WILLIE MURPHY v. THE STATE OF TEXAS--Appeal from 347th District Court of Nueces County

NUMBER 13-05-308-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

 WILLIE MURPHY, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 347th District Court

of Nueces County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Garza

Memorandum Opinion by Justice Rodriguez

This is a murder case. A jury found appellant, Willie Murphy, guilty of murder.[1] Appellant was sentenced to thirteen years in prison and assessed a $10,000 fine. By one issue, appellant complains of the factual sufficiency of the evidence to support the guilty verdict. We affirm.

I . Standard of Review

The sole question to be answered in a factual sufficiency review is whether, considering all of the evidence in a neutral light, a jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004); Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997) (providing that when performing a factual sufficiency review, the reviewing court must examine all of the evidence impartially). We measure the factual sufficiency of the evidence against a hypothetically correct jury charge. Adi v. State, 94 S.W.3d 124, 131 (Tex. App.BCorpus Christi 2002, pet. ref'd) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)).

The evidence may be factually insufficient in the following ways: (1) where the evidence supporting the conviction is itself too weak, standing alone, to support the finding of guilt beyond a reasonable doubt; and (2) where the evidence contrary to the verdict is so strong that the "beyond-a-reasonable-doubt" burden could not have been met. Zuniga, 144 S.W.3d at 484-85. "Deference is given to the jury verdict as well as to determinations involving the credibility and demeanor of witnesses." Id. at 481. We may not reverse a fact finder's decision simply because we disagree with the result, Cain, 958 S.W.2d at 407, nor usurp the roll of the fact finder. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). Unless the available record clearly reveals a different result is warranted, a reviewing court must defer to the fact finder's determination concerning the weight to be given contradictory testimonial evidence. Id. at 8. A reviewing court is authorized to disagree with a fact finder's determination only when the record clearly indicates such a step is necessary to prevent a manifest injustice. Id. at 9. A clearly wrong and manifestly unjust verdict is one in which the jury's finding "shocks the conscience" or "clearly demonstrates bias." Zuniga , 144 S.W.3d at 481.

II. Analysis

By his sole issue, appellant challenges the factual sufficiency of the evidence to support his conviction. He contends that the evidence supporting the conviction is insufficient because it is too weak, standing alone, to support the finding of guilt beyond a reasonable doubt. Id. at 484.

A. Corroboration of Confession

Appellant argues that the lack of evidence corroborating appellant's oral confession renders it too weak to support the conviction. However, to sufficiently corroborate a confession for murder, there must only be independent evidence tending to establish the corpus delecti, namely that the death was caused by a criminal act of another. Fisher v. State, 851 S.W.2d 298, 302-03 (Tex. Crim. App. 1993) (en banc). Considering all the record evidence, other than appellant's confession, in the light most favorable to the jury's verdict, we conclude the evidence established that the victim was actually murdered by someone.[2] See id. at 303. Therefore, the confession is sufficiently corroborated, and this argument fails.

B. In-court Repudiation of Confession and Denial of Homicide

Appellant also argues that his in-court repudiation of his oral confession and his in-court denial of the homicide render the confession too weak to support the conviction.

During appellant's videotaped confession, R.L. Garcia, Sr., detective with the Corpus Christi Police Department, asked appellant to tell him what happened to the victim. Appellant stated that between 10 and 11 p.m. on Monday, November 3rd,[3] he had been at the victim's apartment, which he referred to as "our house", and the victim, who appellant repeatedly referred to as "she," was getting ready to take a shower when they began "fighting" each other with "towels and everything." Appellant said that he started shoving the victim "a bit," and the victim was to give a signal for appellant "to stop," but appellant did not feel the signal that the victim "normally" gave. When the victim stopped breathing, appellant started panicking. Upon further questioning, appellant agreed, nodding and saying "yeah" or "yes," that he and the victim had been playing with towels as they had played once before, choking each other with a towel in what is called autoerotic behavior. The victim was supposed to give a signal, a pinch on the arm, for appellant to stop. The victim failed to do so and passed out and died. When asked the color of the towel used during that time, appellant replied, "Green." Detective Garcia asked in what room did that occur, and appellant replied, "In our bedroom." Detective Garcia then asked what kind of bedding was present in the room, clarifying that he was asking if there was a "regular mattress" or an "air mattress," "what kind of bedding," and appellant replied, "Just a regular mattress." After the victim died, appellant said that he started panicking, did not know what else to do, and had taken a knife and started stabbing the victim in the neck. When asked why he stabbed the victim, if he was already dead, appellant did not answer. Later, he said that he stabbed the victim "not to hurt her too bad." Near the end of the interview, Detective Garcia asked appellant if he wanted to tell him anything else. Appellant replied, "Just to let her know that I am sorry," and began crying.

At trial, appellant testified that he had said he had killed the victim but that it was not true. When asked why he would tell someone that he killed the victim if he did not do it, appellant responded as follows:

Cause on the statement I gave, I knew only one person would actuallyBwould know that I had nothing to do with it, cause they know the way that me and that person, how close we were. And sheBthat person know how fraction [sic] her son is on the neck. So if I did any kind of thing, [the victim] would have like actedBwould have just reacted and punched any kind of sort [sic]. So that is the only reason I gave that kind of statement.

When asked what he thought would happen when he told the police that he had killed the victim, appellant answered that he thought he was going to "end up getting, like, maybe probation or something like that." When defense counsel asked appellant why he would confess to something he did not do, appellant responded, "I don't know." When asked what was going through his mind when he told Detective Garcia that he killed the victim, if he did not do it, appellant said, "I really don't know what was going through my mind. I was in shock and stunned that even they try to pinpoint me on it. And it was just like me, justBI justBI just took time to snap on anything." Appellant stated that he did not kill the victim and was no where near his apartment the night that the victim was killed and had only been there once before, in October. He also testified that he was somewhere else that night. When the State's counsel asked why he gave a statement if he did not do it, appellant replied that when he found out what had happened, he was in a great state of shock.

A reviewing court cannot reweigh the relative credibility of one piece of evidence verses the other. See Fernandez v. State, 805 S.W.2d 451, 456 (Tex. Crim. App. 1992) (en banc) (setting out that unobjected to hearsay testimony had probative value and could be basis for sustaining conviction even when the declarant recanted her statements at trial). Although appellant later attempted to retract it, he confessed to killing the victim, and it is "the responsibility of the factfinder at trial to assess the probative force of each particular piece of evidence in its effort to determine if a defendant is guilty beyond a reasonable doubt." Id. at 455.

Once the trier of fact has made its decision assessing and weighing the probative value of the evidence in its determination of guilt or innocence, an appellate court does not have the power to step in and reevaluate the probity of an individual item of evidence in its review of the sufficiency of the evidence to support the verdict. An appellate court has only the discretion to determine if any rational trier of fact could have, based on the evidence admitted at trial, found the essential elements of the offense beyond a reasonable doubt.

Id. at 456 (citations omitted).

The jury was in the best position to determine appellant's credibility when he testified that, without mistreatment or misconduct on the part of the police, he confessed to murdering a close friend, giving details known only to persons who had seen the crime scene, because he was "in shock." We cannot now make our own credibility determination, as appellant urges, between the portion of appellant's testimony on the stand where he declared his innocence and appellant's videotaped confession of guilt that was published to the jury.

Therefore, deferring to the jury's determinations involving the credibility and demeanor of witnesses, see Zuniga, 144 S.W.3d at 481, we conclude that the record does not clearly indicate that we should usurp the roll of the fact finder to prevent a manifest injustice. See Johnson, 23 S.W.3d 7. Nothing in the record suggests that the jury's decision to believe appellant's confession rather than the portion of his testimony at trial in which he declared his innocence, was irrational or resulted in a "manifest injustice." We find no authority to support appellant's contention, and he provides none. This contention also fails.

C. Challenge to Confession as Unreliable and Weak

Finally, appellant asserts that his confession is unreliable and too weak to support a finding of guilt beyond a reasonable doubt because: (1) significant material detail that would be expected in a full confession is absent; (2) appellant's statement that a regular bed was on the floor of the bedroom conflicts with other evidence that showed an air mattress; (3) appellant's first-estimated time of the homicide, which was changed after a break was taken during the videotaped interview, conflicts with testimony of a State witness; (4) conflict is apparent when appellant wrote with his left hand during the interview and the medical examiner suggested that the person who stabbed the victim used his right hand; (7) appellant's fingerprints were absent from among those lifted from the apartment and twenty-five of ninety-five latent prints lifted were left open; (8) no genetic material matching appellant was found in the apartment and genetic material of two separate persons found at the scene was not a match for appellant or the victim; (9) police failed to compare genetic material recovered at the scene with that of Mr. Trevino, also known as Chicago, a person of interest in the case, and no written statement was taken from him;[4] (10) no followup on a business card found outside the apartment was conducted; (11) no murder weapon was found; and (12) there were no eyewitnesses.[5] Appellant also complains that the evidence is too weak to support the verdict in light of appellant's alibi that was unchallenged by the State.[6]

Appellant argues that this conflicting evidence, as well as the lack of evidence, renders the evidence too weak to support the verdict. However, evidence is not rendered insufficient when conflicting evidence is introduced. Machett v. State, 941 S.W.2d 922, 936 (Tex. Crim. App. 1996) (en banc). The reviewing court must assume that the fact finder resolved the conflicts, including conflicting inferences, in favor of the verdict, and must defer to that resolution. Id. Furthermore, although appellant invites this Court to reweigh the evidence presented and consider it in relationship to what was not presented, we choose not to do so. Based on the contentions raised, our factual sufficiency review in this case is to determine whether the evidence supporting the conviction is itself too weak, standing alone, to support the finding of guilt beyond a reasonable doubt. See Zuniga, 144 S.W.3d at 484-85.

Accordingly, viewing the evidence in a neutral light and measuring the factual sufficiency of the evidence against a hypothetically correct jury charge, we conclude that the evidence supporting the verdict is not too weak to support the jury's finding of guilt beyond a reasonable doubt as appellant argues. From the evidence, the jury could reasonably have found that by choking his victim with a towel and stabbing him with a knife, appellant intended to kill him. Furthermore, the jury, being the sole judge of the credibility of the witnesses, was free to accept or reject the evidence before it, and in doing so, concluded that appellant was guilty of murder. Accordingly, we conclude the evidence is factually sufficient to support the jury's verdict. Appellant's sole issue is overruled.

III. Conclusion

We affirm the judgment of the trial court.

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this 20th day of July, 2006.

[1]A person commits murder if he intentionally or knowingly causes the death of an individual. Tex. Pen. Code Ann. ' 19.02(b)(1) (Vernon 2003).

[2]Ricardo Ortiz, chief investigator for the Nueces County Medical Examiner's Office, did a preliminary examination of the body when he arrived on the scene. He testified that the man was lying nude, face down, on the floor of what appeared to be a bedroom. To his knowledge, the body had not been moved before he arrived. There had been what appeared to be a towel wrapped around the man's head or neck. Ortiz pronounced the man dead.

Later, Dr. Ray Fernandez, Medical Examiner for Nueces County, performed an autopsy on the victim. He noticed abrasions on the left side of the body, at the forehead and left side of the neck. There was a bruise at the left upper back, a stab wound at the right side of the neck and a puncture wound at the right lower neck. The hyoid bone in the front of the neck was fractured. There was a defensive type inside wound at the back of the wrist and another cut at the back of the shoulder. There were also abrasions on the side of the neck, consistent with scraping along the surface with some object, such as a towel. The cause of death was strangulation and a sharp wound to the jugular vein in the neck. In Dr. Fernandez=s opinion, it was a homicide.

[3]Appellant corrected the time and day, between 1 and 2 a.m. on Tuesday, November 4th, in a later session of the recorded confession.

[4]Detective Garcia testified that, approximately one week after the homicide and before appellant gave his confession, he talked with Mr. Trevino who said he was somewhere else. He testified that Mr. Trevino's fingerprints were taken and checked against the fingerprints at the crime scene. No match was found. Detective Garcia also stated that he talked with a friend of Trevino's and was satisfied with the answers that person gave and that "he had nothing to do with it, and that, possibly, Trevino had nothing to do with it." After appellant gave a confession, the detective felt there was no need to proceed with his investigation of Trevino.

[5]Additionally, without developing this contention further or providing authority in support thereof, appellant asserts that the confession was weak because he could not read and because leading questions were asked. While it is not an element of the offense, appellant also complains that the confession is weak and unreliable because the State offered no proof of any motive for appellant to kill the victim. In accordance with rule 38.1(h) of the Texas Rules of Appellate Procedure, we will only consider contentions that are supported by clear and concise arguments and with appropriate citations to authorities and to the record. Tex. R. App. P. 38.1(h). Because this assertion is inadequately briefed, we need not address it.

[6]Appellant asserts that his alibi was unchallenged by the State. However, while no rebuttal witnesses were presented, the State's presentation during its case in chief of appellant's own statement to the police which placed him at the scene and committing the crime, shows that the State did not agree with appellant's testimony at trial or with the testimony of his alibi witness.