Dewberry v. State

• Decision Date: 20 October 1999
• Citation: 4 S.W.3d 735
• Parties: (Tex.Crim.App. 1999) JOHN CURTIS DEWBERRY, Appellant v. THE STATE OF TEXAS NO. 72,640
• Court: Texas Court of Criminal Appeals

Page 735

4 S.W.3d 735 (Tex.Crim.App. 1999)

JOHN CURTIS DEWBERRY, Appellant v. THE STATE OF TEXAS

NO. 72,640

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

October 20, 1999.

ON DIRECT APPEAL FROM JEFFERSON COUNTY

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HOLLAND, J., delivered the opinion in which MCCORMICK, P.J., and MEYERS, MANSFIELD, KELLER and KEASLER, JJ., joined. PRICE, J., concurs in the result. WOMACK, J., filed a concurring opinion in which JOHNSON, J., joined.

HOLLAND, J.

O P I N I O N

Appellant was convicted of the capital murder of Elmer Rode, which occurred on December 23, 1994. See TEX. PENAL CODE ANN. 19.03 (a)(2). Pursuant to the jury's answers to the special issues set forth in article 37.071, 2(b)(1), 2(b)(2), and 2(e) of the Code of Criminal Procedure, the trial court sentenced appellant to death. See TEX. CODE CRIM. PROC. ANN. art. 37.071 2(g).¹ Direct appeal to this Court is automatic. See Art. 37.071 2(h). Appellant raises twenty-three points of error. We affirm.

In appellant's fourteenth, fifteenth and sixteenth points of error, he argues the evidence was legally insufficient to convict him of capital murder. In his seventeenth point of error, appellant argues the evidence was legally insufficient to support the jury's answers to the special issues at punishment. He improperly combines all four points of error into a single argument. We first address the points concerning the sufficiency of the evidence to convict appellant of capital murder.

The United States Supreme Court set the standard for reviewing legal sufficiency of the evidence in Jackson v. Virginia, 443 U.S. 307 (1979). This Court examines the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See id. at 319; Arnold v. State, 873 S.W.2d 27, 30 (Tex. Crim. App. 1993), cert. denied, 513 U.S. 830 (1994); Blankenship v. State, 780 S.W.2d 198, 207 (Tex. Crim. App. 1989); Butler v. State, 769 S.W.2d 234, 238 (Tex. Crim. App. 1989). This Court must evaluate all of the evidence in the record, both direct and circumstantial, whether admissible or inadmissible. See Johnson v. State, 967 S.W.2d 410, 412 (Tex. Crim. App. 1998); Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988); Gardner v. State, 699 S.W.2d 831, 835 (Tex. Crim. App. 1985). When reviewing the evidence, our role is not to become a thirteenth juror. This Court may not re-evaluate the weight and credibility of the record evidence and thereby substitute our judgment for that of the fact-finder. See id; Wilson v. State, 863 S.W.2d 59, 65 (Tex. Crim. App. 1993).

Appellant argues that this Court should find the evidence legally insufficient to convict him. Appellant does not claim, however, that all of the evidence admitted before the jury was insufficient. Instead, appellant argues this Court should not consider the testimony of Mark Bilfafano, Bobby Lee Trevino, and Mitchell King IV or the evidence of appellant's confession in our legal sufficiency review. Appellant contends the testimony of Bilfafano, Trevino, and King contained inadmissible hearsay statements made by Chris Dewberry, appellant's brother and co-defendant. Appellant's argument that the evidence is legally insufficient hinges upon the exclusion of this allegedly inadmissible evidence.

Contrary to the methodology suggested by appellant, when conducting a legal sufficiency review, this Court considers all evidence in the record of the trial, whether it was admissible or inadmissible. See Johnson, 967 S.W.2d at 412. See, e.g., Fernandez v. State, 805 S.W.2d 451 (Tex. Crim. App. 1991); Thomas v. State, 753 S.W.2d 688, 695 (Tex. Crim. App. 1988); Chambers v. State, 711 S.W.2d 240, 247 (Tex. Crim. App.1986). Because we are bound to consider all of the evidence, including the testimony of Bilfafano, Trevino, and King and appellant's confession, appellant's argument fails. Accordingly, we overrule appellant's fourteenth, fifteenth, and sixteenth points of error.

Appellant also asserts "there was insufficient evidence for the jury to answer the special issues as they did." Appellant confines his analysis to the future dangerousness special issue and the mitigation special issue. See Art. 37.071 2(b)(1), 2(e).

This Court has stated it will not conduct a sufficiency review of the jury's finding on the mitigation special issue. See Art. 37.071 2(e). The determination as to whether mitigating evidence calls for a life sentence is a value judgment left to the discretion of the factfinder. See McGinn v. State, 961 S.W.2d 161, 166 (Tex. Crim. App. 1998), cert. denied, ___U.S.___, 119 S.Ct. 4141 (1998); Green v. State, 934 S.W.2d 92, 106-07 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1200 , 117 S.Ct. 1561 (1997). Therefore, we confine our analysis to the future dangerousness special issue, which states ISSUE NO. 1 -- Do you find from the evidence beyond a reasonable doubt that there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society?

Art. 37.071 2(b)(1).

According to the standard set out in Jackson v. Virginia, this Court must determine whether, in the light most favorable to the prosecution, any rational trier of fact could have returned an affirmative answer to the future dangerousness special issue. See Jackson, 443 U.S. at 319; Nenno v. State, 970 S.W.2d 549, 552 (Tex. Crim. App. 1998); Moore v. State, 935 S.W.2d 124, 126-27 (Tex. Crim. App. 1996), cert. denied, 520 U.S.1219,117 S.Ct.1711 (1997). The facts of the offense alone can be sufficient to support an affirmative answer to the special issue. See Nenno, 970 S.W.2d at 552; Walbey v. State, 926 S.W.2d 307, 310 (Tex. Crim. App. 1996); Allridge v. State, 850 S.W.2d 471, 487 (Tex. Crim. App. 1991), cert. denied, 510 U.S. 831 (1993). Often, the circumstances of the crime provide greater probative evidence of a defendant's probability for committing future acts of violence than any other factor relevant to the future dangerousness special issue. See Walbey, 926 S.W.2d at 310; Allridge, 850 S.W.2d at 487.

The appellant argues that the State relied on inadmissible evidence to prove his guilt, and we should not consider the murder and robbery of Elmer Rode in our sufficiency analysis of the special issue. As pointed out above, we review admissible and inadmissible evidence when conducting a legal sufficiency review. See Johnson, 967 S.W.2d at 412. Therefore, we consider the instant offense in deciding whether the evidence was sufficient for a rational trier of fact to believe beyond a reasonable doubt that appellant would be a continuing threat to society.

The egregious facts of this offense indicated appellant planned, weeks before this offense, to carry out a murder and robbery. Joshua Vickers testified that he sold appellant a sawed-off, 20-gauge shotgun after Thanksgiving 1994. Appellant told Vickers he wanted the gun for "a jack move," which Vickers understood to mean a hijack. Mitchell King, who had been staying with appellant and his brother since August 1994, testified that a week before Christmas, appellant asked King if he "knew about making some money." Appellant told King he knew a man "that had some money and [appellant] could go and burglarize his house and take the money, get the money." Appellant also told King, "he knew the guy had a lot of money, had a lot of stuff, so [they could] get some money for Christmas." King testified that appellant said they were "going to have to shoot [the owner of the house to] get our money." When King asked why appellant wanted to kill the owner, appellant replied "it was something personal" between him and the guy.

The murder of Elmer Rode was brutal. His sister, Ginger Rode, discovered Elmer's body in his apartment on Christmas Day. Officer Daniel Holloway of the Beaumont Police Department was dispatched to the scene and testified he found Elmer Rode lying on the floor in the living room. Rode's hands were tied behind his back with a telephone cord, and his feet were tied together with a belt. A pillow with bullet holes was lying across his head. After Rode's funeral, Ginger discovered her brother's pawn ticket for the .22 caliber pistol while cleaning his house. The State later proved this pistol was stolen from Rode by appellant and/or his brother and was used to shoot Rode. The forensic pathologist testified there were four small caliber gunshot wounds and one contact shotgun wound to Rode's head. The pathologist also found evidence indicating Rode was beaten up and strangled at some point. Abrasions on Rode's wrists suggested Rode struggled against his bonds before he was killed.²

The State also introduced evidence showing Rode was robbed. The bedroom was ransacked, and the bedroom door was removed from its hinges. A VCR in an unopened box, along with another VCR, were stolen from the residence. Rode's pickup truck was also missing. After the murder, Vickers went to appellant's apartment where he saw two VCRs - one in an unopened box. Appellant asked Vickers if he knew anyone who wanted to buy a VCR.

Mark Bilfafano provided evidence implicating both appellant and his brother in the murder and robbery of Rode. Bilfafano testified that appellant, accompanied by his brother, Chris, showed up at his house on December 24th. Appellant wore surgical gloves and was driving Rode's pick-up truck. Bilfafano testified he saw two VCRs and a handgun (which looked like a .22 caliber pistol) in the truck. He testified appellant was in possession of a shotgun which "looked like" the weapon that the State alleged appellant used to kill Rode. Bilfafano accompanied appellant and Chris to leave Rode's truck in a shopping center parking lot in Vidor, Texas. En route, Chris told Bilfafano "they killed somebody." Before leaving Vidor, appellant wiped down...