Ray v. State

• Decision Date: 22 December 1988
• Docket Number: B14-87-00347-CR,Nos. A14-87-00346-C,s. A14-87-00346-C
• Citation: 764 S.W.2d 406
• Parties: Cynthia Campbell RAY, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 406

764 S.W.2d 406

Cynthia Campbell RAY, Appellant, v. The STATE of Texas, Appellee.

Nos. A14-87-00346-CR, B14-87-00347-CR.

Court of Appeals of Texas,

Houston (14th Dist.).

Dec. 22, 1988.

Bob Wicoff and David Cunningham, Houston, for appellant.

Cathleen Herasimchuk, Houston, for appellee.

Before J. CURTISS BROWN, C.J., and ROBERTSON and CANNON, JJ.

OPINION

J. CURTISS BROWN, Chief Justice.

A jury convicted Cynthia Campbell Ray of the murder of her parents, James H. Campbell and Virginia Campbell, as charged in two separate indictments. The jury also made an affirmative finding on use of a deadly weapon. The jury assessed punishment of confinement for life in the Texas Department of Corrections for each offense, the sentences to run concurrently. Appellant asserts six points of error. We overrule points of error one through five, but sustain point of error six and, as a result, affirm as reformed.

James and Virginia Campbell were gunned down while asleep in their home during the early morning hours of June 19, 1982. David West fired the shots that killed Mr. and Mrs. Campbell. West, who testified at appellant's trial pursuant to a plea bargain agreement with the State, averred appellant had provoked and aided him during the commission of the murders. In charging the jury, the court classified West as an accomplice as defined by TEX.CRIM.PROC.CODE ANN. art. 38.14 (Vernon 1979), which says:

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 (emphasis added).

In her first point of error, appellant maintains her convictions must be reversed because there was insufficient evidence to corroborate West's accomplice testimony. We disagree.

In Reed v. State, 744 S.W.2d 112 (Tex.Crim.App.1988), the Court of Criminal Appeals stated that article 38.14 provides the only test for determining the sufficiency of evidence to sustain a conviction when an accomplice inculpates the accused. 744 S.W.2d at 125 n. 10. The Reed court stated that the appellate court should "eliminate from consideration the evidence of the accomplice witness and then examine the evidence of other witnesses with the view to ascertain if there be inculpatory evidence, that is [,] evidence of incriminating character which tends to connect the defendant with the commission of the offense. If there is such evidence, the corroboration is sufficient; otherwise, it is not." (emphasis in original, citations omitted). 744 S.W.2d at 125, quoting Edwards v. State, 427 S.W.2d 629, 632 (Tex.Crim.App.1968).

The Reed court reaffirmed the following rules, long associated with application of article 38.14:

(1) each case must be considered on its own facts and circumstances;

(2) all the facts and circumstances in evidence may be looked to as furnishing the corroboration necessary;

(3) corroborative evidence may be circumstantial or direct;

(4) the combined cumulative weight of the incriminating evidence furnished by the non-accomplice witness which tends to connect the accused with the commission of the offense supplies the test;

(5) it is not necessary that the corroboration directly link the accused to the crime or be sufficient in itself to establish guilt;

(6) insignificant circumstances sometimes afford most satisfactory evidence of guilt and corroboration of accomplice witness testimony.

744 S.W.2d at 126. If the record shows the accused was present, as in the instant case, Reed also restates the familiar rule that "[p]roof that the accused was at or near the scene of its commission, when coupled with other suspicious circumstances, may tend to connect the accused to the crime so as to furnish sufficient corroboration to support a conviction." Reed, 744 S.W.2d at 127, quoting Brown v. State, 672 S.W.2d 487, 489 (Tex.Crim.App.1984) (emphasis added).

Because the Texas Court of Criminal Appeals rejected the "more likely than not" test and reaffirmed the rules we have set out above, article 38.14 continues to demand that the record contain non-accomplice evidence of suspicious circumstances which independently incriminate the accused before the jury can give effect to the accomplice's incriminating testimony. See Reed, 744 S.W.2d at 125-77; accord, Jackson v. State, 745 S.W.2d 4, 11 (Tex.Crim.App.1988) (after eliminating the accomplice's testimony we must "examine the remaining evidence to ascertain whether it independently tends to connect the appellant to the commission" of the offense.); Gardner v. State, 730 S.W.2d 675, 678 (Tex.Crim.App.1987); Brooks v. State, 686 S.W.2d 952, 958 (Tex.Crim.App.1985); Hardesty v. State, 656 S.W.2d 73, 76 (Tex.Crim.App.1983); Paulus v. State, 633 S.W.2d 827, 843 (Tex.Crim.App.1982); Simmons v. State, 650 S.W.2d 108, 109 (Tex.App.--Houston [14th Dist.] 1983, no pet.). It is undisputed appellant was present and at the side of West when the murders occurred. In addition, after considering the remainder of the record, based on the standards which Reed reaffirmed, we find sufficient incriminating corroborating evidence which independently tends to connect appellant to the murders of her parents.

Numerous excerpts of non-accomplice testimony from the record not only independently tend to connect appellant with the offenses committed, but also are strong enough for the jury to convict her for the murder. The first incriminating testimony tending to connect appellant with the murder of her parents was solicited by her own trial counsel on cross-examination of appellant's friend, Gwen Sampson.

Q. Let me ask you if this is what you said to the police concerning Cindy's statements to you about being there. Okay? And this is when you gave the first statement to the police. All right? I'm on page--page 3. "All I know is that she looked at me straight in the eye and said this is how it happened. I stood beside him with my children on the floor. I didn't look when he shot my father. I didn't look when he shot my mother but I felt that her body must have jumped some." Did she say that to you?

A. Yes.

Q. That's what you told the police, right?

A. Yes.

Q. Then she said ".... She was dressed like a man so her children wouldn't recognize her." Did you say that to the police?

A. Something like that, yes.

Additional testimony from Gwen Sampson also tends to connect the appellant with the commission of the crime:

She [the appellant] said that Salino was the person who decided to kill her parents. That he was going to do it to make her well. They went to the house. He knew the floor plan better than she did ... and that they were in her parent's bedroom and he shot her parents and held a gun on her and said, "If you say anything, I'll shoot you."

Maria Gonzalez, the Campbell's maid, testified that appellant, nine days before her parents' murders, had been walking around the back of the Campbells' home, raising and lowering windows. Ms. Gonzalez further testified appellant began to climb into one of these open windows. When confronted by Maria, appellant appeared excited and nervous. Maria further stated that she relocked all of the downstairs windows the next day, and then on Friday, the day before the murders, she once more checked to insure all the windows were securely locked. She later stated that, before the murders, she heard the sound of a window being pushed open and five minutes later she heard the sound of shots being fired. The police investigation determined that the window appellant had been seen opening nine days earlier was the apparent point of entry for the murders. Finally, appellant's admission to the police that she had gone to her parents' home at 10 P.M. on the night of the murders tends to connect the appellant with the commission of the crime. This admission allowed the inference that she had an opportunity, alone and unobserved, to open the downstairs den window while her mother was upstairs getting money for her. This testimony alone is enough to corroborate West's testimony. Passmore v. State, 617 S.W.2d 682, 684-85 (Tex.Crim.App.1981); Nelson v. State, 542 S.W.2d 175, 177 (Tex.Crim.App.1976).

Appellant admitted to the police she had spent the entire evening of the murders in the company of West. Thus, according to her own written statement wherever West was on that night so was appellant. The record is devoid of any testimony that suggests appellant went to the house unwillingly, went up the stairs unwillingly, stood beside the shooter unwillingly, or was in any way forced to participate in the murder of her parents. The only threat appellant spoke of to Gwen Sampson was that of being shot should she tell anyone of the murders. This threat was made after, not before, she accompanied West to the Campbell's residence and stood beside him after turning on the bedroom light, watching him kill her parents in the room with her own children.

The jury is the exclusive judge of the facts proved, of the credibility of the witnesses, and of the weight given their testimony. Penagraph v. State, 623 S.W.2d 341, 343 (Tex.Crim.App.1981). The trial judge gave the jury an instruction that required appellant's acquittal if they believed she was present at the murders under duress. The jury obviously rejected this theory by finding appellant guilty. Viewing the evidence from the record, we find it supports the jury's finding. Wicker v. State, 667 S.W.2d 137, 141 (Tex.Crim.App.1984).

Further testimony tending to connect the appellant with the commission of the crime came from her younger sister, Jamie Campbell. Jamie testified that almost two years before the murders, appellant stated to her that "we'd be better off without daddy" because then the girls could have "whatever we wanted." Appellant continued to discuss with Jamie how she would make his (James Campbell's) murder look like a man had done it by...