LEONARD EARL HANSON, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed May 18, 2009
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-00607-CR
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LEONARD EARL HANSON, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 363rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F07-00497-W
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OPINION
Before Chief Justice Thomas   See Footnote 1  and Justices Bridges and Richter
Opinion By Justice Richter
        On the Court's own motion, we withdraw our May 6, 2009 opinion and vacate the judgment accompanying that opinion. This is now the opinion of the Court.
        Leonard Earl Hanson was charged with the capital murder of Emeil Webb who was shot, along with two others, with a .38-caliber revolver, “execution style” during a robbery of an apartment known for drug sales. No physical evidence linked Hanson to the murder, but three accomplices named him as the shooter. Following six days of testimony, a jury convicted Hanson and the trial court assessed a mandatory life sentence. In four issues, Hanson now challenges (a) the sufficiency of the evidence supporting the conviction and corroborating the accomplice witness testimony and (b) the identification of him by a third-party. We affirm.
Background
        The bodies were found around 5:00 a.m. on January 12, 2006 by Joseph Davis, who had gone to the apartment to purchase drugs. Davis called 9-1-1 and officers responded to the scene. Based on information gathered at the scene and statements given by neighbors and the victims' families and friends, Dallas police detective Dennis Mumford concluded the murders occurred between 1:00 a.m. and 2:00 a.m. and were committed by Hanson and three accomplices, Tamundray Williams, Daniel Brown, and Laniveya Barrett.
        Williams and Brown, both ex-convicts whose charges for capital murder were reduced to first degree murder in exchange for their testimony, testified the murders occurred during what was to be “simply” a “checking out” of the apartment for a later robbery of Webb. Williams and Brown testified they had been “hanging out” with Hanson when they developed the plan to commit the robbery. While at Barrett's apartment, they discussed they would go to the apartment to buy some drugs, “see what [the apartment] looked like,” and return later to commit the robbery. Williams and Brown did not know Webb, but Hanson and Barrett did. According to the testimony, the robbery was to be committed after midnight because Webb “used syrup” and would be sleepy and off-guard at that time.
        Because he had sold his gun-a .38 “snub-nosed” revolver-to Hanson, Brown asked Barrett for her gun to use as “a scare tactic.” Barrett gave him her gun-a .45 semi-automatic pistol-and left for work. Brown then drove Williams and Hanson to the apartment. Although they were just going to “check out” the apartment and because Brown decided not to go to the apartment once there, Williams took Barrett's gun from Brown before walking up to the apartment with Hanson.         According to Williams, Hanson knocked on the door and a school friend of Williams, Emarcus Island, opened the door. Williams and Hanson entered and saw Webb and another man, Darius Guthrie, sitting on a couch. Because he knew Island, Williams decided just to buy the drugs and leave and thought Hanson would do the same. As Williams was walking toward the door to leave, however, he heard a gun shot. Williams turned and found Hanson standing with a gun and Island on the ground. Hanson then shot Webb and Guthrie, and Williams and Hanson left.
        Brown testified that Williams and Hanson “had a shoe box in their hands and looked like zombies” when they returned to the car. He figured out what had happened as he drove to Barrett's apartment to return the gun and heard Williams say to Hanson “you messed up” and Hanson reply “I know.”
        Barrett was still at work when they returned to her apartment, but her brother Anthony was there. Brown returned the gun to Anthony and then sat with him and smoked “a blunt.” Williams and Hanson, meanwhile, went to the bathroom where they changed clothes and went through the shoe box. According to Williams, the box contained “really nothing”-“just” a gun and drugs. Hanson then determined it was time to leave, and left with Williams and Brown in Brown's car. At Hanson's request, Brown drove to a dumpster so Hanson could throw away a black trash bag and the gun he had used and then to a motel, where they stayed for a few hours before parting ways.
        Williams and Brown's testimony was corroborated in large part by Anthony and Dexter Williams,   See Footnote 2  a convict who met Hanson while in jail for an unrelated aggravated robbery. Anthony, who was also at Barrett's apartment when Williams, Brown, and Hanson first visited the apartment, confirmed his sister had given Brown her gun and that Williams, Brown, and Hanson left the apartment for “about four hours” but later returned and gave back the gun. While at the apartment the second time, Hanson and Williams went into the bathroom and were there for about fifteen minutes before leaving with Brown and a “big black trash bag.” Anthony did not hear “any talk” about the plan to commit the robbery or about the murders while Williams, Brown, and Hanson were at the apartment, but figured out “pretty quickly” what had happened based on the sequence of events. Anthony testified he met Hanson for the first time that night. He provided a written statement to police two days after the murder, but was unable to identify Hanson by name. He subsequently identified Hanson in a photographic line-up shown to him and Barrett at Barrett's apartment.
        Dexter, who hoped to get his charges reduced or dismissed but did not have a plea bargain offer from the State, testified that Hanson admitted committing the murders. According to Dexter, Hanson told him he used a .38 revolver-which was never found-and had planned the robbery with Barrett, Williams, and Brown. Although the murders were not planned, Hanson told Dexter he “knew he would probably have to shoot Webb because he was known to be kind of tough.” Hanson told him he first shot Island, then Webb and Guthrie who were playing a video game (a fact independently confirmed during the testimony of one of the responding officers). Dexter testified Hanson was not remorseful when he spoke and that Hanson blamed Barrett for his arrest “because she messed everything up by running her mouth” and telling one of the victim's girlfriends how “it”was only going to be a robbery.
        Hanson did not testify, but, through cross-examination and testimony of his own witnesses, adduced evidence that (1) he was at home asleep when the murders occurred; (2) Williams, Brown, and Hanson were members of rival gangs; (3) Brown had tried to sell a .38-caliber pistol, like the one used in the murders, shortly after the murders; (4) Williams had given a statement to the police after his arrest and did not mention in the statement that Hanson was the shooter or had even participated in the murders; (5) Anthony's testimony was not entirely consistent with, and contained more details than, the written statement he gave the police;   See Footnote 3  (6) Anthony was friends with Guthrie and was upset by his death but he did not call the police to report his suspicion that Brown and Williams had committed the murders; (8) Dexter reported Hanson's admission to him after Hanson's aunt rebuffed him; (9) Dexter had access to the arrest warrant for Hanson and the reporter's record of Hanson's examining trial; (10) Dexter testified he was on his way from Memphis to Dallas when the murders occurred, but a hotel receipt showed he was already in Dallas; (11) Barrett had told the victim of one of the girlfriends that the robbery and murders were committed by Williams, Brown, and Ron Sykes-not Hanson-and that Williams was the shooter; and (12) Webb was reportedly still selling drugs at 2:30 a.m. on January 12.
Sufficiency of the Evidence
        In his first three issues, Hanson challenges the sufficiency of the evidence to support the conviction and to corroborate Williams and Brown's accomplice witness testimony. Relying on the fact that Williams and Brown testified in exchange for a reduction of their charges as well as the testimony he elicited from his own witnesses and through cross-examination of the State's witnesses, Hanson focuses his argument on the weight and credibility of the evidence. Specifically, Hanson argues his friends and family were credible witnesses but Williams, Brown, Anthony, and Dexter were not. Hanson asserts Williams and Brown were not credible because (1) they testified in exchange for a reduction of their charges and (2) testimony showed Brown tried to sell a .38- caliber pistol shortly after the murders and Williams failed to mention in his written statement that Hanson was the shooter or even participated in the murders. Hanson asserts Anthony and Dexter were not credible because testimony showed (1) Anthony “omitted important facts from his written statement,” (2) Anthony did not hear “any conversation” about a robbery, (3) Anthony did not testify he saw “blood on anyone when they returned to the apartment,” (4) Anthony “never called the police with his suspicions that [Williams] and [Brown] had [murdered Guthrie]” despite “being upset by his murder,” (5) Dexter “lied” about being out of town at the time the murders were committed, and (6) Dexter's testimony was no different than the facts in Hanson's arrest warrant and the testimony of the investigating officer at the examining trial. Hanson maintains that because Williams, Brown, Anthony, and Dexter were not credible, their testimony was “worthless.” And, without Anthony and Dexter's testimony, he argues, insufficient evidence exists to corroborate Williams and Brown's testimony; without Williams and Brown's testimony together with Anthony and Dexter's testimony, insufficient evidence exists to support the conviction.
        Our inquiry in a challenge to the sufficiency of the evidence to support the conviction is whether a rational trier of fact could have found beyond a reasonable doubt the essential elements of the offense. Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). In reviewing a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict, bearing in mind that the fact-finder is the exclusive judge of the witnesses' credibility and the weight given to the evidence. Moff v. State, 131 S.W.3d 485, 488 (Tex. Crim. App. 2004); Wesbrook, 29 S.W.3d at 111. In reviewing a factual sufficiency challenge, we view the evidence in a neutral light and may substitute our judgment for the fact-finder's on the question of witness credibility and weight of evidence determinations but only “to a very limited degree.” Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), cert. denied, 128 S. Ct. 87 (2007). We will reverse a verdict of guilty on a factual sufficiency challenge only when we can say, with some objective basis in the record, that (1) the supporting evidence is so weak that the verdict seems clearly wrong and manifestly unjust or (2) the great weight and preponderance of the evidence contradicts the verdict. Grotti v. State, 273 S.W.3d 273, 283 (Tex. Crim. App. 2008).
        In a challenge to the sufficiency of the evidence to corroborate the accomplice witness testimony, our inquiry is whether, eliminating all the accomplice witness testimony, evidence remains “tend[ing] to connect” the defendant with the commission of the offense. Castillo v. State, 221 S.W.3d 689, 691 (Tex. Crim. App. 2007) (citation omitted). The corroborating evidence is insufficient if it merely shows the commission of the offense, see Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005), but is not insufficient simply because it does not directly link the defendant to the crime nor alone establish guilt beyond a reasonable doubt. Castillo, 221 S.W.3d at 691 (quoting McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997)).
        Applying these standards to the facts of this case, we conclude the non-accomplice evidence was sufficient to corroborate Williams and Brown's testimony and that the evidence as a whole was both legally and factually sufficient to support the conviction. From (1) Williams and Brown's testimony that Hanson was “in on the plan” to rob Webb and Hanson alone determined to turn the robbery into multiple murders; (2) Anthony and Dexter's testimony corroborating the details of the murder; and (3) evidence that Webb, Island, and Guthrie were killed with a .38 revolver-the type of weapon Hanson had bought from Brown, we conclude the jury could find beyond a reasonable doubt that Hanson committed capital murder. See Tex. Penal Code Ann. § 19.02(b)(1), 19.03(a)(7)(A) (Vernon 2003 & Supp. 2008). Although Hanson asserts none of the State's “key” witnesses were credible but his witnesses were, it was for the jury to decide what weight to give the evidence. See Jones, 944 S.W.2d at 647, 648. By returning a verdict of guilty, the jury necessarily believed the State's witnesses and disbelieved Hanson's. This was within the jury's providence and we will not disturb that finding. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003); Wesbrook, 29 S.W.3d at 111. We resolve Hanson's first three issues against him.
Identification Testimony
        Hanson's fourth issue stems from the photographic line-up shown to Anthony and Barrett at Barrett's apartment. Relevant to this issue, the record reflects Anthony and Barrett were shown the same line-up separately but while in the same, small room. Arguing this manner of showing the line-up was impermissibly suggestive because it increased the likelihood that if one identified Hanson the other one would also, Hanson moved to suppress Anthony's identification of him. Following a hearing, the trial court denied the motion, and Anthony subsequently identified Hanson in open court. Hanson now challenges the trial court's denial of his motion and asserts Anthony's in-court identification of him should have been suppressed because it was “tainted” by the impermissibly suggestive line-up. See Luna v. State, 268 S.W.3d 594, 605 (Tex. Crim. App. 2008) (in-court identification testimony based on impermissibly suggestive pre-trial line-up is inadmissible), petition for cert. filed, - U.S.L.W. - (U.S. Jan. 27, 2009) (No. 08-10144).
        We need not decide whether the line-up here was impermissibly suggestive, however, because even if it was, Anthony's identification testimony was admissible. A witness's in-court identification is proper when the identification has an origin independent of the alleged improper pre-trial procedure. Waller v. State, 648 S.W.2d 308, 312 (Tex. Crim. App. 1983) (op. on reh'g); Weatherred v. State, 35 S.W.3d 304, 312 (Tex. App.-Beaumont 2001, pet. ref'd). Here, the record reflects Anthony identified Hanson in open court prior to any questioning about the line-up he viewed and also testified he would have been able to identify Hanson in court even if he had never seen his picture in the line-up. This testimony shows the in-court identification was not based on the line-up and thus, the identification was proper. Hanson's argument to the contrary is without merit. We resolve his fourth issue against him.
        We affirm the trial court's judgment.
 
                                                          
                                                          MARTIN RICHTER
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
070607F.U05
 
Footnote 1         The Honorable Amos L. Mazzant was a member of the original panel and participated in the submission of the case. However, due to his appointment as United States Magistrate Judge, Chief Justice Linda Thomas is now substituting for Justice Mazzant on the opinion.
Footnote 2          Dexter Williams and Tamundray Williams are not related.
Footnote 3          Specifically, Hanson notes that Anthony's written statement did not include the fact that when Williams, Brown, and Hanson returned to the apartment, Williams and Hanson went immediately to the bathroom and left with a black trash bag. Hanson also notes that Anthony testified he “heard rumors” that a person named “Bee Bee,” as opposed to Hanson, was involved, but again, that was not in the written statement.