Brown v. State, AP-75294.

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Citation: 270 S.W.3d 564
• Docket Number: No. AP-75294.,AP-75294.
• Parties: Alfred DeWayne BROWN, Appellant, v. The STATE of Texas.
• Decision Date: 24 September 2008

270 S.W.3d 564

Alfred DeWayne BROWN, Appellant, v. The STATE of Texas.

No. AP-75294.

Court of Criminal Appeals of Texas.

September 24, 2008.

Rehearing Denied November 26, 2008.

Charles Hinton, Houston, TX, for Appellant.

Dpnald W. Rogers, Jr., Asst. District Attorney, Houston, TX, Jeffrey L. Van Horn, State's Attorney, Austin, TX, for State.

OPINION

MEYERS, J., delivered the opinion of the Court, in which PRICE, JOHNSON, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., joined.

In October 2005, a jury convicted appellant, Alfred DeWayne Brown, of capital murder committed on April 3, 2003. TEX. PENAL CODE ANN. § 19.03(a). Based on the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, sections 2(b) and 2(e), the trial judge sentenced appellant to death. Art. 37.071 § 2(g).¹ Direct appeal to this Court is automatic. Art. 37.071 § 2(h). After reviewing appellant's four points of error, we find them to be without merit. Accordingly, we affirm the trial court's judgment and sentence of death.

STATEMENT OF FACTS

Appellant decided, with Dashan Glaspie and Elijah Joubert, to rob the tellers at a check-cashing business. Joubert and appellant were supposed to go inside while Glaspie would act as the lookout and getaway driver. They arrived at the business as it was about to open, but the owner stymied their scheme when he displayed a handgun. Not persuaded to abandon their plan altogether, the group decided to try again at a second check-cashing store.

Alfredia Jones arrived to open that business. Gun in hand, Joubert approached Jones and went inside with her. Joubert permitted Jones to make a telephone call to an affiliated check-cashing business to say that she was "opening Center 24." This statement was actually a code to alert authorities of the robbery. Meanwhile, Glaspie and appellant, who had been waiting in an adjacent furniture store, entered the check-cashing business. Joubert then held his gun to Jones's head and ordered her to open the safe; Glaspie checked for surveillance equipment, and appellant rummaged through Jones's purse. As the robbery was occurring, police arrived, and Officer Charles Clark began to go inside. Appellant shot Officer Clark, and Joubert shot Jones, accusing her of tipping off the police. Both victims died. As part of a plea agreement, Glaspie later testified against appellant and Joubert in separate capital murder trials.

ACCOMPLICE WITNESS CORROBORATION

In his fourth point of error, appellant argues that the testimony of Glaspie, who implicated appellant in the robbery and the killing of Officer Clark, was not sufficiently corroborated to sustain his conviction under the accomplice-witness rule. This rule creates a statutorily imposed review that is not derived from federal or state constitutional principles defining the legal and factual-sufficiency standards. Cathey v. State, 992 S.W.2d 460, 462-63 (Tex.Crim.App. 1999). In short, it requires that, before a conviction may rest upon the testimony of an accomplice witness, the accomplice's testimony must be corroborated by independent evidence tending to connect the accused with the crime. Art. 38.14. The corroborative evidence, however, need not be sufficient in itself to establish guilt, nor must it directly link the accused to the commission of the offense. Hernandez v. State, 939 S.W.2d 173, 176 (Tex.Crim.App. 1997). We view the evidence in the light most favorable to the jury's verdict. Gill v. State, 873 S.W.2d 45, 48 (Tex.Crim.App. 1994).

An accomplice is someone who participates with the defendant before, during, or after the commission of a crime and acts with the required culpable mental state. Paredes v. State, 129 S.W.3d 530, 536 (Tex.Crim.App.2004); Kunkle v. State, 771 S.W.2d 435, 439 (Tex.Crim.App.1986). Here, it is undisputed that Glaspie, who participated in the crime and who was subsequently convicted of aggravated robbery in accordance with a plea agreement for his participation, is an accomplice as a matter of law. See Paredes, 129 S.W.3d at 536 (holding that "[a]n accomplice as a matter of law is one who is susceptible to prosecution for the offense with which the accused is charged or a lesser included offense"). Thus, for the conviction to rest upon Glaspie's testimony, "there must simply be some non-accomplice evidence which tends to connect appellant to the commission of the offense alleged in the indictment." McDuff v. State, 939 S.W.2d 607, 613 (Tex.Crim.App.1997) (emphasis in original).

Appellant argues that any such corroboration is lacking, and that because there is inadequate other evidence linking appellant to the crime, the conviction should be overturned. He states, "The only evidence that even comes close to connecting appellant with the offense was Erika Dockery's testimony that appellant told her that he `was there.' However, state's witness Dockery was an admitted perjurer and drug abuser.... The testimony of accomplice witness Glaspie was not corroborated in such a way as to sustain the appellant's conviction. The conviction cannot stand." We disagree.

Erika Dockery, who testified for the State, was appellant's girlfriend at the time of the offense and lived with him at the Plum Creek Apartments. Her testimony established that appellant demanded that she lie to the grand jury investigating the crime and provide him with an alibi. She obliged, but later admitted that she had lied. She was charged with aggravated perjury, a fact that was made known to the jury, and she admitted to drug use. Dockery also testified that on the day of the crime, appellant was acting very unusually. He telephoned her and told her to watch a news broadcast regarding the crime, and she testified that when she saw him later that same day, he appeared nervous and was moaning and crying. Most importantly, Dockery testified that she had regularly visited appellant at the jail after his arrest, and on the last day she visited him, she pleaded with him: "I need—I want to know the truth. Did you do this? ... I want to know. Did you kill the lady? Did you shoot the policeman? I need to know. Did you do it?" Appellant eventually responded by putting his head down and saying, "I was there. I was there."

We have held that sufficient accomplice-witness corroboration may be furnished by the suspicious conduct of a defendant, and under most circumstances, an admission or confession will be sufficient to corroborate the accomplice-witness testimony. Killough v. State, 718 S.W.2d 708, 711 (Tex.Crim.App.1986); Jackson v. State, 516 S.W.2d 167, 171 (Tex.Crim.App. 1974); see also Longoria v. State, 154 S.W.3d 747, 757 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd) (holding that an attempt to procure a false alibi is some evidence of guilt). Here, appellant's unusual conduct on the day of the offense, his asking Dockery to provide an alibi, and his admission that he "was there" when the robbery and killings occurred, in combination, is some non-accomplice evidence that tends to connect appellant to the commission of the offense alleged in the indictment. The fact that the testimony may have been subject to impeachment as coming from an admitted perjurer and drug user goes to the weight of the evidence and not to its admissibility. See TEX.R. EVID. 609, 613; Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App.1996). These issues were therefore within the province of the jury as the exclusive judge of the credibility of the witness and of the weight to be given her testimony. See Jones, 944 S.W.2d at 647.

Even so, the veracity of Dockery's testimony regarding appellant's admission that he "was there" is bolstered by other testimony that placed appellant at the crime scene and with Glaspie and Joubert before and after the killings. This evidence, while alone not conclusive, may also be considered when evaluating accomplice-witness corroboration. See Killough, 718 S.W.2d at 711.

Alisha Renee Hubbard testified that, soon before the first robbery attempt, she observed appellant with Glaspie and Joubert at the Villa Americana apartments, where Glaspie and Joubert lived. She overheard Joubert ask Glaspie, "Are you ready to go do this?" and soon thereafter, she saw Glaspie loading a pistol's magazine with bullets. Another witness, Sheikah Mohammad Afzal, testified that he was an employee at the furniture store adjacent to the check-cashing business where Glaspie testified he and appellant were waiting as Joubert began the robbery. At trial, Afzal stated he was 85 percent certain that appellant was one of the two men he saw, interacted with, and watched leave the store in the direction of the check-cashing business immediately before the murders occurred. He testified, "Yes, I identify him in court. I identified him in the lineup, and I identified him in the store also. He's the same guy." Sharonda Simon, appellant's ex-girlfriend, testified that she saw appellant at the Villa Americana apartments soon after the crime. He was sitting in a vehicle that matched the description of the one used by the perpetrators of the crime, and Joubert and Glaspie were standing nearby. The State also admitted telephone records showing call locations and times that corresponded with Glaspie's testimony concerning various calls he had made to appellant or were made by appellant in the hours immediately before and after the crime.

The testimony of accomplice-witness Glaspie, who implicated appellant and detailed his participation in the crime, is sufficiently corroborated by other independent evidence tending to connect appellant with the crime. Point of error four is overruled.

JURY SHUFFLE

In his third point of error, appellant argues that the trial judge erred in overruling his several requests to shuffle the jury panel. While it is true that either party may request to have the entire panel of prospective jurors shuffled, a request to shuffle in a capital case must be made before the trial judge...