Darrell Bernard Brown v. State ( 1994 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN





NO. 3-92-159-CR



DARRELL BERNARD BROWN,

APPELLANT

vs.



THE STATE OF TEXAS,

APPELLEE

NO. 3-92-354-CR



DENNIS LEE BROWN,

APPELLANT

vs.



THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT

NO. 0915306, HONORABLE TOM BLACKWELL, JUDGE PRESIDING

In a joint trial appellants were found guilty of the offense of murder. See Tex. Penal Code Ann. § 19.02 (West 1989). The jury assessed punishments for appellants Darrell Brown and Dennis Brown at confinement for seventy-five years and confinement for forty-five years, respectively. In a common point of error, appellants assert that the trial court erred in failing to charge the jury that Daren Clark was an accomplice witness as a matter of law. In additional points of error two through seven, Darrell Brown contends the trial court erred in overruling his objections to the admission of irrelevant and prejudicial evidence concerning the details of prior offenses. We will overrule appellants' points of error and affirm the judgments of the trial court.

We first address appellants' common point of error concerning the trial court's failure to instruct the jury that Clark was an accomplice witness as a matter of law. This necessitates a review of the following testimony of Clark. Clark had been on friendly terms with appellants for several years and went to their house on the night in question to drink beer and play dominoes. During the course of the evening, Clark heard Darrell and Renee Aparicio talk about a gun Darrell had borrowed from Aparicio. Darrell said he wanted the gun to "hit a lick," a "street phrase" Clark understood to mean to "rob or mug somebody." It immediately became clear to Clark that Michael Sterling was the intended victim because Darrell asked Aparicio how much money Sterling had on his person. After everyone had left except Clark and appellants, Darrell asked, "was I ready to hit a lick?" Clark responded, "I wasn't down for no stupid s_ _ _ like that." Later while Dennis and Clark were playing dominoes in the backyard, Darrell "backed up toward the fence" and asked Clark, "What all you could see of him [Darrell]?" After telling Darrell he could see his shoes, Darrell said, "[T]hat's all I have to do is change shoes and I'll be able to take him out from here." After Darrell asked Clark again if he was going to be a part of it, Clark responded, "I wasn't going to be a part of it, I was leaving."

After making stops at a service station and a laundromat, Clark started toward his friend Julia's house. While walking toward her home, a truck in which Julia was a passenger stopped next to Clark. After Clark asked for a ride home, they went to appellants' house to meet Julia's son who Julia said would give Clark a ride to his house. Upon arrival at appellants' house, Darrell told Clark that he "popped" Sterling. Clark was surprised to learn that appellants had shot Sterling, and refused Darrell's request to help them search Sterling's body. Clark declined Darrell's additional request to help appellants load Sterling's body into a car appellants had borrowed. When Clark's ride with Julia's son did not materialize, Clark helped appellants start the car because he needed a ride home. Appellants had not disposed of Sterling's body when they left Clark at his house.

A person is not an "accomplice witness" if he cannot be prosecuted for the offense for which the accused is charged. See Creel v. State, 754 S.W.2d 205, 213 (Tex. Crim. App. 1988). To be criminally responsible for an offense committed by another, a person must be "acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense." Tex. Penal Code Ann. § 7.02(a)(2) (West 1974). A witness is not an accomplice witness merely because he or she knew of the offense and did not disclose it, or even concealed it. See Russell v. State, 598 S.W.2d 238, 249 (Tex. Crim. App. 1980), cert. denied, 449 U.S. 1003 (1981). If there is doubt whether a witness is an accomplice witness, the trial court may submit the issue to the jury on whether the witness was an accomplice as a matter of fact "even though the evidence weighs in favor of the conclusion that the witness is an accomplice as a matter of law." See Kunkle v. State, 771 S.W.2d 435, 439 (Tex. Crim. App. 1986), cert. denied, 492 U.S. 937 (1989). In the instant cause, the trial court instructed the jury on the factual issue of whether Clark was an accomplice witness.

Clark did not actually participate in the murder, nor is there any showing that Clark was indicted for any offense growing out of the instant offense. Appellants urge that Clark is an accomplice witness because he told Darrell Brown that he could see his shoes, and in light of the fact that Clark helped appellants start the car after appellants had loaded the deceased's body into the vehicle. We find these facts insufficient to show that Clark participated in the murder of the deceased. Therefore, Clark was not an accomplice witness as a matter of law. See Kunkle, 771 S.W.2d at 439. Appellants' first point of error is overruled.

Appellant Darrell Brown groups his points of error two through seven together for discussion. In points of error two through four, appellant asserts that the trial court erred in admitting, over his objections, evidence of the details of three prior misdemeanor convictions. Appellant, in points of error five through seven, urges that the probative value of the evidence of each of these convictions was substantially outweighed by the danger of unfair prejudice. While conceding that the judgments of the prior convictions were admissible, appellant complains of the introduction of the complaints and informations in each of these causes. Appellant reasons that the pleadings contain facts and circumstances that are not relevant to the determination of any issue in the instant cause.

In proving a defendant's criminal record at the punishment stage of the trial, the courts have held that the indictment, complaint and information upon which the convictions are based are admissible. See Knox v. State, 487 S.W.2d 322, 326 (Tex. Crim. App. 1972), overruled on other grounds, 608 S.W.2d 918, 920 (Tex. Crim. App. 1980); Webb v. State, 840 S.W.2d 543, 548 (Tex. App.--Dallas 1992, no pet.). The instant cause is distinguishable from Walker v. State, 610 S.W.2d 481, 482 (Tex. Crim. App. 1980), cited by appellant, where the prosecutor sought to elicit details of a prior conviction for incest.

It appears to be appellant's further contention (points of error five through seven) that if the pleadings were relevant, the probative value of such evidence was substantially outweighed by the danger of its unfair prejudice. In such instances the evidence may be excluded. See Tex. R. Crim. Evid. 403. The party contesting the admission of relevant evidence has the burden of showing that the negative attributes "substantially outweigh" any probative value. Duckett v. State, 797 S.W.2d 906, 914 (Tex. Crim. App. 1990), overruled on other grounds, 849 S.W.2d 817, 819 (Tex. Crim. App. 1993). The only attempt appellant makes to show the prejudicial effect of the evidence is to note that the complaint in the criminal mischief offense revealed that the appellant was alleged to have "damaged the door of the complainant." We hold that the probative value of the pleadings accompanying the judgments of prior convictions was not substantially outweighed by the danger of their unfair prejudice. Appellant Darrell Brown's points of error two through seven are overruled.

The judgments are affirmed.

Tom G. Davis, Justice

Before Justices Aboussie, B. A. Smith and Davis^*

Affirmed on Both Causes

Filed: March 23, 1994

Do Not Publish

^* Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988).