Marcus Dante Thomas v. The State of Texas--Appeal from 290th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-06-00356-CR
Marcus Dante THOMAS,
Appellant
v.
The STATE of Texas,
Appellee
From the 290th Judicial District Court, Bexar County, Texas
Trial Court No. 2006-CR-1993B
Honorable Sharon MacRae, Judge Presiding

Opinion by: Catherine Stone, Justice

 

Sitting: Catherine Stone, Justice

Karen Angelini, Justice

Rebecca Simmons, Justice

 

Delivered and Filed: October 31, 2007

 

AFFIRMED

Marcus Dante Thomas was charged as a repeat offender by a two-count indictment with the offenses of aggravated kidnaping of Tory Marks and aggravated robbery of Laura Wicihowski. Both counts alleged use of a deadly weapon. Thomas was found guilty by a jury and was assessed punishment of 40 years imprisonment in the Texas Department of Criminal Justice. Thomas now appeals his conviction, and in five issues he contends: 1) a tainted photographic lineup identification by Tory Marks was improperly admitted; 2) he was denied the right to confront witnesses whose testimony was introduced by hearsay; 3) the evidence at trial was legally insufficient to support the jury's verdict; 4) evidence from a warrantless search of a vehicle should have been excluded; and 5) an error in the jury charge precluded a unanimous verdict. We overrule each of Thomas's issues and affirm the judgment of the trial court.

Background

After Tory Marks purchased rolling papers at a San Antonio convenience store, he was approached by Devonne Smith. Smith introduced himself as "EZ" and asked Marks whether he could find a specific type of marijuana. Marks said he could arrange a sale but would need a few days. Marks made a few calls and ultimately arranged to purchase the marijuana from Raul Pena.

On September 6, 2005, Smith and appellant Marcus Thomas met Marks at the convenience store before going to meet Pena. Thomas introduced himself as "Ed." They entered a dark four-door sedan driven by Thomas. Smith sat in the front passenger seat and Marks sat in the back seat. Marks instructed Thomas to drive to a restaurant where he had arranged to meet Pena. When they arrived at the restaurant, Pena was waiting in the parking lot. Marks introduced himself to Pena and then introduced Pena to "EZ" and "Ed." Pena later identified them as Smith and Thomas respectively. As they entered the restaurant, Pena told Marks to give him the money and wait at a table. Pena went to the back of the restaurant, walked out the door, entered the passenger side of a waiting car, and drove away.

Marks waited at the table for three to five minutes before calling Pena on his cell phone. Smith and Thomas entered the restaurant while Marks was on the phone. Thomas took the phone to speak to Pena and then accused Marks of setting them up. Thomas, Smith, and Marks returned to the parking lot where Smith and Thomas threatened to kill Marks and told him to get in the car. They drove to a gas station where Smith and Thomas made a call. Afterwards an individual in a white vehicle came and dropped off a gun in a trash can, which Smith retrieved. Smith pointed the gun at Marks and continued to make threats. Marks suggested that he could help them find Pena or that he might be able to get the money from his mother. They gave the cell phone to Marks to call his mother, Laura Wicihowski. He told her he was in trouble and needed her help. Thomas took the phone from Marks, and told Wicihowski to get $1000 or he would put holes in her son and dump him under an overpass. After hanging up, Wicihowski called the police and tried to collect cash. Over the next few hours, she received multiple calls from the suspects instructing her to go to different parking lots in an effort to drop off the money. Two times she put the money in places where the suspects could not find it.

Before a third attempt to drop the money, Wicihowski went to a nearby store parking lot, where police were gathering, and Officer Tory Smith entered her car. Officer Smith was lying in the back seat of her car as she made a third drop attempt. After the drop, the suspects called Wicihowski to tell her they intended to kill Marks because she had not left enough money and because they were being followed by a vehicle. Officer Smith took the phone and identified himself as a police officer. A high speed chase ensued.

Thomas drove away at high speed as Smith leaned out of the car window and shot at unmarked police vehicles. The dark sedan traveled on various highways and ultimately entered the grounds of a San Antonio housing project. Once in the housing project, Smith shot Marks in the hip as the car slowed; Smith got out and ran away on foot. As Marks lay on the back seat bleeding, the car slowed again and Thomas threw Marks out of the moving car. Marks stood and ran away. A pursuing plain clothes officer, who did not realize that Marks was a victim, told Marks to stop and put his hands up. Marks kept running and was shot eight times by that officer. Neither the suspect, nor the car, was found by police immediately following the pursuit. The next night Thomas surrendered to police; however, the circumstances of his surrender were not developed at trial.

Photographic Lineup

Thomas challenges Marks's identification by photographic lineup, claiming it was impermissibly suggestive. The record indicates that Marks's grandfather showed him a photograph of Thomas prior to the police photographic lineup. Thomas asserts that the tainted lineup undermines the sufficiency of the evidence identifying him as a suspect, and that the tainted lineup made his arrest unconstitutional.

The constitutionality of the arrest is a moot issue in this case because Thomas's challenge to the identification was not properly preserved for appellate review as his argument on appeal is different from the challenge he made at trial. See Tex. R. App. P. 33.1(a)(1)(A). In a hearing to challenge the identification, Thomas argued that his photograph was darker than the other five photographs in the array. Although Thomas questioned Marks on cross-examination about the photograph his grandfather brought to the hospital, he never objected to Marks's identification on that basis. The cross-examination testimony serves only to undermine the credibility of Marks's identification for the jury, but is not a ground for excluding the evidence.

We note that regardless of whether Thomas preserved the issue, a challenge against an impermissibly suggestive lineup procedure will lead to an exclusion of the identification only if it was the product of state action. See Craig v. State, 985 S.W.2d 693, 694 (Tex. App.--Houston [1st Dist.] 1999, pet. ref'd) (refusing to exclude an identification tainted by a defendant's photograph viewed on the nightly news because it was not the product of governmental action) (citing Rogers v. State, 774 S.W.2d 247, 259-60 (Tex. Crim. App. 1989), overruled on other grounds by, Peek v. State, 106 S.W.3d 72, 79 (Tex. Crim. App. 2003)). Thomas has not alleged that Marks's viewing of the photograph prior to the lineup was a product of state action. Thomas's first point of error is therefore overruled.

Confrontation

Thomas contends that hearsay evidence was admitted in violation of his right to confront the witnesses against him under the Sixth Amendment of the United States Constitution and under Article 1, Section 10 of the Texas Constitution. Although many hearsay objections were made by Thomas's counsel at trial, on appeal he does not cite any particular areas in the record where unconfronted hearsay evidence was admitted against him. Parties asserting error on appeal must point to those places in the record that support their contentions and to the places in the record that show they preserved error at the trial level. See King v. Wells Fargo Bank, N.A., 205 S.W.3d 731, 735 (Tex. App.--Dallas 2006, no pet.). Hearsay objections are not sufficient to preserve error for confrontation clause grounds. Tex. R. App. P. 33.1(a)(1)(A); Paredes v. State, 129 S.W.3d 530, 535 (Tex. Crim. App. 2004). This court cannot adequately address the confrontation issue because Thomas does not point to any places in the record where hearsay evidence was admitted over objection, nor to particular facts that were violative of his right to confront the witnesses against him. Because Thomas fails to direct the court's attention to the testimony or hearsay statements that are subject to his complaints, Thomas's second point of error is waived as inadequately briefed. See Tex. R. App. P. 38.1(h).

 
Sufficiency of the Evidence

Thomas argues on appeal that the evidence is legally insufficient to support his conviction. Although he presents a general sufficiency challenge, it is based on two specific issues. First, Thomas contends that Marks's testimony was legally insufficient because it was uncorroborated accomplice witness testimony. Second, Thomas contends that his identification as a co-defendant in this crime was based on unreliable or impermissible evidence.

A. Corroboration of Accomplice Testimony

On appeal, Thomas maintains that Marks was an accomplice, not a victim, and that Marks's testimony is legally insufficient because it is uncorroborated. The Texas Code of Criminal Procedure provides that accomplice testimony must be corroborated by other evidence tending to connect the defendant to the offense. Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005); Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002). Thomas's theory of the case on appeal is that Marks was not a victim of the kidnaping, but an accomplice in the robbery of his mother. This theory was not raised or developed by trial counsel in the cross-examination of Marks, nor was it raised in arguments to the jury. Thomas did not object to Marks's testimony, nor did he request an accomplice witness instruction in the jury charge. For error to be preserved on appeal, the record must show Thomas made a timely request, objection, or motion, Tex. R. App. P. 33.1(a)(1), and the evidence must be developed on the record. See Rhett v. State, 839 S.W.2d 93, 94 (Tex. Crim. App. 1992). Having failed to properly preserve error, Thomas has waived this issue.

B. Identification Evidence

Thomas argues that his identity was not sufficiently and reliably established at trial. He contends that Marks's identification of Thomas in a photo lineup was impermissibly tainted, and that Marks did not have sufficient contact with Thomas to reliably identify him. However, Thomas was identified by two different witnesses at trial. Marks had multiple conversations with Thomas, and he was in close proximity to Thomas throughout this criminal episode; Marks had ample opportunity to observe and identify Thomas. Marks and Pena both identified Thomas as "Ed," the driver of the dark sedan; the jury is free to believe their testimony regardless of their participation in criminal activity. "The jury, being the judges of the facts and credibility of the witnesses, could choose to believe or not believe the witnesses, or any portion of their testimony." Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). Additionally, Thomas has not challenged Pena's identification by photographic lineup. Standing alone, Pena's testimony is sufficient identification evidence for the jury to believe that Thomas was correctly identified. See Walker v. State, 180 S.W.3d 829, 832 (Tex. App.--Houston [14th Dist.] 2005, no pet.) (stating that a single eyewitness is sufficient to uphold a criminal conviction) (citing Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971)). Thomas's third point of error is therefore overruled.

Search of the Vehicle

In his fourth point of error, Thomas argues that evidence resulting from the search of a vehicle, found by police under a tarp in a private driveway, should be excluded as the result of an unreasonable search. Detective Curtis Walker was responsible for tracking the automobile used by the suspects. He eventually located the vehicle by visiting a previous address used by Thomas. A vehicle observed under a tarp in a private driveway appeared to be the general size and shape of the suspect vehicle. Walker lifted the tarp to look at the license plate, but the license plate had been removed. He looked at the windshield to find the VIN number and noticed the license plate sitting on the dashboard. The plate number matched that of the suspect vehicle. Walker then sought and obtained a search warrant. The only evidence the State presented at trial from the vehicle was three exterior photographs of the vehicle, the license plate number, and the VIN number.

Whether a defendant has standing to contest a search and seizure is a question of law reviewed de novo. Parker v. State, 182 S.W.3d 923, 925 (Tex. Crim. App. 2006). The burden to prove standing rests with the defendant during the motion to suppress hearing. State v. Klima, 934 S.W.2d 109, 110 (Tex. Crim. App. 1996). The appellate court may affirm the trial court's ruling denying a motion to suppress on the ground that the appellant failed to establish standing as a matter of law, even though the issue was not considered during the hearing on the motion. McDuff v. State, 939 S.W.2d 607, 616 (Tex. Crim. App. 1997). To have standing, or a reasonable expectation of privacy, a defendant must show two things: (1) he had an actual, subjective expectation of privacy, exhibited by measures taken to protect the privacy of the property in question; and (2) the subjective expectation of privacy is reasonable. Chavez v. State, 9 S.W.3d 817, 819-20 (Tex. Crim. App. 2000); Rogers v. State, 113 S.W.3d 452, 457 (Tex. App.--San Antonio 2003, no pet.). The Texas Court of Criminal Appeals has held that the burden to establish standing rests on the party arguing for the exclusion of evidence:

[t]his Court has previously stated that, because standing is an element of a Fourth Amendment claim, the State may raise the issue of standing for the first time on appeal, even when the defendant is the prevailing party in the trial court. The appellate court may raise the issue of standing on its own; it may analyze that issue as a part of the Fourth Amendment claim presented; or it may conclude that the State has forfeited that argument because it failed to raise it in the trial court.

 

Kothe v. State, 152 S.W.3d 54, 60 (Tex. Crim. App. 2004) (footnotes omitted). In this case, the trial judge warned Thomas's trial counsel that he needed to establish standing to challenge the search. However, Thomas failed to do so. Regardless of whether Detective Walker's actions constituted a search, Thomas has not established standing to challenge the search. Thomas's fourth point of error is overruled.

Jury Charge

Thomas argues for the first time on appeal, that an error in the jury charge may have led the jury to believe they did not have to be unanimous as to both counts. Jury verdicts in all Texas felony cases must be unanimous. See Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005); Tex. Const. art. V, 13; Tex.Code Crim. Proc. Ann. arts. 36.29(a), 37.02, 37.03, 45.034-036 (Vernon 2005). The applicable standard for reviewing an error in the jury charge requires that we determine (1) whether error exists in the jury charge, and then (2) whether sufficient harm resulted from the error to compel reversal. See Ngo, 175 S.W.3d at 743-44. Thomas complains that the charge was erroneous because although there were two separate counts in the charge, each requiring its own guilty verdict, the language of the charge is as follows: "[i]t is [the foreperson's] duty to preside at your deliberations, vote with you and, when you have unanimously agreed upon a verdict, to certify to your verdict by signing the same as 'foreperson.'" It is not clear that the singular 'verdict' presents an error in the context of this language, because it refers to the foreperson's duty after a decision is made as to "a verdict," and does not limit it to a singular "the verdict." However, even if this was an error, it should not be grounds for reversal "unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial." Tex.Code Crim. Proc. Ann. art. 36.19 (Vernon 2005).

In Almanza v. State, the Court of Criminal Appeals interpreted the standard of review in Article 36.19 for jury charge errors and concluded that if party did not object to the charge at trial it would have to demonstrate egregious harm to reverse the error on appeal. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). If a timely objection was made, the standard is whether the charge error was "calculated to injure the rights of defendant," and reversal is required if there was some harm to the appellant's rights. Id. If no proper objection was made at trial, a charge error will result in reversal only if the harm was fundamental and egregious such that appellant can establish that he "has not had a fair and impartial trial." Id. Thomas concedes that he did not preserve error by a specific and timely objection, and thus he must establish egregious harm.

"Errors that result in egregious harm are those that affect 'the very basis of the case,' 'deprive the defendant of a valuable right,' or 'vitally affect a defensive theory.'" Ngo v. State, 175 S.W.3d 738, 750 (Tex. Crim. App. 2005) (quoting Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996)). On appeal, harm is assessed "in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole." Almanza, 686 S.W.2d at 171. Thomas contends that because the unanimity language was presented in the singular, the jury may have thought that a finding of guilt on one count would be sufficient to find guilt on the other count. The jury charge in this case presented two separate counts and the jury signed a separate guilty verdict for each count. This charge does not present a true unanimity problem, because it does not present different methods of committing a single offense in the disjunctive, but provides two separate counts. Even if the verdict language is read as requiring one singular verdict, it is clear that the foreperson signed two separate verdicts, and was not affected by the clause. Thomas's fifth point of error is overruled.

 

Conclusion

Based on the foregoing, the judgment of the trial court is affirmed.

 

Catherine Stone, Justice

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