David Glen Mays v. State ( 2014 )

Opinion issued April 17, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00296-CR
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DAVID GLEN MAYS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 163rd District Court
Orange County, Texas
Trial Court Case No. B-120056-R
MEMORANDUM OPINION
Appellant David Glen Mays was indicted for two counts of attempted capital
murder. A jury found him guilty of both counts and assessed punishment at life in
prison. Mays appeals, contending that (1) the evidence was insufficient to support
his conviction and (2) the State did not present sufficient evidence to corroborate
an accomplice’s testimony. We affirm.
Background
In May 2011, Mays was living with his girlfriend, Tiffany Thompkins, in a
mobile home. Based on information that Mays was selling drugs from the mobile
home, City of Orange Police Department officers obtained a no-knock search
warrant.
On May 29, 2011, five officers executed the warrant. Sergeant R. Estrello
testified that he and Sergeant R. Ashworth, III, were on the front porch by the door
because they were assigned to enter the residence first, and the other officers were
lined up behind them. Although the officers had a no-knock warrant, Ashworth
knocked on the door because they could not open the locked burglar bars on the
front door.
Estrello testified that when Ashworth knocked, a male voice responded from
inside the mobile home, “Who is it?” Ashworth yelled, “It’s the police. Open up.”
Estrello testified that no one opened the door and the officers heard someone
running around in the mobile home. Ashworth testified that he announced the
search warrant a second time and heard someone running around inside and saw
the figure of a person, through a curtain, running to the right of the front door,
toward the northern side of the mobile home.
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Constable R. Straus from the Orange County Sherriff’s Department testified
that at that point—when the officers heard someone running inside the mobile
home—he observed a female looking out of the window that was to the left of the
front door—on the southern side of the mobile home. Estrello and Ashworth
started ramming the locked burglar bars, attempting to make a forced entry, and the
officers continuously yelled, “Search warrant. Police. Search warrant.” Estrello,
Ashworth, and Straus testified that they heard the male voice—coming from the
northern side of the mobile home—ask again, “Who is it?” Officer J. Laughlin of
the City of Orange Police Department, who also assisted in executing the search
warrant, likewise testified that he twice heard the male voice coming from the
northern side of the mobile home.
While the other officers were seeking to gain entry though the front door,
Straus used his flashlight to break the window above the kitchen sink where he had
seen the woman standing. After Straus broke the window, the officers heard a
gunshot. Ashworth testified that the gunshot came from the same area in which
they had heard the male voice—the northern part of the mobile home. Estrello and
Ashworth testified that after the gunshot, they heard someone running towards the
southern end of the mobile home. Straus testified that once he gained entry, he
saw Mays running to the bathroom in the southern end of the mobile home.
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Straus found Thompkins and Mays in the bathroom. Thompkins was “kind
of hunkered down on her knees with her hands up towards her head” and Mays
was leaning over the bathtub. Straus testified that Mays was irate, verbally
abusive, and resisted arrest, even after he was handcuffed. Mays and Thompkins
were the only people in the mobile home.
After handcuffing Mays and Thompkins and placing them in patrol cars, the
officers searched the mobile home. Lieutenant K. Reneau of the Pinehurst Police
Department testified that he found a firearm—a .40 caliber Glock, loaded with a
live round in the chamber—in the clothes hamper in the bathroom where Mays and
Thompkins were found. Reneau also testified that there was a .40 caliber shell
casing in the hallway, and Laughlin testified that the bullet’s shell casing was
found on the floor to the right of the front door. Identification technician Stephen
Ward was called to the scene to process the gunshot evidence and testified that
there was a bullet hole in the sheetrock immediately to the right of the front door,
which was the northern side of the door.
Both Mays’s and Thompkins’s hands were swabbed for gunshot residue.
Russell Thomas White, a chemist with the Department of Public Safety Crime
Laboratory Service, testified that both samples tested positive for gunshot primer
residue particles and that he could not determine who shot the firearm from the
residue samples. White testified that primer residue can reach the hands of anyone
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near the shooter and that a person can get gunshot primer residue on their hands
from being near a weapon when it was fired or from touching the weapon after it
was fired.
The indictment charged Mays with attempted capital murder of Ashworth
and Estrello. Thompkins pleaded guilty to felony possession of a controlled
substance, but she was not indicted for attempted capital murder. In exchange for
her testimony, Thompkins received probation.
Thompkins testified at trial that when the officers executed the warrant she
was cooking fried chicken in the kitchen while Mays was cutting and bagging
crack cocaine in the living room. Thompkins testified that Mays was acting
nervous and told her that somebody had told him that the “laws was riding.”
Thompkins testified that when Straus broke the window, she ran to the bathroom,
which was in the southern end of the mobile home, and shut the door because she
was scared.
Thompkins testified that she did not shoot the firearm and was already in the
bathroom when she heard the gunshot. Thompkins testified that after she heard the
gunshot, Mays entered the bathroom, dropped a firearm on the floor in front of
Thompkins, and attempted to dispose of the cocaine in the bathtub. Thompkins
picked up the firearm, placed it in the clothes hamper, and then hid behind the
door. Thompkins testified that although she saw Mays holding the firearm when
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he went in the bathroom to hide, she did not see him shoot the firearm. She
testified that at the time, she thought that the police, not Mays, fired the shot.
Thompkins admitted that she lied when she told the officers at the scene that she
did not know anything about the firearm.
Discussion
In two issues, Mays (1) contends that he was wrongly convicted on the
uncorroborated testimony of his accomplice, Thompkins, and (2) challenges the
sufficiency of the evidence to support his conviction.
Uncorroborated Accomplice Witness Testimony
A. Applicable Law and Standard of Review
An accomplice is a person who participates in an offense, before, during, or
after the commission of a crime and acts with the required culpable mental state.
Paredes v. State, 129 S.W.3d 530, 536 (Tex. Crim. App. 2004); Herron v. State, 86
S.W.3d 621, 631 (Tex. Crim. App. 2002) (en banc). To participate in an offense,
the witness must affirmatively act to promote the commission of the offense.
Paredes, 129 S.W.3d at 536.
A witness is not an accomplice simply because he knew of the offense and
did not disclose it. Blake v. State, 971 S.W.2d 451, 454 (Tex. Crim. App. 1998)
(en banc); Kunkle v. State, 771 S.W.2d 435, 439 (Tex. Crim. App. 1986). And
evidence showing that a witness was present during the commission of the crime
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and participated in concealing the crime is not necessarily sufficient to raise the
issue of accomplice-witness status. Smith v. State, 721 S.W.2d 844, 851 (Tex.
Crim. App. 1986) (“Since there was no evidence adduced at trial to show anything
other than Thompson’s presence at the scene of the offense and his aid in carrying
the body to appellant’s truck, we hold that the trial court did not err in refusing to
instruct the jury that he was an accomplice witness.”); see also Gamez v. State, 737
S.W.2d 315, 322 (Tex. Crim. App. 1987) (“If a State’s witness has no complicity
in the offense for which an accused is on trial, his or her testimony is not that of an
accomplice witness whatever may have been his complicity with the accused in the
commission of other offenses.” (citations omitted)). The critical question is
whether there is sufficient evidence in the record to support a charge for the same
offense against the witness alleged to be an accomplice. Blake, 971 S.W.2d at 455.
Whether the person is actually charged and prosecuted for his or her participation
is not relevant; what matters is the evidence in the record. Id.
B. Analysis
In his second issue, Mays contends that Thompkins was an accomplice and
that he was wrongly convicted on her uncorroborated testimony because it was the
only evidence linking him to the crime.
To be an accomplice, a person must affirmatively promote the commission
of the offense. Paredes, 129 S.W.3d at 536. The evidence reflects that Thompkins
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was first in the kitchen and had run to the bathroom by the time the shot was fired.
No evidence places Thompkins on the northern side of the mobile home from
which the testimony of both the on-scene officers and forensic investigator
demonstrated the shot was fired. Likewise, no evidence suggests Thompkins
encouraged Mays to fire the weapon.
Mays argues that Thompkins became an accomplice by placing the firearm
in the clothes hamper and falsely denying knowing about the firearm. But a
witness does not become an accomplice by concealing evidence after a crime. See
Druery v. State, 225 S.W.3d 491, 500 (Tex. Crim. App. 2007) (holding that
witness who merely assisted after the fact in the disposal of a body and firearm
after a murder was not an accomplice to murder); Roys v. State, 416 S.W.3d 229,
234 (Tex. App.—Amarillo 2013, pet. ref’d) (holding that assisting murderer in
disposing of murder weapon after murder does not make one an accomplice);
Roden v. State, 338 S.W.3d 626, 630 (Tex. App.—Fort Worth 2011, pet. ref’d)
(holding that accomplice-witness instruction not required when evidence showed
that witness was inside appellant’s house with stolen property but also showed that
witness did not enter burglarized house and steal property); Navarro v. State, 863
S.W.2d 191, 202 (Tex. App.—Austin 1993, pet. ref’d) (holding that witness was
not accomplice even though he was present at the time of the murder, he failed to
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disclose the crime, and hid the weapon after the murder). Accordingly, we hold
that Thompkins was not an accomplice.1
We overrule Mays’s second issue.
Sufficiency of the Evidence
A. Standard of Review
When evaluating the legal sufficiency of the evidence, we view 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 offense beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005) (en banc). The
standard is the same for both direct and circumstantial evidence cases. King v.
State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995) (en banc).
We do not resolve any conflict of fact, weigh any evidence, or evaluate the
credibility of any witnesses, as this is the function of the trier of fact. See
Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). We therefore
1
The trial court did not submit an instruction to the jury on Thompkins’s status as
an accomplice witness as a matter of law or as a question of fact. Mays did not
request an accomplice instruction and did not object to the charge on that basis.
To the extent Mays is complaining about the trial court failing to submit an
instruction on accomplices to the jury, we conclude that the trial court did not err
because we hold Thompkins was not an accomplice. See Cocke v. State, 201
S.W.3d 744, 747–48 (Tex. Crim. App. 2006) (stating that the trial court is not
required to give the jury an accomplice witness instruction when the evidence is
clear that the witness is not an accomplice either as a matter of law or as a matter
of fact).
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resolve any inconsistencies in the evidence in favor of the verdict, Matson v. State,
819 S.W.2d 839, 843 (Tex. Crim. App. 1991) (en banc), and “defer to the jury’s
credibility and weight determinations.” Marshall v. State, 210 S.W.3d 618, 625
(Tex. Crim. App. 2006).
B. Applicable Law
Under section 19.02(b)(1), a person commits murder if he intentionally or
knowingly causes the death of another person or intends to cause serious bodily
injury and commits an act clearly dangerous to human life that causes the death of
another. TEX. PENAL CODE ANN. § 19.02(b)(1), (2) (West 2011); Temple v. State,
390 S.W.3d 341, 359 (Tex. Crim. App. 2013). In the absence of other evidence,
the jury may presume the intent to kill from the use of a deadly weapon. Arnold v.
State, 234 S.W.3d 664, 672 (Tex. App.—Houston [14th Dist.] 2007, no pet.); see
also Adanandus v. State, 866 S.W.2d 210, 215 (Tex. Crim. App. 1993) (quoting
Godsey v. State, 719 S.W.2d 578, 581 (Tex. Crim. App. 1986) (en banc) (holding
that when “a deadly weapon is used in a deadly manner, the inference is almost
conclusive that [the appellant] intended to kill . . .”)). A firearm, such as a
handgun, is a deadly weapon. TEX. PENAL CODE ANN. § 1.07(a)(17)(A) (West
2011).
A person commits capital murder when he commits murder under section
19.02(b)(1) and the murder is committed upon “a peace officer . . . who is acting in
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the lawful discharge of an official duty and who the person knows is a peace
officer.” TEX. PENAL CODE ANN. § 19.03(a)(1) (West Supp. 2013). A police
officer is a peace officer. TEX. CODE CRIM. PROC. ANN. ART. § 2.12(3) (West Supp.
2013). A person commits the offense of attempted capital murder if, with specific
intent to commit capital murder, the person “does an act amounting to more than
mere preparation that tends but fails to effect the commission of the offense
intended.” TEX. PENAL CODE ANN. § 15.01(a) (West 2011).
C. Analysis
We conclude the evidence supports Mays’s conviction. It is undisputed that
only two people—Mays and Thompkins—were in the mobile home when the shot
was fired. Officers Estrello, Ashworth, Straus, and Laughlin, who helped execute
the warrant, each testified that immediately before the gunshot, they heard a male
say, “Who is it?” They each also testified that the voice and the gunshot came
from the northern side of the mobile home. Laughlin, who was present when the
shell casing was found, and Ward, who later investigated the scene, also testified,
based on their investigation, that the gunshot came from the northern side of the
mobile home.
Straus testified that he saw Thompkins in the kitchen, on the southern side of
the mobile home, just before the shot was fired, and that he saw Mays running
from the northern side of the mobile home towards the southern end just after. The
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only evidence of Thompkins’s whereabouts placed her on the opposite side of the
mobile home just before the gunshot. She testified that she did not shoot the
firearm and that she was in the bathroom when the shot was fired. Thompkins also
testified that after she heard the gunshot, Mays ran into the bathroom holding the
firearm.
Mays contends the evidence was insufficient to prove he committed the
attempted capital murder because none of the officers saw Mays shoot the firearm,
and there was legally insufficient evidence to show that Mays, not Thompkins,
who admitted lying about the firearm, was the shooter. But eyewitness
identification is not required for a conviction, Greene v. State, 124 S.W.3d 789,
792 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (eyewitness identification is
not necessary to identify perpetrator), and Thompkins’s credibility was a factor for
the jury to consider in weighing the evidence. See Brooks v. State, 323 S.W.3d
893, 899 (Tex. Crim. App. 2010) (stating that appellate courts must defer to the
jury’s determinations of witnesses’ credibility); Lancon v. State, 253 S.W.3d 699,
705 (Tex. Crim. App. 2008) (stating “[t]he jury is in the best position to judge the
credibility of a witness because it is present to hear the testimony, as opposed to an
appellate court who relies on the cold record”); Lowe v. State, No. 14-10-01049-
CR, 2011 WL 7984631, at *2 (Tex. App.—Houston [14th Dist.] Feb. 16, 2011,
pet. ref’d) (mem. op., not designated for publication) (holding that appellant’s
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argument that evidence was insufficient to support conviction because witness was
not credible because witness had lied to police was not persuasive).
Viewing the evidence in the light most favorable to the verdict, we conclude
that a rational juror could have found beyond a reasonable doubt that Mays
committed the offense of attempted capital murder. See Garza v. State, 398
S.W.3d 738, 745 (Tex. App.—Corpus Christi 2010, pet. ref’d) (holding that
although no one actually saw appellant pull trigger of firearm and shoot victim,
evidence that immediately after victim was shot, appellant was only person
standing nearby holding firearm and appellant left the scene was sufficient to
support murder conviction); Grayson v. State, No. 14-04-00226-CR, 2005 WL
1669537, at *2–3 (Tex. App.—Houston [14th Dist.] July 16, 2005, pet. ref’d)
(mem. op., not designated for publication) (holding evidence that appellant had
weapon and witnesses heard shots fired from a place at which appellant had been
standing, even though no one saw appellant actually fire the weapon, was
sufficient to support murder conviction).
Accordingly, we hold the evidence was legally sufficient to support the
judgment and overrule Mays’s first issue.
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Conclusion
We affirm the trial court’s judgment.
Rebeca Huddle
Justice
Panel consists of Chief Justice Radack and Justices Massengale and Huddle.
Do Not Publish. TEX. R. APP. P. 47.2(b).
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