Raymond Joe Taylor v. State ( 2014 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
RAYMOND JOE TAYLOR, §
No. 08-12-00143-CR
Appellant, §
Appeal from the
v. §
355th Judicial District Court
THE STATE OF TEXAS, §
Hood County, Texas
Appellee. §
Cause No. CR11748
§
OPINION
Raymond Joe Taylor appeals his conviction on three counts of Aggravated Assault with a
Deadly Weapon. The jury assessed a sentence of 80 years’ in prison, to run concurrently, and a
$10,000.00 fine. In his sole issue on appeal, Taylor contends that there was insufficient
independent evidence to corroborate the inculpatory testimony of an accomplice witness. For the
following reasons, we affirm.
BACKGROUND
Factual History
This case arises out of a shooting incident in Granbury, Texas. On August 3, 2010,
twenty-six-year-old Appellant and nineteen-year-old Caleb Fonseca stopped at a Shell gas
station on their way to visit Appellant’s wife at the Jalapeno Tree Restaurant. Fonseca and
Appellant were acquaintances. Fonseca would give Appellant rides and Appellant in turn would
give Fonseca gas money. While at the gas station, Fonseca got into a verbal altercation with
David Tarvin and Clint Morton, members of the Dynasty gang who had been harassing Fonseca
and sending him online death threats via Myspace messages. While the argument was going on,
another car carrying Dynasty member Christian Castillo, his girlfriend Teresa Rosenquist, and
Kristin White arrived at the gas station. Tensions continued to escalate before convenience store
employees informed everyone in the group that they were going to call the police.
What happened next is in dispute. Although Appellant elected not to take the stand in his
own defense, the trial court admitted, without objection, a redacted video recording of
Appellant’s police interrogation the night of the shooting. In the video, Appellant said that he
told Fonseca that if he was going to get into a fight, then he should get the fight over with, but
that Appellant wanted no part in the fight and he wanted Fonseca to take him home. He also said
that Fonseca complied and drove him home, but that the group from the gas station followed the
car to the house. Appellant claims he asked Fonseca to not stop at the house because his children
were there, but that Fonseca drove there anyway.
Once the car stopped, Appellant said, he gathered up his children and nephew and
ushered them into the back room. Fonseca and the Dynasty gang members continued arguing
outside. Appellant then exited the house and told everyone to get off his property. At that point,
he said, Fonseca fired one or two shots from a shotgun. The group of people from the gas station
and Fonseca all fled the scene. Fonseca returned five to ten minutes later, stating that he left his
gun at his sister’s house and claiming that he fired because he thought the group that had
followed them to Appellant’s house had a gun. Appellant said he then got back in Fonseca’s car
because he was afraid that his wife would be worried about him not showing up on time to meet
2
her at her job, especially given that they had been fighting recently.
Fonseca and other witnesses disputed Appellant’s account of events in their trial
testimony. Fonseca, White, and Rosenquist all testified that at the gas station, Appellant had
suggested that if the group really wanted to fight, they should go to his home in the Indian
Harbor subdivision because the police would not intervene there. Fonseca and Rosenquist
testified that everyone agreed to this arrangement, loaded into three separate cars, and then
departed for Appellant’s house. Fonseca further testified that prior to leaving for the gas station,
Fonseca had Appellant place Fonseca’s shotgun into Appellant’s house. Fonseca said that during
the car ride back to Appellant’s house from the gas station, Appellant asked Fonseca where he
kept the bullets for his shotgun. When Fonseca replied that they were in the trunk, Appellant
purportedly told him to “[p]op the trunk when we pull up” to the house.
White testified that when she arrived at Appellant’s house, she witnessed Fonseca open
the trunk of his car at Appellant’s house, remove a bag, and hand the bag to Appellant.
Appellant then told White, “[d]on’t worry about it, little mama. I’m just taking my CDs inside,”1
before stepping into his house. Fonseca maintained that the bag actually contained shotgun
ammunition. White saw stray shotgun shells in the trunk, yelled out that Fonseca had shotgun
shells, and then ran to her car. Fonseca then walked toward the front door.
Forensic analysis indicated that a gunman wielding a shotgun fired three shots from the
porch and driveway in front of Appellant’s house. The identity of the gunman was in dispute at
trial. Neighbors testified that they heard gunshots and found bullet holes on their property, but
only two witnesses actually identified the gunman at trial. White, who suffered facial injuries
from shotgun pellets and broken glass, admitted that she did not actually see who shot her, but
testified that she believed Appellant was the shooter. She also initially told police that Fonseca
1
Kristin White was four months pregnant at the time of this shooting.
3
had shot her, but later told police at the hospital that Appellant was the gunman. Megan
Bonham, the second eyewitness, testified that the gunman was a “tall” male standing on the
porch. Fonseca is 6’0” tall. Appellant is 5’4” tall.
Fonseca maintained during trial testimony that Appellant was the shooter, and that when
he asked Appellant why he was shooting, Appellant replied, “I don’t give a damn. I’ll kill them
all.” Prior to Appellant’s trial, Fonseca pleaded guilty to one count of aggravated assault arising
out of this same incident. Appellant admitted in the police interrogation video that he
encouraged Fonseca to fight the other people at the gas station, but denied firing the shotgun that
day. No fingerprints were collected from the shotgun, and no gunshot residue was found on
either Appellant or Fonseca.
Procedural History
Appellant was indicted on three counts of Aggravated Assault with a Deadly Weapon.
Appellant pleaded not guilty to all three charges. The jury found Appellant guilty on all three
counts, sentenced him to 80 years’ in prison, and assessed a $10,000.00 fine.
DISCUSSION
In his sole issue, Appellant argues that his conviction should be overturned under
TEX.CODE CRIM.PROC.ANN. art. 38.14 because biased testimony from Fonseca identifying
Appellant as the shooter is uncorroborated by other independent evidence in the record. We
disagree.
Standard of Review
The Texas Legislature has established that “[a] conviction cannot be had upon the
testimony of an accomplice unless corroborated by other evidence tending to connect the
defendant with the offense committed[.]” TEX.CODE CRIM.PROC.ANN. art. 38.14 (West 2005).
4
“The rule reflects a legislative determination that accomplice testimony implicating another
person should be viewed with a measure of caution,” since “accomplices often have incentives to
lie. . . [and] avoid punishment or shift blame to another person.” Blake v. State, 971 S.W.2d 451,
454 (Tex.Crim.App. 1998).
Evidentiary sufficiency under the accomplice witness rule is a separate level of review
created by statute that is independent from legal and factual sufficiency reviews as defined by the
federal and state constitutions. Cathey v. State, 992 S.W.2d 460, 462-63 (Tex.Crim.App. 1999).
In assessing an evidentiary challenge under the accomplice witness statute, we first eliminate the
accomplice’s live, sworn testimony at trial from consideration, Cockrum v. State, 758 S.W.2d
577, 581 (Tex.Crim.App. 1988); Torres v. State, 137 S.W.3d 191, 196 (Tex.App.--Houston [1st
Dist.] 2004, no pet.), and then review the remaining evidence in the light most favorable to the
verdict, Cantelon v. State, 85 S.W.3d 457, 461 (Tex.App.--Austin 2002, no pet.); Cathey, 992
S.W.2d at 463 n.4, to determine whether a rational juror would believe the evidence “tends to
connect the defendant” to the charged crime. Id. at 462. If not, the defendant is entitled to a
judgment of acquittal. Torres, 137 S.W.3d at 196; TEX.CODE CRIM.PROC.ANN. art. 38.17.
The precise level of evidence needed to corroborate an accomplice’s testimony and
sustain a conviction is undefined and largely hinges on the underlying facts and circumstances of
each case. Dowthitt v. State, 931 S.W.2d 244, 249 (Tex.Crim.App. 1996). “All the facts and
circumstances in evidence may be looked to as furnishing the corroboration necessary[.]” Gandy
v. State, 835 S.W.2d 238, 241 (Tex.App.--Houston [1st Dist.] 1992, pet. ref’d). “Corroboration
may rest on direct or circumstantial evidence.” Gaston v. State, 324 S.W.3d 905, 909 (Tex.App.-
-Houston [14th Dist.] 2010, pet. ref’d); see also Gosch v. State, 829 S.W.2d 775, 777
(Tex.Crim.App. 1991). Corroborating evidence “tending to connect the defendant with the
5
offense committed” under Article 38.14 does not need to “directly connect the defendant to the
crime” or “be sufficient by itself to establish guilt . . . .” Cathey, 992 S.W.2d at 462. Instead, a
showing of some evidence beyond the mere commission of an offense or beyond the defendant’s
presence before, during, or after its commission is sufficient to establish the nexus. See
Dowthitt, 931 S.W.2d at 249; Colella v. State, 915 S.W.2d 834, 838-39 (Tex.Crim.App. 1995).
“[P]resence combined with other suspicious circumstances . . . [or] evidence the defendant was
in the presence of the accomplice at or near the time or place of the offense is proper
corroborating evidence.” Barrera v. State, 321 S.W.3d 137, 148 (Tex.App.--San Antonio 2010,
pet. ref’d). Likewise, evidence of motive, opportunity, and demeanor, when taken in concert
with other evidence, may be enough to corroborate accomplice testimony. See Smith v. State,
332 S.W.3d 425, 442 (Tex.Crim.App. 2011). “Any independent evidence tending to verify an
accomplice witness’s version rather than the defendant’s version is deemed to be corroborative,
even if it goes only to a mere detail versus a substantive connection between the defendant and
the offense.” Nethery v. State, 29 S.W.3d 178, 185-86 (Tex.App.--Dallas 2000, pet.
ref’d)[internal citation and quotation marks omitted].
The State concedes at the outset of its brief that “Caleb Fonseca was an accomplice as a
matter of law because Fonseca was charged with—and pled guilty to—the same offense as
Appellant.” See also Cocke v. State, 201 S.W.3d 744, 748 (Tex.Crim.App 2006). As such, the
accomplice witness rule applies, and we review the record as a whole—minus Fonseca’s trial
testimony—to determine if there is sufficient evidence linking Appellant to the shooting.
Application of Law to the Facts
Appellant argues that absent Fonseca’s testimony, the State has failed to adduce any
evidence at trial credibly establishing anything beyond Appellant’s mere presence at the scene of
6
the shooting, which is in and of itself insufficient to support his conviction. See Dowthitt, 931
S.W.2d at 249. He notes that of the eleven witnesses the State presented in addition to Fonseca,
only two—Kristen White and Megan Bonham—identified the shooter in court. Appellant
contends that neither of those eyewitnesses can credibly establish that Appellant was the shooter.
He points to the fact that White initially identified Fonseca as the shooter as proof that she is not
a credible witness. He also argues that the fact that Bonham stated that the shooter was “tall”
when Fonseca stands at 6’0” tall and Appellant is only 5’4” is proof that Fonseca and not
Appellant actually fired the shotgun. The State responds that the witness testimony and forensic
evidence sufficiently corroborate Fonseca’s testimony under the accomplice witness rule. We
agree.
We acknowledge that the timeline of events, the vantage point of eyewitnesses, and
testimonial inconsistencies may not conclusively establish the shooter’s identity absent
Fonseca’s testimony. However, the standard for reversal under the accomplice witness rule is
not pegged to proof beyond a reasonable doubt. Cathey, 992 S.W.2d at 462. Instead, the statute
provides the remedy of acquittal only where there is little to no evidence independently
corroborating an accomplice’s testimony connecting the defendant to a crime. Id. at 463. Here,
the State has offered some evidence that could plausibly corroborate Fonseca’s testimony and
show that Appellant was connected to the shooting.
Although Appellant’s presence at the crime scene, his association with a party that pled
guilty to the offense, his self-professed disdain for the gang members, and his desire to see a
fight could be insufficient to corroborate Fonseca’s testimony when taken individually, we must
not take a divide-and-conquer approach, but instead view the record as a whole and consider
them as relevant corroborating factors when taken together. See Ex parte Martinez, 330 S.W.3d
7
891, 894 n.4 (Tex.Crim.App. 2011)(“accused’s presence in the accomplice’s company before,
during, and after the commission of the offense” may corroborate when linked to other
evidence); Dowthitt, 931 S.W.2d at 249 (presence at scene of the crime may corroborate
contingent upon linkage); Smith, 332 S.W.3d at 442 (motive evidence may corroborate
accomplice where taken with other evidence). Likewise, the fact that Appellant had the
opportunity to enter his home and retrieve a firearm prior to the shooting, although insufficient to
corroborate Fonseca’s testimony alone, becomes significant when viewed in light of the fact that
Fonseca testified he had left his shotgun at Appellant’s home and no eyewitness testified to
seeing a gun prior to Appellant’s entry into the home. Id. (opportunity evidence may be linked
with other evidence for corroboration); Gaston, 324 S.W.3d at 909 (circumstantial evidence is
proper corroborating evidence).
Apart from the inferential evidence of presence, motive, and opportunity, other witnesses
explicitly corroborated Fonseca’s version of events. White corroborated Fonseca’s claim that
Appellant set the shooting into motion when she testified that Appellant told the group at the gas
station to “[f]ollow me to my house” because “[t]here will be no law[,]” which she understood to
mean “no police.” White’s testimony also directly contradicted Appellant’s video recorded
statement in which he claimed he wanted no part in the fight, told Fonseca to drive him home,
and maintained the group from the gas station followed them to Appellant’s home on their own.
The jury, as finder of fact, was free to believe that the inconsistencies between Appellant’s police
statement and other eyewitness testimony tended to independently corroborate Fonseca’s version
of events and resolve those inconsistencies against Appellant. See Nethery, 29 S.W.3d at 185-86
(holding that “[a]ny independent evidence tending to verify an accomplice[’s]” story over a
defendant’s story is corroborative).
8
White further corroborated Fonseca’s assertion that Appellant removed a bag from the
trunk and took it with him into his house prior to the start of the shooting, thereby also
contradicting Appellant’s statement to police in which he claimed that as soon as he returned to
his house, he immediately exited the car and shepherded his children to the room. White’s
testimony that the trunk from which the bag came contained shotguns shells constituted
circumstantial evidence corroborating Fonseca’s testimony that the bag Appellant carried into
the house contained shotgun shells. Id. (evidence may be corroborative even if it “goes only to a
mere detail” and not a “substantive connection between the defendant and the offense”).
Additionally, her testimony that only a short time elapsed between Fonseca walking to the front
door while she attempted to start her car and her being shot is circumstantial evidence
corroborating Fonseca’s claim that Appellant was the gunman. Forensic testing showed that
shots were fired from the porch near the front of the house, and given the time frame, it would
have been easier for Appellant to obtain the gun from inside the house and begin shooting from
that position than for Fonseca to do the same.
Finally, evidence gathered during the course of the police investigation corroborates
Fonseca’s version of events. After the shooting, Fonseca stated he placed the loose shotgun
shells in the console of his vehicle and that he and Appellant went to Fonseca’s house and hid the
gun in Fonseca’s closet. Fonseca further testified that Appellant asked to use the restroom after
the shooting. When Appellant came out of the bathroom, “[h]e was drying off his hands on his
pants.” Fonseca and Appellant were arrested a short time later.2 Police later found the gun in
Fonseca’s closet and unspent shotgun shells in the car’s console. Forensic testing showed no
gunshot residue on either Appellant’s or Fonseca’s hands. In viewing the evidence in the light
most favorable to the verdict, we find that the State has met its burden in connecting Appellant to
2
Fourteen minutes elapsed from the time of the first 911 call until Appellant and Fonseca were arrested.
9
the aggravated assault under TEX.CODE CRIM.PROC.ANN. art. 38.14. As such, reversal of the
verdict and rendition of an acquittal judgment under the accomplice witness statute is
unwarranted.
Issue One is overruled. We affirm Appellant’s conviction.
February 26, 2014
YVONNE T. RODRIGUEZ, Justice
Before McClure, C.J., Rivera, and Rodriguez, JJ.
(Do Not Publish)
10