Johnson v State

• Decision Date: 26 October 2000
• Citation: 32 S.W.3d 388
• Parties: <!--32 S.W.3d 388 (Tex.App.-Houston 2000) WILLIAM JOHNSON A/K/A WILLIAM COLEMAN, Appellant v. THE STATE OF TEXAS, Appellee NO. 14-98-00379-CR NO. 14-98-00597-CR NO. 14-98-00598-CR NO. 14-98-00599-CR NO. 14-98-00600-CR NO. 14-98-00601-CR In The Fourteenth Court of Appeals
• Court: Texas Court of Appeals

Page 388

32 S.W.3d 388 (Tex.App.-Houston [14th Dist.] 2000)

WILLIAM JOHNSON A/K/A WILLIAM COLEMAN, Appellant v THE STATE OF TEXAS, Appellee

NO. 14-98-00379-CR

NO. 14-98-00597-CR

NO. 14-98-00598-CR

NO. 14-98-00599-CR

NO. 14-98-00600-CR

NO. 14-98-00601-CR

In The Fourteenth Court of Appeals

October 26, 2000.

On Appeal from the 23rd District Court Brazoria County, Texas Trial Court Cause Nos. 31,264; 31,265; 31,266; 31,267; 31,268; & 31,269

[Copyrighted Material Omitted] Panel consists of Justices Cannon, Draughn, and Lee.^*

OPINION

Bill Cannon, Justice (Assigned).

William Johnson a/k/a William Coleman appeals his six consolidated jury convictions for engaging in organized criminal activity to commit aggravated robbery of six different people. Tex. Pen. Code Ann. § 71.02(a)(1) (Vernon 1994 & Supp. 2000). The jury assessed his punishment at life imprisonment on each offense, enhanced by five prior felony convictions. In four points of error, appellant contends the trial court erred: (1) in charging the jury on the law of parties; (2) & (3) by failing to grant a directed verdict because the evidence was legally and factually insufficient; (4) in allowing a gruesome photograph of the complainant into evidence. We affirm.

BACKGROUND

On December 19, 1993, at about 10:00 p.m., David and Stephanie Palmer, their three children, Adam, Candice, and Shawn, and Shawn's friend, Joe Smith, were visiting in parts of the Palmers' home when Stephanie observed a black man with a shotgun in her kitchen. The man was later identified as Charles Harold Hughes, and he was not wearing a mask. Hughes told everyone that this was a robbery and to get down on the floor. A second man with a handgun came in and pointed the gun at the people in the living room. Mr. Palmer stated the second man was black, wearing a black ski mask, a pullover sweater and baggy blue jeans. Both Hughes and the other man wear wearing gloves. The second man said, "[T]his is a robbery! Get up against the wall and lay down flat on your face." Mr. Palmer heard "ransacking" noise coming from the master bedroom and the kids' bedroom. Hearing noise in two parts of his house, he felt there were a total of four men in his house. Mr. Palmer heard a shotgun blast, and one of the gunmen said, "[D]on't mess with us." He heard the voices of the other two men who were ransacking the bedrooms, and they said, "[K]ill them, kill them all." The men then left taking rifles, cash, a wallet, credit cards, a computer, a monitor, a TV, a VCR, a camcorder, and other items of personal property with them. Mr. Palmer went to his wife's side and found that the right side of her face was gone, and she was bleeding profusely. Mr. Palmer stated that the men took 25 minutes to carry all of their property out of their house and load it into their vehicle. An ambulance took Mrs. Palmer to the hospital where she stayed for six or seven weeks. She had 28 surgeries performed by the time of the trial. The police investigated but found no fingerprints.

Marva Sears, known as "Ni'se" to her friends, testified that Hughes, Shawn Adams, James Barrett, and appellant were living with her at her house right before Christmas in 1993. Although she could not remember the date, she stated it was "around" Christmas when she heard Shawn Adams rapping about a lady getting shot in Pearland. She stated that appellant appeared afraid. She observed a TV, a computer, and a VCR that was carried into her house and did not belong there. She did not know who brought this property into her house, and she told Shawn to remove the property.

Tara Johnson had been dating appellant during this time, and she said she knew Hughes and Shawn Adams. She stated that Hughes, Shawn Adams, and appellant met regularly at Ni'se's house. She heard an unusual conversation between the trio in front of Ni'se's house around 10:00 to 10:30 p.m., the night of the robbery. She remembered December 19, 1993, as the date because it was her brother's birthday. She testified that the trio appeared nervous, and Shawn Adams said, "We went all the way to Brazoria and it wasn't there." Hughes said, "F k that bitch." Appellant said, "It wasn't suppose to go like that."

Randolph Scott knew the trio, and stated he bought a TV from Shawn Adams at Ni'se's house in December 1993. He stated that a TV, a VCR, and a camcorder came into the house in December 1993.

Jimmy Lackey was an inmate in the same cell with appellant and Shawn Adams. He testified that appellant told him that he saw Hughes shoot Mrs. Palmer. Appellant told Lackey that Mrs. Palmer attempted to settle a child and Hughes spun around and shot her in the head with a shotgun. Appellant further indicated to Lackey that the shooting did not bother him, and told Lackey, "F k that bitch, I saw her get shot and it didn't even bother me."

Gregory Felder was also in the same cell with appellant and Shawn Adams for about five and one-half months. Appellant told Felder that he saw Mrs. Palmer get shot in the face in her home. Appellant told Felder that the "guys" that entered the Palmers' home wore ski masks and went "rambling" through the house. Appellant referred to Mrs. Palmer as "that white bitch" and also told Felder that it was "good for her because she got shot in the face."

After the trial court overruled appellant's motion for a directed verdict, appellant presented two cell mates as defensive witnesses, Donald Johnson and Timothy Work. Johnson and Work were also in the same cell with appellant when he told Lackey and Felder that he saw Hughes shoot Mrs. Palmer. Johnson and Work testified that they never heard anyone in the cell talk about their cases.

THE JURY CHARGE ON LAW OF THE PARTIES

In point one, appellant contends the trial court erred in charging the jury on the law of parties in addition to charging him as a principal acting with Shawn Adams and Charles Hughes in a combination to commit aggravated robbery. Appellant objected to the charge on these grounds arguing that the charge allowed the State to convict on two separate theories. Appellant argues that the court's charge allows the State to "prosecute for engaging in organized criminal activity as a party."

The application paragraph of the trial court's jury charge in each case allowed the jury to convict if it found appellant "did . . . with intent to establish, maintain, and participate in a combination . . . with . . . Charles Harold Hughes and Shawn Adams . . . knowingly threaten and place [the victim] in fear of imminent bodily injury and death. . . ." The trial court also instructed the jury separately on the requirements of a combination and on the law of parties. After the instruction on a combination, the court's charge authorized the jury to convict appellant if they found he aided or encouraged Hughes and Adams in the commission of aggravated robbery on the Palmers. The jury found appellant guilty of engaging in organized criminal activity "as charged in the indictment" in each of the six cases.

The parties charge in this case applied to appellant's acts in committing aggravated robbery of the Palmers, not to the intent to participate in a combination to commit the robbery. The charge did not authorize appellant's conviction by engaging in organized criminal activity as a party with Hughes and Adams. The jury was authorized to convict appellant only if it found that appellant intended to participate in a combination with Hughes and Adams to commit aggravated robbery; the aggravating circumstance of aggravated robbery could have been committed while appellant was acting alone or as a party with Hughes and Adams. A similar complaint about erroneously charging the jury with the law of parties in a combination offense in each of three companion cases was overruled recently by the Beaumont Court of Appeals. The Court found in these cases that the parties charge applied to the appellant's acts causing the death of a victim, and not to his intent to participate in a combination. See Campbell v. State, 18 S.W.3d 914, 920(Tex.App. Beaumont 2000, no pet.h.); Brumfield v. State, 18 S.W.3d 921, 927-928 (Tex.App. Beaumont 2000, no pet.h.); Armstrong v. State, 18 S.W.3d 928, 932-933 (Tex.App. Beaumont 2000, no pet.h.). In each of those cases, a similar charge was found to authorize the jury to convict each of the three appellants only if it found that he murdered the victim while either acting alone or as a party, and that each of the three appellants was then incarcerated in the Terrell Unit and intended to participate in a combination. Id. We hold the trial court did not err in submitting to the jury an instruction on the law of parties. Appellant's point of error one is overruled.

THE LEGAL AND FACTUAL SUFFICIENCY OF THE EVIDENCE

In point two, appellant contends the trial court erred by failing to grant a directed verdict because the evidence was legally insufficient to support the verdict. In point three, he contends the trial court erred by failing to grant a directed verdict because the evidence was factually insufficient to support the conviction.

Standard of Review

A challenge to the denial of a motion for an instructed verdict is actually a challenge to the legal sufficiency of the evidence. See Madden v. State, 799 S.W.2d 683, 686 (Tex.Crim.App.1990), cert. denied, 499 U.S. 954, 111 S.Ct. 1432, 113 L.Ed.2d 483 (1991); Thornton v. State, 994 S.W.2d 845, 849 (Tex.App.-Fort Worth 1999, pet. ref'd).

In reviewing the legal sufficiency of the evidence, we consider all the evidence, both State and defense, in the light most favorable to the verdict. Houston v. State, 663 S.W.2d 455, 456 (Tex.Crim.App.1984); Garrett v. State, 851 S.W.2d 853, 857 (Tex.Crim.App. 1993). In reviewing the sufficiency of the evidence in the light most favorable to the verdict or judgment, the appellate court is to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt....