Gary Dominic Edwards v. The State of Texas--Appeal from 185th District Court of Harris County

Memorandum Opinion of November 9, 2006 Withdrawn; Affirmed and Substitute Memorandum Opinion filed November 14, 2006

Memorandum Opinion of November 9, 2006 Withdrawn; Affirmed and Substitute Memorandum Opinion filed November 14, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00634-CR

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GARY DOMINIC EDWARDS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th Judicial District

Harris County, Texas

Trial Court Cause No. 978,667

S U B S T I T U T E M E M O R A N D U M O P I N I O N

We withdraw our memorandum opinion of November 9, 2006 and substitute the following in its place.

A jury convicted appellant Gary Dominic Edwards of the murder of Lonny Smulian and assessed punishment at thirty-five years= confinement in the Institutional Division of the Texas Department of Criminal Justice. In a single issue, Edwards challenges the legal and factual sufficiency of the evidence supporting his conviction. We affirm.

I. Factual and Procedural Background

Gary Dominic Edwards and Anthony Gibson were very close friends.[1] According to testimony offered at trial, Edwards is five or six years older than Gibson, who was seventeen years old at the time of these events. Although the two were not related, they held themselves out as brothers.

On the evening of February 21, 2004, Edwards was stabbed on his arms with an ice pick or screwdriver at the Roadrunner Hotel. According to Edwards, his attacker was a man known to him only as John; however, Edwards believed that John was a friend of Lonny Smulian,[2] who lived in room 111 of the hotel. After the attack, Edwards went to room 113 of the hotel looking for Gibson.[3] Gibson was not there, but Rolanda Pouncy and David Seraphin were in the room, and Seraphin let Edwards in. Edwards told Pouncy he had been stabbed and asked her to call Ahis brother,@ Gibson. According to Pouncy, she told Edwards he needed to go to a hospital, and persuaded him to lie down while she got a towel to clean him. Pouncy did not immediately call Gibson as Edwards asked, but instead called her friend Courtney Johnson[4] for advice. Johnson arrived about fifteen minutes later.

Eventually, Pouncy decided to call Gibson to drive Edwards to a hospital.[5] She testified that when she told Gibson that Edwards had been stabbed, Gibson A[w]ent ballistic@ and demanded to know who stabbed his brother and where he was. Pouncy told Gibson that she and Edwards were in Gibson=s hotel room. Pouncy further testified that before Gibson arrived, Smulian, who lived two doors down, knocked on Gibson=s door and tried to persuade Edwards to come to his room. Smulian reportedly asked, AWhat happened to my room? It=s a mess. It=s ramshacked [sic], you know.@ Pouncy stated she refused to let Smulian in, but told him that Gibson was on his way. She further testified that Smulian and Gibson did not get along well together, and that Smulian had returned to his room.

Gibson and his girlfriend, Crystal Sosa, arrived at the hotel between 1:00 and 2:00 a.m. Gibson was enraged; he brandished a gun, fired at least two shots, and demanded to know who had stabbed Edwards. As Johnson later testified:

Johnson: [Gibson] pulled it [the gun] to myCmy head, know what I=m saying, he pulled it to my head and he was like, Did you cut him up, know what I=m saying? I was like, No, and then he asked meCthen he asked [Edwards], know what I=m saying, shouldChe cocked it, then he asked [Edwards], know what I=m saying, should he shoot me.

State: Let=s stop real quick. He cocked the gun and asked [Edwards] whether or not he should kill you?

Johnson: Yeah.

State: He went to [Edwards] for the answer to that question?

Johnson: Yes, sir.

* * * * *

State: What did [Edwards] say when he asked whether or not you should be killed.?

Johnson: [Edwards] didn=t say nothing.

Pouncy also testified that Gibson put a gun to Johnson=s head and asked Edwards, ADo you want me to kill him? I=ll kill him for you, brother.@ Like Johnson, Pouncy testified that Edwards said nothing in reply.

Johnson left the room, and according to Pouncy, Gibson put the gun to Seraphin=s head and forced him to remove his clothes. Pouncy testified that Gibson=s Aranting and raving@ lasted for approximately a half-hour before Gibson was persuaded to put down the gun. Before Edwards left with Gibson and Sosa, Pouncy told Sosa to take Edwards to a hospital. Pouncy watched the three leave in Seraphin=s truck, then she and Seraphin went to another room in the hotel and smoked crack cocaine; however, she continued to go in and out of the room throughout the night.

At around 4:00 or 5:00 a.m., Pouncy saw Seraphin=s truck in an alley near room 109. Pouncy wanted to get the keys from Gibson so that Seraphin could leave. She returned to Seraphin and told him his truck was outside, but Seraphin refused to move. Pouncy went outside again and saw Gibson and a shorter person in a black leather jacket knocking at Smulian=s door.[6] Pouncy was frightened; she knew that Smulian and Gibson didn=t like each other. She returned to the room, called Johnson, and asked him to A[c]ome and see what=s going on.@ After calling Johnson, Pouncy again went outside, and although she could still see Seraphin=s truck, the two people who had been outside Smulian=s room were no longer there.

Johnson got a ride back to the hotel, and as he approached Smulian=s room, he could hear Smulian screaming loudly. Johnson called to Smulian, ABonsai, what=s wrong?@ Smulian answered, ACall security.@ Johnson could hear sounds of a struggle in the room and heard one or more male voices saying, Amove@ or Ashut up.@ He told Smulian to open the door, but Smulian repeated, ACall security.@

Johnson went to the hotel=s front office and asked the hotel clerk to check on the person in room 111. The hotel employee called Smulian=s room, but there was no answer, and the clerk refused to get further involved. Johnson then called a taxi and left the hotel without returning to Smulian=s room.

Jennifer Dangona was staying in room 211 directly above Smulian=s room with a friend she identified as AKeith.@ At 5:25 a.m., Dangona heard a gun shot from the room below. According to her testimony at trial, she heard Amore than two@ male voices yelling in room 111. Five more shots were fired, with approximately thirty seconds between each shot. After the sixth shot, Dangona could hear a man pleading for his life. Dangona and Keith hid in the closet of the room, and Keith called 911 on Dangona=s cell phone, but no one came to the hotel to investigate.

The next morning, a member of the hotel=s housekeeping staff called the hotel manager after discovering that the door to room 111 was blocked and would not open. The manager discovered Smulian=s body at about noon on February 22, 2004. Smulian had been shot twice in the chest, once in the armpit, and once in the back of the left thigh. The police officers who first arrived at the scene testified that Smulian=s body was found on the floor with a phone cord wrapped around it. One bloodstained bedspread was heaped next to the body, and another remained on a bed.

Based on an anonymous tip, police arrested Edwards and Gibson a few days later. The murder weapon was never recovered. DNA evidence later showed that the bedspread heaped on the floor beside Smulian=s body was stained on one side with Edwards=s blood and on the other side with Smulian=s blood. The bedspread that remained on the bed was stained with Smulian=s blood.

Edwards presented no evidence at trial. A jury convicted him of murder and assessed punishment at thirty-five years= imprisonment.[7] This appeal ensued.

II. Issue Presented

In his sole issue, Edwards contends the evidence is legally and factually insufficient to support his conviction. We disagree.

III. Standard of Review

A. Legal Sufficiency

After being instructed that it could convict Edwards either as the principal actor in Smulian=s murder or as a party to the offense, the jury returned a general verdict of guilty. The evidence is legally sufficient if it supports either theory. See Rabbani v. State, 847 S.W.2d 555, 558 (Tex. Crim. App. 1992) (en banc). When reviewing the legal sufficiency of the evidence, we examine 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, 319, 99 S. Ct. 2781, 2789 (1979); Mason v. State, 905 S.W.2d 570, 574 (Tex. Crim. App. 1995) (en banc). A person commits murder if he intentionally or knowingly causes the death of an individual. Tex. Penal Code Ann. _ 19.02(b)(1) (Vernon 2003). He acts as a principal if he intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. Id. at _ 19.02(b)(2). He acts as a party if he intentionally promotes or assists the commission of the offense by soliciting, encouraging, directing, aiding, or attempting to aid another person to commit the offense. Id. at __ 7.01, 7.02. Circumstantial evidence alone can be used to prove a person is a party to an offense. Powell v. State, 194 S.W.3d 503, 506 (Tex. Crim. App. 2006). AEach fact need not point directly and independently to the guilt of the appellant, as long as the cumulative effect of all the incriminating facts are sufficient to support the conviction.@ Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004) (affirming conviction of appellant as a party to his wife=s murder based on motive, conflicting statements, and other circumstantial evidence).

B. Factual Sufficiency

In reviewing the factual sufficiency of the evidence, we view all the evidence in a neutral light and set aside the verdict Aonly if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.@ Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997) (en banc) (quoting Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996) (en banc)). Before we may reverse for factual insufficiency, we must first be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury=s verdict. Watson v. State, No. PD-469-05, 2006 WL 2956272, at *10 (Tex. Crim. App. Oct. 18, 2006). When reviewing the evidence, we must avoid intruding on the factfinder=s role as the sole judge of the weight and credibility of the witness testimony. Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000) (en banc). We do not re-evaluate the credibility of witnesses or the weight of evidence, and will not substitute our judgment for that of the factfinder. Johnson v. State, 967 S.W.2d 410, 412 (Tex. Crim. App. 1998).

IV. Analysis

A. The Evidence is Legally Sufficient to Support the Conviction.

Edwards concedes that Pouncy=s testimony places Edwards at Smulian=s door shortly before shots were fired. He also admits that the bedspread stained with Edwards=s blood places him inside Smulian=s room at some time, but correctly points out that there is no forensic evidence establishing when this occurred. Finally, Edwards points out that on cross-examination, Pouncy testified that Gibson told Edwards that if Smulian Ahad anything to with@ Edwards=s stabbing, Gibson would kill him. According to Pouncy, Edwards told Gibson that Smulian Adidn=t have anything to do with it.@ Thus, Edwards argues, the evidence provides no more than a suspicion that he was involved in Smulian=s death.

We disagree. Both Johnson and Pouncy testified that Gibson asked Edwards whether he should kill Johnson, and when Edwards did not answer, Gibson allowed Johnson to leave. The jury could have inferred from this testimony that, in deciding how to retaliate for Edwards=s stabbing, Gibson placed himself under the direction of his older Abrother,@ Edwards. Pouncy also testified that the person in the black jacket who was knocking on Smulian=s door was Gibson. She was cross-examined about prior statements in which she identified the person in the black jacket as Sosa; however, we presume the jury credited her explanation and found her testimony in this case credible. See, e.g., Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000) (stating that inconsistencies in testimony are resolved in favor of the verdict when conducting a legal sufficiency review). Dangona testified there were Amore than two@ male voices in the room, and Johnson testified that the voices he heard coming from Smulian=s room during the crime could have come from both Gibson and Edwards.

Taken together, the evidence is legally sufficient to support the conclusion that Edwards aided or encouraged Gibson to kill Smulian. Accordingly, we hold the evidence is legally sufficient to support Edwards=s conviction.

B. The Evidence is Factually Sufficient to Support the Conviction.

In conducting a factual sufficiency review, we must discuss the evidence appellant claims is most important in undermining the jury=s verdict. Sims v. State, 99 S.W.3d 600, 601 (Tex. Crim. App. 2003). Edwards argues that only three pieces of evidence support the jury=s verdict: (1) Pouncy=s testimony that she saw Edwards outside Smulian=s door shortly before the murder, (2) Johnson=s testimony that a voice he heard in Smulian=s room may have been Edwards=s, and (3) Edwards=s blood found on a bedspread in Smulian=s room. But, according to Edwards, this evidence is factually insufficient to support his conviction.[8]

We disagree with Edwards=s premise; additional evidence supports the jury=s conclusion that Edwards was actively involved in the murder as a principal or as a party. Earlier that night, Gibson held two people at gunpoint based on his suspicion that they may have been involved in Edwards=s stabbing, yet the uncontroverted testimony of both Pouncy and Johnson was that Gibson looked to Edwards for agreement before shooting. Because Edwards said nothing, Gibson did not shoot. Their testimony supports an inference that Gibson would not have killed Smulian without Edwards=s encouragement.

Pouncy further testified:

State: When you saw them, who was closest to the door, [Gibson] or [Edwards]?

Pouncy: [Edwards].

State: Had you observed [Smulian] and [Gibson] interact before?

Pouncy: Yeah. They didn=t like each other.

* * * * *

State: Would [Smulian] have opened the door for [Gibson]?

Pouncy: I don=t think so.

State: Would he have opened the door for [Edwards]?

Pouncy: Yes, sir.

From this testimony, the jury could also infer that Edwards actively assisted Gibson to gain access to Smulian=s room to commit murder.

Additionally, A>consciousness of guilt= is perhaps one of the strongest kinds of evidence of guilt.@ Torres v. State, 794 S.W.2d 596, 598 (Tex. App.CAustin 1990, no pet.). Similarly, evidence that the defendant changed his story is some evidence of guilt. See Prieto v. State, 879 S.W.2d 295, 300 (Tex. App.CHouston [14th Dist.] 1994, pet. ref=d). Here, over defense objections, the jury heard a recorded statement Edwards made to police at his own request some days after his arrest. In the space of a few minutes, Edwards gave several inconsistent accounts of events. In the first version, Edwards claimed that when he pursued John, Smulian=s door was closed and Smulian was not at the hotel, but Smulian came to room 113 in the time between the stabbing and Gibson=s arrival. In the second version, Edwards said that Smulian came to room 113 to after Gibson=s arrival, and with Gibson acting as a peacemaker, Edwards and Smulian shook hands. These first two versions do not explain why Edwards=s blood was on a bedspread next to Smulian=s body, because in these accounts, Edwards did not enter Smulian=s room. In the third version, Edwards entered Smulian=s room and sat on a bed while asking where to find John. In the fourth version, Edwards simply told Smulian about the stabbing, but denied asking about John. The jury was entitled to view Edwards=s repeated revisions of his story as attempts to create a version that would comport with the evidence. Viewed in a neutral light, these changing statements are further evidence of guilt.

In his recorded statement, Edwards also stated that after he left the hotel with Gibson and Sosa, Awe went to Susan=s house. I gave my lawyer Susan=s number to show that I was there. I bled on her sheets, too, to show that I was there.@ Edwards=s statement that he bled on Susan=s sheets Ato show that I was there@ can also be interpreted as an attempt to establish an alibi at a time when he should not have known of the need for an alibi. Like flight and inconsistent statements, a defendant=s attempts to fabricate evidence support an inference of consciousness of guilt. See Johnson v. State, 583 S.W.2d 399, 409 (Tex. Crim. App. 1979); see also Wilson v. State, 195 S.W.3d 193, 204 (Tex. App.CSan Antonio 2006, no pet.) (considering the accused=s inconsistent statements to police in Aan apparent attempt to create an alibi@ as part of the evidence found legally and factually sufficient to support a murder conviction).

Finally, Pouncy testified that Edwards wrote her at least three times before his trial and asked her to change her expected testimony. A defendant=s efforts to induce a witness to change or withhold testimony are a further indication of consciousness of guilt. Garza v. State, 172 Tex. Crim. 468, 470, 358 S.W.2d 622, 623 (1962) (considering evidence that the accused offered a police officer seven hundred acres of land to Ahelp him get out of this@ as part of a challenge to the sufficiency of the evidence); see also Rodriguez v. State, 577 S.W.2d 491, 493 (Tex. Crim. App. 1979) (AHe told that witness to drop the charges against him. These are hardly the actions of an innocent accused. This evidence is every bit as probative of guilt, as would be flight by the accused.@).

Viewing the evidence in a neutral light, and considering the substantial evidence of consciousness of guilt together with the circumstantial evidence of Edwards=s complicity, we conclude the jury=s verdict is not contrary to the great weight and preponderance of the evidence. We overrule Edwards=s sole issue on appeal.

V. Conclusion

We hold the evidence is legally and factually sufficient to support Edwards=s conviction for the murder of Lonny Smulian. Accordingly, we affirm the trial court=s judgment.

/s/ Eva M. Guzman

Justice

Judgment rendered and Substitute Memorandum Opinion filed November 14, 2006.

Panel consists of Chief Justice Hedges and Justices Yates and Guzman.

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

[1] Edwards and Gibson were referred to by most witnesses as ABoo@ and ANo-No.@

[2] Smulian was nicknamed ABonsai.@

[3] According to testimony presented at trial, room 113 was rented to Gibson; however, in an unsworn recorded statement made after his arrest, Edwards referred to the room as ACrystal=s room.@ Crystal Sosa was Gibson=s girlfriend. Regardless of whether the room was registered in the name of Gibson or Sosa, it is undisputed that Edwards went to the room looking for Gibson.

[4] At trial, witnesses frequently referred to Johnson as AFoe.@

[5] Seraphin had rented his vehicle to Gibson.

[6] In Gibson=s trial for the murder of Smulian, Pouncy testified that she had seen Gibson and Sosa in front of room 111 at this time. When cross-examined about her testimony in the Edwards trial, Pouncy said the inconsistency was due to the fact that Sosa and Edwards had similar jackets.

[7] In a separate proceeding, Gibson was also convicted of first-degree murder and sentenced to seventy years= confinement. Gibson v. State, No. 14-05-00220-CR, 2006 WL 909485, at *1 (Tex. App.CHouston [14th Dist.] April 11, 2006, pet. ref=d) (mem. op., not designated for publication).

[8] Specifically, Edwards argues that this evidence may preponderate in favor of guilt, but does not prove the elements of the crime beyond a reasonable doubt. This argument relies on language articulated in Zuniga v. State, 144 S.W.3d 477, 485 (Tex. Crim. App. 2004) that has since been overruled by Watson v. State, No. PD-469-05, 2006 WL 2956272, at *10 (Tex. Crim. App. Oct. 18, 2006). At the time Edwards=s appeal was briefed, he did not have the benefit of the Watson opinion; therefore, we will construe his brief to argue that the evidence is factually insufficient to support his conviction under the governing standard of review as set forth in Watson and Cain.