Blackmon v. State
| Decision Date | 10 July 1996 |
| Docket Number | No. 10-94-356-CR,10-94-356-CR |
| Citation | 926 S.W.2d 399 |
| Parties | Jacob Allen BLACKMON, Appellant v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
John M. Hurley, Waco, for appellant.
John W. Segrest, Criminal Dist. Atty., Crawford Long, Antonio Y. Pina, Asst. Dist. Attys., Waco, for appellee.
Before DAVIS, C.J., and CUMMINGS and VANCE, JJ.
Christopher Schumacher was shot and killed on the morning of January 20, 1994, as he fled from his killer's demands for money and cigarettes. A jury found sixteen year old Jacob Blackmon guilty of this capital murder and, because the State had not sought the death penalty, his punishment was automatically assessed at life imprisonment. TEX.PENAL CODE ANN. §§ 12.31(a), 19.03 (Vernon 1994). In seven points of error, he challenges the factual sufficiency of the evidence; argues that the court erred when it overruled his motion for a new trial, which was premised on newly discovered evidence and his claim that the State knowingly used perjured testimony; asserts that the court erred when it failed to suppress his custodial statement; and attacks the court's failure to include an instruction on self-defense in the jury charge. By one supplemental point of error he argues that his sentence is void because he was fifteen years old at the time of the offense. We affirm his conviction.
Early in the morning of January 20, 1994, Christopher Schumacher and his brother Jacob, both students at Baylor University, were accosted by three juveniles while the brothers were walking home from a night club. After the men demanded Christopher's money and cigarettes, he attempted to flee. One of the occupants of the car got out, followed the brothers a short distance and then fatally shot Christopher in the back with a .22 caliber rifle. Christopher died within forty-five seconds of the shooting, with his brother kneeling beside him, in an apartment complex parking lot. Although Jacob attempted to describe his brother's murderer to the police, his description was not adequate for the police to identify a suspect.
However, the police were able to find the car that was used in the crime. On February 21, Detective Jerry Wilson of the Waco Police Department interviewed the car's owner, Timothy Crosslin, at the McLennan County Jail. Initially, Crosslin denied any involvement in or knowledge of the murder, but ultimately told Wilson that he was the driver of the car and Blackmon, his younger half-brother, was the killer. Wilson took Blackmon into custody that day and, because Blackmon was only 15 years old, delivered him to the juvenile detention center. Several days later, during an interview at the Waco police station, Blackmon confessed to his role in the killing and signed a written statement detailing the events.
In his first point, Blackmon argues that the jury's verdict is against the great weight and preponderance of the evidence. Clewis v. State, 922 S.W.2d 126, 128-29 (Tex.Crim.App.1996). In resolving this point, we view all of the evidence without the "in the light most favorable to the prosecution" prism 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. Id.; Stone v. State, 823 S.W.2d 375, 381 (). Blackmon argues that we should consider the evidence presented at the hearing on his motion for a new trial in this sufficiency review. However, we are evaluating the sufficiency of the evidence to support the jury's findings; thus, we consider only the evidence presented before the jury and not that presented after the verdict to the court. See General Mills Restaurants v. Clemons, 865 S.W.2d 48, 50 (Tex.App.--Corpus Christi 1993, no writ) ("we will review all of the evidence presented to the fact finder."); Khalaf v. Williams, 814 S.W.2d 854, 857 (Tex.App.--Houston [1st Dist.] 1991, no writ) ("[The] appellate court should consider and weigh all evidence before the jury.").
The primary evidence supporting the jury's verdict comes from three sources: Jacob Schumacher's testimony describing the events leading up to his brother's death, Blackmon's statement, and Crosslin's testimony. In his statement, Blackmon confessed that he shot Christopher Schumacher after Schumacher refused to surrender his money and cigarettes. Crosslin testified that Blackmon shot Schumacher as he ran away from Blackmon. Jacob Schumacher's testimony is, on the whole, consistent with the two perpetrators' rendition of the events. The principle evidence contrary to the jury's verdict is Blackmon's testimony, in which he repudiated his statement and claimed that another man, Tim Stone, was the killer. Other evidence adduced by the defense may serve to undermine the credibility of the witnesses and the accuracy of their trial testimony. However, the jury's verdict is not contrary to the ordinary weight of the evidence, much less contrary to the overwhelming weight of the evidence. Clewis, 922 S.W.2d at 128-29; Stone, 823 S.W.2d at 381. Thus, the evidence presented at trial is factually sufficient to support the jury's verdict. We overrule point one.
Blackmon's second and third points attack the court's ruling on his motion for a new trial. In point two, he argues that the court should have granted a new trial because the State knowingly relied on perjured testimony at his trial. Ex parte Castellano, 863 S.W.2d 476, 481 (Tex.Crim.App.1993); see also Ex parte Adams, 768 S.W.2d 281 (Tex.Crim.App.1989). At the hearing on Blackmon's motion for a new trial, Crosslin recanted his trial testimony and stated that Stone, not Blackmon, actually killed Schumacher. Crosslin claimed that he was forced to testify falsely at trial because of threats by the police to prosecute him for capital murder and to prosecute his mother as an accomplice to the crime. However, the police detective who interrogated Crosslin denied threatening to prosecute Crosslin's mother.
The trial judge is the trier of fact at a hearing on a motion for a new trial. Lewis v. State, 911 S.W.2d 1, 7 (Tex.Crim.App.1995). Where there is conflicting evidence, the court does not abuse its discretion in overruling the motion. Id. Additionally, where an accomplice recants his trial testimony, his recantation may be dismissed. Villarreal v. State, 788 S.W.2d 672, 674 (Tex.App.--Corpus Christi 1990, pet. ref'd). Thus, the court was entitled to find that no threats were made or that Crosslin's trial testimony was not false, and we will not find that he abused his discretion in rejecting Blackmon's theory on either ground. Lewis, 911 S.W.2d at 7; see also Drew v. State, 743 S.W.2d 207, 228 (Tex.Crim.App.1987) (). We overrule point two.
Blackmon also claimed that he had discovered new evidence favorable to his defense which entitled him to a new trial. TEX.CODE CRIM.PROC.ANN. art. 40.001 (Vernon Supp.1996). He complains in his third point that the court rejected this theory. To show that the trial court abused its discretion in not granting Blackmon a new trial based on newly discovered evidence, the record must reflect that: (1) the newly discovered evidence was unknown to Blackmon at the time of trial; (2) his failure to discover the evidence was not due to his want of diligence; (3) the evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching; and (4) the evidence is probably true and would probably bring about a different result in another trial. Ashcraft v. State, 918 S.W.2d 648, 653 (Tex.App.--Waco 1996, pet. ref'd) ().
At the motion for a new trial hearing, Blackmon produced testimony regarding a statement made by Crosslin at the end of January 1994. The new witness testified that Crosslin:
stated that they had pulled up on to a Baylor student and told him to give them the money that he had, and there was somebody else with him, I--I'm not sure. And the person tried to run and they said, 'Don't run or we'll shoot you,' and he kept on going and he got shot, and after he had said that, he said, 'Jake's stupid butt was asleep.'
Blackmon inferred that this evidence indicated that he could not have been the shooter because he was asleep at the time of the murder. He argues that this evidence contradicts Crosslin's trial testimony.
The State correctly points out that this evidence is hearsay, admissible only for impeachment. TEX.R.CRIM.EVID. 612, 801, 802. Thus, the newly discovered evidence offered by Blackmon is merely impeaching evidence, and the court did not abuse its discretion in denying him a new trial on this theory. Jones v. State, 711 S.W.2d 35, 40 (Tex.Crim.App.1986); Ashcraft, 918 S.W.2d at 653. We overrule point three.
Blackmon's next three points relate to his motion to suppress his statement. Blackmon sought to have his statement suppressed claiming that the officers did not have probable cause to detain him, that his custody violated his constitutional right to equal protection, and that the police did not have the authority to interrogate him at the Waco Police station. After a hearing, the court denied his motion.
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