Magee v. State

• Court: Texas Court of Appeals
• Writing for the Court: Kevin Jewell Justice
• Decision Date: 29 June 2017
• Docket Number: NO. 14-16-00408-CR,14-16-00408-CR
• Citation: Magee v. State, NO. 14-16-00408-CR (Tex. App. Jun 29, 2017)
• Parties: KOREY LEWILLIE MAGEE, Appellant v. THE STATE OF TEXAS, Appellee

KOREY LEWILLIE MAGEE, Appellant v. THE STATE OF TEXAS, Appellee

NO. 14-16-00408-CR

State of Texas in the Fourteenth Court of Appeals

June 29, 2017

On Appeal from the 177th District Court Harris County, Texas

Trial Court Cause No. 1392085

MEMORANDUM OPINION

Appellant Korey Magee appeals his conviction for capital murder. In two issues, he argues that the trial court abused its discretion by (1) failing to include in the jury charge, sua sponte, an instruction that out-of-court statements made by an accomplice could not be used to corroborate the accomplice's in-court testimony, and (2) admitting evidence of appellant's other crimes or wrongs because the danger of unfair prejudice substantially outweighed the probative value of the evidence.

We affirm.

Background

In the early morning hours of April 24, 2013, Houston Police Department ("HPD") officers responded to an aggravated robbery call at a Phillips 66 gas station and convenience store. When the officers arrived, paramedics were already on the scene, treating Eugene Nnaji, the station's clerk, for wounds.

According to Nnaji, a regular customer nicknamed Charlie and a second man approached the store's locked doors around 3:30 a.m. Charlie passed a ten-dollar bill through a narrow opening between the doors and requested cigarettes. When Nnaji unlocked the doors to hand Charlie the cigarettes, Charlie grabbed the door to pull it open. A third man joined Charlie and the other unidentified man, and all three forced their way into the store. One of the men had a white t-shirt covering the bottom half of his face and carried an assault rifle. The men ordered Nnaji to lay on the floor while they took cash and property from the store, including Nnaji's wallet. After the three robbers exited, Nnaji arose and entered an area enclosed by bulletproof glass to call police. One of the robbers—the man who half-covered his face with a t-shirt and carried the assault rifle—returned and shot at Nnaji, breaking the glass, which cut Nnaji's head and hand.

HPD officers collected surveillance videos from the scene, which showed the vehicle used in the robbery, as well as the men entering the store, unmasked, prior to the robbery. An officer who viewed the videos isolated and printed still shots of the faces of all three men. After looking at two photo arrays, Nnaji identified Charlie and appellant as two of the three robbers. Though appellant'sface had been partially masked during the robbery, Nnaji identified appellant because he recognized a mark or tattoo on appellant's face. According to Nnaji, appellant was the man who returned to the store and shot at Nnaji with the assault rifle. By investigating known associates of Charlie, police were able to verify appellant's name. HPD officers also recovered two spent shell casings and two packs of cigarettes. Testing revealed appellant's fingerprints on one package of cigarettes.

Four days after the robbery, police officers stopped a car that resembled the vehicle used in the robbery. The car's driver was Le Duy Nguyen. Nguyen did not match the description of any of the robbers, but when police attempted to question him about his car and its suspected use in the Phillips 66 robbery, he refused to give them any information.¹

Nguyen visited appellant's house on May 10th, allegedly to buy narcotics; a short time later that day, police arrested appellant on outstanding warrants unrelated to the Phillips 66 robbery. At trial, the State offered two recordings (and written transcriptions) of appellant's telephone calls made during jail intake processing on May 11th. On the first recording, appellant said he thought Nguyen had "snitched" on appellant; in other words, appellant believed Nguyen was responsible for appellant's arrest. On the second recording, appellant asked the other person on the call, Lynell Jordan, to "take care of business." Jordan assured appellant that Nguyen would be "baptized."²

A few days after appellant's arrest, Nguyen was found shot to death in the doorway of his home. His car—the one used by the three men in the Phillips 66 robbery—was abandoned nearby and set ablaze. Ballistics testing revealed that one of the shell casings from the Phillips 66 robbery was fired from the same assault rifle that was used to kill Nguyen.

Khaundrica Williams testified for the State against appellant while under indictment for her role in Nguyen's murder. According to Williams's trial testimony, she drove Jordan and her boyfriend, Arthur Holloway, who was appellant's best friend, to Nguyen's residence on the night Nguyen was killed. Jordan was armed with an AK-47, which is an assault rifle. Jordan and Holloway exited the vehicle with the rifle, while Williams remained in the vehicle. Shortly thereafter, Williams heard two gunshots, and Jordan and Holloway returned to the car. There is no dispute that Holloway shot and killed Nguyen.

The next day, Williams visited appellant in jail. Williams testified that she told appellant that Nguyen was dead. According to Williams, appellant was very excited by the news and told Williams to tell Holloway that appellant loved him. Appellant also spoke to Jordan on the phone, a recording of which was admitted during trial, and appellant told Jordan he loved him; Jordan told appellant, "I told, I promised you . . . I ain't gonna go on my word, man."³

Appellant was charged by indictment with capital murder for intentionally causing the death of Nguyen, while in the course of committing and attempting to commit retaliation against Nguyen. Appellant entered a plea of not guilty and proceeded to a jury trial.

After being instructed on the law of parties,⁴ the jury found appellant guilty of capital murder as charged in the indictment, and the trial court sentenced appellant to a mandatory punishment of life imprisonment.

Appellant timely appeals.

Analysis

A. Jury Charge

Before trial, Williams made several statements to the police and others concerning Nguyen's murder. Appellant identifies two voluntary statements and one custodial statement Williams gave to police, conversations Williams had with friends, and Williams's testimony from Holloway's murder trial—all concerning her role in driving Holloway and Jordan to Nguyen's house on the night of Nguyen's murder and her visit to jail when she claimed she told appellant about Nguyen's death. These out-of-court statements, admitted into evidence, form the basis of appellant's first issue, which pertains to the jury charge instructions during the guilt-innocence phase of trial. Specifically, appellant argues that the trial court erroneously failed to instruct the jury that out-of-court statements made by Williams, who was an accomplice to the charged crime, could not be used to corroborate her in-court testimony. Although the jury charge contained accomplice witness instructions consistent with Texas Code of Criminal Procedure article 38.14, and though appellant did not object to the jury charge or request any additional instructions during the charge conference, appellant contends on appeal that the trial court should have, sua sponte, included an additional instruction thatspecifically "inform[ed] the members of the jury that an accomplice witness cannot corroborate herself by her previous declarations or statements about the crime."

1. Standard of review and governing law

Evaluating alleged jury charge errors in the criminal context involves a two-step process. We first determine whether the charge was erroneous. See Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). If error occurred to which the defendant objected, reversal is required if the error was "'calculated to injure the rights of the defendant,'" which the Court of Criminal Appeals has defined to mean "some" actual harm. Id. (quoting Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984)). If, on the other hand, the defendant did not object to the error, we will reverse only if the error was so egregious and created such harm that the defendant was deprived of "a fair and impartial trial." Id. (internal quotation omitted). Jury charge errors that meet the "high and difficult standard" of causing egregious harm are those that "affect the very basis of the case, deprive the defendant of a valuable right, or vitally affect a defensive theory." See State v. Ambrose, 487 S.W.3d 587, 597 (Tex. Crim. App. 2016); Ngo v. State, 175 S.W.3d 738, 750 (Tex. Crim. App. 2005).

Appellant complains about the charge instructions regarding accomplice witness testimony. In cases like appellant's, an accomplice's testimony is not sufficient evidence to support a conviction unless that testimony is corroborated. The Texas Code of Criminal Procedure provides:

A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.

Tex. Code Crim. Proc. art. 38.14; see also Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007) (testimony of an accomplice "must be corroborated by independent evidence tending to connect the accused with the crime").

Independent corroboration of accomplice witness testimony "has been a part of Texas law since at least 1925, and reflects 'a legislative determination that accomplice testimony implicating another person should be viewed with a measure of caution, because accomplices often have incentives to lie, such as to avoid punishment or shift blame to another person.'" Zamora v. State, 411 S.W.3d 504, 509-10 (Tex. Crim. App. 2013) (quoting Blake v. State, 971 S.W.2d 451, 454 (Tex. Crim. App. 1998)). That concern is present here with respect to Williams's testimony because she was indicted for her role in Nguyen's murder. But although article 38.14 appropriately limits the circumstances under which accomplice witness testimony may support a conviction, "it does not define the terms in which...