Harold Joseph Norwood, Jr. v. State

Opinion

Opinion issued November 10, 2015

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-14-01005-CR ——————————— HAROLD JOSEPH NORWOOD, JR., Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 405th District Court Galveston County, Texas Trial Court Case No. 13CR1311

MEMORANDUM OPINION

The State charged Appellant, Harold Joseph Norwood, Jr., with murder.1

Appellant pleaded not guilty. The jury found him guilty, found two enhancement

paragraphs true, and assessed punishment at 80 years’ confinement. In two issues

1 See TEX. PENAL CODE ANN. §§ 19.02(b)(3), 31.07(a)–(b) (Vernon 2011). on appeal, Appellant argues (1) the trial court erred by not sua sponte instructing

the jury on accomplice-witness testimony and (2) the evidence was factually

insufficient to support the jury’s verdict.

We affirm.

Background

Juan Navarro was the owner of Navarro Bakery in Galveston, Texas. At

1:59 in the morning on January 26, 2013, Officer E. Ticas was on patrol. He saw a

body lying in the parking lot for the bakery. Officer Ticas pulled into the parking

lot and found Navarro gravely injured. Navarro was rushed to a hospital. Despite

efforts to save him, Navarro died in the evening of that day. Medical examination

established that Navarro had multiple abrasions, two broken ribs, and a severe

skull fracture. The medical examiner later testified that the injuries would be

consistent with the person being in a fight or with driving over the person with a

car.

Surveillance video footage from the bakery and nearby businesses show that

Navarro’s SUV was at the bakery from 12:23 to 1:49 that morning. Video footage

from one of the nearby businesses showed a man walking away from the bakery at

1:37. Footage from the same camera showed the man returned to the bakery at

1:41. Two people who knew Appellant later identified to police that Appellant

2 was the person walking in the footage. Both people based their identification on a

distinctive way that Appellant walks, described by both as bowlegged.

During the course of the investigation, Richard Lacy contacted police,

informing them that he had information related to the death of Navarro. Lacy

testified at trial. He testified that, on the morning of the incident, he was at a

neighbor’s house in his apartment complex near the bakery. He and some friends

had been drinking and taking cocaine. Around 2:00 in the morning, Lacy stepped

outside to smoke a cigarette. He saw an SUV approach. The SUV was later

identified as Navarro’s car that had been with him at the bakery. Lacy saw the car

stop at his complex, and Appellant go out of the driver’s door. Lacy had met

Appellant a few days before the incident and had interacted with him in the

intervening time.

Appellant asked Lacy if he knew a place that had a coin-counting machine

available at that time. Lacy said a Kroger’s on the island had one. The two drove

to the Kroger. Video surveillance from the store confirmed their presence there

around 2:00 in the morning.

When they arrived, Appellant took a bag of coins into the Kroger’s. The

two deposited the coins into the machine and obtained over $100 from the register.

Lacy threw the bag away inside the store. Appellant told Lacy to get the bag back,

and Lacy did.

3 Lacy drove after they left the Kroger. During that time, Appellant threw the

bag out of the car window. While Lacy was driving, Appellant told Lacy that he

was “taking a penitentiary chance” by driving the car. Lacy also testified that

Appellant may have mentioned “hitting a lick,” which can refer to stealing

something.

Lacy did not drive the SUV again. Every time Lacy saw Appellant use the

car after that, Appellant would wipe down the places he had touched the car with a

towel. Sometime later, Lacy saw police locate the car and conduct a crime scene

investigation of the car. At that time, Lacy decided to contact the police and tell

them about what he knew. Lacy gave the police the clothes he had worn that

morning. He also gave them the shoes Appellant had worn that morning.

Appellant had borrowed a pair of Lacy’s shoes that morning and left his shoes with

Lacy.

When Navarro was found, the ground on the parking lot was damp. Next to

Navarro, however, was a large dry spot consistent with a car parked at that

location. Forensic analysis of the car showed blood on the front driver’s side tire

and wheel well. A fingerprint of one of Appellant’s fingers was found on the car.

Navarro’s wife testified that Navarro commonly kept a bag of coins in his

car that he would use in relation to his business. Navarro’s keys were found next

to him in the parking lot. The SUV’s key was missing from the keychain,

4 however. The investigation revealed that Navarro’s phone had been used after

Navarro had been found. One phone call was traced to Dietrich Simmons.

Simmons testified that she got the phone from Appellant.

Accomplice Witness

In his first issue, Appellant argues the trial court erred by not sua sponte

instructing the jury on accomplice-witness testimony for Lacy. The State argues

that there is no evidence indicating that Lacy was an accomplice witness.

A. Standard of Review

If the evidence establishes that a witness is an accomplice witness, the trial

court must instruct the jury on accomplice-witness testimony. Zamora v. State,

411 S.W.3d 504, 512 & n.4 (Tex. Crim. App. 2013). “If the evidence presented by

the parties is conflicting and it is not clear whether the witness is an accomplice,

then the trial court must leave to the jury the question of whether the inculpatory

witness is an accomplice witness.” Paredes v. State, 129 S.W.3d 530, 536 (Tex.

Crim. App. 2004). If there is no doubt that the witness in question is not an

accomplice witness, then the “trial court is under no duty to instruct the jury.” Id.

The Court of Criminal Appeals has indicated that we review this determination for

an abuse of discretion. Id. at 538.

5 B. Analysis

“[U]nder Texas Code of Criminal Procedure Article 38.14, a conviction

cannot stand on an accomplice witness’s testimony unless the testimony is

corroborated by other, non-accomplice evidence that tends to connect the accused

to the offense.” Smith v. State, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011)

(citing TEX. CODE CRIM. PROC. ANN. art. 38.14 (Vernon 2005)). “An accomplice

is a person who participates in the offense before, during, or after its commission

with the requisite mental state.” Id.

A witness can be an accomplice as a matter of law or as a matter of fact. Id.

A witness who has been indicted for the same offense as the defendant, who has

been indicted for a lesser-included offense of the defendant’s offense, or who

agrees to testify against the defendant in exchange for dismissal of an otherwise

applicable offense is an accomplice witness as a matter of law. Id. Otherwise, if

the witness has not been charged but there is some evidence that the witness could

be charged with the same offense or a lesser-included offense as the defendant,

then the witness is treated as an accomplice witness as a matter of fact. See id. at

439–40; Paredes, 129 S.W.3d at 536. The final determination of whether the

witness is an accomplice witness is left to the jury, and the jury must be properly

instructed. Paredes, 129 S.W.3d at 536.

6 Appellant claims that Lacy was an accomplice witness as a matter of fact.

His argument for this claim is contained in one sentence. “In the Appellant’s case:

the physical evidence of[] blood on Lacey’s [sic] shoe, blood on Lacey’s finger,

recovery of the vehicle on Lacey’s street, as well as Lacey’s appearance in the

Kroger video establishes Lacey as a party conspirator.”

When the police talked to Lacy, they took a picture of his right hand. The

picture shows a blood clot on his middle finger. There is no indication that the

blood was Navarro’s. Likewise, blood was found on Lacy’s right shoe. Testing

revealed that the majority of the DNA in the blood was Lacy’s. There was an

indication of a “minor component,” but the amount was low enough that

comparisons could not be made.

There is no indication, let alone proof, in the record that Lacy was present

during the incident that resulted in Navarro’s death. Video surveillance showed

Appellant was present around the time of the incident. The surveillance shows

Appellant by himself. No one testified that Lacy was present, and no evidence

indicated Lacy’s presence. The simple fact that Lacy had a blood clot on his finger

and his own blood—mixed with some other source so minor that it could not be

identified—on his shoe does nothing to change that analysis. Likewise, the facts

that the SUV was found on the street on the same block as Lacy’s apartment

7 complex and that Lacy was with Appellant afterwards in the SUV do not create

implications that Lacy was involved in the murder.

Appellant suggests Lacy should be considered an accomplice witness based

on the law of parties. “A person is criminally responsible as a party to an offense

if the offense is committed . . . by the conduct of another for which [the person] is

criminally responsible.” TEX. PENAL CODE ANN. § 7.01(a) (Vernon 2011). “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.” TEX. PENAL CODE ANN. § 7.02(a)(2) (Vernon 2011). None of the

evidence upon which Appellant relies indicates that Lacy intended to promote or

assist the commission of the murder or the theft.

We overrule Appellant’s first issue.

Sufficiency of the Evidence

In his second issue, Appellant argues that the evidence was factually

insufficient to support the jury’s verdict.

A. Standard of Review

The Court of Criminal Appeals has annunciated a single standard of review

that applies to both legal and factual sufficiency challenges. See Carmichael v.

State, 416 S.W.3d 133, 135 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (“We

8 review legal and factual sufficiency challenges using the same standard of

review.”). “Under Brooks v. State, we review the sufficiency of the evidence

establishing the elements of a criminal offense for which the State has the burden

of proof under the single sufficiency standard set out in Jackson v. Virginia.”

Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013) (citing Brooks v.

State, 323 S.W.3d 893 (Tex. Crim. App. 2010) and Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979)). Pursuant to this standard, evidence is

insufficient to support a conviction if, considering all the record evidence in the

light most favorable to the verdict, no rational fact finder could have found that

each essential element of the charged offense was proven beyond a reasonable

doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; In re Winship, 397 U.S.

358, 361, 90 S. Ct. 1068, 1071 (1970); Laster v. State, 275 S.W.3d 512, 517 (Tex.

Crim. App. 2009); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

We can hold evidence to be insufficient under the Jackson standard in two

circumstances: (1) the record contains no evidence, or merely a “modicum” of

evidence, probative of an element of the offense, or (2) the evidence conclusively

establishes a reasonable doubt. See Jackson, 443 U.S. at 314, 318 & n.11, 320, 99

S. Ct. at 2786, 2789 & n.11; see also Laster, 275 S.W.3d at 518; Williams, 235

S.W.3d at 750.

9 The sufficiency-of-the-evidence standard gives full play to the responsibility

of the fact finder to resolve conflicts in the testimony, to weigh the evidence, and

to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.

at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.

2007). An appellate court presumes that the fact finder resolved any conflicts in

the evidence in favor of the verdict and defers to that resolution, provided that the

resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. In viewing

the record, direct and circumstantial evidence are treated equally; circumstantial

evidence is as probative as direct evidence in establishing the guilt of an actor, and

circumstantial evidence alone can be sufficient to establish guilt. Clayton, 235

S.W.3d at 778. Finally, the “cumulative force” of all the circumstantial evidence

can be sufficient for a jury to find the accused guilty beyond a reasonable doubt.

See Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 2006).

B. Analysis

The State charged Appellant with murder. See TEX. PENAL CODE ANN.

§ 19.02(b) (Vernon 2011).

A person commits an offense if he . . . commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.

10 Id. § 19.02(b)(3). The felony the State alleged that Appellant committed was

unauthorized use of a motor vehicle. See TEX. PENAL CODE ANN. § 31.07 (Vernon

2011).

Appellant does not challenge the sufficiency of the evidence to show that he

committed the offense of unauthorized use of a vehicle or that driving over

Navarro was an act clearly dangerous to human life that caused Navarro’s death.

In this issue, Appellant focuses on whether the evidence was sufficient to show he

was the one at the crime scene that committed the offense. Specifically, Appellant

argues “that his driving of the Decedent’s vehicle was not sufficient to prove

murder or to place him at the scene of the Decedent’s death.”

The evidence upon which the State sought Appellant’s conviction, however,

was not limited to the fact that Appellant was later seen driving Navarro’s car.

Evidence established that Navarro drove to his bakery after midnight. His car

remained at the parking lot for over an hour. Surveillance video showed Appellant

walking away from the scene around the time in question. Later video footage

showed Appellant returning to the scene. Shortly after Appellant returned, video

footage shows the car leaving.

Navarro was found lying in the parking lot. His injuries were consistent

with someone driving over him with a car. His keys were found next to him, but

11 his car key was missing. The parking lot was damp except for one car-sized dry

spot immediately next to him.

Multiple sources identified Appellant driving the car immediately after the

incident at a location very close to the incident. Blood was found on the tire and

tire well of the car. Appellant told Lacy that, by driving the car, Lacy was taking a

“penitentiary chance,” indicating that Appellant knew about criminal activity

associated with the car. Likewise, Appellant would regularly try to wipe his finger

prints off of the car when he left it.

We hold the evidence is sufficient to support the jury’s determination that

Appellant was at the scene of the crime and that Appellant was the person who

committed the offense. We overrule Appellant’s second issue.

Conclusion

We affirm the judgment of the trial court.

Laura Carter Higley Justice

Panel consists of Justices Jennings, Higley, and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).