Cathey v. State

• Decision Date: 21 April 1999
• Docket Number: No. 72772,72772
• Parties: Eric Dewayne CATHEY, Appellant, v. The STATE of Texas
• Court: Texas Court of Criminal Appeals

Page 460

992 S.W.2d 460

Eric Dewayne CATHEY, Appellant, v. The STATE of Texas

No. 72772.

Court of Criminal Appeals of Texas,

En Banc.

April 21, 1999.

Rehearing Overruled June 16, 1999.

Karen Zellars, Spring, for appellant.

Kelly Ann Smith, Assist. DA, Houston, Matthew Paul, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

KELLER, J. delivered opinion of the Court in which McCORMICK, P.J. and MANSFIELD, PRICE, HOLLAND, WOMACK and KEASLER, JJ., joined.

Appellant was convicted in March of 1997 for a capital murder committed in September 1995. TEX. PENAL CODE ANN. § 19.03(a). The jury's verdicts required the trial court to sentence appellant to death. TEX. CODE CRIM. PROC. art. 37.071 § 2. ¹ Appeal from the sentence of death is automatic to this Court. Id; TEX. CONST. Art. I, § 5. Appellant raises thirteen points of error. We will affirm.

1. Sufficiency of the evidence

In his first three points of error, appellant avers that the evidence is legally and factually insufficient to corroborate accomplice testimony as required by Article 38.14. On September 12, 1995, Christina Castillo, a twenty-year old Houston resident, disappeared. Her body was found on September 24, 1995 in a desolate area of Houston by a family searching for aluminum cans. Her eyes had been covered, and her wrists and feet were bound with duct tape. The evidence indicated the body had been exposed for four or five days. The autopsy revealed that Christina had been killed by three gunshot wounds to the head. Three cartridge cases were recovered from the scene. The crime scene revealed no direct evidence of the murderer's identity.

In January of 1996, Houston police detectives got a break in the unsolved Castillo murder when Texas Ranger Jesse Mack informed them that James DeLeon had provided information about the murder. DeLeon provided a detailed confession asserting that he and five other men, Sonny Baker, Lionel Bonner, Anthony Riley, Patrick Brooks (known as P.B.), and appellant had planned to rob Castillo and her boyfriend, Hector Alicia, believing that the couple possessed drugs and money. DeLeon asserted that appellant had murdered Castillo. Bonner also provided the police with a statement. DeLeon did not testify at trial but Bonner did. It is Bonner's testimony which applicant argues is uncorroborated.

At trial Bonner testified that the six conspirators laid plans to rob a Hispanic couple who were Brooks' neighbors and who the conspirators believed had drugs and money in their apartment. Appellant was armed with a gun; he was apparently the only one armed. When the conspirators found Castillo, she was driving up to her apartment. Appellant grabbed her by the throat and held her at gunpoint, forcing her into a red car. The conspirators were in two vehicles: the red car and a white van. Appellant instructed everyone to meet at his mother's house. Castillo was restrained with duct tape. At appellant's mother's house, the six men interrogated Castillo about the drugs and money. She denied any knowledge of drugs or money. Riley struck her, but she continued to deny knowing anything about drugs or money. Baker began beating and kicking her. She continued to deny any knowledge and informed the conspirators that she was pregnant. At some point she fell to the floor and appellant began kicking her. Baker, Riley, and appellant continued to assault Castillo for some fifteen minutes. Castillo continued denying any knowledge about drugs or money. The conspirators decided to abandon Castillo and took her to a desolate location. As Riley, Bonner, and DeLeon began to drive away from the location, Riley told Brooks to leave Castillo there, but as they drove away Bonner heard several gunshots. Later that night appellant told Bonner that he had shot Castillo, but offered no explanation. A few weeks later, appellant again told Bonner that he had shot Castillo and said that he did not know why. Appellant produced a photograph of Castillo which he had taken from her purse and which he carried in his wallet as a memento.

Under Article 38.14, a conviction cannot stand on accomplice testimony unless it is corroborated by other evidence tending to connect the defendant with the offense; the evidence is insufficient if it proves merely the commission of the offense. Colella v. State, 915 S.W.2d 834, 838-39 (Tex.Crim.App.1995). It is not necessary that the corroborating evidence directly connect the defendant to the crime or that it be sufficient by itself to establish guilt; it need only tend to connect the defendant to the offense. Reed v. State, 744 S.W.2d 112, 126 (Tex.Crim.App.1988). If the combined weight of the non-accomplice evidence tends to connect the defendant to the offense, the requirement of Article 38.14 has been fulfilled. Gosch v. State, 829 S.W.2d 775, 777 (Tex.Crim.App.1991).

Contrary to appellant's assertions, the record contains more than sufficient evidence to meet the corroboration requirement of Article 38.14. One witness, Mark Young, testified that, one month after Castillo's murder, he encountered a stranger, whom he identified as appellant, at a gas station and that he acquired a gun from appellant. Robert Baldwin, a criminologist with the Houston Police Department, testified that he analyzed the gun which Young took from appellant and compared it to the fired bullet and three spent casings found with the victim. Baldwin testified that the bullet was fired from the gun and the cartridges came from the same gun. Another witness, Pauline Blackshear, testified that appellant had told her before his arrest that he was "wanted for murdering some Spanish girl." Finally, David Perro testified that appellant told him that he, P.B., Bonner, and DeLeon had been "together when the bitch got shot."

Appellant argues that this evidence might establish that the offense was committed, but not that he committed the offense. According to appellant the tendency of this evidence to connect him to the offense is too "weak and uncertain when considered in connection with the State's burden of proving the accused's guilt beyond a reasonable doubt." We decline appellant's invitation to impose legal and factual sufficiency standards upon a review of accomplice witness testimony under Article 38.14. 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. See Malik v. State, 953 S.W.2d 234, 240 n. 6 (Tex.Crim.App.1997). ² The burden established by the Legislature is that there be other evidence tending to connect the defendant with the offense. ³ The State has met that burden. ⁴ Points of error one through three are overruled.

2. Intimidation of defense witness

In point of error four, appellant argues that the trial court violated his due process rights by coercing and intimidating DeLeon into refusing to testify on appellant's behalf. Citing Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972), appellant argues that the judicial admonishments to DeLeon in fact were so "unnecessarily strong" and "exerted such duress on the witness's mind as to preclude him from making a free and voluntary choice whether or not to testify."

In Webb, the State had rested when the defendant called its sole witness. The trial judge not only warned the witness of his right to refuse to testify and of the necessity to tell the truth, but the trial judge implied in strong language that he expected that the witness, who he knew had a prior criminal record and was serving a prison sentence, would lie. The trial court went on to assure the witness that if he lied, as expected, he would be prosecuted and probably convicted for perjury and that the sentence for the perjury conviction would be added to his present sentence and that it would impair his chances of parole. The Supreme Court held that such threatening remarks had effectively driven the witness off the stand and deprived petitioner of due process. 409 U.S. at 97-98, 93 S.Ct. 351.

In this case, after the State rested, the defense called appellant's accomplice, DeLeon, who was then in custody and awaiting trial on charges arising from this offense. The court was under the impression that DeLeon would assert a Fifth Amendment privilege and was concerned that DeLeon's attorney was not present in court. When DeLeon took the stand, the trial court noted for the record that DeLeon's attorney was not present, that DeLeon had not been satisfied with merely speaking to his counsel's associate and that DeLeon had been given the opportunity to speak with his counsel over the telephone. DeLeon was sworn in and then the following transpired:

THE COURT: Could you state your name for the Court.

MR. DELEON: James DeLeon.

THE COURT: And you are currently charged with the offense of aggravated kidnapping in this case; is that correct?

MR. DELEON: Yes, sir.

THE COURT: Your case is pending, is scheduled for trial March 24th, I believe?

MR. DELEON: Yes, sir.

THE COURT: The Defense intended, or was requesting to call you as a witness in this case. After talking with Mr. Morris, do you intend to testify in this trial?

MR. DELEON: Yes.

THE COURT: All right.

MR. LEITNER: May I have a moment, your Honor? (Whereupon, Mr. Leitner, DeLeon's counsel's associate, speaks with Mr. DeLeon.)

THE COURT: All right. Mr. DeLeon, you understand that any testimony that you give in this trial can be used against you in your pending trial?

MR. DELEON: Yes, sir, I understand that.

THE COURT: And I will be honest, when I came out here I was under the impression that you were not going to testify, that you were going to claim the Fifth Amendment privilege.

MR. DELEON: Well, your Honor, I was, but you know, there's something that I have to get off my chest.

THE COURT: I don't need to know the reasons as to why you're doing what you are doing. I just need to know that you have counseled...