235 S.W.3d 772 (Tex.Crim.App. 2007), PD-1311-05, Clayton v. State

Docket Nº:PD-1311-05.
Citation:235 S.W.3d 772
Party Name:Leviyas Jamail CLAYTON, Appellant v. The STATE of Texas.
Case Date:October 10, 2007
Court:Court of Appeals of Texas, Court of Criminal Appeals of Texas
 
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235 S.W.3d 772 (Tex.Crim.App. 2007)

Leviyas Jamail CLAYTON, Appellant

v.

The STATE of Texas.

No. PD-1311-05.

Court of Criminal Appeals of Texas

October 10, 2007

On State's Petition for Discretionary Review from the Thirteenth Court Of Appeals Harris County.

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[Copyrighted Material Omitted]

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Kurt B. Wentz, Houston, for appellant.

Bridget Holloway, Asst. D.A., Houston, Matthew Paul, State's Attorney, Austin, for state.

KELLER, PRICE, WOMACK, JOHNSON, HERVEY, HOLCOMB, and COCHRAN, JJ., joined.

OPINION

KEASLER, J.

A jury found Leviyas Jamail Clayton guilty of the murder of James Playonero. The Thirteenth Court of Appeals held that the evidence was legally insufficient to support the jury's verdict.1 We disagree and reverse the judgment of the court of appeals.

Facts

On June 14, 2001, Angela Davis, an employee with City of Houston Animal Control, stopped to render assistance when the truck in front of her veered off the road into a ditch near the entrance to Brock Park in Harris County, Texas. Her partner, who was following behind her in another car, also stopped. Approximately ten to twenty minutes after the truck veered off the road, Davis looked into the park and noticed something moving. She went to investigate and discovered James Playonero, covered in blood and suffering from several gunshot wounds. Davis called the police for help. Although Playonero attempted to speak to Davis, she could not understand what he was saying because he was mumbling. Playonero died before the ambulance arrived—approximately ten minutes after he was discovered. According to Davis, between the time she stopped to assist the driver of the truck that veered off the road and the time she went to investigate the movement in the park, she did not hear any gunshots or see any other people or vehicles.

Davis discovered Playonero near a 1995 Toyota Avalon, which Playonero had borrowed from a friend named Angel Ayala earlier that morning. The car appeared to have rolled into a tree and was stuck in the mud. The gear-shift was in neutral, and the ignition was in the accessory position. Police suspected that a tire iron found in the front seat of the car had been wedged against the accelerator so the car could propel itself into the trees. Based on the discovery of a wad of burned paper lodged in the gas manifold, police also concluded that someone had tried to set the car on fire by igniting the gas tank.

An assistant medical examiner with the Harris County Medical Examiner's Office testified that Playonero was shot at close range and that Playonero died within five to ten minutes after suffering the wounds. He also stated that, based on his training and experience, there was no possible way that Playonero could have lived for twenty

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to thirty minutes after receiving those wounds.

The evidence at trial showed that there was a significant amount of blood inside the car and a moderate amount on the outside of the car. A latent-fingerprint examiner with the Houston Police Department testified that he identified prints belonging to Playonero, Ayala, and Clayton. He testified that he identified three sets of prints, stamped in blood—one on the middle console, one on the gear shift, and one on the steering wheel. These prints belonged to Clayton. The prints identified as belonging to Playonero and Ayala were not bloody.

Sergeant Boyd Smith, one of the first homicide officers on the scene, testified that there were no witnesses at the park who saw Playonero get shot. Although bullet fragments were discovered in the car, there were no bullet holes inside the car. Sergeant Smith believed that Playonero was shot both in and outside the car and that the shooting did not take place in the park because there were no shell-casings found outside the car. He suspected that Playonero's murder involved a drug deal when he learned that Ayala and Playonero were Colombian and because of the nature of Playonero's gunshot wounds. Referring to the wounds, Sergeant Smith stated:

The fact that he was shot in both legs, twice in both legs, once in the forearm, once through and through in the flesh and the stomach, shot in the penis, shot in the middle of the back of the neck, they were torturing him or trying to get information or getting information from something over a bad drug deal.

Jesus Sosa, an officer with the Homicide Division, was assigned to investigate Playonero's death. Clayton became the focus of his investigation based on the print identification. After Officer Sosa obtained an arrest warrant for Clayton in mid-July, he first attempted to find Clayton at his grandmother's house, which was located three to four miles from Brock Park. He also tried to locate Clayton at his girlfriend's apartment and the homes of various relatives. Despite Officer Sosa's efforts, Clayton was not arrested until he was stopped for a traffic violation in March 2002, some eight months later.

Explaining what his investigation revealed, Officer Sosa testified that he did not speak with any witnesses who saw Clayton in the park on June 14th or who witnessed Clayton shoot Playonero. He also testified that he did not interview any witnesses who could connect Clayton to Playonero.

Concurring with Sergeant Smith's opinion about why Playonero had been murdered, Officer Sosa testified that, based on his investigation, he believed that Playonero was conducting a drug transaction in the park and that the deal had "gone bad." During his investigation, Officer Sosa verified his initial suspicions about Playonero's involvement with drugs. He stated that Playonero's wife told him that Playonero was involved in the drug business and that he would disappear for several days at a time and return with money. In furtherance of his theory, Officer Sosa also referred to Playonero's wounds:

The way he was shot, the manner in which he was shot, the wounds he received, to me somebody wanted to hurt him.

They didn't execute him. An execution is a gunshot wound to the head and that's it. This guy was hurt.

Not one of the wounds was a life-threatening injury. It's possible that the final or finishing touch to the back of the

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neck was going to be the ultimate, but whoever shot him in the back of the neck messed that up too.

Finally, offering another factor that supported his theory, Officer Sosa pointed to the car, noting that it had been covered in blood.

Officer Sosa also testified that he eliminated Ayala as a suspect when he interviewed Ayala to determine his involvement. Ayala told Officer Sosa that he was at home alone when Playonero was shot.

The police never recovered a firearm linked to the shooting.

Clayton was the only defense witness. He testified that he went to the park on June 14th about a quarter before noon to meet a woman he had met at a nightclub two weeks earlier. Immediately before he entered the park, he saw a blue car exiting at a high rate of speed. He did not see any other cars in the park when he first arrived. But when he was half-way into the park, he noticed a white Avalon wrecked in front of a tree with the engine running and the rear passenger's door open. Clayton got out of his car and walked toward the car. He saw Playonero lying in the backseat covered in blood. With both hands, Clayton grasped Playonero's left hand for a few seconds and, in response, Playonero began to mumble but Clayton did not understand what he was saying. Clayton then got in the driver's seat, sat on the tire iron, and "tried to put the car in reverse, but the gravel around the car was—where the ground was wet and the mud was, the car wouldn't move." Although he tried to move the car two times, the tires just spun. During direct examination by his attorney, Clayton stated that he did not remember touching the console of the car but that he did remember touching the gear-shift handle and the steering wheel. According to Clayton, the gear-shift was in the drive position before he moved it, and when the car would not move, he put the gear-shift in neutral and turned the engine off. Clayton then saw a truck veer off the road outside of the park; he panicked, got in his car, and left the park. As he left the park, he saw two animal control trucks parked behind the truck that veered off the road across the street. Clayton then headed to the house that he shared with his grandmother.

On cross-examination, the prosecutor challenged Clayton's testimony about his attempts to move the Avalon out of the mud:

Q [Prosecutor]. [Y]ou got the car in reverse. You're spinning the tires in the mud, and no mud gets thrown on that front fender; is that correct? You saw the picture. There's no mud on it?

A [Clayton]. There's no mud on that car in the picture.

Q. Now I want you to look at this picture again. You notice on this front tire that the mud is only half way kind of, almost half moon shape on the tire?

A. Yes, sir.

Q. And you said that when you first walked up to this car, it was stuck down in the mud, right? It was stuck?

A. Yes, sir.

Q. What we're looking at here, if that's the mud line, where the car was stuck in the mud on that tire.

Defense Counsel: Judge, I object. He's asking him to speculate again.

Prosecutor: He's there, Judge, he should know.

Court: All right. You give me a chance to rule. He can answer it if he knows.

Q [Prosecutor]. You see what I'm talking about right here, all the mud caked on the tire right there?

A. Yes, sir.

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Q. That's the mud from where the car was stuck in the mud, right?

A. Yes, sir.

The prosecutor also questioned Clayton about why he left the park without telling either of the animal control officers about Playonero:

Q [Prosecutor]. You'd have to agree it's a pretty heinous crime, a pretty bad crime, right?

A [Clayton]. Yes, sir.

Q. And the man's still...

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