Kevin Robert Searcy v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-96-256-CR

KEVIN ROBERT SEARCY,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 96-118-C

O P I N I O N

A jury convicted Kevin Robert Searcy of the offense of capital murder. See Tex. Penal Code Ann. 19.03(a)(2) (Vernon 1994). The court assessed punishment at life in the Texas Department of Criminal Justice, Institutional Division.

FACTUAL BACKGROUND

The jury found Searcy guilty of killing Ramesh T. Patel at the Fasttime Fina store in Mart on November 23, 1995, while in the course of committing robbery. Patel died from stab wounds to the chest. Gregory Bledsoe testified to the events prior to the crime and remained in Searcy s car while the offense was committed. Bledsoe also testified about an encounter with Searcy after the offense.

According to Bledsoe, the two smoked some cocaine and then decided to purchase some cigarettes at the Fasttime Fina. Searcy drove his car to the store and Bledsoe went in and bought the cigarettes. When he got back in the car, Searcy asked if the store clerk was alone. Bledsoe said he was alone, and then Searcy said, Man, I am going to go rob the guy. Bledsoe replied that I ain t off into robbing folks, killing folks. I am not into that stuff. Searcy asked Bledsoe as they drove around, [A]re you down with me? to which Bledsoe responded no.

Searcy and Bledsoe then decided to return to the Fasttime Fina to get a sandwich. Bledsoe remained in the passenger seat while Searcy went in to get the sandwich. Bledsoe felt like it was taking too long so he got in the driver s seat and drove to some apartments to see some friends. Bledsoe did not see his friends so he drove back to his own house and parked Searcy s car in front of the house.

As Bledsoe walked towards his house, Searcy came from the south side of the house. Bledsoe testified that Searcy had blood on his pants. Searcy sat in the driver s seat of his car while Bledsoe sat in the passenger seat. Searcy said, I done it. I stabbed him seven, eight times. Searcy then handed Bledsoe forty dollars and told him to go buy some cocaine. Bledsoe snatched the money and ran.

Bledsoe did not see Searcy drive off but Searcy s car was found later that day at the Kingsway Inn in Waco. The police searched the room registered to Searcy, but he was not in the room. The police called the bus station and found out that Searcy had boarded a bus for Denver. The Denver authorities arrested Searcy when he arrived in Denver.

The search of Searcy s room produced a pack of Montclair cigarettes with the same tax identification number as a pack of cigarettes found on the counter at the Fasttime Fina after the murder. Ramesh D. Patel, co-owner of the store, testified that cigarettes which have the same tax identification numbers come from the same carton of cigarettes. The police also discovered blood on Searcy s car. A witness identified Searcy as the man he had seen in the store at the time of the murder.

JURY CHARGE

Searcy alleges in his first point of error that the court committed error by failing to instruct the jury that Gregory Bledsoe was an accomplice as a matter of law. The state argues that Searcy has failed to preserve error. The record reflects that Searcy objected to the lack of an instruction on how to consider the accomplice testimony of Bledsoe. He further argued:

Your Honor, we are objecting to the charge on that basis. We feel like the evidence establishes Mr. Bledsoe as an accomplice in this case and we think that the defendant is entitled to that instruction. And we respectfully object to the omission of the instruction from the charge.

The court overruled the objection. After the noon recess, the court then added an instruction in the charge which instructed the jury to determine whether Bledsoe was an accomplice as a matter of fact. The court asked if defense counsel had any objection to the added instruction to which defense counsel replied, To that instruction no, Your Honor.

Searcy asked for an instruction which established Bledsoe as an accomplice as a matter of law. The actual words as a matter of law were not used but Searcy asked for an instruction which established Bledsoe as an accomplice. The objection is specific enough to apprize the trial court of what is complained. See Bilbrey v. State, 594 S.W.2d 754, 756 (Tex. Crim. App. [Panel Op.] 1980). The State then argues that agreeing to the added instruction waived the earlier objection. Searcy s statement that he had no objection to the added instruction of accomplice as a matter of fact does not waive his earlier objection to the exclusion of the accomplice as a matter of law instruction. Therefore, Searcy preserved the error for appellate review.

We must now determine whether Bledsoe was an accomplice witness as a matter of law.

An accomplice witness is someone who has participated with another before, during or after the commission of a crime. One is not an accomplice witness who cannot be prosecuted for the offense with which the accused is charged. A witness is not deemed an accomplice witness because he knew of the crime but failed to disclose of or even concealed it.

Carrillo v. State, 591 S.W.2d 876, 882 (Tex. Crim. App. [Panel Op.] 1979) (citations omitted).

In this case, no evidence exists that Bledsoe participated in the robbery and the murder. Bledsoe testified that he told Searcy he [w]as not into robbing and killing folks. Bledsoe sat in the passenger seat of Searcy s car but did not go into the store with Searcy. However, mere presence at the scene does not make a witness an accomplice. See Brown v. State, 640 S.W.2d 275, 279 (Tex. Crim. App. [Panel Op.] 1982).

Bledsoe did testify that he saw Searcy pull a knife out from under the driver s seat but knowing that Searcy was going to rob the store and murder the clerk does not even make Bledsoe an accomplice. See Carrillo, 591 S.W.2d at 882. The fact that Bledsoe drove off in Searcy s car leaving Searcy in the store further shows that Bledsoe did not participate in the crime. Under these facts, Bledsoe could not be prosecuted for the offense of robbery or murder.

In order for a witness to be an accomplice, evidence must show an affirmative act to assist in the commission of the offense. See McFarland v. State, 928 S.W.2d 482, 514 (Tex. Crim. App. 1996). Therefore, Bledsoe s accepting money from Searcy did not make him an accomplice. The affirmative act must assist in committing the crime. Bledsoe did not accept the money until the crime was completed. No evidence was presented which showed that Bledsoe committed an affirmative act which assisted the commission of the offense.

We find that Bledsoe was not an accomplice as a matter of law. The court did not err in refusing to instruct the jury that Bledsoe was such an accomplice. We overrule Searcy s first point of error.

Searcy s second point of error alleges that the court committed fundamental error when it failed to instruct the jury that Bledsoe was an accomplice witness as a matter of law. As shown above, we find no error in the omission of the jury instruction.

We overrule Searcy s second point of error.

LEGAL SUFFICIENCYSearcy alleges in his third point of error that the evidence is insufficient to support the capital murder conviction because the State failed to prove that a robbery was committed. // The State had the burden to prove that Searcy intentionally committed a murder in the course of committing a robbery. See Tex. Penal Code Ann. 19.03(a)(2) (Vernon 1994). In order to prove robbery, the state must prove that Searcy unlawfully appropriated property with intent to deprive the victim of property without his consent. See id. 31.03(a). The state must then show that while committing the theft, Searcy intentionally, knowingly, or recklessly caused bodily injury or placed the victim in fear of imminent bodily injury or death. See id. 29.02(a)(1), (2).

In reviewing a claim of legal insufficiency, the court reviews 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. Jackson v. Virginia, 443 U.S. 307, 318-319, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); Lane v. State, 933 S.W.2d 504, 507 (Tex. Crim. App. 1996).

Examining the evidence in the light most favorable to the verdict, Bledsoe testified that Searcy came over to his house and said that he needed some money. After Bledsoe bought the cigarettes at the Fasttime Fina, Searcy said, Man, I am going to rob that guy (the store clerk). Bledsoe s testimony provides evidence that Searcy entered the Fasttime Fina with the intent to steal money. After the offense, Searcy showed Bledsoe a roll of money and gave Bledsoe forty dollars, providing evidentiary support that Searcy did take money from the store. After the offense, Searcy was able to purchase a bus ticket which tends to show that Searcy took money from the store.

Ramesh D. Patel, co-owner of the Fasttime Fina, testified that the cash register was open when he arrived at the scene. Other officers testified when they arrived on the scene that the safe was open. Customers who came to the store shortly after the offense testified that they did not take anything from the store. Patel testified that $372.70 was missing according to the register tape.

From this evidence, we find that a rational juror could find beyond a reasonable doubt that Searcy committed the murder while in the course of committing robbery. Jackson, 443 U.S. at 318-319.

FACTUAL SUFFICIENCY

When presented with a factual insufficiency claim, we discard the prism of the light most favorable to the verdict. Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We reverse only if [the verdict] is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id.

All of the evidence in the record related to the contested issue is considered. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). Evidence which tends to prove the issue is compared with evidence which tends to disprove the issue. Id. We give appropriate deference to the jury s decision and do not substitute our judgment for theirs. Clewis, 922 S.W.2d at 135. We do not set aside the verdict merely because [we] feel that a different result is more reasonable. Id. (quoting Pool v. Ford Motor Co., 715 S.W.2d 629, 634 (Tex. 1986)).

We have already discussed the evidence that tends to support the jury s finding that Searcy murdered Patel in the course of a robbery. Scant evidence exists which tends to disprove the commission of a robbery. No direct evidence exists showing that Searcy stole any money from the store. No witness testified that he saw Searcy take money from the store. The jury considers the totality of direct and circumstantial evidence and the reasonable inferences which may be drawn. Hankins v. State, 646 S.W.2d 191, 199 (Tex. Crim. App. 1983) (on rehearing); Desselles v. State, 934 S.W.2d 874, 879 (Tex. App. Waco 1996, no pet.)

The jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Santellan, 939 S.W.2d at 164. We must give due deference to the jury on these issues. Id. at 166. After reviewing all the evidence, we cannot say the verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis, 922 S.W.2d at 134.

Therefore, we find the evidence legally and factually sufficient and overrule Searcy s third point of error.

We affirm the judgment.

REX D. DAVIS

Chief Justice

Before Chief Justice Davis

Justice Cummings and

Justice Vance

Affirmed

Opinion delivered and filed October 8, 1997

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