Lorenzo Walker v. State

• Court: Court of Appeals of Texas
• Decided: December 15, 2005
• Docket: 11-04-00182-CR
• Status: Published

Opinion

Opinion filed December 15, 2005

Opinion filed December 15, 2005

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-04-00182-CR

                                     LORENZO WALKER, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                         On Appeal from the 350th District Court

                                                          Taylor County, Texas

                                                   Trial Court Cause No. 6417-D

                                                                   O P I N I O N

Lorenzo Walker was convicted of tampering with evidence by making a false document in a pending investigation.  Appellant asserts that the evidence is legally and factually insufficient to support his conviction.  After reviewing all of the evidence presented, we affirm.

Background Facts

On November 28, 2002, Rachel Thomas reported being assaulted by her boyfriend, appellant.  Later, Thomas recanted her allegation and left messages on Abilene Police Department Sergeant Leo Joseph Tauer=s answering machine denying the assault.  While listening to the messages, Sergeant Tauer heard appellant in the background telling Thomas what to say.

On December 6, 2002, appellant was arrested for the assault.  Around the same date, Sergeant Tauer began investigating appellant for evidence tampering.  During the investigation, Sergeant Tauer listened to phone calls appellant placed from jail.  In one such phone conversation, appellant told his sister that he needed his friend, Maurice Clayton, and his friend=s father, Ollie Clayton, to sign affidavits stating that there was no assault and that Thomas tripped over a chair.

In February 2003, two affidavits arrived in appellant=s mail:  one signed by Maurice and the other by Ollie.  Both affidavits stated that there was no assault.  They were delivered to the jail by Pamela Janiece Walker, appellant=s niece, who also typed them.  Tonette Williams Walker, appellant=s nephew=s wife, notarized the affidavits before Maurice and Ollie signed them.  Maurice and Ollie later admitted that, despite what the affidavits said, they did not observe the incident between appellant and Thomas and that they signed the affidavits without reading them.

As a result of Sergeant Tauer=s investigation, appellant was charged with fabricating evidence.  Appellant was tried before a jury and found guilty.  Upon appellant=s plea of true to the enhancement allegations, the trial court assessed punishment at five years confinement.  This appeal followed.  In two points of error, appellant challenges the legal and factual sufficiency of his conviction.

Legal & Factual Sufficiency

To determine if the evidence is legally sufficient, we must review all of 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 (1979); Jackson v. State, 17 S.W.3d 664 (Tex. Crim. App. 2000).

To determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak that the verdict is clearly wrong and manifestly unjust or whether the evidence contrary to the verdict is so strong that the beyond-a-reasonable-doubt burden of proof could not have been met. Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004); Ross v. State, 133 S.W.3d 618 (Tex. Crim. App. 2004); Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002); Cain v. State, 958 S.W.2d 404 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996).  We review the fact- finder=s weighing of the evidence and cannot substitute our judgment for that of the fact-finder.  Cain, 958 S.W.2d at 407; Clewis, 922 S.W.2d at 135.  Due deference must be given to the fact- finder=s determination, particularly concerning the weight and credibility of the evidence.  Johnson v. State, 23 S.W.3d 1 (Tex. Crim. App. 2000).

To prove appellant guilty of the offense of evidence tampering, the State was required to establish beyond a reasonable doubt that appellant, knowing that an investigation was in progress, made, presented, or used any record, document, or thing with knowledge of its falsity and with the intent to affect the course or outcome of the investigation.  Tex. Pen. Code Ann. ' 37.09(a)(2) (Vernon 2003).

Appellant asserts that the State did not prove that he knew the affidavits were false.  We disagree.  Direct evidence of culpability is not necessary to support a conviction; knowledge may be inferred from the acts and circumstances surrounding a crime.  Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991); Mares v. State, 903 S.W.2d 419, 421 (Tex. App.CEastland 1995, pet. ref=d). 

The acts and circumstances surrounding this case could lead a rational jury to infer that appellant knew the affidavits were false.  The foundation of the State=s case was a recorded phone conversation between appellant and his sister during which appellant gave his sister specific instructions to convince Maurice and Ollie to sign affidavits pertaining to the assault.  The jury heard appellant make the following statements:

I need to write down what they need to say....Maurice has to say...we weren=t arguing ...they need to say...they saw Rachel fall over the chair...they saw me pick her up.... The main thing is they did not see me hit or assault her....Give it to Maurice...he can give it to his dad....See if we can=t get those charges dismissed since we got two witnesses willing to testify that I didn=t hit or assault Rachel....It would be good if someone came over today....Get in contact with Maurice and that lawyer....Bring a pen and piece of paper with you or whoever comes so that they can write down what I say.

These statements were not the only evidence of appellant=s culpability.  In addition, there was testimony presented during trial that could have led a rational jury to infer that appellant knew the affidavits were false.  The jury heard testimony from Officer Scott Ferrell, the officer who first responded to Thomas=s domestic disturbance call.  Officer Ferrell testified that Maurice and Ollie were not able to provide any information that was valuable to the investigation.  From this testimony, a rational jury could infer that Maurice and Ollie did not witness the incident; that appellant knew this; and that, therefore, appellant knew that he was obtaining Aeyewitness@ affidavits from two people who were not even present.

The jury also heard testimony from Thomas who testified that appellant hit her.  Evidence that appellant assaulted Thomas supports the State=s theory because, if the jury believed that Thomas was assaulted and that appellant was the perpetrator, then, by definition, the affidavits were false and appellant would have obviously known this.   

The jury further heard testimony from Sergeant Tauer, the detective who investigated the assault and appellant=s subsequent efforts to tamper with the evidence.  Sergeant Tauer testified that, on a recorded phone message from Thomas, he had heard appellant directing Thomas what to say.  The jury also heard Thomas testify that appellant told her to tell the authorities that he did not assault her.  From this testimony, a rational jury could infer that appellant was pressuring Thomas to change her story.  Although not directly related to the affidavits at issue in this case, such an inference could lead the jury to conclude that pressuring Thomas was part of a pattern of deceptive conduct on the part of appellant, conduct that included convincing Maurice and Ollie to sign the false affidavits.

Viewed in the light most favorable to the verdict, we conclude that the record contains legally sufficient evidence that appellant knew the affidavits were false.

We likewise conclude that the record contains factually sufficient evidence that appellant knew the affidavits were false.  Viewing the evidence in a neutral light, it is not so weak that the verdict is clearly wrong and manifestly unjust, and the contrary evidence is not so strong that the State=s burden of proof could not be met. 

Because appellant did not call any witnesses to testify, the only contrary evidence in the record comes from appellant=s cross-examination of the State=s witnesses, which we do not find to be so strong as to prevent the State from meeting its burden.  Appellant did nothing more than attack the credibility of the State=s witnesses and the weight of the State=s evidence.  Evaluating the credibility of witnesses and the weight of the evidence is the role of the fact-finder, and there is nothing in the record to suggest that the jury=s evaluation was irrational.  Appellant=s two points of error are overruled

Conclusion

The evidence is legally and factually sufficient to support appellant=s conviction.  The judgment of the trial court is affirmed.

RICK STRANGE

JUSTICE

December 15, 2005

Do not publish.  See Tex. R. App. P. 47.2(b).

Panel consists of:  Wright, C.J., and

McCall, J., and Strange, J.