Foyt v. State

• Decision Date: 28 May 2020
• Docket Number: NO. 14-18-00099-CR,14-18-00099-CR
• Citation: 602 S.W.3d 23
• Parties: Zachary FOYT, Appellant v. The STATE of Texas, Appellee
• Court: Texas Court of Appeals

602 S.W.3d 23

Zachary FOYT, Appellant

v.The STATE of Texas, Appellee

NO. 14-18-00099-CR

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed May 28, 2020

Discretionary Review Refused September 16, 2020

Michelle R. Townsend, Jeri Yenne, for Appellee.

Crespin Michael Linton, Houston, for Appellant.

Zachary Foyt, pro se.

Panel consists of Justices Jewell, Bourliot, and Zimmerer.

Frances Bourliot, Justice

A young woman gave an account at trial of a murder that her ex-boyfriend recounted to her, and the State presented corroborating evidence. Appellant Zachary Foyt contends the jury's murder finding is not supported by legally sufficient evidence on the grounds that (1) the State lacked DNA evidence; (2) appellant did not confess to police; (3) witness testimony lacked credibility; (5) the murder weapon was not recovered; (6) the State lacked evidence placing appellant at the crime scene; and (7) there was evidence implicating someone else in the murder. Appellant also asserts the trial court erred in (1) denying his requested jury charge instructions and motion to suppress his videotaped statement admitted at trial, (2) removing a juror as disabled, (3) admitting evidence that he purchased a gun that could have been used to kill the complainant, and (5) denying his motion for mistrial. We affirm.

Background

Jubal Alexander had finished the night shift at his job in Chocolate Bayou, Texas on April 27, 2016. He went to the gym that morning. Afterward, he parked his truck under a bridge near a boat ramp not far from the plant where he worked. He had been showering at the gym and sleeping in the truck so he could save money to send home to his girlfriend in Port Arthur. After 9:19 a.m., there was no outgoing activity from Alexander's cell phone. No one heard from Alexander again.

Meanwhile, appellant had no outgoing activity on his cell phone from 11:49 a.m. until 2:23 p.m. that day. Cell phone tower records, though inexact, placed appellant in the area surrounding the boat ramp during that timeframe. Appellant had texted his grandmother at 9:38 a.m.: "decided not to show up for work today." Work records corroborated that appellant did not work on April 27 or 28.

Appellant had a friend, nicknamed Sparky, who lived near the boat ramp. Appellant called Sparky on April 30 but apparently did not reach him. Appellant followed up with a text: "I was just calling for some [advice;] been thinking and an idea occurred[;] thought to shoot it by you first." Appellant was supposed to help his dad with a crawfish boil that night and invited Sparky, but Sparky was in Angleton. Appellant texted, "Alright[,] come over [to] my place[;] I'll tell you more." Appellant's dad later asked appellant, "Where are you[,] you still coming?" Appellant responded, "Sorry I had something come up." After an outgoing phone call to Sparky at 9:12 p.m., appellant's cell phone records showed no activity until 12:45 a.m. on May 1.

Appellant started texting his ex-girlfriend, Lauren, at 12:51 a.m.:

• "Hey was just wanting to say goodbye. I'm planning on leaving for good."

• "I'll be fine but it's something I did I can't say for I feel you may even look at me different."

• "I'm not staying to burn."

In the morning, Lauren's father, Laurence, was awakened by his wife. Something she said made him concerned about appellant. At the time, appellant was renting an apartment from Laurence. Laurence went to see him. When Laurence arrived, he noticed appellant was packing to leave. Appellant told Laurence he was going to sell his possessions and move to Colorado because "he did something but he couldn't [say] what it was." Appellant showed Laurence some letters he had written to his family members in which he referenced "giving his stuff away." Laurence became even more worried for appellant and kept checking on him throughout the day.

The next day, appellant went to see Lauren's mother, Frances. He told her that he had done something wrong, "he had a lot of demons he needed to go release," and if he stayed in the area, "he would hurt other people he loved." Frances, not knowing any details about what appellant had done and thinking "maybe he might have beat somebody up really bad," suggested he should go to Colorado to make a fresh start.

Lauren texted appellant on May 3, asking why he had to leave. He responded, "[T]he reason is bad enough," and "I couldn't tell ... you what I did but when it's found out it's more likely going to be on the news." Lauren had a feeling at that point that appellant had hurt someone and asked why he "did it," to which he responded, "Because it felt good." Later that day, Lauren texted, "Maybe what you did isn't so bad." Appellant said, "It is." Lauren asked if appellant broke the law, and he said, "[Y]es I did."

Two minutes later, Lauren called appellant. According to Lauren, appellant told her that he found someone in a truck by the water and shot him in the head. Appellant also said the man was around his age and the truck had a Mississippi license plate. After he talked to a friend with a weird nickname about "what to do about the bullet," appellant reported that he returned to the scene "[l]ike a day" later and beheaded the man with a knife to hide ballistic evidence. There was a bad smell because the body had been decomposing. Appellant told Lauren he was planning to flee to Colorado.

The same day, Alexander's decapitated body was discovered in the truck near the boat ramp. By that point, his body had been decomposing in the Texas heat for six days. Alexander and appellant were both 24 years old at the time of the murder. The truck had Mississippi license plates—Alexander had purchased it in that state but had not transferred the title. Alexander's head was never found.

The medical examiner classified Alexander's death as "homicidal death by unknown means with ... postmortem decapitation." A forensic anthropologist determined that the decapitation occurred when there was still soft tissue on the bones and likely it took two to four hours to behead Alexander. She concluded that a knife with a very thin blade was used.

No DNA evidence other than Alexander's DNA was recovered from the scene of the crime. This was not surprising, given the state of decomposition of the body. Even Alexander's DNA was difficult to retrieve because of the condition of his body. The conditions were also consistent with the scene having been cleaned and evidence having been destroyed. No bullet casings were found on the scene, but a .38 caliber bullet was recovered from the passenger side door panel of the truck.

Lauren also said she met appellant at his apartment on Mother's Day. Appellant told her the man clung to life after appellant shot him—he had "gasped and wanted to live."

Appellant had a garage sale around this time and sold almost all his possessions for $300 to the person who would be moving into the apartment. Appellant told her that he was moving to Colorado. He left behind clothes and photographs of himself and others hanging on the wall.

Officer Kincheloe received a phone call on May 24 regarding a lead in the case. That day, Kincheloe and his partner interviewed Laurence and Frances together and then Lauren. Information provided by Lauren was consistent with information not disseminated to the public, including the fact that Alexander's truck had Mississippi license plates. Appellant became the sole focus of the investigation.

While these events were ongoing, a young man named Chevy lived with Sparky. At some point, Sparky showed Chevy the barrel of a gun that he had been hiding under his couch cushion. Sparky nervously told Chevy that he and appellant had done something with the gun. Several Google searches had been made on Chevy's phone the evening of April 27 for "forensic gun ballistics," and an internet article entitled "6 Remarkable Ways Guns Can Be Linked to a Crime Scene" had been accessed. The Wikipedia page for "Ballistic fingerprinting" had also been accessed as well as the website forensicoutreach.com. Chevy denied performing the searches but said that he had allowed Sparky to use his phone on several occasions. Chevy did not think the phone was password protected (it was), but said that if it had been, Sparky would have had the password. Chevy had a .38 caliber pistol, a 9-millimeter pistol with two magazines, and a 9-millimeter bullet in a storage unit.

Officers Nichols and Velez went to Colorado on June 8 to locate appellant. The same day, Detective Lee and Agent Griffith from Colorado were conducting surveillance on appellant. Griffith observed appellant coming out of his apartment building. He "look[ed] around as if he [were] being watched, looking for anybody." Griffith noted appellant's behavior was unusual. Appellant was carrying a banana, which he then held out as if it were a handgun. Griffith testified, "He [brought the banana] up, look[ed] down his arm, and then [did] this (indicating) as if he were doing a double tap. You got two recoils." The banana was pointed at the back of a car. Appellant then laughed and walked to his car. He drove his car to another parking spot, got out, walked around some buildings, then came back, got back into his car, and drove away.

Nichols and Velez found appellant two days later in the parking lot of his apartment complex. He agreed to go with them to a local police station for an interview. The three rode in the officers' rental car, and the officers took appellant's keys and his phone. During the interview, appellant said he moved to Colorado for a job. According to him, he did not own any knives. He acknowledged that he had purchased a 9-millimeter handgun from Academy on February 3 but told the officers that he sold the gun to a large, hairy man in a bar in late February to pay his rent. He denied telling Lauren he had done "something bad" but later told the officers he wanted to go to Colorado when "it" happened. He refused to explain what "it" meant and denied any involvement in the...