Kenneth Wayne Boyd v. State

• Court: Court of Appeals of Texas
• Decided: August 22, 2001
• Docket: 12-99-00305-CR
• Status: Published

Opinion

NO. 12-99-00305-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

KENNETH WAYNE BOYD, JR.

§ APPEAL FROM THE 273RD

APPELLANT

V.

§ JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE

§ SHELBY COUNTY, TEXAS

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A jury found Appellant, Kenneth Wayne Boyd, Jr., guilty of the offense of capital murder, and the trial court assessed his punishment at life imprisonment. Appellant raises ten issues. We affirm.

Background

In the Spring of 1997, Percy Keith Moore ("Percy") lived with his wife, Bridgette Moore ("Bridgette"), and her twelve-year-old sister, Christy Calhoun ("Christy"), in a house in Center, Texas. Percy's sister, Vivian Watts ("Vivian"), her husband, and her daughter, Calandra Watts ("Calandra"), lived in a trailer house situated directly behind Percy's house. Minutes before midnight on April 22, 1997, Vivian and Calandra heard noises coming from the rear of Percy's house and looked out their windows to see an unknown black man chasing Percy out his back door. ⁽¹⁾ Percy stumbled and fell, and the man, standing over Percy, said, "I got you, Keith." Vivian opened her front door and shouted at her brother, but slammed the door when she saw that the other man had a long gun. Calandra watched through her bedroom window as the man shot Percy in the head and then ran back through Percy's house to meet another man on the driveway in front.

Moments later, the Watts' house was sprayed with bullets. Calandra was hit in the knee, and Vivian was hit in the buttocks. Vivian called 911.

Derrick Brown ("Brown") and Daryl Lynn Rushing ("Daryl Lynn") both claimed to be in the vicinity of Percy's house at the time of the murders. Shortly after he heard the gunshots, Brown saw two black people wearing black clothing, running across the cemetery adjacent to Percy's house. Daryl Lynn heard at least two distinct bursts of gunfire and saw "silhouettes of people" running through the cemetery between the volleys.

Anita Ross ("Ross"), another of Percy's sisters, and Yvain Rushing ("Yvain"), Daryl Lynn's brother, were together at Yvain's nearby house when they heard gunfire. They started walking toward Percy's house, but Bridgette, returning home from work in her car, got there first. Bridgette, unaware that anything was amiss, went into the house through the front door. She saw Christy lying on the living room couch with a pillow over her head and assumed that the child was asleep. Then Bridgette noticed the dead body of Percy's cousin, Brian Keith Brooks ("Brian"), lying face down, half in the living room and half in the den. Frightened, Bridgette ran out of the house and met Ross and Yvain in the yard. Bridgette, accompanied by either Ross or Yvain, reentered the house. ⁽²⁾ When Bridgette saw that her sister was dead, too, she left the house again. Screams drew the three of them to the back of the house where they discovered that Vivian and Calandra had been shot and where Percy's dead body lay.

Bridgette testified that Percy was a drug dealer. When Bridgette left for work on the day of the murders, there was a quantity of cocaine in the house and a shoe box containing about five thousand dollars in cash. After the murders, the drugs, the shoe box, and the cash were gone.

Center Police Department officers were on the scene within minutes of the shootings. They found fifteen spent shell casings which were subsequently determined to have been fired from the same SKS-type assault rifle. However, no gun matching the shell casings was ever recovered. Law enforcement officers lifted fingerprints at the crime scene, but were unable to match them to any suspects.

Ross testified that she had seen Appellant in Percy's house with another unknown man a couple of hours before the murders. Brown testified that he had seen Appellant and Rodney Moore ("Moore") drive by Percy's house several times on April 22, once just minutes after the shootings.

Eltroy McCowin ("McCowin") was Percy's supplier of illegal drugs. McCowin testified that Percy told him that he was going to sell some "dope" to Appellant on April 22. Doris Netherly ("Netherly"), another sister of Percy's, testified that Percy told her on the afternoon of April 22, that he had a meeting with Appellant that night.

Various witnesses testified that they had seen Appellant and co-defendants Moore, Jacarro Keion Bennett ("Bennett"), and Ricky Lathan ("Lathan") at the Union Acres Apartments on April 22, 1997, both before and after the murders. There was testimony that the Union Acres Apartments, which are situated across the cemetery from Percy's house, are less than five minutes away from the crime scene. Several witnesses testified that Appellant had a gun at Union Acres that night.

Rosalyn Crawford ("Crawford") lived next door to Yoronda Rochelle Jones ("Yoronda") at Union Acres in April of 1997. At about midnight on the night of the murders, Appellant and Moore knocked on Crawford's door, looking for Yoronda. Though the night was cool, Appellant was not wearing a shirt. Crawford said Appellant was out of breath and appeared to have been running. Crawford told Appellant and Moore that Jones lived next door, and they left.

Charles Evans ("Evans"), Christopher Isaac ("Isaac"), Yoronda, and her sister, Shekinula Jones ("Shekinula"), testified that Appellant and Moore came to Jones' apartment about midnight on the night of the murders to pick up Bennett and Lathan, who had been there for some time. The witnesses verified that Appellant was sweaty and shirtless. Shekinula disagreed with the other witnesses about the exact length of time Appellant and Moore stayed at Yoronda's apartment before leaving with Bennett and Lathan, but all of them agreed it was a short period of time.

The State also presented testimonial evidence that Appellant admitted participation in the murders to more than one person. In April 1998, Vernon Garrett ("Garrett") gave a written statement to law enforcement detailing a conversation he had with Appellant when they were cell mates at the Shelby County Jail. ⁽³⁾ Garrett testified on direct examination that Appellant admitted that he had shot Christy and Brian, and that Moore shot Percy and Vivian. Cross examination revealed that, in his written statement, Garrett said that Appellant shot Percy and Vivian, Moore shot Christy, and Lathan shot Brian. The prosecutor did not attempt to clarify the conflicting testimony on redirect, and the written statement is not in the record.

Michael Ethridge ("Ethridge") was incarcerated in the Shelby County jail in January of 1998. Ethridge testified that when they were cell mates, Appellant told Ethridge that he had been involved in the murders. Appellant related to Ethridge that he, Moore, Bennett, Lathan, and Vincent Cartwright drove to Percy's house. Appellant and Moore got out, and the others drove away. Appellant shot Percy and Christy, and Moore shot Brian.

Sufficiency of the Evidence

In his first issue, Appellant argues that the evidence is legally and factually insufficient to support his conviction.

Legal Sufficiency

The standard of review for legal sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the jury's verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Whitaker v. State, 977 S.W.2d 595, 598 (Tex. Crim. App. 1998). An appellate court should uphold the jury's verdict "unless it is found to be irrational or unsupported by more than a mere modicum of evidence." Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). All conflicts in the evidence should be resolved in favor of the verdict, and every reasonable inference indulged. Sneed v. State, 803 S.W.2d 833, 837 (Tex. App.-Dallas 1991, pet. ref'd). The jury is the exclusive judge of the credibility of the witnesses and of the weight to be given their testimony. Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994). Likewise, reconciliation of conflicts in the evidence is within the exclusive province of the jury. Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986).

Sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a charge would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried. Id. Malik controls sufficiency of the evidence analysis even in the absence of alleged jury charge error. See Gollihar v. State, 46 S.W.3d 243, 252-253 (Tex. Crim. App. 2001).

A person commits the offense of murder if he intentionally or knowingly causes the death of an individual. Tex. Pen. Code Ann. § 19.02(b) (Vernon 1994). A person commits the offense of capital murder if he commits murder as defined by the penal code and (1) he intentionally commits the murder in the course of committing or attempting to commit robbery or (2) he murders more than one person during the same criminal transaction. See Tex. Pen. Code Ann. § 19.03(a) (Vernon 1994). In this case, the indictment alleged that Appellant committed capital murder by intentionally murdering Christy Calhoun, and two other individuals, Percy Keith Moore, and Brian Keith Brooks during the same criminal transaction and in the course of committing or attempting to commit robbery. The charge in the record included an instruction on the law of parties and required the jury to find either that Appellant intentionally murdered Christy, Percy, and Brian during the same criminal transaction or that Appellant intentionally murdered Christy, Percy, and Brian during the same criminal transaction and during the course of committing or attempting to commit robbery. ⁽⁴⁾ However, this unnecessarily increased the State's burden of proof. Under the indictment, the hypothetically correct jury charge would have required that the jury find Appellant guilty of capital murder if it found that Appellant-as principal or as a party--murdered at least two of the three victims during the same criminal transaction or intentionally murdered one of the three victims during the course of committing or attempting to commit a robbery. Anderson v. State, 717 S.W.2d 622, 632 (Tex. Crim. App. 1986); Zanghetti v. State, 618 S.W.2d 383 (Tex. Crim. App. 1981).

Viewing the evidence in the light most favorable to the verdict, we hold that a rational trier of fact could have found beyond a reasonable doubt that Appellant committed the offense of capital murder. The record reflects that the three victims were murdered at approximately the same time. Calandra and Vivian testified that the man who shot Percy was stockily built and wearing a white or light-colored muscle shirt and dark or black shorts. Numerous witnesses testified that Appellant wore clothing that night that fit the description given by Calandra and Vivian, and many witnesses testified that Appellant was stockily built. There was evidence that Appellant was in the area at the time of the murders.

We resolve the conflicting evidence about Appellant's extrajudicial admissions to Garrett and Ethridge in favor of the verdict. The jury could have reasonably inferred from Garrett's testimony on direct examination that Appellant murdered Christy and Brian and was a party to Percy's murder. Alternatively, the jury could have reasonably inferred from Garrett's testimony on cross-examination that Appellant murdered Percy and was a party to Christy's and Brian's murders. Further, the jury could have reasonably concluded from Ethridge's testimony that Appellant murdered Christy and Percy and was a party to Brian's murder. It was within the exclusive province of the jury to reconcile the conflicting evidence and then weigh the evidence coupled with the other evidence recounted above. Under any of the possible scenarios, however, there was more than a scintilla of evidence that Appellant either killed two of the three victims himself or was a party to the slayings. Therefore, we hold that there was legally sufficient evidence to support the jury's verdict. ⁽⁵⁾

Factual Sufficiency

Next we move to factual sufficiency review. When reviewing the factual sufficiency of the evidence, we must ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). We review the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it with the evidence that tends to disprove that fact. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). We review the fact finder's weighing of the evidence and are authorized to disagree with the fact finder's determination. Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). This review must employ appropriate deference to prevent an appellate court from substituting its judgment for that of the fact finder, and any evaluation should not substantially intrude upon the fact finder's role as the sole judge of the weight and credibility to be given to the testimony of the witnesses. Jones, 944 S.W.2d at 648.

The degree of deference a reviewing court provides must be proportionate with the facts it can accurately glean from the trial record. Johnson, 23 S.W.3d at 8. A factual sufficiency analysis can consider only those few matters bearing on credibility that can be fully determined from the cold appellate record. Id. Such an approach occasionally permits some credibility assessment but usually requires deference to the jury's conclusion based on matters beyond the scope of the appellate court's legitimate concern. Id. Unless the available record clearly reveals a different result is appropriate, an appellate court must defer to the jury's determination concerning what weight to give contradictory testimonial evidence because resolution often turns on an evaluation of credibility and demeanor, and those jurors were in attendance when the testimony was delivered. Id. This evidence is then accorded the appropriate consideration by the reviewing court in the context of its overall analysis of the relevant evidence. Id. at 8-9.

The reviewing court must always remain cognizant of the fact finder's role and unique position, a position that the reviewing court is unable to occupy. Id. The authority granted in Clewis to disagree with the fact finder's determination is appropriate only when the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice. Id. Otherwise, due deference must be accorded the fact finder's determinations, particularly those determinations concerning the weight and credibility of the evidence. Jones, 944 S.W.2d at 648-49.

Our review of the record reveals conflicting evidence. On appeal, as at trial, Appellant's primary complaint is the State's failure to prove the identity of Appellant as the murderer. Appellant, focusing on the witnesses' description of the man who killed Percy and the conflicting evidence of Appellant's whereabouts on the night of the murders, avers the proof of guilt is so weak that it undermines confidence in the jury's determination and that the proof of guilt is greatly outweighed by contrary proof. We disagree.

The evidence showed that a security light on a pole between the Watts' house and Percy's house was lit at the time of the shootings, and Vivian and Calandra both maintained they got a good look at the shooter. Both Vivian and Calandra said the man who shot Percy was a stockily built black man with a light complexion, wearing a light-colored muscle shirt and dark shorts. Numerous witnesses testified that Appellant was wearing clothes such as Vivian and Calandra described on the night of the murders. Of course, the jury could see for itself whether Appellant is a stockily built black man, but numerous witnesses agreed that he is.

Appellant disputes Vivian and Calandra's identification of Appellant as the shooter. Appellant produced evidence before the jury that Calandra had poor eyesight, but Calandra explained that she could see that night by "squinting." Appellant produced evidence before the jury that the description Calandra gave of the shooter from her hospital bed was not consistent with her description at trial or with her mother's description of him. However, Calandra testified she did not remember even talking to a Texas Ranger when she was in the hospital, much less describing the suspect to him. Calandra's medical records confirmed her testimony that she was on pain medication at the time of the interview. Furthermore, Vivian's description of the shooter to the responding police officers was consistent with her trial description.

By his questions to witness after witness, Appellant made much of the fact that Appellant is apparently not a light-skinned black man. We note that the term "light skinned" was injected into the case by Vivian and Calandra. Importantly, we note that Vivian testified at trial that Appellant has lighter skin than she. At least by Vivian's definition, Appellant is apparently light skinned. The jury, of course, could see for itself what we cannot see in the written record.

Appellant points to conflicting evidence of what car, if any, Appellant and his three co-defendants may have been riding in on the night of the murders. Appellant put on several witnesses to explain the whereabouts of the various cars they allegedly were in. Appellant put on evidence through several witnesses that he was actually in Center on Monday night, April 21, 1997, and was in Jacksonville, Texas, on April 22. As to both scenarios, the jury was in the best position to judge the credibility of various witnesses and decide what weight to give their testimony.

Appellant repeatedly points to what he avers is contrary proof which the State itself presented in the form of the videotaped testimony of Omar Gardner ("Gardner"). Gardner testified he saw a white pickup truck circling the area shortly before the shootings. Gardner said the white truck stopped at Percy's and at least two men got out and hurried inside. Gardner, who was crossing the cemetery on his way home, heard the shots and began to run through the cemetery. Gardner said he saw Yvain Rushing driving the white truck the next morning. Again, the jury was in the best position to weigh this evidence, judge Gardner's credibility, and decide if Gardner's story conflicted with the other evidence of guilt offered by the State.

After a neutral review of all the evidence, we find that the proof of guilt is neither so obviously weak as to undermine confidence in the jury's determination nor greatly outweighed by contrary proof. We cannot say the record clearly reveals that a different result is appropriate. Finding no manifest injustice apparent, we hold that the evidence was factually sufficient to support the jury's verdict. Appellant's first issue is overruled.

Hearsay

In his second issue, Appellant alleges the trial court erred by allowing impermissible hearsay testimony from Derrick Brown. The State counters that the statement was an exception to hearsay under Rule 803(24). See Tex. R. Evid. 803(24). Alternatively, the State argues that the offending statement is not hearsay because it was Appellant's own statement offered against Appellant himself. See Tex. R. Evid. 801(e)(2)(A). The record reveals that the trial court admitted the statement under Rule 803(24).

Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). Rule of Evidence 803(24) provides that a statement against the declarant's penal interest may be admissible if corroborating circumstances clearly indicate the statement's reliability. See Tex. R. Evid. 803(24).

We review a trial court's decision to admit or exclude a statement under rule 803(24) for an abuse of discretion. See Dewberry v. State, 4 S.W.3d 735, 751 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131, 120 S. Ct. 2008, 146 L. Ed. 2d 958 (2000); Holiday v. State, 14 S.W.3d 784, 787 (Tex. App.-Houston [1st Dist.] 2000, pet. ref'd), cert. denied, __U.S.__, 121 S. Ct. 1491, 149 L. Ed. 2d 377 (2001). If a hearsay statement is admissible under a "firmly rooted" exception to the hearsay rule, reliability, for purposes of the Confrontation Clause, can be inferred. Idaho v. Wright, 497 U.S. 805, 816, 110 S. Ct. 3139, 3147, 111 L. Ed. 2d 638 (1990). The Court of Criminal Appeals has held that a statement against penal interest under rule 803(24) is a firmly rooted exception to the hearsay rule. See Dewberry, 4 S.W.3d at 753; Guidry v. State, 9 S.W.3d 133, 150 (Tex. Crim. App. 1999), cert. denied, 531 U.S. 837, 121 S. Ct. 98, 148 L. Ed. 2d 57 (2000); but see Lilly v. Virginia, 527 U.S. 116, 127, 119 S. Ct. 1887, 1895, 144 L. Ed. 2d 117 (1999) (plurality opinion) ("[S]imple categorization of a statement as a 'declaration against penal interest . . . defines too large a class for meaningful Confrontation Clause analysis.' "). An admission against the declarant's penal interest may be admissible against a co-defendant as long as it is sufficiently against the declarant's own interest to be reliable. Dewberry, 4 S.W.3d at 751.

Brown was a cell-mate of Moore's in the Shelby County Jail some time after the murders. Brown testified at a pre-trial hearing that while they were incarcerated together, Moore told Brown that Appellant wanted Moore to claim responsibility for killing the child victim, Christy. Moore told Brown that he killed Brian, and Appellant killed Christy and Percy. Inexplicably, at Appellant's trial, Brown only recounted part of the admission. Brown told the jury, "[Moore] told me that [Appellant] was trying to get [Moore] to say he killed the little girl." Clearly, the statement is hearsay, and the State's contention that it is not, is wholly without merit. Furthermore, Brown did not relay to the jury that part of Moore's admission to him which was inculpatory of Moore, i.e., that Moore killed Brian. Therefore, we hold that the trial court abused its discretion by admitting the statement under Rule 803(24).

A violation of the Confrontation Clause is subject to harmless error analysis. Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705 (1967). If the record reveals constitutional error that is subject to harmless error review, we must reverse the judgment of conviction unless we determine beyond a reasonable doubt that the error did not contribute to the conviction. See Tex. R. App. P. 44.2(a). In applying this standard of review, we do not look for overwhelming evidence of guilt because it is improper for an appellate court to substitute its judgment for that of the factfinder. Harris v. State, 790 S.W.2d 568, 585 (Tex. Crim. App. 1989). Instead, we focus on the error and its possible impact. Id. at 586-88. "If the error was of a magnitude that it disrupted the [factfinder's] orderly evaluation of the evidence, no matter how overwhelming it might have been, then the conviction is tainted." Id. at 588. To perform a harmless error analysis, an appellate court should consider the following factors: 1) the source of the error; 2) the nature of the error; 3) whether the error was emphasized and its probable collateral implications; 4) the weight a juror would probably place upon the error; and 5) whether declaring the error harmless encouraged the State to repeat it with impunity. Orona v. State, 791 S.W.2d 125, 128 (Tex. Crim. App. 1990). Though no one factor is dispositive, the existence and severity of these factors are indicative of the harm caused by the error. See Wilson v. State, 938 S.W.2d 57 (Tex. Crim. App. 1996).

After reviewing the record in its entirety, we conclude that the error in admitting Moore's statement to Brown was harmless. The incomplete character of Brown's trial testimony is paramount in our analysis. Brown did not tell the jury that Moore claimed that Appellant killed Christy and Percy. Further, Brown's testimony about Moore's statement was not emphasized by the State during the rest of the trial or at argument. In light of the testimony of Garrett and Ethridge and the other evidence of Appellant's guilt, we hold that the error was harmless. Appellant's second issue is overruled.

The Disputed Testimony of Ranger Tom Davis

In his third issue, Appellant complains that the trial court erred by allowing Texas Ranger Tom Davis to give lay opinion testimony. The State contends that error, if any, is not preserved. We agree.

When asked at trial if another Texas Ranger interviewed Calandra from her hospital bed, Ranger Davis replied, "It was a cursory interview. Ms. Watts was medicated pretty heavily at the time." Appellant's trial objection based on speculation was overruled. The State argues that error, if any, is not preserved because Appellant's issue on appeal does not comport with his trial objection. See Tex. R. App. P. 33.1. Appellant frames the issue on appeal as error due to impermissible lay opinion testimony in violation of Rule 701 of the Rules of Evidence. See Tex. R. Evid. 701. This issue does not comport with Appellant's trial objection. ⁽⁶⁾ Therefore, we hold that error, if any, is not properly preserved, and we overrule Appellant's third issue.

In his fourth issue, Appellant presents us with a multifarious complaint based on the admission of another part of Ranger Davis' testimony. The State contends that error, if any, is not preserved because Appellant did not object to the ultimate question resulting in the offending answer and because the offending testimony is not hearsay. At trial, Appellant objected on the basis of hearsay to Ranger Davis' testimony that he "learned [from his investigation]" that Appellant and Moore were in Center on the evening of April 22, 1997. In his motion for new trial, Appellant complained of "opinion[s] . . . based on hearsay." On appeal, Appellant avers that the admission of Ranger Davis' testimony was error because it was impermissible lay opinion testimony based on hearsay, and, further, Appellant presents arguments and authorities at length complaining of bolstering. Based on our review of the record, we conclude that Appellant did not properly preserve the issue of bolstering, but did properly preserve the issues of a Rule 701 violation and hearsay for

our consideration. See Tex. R. App. P. 33.1. However, we reach neither consideration because evidence that Appellant was in Center on the night of the murders came in through numerous, prior and latter witnesses without objection. ⁽⁷⁾ "It is well established that the improper admission of evidence does not constitute reversible error if the same facts are shown by other evidence which is not challenged." Leday v. State, 983 S.W.2d 713, 717 (Tex. Crim. App. 1998); Crocker v. State, 573 S.W.2d 190, 201 (Tex. Crim. App. 1978). Appellant's fourth issue is overruled.

The State's Alleged Failure

To Disclose Deals With Witnesses

Appellant presents his fifth and sixth issues together. Appellant contends he was denied due process because the State failed to disclose deals for leniency in pending criminal cases with two of its witnesses, Vernon Garrett and Michael Ethridge, in exchange for their testimony. Appellant alleges violation of his due process rights under the Constitution and under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 215 (1963). The State avers there is no evidence of secreted deals in the record. We agree.

At the time of Appellant's trial, Garrett was incarcerated in a substance abuse felony punishment facility of the Texas Department of Criminal Justice. Garrett testified at trial and again at the hearing on Appellant's motion for new trial that he received no leniency and no deal in exchange for his testimony. Garrett's attorney testified at the new trial hearing that he was unaware of any deal, and the District Attorney's Investigator testified at the new trial hearing that he made no deal with Garrett in exchange for his testimony.

At the time of Appellant's trial, Ethridge was incarcerated in the Shelby County Jail on a motion to revoke his probation. Ethridge testified at trial and at the hearing on Appellant's motion for new trial that he had previously been granted "shock probation" in exchange for his testimony, but that he had no deal to dismiss the motion to revoke pending at the time of trial in exchange for his testimony. The District Attorney's Investigator testified at the new trial hearing that he made no deal with Ethridge in exchange for his testimony.

There is simply no evidence in the record of a deal with Garrett. The previous deal with Ethridge was revealed to the jury. Apparently, the pending motion to revoke Ethridge's probation was dismissed and Ethridge was released from jail shortly after he testified in the trial. Appellant avers that this is proof of a deal in exchange for Ethridge's testimony. However, we refuse to engage in such speculation when there is no evidence in the record of a further deal with Ethridge which was not disclosed. We simply cannot consider Appellant's arguments about matters outside the record. See Tex. R. App. P. 38.1(h). Appellant's fifth and sixth issues are overruled.

Newly Discovered Evidence

In his seventh and eighth issues, Appellant contends that the trial court abused its discretion by denying his motion for new trial based on the newly discovered evidence that Derrick Brown and Michael Ethridge committed perjury at trial.

A new trial shall be granted an accused where material evidence favorable to the accused has been discovered since trial. Tex. Code Crim. Proc. Ann. art. 40.001. (Vernon Supp. 2001). The standard of review for the denial of a motion for new trial based on newly discovered evidence is abuse of discretion. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995); State v. Gonzalez, 855 S.W.2d 692, 696 (Tex. Crim. App. 1993). Motions for new trial based on newly discovered evidence are not favored by the courts and are viewed with great caution. Drew v. State, 743 S.W.2d 207, 225-26 (Tex. Crim. App. 1987). We do not substitute our judgment for that of the trial court, but rather decide whether the trial court's decision was arbitrary or unreasonable. Id. To show that the trial court abused its discretion in not granting a new trial, the record must reflect that: (1) the newly discovered evidence was unknown to the movant at the time of trial; (2) the movant's failure to discover the evidence was not due to his lack of diligence; (3) the evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching; and (4) the evidence is probably true and would probably bring about a different result in another trial. Moore v. State, 882 S.W.2d 844, 849 (Tex. Crim. App. 1994); see Drew, 743 S.W.2d at 226.

At trial, Brown denied that he had ever worked as a paid informant or "snitch" for a law enforcement agency in connection with the illegal narcotics trade. At the hearing on Appellant's motion for new trial, officers from the Deep East Texas Regional Narcotics Trafficking Task Force and from the Department of Public Safety Narcotics Service testified that Brown had been a paid informant for their agencies on several occasions prior to the trial.

At the hearing on Appellant's motion for new trial, Appellant presented testimony that Ethridge had said before trial that he would lie to help himself. However, Appellant did not put on evidence that Ethridge actually did lie at trial.

Appellant has wholly failed to meet his burden under Moore. Appellant has failed to show that this evidence was unknown to him at the time of trial or that his failure to discover it was not due to his want of diligence. Though the evidence that Brown was a paid informant for law enforcement is undoubtedly true, and the evidence that Ethridge had said he would lie in court is quite possibly true, both new pieces of evidence are merely impeachment evidence, and neither would likely bring about a different result in another trial. The trial court did not abuse its discretion by denying Appellant's motion for new trial based on newly discovered evidence. Appellant's seventh and eighth issues are overruled.

Prosecutorial Misconduct

Eliciting False Testimony and Secreting Exculpatory Evidence

In his ninth issue, Appellant complains that the prosecutor knowingly put on false evidence and violated pre-trial discovery orders, thereby denying Appellant due process of law.

In response to questioning by the State, Ranger Tom Davis testified at trial that there was no evidence McCowin was involved in the April 22, 1997 murders. Appellant alleges on appeal that such statement was untrue and that the State withheld exculpatory evidence in the form of a letter from a polygraph examiner to Ranger Davis stating that Brown was truthful when he told the polygraph examiner that McCowin had threatened Percy's life. The State conceded at oral argument that the letter should have been shared with Appellant before trial as possible Brady material.

A prosecutor has an affirmative duty to turn over favorable material to the defense. Brady v. Maryland, 373 U.S.83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); Little v. State, 991 S.W.2d 864, 866 (Tex. Crim. App. 1999). A prosecutor's failure to provide such material to the defense violates due process if the prosecutor (1) failed to disclose evidence; (2) favorable to the accused; and (3) the evidence is material. Thomas v. State, 841 S.W.2d 399, 404 (Tex. Crim. App. 1992).

The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome.

United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481 (1985).

Though the State did concede at oral argument that the letter is Brady material, the State maintains that the issue is not properly before this court. We agree.

As a general rule, we cannot consider items which are not part of the record from the trial court. See Tex. R. App. P. 34.1; Raspberry v. State, 535 S.W.2d 871, 873 (Tex. Crim. App. 1976); Martin v. State, 492 S.W.2d 471, 472 (Tex. Crim. App. 1973).); White v. State, 456 S.W.2d 935, 936 (Tex. Crim. App. 1970); Kaman v. State, 923 S.W.2d 129, 132 (Tex. App.-Houston [1st Dist.] 1996, no pet.); see also Pena v. State, 932 S.W.2d 33, 35 (Tex. App.-El Paso 1996, no pet.). Appellant is attempting to raise matters outside the record by way of attached exhibits to an appendix to his brief. There was no evidence adduced at trial or at the hearing on Appellant's motion for new trial about the letter from the polygraph examiner. Therefore, we are unable to address due process implications of the failure to provide the letter from the polygraph examiner to Appellant. ⁽⁸⁾ Appellant's ninth issue is overruled.

Concealing or Destroying Evidence

In his tenth issue, Appellant alleges that the prosecutor systematically concealed or destroyed material impeachment evidence and exculpatory evidence. The State responds that Appellant is attempting to raise matters outside the appellate record. We agree.

Appellant questioned the various witnesses at trial about the number of statements they had given, to whom they had given statements, and whether the statements were written or recorded on audio or video tape. The prosecutor conceded that some video tapes had been taped over and the 911 tapes had been lost. However, Appellant failed to show that material impeachment evidence or exculpatory evidence has been concealed or intentionally destroyed. See Thomas, 841 S.W.2d at 404. Appellant's tenth issue is overruled.

The judgment of the trial court is affirmed.

SAM GRIFFITH

Justice

Opinion delivered August 22, 2001.

Panel consisted of Davis, C.J., Worthen, J., and Griffith, J.

(DO NOT PUBLISH)

1.

They described the man as stockily built with a light complexion, wearing a white or light-colored muscle shirt and dark or black shorts.

2.

Bridgette testified that Yvain reentered the house with her, but Ross and Yvain testified that it was Ross who went inside the house with Bridgette.

3.

Subsequently, Garrett recanted that statement. Later, he retracted the recantation, and he insisted at trial that the original statement he gave in April 1998 was true and correct.

4.

The actual jury charge was lost before the appeal, so it is not part of the record before us. There is a charge in the record which the former prosecutor, the clerk, the court reporter, and the prosecutor's secretary all attest to be an exact copy of the charge submitted to the jury.

5.

Because we conclude the evidence is sufficient to support a finding of multiple murders in the same criminal transaction, we do not address whether there is legally sufficient evidence that Appellant committed murder in the course of committing or attempting to commit robbery.

6.

From the context of the Appellant's trial objection, one might logically conclude that Appellant was complaining of a violation of Rule 602 rather than Rule 701. See Tex. R. Evid. 602.

7.

Germaine Preston, Sheretta Patton, Aretha McCollister, Charles Evans, Yoronda Rochelle Jones, Cory Lacy, Jason Calhoun, Christopher Isaac, Anita Ross, Rosalyn Crawford, Christopher Crawford, Shekinula Jones, and Derrick Brown so testified.

8.

Evidence concerning the letter from the polygraph examiner might be developed in a habeas corpus proceeding.