Timothy James Winters v. The State of Texas--Appeal from 20th District Court of Milam County

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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-95-00473-CR
Timothy James Winters, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF MILAM COUNTY, 20TH JUDICIAL DISTRICT
NO. 18,894, HONORABLE CHARLES E. LANCE, JUDGE PRESIDING
The State prosecuted Timothy Winters, Rashid Muhammad, Trayvonce W. Wright, and Kenneth Smith for the murder of Wilbert Miller on or about July 27, 1994. (1) The court instructed the jury to acquit Smith. The jury convicted the remaining defendants and sentenced Winters to thirty years in prison and a $10,000 fine. Winters raises five points of error, including his contention that insufficient evidence corroborates the accomplice witness's testimony. We will affirm the judgment of conviction.

The only eyewitness account of the murder came from Chris Evans, a participant. Evans testified at trial that Muhammad told him that Miller owed Muhammad $500. Evans said that on an evening in summer 1994, he and the four defendants took Miller from Kathy Pride's house in a green Buick LeSabre. They got out of the car and Winters held Miller so that Muhammad and Wright could stab him. Winters next took a knife and stabbed Miller, then Evans stabbed Miller. The five left Miller to die.

Several months later, Evans reported finding a skeleton to police. Investigators eventually identified the skeleton as Miller's remains. Evans initially denied knowing who the skeleton was. Over the course of several interrogations, his story evolved, increasing his culpability, until he admitted to delivering the final, fatal stab wound to Miller.

Because Evans was an accomplice to the murder, his testimony cannot be the basis for the conviction of others unless it is corroborated by other evidence tending to connect the defendant with the offense committed; the corroboration cannot merely show commission of the offense. See Tex. Code Crim. Proc. Ann. art. 38.14 (West 1979).

We will treat Winters's challenge to the sufficiency of the corroborating evidence as a challenge to the sufficiency of the evidence to support the verdict. See Munoz v. State, 853 S.W.2d 558, 560 (Tex. Crim. App. 1993) (challenge to sufficiency of corroborating evidence). When reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict, and ask whether any rational trier of fact could have found beyond a reasonable doubt all of the elements of the offense. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Santellan v. State, 939 S.W.2d 155, 160 (Tex. Crim. App. 1997). When reviewing the factual sufficiency of the evidence, we view all the evidence without the prism of "in the light most favorable to the prosecution" and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). We must ensure our review does not substantially intrude on the jury's role as sole judge of the credibility of witnesses. Santellan, 939 S.W.2d at 164.

We measure the sufficiency of the evidence against the charge given. Gonzales v. State, 931 S.W.2d 574, 575 (Tex. Crim. App. 1996). The charge instructed the jury to convict the appellants of murder if it found beyond a reasonable doubt: (a) that appellants intentionally or knowingly caused Miller's death by stabbing him in the chest and abdomen with a knife; (b) that appellants, intending to cause serious bodily injury to Miller, committed an act clearly dangerous to human life by stabbing him in the chest and abdomen, thereby causing his death; or (c) that any of the appellants knowingly caused Miller's death by stabbing him and that any of the other appellants knew of the intent to kill and acted with intent to promote or assist the murderer or murderers in the commission of the offense by encouraging, directing, aiding, or attempting to aid the commission of the murder. The charge also instructed that, because Evans was an accomplice to the murder, his testimony could not support appellants' conviction unless it was corroborated by other evidence tending to connect the appellants with the offense committed; the corroborating evidence must show more than mere commission of the offense. See Tex. Code Crim. Proc. Ann. art. 38.14 (West 1979).

When reviewing the sufficiency of the corroboration, we must ignore the accomplice witness's testimony and decide whether other non-accomplice evidence tends to connect the accused with commission of the crime. Walker v. State, 615 S.W.2d 728, 731-32 (Tex. Crim. App. 1981). We view the corroborating evidence in the light most favorable to the verdict. Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994); Utsey v. State, 921 S.W.2d 451, 453 (Tex. App.--Texarkana 1996, pet. ref'd). The accomplice witness's testimony need not be entirely corroborated, nor need the corroboration directly link the accused to the crime or be sufficient in itself to establish guilt. Gill, 873 S.W.2d at 48. Evidence that corroborates what the accomplice said he and others did but that does not connect the others to the crime cannot be considered. Walker, 615 S.W.2d at 732 (finding murder weapon where accomplice said they threw it does not connect other defendants to crime). Evidence that merely shows the commission of the offense and the joint presence of the accomplice and accused shortly before or after the offense does not provide sufficient corroboration. Lyman v. State, 540 S.W.2d 711, 714 (Tex. Crim. App. 1976). Additional evidence can make that evidence sufficient corroboration, however. Edwards v. State, 427 S.W.2d 629, 633 (Tex. Crim. App. 1968) (otherwise unexplained presence, shortly after crime, with accomplice in early morning hours in small town near crime scene, immediate journey to city hundreds of miles south, and pawning of victim's pistol after crime provided sufficient corroboration).

Peace officers and scientists testified regarding the discovery of the skeletal remains and the results of tests involving the remains. The tests showed that the remains were Miller's. Fractured ribs and vertebrae were consistent with multiple stab wounds, as were tears in a shirt found nearby that tests showed likely belonged to the victim. Tests on a knife introduced as a possible murder weapon showed nothing linking it to the victim or the appellants. Department of Public Safety crime laboratory chemist Steve Robertson opined that, because the knife in evidence likely did not make some of the tears in the shirt, a second weapon probably was used in the murder. Examination of Wright's car revealed no hairs or fibers matching the victim or his clothing. No physical evidence linked appellants to the victim.

Some of Miller's friends and family testified that he was selling drugs. A cousin found crack and powder cocaine in his room. An uncle testified that he flushed the powder down the toilet; the uncle testified that he knew of no connection between the drug sales and the appellants. Other witnesses testified that they never saw Miller sell drugs.

An investigating police officer testified that Winters's commander at Fort Sam Houston told him that Winters worked the shift that left at 4:30 p.m. on the alleged day of the murder.

Pascual Murillo, the officer who assisted in the arrest of Winters, testified that, upon his arrest, Winters acknowledged that he knew why he was being arrested. Winters volunteered that, while he was in Rockdale, his brother had pulled a knife and killed someone. He stated that he did not do it.

Virgil Crawford testified that he sold drugs with Smith and the appellants. Crawford said he had last seen the victim with the appellants at Kathy Pride's house and that Muhammad said he was going to "fuck [Miller] up if he didn't have the money" for some drugs he had advanced to Miller. Crawford said he left the house because he felt something bad was going to happen. He never saw Miller alive again.

Pride testified that she had seen the appellants, Crawford, and Evans at her house, but never all at once. She recalled appellants and the victim being at her house together. She testified that, if Miller had "crossed" the appellants, she believed they would harm him. She also testified, however, that the appellants and the victim were on friendly terms the last time she saw them. She said she knew of no connection between the appellants and the murder.

April Knight, Pride's niece, gave confusing and contradictory statements and testimony. She gave two written statements to police, the second of which was admitted at trial. She testified before the grand jury and at the trial.

In the admitted second statement, Knight said that in the late summer of 1994, the appellants, Smith, the victim, and Evans left her aunt's house after dark in Wright's green car. Knight never saw Miller again. After an hour, the appellants and Smith returned. The appellants remained outside talking about killing someone, but acted like they did not want her to hear. Smith appeared upset and in shock. Knight said Miller was selling drugs for Muhammad and Wright, but "got crossways" with them over some dope, probably by not paying them for some dope that they had fronted him. Sometime later, Smith told her he was present when Miller was murdered. He did not tell her who did the killing, but said he tried to dissuade them and just watched.

At trial, Knight testified that the four defendants sold drugs at Pride's house. She first testified that she never saw Miller, her cousin, sell drugs; when directed to read her second statement to police, she recalled seeing Miller sell drugs for Wright. She testified that she knew of no problem between Miller and the defendants; when directed to read her second statement, she acknowledged that she had said that there was a problem, but recanted that assertion. She nevertheless maintained that Miller owed the appellants money for drugs. She then stated that Miller had sold drugs for four or five years before the appellants ever came to Rockdale, while admitting that she had only minutes before denied ever seeing him sell drugs. She said that, on the night Miller disappeared, all four defendants were at the house where she lived with her aunt, Kathy Pride; she said Miller showed up briefly and left alone, though she had said in her second statement that he left with the defendants. She said she was scared when she gave the second statement and simply went along with what the officers told her had occurred. She denied that Smith told her he was present when Miller was killed, while acknowledging that she had testified before the grand jury he had done so.

At that point, the trial court excused the jury and admonished Knight concerning aggravated perjury, a felony offense for which she could be imprisoned for ten years and fined $10,000. He noted that her grand jury testimony and her trial testimony conflicted and could not both be true. He told her he "did not like to have people come in here and take a solemn oath before God and this Court and then lie. I'm sick of it. . . . I suggest strongly that you start telling this Court the truth." He then asked her why she had lied. When she said she did not know, the court replied, "Give me a break."

When testimony resumed and Knight was confronted with a contradiction between her trial testimony and her grand jury testimony, Knight deferred to her grand jury testimony that the appellants visited every weekend. She conformed her testimony about who she saw getting into a car on the night of the murder to the version in her second statement; she said the defendants, the victim, and Evans got into the car, but that only the defendants returned. She again denied that Smith told her about the stabbing but, when confronted with her second statement to police that he had, she said that he had told her about the stabbing. (The court limited that testimony about Smith's assertion to use against Smith.) After again giving contrary testimony on whether he told her he was present when Miller was stabbed, she stated that her testimony that he had not told her he was present was false.

On cross examination, Knight said the police threatened to take her baby away from her if she did not tell the truth in her statements to them; she said she therefore told the police what they wanted to hear. She denied telling Virgil Crawford that the appellants killed Miller; she said Crawford might lie. She said she never saw Miller afraid of appellants. She denied being told or knowing who killed Miller. When asked what the truth was, she said she did not know. Knight then reasserted her original statement to police that the last time she saw Miller he was walking alone, and said that in her second statement she only went along with the "official version" that he got into the car with the appellants. She said she never saw the defendants sell powdered cocaine; if Miller had some, it was not from them. She said that the defendants were not in Wright's green car but in a rented car the last time they were in Rockdale. She said that the second statement was the police's words, not hers; she said the second statement was the truth, but that she merely went by what they told her, not what she knew.

On redirect examination, Knight said the second statement was not the truth, that she never saw the defendants and Miller get into the car, and that Smith told her nothing. She admitted that some of her grand jury testimony was false. She said she could not remember when she last saw Miller. Though she testified that the appellants did not come to Rockdale during June or July, she admitted she was not in Rockdale then and would not know if they had. On recross examination, however, she said she visited on weekends. She said that the police kept insisting that she tell the truth, when the truth was that she did not know anything about the murder.

At the close of her redirect examination, the State offered Knight's second statement to police in evidence. It was admitted without objection or limitation. The instruction in the jury charge, limiting the consideration of evidence "that was admitted solely against Kenneth Smith" to use only against Kenneth Smith, does not limit the use of evidence admitted without limitation. On request, the court limited a particular part of Knight's testimony about what Smith told her, but that limitation did not apply to the typed statement that was later admitted without objection or limitation. (2)

Winters argues that, even if Knight's relation of Smith's statements was admitted for all purposes, Smith's statements are themselves accomplice testimony and cannot be used to corroborate Evans's testimony. The court of criminal appeals has decided that issue contrary to Winters's position. Bingham v. State, 913 S.W.2d 208, 211 (Tex. Crim. App. 1995) (op. on reh'g). Only the in-court testimony of accomplices is subject to the corroboration requirement of the accomplice-witness statute. Id.

Viewed most favorably to the verdict, the evidence is legally sufficient to support the conviction. Evans's testimony is easily sufficient if corroborated. Crawford's testimony suggests a motive and intent to kill by Muhammad that immediately precedes Miller's disappearance. The destruction of the drugs by Miller's relatives further corroborates Evans's testimony. Knight's testimony and written statement, viewed most favorably to the verdict, show appellants with the victim shortly before the murder, their motivation to kill him, their discussion of murder after their return without Miller, and Miller's coincidental disappearance. Her relation of Smith's admissions is somewhat corroborative, but not decisive because he did not tell her who did the killing; it does, however, place all appellants at the murder scene. Murillo's testimony also shows Winters's knowledge about the stabbing; while it explicitly denies his actually stabbing Miller, it does not address whether he participated in the slaying. The corroboration allows us to consider Evans's testimony, which provides legally sufficient evidence for every element in the murder charge.

The evidence is also factually sufficient to support the conviction. While Knight's vacillation gives us some pause, the jury is the sole judge of the credibility of witnesses and can believe or disbelieve all or any part of her testimony. Evans's testimony provides ample evidence to support the conviction. We cannot say that the verdict was so against the overwhelming weight of the evidence as to render it clearly wrong and unjust. We overrule point one.

By point of error two, Winters contends the court erred by improperly interfering with the testimony by threatening State's witnesses when the testimony was contrary to the prosecution. Winters asserts that the trial court sided with the State by "admonishing the witnesses when the evidence was not coming across favorable to the State." We must examine the circumstances under which the warning was given, the tenor of the warning, and its likely effect on the witness's intended testimony. Davis v. State, 831 S.W.2d 426, 437 (Tex. App.--Austin 1992, pet. ref'd). If the admonition changed the witness's testimony to conform with the judge's or prosecutor's view of the facts, then a due-process violation may have occurred; a warning given when needed to prevent likely perjury does not violate due process rights. Id. at 437-38. The admonition of Knight, summarized above, was clearly justified by her repeated contradictions of previous sworn testimony, even testimony she had given only moments before. The stern warning had a negligible effect; the testimony she gave immediately after the warning was most affected by the warning and it provided no material information not elicited (and contradicted) elsewhere. Similarly, the warnings given to Anthony Miller seemed to have little clarifying effect on his testimony and caused no swing to the State's side. Even one of the appellants' lawyers noted in a question to him that "we're having some difficulty here today getting the truth of what you're trying to tell us." Anthony Miller's responses to some of the court's questions during the court's interrogation/warning outside the presence of the jury, which conflicted with some testimony before the jury, provided impeachment material for one of the appellants. These witnesses' persistent vacillations and repeated changes in testimony provided a proper impetus for the court's warnings against perjury. We conclude that the trial court's admonitions did not harm Winters. We overrule point two.

By point of error three, Winters contends the court erred by denying his motions to sever his trial from those of his codefendants. The statute grants a court discretion to decide whether to try multiple defendants charged with offenses growing out of the same transaction together or separately. Tex. Code Crim. Proc. Ann. art. 36.09 (West 1981). If a joint trial would be prejudicial to a defendant or defendants, the court must order a severance as to the defendant whose joint trial would prejudice the other defendant or defendants. Id. Appellate courts will find the trial court abused its discretion in refusing a motion to sever only when the defendant satisfies the "heavy burden" of showing clear prejudice. Metoyer v. State, 860 S.W.2d 673, 679 (Tex. App.--Fort Worth 1993, pet. ref'd).

Winters moved for severance before trial and reurged his motion several times during trial. Before trial, Winters said he feared conflicting defenses and the unavailability of codefendants to testify in a single trial to substantiate his alibi defense. He presented no conflicting defenses, testimony summaries, or proof that codefendants would not testify. During trial he reurged his motion four times: (3)

when the State tried to query Crawford on what defendants said to him while in jail; the court denied the motion, but did not allow the State to pursue the line of questioning at that time.

when the State called a witness to testify about gang affiliation and tattoos on Muhammad. The witness testified that Muhammad's tattoos showed that he was a member of a set of the Crips gang who dealt drugs; the witness also testified that there were gang members in the military in San Antonio. The witness also testified that Wright's tattoo disrespected a rival gang. He testified that gangs deal drugs and kill those who cross them. On cross examination, he admitted that not all gang members deal drugs and that he had no specific information about any gang activities by Wright or Muhammad. He did not testify regarding whether Winters was a gang member.

when the State sought to introduce a statement by Smith in which he claimed he never left San Antonio during the summer of 1994 because he was working six twelve-hour days per week and sleeping the seventh. The basis of the motion appears to be that he could not examine Smith on its veracity. Smith's counsel examined the police officer who took the statement and elicited the admission that investigation had shown Smith worked different dates than he put in his statement.

when the State sought to query James Wells regarding a conversation with Muhammad about a car. The court never ruled on the motion to sever, but sustained objections to admission of statements about the conversation, thus ending the examination.

The court did not abuse its discretion by denying the motion because Winters failed to show prejudice from a joint trial. Before trial, he made no showing of prejudice. The first and fourth times he reurged the motion, the court stopped the State from pursuing the purportedly prejudicial lines of questioning. In the second instance, there was no showing of special prejudice from the joint trial. Though he may have been tainted by the broad brush of the gang affiliation of his codefendants, he made no showing that such information would not have been admissible in his separate trial; the taint arose from his choice to associate with them, not because of the trial format. In the third instance, the veracity of the admitted statement was undermined without the need to call Smith. We overrule point three.

By his fourth point of error, Winters contends the trial court erred by interjecting objections sua sponte during his questioning of the witnesses. He contends the court's action constituted an impermissible comment on the weight of the evidence that deprived him of a fair trial and due process. Winters cites five instances:

when the court questioned the relevance of a line of Winters's counsel's questions regarding the nature, number, and length of police interrogations of various subjects and noted that it was far afield from the scope of redirect examination; the court, however, allowed the line of questioning to continue.

when the court interrupted after Winters's counsel asked the police chief whether Knight was telling the truth; the court deemed the question an improper incursion on the jury's role, but allowed the question and answer of "Reluctantly and partially, yes."

when the court, hearing Wright's counsel ask Anthony Miller (who was not in the army or shown to be aware of army policy) whether he thought the army would allow a soldier to wear "twigs" in his hair, instructed counsel to "move to something relevant, as opposed to what this person thinks about Army policy."

when the court sustained two general objections by the State and provided its own basis for the validity of the objection.

when a defendant objected to the State's offer of the written statement of a witness who had just testified, the court said, "I assume you're offering it under rule 803, Past Recollection Recorded?" After the State responded affirmatively, the court allowed the State to read it into the record, but did not allow it to be taken to the jury room.

Neither Winters nor any other party objected contemporaneously to these actions. Therefore, nothing was preserved for review. Tex. R. App. P. 52.

Even if error had been preserved, we find no reversible error. The first instance questioned the scope of redirect, but did not comment on the relevance of the questions or weight to be given the responses. Likewise, the statement in the second instance that the question encroached on the jury's role gave no guidance on how to resolve the issue. In both instances, the court allowed the questions and answers. The question regarding Army hair policy, the only cited question the court disallowed sua sponte, was so minimally probative that its disallowance was immaterial. In the fourth and fifth instances, the trial court merely stated the basis on which it excluded or admitted evidence; that does not show harmful bias. The court did not interpose the objections itself, or prompt the offer of the writing. The court simply stated a proper ground supporting its ruling on the objections and, when offered a recorded statement, asked if the State was offering it under the exception for recorded recollections. These actions may show an impatience with the laborious process of trying four defendants together, but do not show bias in favor of the State's case. Only the remark concerning the hair question constituted a comment on the evidence, and that evidence was not probative of issues for the jury's decision. We overrule point four.

By his fifth point of error, Winters contends the trial court erred by restricting recross examination to matters covered during redirect examination. The confrontation clause of the constitution forms the basis of the right to conduct cross examination. Dedesma v. State, 806 S.W.2d 928, 930 (Tex. App.--Corpus Christi 1991, pet. ref'd). The right to confront is generally protected when the defense has a full and fair opportunity to probe and expose infirmities in witnesses' testimony through cross examination. Id. Winters cites instances in which recross examination was cut short:

Muhammad's attorney was prevented from asking the police chief about the size of the sewer plant and whether he found out when maintenance workers went into the nearby field where the skeleton was found.

Smith's attorney was prevented from asking Crawford whether he ever stole anything from Wal-Mart.

the prosecutor was prevented from conducting re-redirect examination of the police chief; there was, accordingly, no re-recross examination.

None of these instances involved initial cross examination, just recross examination. None of these instances involved Winters. Nor does he show that he (or any other defendant) was prevented from recalling any of these witnesses; indeed, the State later recalled the police chief without hindrance from the trial court, and Winters again cross examined the chief. We fail to see how denying the State a re-redirect examination prevents a defendant from confronting a witness on whom he has conducted cross examination, recross examination, and further recross examination. Winters has not shown how the court's limitation impinged on his right to confrontation. We overrule point five.

Having overruled all five points of error, we affirm the judgment.

Marilyn Aboussie, Justice

Before Chief Justice Carroll, Justices Aboussie and B. A. Smith

Affirmed

Filed: July 24, 1997

Do Not Publish

1. Muhammad and Wright appeal their respective convictions in Cause Nos. 03-95-00474-CR and 03-95-00475-CR also decided this date. We will refer to them and Winters collectively as "appellants." The three appellants were tried together, and we refer to our other two opinions for a full recitation of the facts and evidence. The term "defendants" includes the appellants and Smith.

2. The exchange leading to the limiting instruction was as follows:

Q. And even though in that [second] statement you say that "Kenneth [Smith] told me that he was there with 'Rock,' 'T-Top,' 'Tray Man,' and Chris Evans, you're now telling us he didn't say that? Can you answer that question?

A. Yes.

Q. Did he tell you that or did he not tell you that?

A. Yeah, he told me that.

Q. He told you that?

A. Yeah.

Defense counsel then raised his objection, which was overruled, and requested an instruction limiting use of that statement to use against Smith, which was given. This exchange occurred long before the State offered the statement itself into evidence.

3. Winters cites a fifth time, but that instance occurred away from the jury and related to testimony from a proposed witness. He reurged the motion when the witness, the gang expert, was actually on the stand.

s covered during redirect examination. The confrontation clause of the constitution forms the basis of the right to conduct cross examination. Dedesma v. State, 806 S.W.2d 928, 930 (Tex. App.--Corpus Christi 1991, pet. ref'd). The right to confront is generally protected when the defense has a full and fair opportunity to probe and expose infirmities in witnesses' testimony through cross examination. Id. Winters cites instances in which recross examination was cut short: