Ladarus Demarquis Earl Keys v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: May 17, 2023
• Docket: 05-22-00669-CR
• Status: Published

Opinion

AFFIRM; and Opinion Filed May 17, 2023

In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00669-CR

LADARUS DEMARQUIS EARL KEYS, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 219th Judicial District Court Collin County, Texas Trial Court Cause No. 219-82731-2020

MEMORANDUM OPINION Before Justices Pedersen, III, Garcia, and Kennedy Opinion by Justice Kennedy Ladarus Demarquis Earl Keys appeals his conviction for capital murder. On

appeal, he challenges the sufficiency of the evidence to corroborate the testimony of

an accomplice witness and to establish he committed or intended to commit robbery

in the course of committing murder. In addition, appellant asserts the trial court

erred in failing to give the jury a jailhouse-witness instruction. We affirm the trial

court’s judgment. Because all issues are settled in law, we issue this memorandum

opinion. TEX. R. APP. P. 47.4. BACKGROUND

Appellant was charged by indictment with capital murder having intentionally

caused the death of Christopher Collinvitti by shooting him with a firearm in the

course of committing or attempting to commit the offense of robbery. Two other

individuals, Jacob Malin and Christopher Walker, were also charged with

Collinvitti’s murder. Malin confessed to his involvement in the murder of Collinvitti

and turned State’s witness against appellant and Walker. Appellant pleaded not

guilty to the charged offense and requested a jury trial.

At trial, the State’s witnesses included: Malin; Collinvitti’s wife; the medical

examiner who performed the autopsy on Collinvitti; various law enforcement

officers; a forensic DNA analyst; a firearm and toolmark examiner; a neighbor of

the Collinvitti’s who heard the gunshots that killed Collinvitti; and Omar Simmons,

the individual from whom the murder weapon was stolen. Through these witnesses,

and various stipulations of appellant, the State presented evidence showing the

following.

Malin has a long criminal history and was often involved in robberies and

burglaries as the getaway driver because he has access to a vehicle. On November

7, 2017, Malin reached out to Jole Billiot, a woman with whom he sometimes

committed crimes, to see if she had a way for him to make some money. In response,

she suggested they commit a house burglary. The target of that burglary was

Simmons, an individual with whom Billiot had previously had a relationship that

–2– ended badly. On the afternoon of November 7, 2017, Billiot, along with Walker, a

childhood friend of Malin who often committed burglaries and robberies with Malin,

broke into Simmons’s home. They stole a Sony PlayStation, a watch, a silver

handgun, with distinctive engravings on the handle, which would later be used in the

murder of Collinvitti, and loaded magazines for the handgun, while Malin waited in

the car. After they left Simmons’s house, Walker indicated he wanted to make some

more money and an argument ensued between Walker and Billiot resulting in Billiot

being dropped off at a convenient store.

Malin then contacted appellant, an individual with whom he had previously

committed an aggravated robbery, to see if appellant was interested in joining

Walker and him in trying to get some money. Appellant was interested, so Malin

and Walker drove to appellant’s house and picked him up. Malin knew appellant

sometimes smoked an embalming like fluid and when they picked him up it appeared

he had done so because his manner was aggressive and mean. Walker showed

appellant the handgun he stole from Simmons’s home, and appellant took it

indicating the gun was now his.

Malin, Walker, and appellant drove to a neighborhood in Plano looking for a

victim. According to Malin, appellant spotted a random vehicle driving down the

road and decided the driver looked like he had money. He instructed Malin to follow

the vehicle. When the driver pulled into the driveway of his home, appellant got out

of the car, followed by Walker. Seconds later, appellant and Walker ran back to the

–3– car leaving Collinvitti on the floor of his garage with two gunshot wounds.

Appellant looked at Malin with a scared expression and said, “he had to since he

thought [Collinvitti] was reaching for something.” Appellant was still holding the

handgun. At appellant’s direction, Malin then drove appellant to a location in

Pleasant Grove. He texted Malin that he thought he should kill Walker because

Walker knew what had happened. Malin convinced appellant not to do so, indicating

Walker was not going to do anything. Appellant then got out of the car. After that

experience, Malin wanted nothing to do with appellant.

Police were dispatched to the scene after receiving reports of gunshots. When

they arrived, they found Collinvitti lying face down inside his garage between two

vehicles, the door to his vehicle still open, with a large pool of blood underneath

him. They discovered a thick wallet with money and credit cards in his back pocket

that was difficult to remove because of its size.

A neighbor of Collinvitti met with the police and indicated that she came out

of her home after hearing gunfire and saw two people running down the alley to a

parked car. She described the taillights on the car as being a row in the back panel

all the way through the trunk. A surveillance camera captured the car as described

by the neighbor and showed it driving off. Police were later able to identify the

vehicle as a burgundy Lincoln MKZ.

Three days after the murder of Collinvitti, on November 10, 2017, appellant

used the handgun he took from Walker in a shooting at a residence in Dallas. The

–4– shell casings collected from that crime scene matched those collected at the scene of

Collinvitti’s murder.

On November 12, 2017, Davion Lakes robbed appellant at a market store and

took the handgun. Then on November 17, 2017, Lakes and Sebastian Coleman used

the handgun in a shooting in Garland.

After the initial investigation of the Collinvitti murder, the case had gone cold.

Then, on December 20, 2019, a firearms examiner matched the murder weapon in

the Collinvitti case to the November 17, 2017 shooting in Garland. Coleman

admitted to his involvement in the Garland shooting and had an alibi for the night of

Collinvitti’s murder. Lakes admitted to his role in the Garland shooting as well. He

also admitted to robbing someone in DeSoto who matched appellant’s description

and taking the handgun from him. Detectives were able to determine the handgun’s

serial number from photographs on Lakes’ cell phone, which led them back to

Simmons. By process of elimination and piecing together other evidence, including

FaceBook, cell phone and land line records showing numerous communications

between appellant and Malin ending the day after the murder of Collinvitti, and

appellant’s possession of the murder weapon three days after the murder of

Collinvitti, the investigation led to appellant as a suspect in the murder of Collinvitti.

The jury found appellant guilty as charged, and the trial court sentenced him

to life in prison without the possibility of parole. This appeal followed.

–5– DISCUSSION

I. The Accomplice-Witness Rule

In his first issue, appellant urges the State presented insufficient evidence to

corroborate Malin’s testimony. The State concedes that Malin was an accomplice

in the murder of Collinvitti and asserts it presented sufficient evidence to corroborate

his testimony concerning appellant’s role in the murder of Collinvitti.

Article 38.14 of the Texas Code of Criminal Procedure provides that “[a]

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. The rule is statutorily imposed and is not

derived from federal or state constitutional principles that define sufficiency

standards. Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008). The rule

reflects a legislative determination that accomplice testimony implicating another

person should be viewed with a measure of caution, because accomplices often have

incentives to lie, such as to avoid punishment or shift blame to another person. Blake

v. State, 971 S.W.2d 451, 454 (Tex. Crim. App. 1998).

In conducting a sufficiency review under the accomplice-witness rule, we

eliminate the accomplice testimony from consideration and then examine the

remaining portions of the record to see if there is any evidence that tends to connect

the accused with the commission of the crime. Solomon v. State, 49 S.W.3d 356,

–6– 361 (Tex. Crim. App. 2001). We review evidence corroborating accomplice-witness

testimony in the light most favorable to the jury’s verdict. Brown v. State, 270

S.W.3d 564, 567 (Tex. Crim. App. 2008).

To meet the requirements of the accomplice-witness rule, the corroborating

evidence need not be sufficient by itself to establish the defendant’s guilt and need

not directly link the accused to the commission of the offense. Malone, 253 S.W.3d

at 257; Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996). Rather, the

evidence must simply link the accused in some way to the commission of the crime

and show that rational jurors could conclude that this evidence sufficiently tended to

connect the accused to the offense. Id. Any independent evidence tending to verify

an accomplice witness’s version of events is deemed to be corroborative, even if it

goes only to a mere detail rather than a substantive connection between the defendant

and the offense. Beathard v. State, 767 S.W.2d 423, 430 (Tex. Crim. App. 1989).

There is no set amount of non-accomplice corroboration evidence that is required

for sufficiency purposes. Malone, 253 S.W.3d at 257. Each case must be judged on

its own facts. Smith v. State, 332 S.W.3d 425, 442 (Tex. Crim. App. 2011).

Here, appellant stipulated to evidence showing he possessed and fired a

handgun on November 10, 2017, three days after the murder of Collinvitti, leaving

fired shell casings at the site of the shooting, which were collected by the Dallas

Police Department. A firearms examiner confirmed the handgun that fired the

cartridge cases in the Collinvitti murder fired the same cartridge cases in the Dallas

–7– shooting on November 10. Thus, the evidence showed appellant used the exact

weapon involved in the Collinvitti murder in another shooting three days after

Collinvitti was murdered. This is independent evidence which tends to connect

appellant to the commission of the charged offense. See Cockrum v. State, 758

S.W.2d 577, 582 (Tex. Crim. App. 1988) (proof that connects an accused to weapon

used in offense is proper corroborating evidence).

In addition, the State introduced evidence showing there had been numerous

telephone calls between appellant and Malin prior to and including the day

Collinvitti was murdered.1 At least one of those communications, a message from

Malin to appellant on the day of the murder, discussed a need for money.2 This

evidence corroborates Malin’s testimony that he had often “linked up” with

appellant to procure money. See Beathard, 767 S.W.2d at 430 (evidence tending to

verify accomplice’s story is deemed corroborative, even if it does not establish

substantive connection between defendant and offense). Independent evidence

showed there were seven calls between appellant and Malin on the day of the murder.

This corroborates Malin’s testimony that he called appellant on the day of the

murder. See Cockrum, 758 S.W.2d at 581 (evidence defendant was in the company

1 The Arlington Police Department recovered appellant’s phone in connection with a separate investigation on October 24, 2017. Thereafter, police discovered communications between Malin’s cell phone and a landline at a residence in DeSoto where appellant lived. Between September 23, 2017, and November 8, 2017, there were 73 calls between appellant’s cell phone or the landline and Malin’s cell phone, and 24 FaceBook communications between appellant and Malin. 2 The message from Malin to appellant stated, “bro WYA I need some mula.” Appellant responded, “crib pull up.” –8– of accomplice at or near time or place of crime is proper corroborating evidence).

Forensic evidence showed that after November 7, 2017, there were no further

communications between appellant and Malin. This corroborates Malin’s statement

that he stopped associating with appellant after the murder.

In addition, the testimony of Simmons and social media communications

between Billiot and Malin, evidence independent of Malin’s testimony, established

Billiot and her associate stole the murder weapon from Simmons’s house on

November 7, 2017. Police found one of the magazines for this firearm in the

getaway vehicle Malin drove at the time of the murder. This confirms Malin’s

testimony that he assisted Billiot in stealing the murder weapon hours before the

murder.

We conclude the foregoing evidence sufficiently corroborated the testimony

of Malin and tended to connect appellant with the murder. See Brown, 270 S.W.3d

at 568–69; Cockrum, 758 S.W.2d at 581–82. We overrule appellant’s first issue.

II. Intent to Commit Robbery

In his second issue, appellant asserts the evidence is insufficient to support a

finding that, during the course of the murder of Collinvitti, he committed or intended

to commit robbery because there is no evidence he actually took any money or

property from him. The State responds, urging appellant’s argument lacks merit.

In reviewing the legal sufficiency of the evidence, we review the evidence in

the light most favorable to the verdict to determine whether a rational trier of fact

–9– could have found the essential elements of the crime beyond a reasonable

doubt. Salinas v. State, 163 S.W.3d 734, 737 (Tex. Crim. App. 2005). This is a

highly deferential standard, as it is the responsibility of the trier of fact to fairly

resolve conflicts in testimony, to weigh evidence, and to draw inferences from basic

facts to ultimate conclusions. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.

2007).

Appellant relies on the fact that there was no evidence showing he succeeded

in robbing Collinvitti to urge the evidence is insufficient to show he intended to rob

Collinvitti. But a completed theft is not required to establish an intent to commit

robbery. Wolfe v. State, 917 S.W.2d 270, 275 (Tex. Crim. App. 1996). There was

significant testimony that the purpose of the encounter with Collinvitti was to

commit robbery and that Collinvitti was selected because appellant believed he had

money. We conclude the evidence is legally sufficient to show appellant intended

to commit the offense of robbery when he shot and killed Collinvitti. We resolve

appellant’s second issue against him.

III. Jury Instruction

In his final issue, appellant argues the trial court erred in failing to include a

jailhouse-witness instruction in the jury charge. Appellant’s complaint centers on

Malin’s testimony that when he and appellant were both in the same penal institution

appellant told him not to say anything and that they were going to beat the case.

Appellant contends his jailhouse statement can be inferred as an admission of guilt

–10– and there is no other reason to offer his statement other than to show his guilt. He

further contends that without this testimony there is no connection of appellant to

the crime.

We review a claim of jury charge error through a two-step process. Phillips

v. State, 463 S.W.3d 59, 64–65 (Tex. Crim. App. 2015). We first determine whether

there was error in the charge and, if so, whether that error was harmful. Id. If error

was preserved, we must reverse the trial court’s judgment if the record shows the

defendant suffered some harm as a result of that error. Reeves v. State, 420 S.W.3d

812, 816 (Tex. Crim. App. 2013). Conversely, we will not reverse for unpreserved

error unless the defendant shows that the error was fundamental and that he suffered

egregious harm from it. Id. Appellant acknowledges that he did not object to the

charge. Thus, he must show egregious harm to prevail on appeal. Id. Jury charge

error is egregiously harmful if it affects the very basis of the case, deprives the

defendant of a valuable right, or vitally affects a defensive theory. Marshall v. State,

479 S.W.3d 840, 843 (Tex. Crim. App. 2016). Egregious harm is a difficult standard

to prove, and such a determination must be made on a case-by-case basis. Hutch v.

State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996), Batiste v. State, 73 S.W.3d 402,

407 (Tex. App.—Dallas 2002, no pet.).

Article 38.075(a) of the code of criminal procedure provides:

A defendant may not be convicted of an offense on the testimony of a person to whom the defendant made a statement against the defendant’s interest during a time when the person was imprisoned or confined in

–11– the same correctional facility as the defendant unless the testimony is corroborated by other evidence tending to connect the defendant with the offense committed.

TEX. CODE CRIM. PROC. ANN. art. 38.075(a). A trial court must sua sponte include

an article 38.075(a) jailhouse-witness instruction when applicable to the case.

Phillips, 463 S.W.3d at 65. When a trial court errs by not giving a jailhouse-witness

instruction, we eliminate the jailhouse witness’s testimony from consideration and

examine the remaining portions of the record to see if there is any evidence tending

to connect the defendant with the commission of the crime. Ruiz v. State, 358

S.W.3d 676, 681 (Tex. App.—Corpus Christi 2011, no pet.). Therefore, the

existence of corroborating evidence tending to connect appellant to the offense will

render harmless the trial court’s failure to submit an article 38.075 instruction by

fulfilling the purpose that such an instruction is designed to serve. Brooks v. State,

357 S.W.3d 777, 781–82 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d).

Assuming, without deciding, that Malin’s testimony concerning appellant’s

statement while they both were incarcerated warranted an article 38.075 instruction

and that the trial court erred by not including a jailhouse-witness instruction in the

charge, we eliminate Malin’s testimony regarding appellant’s statement and

determine whether the remaining evidence tends to connect appellant to the offense.

Id. at 782.

As discussed above, we have already concluded that Malin’s other testimony

was sufficiently corroborated. On this record, there is no basis to conclude that the

–12– only aspect of Malin’s testimony that was not corroborated, appellant’s request that

Malin remain quiet, had a substantial, injurious effect or influence on the jury’s

verdict. Martinez v. State, 662 S.W.3d 496, 501 (Tex. App.—San Antonio 2018,

pet. ref’d); see Washington v. State, 449 S.W.3d 555, 572 (Tex. App.—Houston

[14th Dist.] 2014, no pet.) (once it is determined that independent evidence tending

to connect the defendant to the offense exists, the purpose of the jailhouse-witness

instruction is fulfilled, and the instruction plays no further role in the factfinders’

decision making process).

Moreover, in this case the trial court gave the jury an article 38.14 instruction

addressing accomplice-witness testimony. Specifically, the trial court instructed the

jury that Malin’s testimony could not be used to convict appellant unless there was

other testimony in the case that tended to connect appellant with the offense and that

corroboration was not sufficient if it merely tended to show the commission of the

offense. Under circumstances similar to those presented here, when the individual

who testifies as the accomplice witness is also the jailhouse witness, this Court has

concluded that the distinction between an article 38.14 and 38.075 instruction is

immaterial and that an instruction pursuant to article 38.14 was sufficiently broad to

include all of the witnesses’ testimony. Newsome v. State, No. 05-14-01455-CR,

2015 WL 7302525, at *10 (Tex. App.—Dallas Nov. 19, 2015, no pet.) (mem. op.,

not designated for publication) (“The distinction is immaterial in this case because

–13– [the witness] was both an accomplice and a jail-house witness, and corroboration is

required for both types of testimony.”).

On the record before us, we conclude any error in the trial court’s failure to

give an instruction requiring corroboration of jailhouse-witness testimony was

harmless. Washington, 449 S.W.3d at 572. We overrule appellant’s third issue.

CONCLUSION

We affirm the trial court’s judgment.

/Nancy Kennedy/ NANCY KENNEDY 220669f.u05 JUSTICE Do Not Publish Tex. R. App. P. 47

–14– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

LADARUS DEMARQUIS EARL On Appeal from the 219th Judicial KEYS, Appellant District Court, Collin County, Texas Trial Court Cause No. 219-82731- No. 05-22-00669-CR V. 2020. Opinion delivered by Justice THE STATE OF TEXAS, Appellee Kennedy. Justices Pedersen, III and Garcia participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 17th day of May, 2023.

–15–