Druery v. State

• Decision Date: 04 April 2007
• Docket Number: No. AP-74912.,AP-74912.
• Citation: 225 S.W.3d 491
• Parties: Marcus DRUERY, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

225 S.W.3d 491

Marcus DRUERY, Appellant, v. The STATE of Texas.

No. AP-74912.

Court of Criminal Appeals of Texas.

April 4, 2007.

Rehearing Denied June 27, 2007.

Roy E. Greenwood, Austin, for Appellant.

Douglas Howell, III, Asst. D.A., Bryan, Matthew Paul, State's Attorney, Austin, for State.

OPINION

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

In December 2003, a jury convicted Marcus Druery of a capital murder committed on October 31, 2002.¹ 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 Druery to death.² Direct appeal to this Court is automatic.³ After reviewing Druery's twenty-one 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

On October 30, 2002, Druery went to Skyyler Browne's apartment on the Texas State Technical College campus in Waco where both were students. Browne was commonly known by his nickname "Rome." Druery asked Rome to travel with him to Bryan; Rome hesitated but eventually agreed to go. Rome, who was known to have sold marijuana, took his cell phone, $400 to $500, his gun, and some marijuana. No one at the school ever saw him again. Druery later told a Texas Ranger that, after he and Rome had traveled from Waco to Bryan, they partied into the night, but Rome wanted to go home. Druery recounted to the Ranger that Rome called a girlfriend, and the girlfriend picked him up from the Contiki Club in an orange Cadillac. Law enforcement, however, was never able to locate an orange Cadillac.

Joquisha Pitts and Marcus Harris told a different story. Pitts was Druery's former girlfriend, and Harris was Druery's younger friend who was still in high school. Pitts recounted at trial that she had known Rome for only a couple of days when she witnessed his murder. She accompanied Druery and Rome to the Contiki Club, and on the way, the group picked up Harris, as well as some ecstasy tablets and some embalming fluid, which is put on cigarettes and smoked to produce a high. Harris recounted at trial that this was his first meeting with Rome. Around 1:00 to 1:30 a.m., at Druery's suggestion, Druery, Rome, Pitts, and Harris left the Contiki Club to go to rural property owned by the Druery family. Pitts drove Druery's car as Druery navigated because she had never been there before. Neither Pitts nor Harris was aware of Druery's plans.

During the drive to the country, Druery claimed that someone was following them, and he repeatedly asked Rome for his gun so he could shoot whomever it was. Rome refused. Once at the property, Druery unlocked the gate and drove the group the rest of the way to a stock pond. Using the vehicle's headlights for illumination, each member of the group took turns shooting Rome's gun at bottles they had thrown into the water. At this time, Druery called Pitts to the car and told her he was going to kill Rome, saying he wanted Rome's "stuff." Pitts reminded Druery that Druery had a two-year-old son, and she ultimately believed that Druery was "just playing."

After he shot the gun, Druery claimed that the ammunition had run out, and he returned to the driver's seat of the car. Pitts saw that Druery was taking bullets from the car's console, wiping them clean with a rag, and placing them in the pistol's magazine. Druery then called Harris to the vehicle, telling him that he planned to shoot Rome, but Harris believed that Druery was "tripping" on embalming fluid that he had smoked. Druery then ordered both Pitts and Harris to sit in the car.

Standing near the pond, Rome pulled his jacket or a hood over his head to block the wind as he attempted to light a pipe or cigar filled with marijuana. Druery skulked toward Rome under the cover of darkness, held the gun within six inches of Rome's head, and fired. As Rome's body fell, Druery fired a second shot into Rome's neck, and then he fired a third shot into Rome's body as it lay on the ground. Pitts and Harris began to cry and scream, and both saw Druery kneel over Rome's body. Druery returned to the vehicle with Rome's cellular phone, money, marijuana, and gun. He attempted to calm his hysterical companions by giving each forty dollars.

Soon thereafter, Druery obtained some gasoline (perhaps with Harris's assistance) and poured it on Rome's body. He set it ablaze, and the three left as the body burned. During the drive, Druery instructed Pitts and Harris on how to respond to questions about Rome. He told them to say that Rome's girlfriend picked him up in an orange Cadillac to take him to get his sister in Washington D.C. and that they didn't see him again. The next day, Druery returned to the pond with Pitts and two others, burned the body a second time, and threw the body into the pond. Later, Harris assisted Druery in disposing of the murder weapon.

Pitts eventually went to the police and told them that she was scared and wanted to get it off her chest. Harris told authorities that he thought he would die because he believed Druery would not want to leave any witnesses to the killing.

Accomplice Witness Testimony

Druery's points of error one through nine are related. In points of error one and three, Druery asserts that the evidence is insufficient to prove that he committed the underlying predicate felony offense of robbery during the course of the commission of murder. He argues that the only evidence he committed robbery came from two witnesses, Pitts and Harris, whom he maintains were accomplice witnesses as a matter of law. He then reasons that because of the witnesses' status as accomplices, the accomplice witness rule,⁴ which requires corroboration of an accomplice's testimony by other non-accomplice evidence that tends to connect the defendant to the charged offense, also requires that the testimony of Pitts and Harris concerning the underlying robbery be corroborated. Druery contends that such corroborating evidence concerning the underlying robbery is wholly lacking.

In point of error two, Druery urges us to overrule our previous holding in Holladay v. State⁵ that the accomplice witness rule does not require the non-accomplice testimony to corroborate a defendant's connection to the specific element that raises the offense from murder to capital murder. Here, the specific element is the underlying robbery, which Druery claims in points of error one and three is not corroborated by non-accomplice witness evidence. In points of error four and five, Druery contends that the trial judge erred when he refused to instruct the jury that Pitts and Harris were accomplices as a matter of law.

In points of error six and seven, Druery contends that the trial judge's instruction to the jury regarding whether Pitts and Harris were accomplice witnesses as a factual matter was constitutionally inadequate. He argues that the instruction failed to provide sufficient guidance to allow the jury to reliably ascertain the witnesses' status. And in points of error eight and nine, Druery argues that the trial judge's instruction allowing the jury to determine whether Pitts and Harris were accomplice witnesses as a factual matter constituted an improper comment on the weight of the evidence.

All of these claims rest upon the threshold issue of whether Pitts and Harris were accomplices—either as a matter of law or of fact—to the capital murder or a lesser-included offense of the capital murder. If they are not accomplices, then there is no error in the trial judge's refusal to instruct the jury that the witnesses were accomplices as a matter of law. Also, if Pitts and Harris are not accomplices, then the trial judge's instruction regarding accomplice witnesses as a matter of fact was superfluous and did not harm Druery. Indeed, such an instruction could only benefit him because it allowed the jury to require corroboration of the witnesses' testimony if it believed that the witnesses were accomplices to Rome's murder.

Similarly, if Pitts and Harris are not accomplices, then the superfluous accomplice witness instruction as a factual matter in this case cannot be considered an improper comment on the weight of the evidence. Again, the instruction could only benefit Druery by requiring additional corroborating evidence that would otherwise not be required. Last, if Pitts and Harris are not accomplices, then a review to determine whether non-accomplice evidence sufficiently corroborated their testimony is not applicable, and there is no need to review whether this Court's decision in Holladay concerning accomplice witness corroboration of the underlying predicate felony should be overturned. We find that Pitts and Harris were neither accomplices as a matter of law nor accomplices as a matter of fact.

Texas law requires that, before a conviction may rest upon an accomplice witness's testimony, that testimony must be corroborated by independent evidence tending to connect the accused with the crime.⁶ This accomplice witness rule creates a statutorily imposed review and is not derived from federal or state constitutional principles that define the legal and factual sufficiency standards.⁷ 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.⁸ To be considered an accomplice witness, the witness's participation with the defendant must have involved some affirmative act that promotes the commission of the offense with which the defendant is charged.⁹ A witness is not an accomplice witness merely because he or she knew of the offense and did not disclose it, or even if he or she concealed it.¹⁰ In addition, the witness's mere presence at the scene of the crime does not render that witness an accomplice witness.¹¹ And complicity with an accused in the...