Gentry, Damien Jerrod v. The State of Texas--Appeal from 248th District Court of Harris County

Affirmed and Memorandum Opinion filed December 21, 2004

 Affirmed and Memorandum Opinion filed December 21, 2004.

In The

Fourteenth Court of Appeals

_______________

NO. 14-03-01093-CR

_______________

DAMIEN JERROD GENTRY, Appellant

V.

 THE STATE OF TEXAS, Appellee

_______________________________________________________

On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause No. 926,268

_______________________________________________________

M E M O R A N D U M O P I N I O N

Appellant was convicted of capital murder and sentenced to life imprisonment. In two issues, appellant contends the State=s evidence was (1) insufficient to corroborate the testimony of an accomplice witness, and (2) legally and factually insufficient to support his conviction. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4.

Background

According to the State=s evidence, on September 26, 2002, appellant and Arlena Steadman[1] drove to the Glenwood Forest apartment complex to visit appellant=s daughter. Following the visit, appellant and Steadman decided to go visit the complainants, Kevin and Harvey Jones, who lived at the same apartment complex. The complainants were appellant=s cousins.

Appellant and Steadman walked to the complainants= apartment and were let inside. Appellant exchanged drugs with one of the complainants. After about twenty minutes, Steadman walked outside to get her purse from appellant=s car. As she approached the car, she saw that it was being burglarized. She ran back to the complainants= apartment to get help. When appellant and the complainants got outside, the perpetrators of the burglary were already gone, and the car was so damaged that it could not be driven from the complex.

Appellant called a wrecker service to tow his car and also called Sharonda Sanford and asked her to pick him up from the complex. Sanford arrived at the complex before the tow truck. When the tow truck finally arrived, the driver towed appellant=s car to his grandparents= home. Appellant and Steadman rode with Sanford as she followed behind the tow truck. Sanford took appellant and Steadman to the home of appellant=s grandparents.

After the tow truck left, appellant and Steadman got into Steadman=s car.[2] Appellant told Steadman that he wanted to go back to the apartment complex and Ado =em.@ As Steadman drove appellant back to the apartment complex, she noticed that appellant was carrying a gun.

When Steadman and appellant arrived at the apartment complex, they proceeded to the complainants= apartment, and Kevin Jones let them inside. They went into the bedroom and began to use cocaine.[3] Appellant placed the gun on a bed and asked if Kevin knew who was responsible for the burglary of appellant=s car. At some point during the conversation, appellant took the gun from the bed and shot both of the complainants in the head.

Steadman ran out of the apartment, and appellant followed closely behind. They then drove to the Knoxwood Motel and checked into a room. While they were in the room, appellant told Steadman that he was going to get rid of the gun. Appellant left the room, and when he returned, he told Steadman that he had thrown the gun into a trash can. Later, Sharonda Sanford arrived at the motel to pick up appellant. Appellant rode away with Sanford, and Steadman drove away in her own car.

Sufficiency Of The Evidence

In two issues, appellant contends that the evidence is legally and factually insufficient to support his conviction because the State failed to corroborate the testimony of an accomplice witness. Initially, we note that the corroboration of accomplice witness testimony is a statutory requirement and is not part of either a legal or factual sufficiency review. See Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999). Accordingly, we reject any attempt by appellant to superimpose a legal and factual sufficiency review upon the accomplice witness standard.

While appellant=s substantive arguments focus on the corroboration required of an accomplice witness, he also discusses the legal and factual sufficiency standards of review. Therefore, we will address the accomplice witness rule and the legal and factual sufficiency of the evidence.

Corroboration of Accomplice Witness Testimony

Appellant contends that the evidence was insufficient to corroborate Steadman=s accomplice witness testimony.[4] Article 38.14 of the Texas Code of Criminal Procedure provides that a conviction cannot be based upon the testimony of an accomplice witness unless the testimony is corroborated by other evidence Atending to connect@ the defendant with the offense committed. Tex. Code Crim. Proc. Ann. Art. 38.14 (Vernon 1979). In reviewing the sufficiency of corroborating evidence, we eliminate the accomplice testimony from consideration and then examine the remaining portions of the record to see if there is other evidence that tends to connect the defendant with the commission of the crime. Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001). The non-accomplice evidence does not have to directly link the defendant to the crime, nor does it alone have to establish his guilt beyond a reasonable doubt; rather, the non-accomplice evidence merely has to connect the defendant to the offense. Burks v. State, 876 S.W.2d 877, 888 (Tex. Crim. App. 1994).

Evidence of the defendant=s presence at the scene, coupled with other suspicious circumstances, even seemingly insignificant ones, may tend to connect the defendant to the commission of the offense. Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996). Similarly, evidence that the defendant was in the presence of the accomplice at or near the time or place of the offense is proper corroborating evidence. McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997). In this case, a non-accomplice witness, Alesia Johnson, testified that she saw appellant and Steadman[5] leaving the complainants=apartment immediately after she heard gunshots.[6] Johnson testified that as appellant walked past her, appellant appeared to be holding something under his shirt. Johnson=s testimony places appellant at the scene of the crime with the accomplice under suspicious circumstances. Therefore, Johnson=s testimony is proper corroborating evidence. See id.; Dowthitt, 931 S.W.2d at 249.

Additionally, there is non-accomplice testimony that links appellant to the Knoxwood Motel, where the murder weapon was discovered. Appellant admitted that he went to the Knoxwood Motel with Steadman on the day of the murders, but he claimed that he and Steadman went to the motel before visiting his daughter at the Glenwood Forest apartment complex. However, the State introduced non-accomplice testimony that shows appellant and Steadman went to the Knoxwood Motel after the murders had been committed.

Specifically, Sharonda Sanford testified that she met appellant and Steadman in a motel parking lot after she had picked them up from the Glenwood Forest apartment complex. Sanford could not recall the name or exact location of the motel. However, Kathryn Rocia, who was staying at the Knoxwood Motel on the night of the murders, testified that she saw Steadman with a black male at the motel.[7] Rocia testified that she saw Steadman and the black male meet someone in the parking lot and drive away in separate cars. When considered together, Sanford=s and Rocia=s testimony is evidence that Steadman and appellant were at the Knoxwood Motel on the night of the murders, after the murders. Their non-accomplice testimonycorroborates Steadman=s testimony and links appellant to the murder weapon.

After reviewing circumstances of the offense and testimony from the non-accomplice witnesses, we conclude there is sufficient evidence not derived from accomplice testimony to connect appellant to commission of the offense. Accordingly, we find that article 38.14 has been satisfied.

Legal and Factual Sufficiency

In reviewing legal sufficiency of evidence, we examine all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Simmons v. State, 109 S.W.3d 469, 472 (Tex. Crim. App. 2003). In conducting our review, we do not reevaluate the weight and credibility of the evidence, but only ensure that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993).

In reviewing factual sufficiency of evidence, we view all of the evidence in a neutral light and will set aside the verdict 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). When reviewing the evidence, we must give appropriate deference to the to the jury=s findings in order to prevent intruding on the fact finder=s role as the sole judge of the weight and credibility of the evidence. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). In our review, we should consider the evidence that appellant contends most undermines the jury=s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

Appellant was convicted of capital murder. To sustain appellant=s conviction, the State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly caused the death of Kevin and Harvey Jones during the same criminal transaction. See Tex. Pen. Code Ann. ''19.02(b)(1), 19.03(a)(7) (Vernon 2003 & Supp. 2004B05).

To support his contention that the evidence is legally and factually insufficient to sustain his capital murder conviction, appellant points out that with the exception of Arlena Steadman, none of the State=s witnesses testified to actually seeing the murders. However, when reviewing the legal and factual sufficiency of the evidence, we consider all of the evidence, including accomplice witness testimony.

Steadman testified that appellant went to the complainants= apartment and intentionally shot both complainants in the head, then discarded the murder weapon in a trash can at the Knoxwood Motel. The non-accomplice evidence discussed above corroborates Steadman=s testimony. While appellant denied any involvement in the murders, the jury was free to decide the credibility of appellant=s testimony and that of the other witnesses. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Moreover, appellant does not direct us to any other contrary evidence that would undermine the jury=s verdict.

Based on the evidence presented, a reasonable jury could have concluded beyond a reasonable doubt that appellant intentionally caused the deaths of Kevin and Harvey Jones during the same criminal transaction. See Tex. Pen. Code Ann. ''19.02(b)(1), 19.03(a)(7). Further, the jury=s verdict was not so against the great weight of the evidence as to be clearly wrong and unjust. See Johnson, 23 S.W.3d at 6B7. Accordingly, we find that the evidence is legally and factually sufficient to support appellant=s conviction for capital murder.

The judgment of the trial court is affirmed.

/s/ Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed December 21, 2004.

Panel consists of Chief Justice Hedges and Justices Fowler and Seymore.

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

[1] At the time of trial, Steadman was known as Arlena Baines.

[2] Steadman did not own the car she was driving that day. She testified that she rented it from a Acrackhead.@

[3] The record indicates that only appellant, Steadman, and Kevin Jones used cocaine during this time.

[4] The State argues that Steadman was not an accomplice even though the trial court gave a jury instruction on the accomplice witness rule. Because we find sufficient non-accomplice evidence to corroborate Steadman=s testimony, we assume without deciding that Steadman was an accomplice.

[5] Johnson was also able to positively identify appellant and Steadman in photo spreads she viewed a few days after the murders.

[6] At the time that Johnson saw appellant and Steadman leaving the complainants= apartment, she was not aware that the sounds she heard were gunshots. She described the sounds as a Aboom, boom, boom, boom.@

[7] Appellant is a black male.