Weaver v. State

• Decision Date: 26 June 2008
• Docket Number: No. 01-07-00178-CR.,01-07-00178-CR.
• Citation: 265 S.W.3d 523
• Parties: Gary Wayne WEAVER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

265 S.W.3d 523

Gary Wayne WEAVER, Appellant, v. The STATE of Texas, Appellee.

No. 01-07-00178-CR.

Court of Appeals of Texas, Houston (1st Dist.).

June 26, 2008.

Discretionary Review Refused November 5, 2008.

Ernest Davila, Houston, TX, for Appellant.

Carol M. Cameron, Assistant District Attorney, Charles A. Rosenthal, Jr., District Attorney-Harris County, Houston, TX, for Appellee.

Panel consists of Justices NUCHIA, HANKS, and HIGLEY.

OPINION

GEORGE C. HANKS, JR., Justice.

Following trial, a jury convicted appellant, Gary Wayne Weaver, of aggravated robbery,¹ and the trial court assessed punishment at life imprisonment. On appeal appellant presents six issues: (1) whether the evidence supporting the verdict is legally and factually sufficient; (2) whether the warrantless search of the apartment at which he was a guest was illegal; (3) whether his confession was illegally obtained due to interrogating officers' misrepresentations; (4) whether he should have been brought before a magistrate prior to being interrogated by police; (5) whether the trial court's refusal to allow the jury to assess punishment denied him procedural due process; and (6) whether his counsel was ineffective. We affirm.

Background

On May 14, 2006, the Houston Police Department ("HPD") began investigating a body found under an overpass bridge. A driver's license found on the decedent identified him as Ramesh Cherukumalli. At trial, the medical examiner testified that Cherukumalli died from multiple gunshot wounds.

During their investigation, officers questioned and took the written statement of Christina Dewitt. Dewitt lived at an apartment complex on Red Bluff in Pasadena, Texas. Dewitt consented to a search of her apartment and purse, in which officers discovered Cherukumalli's identification card and vehicle title.

After the officers questioned Dewitt, appellant became a person of interest to the investigation. HPD informed Pasadena Police Department Officer Joseph Phillips that a warrant had been issued for appellant's arrest. Officer Phillips knew appellant from previous encounters and knew that he often visited Dewitt's apartment. Officer Phillips arrived at Dewitt's apartment around 5:20 p.m., looked through the window, and saw appellant lying on a pallet, apparently asleep. After back-up arrived, Officer Phillips knocked on the front door. Appellant answered wearing only boxer shorts and was arrested. Officer Phillips entered the apartment and retrieved appellant's clothing and wallet. Cherukumalli's Bank of America debit card was found in appellant's wallet. Officer Phillips notified HPD, and appellant was turned over to Investigator Steven R. Straughter at HPD headquarters.

Investigator Straughter and Sergeant Robert Torres interrogated appellant for about an hour and 45 minutes. After first strenuously denying involvement, appellant finally confessed to Cherukumalli's murder. He told police that he and Dewitt kidnapped Cherukumalli at Dewitt's apartment by tying him up and placing him in the trunk of a car. After renting rooms at a hotel, Dewitt stayed with Cherukumalli at the hotel while appellant went to use Cherukumalli's debit cards. Appellant stated that the debit cards did not work because Cherukumalli gave Dewitt the wrong pin numbers. Appellant also confessed that he took cash from Cherukumalli's wallet, some of which Dewitt later used to buy drugs. When appellant returned, they placed Cherukumalli back in the car and drove to an area underneath a bridge. Appellant stated that he wanted to let Cherukumalli go, but that Dewitt wanted to kill him because he knew her.

During the interrogation, officers asked appellant what type of gun he "used." Appellant responded that he used a "chrome gun" and, without specifically saying that he shot Cherukumalli, stated, "I've already said I did it, huh, so I might as well say M515 .22 Magnum." He told the officers that he had since traded the gun for crack. Appellant also admitted that he used Cherukumalli's Bank of America debit card about 15 times at various convenience stores, and that he burned Cherukumalli's car.

Appellant was charged with capital murder for intentionally causing Cherukumalli's death while in the course of committing or attempting to commit the robbery and/or kidnapping of Cherukumalli, and the State sought the death penalty. At trial, appellant entered a plea of not guilty and he testified that his confession to police was false and that he did not participate in Cherukumalli's murder. He told the jury that it was Dewitt and two men known as "D-Ray" and "Northside" who were involved in the shooting. His counsel requested and were granted an instruction on the lesser included offense of aggravated robbery. The jury found appellant guilty of aggravated robbery and the trial court assessed punishment at life imprisonment. Appellant now brings the following issues on appeal.

Legal and Factual Sufficiency

In his first issue, appellant argues that the evidence was legally and factually insufficient to support the aggravated robbery verdict. He argues that the evidence, at most, merely shows that he was present when Cherukumalli was shot.

Standard of Review

In our legal-sufficiency review, we view the evidence in the light most favorable to the verdict and ask whether any rational trier of fact could have found the crime's essential elements beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App.2000). In our factual-sufficiency review, we view all of the evidence in a neutral light. Cain v. State, 958 S.W.2d 404, 408 (Tex.Crim.App. 1997). We will set aside the verdict only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the proof of guilt is against the great weight and preponderance of the evidence. Johnson, 23 S.W.3d at 11. Under the first prong of Johnson, we cannot conclude that a conviction is "clearly wrong" or "manifestly unjust" simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim.App.2006). Under the second prong of Johnson, we also cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury's resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. In our factual-sufficiency review, we must also discuss the evidence that, according to appellant, most undermines the jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App.2003).

The fact-finder alone determines the weight to be given contradictory testimonial evidence because that determination depends on the fact-finder's evaluation of credibility and demeanor. Cain, 958 S.W.2d at 408-09. As the determiner of the credibility of the witnesses, the fact-finder may choose to believe all, some, or none of the testimony presented. Id. at 407 n. 5; see also Lancon v. State, 253 S.W.3d 699, 705-07 (Tex.Crim.App.2008).

Analysis

To convict appellant of aggravated robbery, the jury had to find that he committed robbery and either caused serious bodily injury to another or used or exhibited a deadly weapon. See TEX. PENAL CODE ANN. § 29.03.

Additionally, appellant could have been found guilty of aggravated robbery as a party to the offense if the jury found that he, with the intent to promote or assist the commission of the offense, solicited, encouraged, directed, aided or attempted to aid the others to commit the offense. See TEX. PENAL CODE ANN. §§ 7.01; 7.02(a)(2) (Vernon 2003). Accordingly, we interpret appellant's first issue to be that the evidence is legally and factually insufficient to support his conviction for aggravated robbery, either as a principal or as a party to the offense, because appellant contends the evidence merely shows he was merely present during the commission of the crime. Appellant mischaracterizes the evidence against him.

For example, appellant contends that the record provides no evidence he knew a weapon would be used to rob Cherukumalli. In support of this argument, appellant directs us to his testimony at trial, where he admitted that he drove Dewitt, D-Ray, Northside, and Cherukumalli to the location of the shooting, but in which he also testified that he was smoking crack throughout the incident. Appellant also claimed he was ignorant of any plan to shoot Cherukumalli and that he actually told Cherukumalli to run before he was shot.²

However, in addition to appellant's trial testimony, the jury also heard evidence regarding appellant's confession that he and Dewitt put Cherukumalli in the car and appellant drove to the location underneath the bridge. While appellant did not expressly state that he shot Cherukumalli, and he actually stated that he was going to let Cherukumalli go, he did admit that he "did it" and that he used a "chrome gun" at some point during the crime.

Appellant's confession was also corroborated by independent evidence at trial. A criminal conviction cannot be based upon a defendant's extrajudicial confession unless the confession is corroborated by independent evidence tending to establish the corpus delicti. Trejos v. State, 243 S.W.3d 30, 56 (Tex.App.-Houston [1st Dist.] 2007, pet. ref'd). Some evidence, independent of appellant's statements, must show that the crime actually occurred, though the independent evidence does not have to identify the defendant as the culprit. Salazar v. State, 86 S.W.3d 640, 644-45 (Tex.Crim.App.2002). The corroborating evidence need not prove the underlying offense conclusively; all that is required is that some evidence makes the commission of the offense more probable than it would be without the evidence. Cardenas v. State, 30 S.W.3d...