Bailey v. State
| Decision Date | 10 March 2016 |
| Docket Number | NO. 01-15-00215-CR,01-15-00215-CR |
| Parties | JOSEPH TATE BAILEY, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the 248th District Court Harris County, Texas
Joseph Tate Bailey pleaded not guilty to murder, having been twice previously convicted of felony possession of a controlled substance. At the punishment hearing, the jury found enhancement paragraphs for both offenses true and assessed his punishment at 35 years' imprisonment. On appeal, he contends that (1) the trial court erred by failing to give an accomplice witness instruction; (2) the evidence is legally insufficient to convict him; and (3) the trial court should have sustained his objection to witness testimony that he had been "in and out of prison." He further complains that (4) he was prevented from hearing a witness's prior recorded statement; (5) the court should not have read a portion of the testimony back to the jury during its deliberations; and (6) the trial court erred by admitting testimony of extraneous crimes by fellow gang members. Finally, he complains that (7) the State improperly commented on his failure to testify; (8) the State made improper jury arguments; (9) the enhancement paragraphs were not read at the beginning of the punishment phase; and (10) he received ineffective assistance of counsel. Finding no reversible error, we affirm.
On September 25, 2012, Sergio Saldana, the complainant, visited his drug dealer's house in Baytown to pick up some heroin. Michael Hourshad, who owned the house, but was not Saldana's dealer, let Saldana into the home. Before Saldana's arrival, Hourshad had heard that Saldana wanted to rob him. He called Bailey's girlfriend, Tara Brown, to ask whether he should be worried. Brown responded that she didn't think so, but she offered to come over and bring Bailey. Brown later texted Hourshad to ask whether Saldana knew that she and Bailey were coming to the house. She also asked whether Saldana was a "real big guy."
When Saldana arrived, Hourshad noticed that Saldana was in withdrawal from heroin. Hourshad let Saldana stay for a while to inject heroin. Saldana and Hourshad talked and smoked methamphetamines. When Brown and Bailey arrived, they conversed for a while with Hourshad and Saldana. Saldana mentioned that he needed a ride home, and Bailey and Brown offered him one. Bailey stepped out to make a phone call. Shortly thereafter, Brown and Bailey left.
Meanwhile, Vernon Brooks was playing video poker at a game room outside Baytown with his girlfriend Stella Preece, and with Stella's sister Rose Preece and Michael Kazee. Bailey called Brooks. Brooks, Kazee, Stella, and Rose got into Brooks's truck and headed toward Baytown to meet Bailey and Brown, but they ran out of gas on the way. Brown and Bailey picked up Brooks in their car. The three went to a nearby gas station, where they filled up a gas can. They returned to Brooks's truck and poured the gas into the tank. Brooks, Bailey, Brown, Kazee, and Stella returned in the two vehicles to Hourshad's house. Before arriving at Hourshad's, they dropped off Rose Preece at a friend's house. After resuming their trip to Hourshad's, Brooks and Bailey conversed by speakerphone. Brooks became angry. Brown messaged Hourshad to ask if Saldana had injected the heroin yet, and if he was sitting on the couch. She told Hourshad to leave the door unlocked and to stay away from the door.
Upon arriving, Bailey, Brooks, and Kazee got out of their vehicles and entered Hourshad's house. Stella remained in a car outside. According to Kazee, Bailey carried a black semiautomatic pistol and Brooks retrieved a .38 caliber revolver from a toolbox in the bed of his truck. The witnesses disagreed as to whether Kazee was armed, but Hourshad later testified that he saw three pistols. Bailey, Brooks, and Kazee entered the house and headed for Saldana, one of them yelling "Get down, motherfucker." Hourshad heard punching noises, followed by gunshots. According to Kazee, Brooks pistol-whipped Saldana and kicked him repeatedly. Bailey and Brooks each fired a shot at Saldana, and then the group left. After waiting to make sure that the attackers were gone, Hourshad called 911. Saldana was pronounced dead at the scene; at autopsy, he was found to have died from a single gunshot wound to the chest.
When they left, the attackers split up into the same groups in which they had arrived. Brooks, Kazee, and Stella Preece stopped briefly at the Channelview river bottoms, where Brooks disposed of his revolver.
After reviewing text messages on Hourshad's cell phone, the police focused their investigation on Hourshad and Brown. The State charged Hourshad with aggravated assault and Brown with murder. Further investigation led to their discovery that Bailey, Brooks, and Kazee were also present at Saldana's murder and that they were members of the Aryan Brotherhood of Texas (ABT) prisongang. Investigators learned that Brooks, who was an ABT captain, had a grievance against Saldana because Saldana had shot Brooks in the foot in a previous altercation. Brooks had ordered other gang members to "be violent" to Saldana. At the time, however, the State did not charge Bailey. A year later, the police interviewed Brown again; this interview provided them with evidence against Bailey. The State dropped the murder charges against Brown.
At trial, Hourshad, Brown, and Kazee testified against Bailey as to the events leading to Saldana's murder. The jury charge identified them as accomplice witnesses. Stella and Rose Preece, who also testified, were not identified as accomplices to the murder.
Stella Preece testified that Bailey called Brooks when Stella was at the game room with Rose, Brooks, and Kazee. She testified that Bailey called again when they were in the car driving to Hourshad's house. Stella became upset that they were driving to Hourshad's house, and she insisted that they drop Rose off before they got there so that Rose would not be involved with what happened. She claimed that Brooks, Bailey, and Kazee did not carry guns when they entered the house, but looked "shook up" when they left the house.
Rose Preece testified that when Bailey called Brooks, Brooks took the call on speaker phone. She heard Bailey say "Hey, I got him." According to Rose, when Bailey said this, Brooks "tensed up visibly" and got "red in the face." Roseheard Tara Brown in the background, and Stella and Brown began arguing. The phone call ended, but Bailey called again to tell Brooks that "Tara [could] talk to [Sergio] and get him to go somewhere." Before reaching Hourshad's house, Stella demanded that Brooks let Rose out of the car; Brooks eventually acquiesced and dropped her off.
The State presented forensic evidence that one of the bullets found at the scene was consistent with a Springfield 9 millimeter semiautomatic pistol of the kind that Bailey carried.
In his defense, Bailey's counsel conceded that Bailey was present at the killing, but he argued that the State had failed to prove that Bailey shot Saldana or that he had the necessary mental state to be guilty of murder. He attacked the credibility of the State's witnesses, suggesting that the State had made promises to the witnesses in exchange for their testimony, and that Stella and Rose were associated with the Aryan Brotherhood gang. Bailey's counsel further argued that, while investigators found a bullet associated with his gun at the scene, the fired shell casing associated with that bullet did not match Bailey's gun.
Bailey also presented the testimony of two prisoners who purported to be ABT members. Patrick Miller denied that Bailey was a member of ABT, and suggested that Bailey was "taking the rap" for Brooks. Roy Ates, who had metBailey while in jail, denied that Bailey was an ABT member, and asserted that Bailey had denied killing Saldana.
Bailey first contends that the trial court erred in failing to instruct the jury on the accomplice witness rule as to Stella Preece. He points to testimony that she is a "Featherwood," the name for a woman who is with Aryan Brotherhood men, that she was in a relationship with Brooks, and that she drove with Bailey to the home and waited outside as a lookout. He further contends that the jury charge was misleading and did not correctly state the State's burden of proof as to the accomplice witness rule for the witnesses who were designated as accomplices.
In determining whether there is reversible error in the jury charge, we first decide whether error exists, and if error exists, we determine whether the defendant was harmed. Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003); Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). Jury charge error to which the defendant did not object is not harmful and does not require reversal unless the error is so egregious that the defendant is denied a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). Here, Bailey concedes that he did not object to the jury charge at trial, and thus, if thecharge was erroneous, we apply the egregious harm standard. See id. The degree of harm must be evaluated in light of the entire record. See id. Under the egregious harm standard, we review alleged charge error by considering (1) the entirety of the charge itself, (2) the evidence, (3) the arguments of counsel, and (4) other relevant information revealed by the record. See Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006); Almanza, 686 S.W.2d at 171.
A conviction cannot rest on an accomplice witness's testimony unless the testimony is corroborated by other, non-accomplice evidence that tends to connect the accused to the offense. See TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005). Witnesses may be accomplices as a matter of law or as a...
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