Rasberry v. State

Decision Date15 October 2015
Docket NumberNO. 02-14-00128-CR,NO. 02-14-00141-CR,02-14-00128-CR,02-14-00141-CR
PartiesJAMELLE SHAQUIL RASBERRY APPELLANT v. THE STATE OF TEXAS STATE
CourtTexas Court of Appeals

FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

TRIAL COURT NOS. 1322031D, 1286741D

MEMORANDUM OPINION1

In two cause numbers, Jamelle Shaquil Rasberry appeals from his conviction and life sentence for capital murder and from a judgment adjudicating him guilty of aggravated assault on a family member after the revocation of his deferred adjudication community supervision for committing the new offense of capital murder. In seven issues, he challenges the sufficiency of the evidence tosupport his convictions and to corroborate an accomplice-witness's testimony (issues one, six, and seven), the trial court's allowing the State to question its own witness using what appellant alleges was a leading question (issue two), the trial court's refusal to admit the accomplice-witness's prior written statement to police into evidence (issue three), the admission of three photographs that appellant contends are substantially more prejudicial than probative (issue four), and the trial court's allowing the State to call a witness for the purpose of impeaching him with a prior statement to police (issue five). We affirm.

Sufficiency of the Evidence

Because appellant's first issue is that the trial court erred by denying his motion for directed verdict, a sufficiency-of-the-evidence challenge, we will discuss the background facts within our discussion of the issue. See Canales v. State, 98 S.W.3d 690, 693 (Tex. Crim. App.), cert. denied, 540 U.S. 1051 (2003).

In our due-process review of the sufficiency of the evidence to support a conviction, we view all of the evidence in the light most favorable to the verdict to determine whether 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, 319, 99 S. Ct. 2781, 2789 (1979); Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). The State charged appellant with intentionally committing murder in the course of robbing or attempting to rob Johnny Williams. The State also charged four other men with the same offense: Jason Villareal, who acted as a lookout and testified against appellant, cousins Jonathan Martinand his cousin Corwon Martin,2 and Javier Cordova, Villareal's cousin. A jury convicted appellant of capital murder in trial court cause number 1322031D, and in trial court cause number 1286741D, the trial judge found that appellant had committed the new offense of capital murder, revoked his deferred adjudication community supervision, and adjudicated him guilty of aggravated assault of a family member.

The Crime

The State began by playing a 911 call for the jury. A woman can be heard telling the dispatcher that a man has been shot at the Woods of Eastchase apartments. A man can then be heard, who explains to the dispatcher that he heard a bang, went outside, and saw a man who had been shot lying on the ground. The caller tells the dispatcher he thinks he might know the man who had been shot; when asked the man's condition, the caller says that he thinks the man is dead. The caller can be heard knocking on a door and asking someone if the man might be "your dude." The call ends with a woman screaming repeatedly.

Terry Cesar

Terry Cesar testified that in December 2012, he lived in the Woods of Eastchase apartments on Ederville Road in east Fort Worth. At 4:30 a.m. on December 28, 2012, he was awake watching TV when he heard faint voicesoutside that sounded like two men talking. He heard a man with whom he was familiar say, "Man don't"; a second man responded, "Fuck that." Cesar thought the first man sounded as if he knew the second man. Cesar then heard a loud bang that sounded like a gunshot.

Cesar went outside and saw the man who had said, "Man don't," lying face up on the ground behind the building and another man standing at that man's feet. The man who was standing was wearing a hoodie that looked black but had white designs on the back of it and very dark pants. The man in the hoodie "kind of looked" at Cesar and then ran away from him; Cesar was not able to see his face. Likewise, Cesar never saw a gun or the person holding anything.

Cesar was scared, so he had his girlfriend call the police. He then went back to the man who had been shot and stayed with him. They did not speak because the man was choking on blood. Cesar recognized the man as someone he had seen at the apartments before. At some point, Cesar went to the apartment where the man's girlfriend lived and told her that a man who could be her boyfriend had been shot and was lying on the ground outside the apartments. She came outside, and when she saw the man lying on the ground, she ran over to him. Cesar heard her say, "[T]hey shot him," and then she screamed. She also went through the man's pockets; she "took something out [of] . . . his left pocket . . . and balled it in her hand," and she took the man's phone. She then ran into her apartment and locked the door. Cesar waited with the man until the police arrived.

Cesar thought the man in the hoodie had been trying to rob the other man because he did not run away immediately when Cesar came outside. Cesar admitted, however, that he did not see the man in the hoodie going through the other man's pockets. Cesar also admitted he had just assumed the man in the hoodie had been trying to rob the other man because of "the senseless crime that [had been] happening" in the area.

Bradley Cantu

Fort Worth Police Officer Bradley Cantu testified that he was dispatched to a shooting at 4:26 a.m. on December 28, 2012. He arrived about five minutes later with another officer. Cesar's girlfriend flagged them down when they drove into the complex. Officer Cantu found a black male, whom he identified as Williams, lying face up on the sidewalk and a woman who identified herself as Alice Davis standing over him screaming and crying. Officer Cantu also saw Cesar standing there. Officer Cantu checked for Williams's pulse but could not feel one. The paramedics pronounced Williams dead at the scene.

Officer Cantu went with Davis to her apartment so that he could question her. Davis told Officer Cantu that she had spoken to Williams around midnight, and he was going to bring her some food. Other officers found Williams's car in the parking lot of the apartment complex. After Officer Cantu learned that Davis had taken a cell phone out of Williams's pocket, he took her to his patrol car to question her further. He confiscated a cell phone Davis had with her in the patrol car.

Tyrone Glapa

Officer Tyrone Glapa, a crime scene search officer, was also called to the scene. The State introduced his photographic documentation of the scene into evidence. Officer Glapa also searched Davis's apartment and found a disassembled cell phone under a pillow in the bedroom.

Alice Davis

Davis testified that appellant is her oldest child's father. At the time of trial, she had known appellant for seven years. She said that everybody called him L.A. By the time of the shooting, Davis and appellant were no longer in a relationship, and she was dating Williams. Williams was a successful drug dealer. Davis said that appellant did not like her relationship with Williams because "if he can't have me, can't nobody have me." She also said that appellant just did not like Williams.

In March 2012, Child Protective Services investigated whether Davis's home was suitable for her and appellant's child and placed the child in foster care; one of the main reasons for the removal was that Davis was helping Williams sell drugs. Appellant was angry about the removal and said it was Williams's fault. Appellant asked Davis at least five times to help him rob Williams. She thought appellant talked about robbing Williams when he was out of money, and he said things to make her think that he should have some of Williams's money. She refused.

The couple's child was still in foster care at the time of the shooting. The day before, Davis had attended a CPS-required class and visited their child. She talked to appellant that day and told him he needed to complete his classes; he responded that "he shouldn't have to do no classes because it's [Williams's] fault that [the child] got took." He was angry. That same day, appellant told her again he wanted to rob Williams, "to set him up." She told him no.

Davis typically communicated with appellant on his mother's cell phone.

On December 28, 2012, Davis was expecting Williams to come home around 3:00 or 4:00 a.m.; he had been staying with her at the apartment. Davis said that after she found out that Williams had been shot, she took his cell phone to call his uncle but it was locked; she took it with her when she ran into her apartment to use her cell phone. She said initially that Williams's phone came apart in the apartment because it kept ringing, so she threw it; Davis admitted later, however, that she had taken the phone apart. Davis said she had checked Williams's pockets for drugs at his aunt's suggestion, but she did not find any. She also said she had found money but left it in his pocket.

When a detective interviewed Davis after the shooting, she did not tell him everything at first because although she suspected appellant had shot Williams, she did not want to accuse her child's father unless she was sure. Davis testified that she had told the detective that appellant did not know where she lived andthought she lived in Arlington.3 She agreed that the detective had said to her during the interview, "[T]his ain't a robbery." But she thought the motive was robbery nevertheless. Appellant did not have a job, nor did he make the kind of money Williams did. Williams supported her and her child but appellant did not. Davis also confirmed that appellant was the only one of the other men charged who knew Williams.

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