LAVELLE D. EVANS, Appellant v. THE STATE OF TEXAS, AppelleeAnnotate this Case
AFFIRM; Opinion issued March 9, 2010
Court of Appeals
Fifth District of Texas at Dallas
LAVELLE D. EVANS, Appellant
THE STATE OF TEXAS, Appellee
On Appeal from the 363rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F06-89332-RW
Before Chief Justice Wright and Justices Murphy and Lagarde See Footnote 1
Opinion By Justice Lagarde
In this appeal of the judgment in a capital murder case in which the State did not seek the death penalty, appellant Lavelle D. Evans raises two issues challenging his automatic life sentence: legal and factual insufficiency of the evidence to prove he committed capital murder. After reviewing the evidence before us in this case, we resolve both issues against appellant and affirm the trial court's judgment.
On December 18, 2006, appellant was indicted for capital murder alleged to have been committed on or about October 8, 2006. In relevant part, the indictment reads that appellant did
unlawfully then and there intentionally cause the death of [deceased], an individual ... by SHOOTING DECEASED WITH A FIREARM, A DEADLY WEAPON, and the defendant was then and there in the course of committing and attempting to commit the offense of OBSTRUCTION AND RETALIATION of said deceased....
The indictment also contained two enhancement paragraphs.
The aggravating element of “obstruction and retaliation” alleged in the indictment is the murder of a potential witness against appellant in a drug case in Arkansas. Appellant and deceased were friends at one time. Appellant and deceased were arrested and charged with conspiracy in a drug case in El Dorado, Arkansas along with deceased's sister Felicia and appellant's brother Johnny. See Footnote 2 The cases against all four of them were consolidated into a single trial set for October 12, 2006 in Arkansas. Of the four accused, deceased was the only one who had no criminal record. In the immediate wake of the arrests, deceased claimed full responsibility for the drugs. In a letter, she stated appellant had no knowledge of the drugs. As the trial date approached, however, deceased, represented by an attorney, negotiated a deal with the district attorney to testify against the co-conspirators in exchange for a lesser sentence. On the morning of October 7, the prosecutor in El Dorado spoke to appellant's attorney, notifying him that deceased had agreed to testify for the State. The prosecutor also conveyed a plea bargain offer of thirty years' imprisonment to appellant. Appellant's attorney met with appellant from 10:00 a. m. until noon on October 7 to discuss his case. Between 7:30 p.m. and 8:00 p. m. on October 7, deceased's brother Brandon saw deceased and appellant together in El Dorado. Brandon and a friend were in a truck waiting at a red light when deceased pulled up behind them in her car. Appellant was the only passenger in deceased's car. Deceased declined an invitation from Brandon to go to a music festival, saying she and appellant were going to the house that deceased shared with another brother. Later that night, deceased's car was found at the house, but deceased was not there.
On October 8, 2006, in El Dorado, deceased was officially reported missing. El Dorado police lieutenant Jim Wade began looking for her at that time by interviewing people about deceased's whereabouts.
Meanwhile, in Dallas, Texas, Dr. Robert Jones (Jones) was walking around White Rock Lake in the early morning hours of October 8 while it was still dark outside. At 5:03 a. m., Jones heard a gunshot that was followed by three or four more gunshots coming from the other side of the lake. Jones reported the gunfire to the police at 5:05 a.m. See Footnote 3 Jones saw car headlights moving from the area where he had heard the gunshots. Five or ten minutes later, George Prock, a Dallas police patrol officer, responded to the 911 call. Jones saw a police car and search lights in the area. Jones finished his walk at 6:00 a. m., at which time he saw several police cars in the area where he had heard the gunshots. Near sunrise at about 7:00 a. m., Prock found the body of an unidentified woman in the 300 block of East Lawther Drive on the shore of White Rock Lake. She had been shot three times, including once in the back of her head. The police recovered a cigarette butt with some ash attached near the woman's body, along with a cigarette lighter and a cellular phone. They also recovered bullets and bullet fragments. Police detectives tracked down the cellular phone's owner. The owner cooperated with the police. The police determined the owner had been at the lake with a friend prior to the murder, but neither had any involvement in the crime. A DNA sample collected from the cigarette butt matched the decedent's DNA profile. No other useful DNA evidence was found. The bullets and fragments found near the decedent's body had been fired from the same gun. No other physical evidence was recovered. Robert Ermatinger, a Dallas homicide detective, testified police officers did not find deceased's body until about 7:00 a. m. Dineen Cordon, an officer in the Dallas crime scene response unit, explained that a cigarette butt with ash intact was significant because that meant it had not been there for very long. Kenneth Balagot, a forensic biologist with the Southwestern Institute of Forensic Sciences, testified the cigarette butt found near deceased's body had a DNA profile that matched deceased's DNA. The cellular phone found near the body yielded only a partial DNA profile which was consistent with both deceased's and Cindy Barraza's DNA. See Footnote 4
The medical examiner could not determine the precise time of deceased's death. The time of death was listed as “Found 7:08 a. m.” The time listed on a death certificate does not necessarily show when death actually occurred. Deceased was not identified until ten days after her death. Detectives noticed that deceased was found wearing a unique shirt that said “Smokin in The Cove” on it. They determined the shirt referenced an internet blog for a group of speed board racers who traveled around the country and raced speed boats. On October 18, the police obtained fingerprints and identified the deceased. At that point, the murder investigation began to unfold in Dallas.
Meanwhile, in El Dorado, Wade had begun his “missing person” investigation. In the afternoon of October 9, the day after deceased was reported missing, Wade spoke with appellant. Appellant said he last saw deceased on the evening of October 7 at a Subway sandwich shop. Appellant said he and deceased visited for awhile, then appellant left. A surveillance video tape from the Subway shop showed both deceased and appellant were there on that date, but they appeared separately over thirty minutes apart. The videotape showed appellant entered the shop at 7:28 p.m. and left at 7:30 p.m. while deceased entered at 8:16 p.m. and left at 8:19 p.m. Appellant told Wade that when deceased “disappears,” she goes to a man named Cedric Cook. Appellant said his calls to deceased on October 8 were unanswered. Wade also spoke to April McGraw (April), who identified herself as appellant's girlfriend. April said her phone number was “870-665-1077.” April had no information about deceased's disappearance.
After deceased's body was identified, the El Dorado police obtained a search warrant for appellant's residence. Officer David Gates, an investigator with the Union County Sheriff's Department in El Dorado, testified he was part of a team that executed a search warrant on appellant's residence on October 18, 2006. When officers searched appellant's room, they found, among other things, two cellular phones. The phones were seized and listed on the search warrant return, but they were never logged into the property room. Gates kept the phones in his possession. See Footnote 5 One of the phones was not functional for lack of a battery or SIM card; the other phone was operational. On the operational phone, the police found photographs of appellant, one of April and another of a boy believed to be appellant's son. When the police obtained the records for the operational phone, they found the phone number was registered to Roshanda Sims. At trial, Sims testified she and appellant dated previously. Sims obtained the phone in August 2006 at appellant's request and for his exclusive use, and the number was “678-939-1927.” See Footnote 6 Sims discontinued the account for appellant's phone in November or December 2006. Appellant's brother Johnny was not a suspect because he was in jail on October 7 and 8.
At trial, the State introduced into evidence the cellular phone records for appellant's phone. The records reflect that between October 7 and October 9, appellant's phone had made or received at least 197 calls. After focusing on the locations of the cellular towers that transmitted the calls, the police determined and the records revealed that appellant's phone left El Dorado at 10:30 p.m. on October 7, traveled to White Rock Lake in Dallas, then returned to El Dorado no later than 9:38 a.m. on October 8. The records show that in the immediate vicinity of White Rock Lake, four calls were made. Two calls were made at 4:33 a.m., one at 4:38 a.m., and one at 5:07 a.m. Appellant's cousin, Jarvis Moore, received two of the White Rock Lake calls: one at 4:33 a.m. and one at 4:38 a.m. The records also show that Jarvis called appellant's phone at 7:44 a.m. on October 8. When Jarvis woke up that morning, he discovered he had missed two calls from appellant's phone. Jarvis returned appellant's calls. The call lasted ten minutes, during which appellant told Jarvis about his meeting with his attorney, how much prison time he was facing, and that deceased was going to testify against him. When Jarvis spoke to appellant, he thought appellant sounded upset. Concerned about appellant's mental state, Jarvis asked his “Uncle Quinn” to go check on appellant. The records show that Jarvis's call was transmitted to appellant's phone by a cell tower in Marshall, Texas. Marshall is between Dallas and El Dorado. Some of the calls made from appellant's phone were “blocked” so the recipient could not see appellant's number on the caller ID feature.
According to the records, at least four calls to appellant's phone were from Quinn Moore, including calls at 10:45 a.m., ll:47 a.m., 3:37 p.m., and 4:39 p.m. At trial, Quinn Moore testified that as a result of Jarvis's call to him, he was worried appellant might be “suicidal or something.” Quinn wanted to check on appellant, but he did not talk to him. The testimony of both Jarvis and Quinn was confirmed by the call logs for appellant's phone.
The phone records also show at least forty-eight calls were made to and from April's phone, with number “870-665-1077,” and at least one call, at 10:46 a.m. on October 8, to the residence appellant shared with his mother. Other numbers listed on the call log were unidentifiable because they were either assigned to pre-paid phones or to accounts with false names or addresses. At the time of deceased's murder, appellant was on supervised release pending his sentencing in an unrelated federal case. One of the conditions of appellant's release was that he could not leave his residence without permission except for work or a medical emergency. Through a monitoring unit that used a phone line to transmit data from a device appellant wore on his wrist, a federal probation officer tracked the times appellant entered and left his home. Records show that at 5:30 p.m. on October 7, the home monitoring unit became disabled when someone disconnected it from the phone line, unplugged it, and opened it to remove the back-up battery. Anti-tamper tape had been removed to gain access to the battery. Records show the unit was re-connected and turned back on at 9:54 a.m. on October 8. Phone records from appellant's phone show he had arrived back in El Dorado no later than 9:38 a.m. on October 8. The monitoring unit recorded appellant's comings and goings before and after the interruption to its power supply, indicating that the unit itself was in good working order. Paul Brockway, an expert in monitoring systems, testified he has worked on monitors like the one used on appellant. He testified that on October 7 at 5:30 p.m., the unit reported “MNU - case tamper.” Then, at 9:54 a.m. on October 8, the unit reported “HMU Power up.” Brockway personally examined the unit. He determined the unit had been tampered with because the “anti tamper tape” had been pulled back so one could access the screws on the box. He explained that because the unit has a forty-eight-hour backup battery, simply unplugging the unit would not cause it to fail. The “HMU Power up” report meant someone had disconnected the battery and reconnected it. Brockway could not, however, testify when the unit had been tampered with.
Jeff Rogers, the Arkansas prosecutor on appellant's drug case, testified the drug case was set for trial on October 12, 2006. After Rogers met with deceased and her attorney about testifying for the State, he provided a summary of her potential testimony to the attorneys of the other co- defendants, as required by Arkansas law. He talked to appellant's attorney on Saturday, October 7, who told Rogers he was going to meet with appellant later that day. On October 8, Rogers learned that deceased was missing.
Tammy Albritton, a federal probation officer, testified that in October 2006, appellant was free on bond in a federal case. As a condition of his bond, appellant was required to wear a monitor and to leave his home only for work or other pre-approved outings. On August 30, 2006, Albritton conducted a standard home visit on appellant. She discovered that appellant had taken the monitoring device off his wrist. Appellant said he would “just leave it at home” whenever he wanted to go out. Probation officers could not determine how appellant removed the monitoring device from his wrist without damaging it. After that home visit, the monitor was replaced, and appellant was continued on supervision. On October 12, 2006, Shirley Evans, appellant's mother, called Albritton and said she had tripped over the phone cord and disconnected the monitor on October 7. Evans said the monitor was disconnected for about two or three minutes. When Albritton later asked appellant where he was on October 7, appellant said he was at home most of the day, but was also outside working on some “plumbing problems.” Appellant told Albritton he sometimes went to the Subway Shop to use the restroom.
Crystal Jones (Crystal) testified she was once romantically involved with appellant's brother Johnny. Sometime in September 2006, without prompting from anyone, Crystal told deceased that if deceased testified in the drug conspiracy trial, her life would be in danger. Crystal testified she felt she was “just giving [deceased] some advice.”
Appellant's mother Shirley testified that in October 2006, April was staying at her house. During that period of time, appellant was monitored from a unit that was hooked up to the phone line. The monitor box sat atop a television set in appellant's room. Sometime during the day on October 7, Shirley tripped over the phone line that was connected to the monitor, knocking it to the floor. The monitor box was put back on the television. Shirley was unaware, however, that the phone cord had become unplugged from the monitor box. Shirley testified that when she went to bed that night, appellant was in the house. She did not know if appellant remained in the house all night because she went to sleep. Shirley testified that as a result of their plumbing problems, they had to go “up the street” to use the bathroom. Shirley did not remember telling a police detective that appellant had a barbeque that night. The next morning, Shirley left the house without knowing if appellant was there or not. According to Shirley, appellant's cellular phone number at that time was “870-814- 9611.” Shirley explained to the jury that she was on cancer medication and sometimes had trouble “remembering things.”
Shirley authenticated several letters written by appellant. In a letter dated June 6, 2008, appellant wrote to a friend that he could not have killed deceased because he spent the night out drinking with three other friends. In a letter dated February 3, 2008, appellant wrote to April, stating, “You say you don't have anything, but what you've lost is because of the choices that you've made and you probably think you have nothing else to lose, but you do, like me and [your child].” On April 26, 2008, April wrote to appellant, stating “I still love you and will do anything for you.”
Appellant called two defense witnesses: Patricia Kellough and April. Kellough, a Dallas resident who knew both deceased and appellant, testified that during some of the time deceased was a fugitive on the Arkansas drug case, deceased had stayed with her in Dallas. During that time, deceased wrote a letter to the police taking full responsibility for the drugs. Deceased discussed this letter with Kellough. When she heard that deceased was missing, Kellough thought deceased was on the run again. She also thought deceased was the type of person who would go alone in the early morning hours to conduct a drug transaction.
April testified she was appellant's former fiancée, but was no longer dating him. April said she never knew appellant to have a phone with the number “678-939-1927.” On rebuttal, the prosecution pointed out that April had made numerous calls to that number on October 7, 8, and 9, and she had even left several voice messages on that number. April verified that number “870-665- 1077” was her cellular phone number. In October 2006, April lived with appellant and his mother. On October 7, she left for work at 6:30 p.m. Appellant stayed at home with her child. That night, April received several calls from appellant from number “870-881-8234.” She also received several phone calls from a blocked number. When she answered the blocked calls, all she heard was static. At 7:10 a.m. the next morning, April returned home from work and saw appellant at his mother's house. When questioned by the prosecutor regarding appellant's June 6 letter in which he stated he was out drinking with friends on the nights of October 7 and October 8, April testified there was “no way” appellant would have left the house, and that he must have been lying in the letter.
Following the arguments of counsel, the jury retired to deliberate, after which it returned a verdict finding appellant guilty of capital murder. This appeal ensued.
Issues on Appeal
In two points on appeal, appellant contends the evidence is both legally and factually insufficient to prove he was the person who killed deceased.
Standard of Review - Legal Sufficiency
The standard of review for legal sufficiency are well known to the parties. In a legal sufficiency review, an appellate court examines the evidence in the light most favorable to the verdict and determines whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-319 (1979); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). The fact finder is the exclusive judge of witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.-Dallas 2003, no pet.) (citing Jones v. State, 944 S.W.2d 642, 647-48 (Tex. Crim. App. 1996)). Reviewing courts are not fact finders. The reviewing court only ensures the rationality of the trier of fact's finding of the essential elements of the offense beyond a reasonable doubt. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). The same review standard applies to both direct and circumstantial evidence cases. King v. State, 29 S.W.3d 556, 565 (Tex. Crim. App. 2000).
A person commits capital murder if he intentionally kills another person in the course of committing or attempting to commit obstruction or retaliation against a witness or prospective witness. See TEX. PEN. CODE ANN. § 19.03(a)(2) (Vernon Supp. 2009). A person commits the offense of obstruction or retaliation if he intentionally or knowingly harms or threatens to harm another by an unlawful act (1) in retaliation for or on account of the service or status of another as either a public servant, witness, prospective witness or informant, or as a person who has reported or who the actor knows intends to report the occurrence of a crime; or (2) to prevent or delay the service of another as a public servant, witness, prospective witness, or informant, or person who has reported or who the actor knows intends to report the occurrence of a crime. See id. § 36.06(a).
In his first issue, appellant contends the evidence is legally insufficient to prove he killed deceased, either acting alone or as a party. He argues there was no evidence that any other party was involved in the offense, and he points out that the State argued appellant himself committed the offense. Appellant contends the evidence at trial was circumstantial and inconclusive. Therefore, he asserts, no rational trier of fact could have found beyond a reasonable doubt that appellant killed deceased.
The thrust of appellant's argument is that, even assuming he used the cellular phone that was tracked from El Dorado to Dallas and back, the evidence showed the murder did not take place until sometime around 7:00 a.m. on October 8. Appellant reasons that because Jones's call to the police at 5:03 a.m. was answered quickly by an officer, it indicates that if the murder had in fact happened at that time, the officer would have discovered the body while using a searchlight. The deceased's body was not in a hidden spot or concealed in any way. It was found in the open by a dock at White Rock Lake. Appellant argues it is “inconceivable” the body could have been there for almost two hours without being found by someone. Appellant also points to the cigarette butt with ash still intact as evidence deceased was not killed at 5:03 a.m. He points to Cordon's testimony that the ash is “fragile evidence” and is easily blown away. And, the partial DNA profile taken from the cigarette butt was consistent with deceased's DNA. Appellant argues the ash evidence is more consistent with deceased being killed shortly before the body was discovered at 7:00 a.m. rather than two hours earlier, at 5:03 a.m. Then, appellant argues that if deceased was killed close to 7:00 a.m., as the evidence suggests, it would have been impossible for the person in possession of the cellular phone to have been the killer because the phone was going away from White Rock Lake and was in Tyler, Texas by 7:00 a.m. In fact, says appellant, at 5:07 a.m., the phone had already left the White Rock Lake area.
Appellant cites several cases for the proposition that in circumstantial evidence cases, one inference cannot be based upon another inference to reach a conclusion or sustain a conviction. See United States v. Schorr, 462 F.2d 953, 959 (5th Cir. 1972); State v. Allen, 249 S.W.3d 680, 703 (Tex. App.-Austin 2008, no pet.). Appellant also contends the evidence is legally insufficient to meet the minimum due process requirements of the Fourteenth Amendment to the United States Constitution. See Jackson, 443 U.S. at 307. Citing Burks v. United States, 437 U.S. 1 (1978) and Greene v. Massey, 437 U.S. 19 (1978), appellant contends a judgment of acquittal must be entered.
The State, of course, argues otherwise, pointing out that appellant had a clear and compelling motive to kill deceased. See Clayton v. State, 235 S.W.3d 772, 781 (Tex. Crim. App. 2007)(noting that although motive is not an element of murder, it may be a circumstance indicative of guilt). Fewer than twenty-four hours prior to the murder, appellant learned through his attorney that deceased had agreed to testify against him in exchange for leniency from the prosecutors in a trial scheduled for the following week. Rogers, the Arkansas prosecutor, described deceased's testimony as “critical” to their case. Thus, appellant was left with no alternative to trial except to plead guilty and serve at least thirty years in prison. No other co-conspirator is linked to deceased's death. Appellant's brother Johnny was in jail, and there was no evidence linking the deceased's sister Felicia to the murder.
Appellant was the last person seen with deceased before her death. Appellant and deceased were seen by deceased's brother Brandon between 7:30 p.m. and 8:00 p.m. on October 7. Phone records of calls made and received, and the cell towers from which the respective calls were transmitted, establishes that appellant's phone traveled from El Dorado to Dallas and back to El Dorado on the night before and morning of deceased's murder. Indeed, the records show appellant's phone was at White Rock Lake immediately before and after deceased's death at around 5:00 a.m.
The phone was also linked to appellant by testimony from Sims, who testified she obtained the cellular phone at appellant's request and for his exclusive use. There is no evidence anyone else ever had access to appellant's phone. Appellant's cousin Jarvis spoke to appellant for ten minutes the morning of October 8. Phone records show that when appellant initially called Jarvis around 4:00 a.m., he was at White Rock Lake; when Jarvis returned appellant's calls around 7:44 a.m., appellant's phone was in Marshall, Texas.
Appellant had disconnected his monitor in the past. On the dates critical to this case, the monitor was again disabled, with the battery having been removed to conceal appellant's movements. The time line of the disabled monitor is consistent with appellant having driven from El Dorado to White Rock Lake, killed deceased, then returned to El Dorado.
The jury in this case, as fact finder, weighed the evidence, resolved conflicts in the evidence, and drew reasonable inferences from basic facts to ultimate facts in reaching its guilty verdict. See Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Each fact need not point directly and independently to a defendant's guilt, as long as the cumulative force of all the incriminating evidence is sufficient to support the conviction. Id. at 13. When the evidence is examined in the light most favorable to the verdict, a rational trier of fact could have found beyond a reasonable doubt that appellant killed deceased in the course of committing obstruction or retaliation against her as a potential witness against him. See King, 29 S.W.3d at 565 (circumstantial evidence legally sufficient to affirm capital murder conviction.) We conclude the evidence is legally sufficient. See Vodochodsky, 158 S.W.3d at 509. We resolve appellant's first issue against him.
Standard of Review - Factual Sufficiency
The standard of review for factual sufficiency is also well known to the parties. In a factual sufficiency review, we consider all of the evidence in a neutral light and determine whether (1) the evidence supporting the conviction is too weak to support the fact-finder's verdict or, (2) considering conflicting evidence, the fact-finder's verdict is against the great weight and preponderance of the evidence. Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009). We may only find the evidence factually insufficient when necessary to prevent manifest injustice. Id. In making a factual sufficiency review, a reviewing court is permitted to substitute its judgment for the jury's when considering credibility and weight determinations, but only “to a very limited degree.” Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006).
In his second issue, appellant contends the evidence is factually insufficient to prove he killed deceased. Appellant argues the evidence is factually insufficient for the following reasons: (1) the State's case was based entirely on circumstantial evidence, (2) the evidence did not prove appellant was in possession of the cellular phone that traveled from El Dorado to Dallas, and (3) there was no proof that appellant, himself, traveled to Dallas. Appellant also argues that April cannot be said to be an “interested witness” because she was no longer dating appellant and, in fact, came to appellant's trial with her new boyfriend. Thus, she was a credible, “disinterested” witness. Additionally, the evidence presented regarding the monitor was not credible because on this occasion, the battery was removed, whereas in the past when appellant would abandon the monitor, he would simply leave the device at home while he went out without removing the battery. It is reasonable to assume that he would have done the same in this event.
Appellant also points to deceased's activity as a drug dealer who had a history of going on the run. He points to Kellough's testimony that she first thought deceased was on the run again, and deceased was the type of person who would go by herself to conduct a drug transaction in the early morning hours. Appellant then concludes, with no basis in the factual record, that “[i]t is certainly a reasonable hypothesis that deceased met her fate at the hands of an unknown drug dealer on the morning of October 8, 2006.” Finally, appellant presents a hypothetical scenario which he contends is consistent with much of the evidence admitted at trial. In support of his proposition, appellant cites Wilson v. State, 7 S.W.3d 136 (Tex. Crim. App. 1999), in which the court held that the “existence of alternative reasonable hypotheses” may be relevant to a factual sufficiency review of the evidence. Id. at 141. Appellant also cites Richardson v. State, 973 S.W.2d 384, 387 (Tex. App.-Dallas 1998, no pet.) (“ . . . a reviewing court conducting a factual sufficiency analysis necessarily considers any reasonable alternative hypothesis raised by the evidence”). Appellant concludes that a new trial must be granted because when weighing all the evidence under a balancing test, the contrary evidence is strong enough that the “beyond a reasonable doubt” standard cannot be met. Therefore, the guilty verdict cannot stand.
Initially, we note two things about reasonable alternative hypotheses: first, they do not affect the standard of review. Second, to be relevant, they must be raised by the evidence. See Wilson, 7 S.W.3d at 141; Richardson, 973 S.W.2d at 387. The mere existence of a reasonable alternative hypothesis does not render the evidence factually insufficient. Richardson, 973 S.W.2d at 387.
Appellant suggests that because deceased was killed near 7:00 a.m., he could not have been the killer even if he had traveled to Dallas with the phone in question. The phone records showed he had left the White Rock Lake area by 7 a.m. Appellant concludes, without objective basis, that the police would have quickly found deceased's body if she had been killed at 5 a.m. As the State points out, however, the initial call was only a “shots fired” call. When an officer initially responded, he did not know a murder had occurred and was not looking for a dead body. It was dark, and the officer was using only a spotlight to look over the ten-mile circumference of the lake. By 7 a.m., there are normally many joggers at the lake, and it is likely a murder would not have gone unnoticed. Moreover, there were no other reports of gunfire at or near the lake at 7 a.m. or at any other time between 5:03 a.m. and 5:07 p.m. on that date.
Appellant next points to the existence of ash on a cigarette butt found near deceased's body. There was no evidence regarding the weather conditions on that date, such as wind or rain, that could have destroyed the ash. Relying on April's “alibi” testimony, appellant contends there is no evidence to prove he traveled to Dallas at all on the night of October 7. Of course, April's testimony is contradicted by appellant's June 2008 letter claiming he could not have been deceased's killer because he was out all night drinking with three friends. There was evidence appellant was seen with deceased in her car over an hour after April claimed she had left appellant at home with her child. Appellant's own statements to Wade, and a surveillance videotape from a Subway Shop, proved appellant was not at home at 7:30 p.m. on October 7. Phone and cell tower records show appellant's phone traveled from El Dorado to White Rock Lake and back to El Dorado. Jarvis's testimony confirmed that appellant had possession of the phone at 7:44 a.m. on October 8 in Marshall, Texas on his return trip to El Dorado. April's testimony that number “678-939-1927” was not appellant's number is simply not credible because a phone with that number was found in appellant's room, it contained pictures of appellant and April, Sims testified she got the phone at appellant's request and for his exclusive use, and April did not explain why she made or received forty-eight calls to that number over a three-day period, in addition to leaving several voice messages at that number for appellant.
Finally, appellant contends there is a “reasonable alternative hypothesis” deceased was killed by a drug dealer. There was no evidence, however, offered at trial supporting such a hypothesis. A defendant cannot show factual insufficiency of the evidence if the alternative hypothesis proposed on appeal was not raised by any evidence at trial. Richardson, 973 S.W.2d at 387.
The evidence supporting the jury's guilty verdict is not so weak, or so greatly outweighed by contrary evidence that the verdict is clearly wrong and manifestly unjust. We conclude the evidence is factually sufficient to support the guilty verdict. See Watson, 204 S.W.3d at 414. We resolve appellant's second issue against him.
We affirm the trial court's judgment.
Do Not Publish
Tex. R. App. P. 47
Footnote 1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Footnote 2 Johnny and Felicia were husband and wife. Deceased and appellant were “close friends, and maybe a little bit more.” Appellant had a residence in Dallas, but had previously lived in Arkansas. Whenever appellant was in Dallas, deceased visited him about once a month.
Footnote 3 There were no further reports of gunfire to the police in the vicinity of White Rock Lake until after 5:00 p. m. on that date.
Footnote 4 The police linked Barraza to the cellular phone by calling a number listed for “Mother.” However, Barraza was eliminated as a suspect in deceased's murder.
Footnote 5 The phones were admitted into evidence, over objection from the defense.
Footnote 6 The cellular phone with number 678-939-1927 will hereinafter be referred to as “appellant's phone.”