Felonta Prince v. State

In The

Court of Appeals

For The

First District of Texas

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NO. 01-05-00443-CR

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FELONTA CONWAY PRINCE, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 338th District Court

Harris County, Texas

Trial Court Cause No. 972592

MEMORANDUM OPINION ON REHEARING

Appellant has filed a motion for rehearing raising five points of error.

Appellant contends that our original opinion relied on facts not supported by the

record, that we erred in holding that the evidence was sufficient to corroborate

accomplice-witness testimony, that we erred in holding that the evidence was

legally sufficient to sustain appellant’s conviction, that we erred in following

binding precedent, and that we erred in determining that the testimony of Frederick

Williams did not affect the jury’s judgment. We grant the motion, withdraw our

opinion and judgment dated January 12, 2006, and issue this opinion and judgment

in their stead. Although we have clarified some of our factual assertions, our

disposition of each of appellant’s original points of error remains the same. Given

our disposition of appellant’s motion for rehearing, appellant’s motion for en banc

consideration on rehearing is denied as moot.

A jury convicted appellant, Felonta Conway Prince, of capital murder. See

Tex. Pen. Code Ann. § 19.03(a)(2) (Vernon Supp. 2005) (proscribing murders in

the course of, among other crimes, robbery). The State had not sought the death

penalty, and the trial court assessed punishment at life imprisonment. See Act of

May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586 , 3602

(providing for automatic life imprisonment when State does not seek death

penalty), amended by Act of May 28, 2005, 79th Leg., R.S., ch. 787, § 1, 2005

Tex. Gen. Laws 2705 , 2705 (current version at Tex. Pen. Code Ann. § 12.31(a)

(Vernon Supp. 2005)). We determine (1) whether there is sufficient corroboration

of accomplice-witness testimony to sustain appellant’s conviction; (2) whether the

evidence was legally and factually sufficient to show that appellant intentionally

committed the murder of Ricardo Rodriguez in the course of committing a robbery;

and (3) whether the prosecutor engaged in prosecutorial misconduct by suborning

perjurious testimony. We affirm.

Facts

In December of 2003, appellant enlisted Abraham Villagomez to help

appellant carry out a rip-off of a drug dealer. On December 27, 2003, appellant

arrived at Villagomez’s apartment, where they planned the rip-off, sometime

between 9:00 p.m. to 9:30 p.m . About an hour later, the complainant, Ricardo

Rodriguez, arrived. Appellant struck the complainant in the head, causing him to

fall face down on the floor. Villagomez and appellant taped the complainant’s

hands and legs with duct tape that appellant had brought over earlier. Then they

carried the complainant to Villagomez’s Honda and placed him in the trunk.

Villagomez drove north on Loop 610 and entered the Hardy Toll Road.

Appellant was in the front passenger seat. They could hear the complainant

struggling in the trunk. Appellant became angry, yelling at the complainant to

stop. Appellant then shot his .38 millimeter revolver three times through the back

seat into the trunk. After passing through a couple of toll booths, Villagomez

exited and stopped in a U-turn underneath a bridge. He and appellant opened the

trunk to find the complainant still alive. Appellant then shot the complainant in the

head and told Villagomez to take him out. Villagomez took the complainant out of

the trunk and placed him on the side of the curb. Appellant and Villagomez then

got back in the Honda, appellant fired the rest of the rounds at the complainant, and

they drove off, “burning rubber.” In addition to stealing the complainant’s

cocaine, appellant took the keys to the complainant’s Infiniti, and Villagomez took

the complainant’s shoes and money.

Alva Wade Walker, a resident whose home backed up to the Hardy Toll

Road near the turnaround, heard two gunshots around 10:37 p.m. At

approximately 11:00 p.m. , a furniture delivery man, Armando Martinez,

discovered the body as he drove through the turnaround. He called 911 from his

cellular phone.

The next morning, appellant enlisted 19-year-old Frederick Williams, who

lived at the same apartment complex as Villagomez, to help remove the tires from

the complainant’s Infiniti. Williams observed appellant move Villagomez’s Honda

from one location in the complex parking lot to another location farther back.

Williams had previously seen appellant drive the Honda in the company of

Villagomez. Appellant told Williams that he had shot a person, taken his drugs

and money, and kept his car. According to Williams, appellant said that he had

been a passenger when he turned around and fired twice at the person sitting in the

back seat of the car, that he then moved the person to the trunk, and that he then

finished the person off with a shot to the head. Williams observed two bullet holes

in the back seat of the Honda.

At 8:29 a.m. that morning, police officers responded to an auto-theft-in-progress call at the same apartments. Houston Police Officer Merlie Brown

approached appellant and Williams, who were standing near the complainant’s

Infiniti. The two appeared to be removing the tires from the Infiniti. Appellant

fled and escaped. Williams told a deputy at the scene that appellant and

Villagomez were often together. Arrest warrants were obtained for Villagomez

and appellant. When Villagomez was arrested, he admitted his participation in the

murder of the complainant.

The deputy who processed the Honda found bullet holes in the back seat and

blood in the trunk. The deputy medical examiner who conducted the autopsy

found wounds consistent with the complainant’s having been shot through the back

seat and then in the head. The shot to the head produced a contact wound that was

the cause of death.

Later, Shawn Carville, another person whom appellant had tried to enlist in

removing the tires from the complainant’s Infiniti, gave a written statement, in

which he said that appellant had admitted shooting a guy three times while the guy

was in the trunk, opening the trunk, and then shooting the guy in the head. Carville

also testified at trial that Villagomez, a couple of times before Christmas, had

discussed committing a murder rip, which Carville described as “setting up a key,

the guy doesn’t carry, you know, beat his ass, trunk him.”

Accomplice-Witness Corroboration

In his first point of error, appellant contends that there is insufficient

corroboration of accomplice-witness testimony to sustain his conviction.

Appellant argues that the testimony of Williams was insufficient to tend to connect

appellant to the crime because of inconsistencies between Williams’s testimony

and that of Villagomez, the investigating deputies, and the deputy medical

examiner.

Article 38.14 of the Texas Code of Criminal Procedure requires that the

testimony of an accomplice witness be corroborated by other evidence tending to

connect the defendant with the offense committed. Tex. Code Crim. Proc. Ann.

art. 38.14 (Vernon 2005). Because Villagomez was charged by indictment with

the same offense, he was an accomplice witness as a matter of law, and the trial

court instructed the jury that it must find his testimony corroborated by other

evidence tending to connect appellant to the offense. The test for corroboration is

to eliminate from consideration the accomplice witness’s testimony and then to

examine the other inculpatory evidence to see if it tends to connect the defendant to

the offense. McDuff v. State , 939 S.W.2d 607, 612 (Tex. Crim. App. 1997).

The State points out several types of non-accomplice evidence that tend to

connect appellant to the offense: (1) admissions that appellant made to both

Williams and Shawn that he had shot a man in the same, unique way in which the

complainant had been shot; (2) appellant’s possession of the complainant’s Infiniti

shortly after the murder; and (3) appellant’s recent use of the car used to commit

the offense. We agree with the State as to the existence of these types of non-accomplice evidence. We hold that any of this evidence would be sufficient in

itself, but, in conjunction, that they overwhelmingly tend to connect appellant to

the capital murder of the complainant.

Accordingly, we overrule appellant’s first point of error.

Legal and Factual Sufficiency of the Evidence

In his second point of error, appellant contends that the evidence is legally

and factually insufficient to support his conviction.

A. Standards of Review

In a legal-sufficiency review, 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 crime beyond a reasonable doubt. King v.

State , 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). In reviewing a factual-sufficiency challenge, we ask “whether a neutral review of all the evidence, both

for and against the finding, demonstrates that the proof of guilt is so obviously

weak as to undermine confidence in the jury’s determination, or the proof of guilt,

although adequate if taken alone, is greatly outweighed by contrary proof.”

Johnson v. State , 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). The factual-sufficiency

standard “acknowledges that evidence of guilt can ‘preponderate’ in favor of

conviction but still be insufficient to prove the elements of the crime beyond a

reasonable doubt.” Zuniga v. State , 144 S.W.3d 477, 485 (Tex. Crim. App. 2004).

Under either type of sufficiency review, the appellate court should not substitute its

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 entitled to believe all, some, or none of

any witness’s testimony. Sharp v. State , 707 S.W.2d 611, 614 (Tex. Crim. App.

1986). B.Legal Sufficiency

Appellant contends that the evidence is legally insufficient to show that he

intentionally committed murder while committing or attempting to commit

robbery, making the following arguments in support: (1) there was no physical

evidence supporting the allegation that the defendant killed the complainant; (2)

there was no physical evidence supporting the allegation that defendant robbed or

intended to rob the complainant; (3) there was no evidence of the firearm used to

murder the complainant, and the actual murder weapon had not been determined;

and (4) the prosecution did not scientifically ascertain whether Villagomez or the

defendant had fired a weapon recently, despite law enforcement’s sizeable

opportunity to do so.

A legal-sufficiency review considers the evidence in the light most favorable

to the verdict. When viewed in the appropriate light, the evidence, detailed earlier,

shows that appellant planned to rob and to murder the complainant; that appellant

enlisted Villagomez to help him; that appellant shot the complainant first through

the back seat of Villagomez’s car, as the complainant lay bound by duct tape, and

then point blank in the head; and that appellant fled when police converged on him

and Williams the next morning while they were removing the tires from the

complainant’s car. We hold that a jury, viewing this evidence, could rationally

have concluded that appellant committed murder by the alleged means during the

course of committing robbery of the complainant. Appellant’s arguments do not

undermine this evidence because they are not based on evidence that is viewed in

the appropriate light. Indeed, they are based on lack of evidence. Therefore, we

hold that the evidence is legally sufficient to support the verdict.

C. Factual Sufficiency

Also in his second point of error, appellant argues that the evidence showing

guilt is against the great weight and preponderance of the evidence based on the

following: (1) Kahlil Ahmed, an employee at the One Dollar Bazaar Store on

Edgebrook, testified that Carville had been in his store with two other individuals

until 9:40 p.m. on the night of the murder;

(2) Carville testified that he and

appellant had been together at the One Dollar Bazaar Store at I-45 and Edgebrook

and had returned to appellant’s apartment complex at 10:00 p.m.; (3) Nancy

Domiguez testified that her husband, the complainant, had left home between 9:45

p.m. and 10:00 p.m., heading North on I-45 to Gulf Bank Road; (4) Villagomez

testified that appellant arrived at his apartment at about 9:30 p.m., that the victim

arrived about one hour later, and that, upon arrival, it took appellant and him about

15 to 20 minutes to put the victim into the trunk of appellant’s vehicle; (5) Walker

testified that she heard gunshots at approximately 10:37 p.m.; (6) Martinez testified

that he discovered the body at approximately 11:00 p.m.; (7) Lewis Eakins testified

that the distance from appellant’s apartment complex to the place of discovery was

37 miles; and (8) it was physically impossible for appellant to have been present at

both the One Dollar Bazaar store on Edgebrook until 9:40 p.m. and at

Villagomez’s apartment at 9:30 p.m. and still to have shot the victim under the

overpass at Hardy Toll Road at 10:37 p.m., so that his body could have been

discovered at 11:00 p.m.

Much of appellant’s challenge rests on the credibility of the defense

witnesses as to the precise times at which events happened and the alleged

incredibility of the State’s witnesses regarding the time of events. However, the

Court of Criminal Appeals has instructed that, in conducting a factual-sufficiency

review, “[t]he reviewing court should not substantially intrude upon the jury’s role

as the sole judge of the weight and credibility of witness testimony.” Ortiz v. State ,

93 S.W.3d 79, 88 (Tex. Crim. App. 2002). The jury simply may have disbelieved

appellant’s evidence, may also simply not have believed that all of the witnesses’

memories were perfectly accurate regarding the time of events, or may instead

have believed the State’s witnesses. We will not intrude on the jury’s role

concerning credibility in these circumstances. Appellant invites this Court to

disregard the general rule concerning credibility stated above. We decline to do so

because, “[a]s an intermediate appellate court, we must follow binding precedent

of the Court of Criminal Appeals.” McKinney v. State , Nos. 01-03-00565-CR, 01-03-00734-CR, 01-03-00735-CR, 2005 WL 327145 , at *3 (Tex. App.—Houston

[1st Dist.] Feb. 10, 2005, pet. granted).

We hold that the evidence on which appellant relies does not so undermine

the evidence supporting guilt as to render the verdict clearly wrong or manifestly

unjust. Accordingly, we hold that the evidence is factually sufficient to support the

verdict.

We overrule appellant’s second point of error.

Prosecutorial Misconduct

In his third point of error, appellant contends that the State engaged in

prosecutorial misconduct. Appellant alleges that one of the State’s witnesses

committed perjury during the trial on the merits, the prosecutor was aware of the

perjured testimony, and the prosecutor did nothing to correct the false testimony.

A person commits aggravated perjury if, with intent to deceive and with

knowledge of the statement’s meaning, he or she makes a false statement under

oath in connection with an official proceeding and the false statement is material.

Tex. Pen. Code Ann . §§ 37.02, 37.03, 37.04 (Vernon 2003). A statement is

material if it could have affected the course or outcome of the official proceeding.

Id. § 37.04(a). Testimony that could have affected the course of the proceeding is

material when such testimony, if believed by the finder of fact, bears directly on

the credibility of the State’s witnesses. Mitchell v. State , 608 S.W.2d 226, 228

(Tex. Crim. App. 1980). Materiality refers to statements having some substantial

potential for obstructing justice and excludes utterly trivial falsifications. Id.

In this case, appellant argues that Williams’s testimony concerning

Williams’s never having touched the Infiniti—as well as Williams’s testimony that

appellant carried a pistol; wore a cotton jacket; shot the complainant in the head,

chest, and stomach; placed the body in an empty field; and covered it up with

sticks and trees—was perjured. When trial counsel for appellant brought up the

matter during trial, the prosecutor did not recall any material variances, and trial

counsel for appellant twice asserted that he was not questioning the integrity of the

prosecutor. The trial court advised that these were matters concerning which trial

counsel could cross-examine the witness.

Indeed, trial counsel had already attempted to show that the witness varied

his description of the material of appellant’s jacket from one videotaped statement

to the next. When confronted, however, the witness could not remember having

said that the jacket was leather and testified in conformity to his videotaped

statement, in which he had said that the jacket was cotton. Regarding the locations

of the gunshot wounds, the witness did not purport to have been present to have

personally witnessed the wounds. The same is true regarding covering up the body

with sticks and trees. Appellant’s brief on appeal does not explain how the

witness’s having testified to observing appellant carrying a pistol constitutes

perjury.

More importantly, appellant’s brief does not explain how any inconsistency

mentioned by appellant could have affected the course or outcome of the trial.

Certainly, trial counsel’s use of the inconsistencies in the witness’s two videotaped

statements and the witness’s testimony at trial was abundantly developed before

the jury, so that the jury could determine which, if any, version of the witness’s

testimony was credible. However, even if this Court or the jury had determined

that each portion of the witness’s testimony of which complaint is made on appeal

was perjurious, appellant has not shown that it would have affected the ultimate

judgment of the jury that appellant was guilty of capital murder. See United States.

v. Bagley , 473 U.S. 667, 678 , 105 S. Ct. 3375, 3381-82 (1985) (stating that

defendant is entitled to new trial if false testimony could in any reasonable

likelihood have affected jury’s verdict).

Accordingly, we overrule appellant’s third point of error.

Conclusion

We affirm the judgment of the trial court.

Tim Taft

Justice

Panel consists of Justices Taft, Keyes, and Hanks.

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