Wilson v. State

• Court: Texas Court of Criminal Appeals
• Writing for the Court: KELLER
• Citation: Wilson v. State, 7 S.W.3d 136 (Tex. Crim. App. 1999)
• Decision Date: 08 December 1999
• Parties: (Tex.Crim.App. 1999) MARVIN LEE WILSON, Appellant v. THE STATE OF TEXAS NO. 73,043

Page 136

7 S.W.3d 136 (Tex.Crim.App. 1999)

MARVIN LEE WILSON, Appellant v. THE STATE OF TEXAS

NO. 73,043

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

Dec. 8, 1999.

ON DIRECT APPEAL FROM JEFFERSON COUNTY

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O P I N I O N

KELLER, J., delivered the unanimous opinion of the Court.

In a trial beginning in January 1998, appellant was convicted of capital murder for the kidnapping and murder of Jerry Williams. Tex. Penal Code Ann. 19.03(a)(2).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. Article 37.071 2(g).² Direct appeal to this Court is automatic. Article 37.071 2(h). Appellant raises fourteen points of error. We will affirm.

I. SUFFICIENCY OF THE EVIDENCE

A. Guilt

In point of error four, appellant complains about the trial court's refusal to grant his motion for an instructed verdict of acquittal. In point of error five, appellant complains that the evidence is legally and factually insufficient to support his conviction.

The evidence showed the following: On November 4, 1992, Officer Robert Roberts and other police officers entered appellant's apartment pursuant to a search warrant. Jerry Williams was the confidential informant whose information enabled Roberts to obtain the warrant. Williams entered and left the apartment minutes before the police went in. Appellant, Vincent Webb,³ and a juvenile female were present in the apartment. Over 24 grams of cocaine were found, and appellant and Webb were arrested for possession of a controlled substance. Appellant was subsequently released on bond, but Webb remained in jail. Sometime after the incident, appellant told Terry Lewis that someone had "snitched" on appellant, that the "snitch" was never going to have the chance to "to have someone else busted," and that appellant "was going to get him."

On November 9, 1992, several observers saw an incident take place in the parking lot in front of Mike's Grocery. Vanessa Zeno and Denise Ware were together in the parking lot. Caroline Robinson and her daughter Coretta Robinson were inside the store. Julius Lavergne was outside the store, but came in at some point to relay information to Caroline. The doors to Mike's Grocery were made of clear glass, and Coretta stood by the door and watched. Zeno, Ware, Coretta, and Lavergne watched the events unfold while Caroline called the police. These witnesses testified consistently although some witnesses noticed details not noticed by others.

In the parking lot, appellant stood over Williams and beat him. Appellant asked Williams, "What do you want to be a snitch for? Do you know what we do to a snitch? Do you want to die right here?" In response, Williams begged for his life. Andrew Lewis, Terry's husband, was pumping gasoline in his car at the time. Williams ran away from appellant and across the street to a field.⁴

Appellant pursued Williams and caught him. Andrew drove the car to the field. While Williams struggled against them, appellant and Andrew forced Williams into the car. At some point during this incident, either in front of Mike's Grocery, across the street, or at both places, Andrew participated in hitting Williams and appellant asked Andrew: "Where's the gun?" Appellant told Andrew to get the gun and said that he (appellant) wanted to kill Williams.⁵ They drove toward a Mobil refinery. Zeno and Ware drove back to their apartments, which were close by, and when they arrived, they heard what sounded like gunshots from the direction of the Mobil plant.⁶

Sometime after the incident, appellant told his wife, in the presence of Terry Lewis and her husband, "Baby, you remember the nigger⁷ I told you I was going to get? I did it. I don't know if he dead or what, but I left him there to die." When Terry looked back at her husband, appellant stated, "Don't be mad at Andrew because Andrew did not do it. I did it."

On November 10, 1992, a bus driver noticed Williams' dead body on the side of a road. The autopsy report concluded that Williams died from close range gunshot wounds to the head and neck.

Having known appellant for 16 years, Zeno identified appellant. Lavergne and Coretta recognized Williams but did not know appellant or Andrew. Lavergne subsequently identified Andrew in a photo line-up. At that time, Lavergne told law enforcement authorities that the man he identified in the photo was the "helper," rather than the primary actor. The other man, who Lavergne described as having a "gerry curl," made the threats and conducted most of the beating of Williams. Under defense cross-examination at trial, Lavergne testified that the man in the photo (i.e. Andrew Lewis) was the man with the gerry curl and hence, the primary actor. But, upon redirect examination, Lavergne testified that his earlier testimony was in error, and that the man in the photo was not the one with the gerry curl.

This contradiction led to questioning that explored an incident involving Lavergne, defense counsel, and appellant. At one time, defense counsel and appellant interviewed Lavergne together, while Lavergne was in jail for an offense unrelated to the present case. No representatives of the district attorney's office were present. Appellant asked Lavergne for his father's name, and appellant asked if Lavergne had a new baby. These questions made Lavergne feel scared and intimidated, and he wondered how appellant could have known about Lavergne's new baby.

In evaluating legal sufficiency, we must view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Our review of the record shows ample evidence to support the conviction. Williams was the informant who caused appellant to be arrested for cocaine. Appellant could have inferredfrom Williams' presence at his apartment immediately before the police arrived that Williams had indeed "snitched" on appellant. That sequence of events established a motive for the murder. Appellant's statements to Terry Lewis and his later statements to Williams show that appellant intended to act upon that motive and kill Williams. Appellant assaulted and kidnapped Williams in front of several eyewitnesses, and later, appellant bragged that he had left the "snitch" to die. The latter statement could have been reasonably interpreted as an admission that appellant had in fact fulfilled his earlier threats to kill the victim. The short time frame in which these events occurred - a matter of several days - also supports the inference that these events were connected. And appellant's references to Lavergne's father and new baby reasonably could have been interpreted as a veiled attempt to influence Lavergne's testimony. Such an attempt to tamper with a witness is evidence of "consciousness of guilt." See Ransom v. State, 920 S.W.2d 288, 299 (Tex. Crim. App. 1996)(opinion on rehearing).

Appellant contends that the only evidence supporting a finding of guilt was inadmissible hearsay testimony that was repudiated by in-court testimony. However, all evidence admitted at trial - including improperly admitted evidence - is considered in a legal sufficiency review. Dewberry v. State, 4 S.W.3D 735, 740-41 (Tex.Crim.App.1998); Johnson v. State, 967 S.W.2d 410, 412 (Tex. Crim. App. 1998). Appellant does not explain what evidence he considers to be hearsay or why such evidence should be considered so weak that it would be insufficient to support a conviction under Jackson. Nor does he explain what testimony repudiates the hearsay testimony. And, while we have found the record to contain a number of out-of-court statements that support the verdict, most of those statements were made by appellant, and thus qualify as party-opponent admissions, which are not hearsay. Tex. R. Crim. Evid. 801(e)(2)(A). Likewise, eyewitness testimony concerning appellant's acts of beating and abducting Williams arenot hearsay nor is the testimony concerning gunshot sounds.

Appellant also claims that the evidence is insufficient because it fails to exclude every outstanding reasonable hypothesis other than guilt. We have rejected the reasonable hypothesis construct as a measure of legal sufficiency. Geesa v. State, 820 S.W.2d 154, 161 (Tex. Crim. App. 1991).

In determining whether the evidence is factually sufficient to support the conviction, we must view all of the evidence, without the prism of "in the light most favorable to the prosecution," and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Although the existence of alternative reasonable hypotheses may be relevant to, but are not determinative in, a factual review, appellant cites no alternative hypotheses in his brief. And we perceive no reasonable hypotheses that would exculpate him. Only two possible hypotheses are present from the record. One is that Webb killed Williams or secured someone other than appellant to do so. Being present in the same drug bust with appellant, Webb possessed a similar motive to harm Williams. And Williams had said to a police officer, "Gun's after me. I need to get out of here." But, the evidence established that Webb was injail at the time of the murder. Besides a common motive and William's statement about "Gun," no evidence in any way implicated Webb in the murder. By contrast, appellant is strongly linked to the murder by his admissions and the kidnapping incident. The only other hypothesis is that Andrew acted alone or as the primary actor in killing Williams. There is no evidence that Andrew acted alone, and there is very little evidence that Andrew was the primary actor.⁸ Most of the evidence points...