Colella v. State

• Decision Date: 11 October 1995
• Docket Number: No. 71541,71541
• Citation: 915 S.W.2d 834
• Parties: Paul Richard COLELLA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 834

915 S.W.2d 834

Paul Richard COLELLA, Appellant, v. The STATE of Texas, Appellee.

No. 71541.

Court of Criminal Appeals of Texas En Banc.

Oct. 11, 1995.

Abel C. Limas, Brownsville, for appellant.

John A. Olson, Assistant District Attorney, Brownsville, Robert A. Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

MEYERS, Judge.

In September of 1992, appellant was convicted of capital murder for murdering more than one person in the same criminal transaction. Tex.Penal Code Ann. § 19.03(a)(6)(A). After the jury affirmatively answered the submitted special issues, the trial court sentenced appellant to death. Tex.Code Crim.Proc.Ann. art. 37.071. ¹ Appeal to this court is automatic. Art. 37.071 § 2(h). We will affirm.

In his first point of error, appellant contends that the evidence at his trial was insufficient to corroborate the testimony of the accomplice witness, Anthony "Red" Wilson. ² He argues that the non-accomplice evidence is not sufficient to connect him to the crime. See art. 38.14. We disagree.

Viewed in the light most favorable to the verdict, the evidence at trial established the following: Rick Taylor, David Taylor, and Michael Lavesphere arrived at South Padre Island in a white pick-up truck on the afternoon of September 12, 1991. While driving along the beach, they encountered a vehicle stuck in the sand. The three attempted unsuccessfully to help the occupants of the vehicle free the car.

Shortly thereafter, appellant, his wife, Brenda Bowling, his sister, Lori, and Red drove up in Red's Ford Bronco. Red, being experienced in towing cars out of the sand, offered to free the car for a fee. Rick, David, and Michael remained to watch the action. After Red successfully freed the car, Rick, David, and Michael asked Red, appellant, Brenda, and Lori if they would like to "party" together. The group declined, but Red testified that they told the men where they would probably be later if they would like to join them. Red, appellant, and Lori then went to drop Brenda off so she could get ready to go to work.

Between 5:00 and 6:00 that evening, Rick, David, and Michael met up with appellant and Red on the beach. ³ The group drank alcohol and smoked marijuana. Brenda arrived later, having apparently been laid off from work, and joined in the "partying." Red and Rick played Frisbee by the water while the others remained by the vehicles. At one point, either David or Michael began throwing sand on Brenda. She asked him to stop and chased after him. Appellant told him, "Hey, that's my old lady. Why don't you leave her alone." He apologized to appellant saying that he did not know Brenda was married.

Brenda eventually left the party after arguing with appellant about his drinking. Red testified that she had asked him to stop appellant from drinking any whiskey because "[appellant] beats [her] whenever he gets mad or gets drunk." However, Red refused to intervene. Shortly thereafter, the party broke up. Appellant and Red went to "look for a tow." ⁴ Rick, David, and Michael left to dine in town.

On their way to dinner at about 8:00 p.m., Rick, David, and Michael happened upon Brenda who was hitchhiking along the side of the highway. They offered her a ride and she accepted. Rick testified that after about five to ten minutes Brenda became hysterical for some unknown reason and attempted to jump from their truck. Rick restrained her until the truck slowed down enough for her to get out without being injured. Rick denied that they raped Brenda. He further testified that she appeared uninjured when she left and that her clothes were not torn. The trio then drove on into town.

Sometime between 8:30 and 10:00 p.m., Brenda arrived at the trailer of Albin "Jack" Dunn. She was screaming hysterically and her clothes were wet and torn. She claimed that she had been raped by the guys in the white pick-up truck, but did not want to call the police because there was a warrant out for her arrest in Indiana. ⁵ Victoria "Vikki" Larsen, who was living with Jack, got in her van and went to look for appellant.

Meanwhile, after driving around and stopping at a convenience store, appellant and Red decided to stop and bathe at some public showers along the beach. Afterwards, one or both of them stole a blue bag and a brown leather case from a boat at a nearby dock. The case contained a revolver and ammunition. Red and appellant then decided to go target shooting farther down the beach. After shooting for awhile, they got back into Red's truck and began driving back up the road.

After locating Red and appellant out on the highway, Vikki informed them that Brenda had been raped. Red and appellant immediately left for Jack's trailer. Appellant put the revolver in the waistband of his pants.

Upon arrival at Jack's trailer, appellant was visibly upset. Vikki testified that appellant was "extremely agitated, like going crazy." Appellant testified that when he saw Brenda he said "something to the effect that [he] wanted to go catch the sons-of-a-bitches and kill them." Sherie Wilson, Jack's neighbor, came over to the trailer.

Sherie, in an intoxicated state, began harassing Brenda. She said things like, "You can't rape the willing." A fight then broke out between Sherie, Brenda, and appellant. Sherie slapped appellant and Brenda went after her. Red finally got Sherie to get back into her truck, but she got out again. Appellant testified that "she started to come back at me. So I grabbed her and threw her on the ground." Sherie then went to get her husband, Sid.

Sid testified that his intention upon arriving at the trailer was to hit appellant because appellant had hit his wife. However, appellant pulled the revolver on Sid before Sid could strike him. Appellant then began to run away and Sid chased him. Appellant fired two shots. He testified that he did not aim at Sid and that he fired just to scare him. Sid continued to chase him. When appellant fell in the sand, Sid rushed at him and appellant fired again. This time Sid backed off and appellant ran into the dunes. Red and Brenda eventually picked appellant up and they went back to their campsite.

After a near discovery by Sid at the campsite, appellant, Brenda, and Red decided to leave. Brenda and appellant packed up their belongings and placed them in Red's Bronco. As they travelled north along the beach, they came across the white truck with the men that allegedly raped Brenda. They drove past the truck; then appellant told Red to turn around and go back. Red testified that appellant said, "Well, I'm going to get the son a bitches. I can't let them get away with this."

Appellant asked Brenda one more time if these were the men who raped her. She said yes. Red testified that appellant then jumped out of the Bronco, went over to the truck, shot one victim in the back of the truck, and then ran around to the driver's side to shoot the other victim who was in the truck's cab. Appellant, Red, and Brenda left, but appellant told Red that they needed to go back to move the truck so that it would not be found. Red complied.

Appellant got into the truck with the victims and drove north down the highway. Red and Brenda followed. Appellant eventually put the truck in the water on the bay side of the island and returned to Red's Bronco. At some point, appellant threw the gun in the ocean. Red then drove appellant and Brenda to appellant's mother's home in Port Isabel. Red testified that when he left them, appellant had a billfold containing several dollar bills of unknown denominations. Red had never seen appellant with a billfold before.

Appellant borrowed money from his parents for bus tickets and they drove him and Brenda to the bus station in Victoria, Texas. They purchased their tickets at 6 a.m. on September 13th and boarded the bus for Terre Haute, Indiana.

The bodies of David Taylor and Michael Lavesphere and the partially submerged white truck were discovered the morning of the 13th. Luis Martinez, Cameron County Sheriff's Office Criminal Investigator, estimated that the pair was killed at approximately 2 a.m. that morning and that the type of bullet used could have been fired from a revolver. Dr. Lawrence Dahm, a pathologist, testified that both victims had been shot at close range. Taylor had been shot once in the head and Lavesphere had been shot twice, once in the face and once in the neck. The murder weapon was never recovered.

Rick Taylor testified that he, David, and Lavesphere parked on the beach and settled down to sleep at approximately midnight. David took the cab of the truck and Lavesphere took the bed of the truck. Because there was no room left for Rick, he went to sleep in the dunes so that he would not be run over by any passing vehicles. That was the last he saw of his brother and Lavesphere. He further testified both David and Lavesphere had substantial amounts of money in their possession prior to their deaths. Little money was found on the victims upon their discovery.

Turning now to appellant's contention, we observe that article 38.14 provides:

A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.

To determine whether an accomplice's testimony is corroborated, we eliminate the accomplice testimony and review the remaining evidence to determine whether it tends to connect appellant to the offense. Munoz v. State, 853 S.W.2d 558, 559 (Tex.Crim.App.1993). Further, we have stated:

Corroborative evidence need not establish appellant's guilt of the charged offense nor directly link appellant to the offense, but is sufficient if it "tends to connect" appellant to the offense. Each case must be considered on its own facts and circumstances-- on its own merit. Apparently insignificant incriminating...