Solomon v. State

• Decision Date: 20 June 2001
• Docket Number: No.73,459,73,459
• Citation: 49 S.W.3d 356
• Parties: (Tex.Crim.App. 2001) CHRISTOPHER JULIAN SOLOMON, Appellant v. THE STATE OF TEXAS
• Court: Texas Court of Criminal Appeals

Page 356

49 S.W.3d 356 (Tex.Crim.App. 2001)

CHRISTOPHER JULIAN SOLOMON, Appellant v. THE STATE OF TEXAS

No.73,459

Court of Criminal Appeals of Texas.

June 20, 2001

ON DIRECT APPEAL FROM BOWIE COUNTY

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[Copyrighted Material Omitted]

KELLER, P.J., delivered the opinion of the Court in which WOMACK, KEASLER, HERVEY, and HOLCOMB, J.J., joined.

OPINION

Appellant was convicted in June 1999 of a capital murder committed on September 19, 1997.¹ Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure art. 37.071 §§2(b) and 2(e), the trial judge sentenced appellant to death.² Direct appeal to this Court is automatic.³ Appellant raises nine points of error. We will affirm.

I. SUFFICIENCY OF THE EVIDENCE

A. Guilt

In point of error two, appellant complains that the State presented insufficient evidence to corroborate accomplice witness testimony. Three witnesses are relevant to resolving appellant's complaint here: Javarrow Young, Virginia Marie Wood, and Christina Davis. According to all three witnesses, appellant, Julius Murphy, Young, Wood, and Davis attended a party at Murphy's mother's home on the afternoon of September 17, 1997. Young testified that appellant engaged him in a conversation about a robbery. Murphy was present during this conversation but did not talk. Appellant later proceeded to show Young a pistol from the glove compartment of Wood's car. Appellant then passed the gun around to several others, including Young and Murphy. The gun was subsequently returned to appellant, who pocketed it.

Young, Wood, and Davis all testified that two vehicles of people traveled together to visit some out-of-town friends. One of the vehicles, a truck, was driven by Young's girlfriend and contained as passengers Young, Young's daughter, and a friend named Phil. The other vehicle, a car, was driven by appellant and contained as passengers Murphy, Wood, and Davis. Upon returning from their out-of-town trip, the two vehicles stopped at a gas station. Young testified that he conversed with appellant. Appellant related that he had seen a man with car trouble on the side of the road, and the man had waved, indicating he needed assistance. Appellant told Young that he was going to "jack him" - a statement Young interpreted as meaning appellant was going to rob the man on the road. Young declined to get involved in the robbery but told appellant "to do what they got to do, and go." Wood and Davis saw appellant engage in a conversation but did not hear what transpired.

Young saw appellant's car stop by the man's car on the side of the road. Young then drove his truck to a different gas station and waited. When appellant's car failed to appear after twenty to thirty minutes, Young drove his truck towards town. On the way, he saw the victim, Jason Erie, lying on the ground. Young flagged down a passing ambulance and directed it to the scene. Later, he talked to the police.

According to Wood and Davis, appellant drove Wood's car, Wood sat in the front passenger seat, Murphy sat behind appellant, and Davis sat behind Wood. Murphy and Davis were not getting along because they had been fighting earlier on the trip. Appellant pointed to the side of the road to Erie, who was apparently having car trouble. Appellant gave Erie's car a "jump," and Erie paid appellant five dollars. According to Davis, as Erie headed away, appellant told Murphy that Erie had a lot of money in his wallet and said something to the effect of "we should jack him." At first, Murphy resisted the idea, but appellant goaded Murphy until he agreed. Murphy then said, "Okay, give me the gun. I'll do it." Appellant then told Wood to take the gun out, Wood removed the gun from the glove compartment, and Murphy grabbed the gun. According to Wood, after Erie paid appellant five dollars, Murphy told her to hand him the gun and she complied.

Wood heard appellant tell Murphy that he should shoot and kill the man because "that's how I got caught the last time." Davis was not listening to the conversation but she heard the last phrase "that's how I got caught the last time." Davis testified that she grabbed Murphy and told him not to go, but Murphy pushed her away and exited the car. Davis put her head down and heard a gun fire. Wood saw Murphy shoot the victim and take his wallet. According to Wood, appellant and Murphy later bragged about the bullet shell remaining inside the gun's chamber, and appellant coldly bragged that he was going to keep the five dollars given by Erie as a souvenir. Both Davis and Wood testified that, sometime after the incident with Erie, Davis ran from the car and contacted the police.

Appellant, Murphy, and Wood were subsequently charged with capital murder. Appellant and Murphy did not testify. Wood, Davis, and Young all testified as witnesses for the prosecution. The jury charge included an accomplice as a matter of law instruction for Wood and an accomplice as a matter of fact instruction for Davis.

Appellant contends that Wood and Davis were accomplices, whose testimony required corroboration. And he contends that Young's testimony should be disregarded because he gave inconsistent statements to the police. Appellant concludes: "Without the testimony of Ms Davis and Ms. Wood[], the evidence is both legally insufficient, as well as factually insufficient, to support the conviction." Appellant further contends that, even if credence is given to Young's testimony regarding the robbery, without the testimony of Wood and Davis, there was no evidence that appellant did anything to aid or encourage the murder.

The accomplice-witness rule 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.⁴

In conducting a sufficiency review under the accomplice-witness rule, a reviewing court must eliminate the accomplice testimony from consideration and then examine the remaining portions of the record to see if there is any evidence that tends to connect the accused with the commission of the crime.⁵ "Tendency to connect" rather than rational sufficiency is the standard: the corroborating evidence need not be sufficient by itself to establish guilt.⁶ The accomplice-witness rule is not based upon federal or state constitutional notions of sufficiency; there simply needs to be "other" evidence tending to connect the defendant to the offense.⁷

Appellant's argument contains several flaws. First, appellant erroneously assumes Davis to be an accomplice. The only evidence supporting the notion that Davis was an accomplice was her presence at the scene of the crime. But mere presence during the commission of a crime is not enough to make one an accomplice.⁸ While the trial court gave the jury an accomplice as a matter of fact instruction regarding Davis, that instruction was not raised by the evidence. Even if the instruction had been raised by the evidence, the jury would have been free to believe that Davis was not in fact an accomplice. Because Davis was not an accomplice, her testimony could be used as corroboration. At least two facts revealed in Davis's testimony linked appellant to the crime: 1) appellant formed the idea of robbing Erie and goaded Murphy into committing the robbery, and 2) appellant commanded Wood to hand the gun to Murphy.

Appellant also errs in contending that we should ignore Young's testimony. Appellant implicitly concedes that Young was not an accomplice but believes the testimony should be ignored on the ground that Young lacked credibility as a witness. But the credibility of a witness is an issue for the jury to decide, and we have held in the past that credibility attacks on a witness do not defeat the corroborating effect of the witness's testimony.⁹ Moreover, appellant's contention amounts to an attempt to superimpose a legal or factual sufficiency review upon the accomplice witness standard - a contention we rejected in Cathey v. State.¹⁰

Finally, appellant erroneously assumes that the evidence connecting him to the robbery did not also connect him to the murder. We have previously held a defendant's presence at the scene and participation in the underlying offense to be sufficient to connect him to the capital murder for accomplice-witness rule purposes.¹¹ Young's testimony that appellant said he intended to "jack" the victim was some evidence connecting appellant to the robbery and placing him at the scene of the capital murder. Point of error two is overruled.

B. Future Dangerousness

In point of error eight, appellant contends that the evidence was legally insufficient to support the jury's answer to the "future dangerousness" special issue.¹² In evaluating the sufficiency of the evidence to support the jury's answer to that issue, we utilize the standard articulated in Jackson v. Virginia: we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found beyond a reasonable doubt that there is a probability that appellant would commit criminal acts of violence constituting a continuing threat to society.¹³

We have outlined a non-exclusive list of factors that may be considered in determining whether a defendant constitutes a continuing threat to society:

(1) the circumstances of the capital offense, including the defendant's state of mind and whether he was acting alone or with other parties;

(2) the calculated nature of the defendant's acts;

(3) the forethought and deliberateness exhibited by the crime's execution (4) the existence of a prior criminal record and the severity of the prior crimes;

(5) the defendant's age and personal circumstances at the time of the offense;

(6) whether the defendant was acting under duress or the domination of another at the time...