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Roderick Cooper v. State ( 2004 )


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  • Opinion issued October 28, 2004




                












      In The  

    Court of Appeals  

    For The  

    First District of Texas  

     

     

     

      NO. 01-03-00835-CR

    __________


    RODERICK KEITH COOPER, Appellant  


    V.


    THE STATE OF TEXAS, Appellee  

     

     

     

    On Appeal from the 184th District Court

    Harris County, Texas

    Trial Court Cause No. 887,345  

     

     

     

    MEMORANDUM OPINION  

              A jury found appellant, Roderick Keith Cooper, guilty of capital murder. Based on the jury’s affirmative answers to the three special issues, the trial court sentenced appellant to confinement for life.

              In six points of error, appellant contends that the trial court erred in denying appellant’s motion to suppress statements that he made to police officers while he was in custody; the trial court erred in sustaining the State’s objection to testimony from appellant’s brother that appellant’s accomplice had admitted to having shot the victims; and the evidence was legally and factually insufficient to support the jury’s verdict.

              We affirm.

    Factual and Procedural Background

              Houston Police Officer M. Batiste testified that, while he was on patrol sometime after 10:00 p.m. on September 4, 2001, he parked his patrol car in the parking lot of a Hollywood Video store on Fondren. As Batiste was completing some paperwork, a man came up to his patrol car and told him that he thought that something was wrong inside the video store. Batiste looked inside the store and saw that the lights were on, but he did not see any employees. He then radioed for additional Houston Police officers to assist him, and, after two more officers arrived, Batiste and the other officers entered the store. Once inside the store, the officers did not see anyone and, when they called out, received no response. The officers searched the store–with the exception of the manager’s office, which was locked–and found no one. Through their dispatcher, the officers contacted the store director, Vonda Morales, who brought an office key to the store. When the officers opened the office door, they found the bodies of two store employees, Angela Sanchez and Kola Osemwengie. Batiste then requested medical assistance and subsequently notified the Houston Police Department’s homicide division. Batiste further testified that he had known the complainants by name from having seen and spoken to them during his patrols of the store area, and he identified appellant as someone he had seen working at the store before September 4, 2001.  

              Harris County Assistant Medical Examiner Dr. Paul Shrode testified that, based on the findings of the autopsies performed by Dr. Delbert Van Dusen, both of the complainants had died from fatal gunshot wounds to the head. Sanchez had been shot once in the back of the head. Osemwengie had been shot twice: the first bullet had traveled through the palm and out the back of his right hand, and then into his forehead; the second bullet had entered his brain from the right side of his head. Dr. Shrode noted that the evidence of stippling on the palm of Osemwengie’s right hand was consistent with a weapon having been fired between six and 18 inches from his hand. When asked whether he thought it was possible that the person who had shot the complainants could have done so while standing in the doorway of the store office, Dr. Shrode testified that he did not think that it was a “reasonable option.”

              Houston Police Department Sergeant W. Wendel testified that he and his partner, former Houston Police Officer F. Hale, were assigned to investigate the shootings. In his investigation of the crime scene, Wendel found that a surveillance tape was missing from the VCR located in the manager’s office and that the complainants’ keys were missing. Wendel also noticed that the store cash registers showed that the last entry had occurred at about 11:00 p.m.

              Houston Police Officer E. Aguilera testified that, as a member of the crime scene unit, he investigated the scene of the shootings. No shell casings were recovered from inside the video store office, which Aguilera testified was consistent with someone having used a revolver to shoot the complainants. Houston Police Department Firearms Examiner K. Downs testified that she examined the three bullets and their fragments removed from the complainants, and she determined that the bullets had all been fired from the same weapon–either a .38 special or a .357 magnum revolver.

              Morales testified that appellant had worked at the store for about 90 days and had been fired on August 27, 2001, about one week before the shootings. She explained that the store was equipped with a video surveillance camera that recorded events inside the store onto a tape in a VCR in the manager’s office. Only a manager or a shift leader has a key to the manager’s office, and, during the time that appellant was employed at the store, he did not have such a key. The store office also contained a safe–used to keep the store’s “house money”–which was found to be empty at the time that the police officers discovered the complainants’ bodies. Morales noted that this safe could have been opened only by Osemwengie. Morales also testified that, sometime between 7:30 p.m and 8:00 p.m. on the night of the shootings, she had called the store and had told Osemwengie that she had left appellant’s final paycheck in the cash drawer at the front of the store. Wendel testified that, during his inspection of the store, he had not found appellant’s paycheck.

              Batiste testified that the complainants’ cars were not found in the parking lot of the video store, but that Osemwengie’s car was recovered the following day in the parking lot of a grocery store.  

              Appellant’s twin brother, Broderick Cooper, testified that, at the time of the shootings, he and appellant were living in an apartment together, along with their cousin, Michael Walls. On the morning after the shootings, appellant and Walls came to the apartment, and Broderick noticed that Walls was carrying a backpack containing a gun, some money, and a videotape. Appellant and Walls counted the money and gave $400 to Broderick, who used the money to pay the rent. In Broderick’s opinion, as between appellant and Walls, Walls was “the leader,” “the stronger individual,” and “the only one that talked about what [had] happened” at the video store the night before.

              Lynn Fisher, a former co-worker of appellant’s, testified that she knew appellant because they had previously worked together. At the time of the shootings, Fisher worked as a cashier at Wal-Mart, along with appellant’s girlfriend at the time, Shavonne Pippens, and Fisher had heard about the events at the video store. Two days after the shootings, Fisher gave Pippens a ride to Pippens’s apartment, where they picked up appellant, and the three then continued on in Fisher’s car to her apartment. As they drove to her apartment, Fisher asked appellant what he had done with the gun and the videotape after the shootings. With respect to both, appellant had told her that he had “got[ten] rid of it.” After leaving Pippens and appellant at the apartment, Fisher picked up appellant’s mother and brought her to the apartment “so she could talk him into turning himself in” to the authorities. When they returned to Fisher’s apartment, appellant was gone. The following day, Fisher gave a statement to the police officers investigating the shootings.

              Shavonne Pippens testified that, at the time of the shootings, she had been appellant’s girlfriend. When the officers investigating the shootings initially interviewed her, Pippens gave them a statement indicating that she did not know anything about the events at the store and that appellant had not told her anything about it. However, Pippens later changed her statement, but could not remember the substance of her second statement. She explained that she had changed her statement because she had felt threatened by the investigating officers, because the officers told her “if I didn’t tell them what they wanted to hear that they was going to take my daughter away from me and give me 20 years in jail.”

              Three days after the murders, appellant, accompanied by his mother and sister, went to the Houston Police Department’s homicide division to give a statement concerning his knowledge of the events. Former Houston Police Officer F. Hale testified that he met with appellant at about 10:00 a.m. on September 7, 2001 and discussed appellant’s knowledge of the events at the video store. Appellant gave Hale a written statement, which was admitted into evidence. In his written statement, appellant explained that, on the evening of September 4, 2001, he had gone to the video store, had picked up his last paycheck sometime between 9:00 p.m. and 9:30 p.m., had then left the store, and had spent the night at a girlfriend’s apartment. In his written statement, appellant denied having “anything to do with this homicide.” At trial, appellant acknowledged that, before he gave his written statement, Hale had read several warnings to appellant concerning, among other things, appellant’s legal rights to remain silent, to have a lawyer present, and to terminate the interview and that, after he gave Hale the statement, appellant had initialed each of the warnings on the statement form and signed it.  

              Hale testified that he also asked appellant if appellant would provide a set of fingerprints and submit to a polygraph examination, and appellant consented to do both. Appellant provided Hale with a set of fingerprints, and, at about noon, Hale took appellant to a polygraph examiner.

              Based on the evidence obtained in their investigation of the shootings, Hale and Wendel obtained an arrest warrant for appellant that day and arrested him at approximately 3:15 p.m. while he was still taking the polygraph examination. Appellant was then taken to an interview room where Sergeant Wendel interviewed him and informed him that he was a suspect in the murders. Wendel then turned appellant over to Houston Police Officer J. Swaim for further questioning. Swaim testified that he interviewed appellant from 3:30 p.m. to approximately 4:15 p.m. and that, at that time, appellant denied any involvement in the shootings.

              Houston Police Officer T. Miller testified that, a few minutes later, he also interviewed appellant. During this interview, Miller played, in appellant’s presence, a portion of a tape-recorded statement given by Pippens, in which Pippens had stated that appellant had told her that he had been the person who had committed the murders. Miller also informed appellant that Fischer had given a statement implicating appellant in the crime. Appellant then told Miller that Pippens and Fischer were lying. After Miller and appellant discussed the impact of the murders on the complainants’ families, appellant asked for a cigarette and then admitted to Miller that he had been involved in the crime and had shot the complainants. Appellant then consented to give a recorded statement. Miller again advised appellant of his legal rights and, after appellant agreed to waive his rights, Miller recorded appellant’s statement.

              In his recorded statement, appellant told Miller that, on the evening of September 4, 2001, appellant completed the class he was attending at about 8:15 p.m. and then called the video store to talk to Osemwengie to find out if appellant’s last paycheck was at the store. When he learned that his check was at the store, appellant told Osemwengie that he would come pick it up that evening. Appellant stated that he then went home and got his backpack, which contained a .357 handgun, and he and his cousin, Michael Walls, discussed robbing the video store. The two men then walked to the store, arriving “a little bit after [10:00 p.m.].” Appellant stated that, after he and Walls arrived at the store, he picked up his paycheck from Osemwengie, pretended to browse the store’s selection of movies, and took the handgun out of the backpack and put it in his pocket. Appellant waited until all of the store’s customers were gone and then pulled the gun out of his pocket and told Osemwengie and Sanchez to “go in the office and . . . give me the money.” Appellant stated that he and Walls then took the complainants into the store office and told them to sit down. Osemwengie opened the store safe and gave the money to appellant, and Walls put the money in the backpack and left the office. Appellant also instructed Osemwengie to remove the videotape from the store’s surveillance camera and to give it to him, and Osemwengie complied.

              With regard to the shootings, appellant stated as follows:

    [S]o after he got all the money he had left out the office. And I, and I told [Osemwengie], and I say ya’ll just turn around and I’m gonna leave. And ya’ll, it’ll be like that, and [Osemwengie] was telling me, we was cool. And I say, it ain’t nothing against you [Osemwengie], I just needed some money so I’m gonna leave after that. And so, as I was turning around walking out the door, I was halfway out the door and I had put the gun back in my pocket. And I heard [Sanchez] telling [Osemwengie] that she was gonna call the police and tell them [inaudible] just robbed them and they was leaving. And, and something just snapped . . . .


    Appellant stated that he then turned around and shot Sanchez once and Osemwengie twice. Appellant and Walls then took the complainants’ car keys and drove the complainants’ cars to appellant’s apartment—appellant drove Osemwengie’s car and Walls drove Sanchez’s car. Appellant and Walls counted the money at appellant’s apartment and then put the gun, the bullets, some papers from the store, and the store surveillance tape in a bag to throw away. The two men then drove the complainants’ cars to a grocery store parking lot and left them there. Appellant stated that they also threw the bag containing the items from the store into a trash can next to a bus stop.

              The following day, when appellant’s twin brother, Broderick Cooper, noticed that appellant and Walls had some money and asked where they got it, appellant did not tell his brother where the money had come from. Later that day, appellant went to see Pippens at her apartment, and she began to cry when she saw that appellant was interested in watching a news report of the murders at the video store. Appellant stated that he did not admit to Pippens that he had killed the complainants, but told her that he “knew who did it.” Appellant also stated that he subsequently admitted to his ex-girlfriend, Shamona Williams, that he had killed the complainants.  

              During his tape-recorded statement, appellant agreed to show Officer Miller where he and Walls had discarded the bag containing the gun and store surveillance videotape. Miller testified that, after appellant completed his recorded statement, Miller got appellant some food and then he and Houston Police Sergeant R. Parish drove appellant to the bus stop where appellant had indicated that he had discarded the bag of items. They arrived at the bus stop at about 6:00 p.m., and Miller looked through the trash can identified by appellant, but found nothing. Metro Transit Authority employee J. Capetillo testified that, according to his log sheet, as part of his job duties, he had cleaned the area around and had emptied the trash can at that bus stop on the day before the officers had searched it.

              Miller also testified that appellant showed the officers where, in a nearby grocery store parking lot, he and Walls had left the complainant’s cars. Miller explained that the parking lot, which was across the street from appellant’s apartment complex, was located approximately 1.5 miles from the video store. Appellant identified Sanchez’s car, which was still parked in the lot. Appellant then agreed to show the officers where his ex-girlfriend, Williams, lived because he thought that Walls might be staying there. The officers then drove appellant to the apartment complex where Williams lived, but Walls could not be located. At about 7:30 p.m., Miller turned appellant over to Sergeant Wendel and Officer Hale. Wendel and Hale then took appellant before a magistrate, who informed appellant of his legal rights and set a bond. Appellant was then transported to jail.

              Appellant testified that he and Walls planned for appellant to enter the store alone on the pretext of picking up his remaining paycheck. Walls would then enter the store later and force the complainants into the office so that appellant could empty the cash register drawers unsuspected. Appellant admitted that, on the night of the shootings, he and Walls had gone to the video store in an attempt to carry out their plan. Appellant explained, however, that, as he was taking money from the cash registers, he heard three gunshots in the back of the store where Walls had taken the complainants. Walls then came running out of the office, carrying Sanchez’s keys, and appellant asked him, “What happened?” Both men then ran out of the store, took the complainants’ cars, and drove to appellant’s apartment. That night, appellant and Walls stayed at the apartment of appellant’s former girlfriend, Shamona Williams, and then returned to appellant’s apartment the next morning. Appellant denied that he ever had the backpack in his possession and denied that he ever planned to kill, or to assist in killing, the complainants.

              Appellant admitted that his written statement, in which he had denied any involvement in the events at the video store, was false. Appellant also admitted that Fisher had given him a ride after the shootings, but he denied ever telling her that he had been involved. Appellant also testified that he had fabricated portions of his tape-recorded statement; specifically, the portions concerning whether he or Walls had shot the complainants and whether he and Walls had ever disposed of the gun and the store surveillance videotape in a trash can at a bus stop. Appellant explained that he had “made up” the fact that he and Walls had disposed of the videotape in the trash can he had later pointed out to the investigating officers; however, on cross-examination, appellant conceded that, had the officers located the videotape, it could have shown that appellant had not shot the complainants.

              Appellant also testified that, before he gave his tape-recorded statement, Officer Miller grabbed him by the front of his shirt, pushed him against the wall of the interview room, and told appellant that he was “tired of putting up with me saying I didn’t have no involvement in it and he knew I did.” When asked why he had confessed to police officers to two murders that he testified he did not commit, appellant stated, “I was taught not to snitch on people that wasn’t caught in the involvement of a case that I got caught up in.”

    Voluntariness of Recorded Statement

              In his first point of error, appellant argues that the trial court erred in denying his motion to suppress the tape-recorded statement that appellant gave to the investigating police officers because the statement was not given voluntarily.

              We review a trial court’s denial of a motion to suppress evidence for an abuse of discretion. Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999). A trial court abuses its discretion when it acts without reference to any guiding rules or principles by acting arbitrarily or unreasonably. Galliford v. State, 101 S.W.3d 600, 604 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). We will afford almost total deference to a trial court’s determination of historical facts supported by the record, especially when the findings are based on an evaluation of the credibility and demeanor of the witnesses. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). In reviewing a ruling on a question of application of law to facts, we review the evidence in the light most favorable to the trial court’s ruling. Id.

              At the hearing on his motion to suppress evidence, appellant testified that, after he gave his written statement, the officers told him that he would not be permitted to leave until he had also provided them with some fingerprints and had taken a polygraph test. Appellant admitted that, after he was later arrested, he never requested a lawyer, but he explained that he did not think that he was entitled to have a lawyer at that time. Appellant explained that, at the time that he gave his recorded statement, he was scared and felt that the officers questioning him were “trying to pressure me to say I done it.” Appellant described his questioning by Sergeant Swaim and by Officer Miller, in part, as follows:

    Well, I been there all day, I got tired of being in there, and then as I kept denying it, they – I could see they was getting mad; but the last two officers . . . they are the ones that put their hands on me in the thing. They didn’t physically, with their fist [balled] up, but they was grabbing my clothes. . . . They didn’t physically put their hands on me but they was grabbing the front of my shirt telling me they got people in other rooms saying I did it, so I might as well tell them I done it.


    Appellant testified that, just before he gave his recorded statement, he “broke down and cried” and that he felt that he had been forced to give the recorded statement so that the officers would leave him alone.

              Officer Miller testified that he never put his hands on appellant or threatened him and did not see any other officers threaten appellant. Appellant never asked Miller for a lawyer, never asked to stop the interview, and never told Miller that any other officer had threatened him. Sergeant Swaim testified similarly. The State presented testimony from Hale, Wendel, and Miller that, at the time that appellant (1) gave his written statement, (2) was arrested, and (3) gave his tape-recorded statement, he was informed of his legal rights to remain silent, to have an attorney present, and to terminate any questioning and that appellant had indicated that he understood and voluntarily agreed to waive those rights. See Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon 1979 & Supp. 2004-2005). Appellant placed his initials next to these warnings on the form of his written statement, and he subsequently indicated that he understood these warnings when they were recited to him during his tape-recorded statement. At trial, when questioned by appellant’s counsel as to why the investigating officers had continued to question appellant after he had denied any involvement in the shootings, Swaim responded

    My job was to get him to tell the truth. We didn’t feel like he was telling the truth, that he had no involvement. We believed he was involved; and it was my job to get him to go and attempt to get him to tell the truth.


              In determining whether appellant’s recorded statement was given voluntarily, the trial court was required to evaluate and weigh the credibility of the testimony of the officers against that of appellant. In announcing its findings at the conclusion of the hearing on appellant’s motion to suppress evidence, the trial court specifically noted that it found the testimony of Hale, Wendel, Swaim, and Miller to be credible and that it found appellant to be not credible. We defer to this finding, as it is based on an evaluation of the credibility and demeanor of the witnesses who testified in the trial court. Guzman, 955 S.W.2d at 89. Accordingly, we hold that the trial court did not abuse its discretion in denying appellant’s motion to suppress his recorded statement on the grounds that it was given involuntarily.

              We overrule appellant’s first point of error.

    Appearance Before Magistrate

              In his second and third points of error, appellant argues that the trial court erred in denying his motion to suppress his tape-recorded statement and his later, oral statements made to Miller concerning the location where appellant and Walls had abandoned the complainants’ cars because “the statements were rendered in violation of [appellant’s] state statutory right to be promptly taken before a magistrate upon arrest.”

              With regard to a defendant’s right to be taken before a magistrate following his arrest, the Code of Criminal Procedure provides, in pertinent part, as follows:

    In each case enumerated in this Code, the person making the arrest or the person having custody of the person arrested shall without unnecessary delay, but not later than 48 hours after the person is arrested, take the person arrested or have him taken before some magistrate of the county where the accused was arrested . . . . The magistrate shall inform in clear language the person arrested . . . of the accusation against him and of any affidavit filed therewith, of his right to retain counsel, of his right to remain silent, of his right to have an attorney present during any interview with peace officers or attorneys representing the state, of his right to terminate the interview at any time, and of his right to have an examining trial. The magistrate shall also inform the person arrested of the person’s right to request the appointment of counsel if the person cannot afford counsel.


    Tex. Code Crim. Proc. Ann. art. 15.17(a) (Vernon Supp. 2004-2005) (emphasis added). It is a defendant’s burden to demonstrate (1) that a delay was unnecessary and (2) the existence of a causal connection between the confession and the failure to take him before a magistrate without unnecessary delay. Bonner v. State, 804 S.W.2d 580, 582 (Tex. App.—Houston [1st Dist.] 1991, pet. ref’d).  

              The record indicates that appellant was arrested on September 7, 2001 at approximately 3:15 p.m. and was not taken before a magistrate until approximately 7:30 p.m. Hale testified that, at the time that appellant was arrested, appellant could have been taken before a magistrate immediately. The State argues that the approximately four and one-half hour delay between the time that appellant was arrested and he was taken before a magistrate was not unnecessary because, during that time, appellant confessed to having killed the complainants and then offered to show the investigating officers the possible location of additional physical evidence and of his accomplice; thus a portion of this time period was required to transport appellant to and from these locations.

              However, assuming, without deciding, that the police officers’ delay in taking appellant before a magistrate in this case was unnecessary, the Court of Criminal Appeals has held that violations of article 15.17 do not automatically invalidate a confession. “Absent a showing of a causal connection between an accused’s confession and the failure to take the accused promptly before a magistrate, the validity of the confession is not affected.” Williams v. State, 692 S.W.2d 671, 675-76 (Tex. Crim. App. 1984); see Cantu v. State, 842 S.W.2d 667, 680 (Tex. Crim. App. 1992) (holding that defendant failed to show causal connection between State’s failure to take him before magistrate and statements he gave to police; thus, statements were properly admitted at trial); Ex parte Stansbery, 702 S.W.2d 643, 647 (Tex. Crim. App. 1986) (concluding that because record did not reflect causal connection between failure to take defendant before magistrate and confession, defendant’s contention that his oral statement was inadmissible was without merit).

              Here, appellant has not shown that the approximately four and one-half hour delay by the officers in taking him before a magistrate caused him to give the tape-recorded statement or to show the officers where appellant and Walls had abandoned the complainants’ cars. Moreover, as noted above, the trial court heard testimony and evidence that, at several stages of appellant’s questioning, officers had informed him orally and in writing of his legal rights, as identified in article 15.17, and appellant had indicated that he understood and had voluntarily agreed to waive those rights.

              Accordingly, we hold that the trial court did not err in denying appellant’s motion to suppress his tape-recorded statement and his oral statements concerning the location where he and Walls had abandoned the complainants’ cars on the grounds that they were rendered in violation of appellant’s right “to be promptly taken before a magistrate upon arrest.”  

              We overrule appellant’s second and third points of error.

    Statement Against Interest

              In his fourth point of error, appellant argues that the trial court erred in sustaining the State’s objection to and excluding the testimony of appellant’s brother, Broderick, that Walls admitted to Broderick that Walls had shot and killed the complainants at the video store. Appellant contends that his brother’s testimony about Walls’ statement was admissible because the statement was against Walls’ interest. See Tex. R. Evid. 803(24).  

              Generally, hearsay statements are inadmissible. Tex. R. Evid. 802. However, certain types of hearsay are admissible as exceptions to this general rule, including

    [a] statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, or to make the declarant an object of hatred, ridicule, or disgrace, that a reasonable person in his position would not have made the statement unless believing it to be true.


    Tex. R. Evid. 803(24). In a criminal case, a statement that tends to expose a declarant to criminal liability is not admissible “unless corroborating circumstances clearly indicate the trustworthiness of the statement.” Id.

              The consideration of the admissibility of a statement under rule 803(24) requires a two-step inquiry. A trial court must determine (1) whether the statement in question tends to expose the declarant to criminal liability and (2) whether corroborating circumstances exist that clearly indicate the trustworthiness of the statement. Bingham v. State, 987 S.W.2d 54, 57 (Tex. Crim. App. 1999). The requirements of rule 803(24) are met only if both criteria are satisfied. Id.

              Although there is no definitive test by which to gauge the existence of corroborating circumstances, the Court of Criminal Appeals has looked to (1) whether the guilt of the declarant is inconsistent with the guilt of the accused, (2) whether the declarant was so situated that he might have committed the crime, (3) the time of the declaration and its spontaneity, (4) the party to whom the declaration was made, and (5) the existence of independent, corroborating facts. Davis v. State, 872 S.W.2d 743, 749 (Tex. Crim. App. 1994); Holliday v. State, 14 S.W.3d 784, 787 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). The focus of this inquiry is on verifying, to the greatest extent possible, the trustworthiness of the statement, so as to avoid the admission of a fabrication. Bingham, 987 S.W.2d at 58. We review a trial court’s decision to admit or to exclude a hearsay statement offered under rule 803(24) for abuse of discretion. Id. at 57.  

              Here, as noted above, Broderick testified that, the morning after the shootings, appellant and Walls, who were living with Broderick, came to Broderick’s apartment. Broderick noticed that Walls was carrying a backpack containing a gun, some money, and a videotape. Appellant and Walls counted the money and gave $400 to Broderick, who used the money to pay the rent. In Broderick’s opinion, as between appellant and Walls, Walls was “the leader,” “the stronger individual,” and “the only one that talked about what [had] happened” at the video store.

              Outside the presence of the jury, appellant offered Broderick’s testimony that, while appellant was taking a shower at the apartment that morning, Walls admitted to Broderick that Walls had shot and killed the complainants during the video store robbery “because they can find out who [appellant] was because he used to work there.” Appellant offered this testimony as a hearsay exception, under rule 803(24).

              There is no dispute that the statement attributed to Walls is a statement against interest, in that it subjects him to potential criminal liability for the murders of the complainants. Thus, the first criterion of rule 803(24) is satisfied. See Bingham, 987 S.W.2d at 57. However, at the hearing outside the presence of the jury, the trial court inquired of appellant’s counsel as follows:

    The Court:Section 24 [of rule 803] on statement against interest clearly says in criminal cases a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. What corroborating circumstances do you offer?

     

              Counsel:                I don’t have any.


    Thus, appellant presented no argument or evidence to the trial court supporting the second criterion of rule 803(24), concerning the trustworthiness of the statement. See id. Accordingly, we hold that the trial court did not abuse its discretion in sustaining the State’s objection to and excluding Broderick’s testimony concerning Walls’ alleged statement against interest.

              We overrule appellant’s fourth point of error.

    Sufficiency of the Evidence

              In his fifth and sixth points of error, appellant contends that the evidence was legally and factually insufficient to support the jury’s verdict because the State failed to prove that appellant intended to cause the deaths of the complainants.

              As part of his legal and factual sufficiency points, appellant argues that, in our review of the sufficiency of the evidence, we must apply the reasoning of the Texas Supreme Court concerning the proper deference to be accorded a fact finder’s resolution of disputed facts “in order to harmonize civil and criminal jurisprudence.” Appellant directs us to In re J.F.C., 96 S.W.3d 256 (Tex. 2002), and in In re C.H., 89 S.W.3d 17 (Tex. 2002), both of which involved the review of the sufficiency of the evidence presented in parental termination proceedings, in which the burden of proof requires “clear and convincing” evidence. See In re J.F.C., 96 S.W.3d at 266 (legal sufficiency); In re C.H., 89 S.W.3d at 26 (factual sufficiency). Appellant relies on these cases in support of his assertion that, “it would appear that, as the consequences of the factfinder’s decision increase, the deference to be accorded the finder of fact should be reduced and the breadth and level of inquiry increased.” We disagree with appellant’s characterization of the effect of the holdings of these cases, and we apply the standards of review articulated by the Court of Criminal Appeals for reviewing the legal and factual sufficiency of the evidence.

              In conducting a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). In conducting a factual sufficiency review, we view all of the evidence neutrally, not in the light most favorable to the verdict, and we will set aside the verdict “only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met.” Escamilla v. State, No. 74494, 2004 WL 1462077, at *1 (Tex. Crim. App. June 30, 2004); see Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). Under both a legal and a factual sufficiency review, we may not substitute our own judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996). The fact finder is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given to the witnesses’ testimony, and it may believe all, some, or none of any witness’s testimony. See Johnson, 23 S.W.3d at 7; Jaggers v. State, 125 S.W.3d 661, 672 (Tex App.—Houston [1st Dist.] 2003, no pet.).

               A person commits the offense of capital murder if, while in the course of committing a robbery, he intentionally or knowingly causes the death of another person. See Tex. Pen. Code Ann. §§ 19.02(b)(1), 19.03(a)(2) (Vernon 2003 & Supp. 2004-2005). Here, the charge authorized the jury to find appellant guilty if they found, beyond a reasonable doubt, that he was a principal or a party to the offense of capital murder. See id. § 7.02(a)(2) (Vernon 2003). Appellant concedes that his own trial testimony was legally sufficient to establish that he was guilty, as a party, to the aggravated robbery of the video store. However, appellant argues that the evidence was legally insufficient to support the verdict that he is guilty of capital murder “because the State failed to prove that [appellant] had the intent to cause the deaths of the complainants.” Although appellant argues generally that, in connection with his testimony that he and Walls had planned simply to rob the video store while appellant remained outside of the manager’s office, “the physical facts at the crime scene creates [sic] a reasonable doubt as to the sufficiency of the evidence to sustain [appellant’s] conviction for capital murder,” he directs us to no specific physical evidence that supports his argument.

              We note that, at trial, it was undisputed that appellant and Walls had planned the robbery of the video store and, as part of their plan, had taken a handgun to the store. It was similarly undisputed that the complainants were fatally shot with the handgun during the robbery of the video store. The jury also heard a recorded statement by appellant in which he admitted that he had shot and killed the complainants after he heard Sanchez say that she was going to call the police and report the robbery. Moreover, the evidence also included testimony that a video surveillance tape was stolen during the robbery and that appellant had lied to the police officers about its whereabouts. Based on the record presented, we hold that the jury reasonably could have concluded that appellant killed the complainants during the robbery in an effort to prevent them from identifying him to police.

              Viewing all of the evidence in the light most favorable to the verdict, we hold that the jury reasonably could have found all of the essential elements of the offense of capital murder beyond a reasonable doubt. See King, 29 S.W.3d at 562. Accordingly, we further hold that the evidence was legally sufficient to support the jury’s verdict, and we overrule appellant’s fifth point of error.

              In regard to his factual sufficiency challenge, appellant reiterates his argument that the “physical facts at the crime scene creates [sic] a reasonable doubt as to the sufficiency of the evidence to sustain [appellant’s] conviction for capital murder.” Again, he directs us to no specific physical evidence that supports his argument.

              In his defense, appellant contested the voluntariness of his statement to the investigating officers, and he testified that his statements were the result of coercion and threats and were untrue with respect to whether he had shot the complainants. The investigating officers testified that appellant was never threatened or coerced and that he appeared to understand and to voluntarily waive his rights to refuse to give a statement and to request that an attorney be present. The resolution of this conflicting testimony was, in this respect, solely within the fact-finding purview of the jury, as the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given to the witnesses’ testimony. Johnson, 23 S.W.3d at 7; Jaggers, 125 S.W.3d at 672. In conducting our review, we may not substitute our own judgment for that of the jury. Jones, 944 S.W.2d at 648.  

              Viewing all of the evidence neutrally, we hold that the evidence was not so weak as to render the verdict “clearly wrong and manifestly unjust” and that the contrary evidence was not “so strong that the standard of proof beyond a reasonable doubt could not have been met.” Escamilla, 2004 WL 1462077, at *1. Accordingly, we further hold that the evidence was factually sufficient to support the jury’s verdict, and we overrule appellant’s sixth point of error.  

     


    Conclusion

              We affirm the judgment of the trial court.

     

     

                                                                            Terry Jennings

                                                                            Justice


    Panel consists of Justices Taft, Jennings, and Bland.


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