COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-03-313-CR
DEMARCUS
JAMES WILLIAMS APPELLANT
A/K/A
DEMARCUS J. WILLIAMS
V.
THE
STATE OF TEXAS STATE
------------
FROM
THE 297TH DISTRICT COURT OF TARRANT COUNTY
MEMORANDUM OPINION1
In
ten points, Appellant Demarcus James Williams a/k/a Demarcus J. Williams appeals
his conviction for one count of engaging in organized criminal activity and one
count of murder. A jury found Appellant guilty of both offenses and assessed his
punishment at fifty years’ imprisonment for each count. We affirm.
Background
On
July 31, 2002, Appellant, along with other members of a group,2
were observed chasing Donald Watkins, now deceased, in the courtyard of the
Ripley Arnold housing complex. Once Appellant and the other group members
reached Watkins they continuously kicked, stomped, and beat him for
approximately fifteen to twenty minutes. Betsy Harrington, who witnessed
the beating, heard Appellant yelling at Watkins, “That’ll teach you to
[f---] me out of my money.” “This is the last time you [f---] me out
of my money.” “I’ll teach you.”
Watkins
died from blunt force head injuries. Daniel Konzelmann, the assistant medical
examiner, testified that Watkins received between thirty-four and thirty-five
injuries to his head and neck, which included injuries to both sides of his
brain.
Motion to
Quash/Law of Parties
In
his first two points, Appellant contends that the State should have pled a
parties theory in the indictment. Specifically, in point one, Appellant argues
that the trial court abused its discretion by failing to grant his motion to
quash the indictment because the indictment failed to set forth the manner and
means of criminal responsibility on which the State relied to establish
Appellant’s culpability. In point two, Appellant argues that the trial court
erred by including a parties instruction in the jury charge when there was no
parties pleading in the indictment.
A
trial court’s ruling on a motion to quash is reviewed under an abuse of
discretion standard. Thomas v. State, 621 S.W.2d 158, 163 (Tex. Crim.
App. 1981) (op. on reh’g); McKinney v. State, 59 S.W.3d 304, 310 (Tex.
App.—Fort Worth 2001 pet. ref’d), cert. denied, 536 U.S. 968 (2002).
An abuse of discretion is evident when a lower court’s decision is so clearly
wrong as to lie outside the zone within which reasonable persons might disagree.
Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on
reh’g). An abuse of discretion also occurs when the trial court’s acts are
arbitrary and unreasonable or without reference to any guiding rules and
principles. Id. at 380.
It
is well settled that the law of parties need not be pled in the indictment. Vodochodsky
v. State, No. 74129, 2004 WL 840121 at*5 (Tex. Crim. App. April 21, 2004); Marable
v. State, 85 S.W.3d 287, 287 (Tex. Crim. App. 2002). Accordingly,
Appellant’s first point is overruled.
Turning
to Appellant’s second point, we note that Appellant did not object to the
trial court’s inclusion of the parties instruction, but instead read to the
court the agreed-upon language between Appellant and the State.
The
law of parties may be applied to a case even though no such allegation is
contained in the indictment. Id. An instruction on the law of parties may
be given whenever there is sufficient evidence to support a jury verdict that
the defendant is criminally responsible under the law of parties. Ladd v.
State, 3 S.W.3d 547, 564 (Tex. Crim. App. 1999), cert. denied, 529
U.S. 1070 (2000). A person is criminally responsible as a party to an offense if
the offense is committed by his own conduct, by the conduct of another for which
he is criminally responsible, or by both. Tex.
Penal Code Ann. § 7.01(a) (Vernon 2003). Moreover, a person is
criminally responsible for an offense committed by the conduct of another if,
acting with intent to promote or assist the commission of the offense, he
solicits, encourages, directs, aids, or attempts to aid the other person to
commit the offense. Id. § 7.02(a)(2). To determine whether a defendant
participated in an offense as a party, we may examine the events occurring
before, during, and after the commission of the offense. Ransom v. State,
920 S.W.2d 288, 302 (Tex. Crim. App. 1994) (op. on reh’g), cert. denied,
519 U.S. 1030 (1996). Furthermore, if the evidence clearly supports the
defendant’s guilt as a principal, error, if any, is harmless. Ladd, 3
S.W.3d at 564-65. Circumstantial evidence may also show that one is a party to
the offense. Wygal v. State, 555 S.W.2d 465, 469 (Tex. Crim. App.
1977).
We
hold that there was no error in the jury charge. There was sufficient
evidence presented at trial to support the jury verdict that Appellant was
criminally responsible under the law of parties. There was evidence
tending to show that Appellant was a member of a criminal street gang and sold
drugs in the area. There was evidence presented that showed Watkins was
killed because he had attempted to buy drugs from Appellant without having the
money to pay for them. One witness testified that Appellant and another male
stomped, kicked, and beat Watkins as a group of people watched. Another
witness testified that Appellant and three other males stomped, hit, and cursed
at Watkins. The jury could infer from this evidence that Appellant acted
with the intent to promote or assist the commission of the murder, and
solicited, encouraged, directed, aided, or attempted to aid the members in the
group in killing Watkins. See Tex.
Penal Code Ann. § 7.02(a)(2). Furthermore, in view of the trial
testimony of Christine Ybarra and Betsy Harrington, there was sufficient
evidence for the jury to find Appellant guilty as a principal. We overrule
Appellant’s second point.
Lesser Included
Offense Instructions
In
points three, four, five, and six, Appellant complains that the trial court
erred by failing to instruct the jury on the lesser included offenses of
aggravated assault and simple assault with regard to both counts in the
indictment.
To
determine whether a jury must be charged on a lesser included offense, we apply
a two-step analysis. Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App.
1998). The first step is to decide whether the offense is a “lesser included
offense” as defined in article 37.09 of the code of criminal procedure. Tex. Code Crim. Proc. Ann. art. 37.09
(Vernon 1981); Moore, 969 S.W.2d at 8.
A
lesser included offense is defined both in terms of the offense charged and the
facts of the case: “An offense is a lesser included offense if . . . it is
established by proof of the same or less than all the facts required to
establish the commission of the offense charged.” Tex. Code Crim. Proc. Ann. art.
37.09(1). Therefore, our analysis of whether an offense is a lesser included
offense of the charged offense must be made on a case-by-case basis. Bartholomew
v. State, 871 S.W.2d 210, 212 (Tex. Crim. App. 1994); Day v. State,
532 S.W.2d 302, 315-16 (Tex. Crim. App. 1976) (op. on reh'g). It does not matter
if the charged offense can be established on a theory that does not contain the
lesser offense; the issue is whether the State, when presenting its case to
prove the offense charged, also includes proof of the lesser included offense as
defined in article 37.09. See Bartholomew, 871 S.W.2d at 212; Broussard
v. State, 642 S.W.2d 171, 173 (Tex. Crim. App. 1982). Because aggravated
assault may be a lesser included offense of murder, the first prong of the test
is satisfied. Cardenas v. State, 30 S.W.3d 384, 392-93 (Tex. Crim. App.
2000); Forest v. State, 989 S.W.2d 365, 367-68 (Tex. Crim. App. 1999).
Furthermore, if there is some evidence that an assault was made with no
intention to kill, the defendant may be entitled to an instruction on the lesser
included of simple assault. See Hall v. State, 402 S.W.2d 752, 754 (Tex.
Crim. App. 1966).
The
second step requires an evaluation of the evidence to determine whether there is
some evidence that would permit a rational jury to find that the defendant is
guilty only of the lesser offense, and not of the greater. Feldman v. State,
71 S.W.3d 738, 750-51 (Tex. Crim. App. 2002); Moore, 969 S.W.2d at 8. The
evidence must be evaluated in the context of the entire record. Moore,
969 S.W.2d at 8. There must be some evidence from which a rational jury could
acquit the defendant of the greater offense while convicting him of the lesser
included offense. Id. The court may not consider whether the evidence is
credible, controverted, or in conflict with other evidence. Id. If there
is evidence from any source that negates or refutes the element establishing the
greater offense, or if the evidence is so weak that it is subject to more than
one reasonable inference regarding the aggravating element, the jury should be
charged on the lesser included offense. See Schweinle v. State, 915
S.W.2d 17, 19 (Tex. Crim. App. 1996); Saunders v. State, 840 S.W.2d 390,
391-92 (Tex. Crim. App. 1992).
The
elements of aggravated assault are set out in Texas Penal Code section 22.02(a).
The statute provides that a person commits aggravated assault if he “commits
assault as defined in § 22.01 and the person (1) causes serious bodily injury
to another. . .; or (2) uses or exhibits a deadly weapon during the commission
of the assault.” Tex. Penal Code
Ann. § 22.02(a). Section 19.02(b)(1) provides that a person commits
murder if he “intentionally or knowingly causes the death of an
individual.” Id. § 19.02(b)(1). Under section 19.02(b)(2),
a person commits murder if he “ intends to cause serious bodily injury and
commits an act clearly dangerous to human life that causes the death of an
individual.” Id. § 19.02(b)(2). Therefore, in order to
warrant a lesser included offense instruction Appellant would need to point to
either: 1) evidence that he did not commit an act clearly dangerous to human
life; or 2) evidence that he did not have an intent to inflict serious bodily
injury.
Appellant
does not point to and our review of the record does not reveal any evidence that
would support a guilty verdict on only the lesser charge of aggravated assault
or simple assault. See Bignall v. State, 887 S.W.2d 21, 23 (Tex.
Crim. App. 1994). Accordingly, Appellant was not entitled to an
instruction on aggravated assault or simple assault and the trial court did not
err by refusing to charge the jury on that offense. See Jackson v.
State, 115 S.W.3d 326, 330-31 (Tex. App.—Dallas 2003, pet. granted).
We overrule Appellant’s third, fourth, fifth, and sixth points.
Jury Argument
In
points seven, eight, and nine, Appellant argues that the trial court abused its
discretion by overruling his objection to the State’s improper closing
argument during the punishment phase of the trial. In point ten, Appellant
argues that the State made improper closing arguments during the guilt/innocence
phase of the trial by claiming that defense counsel had mislead the jury.
To
be permissible, the State’s jury argument must fall within one of the
following four general areas: (1) summation of the evidence; (2) reasonable
deduction from the evidence; (3) answer to argument of opposing counsel; or (4)
plea for law enforcement. Felder v. State, 848 S.W.2d 85, 94-95 (Tex.
Crim. App. 1992), cert. denied, 510 U.S. 829 (1993); Alejandro v.
State, 493 S.W.2d 230, 231 (Tex. Crim. App. 1973).
If
a jury argument exceeds the bounds of proper argument, the trial court’s
erroneous overruling of a defendant’s objection is not reversible error unless
it affected the appellant’s substantial rights. Tex. R. App. P. 44.2(b); Martinez v.
State, 17 S.W.3d 677, 692-93 (Tex. Crim. App. 2000); Mosley v. State,
983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied,
526 U.S. 1070 (1999). In determining whether the appellant’s substantial
rights were affected, we consider: (1) the severity of the misconduct (i.e., the
prejudicial effect of the prosecutor’s remarks), (2) curative measures, and
(3) the certainty of conviction or the punishment assessed absent the
misconduct. Martinez, 17 S.W.3d at 692-93; Mosley, 983 S.W.2d at
259.
In
this case, Appellant argues that the prosecutor improperly injected his personal
opinion into the argument, and that a prosecutor is never allowed to express his
own personal opinion in jury argument. Specifically, Appellant complains about
the following statements: 1) “Because he’s never, no matter what you do, he
is never going to be a good man.” 2) “But some of us are just plain bad. And
that’s who sits before you.” 3) “That is my opinion. And I thank you for
listening to it.”
One
permissible area of jury argument is to make reasonable deductions from the
evidence. Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988).
Counsel is allowed wide latitude in drawing inferences from the evidence, so
long as the inferences drawn are reasonable, fair, legitimate, and offered in
good faith. Id. The purpose of closing argument is to assimilate the
evidence to assist the fact-finder in drawing proper conclusions from the
evidence. Id. at 400. The jury is then free to accept or reject such
conclusions and inferences. Id. We look to the following cases for
guidance in reviewing whether the prosecutor’s statements were improper. See
Barnard v. State, 730 S.W.2d 703, 718 (Tex. Crim. App. 1987) (holding that
the prosecutor’s characterization of the defendant as a “mean person” was
a reasonable deduction from the evidence), cert. denied, 485 U.S. 929
(1988); Burns v. State, 556 S.W.2d 270, 285 (Tex. Crim. App.) (holding it
was proper under the evidence to refer to the defendant as an “animal”), cert.
denied, 434 U.S. 935 (1977); McKay v. State, 707 S.W.2d 23, 36 (Tex.
Crim. App. 1985) (finding no error where the defendant was described as a
“moral vacuum”), cert. denied, 479 U.S. 871 (1986); Belton
v. State, 900 S.W.2d 886, 898 (Tex. App.—El Paso 1995, pet. ref’d)
(holding prosecutor’s reference to defendant as an “animal” was a
reasonable deduction from the evidence); Garza v. State, 783 S.W.2d 796,
800 (Tex. App.—San Antonio 1990, no pet.) (holding prosecutor’s references
to defendant as a “dog” and an “animal” were reasonable deductions from
the evidence).
Here,
the evidence shows that Appellant kicked, stomped, and hit Watkins in the head
repeatedly for fifteen to twenty minutes. Appellant continued to beat Watkins
even though he cried out for help, and tried to cover his face and head in an
effort to protect himself. There was testimony that Appellant walked away to
retrieve a glass bottle from a nearby dumpster and then walked back to Watkins
and continued to kick, stomp, and hit him. Appellant continued to beat Watkins
despite the fact that his eyes had rolled back in his head, his face and eyes
were swelling, and he was bleeding and making gurgling sounds. We conclude that
the extreme facts in this case justified the prosecutor’s characterization of
Appellant as a bad person and someone who “is never going to be a good man”,
and was a reasonable deduction from the evidence. We overrule points seven,
eight, and nine.
In
point ten, Appellant argues that the trial court abused its discretion by
overruling his objection to the State’s improper closing argument. During the
State’s closing argument at the conclusion of the guilt/innocence phase of the
trial, the prosecutor argued,
What evidence have you heard of that? Detective McCaskill said he heard a
rumor that Kevin Lewis would sometimes stay at her apartment. And the
defense counsel wants to mislead you and wants to make that seem like there was
some big relationship and there was some big conspiracy there. [Appellant
responded to the closing argument by stating the following,] Your Honor, I’m
going to object. That’s an attack on the Defendant over the shoulders of
counsel. We never attempted to mislead anyone, we simply developed
evidence. We object.
The
trial court subsequently overruled Appellant’s objection.
The
State argues that the prosecutor’s jury argument was in response to defense
counsel’s jury argument that Ybarra’s testimony was inconsistent and not
forthcoming because Keven Lewis had occasionally stayed at Ybarra’s apartment
and there was some type of relationship between them. In closing argument,
the State is permitted to draw from the facts all inferences that are
reasonable, fair, and legitimate. Borjan v. State, 787 S.W.2d 53, 57
(Tex. Crim. App. 1990). Here, the prosecutor’s comment was a proper
response to defense counsel’s theory that Ybarra’s testimony regarding
Lewis’ guilt differed from Harrington’s because of an alleged relationship
between Ybarra and Lewis. Therefore, we hold the argument was not
objectionable. We overrule Appellant’s tenth point.
Conclusion
Having
overruled Appellant’s ten points on appeal, we affirm the trial court’s
judgment.
PER
CURIAM
PANEL
A: HOLMAN, J.; CAYCE, C.J.; and WALKER, J.
DO
NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED:
March 10, 2005
NOTES
1.
See Tex. R. App. P. 47.4.
2.
There was testimony at trial that Appellant was a member of a criminal street
gang called the Downtown Crips.