Sonny Dale Moore v. State

• Court: Court of Appeals of Texas
• Decided: October 21, 2004
• Docket: 08-03-00115-CR
• Status: Published

Opinion

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

SONNY DALE MOORE,                                    )

                                                                              )               No.  08-03-00115-CR

Appellant,                          )

                                                                              )                    Appeal from the

v.                                                                           )

                                                                              )                  83rd District Court

THE STATE OF TEXAS,                                     )

                                                                              )              of Pecos County, Texas

Appellee.                           )

                                                                              )               (TC# P-2567-83-CR)

                                                                              )

O P I N I O N

This is an appeal from a conviction for the offense of capital murder.  The court assessed punishment at life imprisonment in the Institutional Division of the Texas Department of Criminal Justice.  We reverse the judgment of the trial court.

I.  SUMMARY OF THE EVIDENCE

On December 26, 2001, Appellant and his codefendant, Veronica Qualley, entered Charlie=s Pawn Shop on the

Andrews Highway

in Odessa, Texas.  They had a small child with them.  The manager of the shop, Rhonda Dolloff, testified that the child=s eyes were blackened, and it appeared that she had a broken nose.  She appeared swollen and bruised, and there was bruising between her fingers.  It seemed to Dolloff that the child could not turn her head and she had difficulty raising her arm.  The child had a drugged and spacey look to her face.  After about forty minutes, as the three left the shop it appeared that the child=s legs would not work.

On December 28, 2001, the couple returned to the pawn shop with the child.  Diana Salas, an employee, saw bruising on the child=s face, hands, and side.  The child=s eyes were blackened, she had bruising on her stomach and she acted in a sluggish manner.  Rhonda Dolloff was also in the store.  Appellant was trying to sell some firearms.  Dolloff asked Qualley about the child=s injuries and Qualley stated that the child had fallen out of a window.  When the three left the store, the employees called police.  

Cliff Harris, the Sheriff of Pecos County, Texas, testified that on December 28, 2001, he received a call from a pawn shop owner in Odessa regarding an injured child.  He sent a deputy to look for a pickup truck coming from Odessa.  Deputy Jerry Kresta stated that he was told to look for a 1986 Ford pickup.  He watched for the vehicle for approximately three hours to no avail.

On January 3, 2002, Adam Marquez was working the dispatch desk at the Fort Stockton Police Department.  He received an emergency 911 call from Sonny Dale Moore at 10:11 p.m.  Appellant stated that a child had fallen out of bed and was unconscious.  Mike Laurence, an EMT, heard the call and responded to the scene.  Upon arrival, he found that the child had no pulse and her lips were blue. 

Ilan Wilde testified that he is a physician=s assistant at Pecos County Memorial Hospital.  On January 3, 2002, at 10:30 p.m., an ambulance arrived carrying a child.  She was not breathing and she had no heartbeat.  She had multiple bruises around her eyes, legs, and knees.  Appellant and Qualley told him that the child had fallen out of the bed the night before, had fallen down some stairs, and had fallen over a toy box.

Toni Proper, a respiratory therapist, was also working at the hospital when the child arrived.  The child=s name was Whisper Lynn.  Proper was in charge of managing the child=s airway.  The witness noticed recent bruising on the child=s forehead and other bruising on her body.

Oscar Gallegos, a sheriff=s deputy with the Pecos County Sheriff=s Office, stated that he prepared a diagram of Appellant=s residence where the child died.  He took a measurement that indicated the child=s bed was nineteen inches above a carpeted floor. 

Dr. Jerry Spencer testified that he was a pathologist in Lubbock County, Texas.  He performed an autopsy on a child named Whisper Lynn on January 4, 2002.  He described major injuries to her head, mouth, abdomen, and arm.  The head injury was the fatal injury.  The injuries were both recent and older healing injuries.  Her lower front teeth had been knocked out and had healed over.  This injury occurred about three or four weeks before her death.  Her arm was recently broken and her elbow was dislocated.  The abdominal injuries were the result of blunt trauma from a fist or from a kick.  It was one of the worst such cases he had ever seen. 

Billy McGovern testified that he was Appellant=s and Veronica Qualley=s landlord.  He had become friendly with Appellant and he lived nearby.  He knew the victim and he noticed on one occasion that the child had a black eye.  On another occasion, he saw the victim had a busted lip.  He also observed that the child=s hair had disappeared.  Upon inquiry, he was told that the child was pulling her hair out.  He warned Appellant and Qualley that he would inform Child Protective Services if he saw any more bruises on the child. 

Tulon Murphy, a deputy sheriff with the Pecos County Sheriff=s Office, testified that he took a confession from Appellant wherein he admitted killing the child.  Appellant stated that he lost his temper when he found the child out of her bed.  He stated that he frequently lost his temper in that manner.  He grabbed her by both arms and threw her on the bed real hard.  She bounced off of the bed and he grabbed her by the throat.  He then grabbed her by the neck and threw her back on the bed very hard.  He was still very angry.  He noticed that the child was having a hard time breathing.  Appellant stated that Qualley had nothing to do with the killing.

Appellant testified in his own behalf.  He stated that he did not kill the child and implicated Qualley, as she was the only other individual in the home at the time of the death.

Both Appellant and his codefendant, Veronica Qualley, were convicted of capital murder.  Qualley was convicted under a theory of omission, by failing to protect the child from Appellant.  Qualley was also convicted of injury to a child by omission. 

II.  DISCUSSION

In Issue No. One, Appellant maintains that the court erred in failing to grant his motion to sever the trial of Appellant and his codefendant, Veronica Qualley.  Prior to trial, Appellant filed a motion to sever his trial from codefendant Qualley.  Appellant alleged that Qualley had an admissible prior conviction and that severance should occur as a matter of right.  Appellant also alleged that a joint trial would prejudice Appellant.  On October 7, 2002, Appellant filed another motion to sever.  He again alleged that his codefendant had a prior admissible conviction.  Appellant alleged among other things, that a joint trial would be prejudicial because he and Qualley had antagonistic, or mutually exclusive defenses.  Specifically, Appellant alleged that her defense would be that she did not know what happened and did not see the events leading up to the death of the child; while Appellant was prepared to testify that he did not kill or injure the child and his codefendant was the only other person present.

During the course of the trial, Qualley=s counsel joined the State with regard to objecting to testimony that Appellant was trying to elicit.  Furthermore, Qualley=s counsel joined with Appellant=s counsel on several occasions in requesting a severance during the trial.

Article 36.09 of the Texas Code of Criminal Procedure states:

Two or more defendants who are jointly or separately indicted . . . for the same offense . . . may be, in the discretion of the court, tried jointly or separately as to one or more defendants . . . and provided further, that in cases in which, upon timely motion to sever, and evidence introduced thereon, it is made known to the court that there is a previous admissible conviction against one defendant or that a joint trial would be prejudicial to any defendant, the court shall order a severance as to the defendant whose joint trial would prejudice the other defendant or defendants.

See Tex. Code Crim. Proc. Ann. art. 36.09 (Vernon 1981).

Article 36.09 mandates severance where a prior criminal conviction of one codefendant is admissible or where a joint trial would, as a matter of law, prejudice a codefendant; otherwise, the granting of a severance is within the sound discretion of the trial court.  Silva v. State, 933 S.W.2d 715, 718-19 (Tex.App.--San Antonio 1996, no pet.).  The denial of a motion to sever will constitute an abuse of discretion only when the movant satisfies the heavy burden of showing Aclear prejudice.@  King v. State, 17 S.W.3d 7, 16 (Tex.App.--Houston [14th Dist.] 2000, pet. ref=d); Louis v. State, 825 S.W.2d 752, 757 (Tex.App.--Houston [14th Dist.] 1992, pet. ref=d).

When the defendant has filed a pretrial motion for severance based on prejudice that the court denies, the trial court has a continuing duty under the Federal Constitution to order a severance sua sponte if sufficient prejudice becomes known during the course of the trial.  Aguilar v. State, 26 S.W.3d 901, 909 (Tex.Crim.App. 2000).  Different degrees of culpability of codefendants does not warrant severance.  See Morales v. State, 466 S.W.2d 293, 296 (Tex.Crim.App. 1971).  In order to show clear prejudice, it must be shown that the respective defenses of the parties are mutually exclusive to the extent that the jury must believe the core of one defense and must necessarily disbelieve the core of the other.  Aguilar v. State, 39 S.W.3d 700, 702 (Tex.App.--Corpus Christi 2001, pet. ref=d).

While it appeared at trial that Qualley had a prior conviction for recklessly causing injury to a child under fourteen years of age, this conviction was not admitted at trial.  Therefore, Appellant has failed to demonstrate harm.  See Rivello v. State, 476 S.W.2d 299, 300 (Tex.Crim.App. 1972).

Regarding whether or not the defenses were mutually antagonistic, we find that the defenses were mutually antagonistic.  If the jury were to believe Appellant=s assertions at trial, then Qualley committed the offense.  This would be antagonistic to her defense that she did not commit the offense and did not fail to protect the child from Appellant.  Accordingly, we find that the court abused its discretion in failing to sever the trials in that there was evidence before it of clear prejudice to Appellant=s defense.  See Silva, 933 S.W.2d at 719.  Issue No. One is sustained.

In light of the foregoing discussion, we find it unnecessary to respond to Appellant=s remaining issues on appeal.  We reverse the judgment of the trial court and remand for further proceedings not inconsistent with this opinion.

October 21, 2004

RICHARD BARAJAS, Chief Justice

Before Panel No. 4

Barajas, C.J., Larsen and McClure, JJ.

(Do Not Publish)