Lee v. State, No. 12-05-00358-CR (Tex. App. 2/9/2007)
| Decision Date | 09 February 2007 |
| Docket Number | No. 12-05-00358-CR.,12-05-00358-CR. |
| Parties | JOHNNY FRANKLIN LEE, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Appeal from the 159th Judicial District Court of Angelina County, Texas.
Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.
Johnny Franklin Lee appeals his conviction for murder. In six issues, he argues that the trial court should have denied the State's motion to try him with a codefendant, the evidence was insufficient to sustain his conviction, and the trial court erred in not giving jury instructions he requested. We affirm.
Johnny Lee and his wife, Rebecca, lived together with Rebecca's two daughters. Appellant had been to prison several times and supported the family by manufacturing methamphetamine and selling it. On May 9, 2003, Appellant and Rebecca killed Candice by injecting her with a large quantity of methamphetamine. According to the medical examiner, Candice, a slight fifteen year old girl, had enough amphetamine and methamphetamine in her system to kill four 150 pound men. She also had a minor wound to her arm where the drugs were injected and finger shaped marks near the injection point that were consistent with her arm being held forcibly. She also had numerous scrapes, cuts, and bruises, although none of them were life threatening injuries.
Elton Reece is a drug user, and he testified that he went to the Lee home early in the morning on May 9, 2003 to buy methamphetamine. He heard fighting or commotion in a back bedroom, and then saw Candice run out of the bedroom and out of the house. Appellant and Rebecca chased her, and Candice tried to hide under a truck. Appellant pulled her from under the truck and took her back to the back bedroom. After a short time, Appellant emerged and told Elton that he thought Candice was dead. Rebecca emerged and said that she told Johnny it was "too much," and Appellant responded, "I didn't mean to."
Hours later, Rebecca called the police and reported that Appellant had found Candice under a truck outside the home, that they had brought her inside, and that Candice was dead. At trial, two of Rebecca's acquaintances testified that she had admitted injecting Candice with methamphetamine the night she died, and one witness said Rebecca showed her the puncture mark on Candice's arm at her funeral service. The funeral service was conducted before the autopsy and before the cause of death was known to law enforcement. Appellant's defense at trial was that he had gone to sleep the evening of May 8, 2003 and had nothing to do with Candice's death. The jury disbelieved him, found Appellant guilty as charged, and assessed punishment at imprisonment for life. This appeal followed.
In his first issue, Appellant asserts that the trial court erred when it granted the State's motion to join his trial with Rebecca Lee's trial.
Article 36.09 of the Texas Code of Criminal Procedure provides that a court is to sever the trial of two codefendants if there is prejudice to one of them from the joinder. TEX. CODE CRIM. PROC. ANN. art. 36.09 (Vernon 2006); see also Qualley v. State, 206 S.W.3d 624, 636 (Tex. Crim. App. 2006). In his brief, Appellant argues that he was prejudiced because Rebecca's attorney said that the two had done a bad job of getting their stories straight, and that he was prejudiced by an outburst by Rebecca during the trial.
Neither of these events prejudiced Appellant. With respect to counsel's statement, it was essentially an argument that they would have gotten their stories together better if they were lying. Appellant admitted that he had made inaccurate statements to the police, maintaining that he told the truth on the witness stand.1 Rebecca's counsel's statements were not an attack against Appellant, but rather a recognition that some aspects of their stories to the police differed from their testimony at trial.
With respect to Rebecca's outbursts, Johnny testified at the motion for new trial hearing that she began to cry when the pictures of Candice were displayed and that she said something out loud at the end of the trial.2 To preserve a complaint about a joint trial, there must be a timely and specific objection. See Zunker v. State, 177 S.W.3d 72, 78 (Tex. App.-Houston [1st Dist.] 2005, pet. ref'd). Prior to trial, Appellant objected to the joint trial, claiming that he might be prejudiced if Rebecca launched an antagonistic defense. He never asked for a severance on the grounds of Rebecca's outbursts and never obtained an adverse ruling on that question. Therefore, this portion of the complaint is waived.
Even if Appellant had preserved a complaint, he has not shown prejudice. Generally, when two defendants are jointly indicted for the same offense, they should be tried jointly.Dickerson v. State, 87 S.W.3d 632, 639 (Tex. App.-San Antonio 2002, no pet.). However, the trial court may order separate trials, at its discretion. Tex. Code Crim. Proc. Ann. art. 36.09. When discussing prejudice in joint trials from antagonistic defenses, the Texas Court of Criminal Appeals stated that to establish prejudice, the defendant must show a serious risk that a specific trial right would be compromised by a joint trial, or that a joint trial would prevent the jury from making a reliable judgment about guilt or innocence, and that the problem could not be adequately addressed by lesser curative measures, such as a limiting instruction. Qualley, 206 S.W.3d at 636. This case does not involve antagonistic defenses, and there is no showing that either of the core kinds of prejudice described in Qualley are present here. Appellant has identified no core trial right that has been compromised, nor do we perceive a lack of reliability from the joint trial. Rebecca's statements were disrespectful, but came at the end of a long trial. We fail to see how her intemperance prejudiced Appellant. Her reaction to the photographs, assuming it happened, is understandable. We have reviewed the photographs. They are unpleasant. In our view, however, a natural emotional response to those photographs is not something that would prejudice Appellant in this matter.
The two defenses were not antagonistic—if anything they supported each other—and Appellant has failed to show that he suffered prejudice from the joint trial. We overrule Appellant's first issue.
In his second, third, fourth, and fifth issues, Appellant argues that the evidence is insufficient to support his conviction. Specifically, Appellant argues that the trial court should have granted his motion for a directed verdict at the close of the State's case, that the accomplice testimony was not corroborated, and that the evidence was legally and factually insufficient to support his conviction.
The due process guarantee of the Fourteenth Amendment requires that a conviction be supported by legally sufficient evidence. See Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex. Crim. App. 2004);Willis v. State, 192 S.W.3d 585, 592 (Tex. App.-Tyler 2006, pet. ref'd). Evidence is not legally sufficient if, when viewing the evidence in a light most favorable to the verdict, no rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993).
While legal sufficiency review is all that is required by the U.S. Constitution, the Texas Court of Criminal Appeals has determined that the Texas Constitution requires further review of the factual sufficiency of the evidence. Clewis v. State, 922 S.W.2d 126, 129-30 (Tex. Crim. App. 1996). We review the factual sufficiency of the evidence without the light most favorable to the verdict, and we determine whether the evidence supporting the verdict is so obviously weak as to undermine our confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23, S.W.3d 1, 11 (Tex. Crim. App. 2000); see also Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006) ().
Under either standard, our role is that of appellate review, and the fact finder is the sole judge of the weight and credibility of a witness's testimony.Wesbrook v. State, 29 S.W.3d 103, 111-12 (Tex. Crim. App. 2000). The fact finder may choose to believe all, some, or none of a witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).
The sufficiency of the evidence is measured against the offense as defined by a hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct jury charge "accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant is tried." Id.
As alleged in the amended indictment, the State was required to prove that Appellant intentionally or knowingly committed an act clearly dangerous to human life by injecting Candice Alexander with an excessive amount of methamphetamine, causing the death of Candice Alexander, that he did so in the course of committing the felony offense of delivery of methamphetamine to a minor, and that the death was caused in the course of and in furtherance of the commission of the felony. See TEX. PEN. CODE ANN. §§ 19.02 (b)(2),...
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