ACCEPTED 06-17-00163-cr SIXTH COURT OF APPEALS TEXARKANA, TEXAS 3/28/2018 12:15 PM DEBBIE AUTREY CLERK
NO. 06-17-00163-CR
FILED IN 6th COURT OF APPEALS IN THE SIXTH DISTRICT COURT OF APPEALS TEXARKANA, TEXAS TEXARKANA, TEXAS 3/28/2018 12:15:10 PM DEBBIE AUTREY Clerk
DEION FRAZIER REED, Appellant
v.
STATE OF TEXAS Appellee
On appeal from the 124th Judicial District Court for Gregg County, Texas Trial Court Case No. 41,913-B
BRIEF OF THE STATE OF TEXAS
– ORAL ARGUMENT NOT REQUESTED–
CARL DORROUGH DISTRICT ATTORNEY GREGG COUNTY, TEXAS
John J. Roberts Texas Bar No. 24070512 Assistant District Attorney Gregg County, Texas 101 East Methvin St., Suite 333 Longview, Texas 75601 Telephone:(903) 236–8440 Facsimile: (903) 236–3701 john.roberts@co.gregg.tx.us TABLE OF CONTENTS TABLE OF CONTENTS 2 INDEX OF AUTHORITIES 2 STATEMENT OF FACTS 4 SUMMARY OF THE ARGUMENT 6 ARGUMENT AND AUTHORITY 7 CONCLUSION AND PRAYER 15 CERTIFICATE OF SERVICE 16 CERTIFICATE OF COMPLIANCE 17
2 INDEX OF AUTHORITIES
Cases
Abdnor v. State, 871 S.W.2d 726 (Tex. Crim. App. 1994) 11 Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) 11 Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) 8 City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) 9 Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2007) 9 De La Paz v. State, 279 S.W.3d 336 (Tex. Crim. App. 2009) 14 Devoe v. State, 354 S.W.3d 457 (Tex. Crim. App. 2011) 14 Dowthitt v. State, 931 S.W.2d 244 (Tex. Crim. App. 1996) 11 Frost v. State, 25 S.W.3d 395 (Tex. App.-Austin 2000) 12 Herron v. State, 86 S.W.3d 621 ( Tex. Crim. App. 2002) 11 Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) 8 Jackson v. Virginia, 443 U.S. 307 (1979) 8, 9, 15 Ledbetter v. State, 208 S.W.3d 723 (Tex. App.—Texarkana 2006) 11 Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997) 9 Matlock v. State, 392 S.W.3d 662 (Tex. Crim. App. 2013) 9 Morris v. State, 67 S.W.3d 257 (Tex. App.-Houston [1st Dist.] 2001) 11 Munoz v. State, 853 S.W.2d 558 (Tex. Crim. App. 1993) 11 Patrick v. State, 906 S.W.2d 481 (Tex. Crim. App. 1995) 9 Shuffield v. State, 189 S.W.3d 782 (Tex. Crim. App. 2003) 13 Simmons v. State, 282 S.W.3d 504 (Tex. Crim. App. 2009) 9
3 Vasquez v. State, 919 S.W.2d 433 (Tex. Crim. App. 1996) 12 Williams v. State, 301 S.W.3d 675 (Tex. Crim. App. 2009) 14 Statutes
Tex. R. Evid. 404(b) 13, 14 Tex. Code Crim. Proc. Art 38.14 11
4 STATEMENT OF FACTS
In a two-count indictment the State accused Deion Reed of the
aggravated robbery and murder of D. Rossum. The State called twenty-one
witnesses in a three day trial. According to evidence, Reed and brother Torry
helped Brendan Douglas and Korvarsia Skinner plan and execute their
conspiracy. The jury learned that the projectile which mortally wounded
Rossum was fired from a handgun discovered during a search of Reed’s home.
SX 136. Evidence also revealed an incriminating text conversation between
Reed and his conspirators just moments before the crimes. 8 RR 81; SX 104, SX
156. According to Skinner’s testimony, he and the Reed brothers waited in a
getaway car while Douglas lured Rossum to the Signal Hill Apartments. 7 RR
157-175. Then the Reed brothers got out of the car wearing dark hoodies and
took position. 7 RR 175. Moments later, Skinner heard gunfire. 7 RR 176. He
quickly pulled the car around and the four men fled the scene. 7 RR 178-79. On
cross-examination, defense counsel questioned Skinner’s motivations. Counsel
implied that Skinner might say anything to garner leniency from the State. 7 RR
238.
5 Over objection the State offered evidence of an extraneous offense to
refute the attack on Skinner’s credibility. 7 RR 277-80. The State pointed to
shell casings from a crime-scene on Webster Street which matched those at
Signal Hill. The trial court overruled an objection to the extraneous evidence,
but gave the jury proper limiting instructions before hearing evidence. 8 RR 12.
When a witness to the Webster Street shooting testified at trial she identified
Appellant or possibly his brother as the shooter. 8 RR 13-14, 16-20. 22-28,
48-49. After the State rested Defense moved for directed verdict, which the
trial court denied. 8 RR 89-90. The jury returned a guilty verdict on both
counts and thereafter sentenced Reed to sixty-years in prison. 9 RR 9-10, 49;
CR 122-125.
6 SUMMARY OF THE ARGUMENT
First, the State sufficiently proved all of the necessary elements of
aggravated robbery and murder. Second, the evidence at trial corroborated the
accomplice testimony of K. Skinner and independently connected Reed to the
crimes. Finally, the trial court did not abuse its discretion by admitting relevant
evidence of an extraneous offense because the State offered it to rebut
Appellant’s defensive-theory and to prove his identity.
7 ARGUMENT AND AUTHORITY
1) Issue One: Viewing the evidence in light most favorable to the verdict, any rational jury could have found Appellant guilty beyond a reasonable doubt.
A. Standard of Review
A reviewing court must view the evidence in the light most favorable to
the verdict to determine whether any reasonable jury could have found that
the State proved all the essential elements of of murder beyond a reasonable
doubt . Brooks v. State, 323 S.W.3d 893, 917 (Tex. Crim. App. 2010) (Cochran,
J., concurring); Jackson v. Virginia, 443 U.S. 307 (1979). In light of the evidence
in this case, any reasonable jury could have believed beyond a reasonable
doubt that Deion Reed intentionally or knowingly caused the death of D.
Rossum while in the course of committing theft.
On review deference is given to the fact-finder's duty "to fairly resolve
conflicts in testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts." Hooper v. State, 214 S.W.3d 9, 13
(Tex. Crim. App. 2007). Sufficiency of the evidence is measured by the elements
of the offense as defined by a hypothetically correct jury charge. Malik v. State,
8 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
When some evidence connects the defendant to the offense while other
evidence does not, appellate courts should defer to how the jury viewed the
evidence in support of the verdict. Simmons v. State, 282 S.W.3d 504, 508 (Tex.
Crim. App. 2009). A reasonable jury may accept or reject any or all of the
testimony of any witness. Matlock v. State, 392 S.W.3d 662, 673 (Tex. Crim.
App. 2013) (citing City of Keller v. Wilson, 168 S.W.3d 802, 811 (Tex. 2005)). All
evidence, properly or improperly admitted, is reviewed. Clayton v. State, 235
S.W.3d 772, 778 (Tex. Crim. App. 2007).
Circumstantial evidence is as probative as direct evidence, and
circumstantial evidence alone can be sufficient to establish guilt. Patrick v.
State, 906 S.W.2d 481, 488 (Tex. Crim. App. 1995). When the record supports
conflicting inferences, the jury is presumed to have resolved the conflicts in
favor of the verdict, and such a resolution is accorded deference by the
appellate courts. Jackson, 443 U.S. at 319.
B. Application & Analysis
Reed questions the legal sufficiency of the evidence because the State
9 never proved that he, not his brother, fired the bullets that struck and killed
Rossum. He complains that the evidence merely proves his presence at the
time and place of the crimes. But this position not only ignores the law of
parties, it also undermines the jury’s duty to weigh the abundant evidence of
guilt.
A jury can draw reasonable inferences from the evidence presented in a
case, and can rely entirely on circumstantial evidence to support a finding of
guilt beyond a reasonable doubt. To support a finding of guilt Reed believes
that the evidence must prove that he, not an accomplice, pulled the trigger. But
that is not an element which the State must plead and prove in a murder trial.
Viewing the evidence in light most favorable to the verdict, any rational jury
could have found Appellant guilty beyond a reasonable doubt on both counts.
For this reason, this court should reject Appellant’s first issue.
2) Issue Two: Did the trial court inflict egregious harm by failing to give an accomplice instruction?
Testimony of an accomplice will not support a conviction unless
10 corroborated by other evidence connecting defendant to the crime. Tex. Code
Crim. Proc. Art 38.14; Herron v. State, 86 S.W.3d 621, 631 ( Tex. Crim. App.
2002). Although Art. 38.14 requires that accomplice testimony be
corroborated, the law does not specify the amount of evidence needed to do so.
Dowthitt v. State, 931 S.W.2d 244 (Tex. Crim. App. 1996). Setting aside the
accomplice testimony, a reviewing court must determine whether any of the
remaining evidence at trial connected the defendant to the charged crime.
Ledbetter v. State, 208 S.W.3d 723,727 (Tex. App.—Texarkana 2006) citing
Munoz v. State, 853 S.W.2d 558, 559 (Tex. Crim. App. 1993). The
non-accomplice evidence does not have to directly link the defendant to the
crime, nor must it establish guilt beyond a reasonable doubt. Id.
If appellant did not object to the jury charge at trial, he must show he
suffered actual, egregious harm; theoretical harm alone will not suffice.
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g);
Morris v. State, 67 S.W.3d 257, 261 (Tex. App.-Houston [1st Dist.] 2001, pet.
ref'd) (citing Abdnor v. State, 871 S.W.2d 726, 732 (Tex. Crim. App. 1994)). The
reviewing court must examine the degree of harm “in light of the entire jury
11 charge; the state of the evidence, including the contested issues and weight of
probative evidence; the argument of counsel; and any other information
revealed by the record of the trial as a whole.” Frost v. State, 25 S.W.3d 395,
400 (Tex. App.-Austin 2000, no pet.) (citing Alamanza, 686 S.W.2d at 171). For
charge error to result in egregious harm, it must affect the very basis of the
case, deprive the defendant of a valuable right, or vitally affect a defensive
theory. But in order to preserve error relating to the jury charge there must be
either an objection or a requested charge. See Vasquez v. State, 919 S.W.2d 433,
435 (Tex. Crim. App. 1996).
Reed claims that the State relied exclusively on accomplice testimony to
secure his conviction. He says that the State could not have proven his
involvement in the crime without Skinner’s testimony. Thus, Reed allegedly
suffered egregious harm by the court’s failure to include an accomplice
instruction in the jury charge. But at no time in the record did Reed object or
even request the instruction he now claims the jury should have received.
Additionally, Reed’s argument ignores the other evidence at trial which
12 corroborated Skinner’s account and independently tied him to the crimes.
The State offered phone records which revealed how Reed and his
conspirators coordinated their premeditated crimes. 7 RR 131, 271; 8 RR
82-89; SX 104-105. Also, shell casings from a crime-scene on Webster Street
matched those found at Signal Hill. A witness to the Webster Street shooting
testified at trial and identified Appellant as a possible shooter. 8 RR 17-20.
22-28, 48-49; SX 151. The assertion that the State relied exclusively on
accomplice testimony is false. Reed fails to show how he suffered any actual,
egregious harm. For all of these reasons this court should reject Appellant’s
second issue.
3) Issue Three: Did the trial court abuse its discretion by admitting relevant evidence of an extraneous offense?
A trial court’s decision to admit evidence of an extraneous offense over
objection is reviewed for an abuse of discretion. Shuffield v. State, 189 S.W.3d
782, 793 (Tex. Crim. App. 2003). Texas Rule of Evidence 404(b) prohibits the
admission of extraneous conduct to prove a person’s character or to show that
13 the person acted in conformity therewith. See Tex. R. Evid. 404(b). However,
such evidence may be admissible when it has relevance apart from character
conformity. Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011).
Evidence of extraneous crimes may be admissible to show motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake. See Tex. R. Evid. 404(b). Extraneous conduct may also be admissible
to rebut defensive theories raised by the defense. See Williams v. State, 301
S.W.3d 675, 687 (Tex. Crim. App. 2009). Importantly, Rule 404(b) is a rule of
inclusion rather than exclusion. De La Paz v. State, 279 S.W.3d 336, 343 (Tex.
Crim. App. 2009). Thus, the rule only excludes evidence that is offered solely to
prove bad character. Id. Whether extraneous evidence has relevance apart
from character conformity is a question for the trial court. Id.
In his third issue, Reed contends that the trial court erred by admitting
evidence of extraneous conduct because it lacked relevance. Next, Reed claims
that the evidence should have been suppressed because no jury could have
found him guilty of the extraneous offense. Finally, in his fifth issue Reed says
14 the trial court should have suppressed the extraneous evidence despite its
relevance to prevent unfair prejudice to his defense.
But the trial court rejected all of these points. First, the court
acknowledged the relevance of the proffered evidence, noting how the two
incidents shared similarities and happened less than a month apart. 7 RR
280-81. The court also noted how the extraneous evidence rebutted counsel’s
attempts to discredit Skinner’s testimony on cross-examination. RR 281.
Furthermore, the evidence at trial permitted a reasonable jury to find Reed
guilty of the extraneous offense. The evidence placed Reed and his brother at
both crime scenes, and police recovered the murder weapon inside their home.
8 RR 17-20, 22-28, 48-49; SX 151. Reed says that the evidence insufficiently
supports his conviction because the evidence also incriminated his brother.
But when the record supports conflicting inferences, the jury is presumed to
have resolved the conflicts in favor of the verdict, and such a resolution is
accorded deference by the appellate courts. Jackson, 443 U.S. at 319. Finally,
the trial court reasoned that proper limiting instructions prevented any unfair
prejudice to Reed’s defense. 8 RR 281-82.
15 For these reasons this court should reject Appellant’s third, fourth, and
fifth issues.
CONCLUSION AND PRAYER
In conclusion, Reed’s conviction should be affirmed. There was ample
evidence from which a reasonable fact-finder could find Reed guilty of both
counts beyond a reasonable doubt. Furthermore, the evidence at trial
corroborated the accomplice testimony of K. Skinner and independently
connected Reed to the crimes. Finally, the trial court did not abuse its
discretion by admitting relevant evidence of an extraneous offense because the
State offered it for permissible reasons.
For the foregoing reasons, the State prays that the judgment of the Trial
Court be affirmed.
Respectfully Submitted,
/s/John J. Roberts Assistant Criminal District Attorney Texas Bar No. 24070512 Gregg County, Texas 101 East Methvin St., Suite 333 Longview, Texas 75601 Telephone: (903) 236–8440 Facsimile: (903) 236–3701
16 Email: john.roberts@co.gregg.tx.us
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the above and foregoing has been forwarded to counsel of record by e-filing service to:
Jeff Jackson, Appellate Counsel jefftjacksonlaw@gmail.com
on or about March 28, 2018.
/s/John J. Roberts
CERTIFICATE OF COMPLIANCE
I certify that the foregoing document complies with Texas Rules of Appellate Procedure, Rule 9 regarding length of documents, in that exclusive of caption, identity of parties and counsel, statement regarding oral argument, table of contents, index of authorities, statement of the case, statement of issues presented, statement of jurisdiction, statement of procedural history, signature, proof of service, certification, certificate of compliance, and appendix, it consists of 2,080 words.