Hines v. State, 06-97-00106-CR

• Decision Date: 02 July 1998
• Docket Number: No. 06-97-00106-CR,06-97-00106-CR
• Citation: 978 S.W.2d 169
• Parties: Wesley L. HINES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 169

978 S.W.2d 169

Wesley L. HINES, Appellant, v. The STATE of Texas, Appellee.

No. 06-97-00106-CR.

Court of Appeals of Texas Texarkana.

Submitted June 2, 1998.

Decided July 2, 1998.

Troy A. Hornsby, Miller, James, Miller, Wyly, Hornsby, Texarkana, for appellant.

James H. Elliott, Bowie County Asst. Dist. Atty., Texarkana, for appellee.

Before CORNELIUS, C.J., and GRANT and ROSS, JJ.

OPINION

CORNELIUS, Chief Justice.

Wesley L. Hines was convicted of capital murder. Trial was to a jury, but the trial court assessed Hines's punishment at life imprisonment. We affirm the judgment.

The evidence, viewed in the light most favorable to the State, showed that Hines and Christopher Britt drove to Bobby Dan Ashmore's apartment. Hines entered the apartment with the intent to rob Ashmore. While in the apartment, Hines killed Ashmore and took two lights, forty-four dollars, some clothes, and a pager. Hines then drove with Britt to a remote bridge, burned the clothes, and disposed of the knife he used to kill Ashmore. He then hid the lights in Britt's back yard, put the pager under the seat of Britt's truck, and placed the batteries in his own pocket.

Hines admits that he murdered Ashmore, but he contends that he had no intent to rob him either before or during the murder. He alleges that he only decided to rob Ashmore after the murder, so he should not have been convicted of capital murder while committing robbery. Hines said that he went to Ashmore's apartment and that Ashmore answered the door wearing no clothes. He alleges that when he entered the apartment Ashmore made sexual advances toward him. Hines claims that he then took a kitchen knife and cut and stabbed Ashmore to death. He asserts that he formed the intent to take things from the apartment after he killed Ashmore.

Hines contends in four issues that: 1) the evidence is legally and factually insufficient to support his conviction; 2) the charge's instruction on reasonable doubt did not exactly comply with the law; 3) the indictment, which charged capital murder based on robbery, was defective because it did not describe the property stolen in the robbery; and 4) the indictment failed to adequately describe the victim of the robbery.

Hines first contends that the evidence is legally and factually insufficient to support his conviction. The evidence of Hines's intent to rob Ashmore came mainly from Britt. The trial court instructed the jury that Britt was an accomplice as a matter of law. This required that Britt's testimony be corroborated as required by Article 38.14 of the Texas Code of Criminal Procedure. See TEX.CODE CRIM. PROC. ANN. art. 38.14 (Vernon 1979). To determine whether an accomplice's testimony is corroborated, we must eliminate the accomplice testimony and review the remaining evidence to determine whether it tends to connect the defendant to the offense. Knox v. State, 934 S.W.2d 678, 686 (Tex.Crim.App.1996); Munoz v. State, 853 S.W.2d 558, 559 (Tex.Crim.App.1993). The corroborative evidence need not establish the defendant's guilt; it only needs to connect the defendant to the offense. Knox v. State, 934 S.W.2d at 686. Each case must be considered on its own facts and circumstances, because there is no precise rule that can be formulated as to the amount of evidence that is required to corroborate the testimony of an accomplice witness. Gill v. State, 873 S.W.2d 45, 48 (Tex.Crim.App.1994); Brosky v. State, 915 S.W.2d 120, 138 (Tex.App.--Fort Worth, pet. ref'd), cert. denied, --- U.S. ----, 117 S.Ct. 537, 136 L.Ed.2d 422 (1996). Accomplice testimony need not be corroborated as to every element of the offense. ¹ Warren v. State, 514 S.W.2d 458, 463 (Tex.Crim.App.1974), overr. on other grounds, Reed v. State, 744 S.W.2d 112 (Tex.Crim.App.1988); Brosky v. State, 915 S.W.2d at 138. Evidence other than that from Britt linking Hines to the crime is Hines's own confession describing how he murdered Ashmore. Also, police officers found two batteries on Hines's person, and the batteries fit a pager that was missing from Ashmore's apartment and that was found under the seat that Hines was sitting in when he was apprehended. We find that this evidence is sufficient to link Hines to the crime and to corroborate the accomplice's testimony. Thus, we may base our determination of the sufficiency of the evidence on all the evidence, including that from Britt, the accomplice.

When an appellant challenges both the legal and factual sufficiency of the evidence, we first determine whether the evidence adduced at the trial is legally sufficient to support the verdict. Clewis v. State, 922 S.W.2d 126, 135 (Tex.Crim.App.1996); Gaffney v. State, 937 S.W.2d 540, 541 (Tex.App.--Texarkana 1996, pet. ref'd). The standard for reviewing the legal sufficiency of the evidence is whether, after reviewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Royal v. State, 944 S.W.2d 33, 35 (Tex.App.--Texarkana 1997, pet. ref'd); Gaffney v. State, 937 S.W.2d at 541. If there is any evidence that could establish guilt beyond a reasonable doubt, the conviction will not be reversed for legal insufficiency. Anderson v. State, 871 S.W.2d 900, 902 (Tex.App.--Houston [1st Dist.] 1994, no pet.). We position ourselves as a final due process safeguard, ensuring only the rationality of the fact finder. Gaffney v. State, 937 S.W.2d at 541.

In conducting a factual sufficiency review, we review the fact finder's weighing of the evidence in an appropriately deferential way to avoid substituting our judgment for that of the fact finder. Id.; Clewis v. State, 922 S.W.2d at 135. We view all the evidence without the prism of "in the light most favorable to the prosecution," and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v State, 922 S.W.2d at 135. We may not reweigh the evidence and set aside the jury verdict merely because we feel that a different result is more reasonable. Id. Additionally, when there is conflicting evidence, the fact finder's verdict on such matters is generally regarded as conclusive. Taylor v. State, 921 S.W.2d 740, 746 (Tex.App.--El Paso 1996, no pet.). If we find the evidence factually insufficient, we reverse and remand the cause for a new trial. Gaffney v. State, 937 S.W.2d at 541.

Britt testified that he and Hines were at a party when Hines told him he knew where he could get some money for gas. Hines admitted going to Ashmore's apartment and cutting and stabbing him to death. Britt testified that Hines left the apartment carrying a knife, two lights, forty four dollars, and a pager. A police officer testified that the pager was found under Hines's seat in Britt's truck and that batteries fitting the pager were found on Hines. Additionally, Britt testified that Hines said, "I got the money, and it didn't go very well getting it, so I killed him."

An element that raises murder to capital murder is that the murder is committed "in the course of committing or attempting to commit ... burglary [or] robbery...." TEX. PENAL CODE ANN. § 19.03(a) (Vernon 1994). The Court of Criminal Appeals has defined "in the course of committing" as "conduct occurring in an attempt to commit, during the commission, or in the immediate flight after the attempt or commission of the offense." Garrett v. State, 851 S.W.2d 853, 856 (Tex.Crim.App.1993).

Intent may be proven by words of the actor or may be inferred from his actions. Robertson v. State, 871 S.W.2d 701 (Tex.Crim.App.1993). Hines's actions in going to Ashmore's apartment to get money, together with his statement that "I got the money, and it didn't go very well getting it, so I killed him," are sufficient, under either a legal or factual sufficiency review, to support a conclusion that Hines killed Ashmore in the course of committing robbery.

Hines also contends that the reasonable doubt instruction does not exactly follow the requirements of the law. In reviewing a trial court's jury instructions, we first determine whether the instruction given, or the omission of the instruction, was erroneous, and then we determine if the error caused sufficient harm to require reversal. Hutch v. State, 922 S.W.2d 166, 170-71 (Tex.Crim.App.1996); Hall v. State, 937 S.W.2d 580, 582 (Tex.App.--Texarkana 1996, pet. ref'd); Irizarry v. State, 916 S.W.2d 612 (Tex.App.--San Antonio 1996, pet. ref'd); Dutton v. State, 874 S.W.2d 206 (Tex.App.--Houston [1st Dist.] 1994, pet. ref'd).

In Geesa v. State, the Texas Court of Criminal Appeals articulated an instruction on reasonable doubt that must be given to the jury in all criminal cases. ² Geesa v State, 820 S.W.2d 154, 162 (Tex.Crim.App.1991). The court's charge in this case gave the complete and correct Geesa instruction except for the last sentence of the first paragraph. This sentence should state, "The presumption of innocence alone is sufficient to acquit the defendant, unless the jurors are satisfied beyond a reasonable doubt of the defendant's guilt after careful and impartial consideration of all the evidence in the case." Id. The sentence in this case stated, "The presumption of innocence alone is sufficient to acquit the Defendant." The original Geesa opinion, which was issued November 6, 1991, did not contain the language "unless the jurors are satisfied beyond a reasonable doubt of the defendant's guilt after careful and impartial consideration of all the evidence in the case." Subsequently, on November 26, 1991, the opinion was amended to add this language. For cases tried after November 6, 1991, but on or before November 26, 1991, the unamended instruction complies with the requirements of Geesa. Boozer v. State, 848 S.W.2d 368, 369 (Tex.App.--Houston [1st Dist.] 1993, pet. ref'd). The...