Sterling Crawford v. The State of Texas--Appeal from 12th District Court of Walker County

Opinion issued June 23, 2005

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-00163-CR

STERLING VASHON CRAWFORD, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 12th District Court

Walker County, Texas

Trial Court Cause No. 21,362

MEMORANDUM OPINION

Appellant, Sterling Vashon Crawford, pleaded not guilty to the offense of murder. The jury found him guilty and assessed punishment at 35 years in prison. Appellant presents ten points of error on appeal. In his first eight points of error appellant asserts that the trial court erroneously admitted the hearsay testimony of three witnesses and that the erroneous admissions violated his right to confront and cross-examine witnesses under the U.S. Constitution. In his ninth and tenth points of error, appellant challenges the legal and factual sufficiency of the evidence to support his conviction. We affirm.BACKGROUND

The victim, Keiderich DeWayne Gamble, was a drug dealer, and the principal location of his drug business was in a condominium leased by his girlfriend and drug supplier, Deborah Kinney. The condominium was referred to during testimony at trial as the Hot Spot.

Several months before the murder, according to the testimony of Bernard Willis, Gamble met appellant at a gas station. Willis testified that Gamble told him that appellant offered to buy three kilos of cocaine and that Gamble asked Willis if he should do business with appellant. Willis stated that he told Gamble not to do business with appellant, but that Gamble later told Willis that he had acquired the three kilos of cocaine to sell to appellant.

LaTarsha Gamble, the victim s wife, testified that Gamble received a phone call from appellant in the early morning hours of Friday, December 14, 2001. LaTarsha stated that Gamble asked appellant if he was ready and told appellant that he was going to go to the Hot Spot. Kinney, Gamble s girlfriend, testified that Gamble left the condominium later that day, saying he was going to appellant s residence. Kinney stated that Gamble asked her to call him on his cell phone in thirty minutes if he did not call her first. Kinney testified that Gamble called her within thirty minutes time and told her that he was where I told you I was goin to be.

The next day, Saturday, December 15, 2001, a group of hunters found a badly burned body, later identified as that of Gamble, lying beside a dirt road in a rural area. It is uncontested that Gamble had been shot in the neck at a downward angle going from left to right; he had been shot again in the back with the bullet exiting through his chest; and the body was later placed where it was found and set on fire.

On Sunday, December 16, 2001, Gamble s family reported him missing. On Tuesday, December 18, 2001, appellant gave a voluntary statement to investigators // in which he asserted that his residence address in Huntsville was 21 Pine Breeze. Sergeant Steve Fisher, with the Walker County Sheriff s Department, testified that appellant failed to inform investigators that he, in fact, lived at a different address in Huntsville on Ross McBride Road. A search of appellant s home on Ross McBride Road produced the following evidence, which was admitted at trial and is not challenged by appellant: three drops of Gamble s blood on an interior wall; a hole in an interior wall that was hidden behind a hanging picture and was consistent with a hole made by a bullet traveling downward from left to right; a freshly painted hallway; a second hole in the floor of a hallway, from which carpet had been removed, near where Gamble s blood was found; burned carpet in the front yard of the residence; and two burned cell phones, one consistent with a model Gamble used, which were found with the burned carpet.

Uncontested testimony at trial established that tire marks from the location where Gamble s body was found were left by Nitto 404 Extreme tires, and that, the Monday after the murder, appellant took a truck he regularly drove to a Discount Tire store and had Nitto 404 Extreme tires removed and replaced with another brand.DISCUSSION

A. Hearsay statements

In his first eight points of error, appellant asserts that the trial court erred by allowing LaTarsha, Kinney, and Willis to testify about hearsay statements and that this erroneously admitted hearsay testimony violated his right under the sixth amendment to the U.S. Constitution to confront and cross-examine the witnesses against him. See U.S. Const. amend. XI.

1. Standard of Review

Whether an out-of-court statement is admissible under an exception to the hearsay rule is a matter within the trial court s discretion. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). We will reverse only if the trial court s decision to admit testimony is so clearly wrong as to lie outside the zone within which reasonable persons might disagree. Id. A defendant s right to confront and cross-examine the witnesses against him under the U.S. Constitution s Sixth Amendment s confrontation clause is not implicated if a hearsay statement is non-testimonial in nature and bears adequate indicia of reliability. Woods v. State, 152 S.W.3d 105, 113 14 (Tex. Crim. App. 2004) (citing Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004)). Statements that are testimonial in nature include prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and [to] police interrogation and do not include casual remarks made spontaneously to acquaintances. Id. at 114 (internal quotation marks omitted). If the statement in question falls within a firmly rooted hearsay exception, reliability can be inferred and is even found to be per se reliable for Confrontation Clause analysis. Guidy v. State, 9 S.W.3d 133, 149 (Tex. Crim. App. 1999); see also Crawford, 124 S. Ct. at 1372 74 (suggesting that otherwise reliable non-testimonial hearsay falls outside scope of Sixth Amendment s Confrontation Clause).

2. Testimony of Latarsha Gamble

In his first point of error, appellant argues that the trial court erred in allowing

LaTarsha to testify that Gamble asked appellant over the telephone, Are you ready, and told appellant, Let me get up from here and go over to the Hot Spot. The State argues that the question, Are you ready? is not a statement asserting the truth of the matter stated therein and is not hearsay. We agree. See Tex. R. Evid. R. 801(c); see also Smith v. State, 779 S.W.2d 417, 429 (Tex. Crim. App. 1989) (holding that testimony regarding question asked by police officer was not hearsay because it merely related the content of a question ). We also agree with the State s argument that Gamble s statement that he was going to leave the home he shared with his wife and go to the condominium was a statement of intent and was admissible as an exception to the hearsay rule under rule 803(3). See Tex. R. Evid. 801(c); see also Trostle v. State, 588 S.W.2d 925, 929 (1979) (hearsay testimony admissible as explanation by deceased of plan to meet accused); Miller v. State, 753 S.W.2d 473, 477 (Tex. App. Houston [1st Dist.] 1988, no pet.) (same).

We overrule appellant s first point of error.

In his third point of error, appellant argues that the trial court erred in allowing LaTarsha to testify about a statement made by appellant s mother. LaTarsha testified that she received a phone call from appellant s sister on late Sunday night or in the early hours of Monday morning, after she had been told that a body with identifiable marks similar to her husband s had been discovered, but before the body was officially identified. LaTarsha said that appellant and his mother also participated in the phone call and that, when appellant told her that he was not responsible for her husband s murder, his mother tried to talk over appellant, saying to him Vashon, Vashon, we don t know who the body belongs to yet. Everybody needs to stop saying its Keiddy [Gamble] before we actually know. Appellant contends that this is hearsay because appellant s mother s statement was offered to assert the truth of the matter it asserts; namely, that the body had not, at the time of the telephone conversation, been officially identified as that of Gamble. We note, however, that other evidence, not challenged by appellant, clearly established that the body was in fact not identified until after the time LaTarsha indicated that appellant s mother made the statement. [A] defendant who allows evidence to be introduced from one source without objection forfeits any subsequent complaints about the introduction of the same evidence from another source. Reyes v. State, 84 S.W.3d 633, 638 (Tex. Crim. App. 2002). Thus, even if appellant s mother s statement was hearsay, any error was not preserved because the same substantive evidence was elsewhere introduced without objection. See id. (overruling issue challenging admission of hearsay statement because content of hearsay statement had already been made known to the jury ).

We overrule appellant s third point of error.

3. Testimony of Kinney

In his fifth point of error, appellant argues that the trial court erred in allowing Kinney to testify about the following three statements made by Gamble: (1) I m fixing to go meet Sterling ; (2) If I don t call you back in thirty minutes, call me ; and (3) I am where I told you I was goin to be.

The State argues that all three of these statements were properly admitted into evidence under exceptions to the hearsay rule. We agree. Gamble s first and second statements, that he intended to meet with appellant and intended to call Kinney within thirty minutes, were admissible as a statement of intent under rule 803(3) of the Texas Rules of Evidence. See Tex. R. Evid. 803(3). His third statement, explaining that he had arrived at appellant s residence, was admissible as his present sense impression under rule 803(1) of the Texas Rules of Evidence. See Tex. R. Evid. 803(1).

We overrule appellant s fifth issue.

4. Testimony of Willis

In his seventh point of error, appellant argues that the trial court erred in allowing Willis to testify regarding statements made by Gamble to Willis about his plan to acquire and sell three kilos of cocaine to appellant. The State argues that the statements where admissible as statements against interest. See Tex. R. Evid. 803(24). We agree with the State. See Woods, 152 S.W.3d at 113 14 (holding that statement was reliable because remarks were spontaneously made to acquaintance, before crime was committed, and State s evidence provided independent corroborative facts). The statements that, according to Willis, Gamble made were self-inculpatory and corroborating circumstances indicated their trustworthiness. Willis s testimony established that Gamble made these statements spontaneously to him and that Willis was a stranger to the contemplated transaction. It is clear that, at least at the time he made the statements to Willis, Gamble had not yet sold the cocaine to appellant. Furthermore, evidence presented by the State at trial of the continued interaction between appellant and Gamble provides corroborating circumstances sufficient to indicate that appellant and Gamble were planning a drug transaction. The statements were, thus, admissible as statements against interest under rule 803(24) of the Texas Rules of Evidence. See Woods, 152 S.W.3d at 113 14.

We overrule appellant s seventh point of error.

5. Confrontation Clause

In his second, fourth, sixth, and eighth points of error, appellant contends that the introduction of inadmissible hearsay statements violated his right to confront and cross-examine the witnesses against him. We have concluded, in appellant s first, third, fifth, and seventh points of error, that the statements were not inadmissible because the statements were either not hearsay at all or were grounded in firmly rooted hearsay exceptions or because any error was not preserved. The challenged statements are non-testimonial in nature and bore the required adequate indicia of reliability; thus, appellant s rights under the Confrontation Clause are not implicated. See Woods, 152 S.W.3d at 113-14; see also Guidry v. State, 9 S.W.3d 133, 149 (Tex. Crim. App. 1999).

We overrule appellant s second, fourth, sixth, and eighth points of error.

B. Factual and legal sufficiency

In his ninth and tenth points of error, appellant challenges the legal and factual sufficiency of the evidence. In reviewing legal sufficiency, we view the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318 19, 99 S. Ct. 2781, 2788 89 (1979); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). In a factual sufficiency review, we view all the evidence in a neutral light, and we will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004), cert. denied, __ U.S. __, 125 S. Ct. 1697 (2005); see also Zuniga v. State, 144 S.W.3d 477, 481 (Tex. Crim. App. 2004). We should not substitute our own judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996).

The jury is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given to the witnesses testimony. Jaggers v. State, 125 S.W.3d 661, 671 (Tex. App. Houston [1st Dist.] 2003, pet. ref d). The jury may believe all, some, or none of any witness s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). A jury decision is not manifestly unjust merely because the jury resolved conflicting views of evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997).

The testimony of LaTarsha and Kinney and evidence of numerous phone calls between appellant and Gamble before the murder supports a conclusion that appellant and Gamble planned to meet, and did meet, at appellant s residence on the day of the murder. The physical evidence at appellant s residence included Gamble s blood and holes in the wall and floor that were consistent not only with bullet holes, but also with unchallenged testimony establishing the trajectory of the bullets that caused Gamble s gunshot wounds and death. This evidence also supports a finding that Gamble was present at appellant s residence and additionally supports a finding that Gamble was shot to death while at appellant s residence. The jury also had before it unchallenged testimony about the destruction of carpet from the hallway of appellant s residence, testimony that the hallway was freshly painted, testimony that a picture had been hung over the hole in the wall of appellant s residence near where Gamble s blood was found, and testimony regarding the destroyed cell phones. Finally, unchallenged testimony that Nitto 404 Extreme tire tracks were observed at the location where Gamble s body was found, together with unchallenged testimony that appellant removed, on the next business day after the murder, that brand of tires from a vehicle he regularly drove, supports a finding placing appellant at the location where Gamble s body was discovered.

Viewing the evidence in the light most favorable to the prosecution, we hold that a rational trier of fact could have found, beyond a reasonable doubt, that appellant was guilty of murder as charged. Viewing all the evidence in a neutral light, we hold that the evidence is not so weak that the verdict is clearly wrong and manifestly unjust, nor is the contrary evidence so strong that the standard of proof beyond a reasonable doubt could not have been met.

We overrule appellant s ninth and tenth points of error.

CONCLUSION

We affirm the judgment of the trial court.

Sam Nuchia

Justice

Panel consists of Justices Nuchia, Keyes, and Bland.

Do Not Publish. Tex. R. App. P. 47.2(b).