Kristian Jeril Collier v. State ( 2010 )

Opinion issued December 9, 2010                                        

In The

Court of Appeals

For The

First District of Texas

NO. 01-09-00478-CR

KRISTIAN JERIL COLLIER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 351st District Court

Harris County, Texas

Trial Court Cause No. 1153923

MEMORANDUM OPINION

          A jury convicted Kristian Jeril Collier, appellant, of capital murder.[1]  The trial court sentenced him to life imprisonment without parole.[2]  In two issues, appellant contends (1) the evidence does not sufficiently corroborate accomplice witness testimony and (2) the evidence is factually insufficient to support his conviction.  We affirm the judgment of the trial court. 

Background

          Appellant privately asked Deon Wilder to borrow a .45 High Point semiautomatic handgun because he “had a lick lined up,” i.e. a robbery.  Appellant testified he asked for the gun for protection while visiting a woman in the apartment complex across the street.  Appellant also borrowed a pair of black and grey striped tennis shoes from one of Wilder’s roommates. 

Dwayne Cormier was shot in the apartment complex across the street from Wilder’s complex.  Cormier’s girlfriend found him lying on the ground with three gunshot wounds.  Cormier died as a result of his injuries.  A neighbor reported seeing a young, six foot tall man in dark clothes and a skull cap running through the apartment complex.

Law enforcement officers investigating the scene found three shell casings in the area that matched the bullet fragments found during Cormier’s autopsy.  The bullets were hollow tipped and came from a .45 High Point semiautomatic handgun.  They found a discarded black and grey striped tennis shoe with Cormier’s blood spattered on the outside and appellant’s DNA on the inside.  They also found foot prints in the disturbed and muddy landscaping, which suggested a struggle.

The jury heard testimony on two different versions of the shooting. Wilder testified appellant returned with the gun after forty-five minutes.  Appellant told Wilder he tried to rob a man, the two struggled, the gun dropped, and then he shot the man three times.  Two of Wilder’s roommates testified appellant stated he shot someone during a robbery.  One roommate testified appellant stated, “we might see something on the news.”  Wilder and all three roommates testified appellant appeared shaken, out of breath, muddy, and with only one shoe. 

In his own defense, appellant testified he went to visit a woman at the apartment complex with a man he knew as “Shoe Shine.”  He left the gun with Shoe Shine and when he returned, Shoe Shine was robbing a man in the parking lot.  Appellant intervened and Cormier pushed him down.  Shoe Shine shot Cormier three times.  Appellant ran home, losing his shoe in the process.  Shoe Shine later returned Wilder’s gun to appellant and appellant returned it to Wilder.  Appellant told Wilder someone had been shot with the gun.

Approximately two weeks after the murder, law enforcement officers arrested Wilder for possession of a firearm in violation of his parole.  They confiscated the gun and determined it to be the murder weapon.

          Appellant raises two issues on appeal.  First, he argues the accomplice witness rule negates Wilder’s testimony and the remaining evidence is insufficient to corroborate the accomplice evidence.  Second, he argues the evidence was not factually sufficient with regards to identity.

Accomplice Witness Rule

          In his first issue, appellant argues the jury could not solely rely on Wilder’s testimony for conviction because of the accomplice witness rule.  See Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005).  Further, appellant argues the non-accomplice evidence did not tend to implicate him in Cormier’s murder and therefore cannot corroborate Wilder’s testimony. 

A.      Applicable Law

            A conviction cannot be based on the testimony of an accomplice unless some other evidence corroborates that testimony and tends to connect the defendant to the offense. See Tex. Code Crim. Proc. Ann. art. 38.14; Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001); Cao v. State, 183 S.W.3d 707, 710 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d). Corroborating evidence is insufficient if it merely shows the commission of an offense.  See Tex. Code Crim. Proc. Ann. art. 38.14; Solomon, 49 S.W.3d at 361; Cao, 183 S.W.3d at 710.  In making our review, we “eliminate[] all of the accomplice testimony from consideration and then examine[] the remaining portions of the record to see if there is any evidence that tends to connect the accused with the commission of the crime.” Castillo v. State, 221 S.W.3d 689, 691 (Tex. Crim. App. 2007).  The non-accomplice evidence need not directly link the accused to the commission of the offense nor be sufficient on its own to establish guilt beyond a reasonable doubt.  Id.; Cao, 183 S.W.3d at 710.  “[T]he [non-accomplice] evidence must simply link the accused in some way to the commission of the crime and show that rational jurors could conclude that this evidence sufficiently tended to connect [the accused] to the offense.”  Simmons v. State, 282 S.W.3d 504, 508 (Tex. Crim. App. 2009) (quoting Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008).  Thus, when there are two permissible views of the evidence (one tending to connect the defendant to the offense and the other not tending to connect the defendant to the offense), appellate courts should defer to that view of the evidence chosen by the fact-finder.  Id.

B.      Analysis

          Assuming without deciding that Wilder was an accomplice, we disregard Wilder’s testimony to see if the non-accomplice evidence tends to connect appellant to the crime.  The non-accomplice evidence that tends to implicate appellant includes: the testimony of the three roommates as to appellant’s admission of guilt and his muddy, shaken appearance; appellant’s admission to being present at the shooting; the shoe at the scene bearing appellant’s DNA and Cormier’s blood; appellant’s admission to borrowing those shoes and the gun identified as the murder weapon; and the bullet fragments and shell casings that gun. 

Appellant argues the non-accomplice evidence cannot support conviction without Wilder’s testimony.  First, appellant argues inconsistencies between Wilder and the three roommates’ testimony should be resolved in his favor.  We disregard Wilder’s testimony, however, and look only at the non-accomplice evidence for analysis under the accomplice witness rule.  See Castillo, 221 S.W.3d at 691.

Second, appellant argues his testimony should be given more weight. He admitted to struggling with Cormier and losing his shoe at the scene.  He also argues his shaken appearance resulted from witnessing the shooting.  The jury heard evidence on two scenarios: one in which appellant admitted to shooting Cormier and one involving Shoe Shine. The first version combines the evidence of the shoe and his shaken appearance with the roommates’ testimony. With two permissible views of the evidence, one tending to connect appellant to the offense and the other not tending to connect appellant to the offense, this Court defers to the decision of the fact-finder.  See Simmons, 282 S.W.3d at 508.  Further, non-accomplice evidence like appellant’s DNA in the shoe links him to the scene in such a way that a rational juror could conclude the evidence sufficiently connected appellant to the offense.  See id.

Third, appellant argues the testimony of the three roommates was not precise enough to implicate him.  Two roommates testified appellant admitted to shooting someone during a robbery.  This statement is an admission of guilt by appellant made to non-accomplice witnesses and directly links him to the offense.  The third roommate testified appellant told him he “might see something on the news.”  Non-accomplice evidence, however, need not be sufficient alone to establish guilt beyond a reasonable doubt and we defer to the jury’s determination of what evidence to believe.  See Castillo, 221 S.W.3d at 691; Simmons, 282 S.W.3d at 508.

Fourth, appellant argues facts that traditionally corroborate accomplice witness testimony are not present.  These facts include flight, change of identity, destruction of evidence, and threats to witnesses.  The jury heard evidence linking appellant to the murder like his inculpatory statements to the three roommates, the presence of his DNA at the scene, and the ballistic evidence showing the gun he borrowed to be the murder weapon.  The presence or absence of other factors is irrelevant because the evidence presented tends to connect the accused to the commission of the offense.  See Castillo, 221 S.W.3d at 691.  Therefore the non-accomplice evidence was sufficient to corroborate Wilder’s testimony. 

We overrule appellant’s first issue. 

Sufficiency of the Evidence

          In his second issue, appellant argues the evidence was insufficient to establish his identity as the offender.

A.      Standard of Review

We review the sufficiency of the evidence by considering 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.  Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007); Parker v. State, 192 S.W.3d 801, 804 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d).  The standard of review articulated in Jackson v. Virginia applies to both legal and factual sufficiency challenges to the elements of a criminal offense.  See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; see Brooks v. State, PD-0210-09, 2010 WL 3894613, at *14, 21–22 (Tex. Crim. App. Oct. 6, 2010); see also Ervin v. State, No. 01-10-00054-CR, 2010 WL 4619329, at * 2–4 (Tex. App.—Houston [1st Dist.] Nov. 10, 2010, no pet. h.) (construing majority holding in Brooks).  We “may not re-evaluate the weight and credibility of the record evidence and thereby substitute our judgment for that of the fact-finder.”  Williams, 235 S.W.3d at 750. We give deference to the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Id.  

B.      Analysis

          First, appellant argues for and against the credibility of witnesses at trial and he points to his own testimony as authoritative.  He testified he needed Wilder’s gun for protection after seeing a suspicious person and that he lost his shoe running from the scene after Shoe Shine shot Cormier.  Appellant argues that since he returned the gun to Wilder and did not flee the apartments, his testimony should be given more weight.  He also argues the daily use of drugs and alcohol by Wilder and his three roommates undermines their testimony.  Finally, he argues Wilder’s testimony contradicts the three roommates since Wilder said appellant spoke to no one else in the apartment. 

The jury is the sole judge of the credibility of witnesses and the weight to give their testimony.  See Williams, 235 S.W.3d at 750.  The jury heard evidence on the rooommates’ drug and alcohol use and the conflict with Wilder’s testimony.  The jury also heard appellant’s testimony.  We defer to the jury’s discretion to decide what testimony to believe and disbelieve.  See id. 

            Second, appellant argues he sufficiently explained certain bad facts so as to undermine their reliability.  Several witnesses testified appellant traded shoes with one of the roommates.  Therefore, his DNA in the shoes is not unusual.  Neither side, however, contested how appellant’s DNA came to be in the shoe. 

            Appellant also argued law enforcement officers were unable to locate Shoe Shine or the woman he allegedly visited the night of the murder because of flaws in the investigation.  Sergeant Mark Reynolds testified, however, that appellant provided several alternative stories during interrogation and gave different physical descriptions for Shoe Shine.  He also never gave the name of the woman involved to police.  Officers canvassed the apartment complexes where Wilder lived and where the murder occurred, as well as looked up Shoe Shine in a department database.  They were unable to locate either person.

The evidence on which appellant relies was not the only proof presented at trial.  Appellant admitted he borrowed the gun identified as the murder weapon.  He admitted to being present at the crime scene and his DNA was found there.  Witnesses testified that he appeared muddy, shaken, and out-of-breath immediately following the murder.  Three witnesses, Wilder and two of his roommates, testified appellant admitted to shooting someone.  Again, the jury has the discretion to determine the weight to give the evidence presented at trial.  See id.  Viewing all the evidence in the light most favorable to the verdict, we hold a rational trier of fact could have found the essential elements of murder beyond a reasonable doubt.  See id. 

We overrule appellant’s second issue. 

Conclusion

          We affirm the judgment of the trial court.

                                                          Laura Carter Higley                                                                                             Justice

Panel consists of Chief Justice Radack, Justice Higley, and Justice Massengale.

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

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[1]           See Tex. Penal Code Ann. § 19.03(a)(2) (Vernon Supp. 2010).

[2]           Tex. Penal Code Ann. §12.31(a)(2) (Vernon Supp. 2010).