COURT OF
APPEALS
SECOND
DISTRICT OF TEXAS
FORT WORTH
NO. 2-02-500-CR
PATRICK TYSONNE WARE APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM THE 89TH DISTRICT COURT
OF WICHITA COUNTY
OPINION
Appellant
Patrick Tysonne Ware appeals his conviction of capital murder. We affirm.
Factual and Procedural Background
At
approximately 6:00 a.m. on June 10, 2000, Eddie Lee Barry was shot and killed in
his home by a group of assailants. According to the State, Appellant went with
Devin Pope, Derick Smith, and Anthony King to Barry’s house with the intent to
rob him. The State alleged at trial that Pope drove to the Barry home where
Appellant and King jumped over a fence, burst into the home, and shot and killed
Barry. Appellant was convicted in December 2002 of capital murder. The trial
judge sentenced Appellant to life imprisonment and imposed a fine for court
costs in the amount of $9,161.85.
On
January 10, 2003, Appellant filed his second motion for new trial, claiming that
material evidence favorable to his case was discovered after the trial. This
evidence was a written statement from Smith asserting that Appellant was not a
participant in Barry’s murder. The record reflects that Smith entered a plea
of guilty to a lesser charge for his participation in the murder.
When
Appellant’s counsel sought Smith’s testimony at the hearing on the motion
for new trial, Smith invoked his Fifth Amendment privilege under the advice of
his attorney. Appellant argued that Smith could be compelled to testify because
he pled guilty to the offense and waived his rights to appeal. After reviewing
briefs on the issue from Appellant, Smith, and the State, the trial court ruled
that Smith could not be compelled to testify after asserting his Fifth Amendment
right. Smith’s statement was not admitted into evidence, and Appellant’s
second motion for new trial was denied. Appellant raises two issues on appeal.
Factual Sufficiency
Appellant
contends in his first issue that the evidence is factually insufficient to
support his conviction. In reviewing the factual sufficiency of the evidence to
support a conviction, we are to view all the evidence in a neutral light,
favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App.
2000); Clewis v. State, 922 S.W.2d 126, 129, 134 (Tex. Crim. App. 1996).
Evidence is factually insufficient if it is so weak as to be clearly wrong and
manifestly unjust or the adverse finding is against the great weight and
preponderance of the available evidence. Johnson, 23 S.W.3d at 11.
Therefore, we must determine 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 verdict, or the proof of guilt,
although adequate if taken alone, is greatly outweighed by contrary proof. Id.
In performing this review, we are to give due deference to the fact finder’s
determinations. Id. at 8-9; Clewis, 922 S.W.2d at 136. We may not
substitute our judgment for that of the fact finder’s. Johnson, 23
S.W.3d at 12. Consequently, we may find the evidence factually insufficient only
where necessary to prevent manifest injustice. Id. at 9, 12; Cain v.
State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).
To
make a determination of factual insufficiency, a complete and detailed
examination of all the relevant evidence is required. Johnson, 23 S.W.3d
at 12. A proper factual sufficiency review must include a discussion of the most
important and relevant evidence that supports the appellant’s complaint on
appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). We
therefore now turn to a review, in addition to the evidence recited above, of
the most important and relevant evidence supporting Appellant’s complaint of
factual insufficiency of the evidence supporting his capital murder conviction.
Appellant
contends that the evidence is factually insufficient because the central witness
in this case, Pope, was also implicated in the murder and has every reason to
lie. Appellant points out that Pope received a reduced sentence in exchange for
his testimony at Appellant’s trial and that Pope has a closer friendship with
the two other men involved in the murder, Smith and King, than he does with
Appellant.
The
State’s first witness at Appellant’s trial was Pope. According to Pope, he
went with Smith and King to JP’s Lounge, a club in Wichita Falls, to buy some
marijuana at approximately 3:30 a.m. on June 10, 2000. The group of men ran into
Appellant at JP’s Lounge and decided they would go find some marijuana. The
men drove around for a while and decided to rob Barry. Pope stated that Smith
was armed with a gun and that he also saw Appellant with a gun. Pope drove the
men to Barry’s house where Appellant, wearing a red pullover with a hood, and
King got out of the car and jumped Barry’s fence. Appellant then kicked in
Barry’s door and entered the house. Pope stated that he heard gunshots just
before Appellant and King ran from the house to the car. Pope testified that
Appellant had a cut on his hand and that Appellant said he dropped his watch
when he jumped over Barry’s fence.
Pope
drove to the home of his girlfriend, Ramona Houston, and stashed the guns in her
closet. After dropping Appellant off at a friend’s house, Pope called LaToya
Smith (“LaToya”) and asked her to come pick him up. LaToya took Pope back to
Houston’s house to get the guns and then drove him out to the country, where
he disposed of the guns. Houston called Pope the next day and told him that the
police had spoken to her. Pope testified that he got scared and left for
Oklahoma City with LaToya.
Pope
was eventually arrested and led the police to the location where the guns were
hidden. He was sentenced to fifteen years’ imprisonment for aggravated robbery
in exchange for his testimony and cooperation with the authorities. On cross
examination, Pope admitted that he was only a casual acquaintance of
Appellant’s, while King and Smith are his friends. He also testified that he
was not completely truthful with the police in his early statement about the
crime and that he was originally charged with murder.
The
record reflects sufficient independent corroboration of Pope’s testimony to
establish that the evidence in this case is factually sufficient to support
Appellant’s conviction. The test for determining the sufficiency of the
corroboration is to eliminate the accomplice testimony from consideration and
then determine if there is any other incriminating evidence which "tends to
connect" the defendant with the crime. Hernandez v. State, 939
S.W.2d 173, 176 (Tex. Crim. App. 1997); Reed v. State, 744 S.W.2d 112,
125 (Tex. Crim. App. 1988).
Officer
Buddy Wayne Alexander, a police officer for the City of Wichita Falls, testified
that a watch was recovered at the crime scene. At trial, Appellant admitted that
the watch found at the crime scene belongs to him. Deseree and LaTonya Mollice
testified that Appellant admitted to the murder during a conversation with them
on a speaker phone. Furthermore, Pope’s testimony was corroborated by several
witnesses that were sleeping at Barry’s home on the night of the murder.
On
the night of the killing, several minors spent the night at Barry’s house,
most of whom slept on the living room floor and awoke when the shooting ensued.
Steven DeWayne Hardeman, the best friend of Barry’s son, testified that he was
sleeping on the living room floor when a man wearing a red pullover sweater with
a hood and carrying a gun came in the front door. Hardeman saw the man holding a
gun and wrestling with Barry just before he heard gunshots and put his head
under the covers in fear. Dashon Lorenzo Fleeks, Barry’s nephew, was also at
Barry’s house when the killing occurred. Fleeks testified that one of the men
wore a red sweater. Kortlan Raddan McGee testified that as he was sleeping on
Barry’s living room floor, he was awakened by gunshots and saw a man wearing a
“red top.” Tony DeWayne Pendleton testified that one of the two people who
came into the house “had on all red . . . like a sweat suit thing.”
Houston,
Pope’s girlfriend at the time of the incident, also testified at trial.
According to Houston, Pope came to her house three times during the early
morning hours of June 10th and appeared nervous each time. The following day,
she found a red sweatshirt and a blue Georgetown jersey in her trash can.
Suspecting the clothes had something to do with Barry’s murder, Houston called
the police department. DNA evidence revealed the presence, with mathematical
certainty, of blood belonging to both the victim and Appellant on the red
sweatshirt. Therefore, regardless of whether Pope had reason to lie, our review
of the record reveals sufficient evidence apart from Pope’s testimony that
tends to connect Appellant with the murder.
Having
carefully examined the evidence in a neutral light, including the evidence
relevant to and supportive of Appellant’s sufficiency of the evidence
arguments on appeal, we hold that the proof of Appellant's guilt is not so weak
as to undermine confidence in the jury's verdict. Further, we hold that the
evidence of Appellant's guilt is not outweighed by contrary proof and that his
conviction for capital murder is supported by factually sufficient evidence. We
overrule Appellant’s first issue.
Motion for New Trial
Appellant
argues in his second issue that the trial court erred in failing to grant his
second motion for new trial because Smith’s written statement asserting
Appellant’s innocence constitutes material evidence discovered after the
trial. The trial court has discretion to decide whether to grant a new trial
based upon newly discovered evidence, and its ruling will not be reversed absent
an abuse of discretion. Keeter v. State, 74 S.W.3d 31, 37 (Tex. Crim.
App. 2002). Likewise, the trial judge determines the credibility of the
witnesses and whether the new evidence is probably true. Id. Motions for
new trial based on newly discovered evidence traditionally lack favor with the
courts and are viewed with great caution. Drew v. State, 743 S.W.2d 207,
225-26 (Tex. Crim. App. 1987), cert. denied, 512 U.S. 1266 (1994). We do
not substitute our judgment for that of the trial court. Salazar v. State,
38 S.W.3d 141, 148 (Tex. Crim. App.), cert. denied, 534 U.S. 855 (2001).
Rather, we decide whether the trial court's decision was arbitrary or
unreasonable. Id. A trial court’s denial of a motion for new trial is
arbitrary or unreasonable if the record reflects 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 want 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. Keeter, 74 S.W.3d at 36-37; Moore
v. State, 882 S.W.2d 844, 849 (Tex. Crim. App. 1994), cert. denied,
513 U.S. 1114 (1995).
The
Texas Court of Criminal Appeals has recognized the right of the accused to have
compulsory process for obtaining witnesses as guaranteed by the Sixth Amendment
and incorporated in the due process clause of the Fourteenth Amendment. See
Coleman v. State, 966 S.W.2d 525, 527-28 (Tex. Crim. App. 1998) (recognizing
the defendant's right to compulsory process in order to obtain the attendance
and testimony of witnesses favorable to his defense) (op. on reh’g); Norman
v. State, 588 S.W.2d 340, 343 (Tex. Crim. App. [Panel Op.] 1979) (concluding
that the trial court committed constitutional error in failing to grant the
defendant's request for immunity for a State informant in order to compel the
informant's testimony in support of his defense), cert. denied, 446 U.S.
909 (1980). However, in a criminal prosecution, the accused’s right to
compulsory process under the Sixth Amendment does not override a witness’
Fifth Amendment privilege against self-incrimination. Bridge v. State,
726 S.W.2d 558, 567 (Tex. Crim. App. 1986); Suarez v. State, 31 S.W.3d
323, 329 (Tex. App.—San Antonio 2000, no pet.).
The
San Antonio Court of Appeals recognized this principle when it addressed an
issue very similar to the case at hand in Suarez v. State. 31 S.W.3d at
329. In that case, George Suarez and Trinidad Riojas were charged with burglary
of a habitation. Suarez wanted to call Riojas as a witness to establish that
Riojas acted alone in committing the burglary. Id. at 328. Suarez
contended that Riojas did not have the right to invoke his Fifth Amendment
privilege because there were no pending charges against him and he had already
pled guilty to the underlying offense. Id. at 329. The San Antonio Court
of Appeals held that because Riojas invoked the privilege on the advice of his
attorney, the trial court was not required to make any further determination
regarding whether Riojas validly asserted the privilege. Id. The court
additionally noted that even when a co-defendant has pled guilty and been
sentenced in connection with the offense, he may still properly invoke his Fifth
Amendment privilege against self-incrimination, because if his testimony
contradicts any previous judicial admissions, he could be subject to the charge
of perjury. Id.
Appellant
attempts to distinguish the facts of his case, arguing that Smith was not in
jeopardy of being charged with perjury. Appellant concedes that there is a
conflict between Smith’s statements to the police and the statements he made
in his affidavit, but contends that the inconsistencies do not constitute
perjury because Smith’s statements to the police were not under oath.
Appellant argues that because Smith was not in jeopardy of being charged with
perjury, he could be compelled to testify just like any other witness.
We
agree with the San Antonio Court of Appeals and other Texas courts that have
held that once a trial court learns that a witness has been advised by his
attorney to invoke his Fifth Amendment privilege, it is relieved of the
obligation to inquire further as to whether the assertion of the privilege is
valid. Ross v. State, 486 S.W.2d 327, 328 (Tex. Crim. App. 1972); Suarez,
31 S.W.3d at 329; Castillo v. State, 901 S.W.2d 550, 552-53 (Tex.
App.—El Paso 1995, pet. ref’d); Chennault v. State, 667 S.W.2d 299,
302 (Tex. App.—Dallas 1984, pet. ref’d).
Thus,
whether Smith would be subject to perjury charges or any other harm is not
relevant. Smith was advised by his attorney to invoke his Fifth Amendment
privilege. Therefore, we, like the trial court, do not address whether the
privilege was validly asserted and conclude that the trial court did not abuse
its discretion in denying Appellant’s second motion for new trial. We overrule
Appellant’s second issue.
Conclusion
Having
overruled both of Appellant’s issues, we affirm the trial court’s judgment.
DIXON
W. HOLMAN
JUSTICE
PANEL
F: LIVINGSTON, HOLMAN, and WALKER, JJ.
WALKER, J. concurs without
opinion.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: April 8, 2004