Joseph Dennis Lewis v. State

• Court: Court of Appeals of Texas
• Decided: May 29, 2008
• Docket: 14-07-00377-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed May 29, 2008

Affirmed and Memorandum Opinion filed May 29, 2008.

In The

Fourteenth Court of Appeals

____________

NO. 14-07-00377-CR

JOSEPH DENNIS LEWIS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 178th District Court

Harris County, Texas

Trial Court Cause No. 1060932

M E M O R A N D U M   O P I N I O N

A jury found appellant, Joseph Dennis Lewis, guilty of murder and assessed punishment at life in the Texas Department of Criminal Justice, Institutional Division.  See Tex. Penal Code Ann. ' 19.02 (Vernon 2003).  On appeal, appellant challenges the sufficiency of the evidence.  His claims concern three categories of sufficiency: accomplice-witness corroboration, legal sufficiency, and factual sufficiency.  We affirm.

Factual and Procedural Background

Michael Gutierrez and Robert Baker had been friends since childhood.  Even after Baker moved from Houston to Florida, he and Gutierrez kept in contact.  On one of his trips back to Houston, Baker met Clay Garretson.  Approximately once a month, Baker would return to Houston, and he and Garretson would hang out together.  Baker often told Garretson and his friends that he had a friend who could get them any kind of drug they wanted.  Baker was referring to Gutierrez.

In July 2005, Garretson met Shelton Strawder through a mutual friend.  In August 2005, Garretson also met a close friend of Strawder=s known as ACheese,@ who was later identified as appellant.  Sometime around the middle of August 2005, Strawder asked Garretson to call Baker and get him hooked up with Baker=s friend who could get him drugs.  Garretson called Baker, and Baker put Garretson in contact with Gutierrez.

After Baker put Garretson and Gutierrez in contact, Strawder and appellant met with Gutierrez to transact the drug deal.  Strawder bought cocaine from Gutierrez with the intent of cooking it into crack.  Gutierrez told Strawder the cocaine was raw, but when Strawder attempted to cook the cocaine in front of Gutierrez, he ruined it.  Strawder became angry and did not want to pay Gutierrez for the ruined cocaine, but Gutierrez insisted he pay.  Strawder reluctantly paid Gutierrez $500, but he called Garretson and demanded Garretson either pay him the $500 or call Baker and complain.

At Strawder=s request, Garretson called Baker and told him the drugs Gutierrez sold were bad.  Garretson told Baker that Strawder was upset, and he asked Baker to talk with Gutierrez.  Baker told Garretson he would talk to Gutierrez, but according to Garretson, Gutierrez never made the situation right.

In the mean time, Strawder, his girlfriend, and his baby moved in with Garretson.  Strawder did not pay rent, did not pay for food, and did not have a car.  According to Garretson, they were originally only going to stay for a couple of weeks, but they always had an excuse as to why they could not move out.  Eventually, Garretson began spending most of his time at his girlfriend=s apartment, partially due to the cramped living conditions at his own apartment. 

Sometime in February 2006, Strawder called Garretson and told him a friend needed eight ounces of cocaine.  Garretson initially ignored Strawder=s request, but Strawder called again about a week later and asked if Garretson could get the cocaine.  Garretson did not really want to be a part of Strawder=s drug deal, but he decided he would help Strawder because Strawder told Garretson he would use the money to get his own apartment.

On February 22, 2006, Garretson called Gutierrez and asked if he was interested in selling some cocaine.  Gutierrez told Garretson he was out of town, but he would call Garretson when he arrived back in Houston.  Garretson relayed the information to Strawder, but Garretson did not tell Strawder he was dealing with Gutierrez.  At this point, Garretson knew Strawder wanted the cocaine for a friend, but Garretson did not know who the friend was.  When Gutierrez arrived back in Houston, Garretson went to Gutierrez=s house and Gutierrez quoted a price.  Garretson then informed Strawder of the price, which Strawder agreed to pay.  Gutierrez told Garretson it would take him approximately an hour to get the cocaine, and he would call Garretson when he was ready. 

After Gutierrez obtained the cocaine, the four men discussed arrangements for the exchange.  Gutierrez originally suggested they all meet at Gutierrez=s house, but Garretson did not want to make the exchange there because he did not want Strawder and his friend to know where Gutierrez lived.  Instead, Gutierrez and Garretson decided to meet up at the Marq E Entertainment Complex off of Interstate-10.  Garretson=s plan was to meet Gutierrez and the two of them would meet Strawder and his friend at a different location.  Garretson felt there would be too many people at the entertainment complex to make the exchange.

Garretson arrived at the complex approximately fifteen to twenty minutes before Gutierrez.  While Garretson was waiting for Gutierrez, appellant called him and asked Garretson if he could get sixteen ounces of cocaine instead of eight.  Garretson was surprised when appellant called him because, up until this point, he had only communicated with Strawder.  According to Garretson, he would not have set up the deal if he would have known appellant was involved.  Garretson wanted to cancel the deal, but ultimately decided to go through with it.  At this point, Garretson called Gutierrez and asked if he could get sixteen ounces instead of eight.  Gutierrez told Garretson he could get twelve ounces, so Garretson relayed this information to appellant.  Appellant agreed to take the twelve ounces.  Garretson also told appellant he was meeting Gutierrez at the entertainment complex, but he wanted the two of them to meet appellant at a different location somewhere off of Interstate-10, such as a gas station.

Some time around 8 or 9 p.m., Gutierrez arrived at the entertainment complex and pulled up next to Garretson=s car.  Gutierrez got into Garretson=s car, and the two discussed where they should meet appellant.  Garretson then called appellant and told him where they wanted to meet, but appellant told Garretson to stay where he was because appellant was already at the entertainment complex.  Garretson and Gutierrez waited, and appellant pulled up in a white car behind Garretson=s car, blocking them in.  Appellant then got into the backseat of Garretson=s car behind the driver=s seat. 

As appellant got into the car, he introduced himself to Gutierrez as Cheese, and he asked Gutierrez if the cocaine was raw.  Garretson assumed appellant asked if the cocaine was raw because appellant wanted to cook it into crack, and he did not want to ruin it like the first time.  Gutierrez told appellant the cocaine was raw and offered appellant a sample of it.  Gutierrez then handed the package to appellant, and appellant started to unwrap it.  At this point, Garretson was looking straight forward, allowing Gutierrez and appellant to take care of their business.  The next thing Garretson heard was a shot  fired from inside the car.  As Garretson turned to see what happened, he saw Gutierrez attempting to get out of the

car and run, and then he heard a second shot fired.  According to Garretson, Gutierrez never pulled any kind of weapon on appellant. 

After Gutierrez got out of the car, appellant put the gun to Garretson=s head and told him to leave.  Appellant warned Garretson if he made it look obvious, he would shoot him as well.  By this point, the white car appellant arrived in had left the scene, so Garretson was able to back out and leave the entertainment complex.  Due to construction, Garretson could not get onto Interstate-10, so he headed west down the feeder road. Garretson overheard appellant tell someone over  his cell phone that Ahe got him a good one.@  As Garretson pulled up to the second stoplight on the feeder road, appellant got out of Garretson=s car and jumped into the car behind it.  According to Garretson, the other car appeared to continue driving west, but Garretson turned left and pulled into an apartment complex in order to regroup.  Out of fear and panic, Garretson decided not to call the police.

Garretson ultimately decided to get rid of his car, so he left it at appellant=s apartment complex with the hope that the police would find it there.  Garretson=s girlfriend picked Garretson up at the complex and took him back to her apartment.  According to Garretson, he never really looked at his car to see if it had any blood in it.  It was not until later that evening, after Garretson saw the news, that he discovered Gutierrez had died.  Garretson still did not call the police because he was scared of  appellant..

During the weeks after the shooting, Strawder called Garretson five or six times inquiring into whether Garretson had spoken to the police.  During one of those conversations, appellant warned Garretson not to talk to the police.  Around the first of March 2006, Garretson had to go to his apartment to pick up some items for school, and when he arrived, Strawder, appellant, and three other people were at his apartment.  Again, appellant asked if Garretson had gone to the police and warned him A[y]ou wouldn=t want me to have to do you like I did Mike.@

On March 8, 2006, Sergeant Guillermo Gonzalez contacted Garretson and asked if he would come to the police station.  Garretson met with the police later that day and told them what happened.  Garretson also provided the address of where Strawder and appellant were staying.  On that same day, Garretson picked appellant out of a photo spread.  According to Garretson, he was one hundred percent sure the person in the photo was the person he knew as Cheese and was the person who shot Gutierrez on February 22, 2006.  Garretson agreed to testify for the State, and during trial, he provided testimony supporting the above mentioned facts. 

Scott McDonald, a youth-worship pastor at Fairmont Park Baptist Church, was at the entertainment complex the night Gutierrez was killed.  McDonald testified he was in the parking lot of the Improv Comedy Club, which is located in the entertainment complex, talking to a group of friends when he heard a gunshot.  McDonald testified he was sure he heard at least one gunshot, but due to all of the confusion, he was unsure whether there was a second shot fired.  As McDonald looked in the direction of the gunshot, he noticed a man stumbling.  McDonald testified the man took a couple of steps forward and then violently fell face first onto the concrete.  McDonald testified that, as he was rushing toward the man, he called the police.  According to McDonald, the man was breathing heavily and struggling by the time McDonald got to him, and by the time the ambulance arrived, the man had died.

Gonzalez, a sergeant with the Houston Police Department, was called to the scene the night of the shooting.  Gonzalez testified he did not recover any bullets or a gun from the scene, but he stated the police often do not find a gun at the scene of a crime.  During his investigation, a friend of Gutierrez=s gave him Garretson=s name.  Gonzalez testified he tracked Garretson down and asked him to come to the police station.  According to Gonzalez, Garretson told him Cheese shot Gutierrez.  With this information, Gonzalez determined Cheese was the appellant.  He then obtained a picture of appellant, and had another officer compile a photo spread with appellant=s picture in it.  Gonzalez also testified Garretson provided some phone numbers, and with this information, Gonzalez requested the cell phone records for Gutierrez, Strawder, and appellant.  According to Gonzalez, the cell phone records showed appellant=s cell phone was in the quadrant of the entertainment complex at the time of the murder.  On cross-examination, however, Gonzalez admitted the phone records did not contain the content of the conversations.

Gonzalez also testified he obtained Garretson=s car and sent it to the vehicle-exam building for inspection.  The inspection revealed there was blood in the front passenger-side door jam; however, Gonzalez learned from Strawder that Strawder had cleaned the car with Clorox before it was discovered.  Gonzalez testified appellant knew Strawder had cleaned the car.  Gonzalez also testified from his investigation, he did not believe Garretson was involved with the murder other than setting up the drug deal.

Sergeant Norman Kiesewetter of the Houston Police Department testified he was asked to examine Garretson=s car for fingerprints and blood sometime in March 2006.  Kiesewetter testified he found some blood in the right door jam, and he lifted fingerprints from the left-door window in the backseat.  Kiesewetter admitted on cross-examination he did not process the car for gun-powder residue.  Rafael Saldivar, an officer with the Houston Police Department, testified he performed an analysis on the fingerprints Kiesewetter lifted, and they were not a match for appellant.  However, Saldivar testified it was still possible for appellant to have been in the car and not left any fingerprints.

Stephen Wilson of the Harris County Medical Examiner=s Office conducted the autopsy on Gutierrez.  According to Wilson, the gunpowder found on Gutierrez=s undershirt and body suggested Gutierrez was within close proximately to the shooter.  Wilson testified the cause of Gutierrez=s death was a gunshot wound, and his death was consistent with someone shooting him with a deadly weapon.  While Wilson testified Gutierrez=s wound was consistent with someone shooting him from the backseat of the car, he also admitted on cross-examination it was possible the shooter was in the front seat of the car.

Lastly, Breck McDaniel, a sergeant with the Houston Police Department, testified regarding his special training in telephone-date investigation.  According to McDaniel, by looking at the cell-phone records for a particular number, he could determine an accurate approximate geographic area that the phone was in when the call began and when it ended.  McDaniel testified he examined the records for a cell phone registered to appellant.  McDaniel testified during the time of the murder, appellant=s phone was located in the area of the murder.  According to McDaniel, the next call made from appellant=s phone indicated the phone was heading west on Interstate-10.  McDaniel explained that typically a cell phone would use the closest tower, but based on the network traffic, the system sometimes routed a call to a tower further away.  McDaniel also testified the records indicated Garretson and appellant called each other back and forth a number of times on the day of the murder.  On cross-examination, McDaniel admitted he had no way of telling what person was actually using the phone at the time of the call, and that people often lost, misplaced, or allowed others to borrow their phones.

Appellant did not testify on his own behalf and he did not call any witnesses.  The jury subsequently found appellant guilty of murder and assessed punishment at life in the Texas Department of Criminal Justice, Institutional Division.  This appeal followed.

Discussion

A.      Is the Evidence Sufficient to Corroborate the Accomplice-Witness Testimony?

In his third issue, appellant argues the State=s corroborative evidence used to support the testimony of the accomplice witness was not adequate to sustain his conviction for murder.  According to appellant, Garretson was an accomplice witness, and the State failed to meet the proper standard for corroborating his testimony.  In response, the State argues Garretson was not an accomplice to murder; therefore, the State was not required to corroborate his testimony.  Thus, we must first determine whether Garretson is an accompliceBeither as a matter of law or of factBto the murder or a lesser-included offense of the murder.

1.       Applicable Law

Article 38.14 of the Texas Code of Criminal Procedure states: AA conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.@  Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005).  This accomplice-witness rule creates a statutorily imposed review and is not derived from federal or state constitutional principles that define the legal and factual sufficiency standards. Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007). 

An accomplice is someone who participates with the defendant before, during, or after the commission of a crime and acts with the required culpable mental state.  Id.  To be considered an accomplice witness, the witness=s participation with the defendant must have involved some affirmative act that promotes the commission of the offense with which the defendant is charged.  Id.  A witness is not an accomplice witness merely because he or she knew of the offense and did not disclose it, or even if he or she concealed it.  Id.  In addition, the witness=s mere presence at the scene of the crime does not render that witness an accomplice witness.  Id.  And complicity with an accused in the commission of another offense apart from the charged offense does not make that witness=s testimony that of an accomplice witness.  Id.  In short, if the witness cannot be prosecuted for the offense with which the defendant is charged, or a lesser-included offense of that charge, the witness is not an accomplice witness as a matter of law.  Id.

A trial judge, therefore, has no duty to instruct the jury that a witness is an accomplice witness as a matter of law unless there exists no doubt that the witness is an accomplice.  Id.  If the evidence presented by the parties is conflicting and it remains unclear whether the witness is an accomplice, the trial judge should allow the jury to decide whether the inculpatory witness is an accomplice witness as a matter of fact under instructions defining the term Aaccomplice.@  Id. at 498B99.  However, as with an accomplice as a matter of law, there must still be some evidence of an affirmative act on the part of the witness to assist in the commission of the charged offense before such an instruction is required.  Id. at 499.

2.       Analysis

Here, Garretson was not an accomplice as a matter of law or as a matter of fact.  Garretson was not indicted for the murder or a lesser-included offense of the murder, and the evidence does not show Garretson could have been so charged.  A review of the record reveals testimony was elicited regarding Garretson=s actions before, during, and immediately after the murder as follows: (1) sometime during the middle of February, Strawder contacted Garretson and asked if he could get eight ounces of cocaine; (2) Garretson did not want to help Strawder at first, but Strawder told Garretson he would use the money to get his own apartment; (3) Garretson contacted Gutierrez and asked if he would be interested in selling eight ounces of cocaine; (4) Garretson did not initially tell Strawder he had asked Gutierrez to provide the cocaine; (5) Gutierrez suggested the four men meet at his house, but Garretson did not want to make the exchange there because he did not want Strawder and his friend to know where Gutierrez lived; (6) Garretson decided to meet Gutierrez at the entertainment complex and the two of them would meet Strawder and his friend at a different, less public location to exchange the drugs; (7) appellant called Garretson while he was waiting at the entertainment complex and asked him if he could get sixteen ounces instead of eight; (8) Garretson was surprised when appellant called him, and Garretson wanted to cancel the deal; (9) Garretson would not have set up the deal had he known appellant was involved; (10) Garretson told appellant he was meeting Gutierrez at the entertainment complex but wanted to meet appellant in a different location; (11) appellant told Garretson to stay at the entertainment complex; (12) after appellant fired the shots, he put the gun to Garretson=s head, instructed Garretson to leave, and instructed Garretson not to make it obvious or he would shoot him too; (13) after appellant got out of Garretson=s car, Garretson took the car to appellant=s apartment complex in hopes the police would find it there; (14) out of fear and panic, Garretson did not call the police; (15) Garretson did not know Gutierrez died until he saw the news later that evening; (16) appellant told Garretson he would kill him if he talked to the police; (17) when approached by the police, Garretson went to the station and provided the police information regarding the murder; and (18) Gonzalez testified that, based on his investigation, he did not believe Garretson was involved with the murder other than setting up the drug deal.

This evidence does not indicate Garretson performed any affirmative act to assist in the commission of the murder or a lesser-included offense of the murder; nor does the evidence indicate Garretson possessed the required culpable mental state for the offense of murder or a lesser-included offense of murder.  Garretson=s mere presence at the scene of the crime does not render him an accomplice, and he is not an accomplice merely because he knew of the offense and did not disclose it to the police.  See id. at 498.  Furthermore, Garretson=s complicity with appellant in the commission of another offense apart from the charged offense, in this case dealing drugs, does not make Garretson=s testimony that of an accomplice.  See id.  We conclude the evidence fails to show Garretson was an accomplice as a matter of law or an accomplice as a matter of fact.  See id. at 497B500 (holding two witnesses were not accomplices to capital murder as a matter of law or fact even though they were present when the crime occurred, the defendant told both witnesses he was going to kill the victim but the witnesses did not believe him, neither witness warned the victim, one of the witnesses assisted in disposing of the body, and neither witness went to the police immediately after the crime); Caraway v. State, 550 S.W.2d 699, 702B03 (Tex. Crim. App. 1977) (holding a witness was not an accomplice to murder even though he was a party to the theft of the automobile and rifle shortly before the murder, and he was present during the crime).  Therefore, we need not review Garretson=s testimony through the lens of the accomplice-witness rule to determine if the State introduced sufficient non-accomplice corroborating evidence.  See Druery, 225 S.W.3d at 500.  We overrule appellant=s third issue.

B.      Is the Evidence Legally and Factually Sufficient to Support Appellant=s Conviction?

In his first two arguments, appellant argues the evidence is legally and factually insufficient to support the murder conviction.  While appellant=s brief included the proper standards of review for legal and factual sufficiency, appellant failed to include any arguments as to how or why the evidence is insufficient.  Technically, appellant has waived this complaint on appeal.  See Tex. R. App. P. 38.1(h); McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997) (holding a factual sufficiency claim that merely includes a general discussion of the evidence but fails to include any argument as to how or why the evidence is insufficient under a factual sufficiency standard is inadequately briefed).  However, even assuming appellant did not waive his arguments, the evidence is legally and factually sufficient to support his conviction.

1.       Standard of Review

In a legal sufficiency review, we view all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d. 560 (1979); Salinas v. State, 163 S.W.3d 734, 737 (Tex. Crim. App. 2005).  The jury, as the sole judge of the credibility of the witnesses, is free to believe or disbelieve all or part of a witness=s testimony.  Jones v. State, 984 S.W.2d 254, 257 (Tex. Crim. App. 1998).  We do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure the jury reached a rational decision.  Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993); Harris v. State, 164 S.W.3d 775, 784 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d).

In a factual sufficiency review, we consider all the evidence in a neutral light.  Prible v. State, 175 S.W.3d 724, 730B31 (Tex. Crim. App. 2005).  The evidence may be factually insufficient in two ways.  Id. at 731.  First, when considered by itself, evidence supporting the verdict may be so weak the verdict is clearly wrong and manifestly unjust.  Id.  Second, where the evidence both supports and contradicts the verdict, the contrary evidence may be strong enough the beyond-a-reasonable-doubt standard could not have been met.  Id.  In conducting a factual sufficiency review, we must employ appropriate deference so we do not substitute our judgment for that of the fact finder.  Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996).  Our analysis must consider the evidence appellant claims is most important in allegedly undermining the jury=s verdict.  Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

A person commits the offense of murder if he intentionally or knowingly causes the death of an individual, or intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual.  Tex. Penal Code Ann. ' 19.02(b)(1)B(2).

The evidence presented through Garretson=s testimony, as detailed in the factual section above, is sufficient to support appellant=s conviction.  Garretson testified regarding the events that occurred before, during, and after the shooting of Gutierrez.  Additionally, Garretson picked appellant out of a photo spread and testified he was one hundred percent sure the person in the photo was the person he knew as Cheese and was the person who shot Gutierrez on February 22, 2006.  The testimony of one eyewitness is sufficient to support a jury=s verdict.  Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971); Walker v. State, 180 S.W.3d 829, 832 (Tex. App.CHouston [14th Dist.] 2005, no pet.).  Therefore, Garretson=s testimony, standing alone, is sufficient evidence.

Furthermore, the circumstantial evidence presented showed the following: (1)  appellant knew the first drug deal between Strawder and Gutierrez went bad; (2) Strawder and appellant were working together in the second drug deal; (3) investigators found blood in the front passenger-side door jam of Garretson=s car; (4) Strawder told the police he cleaned the car with Clorox before the police found it; (5) appellant knew Strawder cleaned the car; and (6) appellant=s cell-phone records indicated his cell phone was in the vicinity of the entertainment complex at the time of the murder.  Additionally, appellant failed to provide any contrary evidence.

Viewing the evidence in the light most favorable to the verdict, we hold the evidence is legally sufficient to support appellant=s conviction for murder because any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  See Salinas, 163 S.W.3d at 737.  Viewing the evidence in a neutral light, we hold the evidence supporting the verdict is neither so weak the verdict is clearly wrong and manifestly unjust, nor is the contrary evidence so strong the beyond-a-reasonable-doubt standard could not have been met.  See Prible, 175 S.W.3d at 730B31.  Thus, the evidence is factually sufficient to support appellant=s conviction.  We overrule appellant=s first two issues.

conclusion

Having overruled all three of appellant=s issues, we affirm the trial court=s judgment.

/s/      John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed May 29, 2008.

Panel consists of Justices Yates, Anderson, and Brown.

Do Not Publish C Tex. R. App. P. 47.2(b).