Richardson v. State

• Decision Date: 08 December 1993
• Docket Number: No. 70746,70746
• Citation: 879 S.W.2d 874
• Parties: Damon Jerome RICHARDSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 874

879 S.W.2d 874

Damon Jerome RICHARDSON, Appellant, v. The STATE of Texas, Appellee.

No. 70746.

Court of Criminal Appeals of Texas,

En Banc.

Dec. 8, 1993.

Rehearing Denied May 25, 1994.

Clifford W. Brown and Mike Brown, Lubbock, for appellant.

Travis S. Ware, Dist. Atty., Lubbock, Robert Huttash, State's Atty., Austin, for State.

Before the court en banc.

OPINION

CAMPBELL, Judge.

At a trial held in the 350th District Court of Taylor County ¹ in late September and early October of 1988, a jury found appellant, Damon Jerome Richardson, guilty as a party to the capital murder of three individuals during a single criminal transaction. ² At the punishment phase of the trial, the jury answered affirmatively the punishment issues submitted to them under Article 37.071(b) of the Texas Code of Criminal Procedure, and appellant was sentenced to death. ³ Direct appeal to this Court was automatic under Article 37.071(h). ⁴ We now affirm.

In eight points of error, appellant argues: that the evidence at his trial was insufficient to prove that all three victims--Vivian Webb, Quinnie Smith, and Napoleon Ellison--were killed in a single criminal transaction; that the evidence was insufficient to satisfy the accomplice witness rule; that the evidence was insufficient because the law of parties does not apply to Texas Penal Code § 19.03(a)(6)(A), the provision under which he was convicted; that the trial court erred in admitting certain photographs in evidence at the guilt/innocence phase; that the trial court erred in overruling his objection to the prosecutor's closing argument at the guilt/innocence phase; that the trial court, in its charge to the jury at the guilt/innocence phase, erroneously authorized a finding of guilt based upon a theory not supported by the evidence; that the trial court, in its charge to the jury at the punishment phase, erroneously instructed the jury with respect to the first punishment issue; and that the trial court, in its charge to the jury at the punishment phase, erroneously failed to allow the jury to consider certain mitigating evidence. With the exception of the points of error challenging the sufficiency of the evidence, appellant's points of error will be addressed in chronological order.

In his fourth point of error, appellant argues that he has been denied his liberty without due process of law because the evidence at his trial was insufficient to prove beyond a reasonable doubt that the victims--Webb, Smith, and Ellison--were all killed in the same criminal transaction. ⁵ Appellant contends that the evidence "suggests" the victims were not all killed in the same criminal transaction. Appellant contends further that, "[b]ecause of the outstanding reasonable hypothesis that the victims were not murdered in the same criminal transaction ..., no rational trier of fact could have found the essential elements of the capital crime beyond a reasonable doubt." The State responds that "there was evidence which, if believed by the jury as trier-of-fact, would prove that [all of] the murders occurred contemporaneously."

Appellant was charged with, and found guilty of, violating Texas Penal Code § 19.03(a)(6)(A). See footnote two, supra. The State presented numerous witnesses and exhibits during the guilt/innocence phase. Appellant presented no evidence at the guilt/innocence phase. The key evidence was as follows:

Rodney Kennedy testified that on or about September 3, 1987, he saw appellant fire an Uzi machine gun behind the Seven Acres Lodge in Lubbock. Appellant's Uzi had a silencer attached to it.

Vincent McNeal testified that sometime before September 8, appellant told him that Webb and Ellison were "ripping him off" and that, consequently, "he had something for them." McNeal also testified that on or about September 8, he saw appellant fire a machine gun on a dirt road in Lubbock County.

Anita Hanson testified that on the evening of September 7, she, appellant, and Lambert Wilson attended a party at a mutual friend's home in Lubbock. While at that party, Hanson overheard appellant tell Wilson that he planned to kill Webb and Ellison. Wilson agreed to participate in the killings if appellant paid him to do so.

Hanson testified further that at approximately 12:30 a.m. on September 10, Wilson and Michael Stearns picked her up in a car at a Lubbock park and drove to Ellison's residence, which was also in Lubbock. Wilson, who was driving, parked the car about two blocks from Ellison's residence. Wilson and Stearns then exited the car and walked quickly toward the residence. Wilson carried an Uzi machine gun, and Stearns carried a shotgun. At that time, Hanson believed that Wilson and Stearns intended only to frighten Ellison.

About twenty minutes after Wilson and Stearns left, Hanson decided to walk to Ellison's residence herself. When she reached the driveway of the residence, she heard "a loud boom." She then ran inside. Once inside, she saw appellant, Wilson, Stearns, Ellison, and Rodney Childress. Ellison was sitting in a chair; his head was down and "there was blood on him." Appellant was carrying a pistol, Childress was carrying a shotgun, and Wilson was still carrying an Uzi. Both appellant and Wilson were wearing rubber gloves. Childress looked at Hanson and told her that appellant had forced him to kill Webb. Ellison then raised his head and asked Hanson to help him. Hanson asked appellant, who appeared to be in charge, whether she could telephone a doctor, but he said no. Appellant then took the Uzi from Wilson, handed it to Hanson, and ordered her to shoot Ellison. Appellant threatened to kill her if she did not. Hanson complied, firing three shots into Ellison. Appellant then instructed Wilson to remove some "drugs" from a cabinet beneath the kitchen sink, and Wilson did so. Shortly thereafter, Hanson left the residence with Wilson and Stearns.

Charles Johnson, a neighbor of Ellison, testified that around 12:30 a.m. on September 10, he (i.e., Johnson) left his residence and went out to his car to smoke a cigarette. While he was sitting in his car, he saw an automobile drive into Ellison's driveway. Moments later a van parked on the street in front of Ellison's residence. Appellant exited the automobile, and Hanson, Wilson, and two other males exited the van. ⁶ Someone then knocked on the door of Ellison's residence. Ellison opened the door and let some or all of the males inside. A few minutes later, Johnson heard what sounded like a shotgun blast coming from the residence.

Five other neighbors of Ellison testified that at around 4:00 a.m. on September 10, they were awakened by several gunshots.

Lubbock Police Officer John Gomez testified that Webb, Smith, and Ellison were found dead in the Ellison residence on the afternoon of September 10. Lubbock Police Detective Walter Crimmins testified that a search of the residence revealed two plastic bags of marihuana, two shotgun shells, several nine-millimeter shell casings, and some photographs of appellant. Department of Public Safety firearms examiner Robert M. Buckner testified that all of the nine-millimeter shell casings came from the same weapon and that that weapon could have been an Uzi machine gun.

Finally, a forensic pathologist testified that all of the victims died of multiple gunshot wounds. Furthermore, because all of the victims had some wounds from which there had been little or no bleeding--indicating that the victims were already dead at the time those particular wounds were inflicted--the pathologist concluded that "probably there were two episodes of shooting."

The Due Process Clause of the Fourteenth Amendment to the United States Constitution requires that every state criminal conviction be supported by evidence that a rational factfinder could accept as sufficient to prove all of the elements of the offense beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). As an appellate court reviewing a cold record long after the jury has evaluated the evidence and made its finding of guilt, our task is to consider all of the record evidence and reasonable inferences therefrom in the light most favorable to the jury's finding and to determine whether, based on that evidence and those inferences, a rational jury could have found all of the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). In particular, "[i]n reviewing sufficiency of the evidence to show [the] 'same criminal transaction' [in the capital murder context], we ... look to see whether the jury could rationally conclude appellant engaged in a continuous and uninterrupted process, over a short period of time, of ... carrying out [the] murder of more than one person." Rios v. State, 846 S.W.2d 310, 314 (Tex.Crim.App.1992).

Utilizing the required standard of review, we must reject appellant's fourth point of error. Viewed in the light most favorable to the jury's verdict, the testimony of witnesses Hanson, Johnson, and the pathologist rationally supported the jury's conclusion, beyond a reasonable doubt, that all three of appellant's victims died in a single criminal transaction. Specifically, the testimony in question supports a conclusion that all three victims died in Ellison's residence shortly after 12:30 a.m., September 10, 1987. Point of error number four is overruled.

In his third point of error, appellant contends he has been denied his liberty in violation of Texas statutory law because the evidence at his trial was insufficient to corroborate the testimony of the accomplice witness, Anita Hanson. Appellant argues specifically that the non-accomplice evidence "only circumstantially prove[d] [his] presence and flight from the scene of the offense, his possession of a machine gun close in ... time to the offense, and the possible use of a machine gun in the murders." The State...