their testimony are to be resolved by the trier of fact. Cain, 958 S.W.2d at 408. The jury was in a position to evaluate the credibility of the witnesses and an appellate court must defer to that evaluation unless the record clearly reveals that a different result is appropriate. Johnson, 23 S.W.3d at 8. Mere inconsistencies do not “clearly reveal” that a different result is appropriate.         Reviewing all the evidence under the applicable standard, we cannot conclude there is some objective basis in the record that shows the great weight and preponderance of the evidence contradicts the jury's verdict. See Watson, No. PD-469-05, 2006 WL 2956272, at *10; see also Vasquez, 67 S.W.3d at 236; Johnson, 23 S.W.3d at 11; Clewis, 922 S.W.2d at 129. Accordingly, Lewis's third issue is resolved against him.
V. CONCLUSION
                
        The judgment of the trial court is affirmed.
                
                                                          
                                                          DOUGLAS S. LANG
                                                          JUSTICE
 
 
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Tex. R. App. P. 47
050512f.u05
 
 
 

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