Mark Ashley White v. The State of Texas--Appeal from 294th District Court of Van Zandt County

NOS. 12-05-00012-CR

12-05-00055-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

MARK ASHLEY WHITE, APPEALS FROM THE 294TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE VAN ZANDT COUNTY, TEXAS

MEMORANDUM OPINION

Mark Ashley White appeals his convictions for murder and attempted capital murder. In three issues, Appellant contends the accomplice testimony was insufficiently corroborated to support his conviction and the trial court failed to administer an oath to the prospective jurors before jury selection. We affirm.

Background

Patrick Greenway and Appellant took Jon Marc Brown and Scott McClellen to a pasture in rural Van Zandt County to kill them. Appellant wanted to kill Brown because he believed that Brown had told the police about his activities. Greenway wanted to kill McClellen because he did not like him. Appellant and Greenway had concocted a story that Greenway was going to hire Brown and McClellen to do work for the mafia and drove the young men, along with Brian Cole, to the pasture to discuss the arrangements. After some discussion, Greenway separated Brown and McClellen from the group and began shooting at them with a shotgun. He shot and wounded Brown and shot McClellan several times. Brown s leg was broken, but he was able to crawl away from the immediate area and hide in some weeds. The shotgun held five shells, and Greenway went back to his truck to reload the shotgun. Appellant took the reloaded gun and some additional shells back to where McClellan lay wounded and shot him several more times. Brown was hit twice by shotgun blasts, and McClellan suffered nine shotgun wounds, including shots to his face and chest.

Appellant, Greenway, and Cole drove off and Brown was able to crawl to a neighboring home and seek assistance. McClellan died in the pasture. Appellant and the others went to Cole s house where they changed clothing and enlisted Dustin English to go back with them to the pasture to retrieve Greenway s pager, which he had lost in the fracas. As they arrived, they saw police lights and turned around and left.

Meanwhile, Clint Pirtle, a Department of Public Safety Trooper for nineteen years, was nearing the end of his shift. He heard a radio report of a shooting and a directive to be on the lookout for a red pickup truck and a subject named Greenway. Trooper Pirtle carried a telephone directory with him, and he found an address for a Greenway south of Canton. Coordinating his position with the shooting near Van, Trooper Pirtle traveled to Ben Wheeler to intersect anyone fleeing the scene toward the area south of Canton. Shortly after arriving in Ben Wheeler, Trooper Pirtle saw a red pickup truck. He stopped the truck and discovered Appellant, who was not wearing a shirt, along with Greenway, Cole, and English. Appellant gave Trooper Pirtle an inconsistent and vague account of where the men had been and where they were going. Trooper Pirtle testified that Appellant appeared to be in control of the situation.

Trooper Pirtle took the men into custody. In the course of the investigation, the police recovered the pants and shirt Appellant had been wearing at the time of the shooting. Forensic testing revealed McClellan s blood was on both the pants and shirt. A Van Zandt County grand jury indicted Appellant, Greenway, and Cole for capital murder and attempted capital murder.1 Greenway pleaded guilty to murder and attempted murder. Cole pleaded guilty to manslaughter and aggravated assault. Both agreed to testify against Appellant. Both Greenway and Cole testified that Greenway fired the first shots at Brown and that Appellant fired the final shots at McClellan as he lay wounded on the ground. Greenway testified that it was his and Appellant s intent to take the men to the pasture to kill them.

Brown testified that he was able to hide in some weeds after Greenway shot him. While hiding in the weeds, Brown heard McClellen, his cousin, crying out in pain, and he saw Appellant circling the area with the shotgun in his hands. Brown was able to describe the pants worn by Appellant.

At the conclusion of the trial, the trial court instructed the jury that they could find Appellant guilty as a party to the offenses. The jury found Appellant guilty of the offenses of murder and attempted capital murder. The jury assessed punishment at life imprisonment and a fine of ten thousand dollars for murder and ninety nine years of imprisonment and a fine of ten thousand dollars for attempted capital murder. This appeal followed.

Accomplice Testimony

In his first and second issues, Appellant argues that the evidence does not sufficiently corroborate Patrick Greenway s and Brian Cole s testimony.

Applicable Law

A conviction may not be sustained on the testimony of an accomplice unless there is other evidence tending to connect a defendant to the offense committed. Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005); Simpson v. State, 181 S.W.3d 743, 753 (Tex. App. Tyler 2005, pet. ref d). The corroborating evidence need not directly connect the defendant to the crime or be sufficient by itself to establish guilt, but it must do more than merely show the commission of the offense. Tex. Code Crim. Proc. Ann. art. 38.14; Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002). The requirement of Article 38.14 is fulfilled if the combined weight of the nonaccomplice evidence tends to connect the defendant to the offense. Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999). The corroborating evidence may consist of circumstantial evidence. Gosch v. State, 829 S.W.2d 775, 777 (Tex. Crim. App. 1991).

Even apparently insignificant incriminating circumstances may sometimes afford satisfactory evidence of corroboration. Trevino v. State, 991 S.W.2d 849, 852 (Tex. Crim. App. 1999). The accused s mere presence in the company of the accomplice before, during, and after the commission of the offense is insufficient by itself to corroborate accomplice testimony. Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996). Evidence of such presence, however, coupled with other suspicious circumstances, may tend to connect the accused to the offense. Id. Finally, evidence that connects an accused to a weapon used in an offense is proper corroborative evidence. Jackson v. State, 745 S.W.2d 4, 13 (Tex. Crim. App. 1988).

To evaluate whether there is sufficient corroborating evidence, we eliminate the accomplice testimony from our consideration and examine the record to ascertain whether the remaining evidence tends to connect the defendant with the offense. McDuff v. State, 939 S.W.2d 607, 612 (Tex. Crim. App. 1997). The accomplice witness rule is a statutorily imposed sufficiency review and is not derived from federal or state constitutional principles that define the legal and factual sufficiency standards. Vasquez, 67 S.W.3d at 236.

Analysis

Greenway and Cole were accomplices as a matter of law because they were indicted for the same offenses as Appellant. See Burns v. State, 703 S.W.2d 649, 651 (Tex. Crim. App. 1985). The evidence, other than the testimony of the accomplices, that tended to connect Appellant to the offense is as follows:

1) Appellant was present during the commission of the offenses;

2) Appellant possessed the shotgun used in the shootings immediately after Brown was shot and appeared to be cooperating with or leading the efforts to find and to kill the two wounded men;

3) Appellant assisted with and participated in efforts to recover a pager lost near the location of the shootings;

4) Appellant lied to the police about where he had been and where he was going when he was stopped;

5) Appellant was driving the vehicle away from the scene of the shooting; and

6) McClellen s blood was found on Appellant s shirt and pants.

We have considered Appellant s argument that the shirt and pants may not have belonged to him. Nevertheless, the jury could have reasonably concluded he was wearing the shirt and pants identified as his when McClellan and Brown were shot. The two items were found in a home Appellant visited shortly after the shooting, and the pants had a stripe down the side, similar to a stripe described by Brown. Furthermore, Brown identified three people at the pasture, besides himself and McClellan. The pants with the stripe were one of three pairs of pants recovered with McClellan s blood on them. The other pants were identified as belonging to Greenway and Cole. Finally, Appellant was not wearing a shirt when he was arrested. The evidence, especially when considered in light of Brown s testimony, is sufficient for the jury to conclude that Appellant had been wearing the pants with the stripe when McClellan was shot.

The nonaccomplice evidence places Appellant at the scene, puts the shotgun in his hand and the blood of the deceased on his clothing, and connects him to the activities immediately before and after the shootings. This evidence is sufficient to connect Appellant to the murder and attempted capital murder and to corroborate the testimony of the accomplices. Tex. Code Crim. Proc. Ann. art. 38.14. Appellant s first and second issues are overruled.

Administration of Oath to Prospective Jurors

Appellant noted that the record did not show that the prospective jurors had been administered an oath as required by Texas law. See Tex. Code Crim. Proc. Ann. art. 35.02 (Vernon 2005). After Appellant filed his brief, the State requested that an additional portion of the record be prepared for our review. The court reporter prepared a supplemental record, which contains the qualification of the jury venire for this case. We have reviewed the supplemental reporter s record and are satisfied that the oath required by Article 35.02 was administered to the panel of prospective jurors before jury selection began. Appellant s third issue is overruled.

Disposition

The judgment of the trial court is affirmed.

DIANE DEVASTO

Justice

Opinion delivered 24, 2006.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(DO NOT PUBLISH)

1 The capital murder charge was based on Greenway s initial statement to the police that the killing was a murder for hire. The attempted capital murder, as charged in the indictment, did not specify why the attempted capital murder was capital. The State abandoned the murder for hire allegation and proceeded on the charges of murder and attempted capital murder. The jury was instructed that a person commits capital murder if he commits murder and murders more than one person during the same transaction.