Opinion

Kenneth Ray Green v. State

Court
Texas Court of Appeals, 1st District (Houston)
Filed
Jul 22, 2010
Status
Published
Cited by
0 cases
Authority
More cited than 35.3%

The opinion

Opinion issued July 22, 2010

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-09-00253-CR

———————————

Kenneth Ray Green , Appellant

V.

The State of

TExas , Appellee

On Appeal from the 209th District Court

Harris County, Texas

Trial Court Case No. 1069293

MEMORANDUM OPINION

A

jury found appellant, Kenneth Ray Green, guilty of capital murder and the trial

court assessed punishment at confinement for life. In three points of error, appellant contends

(1) that the trial court erred in admitting letters purportedly written by

appellant that were not properly authenticated and (2) that the evidence was

legally and factually insufficient to prove appellant’s identity as the

perpetrator. We affirm.

BACKGROUND

On

Mother’s Day 2006, Sally Banks, the grandmother of the deceased, heard an

argument and gunshots outside her house.

She later discovered that her grandson, Terrance Banks, had been

shot. Banks testified that her grandson

drove a white Cadillac.

Homicide

Detective R. Wedgeworth interviewed a witness, Danielle Shorter, and was

directed to the Coke Street Apartments some 15 miles away. At that site, Wedgeworth found the

complainant’s white Cadillac, which had been stripped of its rims and tires. After interviewing Xavier Sauls and Benedict

Onezine, who lived at the apartments, Wedgeworth developed two suspects,

appellant Kenneth Green a/k/a “Killa Pop” and Ryan Mitchell a/k/a “Smoke.” One of appellant’s fingerprints was

discovered on the wheel well of the stolen vehicle. Appellant was subsequently arrested. The eyewitness, Shorter, was unable to

identify him in a line-up.

At

trial, appellant’s cousin, Messiah Fritz, testified that on the day of the offense,

appellant and Smoke came by Fritz’s apartment, woke him up, and asked for a car

jack to get some tires off a car.

Appellant told Fritz that he had “taken care of business” to get the car

and that “he took someone’s life” in the process. Appellant claimed that he shot the owner of

the car five or six times.

Appellant

and Smoke then took the rims to Onzine’s apartment and asked if he could leave

them there for a few hours. Sauls, who

lived at the apartment with Onezine, testified that appellant and Smoke came by

later to pick up the rims, and Sauls heard appellant say that he had killed

someone for those rims.

At

trial, a forensic expert testified that the complainant was shot six times by

either a .38 or .357 revolver.

AUTHENTICATION

In

point of error one, appellant contends the trial court erroneously admitted letters

that appellant purportedly wrote to another inmate in the jail. Specifically, appellant complains that the

letters were not properly authenticated under Tex. R. Evid. 901(a).

Background

At trial, the State called Sauls, who testified that

appellant, along with Smoke, came to pick up a set of rims from Saul’s aunt’s

apartment. Sauls testified that he heard

appellant say that “he killed a man for the rims.”

Sauls also testified that, at the time of appellant’s trial, he, Sauls, was

in jail on a robbery charge. Sauls

testified that, while in jail before appellant’s trial, a jail trustee brought

Sauls two letters signed by “Killa Pop,” the street name used by appellant. Sauls did not write the letters and he did

not believe the trustee wrote the letters.

In the first letter, State’s exhibit 50, “Killa Pop” mentioned that Smoke

was not going to testify and asked Sauls not to testify either. “If you don’t testify, I walk,” stated “Killa

Pop.” “Killa Pop” also mentioned that

his trial date was “1-23-09” and that he was also in jail “right down the

hall.”

The second letter, State’s exhibit 51, was actually a draft affidavit

that “Killa Pop” prepared and asked Sauls to sign and have notarized. The draft affidavit that “Killa Pop” wanted

Sauls to sign stated that police “instructed [Sauls] of what to say and made

agreement not to have [Sauls’s] family kicked out of the Coke Street

Apartments.” The draft affidavit further

instructed Sauls to aver that he “had no knowledge of this crime and I have

told them that I don’t wish to testify and I’m not going to testify.”

Standard

of Review

To resolve this issue, we

must determine whether it was an abuse of discretion for the trial judge to

find that sufficient evidence was presented to support a jury finding that

appellant wrote the letters. Druery v. State , 225 S.W.3d 491, 502

(Tex. Crim. App. 2007). The trial court

does not abuse its discretion in admitting evidence when he reasonably believes

that a reasonable juror could find that the evidence has been authenticated or

identified. Id.

We affirm the trial court’s decision as long as its ruling is within the

zone of reasonable disagreement. Id.

The authentication requirement is satisfied by evidence sufficient to

support a finding that the matter in question is what its proponent

claims. Tex. R. Evid. 901(a).

Law

and Analysis

The authentication

requirement can be satisfied by showing “ Distinctive

characteristics and the like .

Appearance, contents, substance, internal patterns, or other distinctive

characteristics, taken in conjunction with circumstances.” Tex. R. Evid. 901(a)(4). In Druery , the trial court found a similar

jailhouse letter authenticated by evidence showing that (1) the defendant was

in a position to have mailed the letter from the jail, (2) the writer identified himself by the

defendant’s nickname, (3) the letter was sent to the defendant’s cousin, a

witness in the case, (4) the content of the letter identified five witnesses

who were going to testify against the defendant, (5) the letter included the

cover pages of the witnesses interviews with police, implying that the writer

had access to those interviews, (6) the letter discussed facts know to the

defendant about his case, (7) the letter stated that the return address is

false because of an attempt to keep jail staff from reading the letter, and (8)

appellant’s fingerprints were on the letter.

Id . at 503. The court also noted that there was no

evidence of tampering or any other fraud regarding the letter. Id.

Appellant argues that Druery is distinguishable because in that case the defendant’s

fingerprints were on the letter, and in this case, there are no

fingerprints. While it is true that one

of the factors the Druery court

considered was the presence of the defendant’s fingerprints on the letter, we

consider the circumstances as a whole to determine whether a rational jury

could have concluded that appellant wrote the letters.

First, we note that appellant was in

a position to have the letters delivered by a trustee to Sauls. Appellant and Sauls were both confined to the

Harris County Jail at the same time.

Second, both letters are signed by “Killer Pop,” a name that multiple

witnesses identified as appellant’s street name. Third, the letter is written to Sauls, a

witness to the charged offense. Sauls

provided police with evidence linking appellant to the stolen rims as well as a

statement that appellant had “killed someone for those rims.” Fourth, the letter referenced Smoke, another

witness in the case, and told Sauls that Smoke was not going to testify against

appellant. Fifth, the “affidavit”

referred to Sauls’s family at the “Coke Apartments,” which is where the stolen

vehicle was recovered, thus indicating a knowledge of the facts of the case. Sixth, the letter mentioned appellant’s cell

location in the Harris County Jail. Seventh,

the letter referenced appellant’s next court date.

Nevertheless, appellant argues that

Sauls possessed the same information and could have written the letters himself

in order to obtain leniency in his robbery case. The court of criminal appeals considered and

rejected a similar argument in Druery. Id. at 503 (“So while Druery is correct

that a possibility does exist that another person knew and had access to all of

this information . . . it was reasonable

for the trial judge to believe that a reasonable juror could find that the

exhibit was what the State purported it to be—a letter written by

Druery.”). Similarly, in this case,

based on the facts and circumstances discussed above, the jury could have

reasonably concluded that appellant wrote the letters admitted as State’s

Exhibits 50 and 51. Also, in this case,

as in the Druery case, there is no

evidence of tampering or fraud associated with the letters. As such, the trial court did not abuse its

discretion in admitting the letters.

We overrule point of error one.

SUFFICIENCY OF THE EVIDENCE

In

points of error two and three, appellant contends the evidence is legally and

factually insufficient to show that he murdered the complainant during the

course of committing a robbery.

Standards

of Review

We review the legal 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. Williams v. State,

235 S.W.3d 742, 750 (Tex. Crim. App. 2007) (citing Jackson v. Virginia,

443 U.S. 307, 318-19 , 99 S. Ct. 2781, 2788-89 (1979)). In doing so, we give

deference to the responsibility of the fact-finder to fairly resolve conflicts

in testimony, to weigh evidence, and to draw reasonable inferences from the

facts. Id. However, our duty requires us to “ensure that the evidence

presented actually supports a conclusion that the defendant committed” the

criminal offense of which he is accused. Id.

In a factual sufficiency review, we view all the evidence in

a neutral light and set aside the verdict if the proof of guilt is so obviously

weak as to undermine confidence in the jury’s determination, i.e., that the

verdict seems “clearly wrong and manifestly unjust,” or the proof of guilt,

although legally sufficient, is nevertheless against the great weight and

preponderance of the evidence. Watson v. State, 204 S .W.3d 404, 414–15

(Tex. Crim. App. 2006). We note that a jury is in the best position to evaluate

the credibility of witnesses, and we afford due deference to the jury’s

determinations. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006).

A

person commits the offense of murder when he intentionally or knowingly causes

the death of an individual. Tex. Penal Code Ann. § 19.02(b)(1)

(Vernon 2003). A murder is a capital

murder if intentionally committed in the course of committing or attempting to

commit a robbery. Tex. Penal Code Ann. § 19.03(a)(2)

(Vernon Supp. 2009).

Legal Sufficiency

In

support of his legal sufficiency challenge, appellant asserts that “there was

no proof that appellant was involved in the shooting,” and that “[n]o proof was

offered by the State that appellant alone or with another planned or formed the

intent prior to or concurrent with the murder.”

Appellant points out that no eyewitnesses testified at trial and the

only eyewitness to the crime was unable to identify him in a line-up. He also questions the credibility of Sauls

and Fritz.

Viewing all of the evidence in the light most favorable to

the verdict, we note that the complainant’s vehicle was recovered from an

apartment complex about 15 miles away from the shooting. In fact, the car was found with its tires and

rims removed in front of a building at the Coke Street Apartments where

appellant’s cousin, Fritz, lived.

Appellant’s fingerprints were found on the car near the wheel well. The complainant was shot with either a .38 or

.357 Magnum revolver. Appellant was seen

carrying a .357 Magnum. An eyewitness,

Shorter, described the shooter, and her description matched appellant’s

physical appearance. Appellant’s cousin,

Fritz, saw him stripping the tires off of a vehicle that matched the victim’s

vehicle. Appellant bragged to Fritz that

he “took someone’s life” to obtain the vehicle and that he shot its owner five

or six times. Forensic evidence showed

that the complainant was shot six times.

Onezine testified that appellant asked him if he could store the rims

and tires in Onezine’s apartment for a few hours. Sauls testified that appellant came by the

apartment where Sauls was living with his Aunt Mary and Onezine to retrieve a

set of time and rims that were there.

While appellant was putting the rims in a car, Sauls heard appellant

tell someone else that he had killed a man for those rims. There was also evidence that appellant tried

to persuade Sauls not to testify.

Viewing the evidence in the light most favorable to the

verdict, a reasonable trier of fact could have found beyond a reasonable doubt

that appellant murdered the complainant while stealing the rims from the

complainant’s car. Accordingly, we hold that the evidence is legally sufficient

to support appellant’s conviction.

Factual Sufficiency

In

support of his factual sufficiency challenge, appellant argues that Sauls and

Fritz are both lacking in credibility and stood to gain in their own criminal

cases by testifying for the State.

Appellant also argues that he

“was only circumstantially tied to the offense based on the statements [by

Sauls and Fritz] as well as the fact that he was present and attempted to sell

the rims and tires from the vehicle stolen in this offense[.]” We

note that circumstantial evidence is probative of a defendant’s guilt and is

sufficient by itself to establish guilt. Guevara v. State, 152 S.W.3d 45,

49 (Tex. Crim. App. 2004). We also note

that issues of credibility are resolved by the jury. Marshall ,

210 S.W.3d at 625 . A jury’s decision is

not manifestly unjust merely because the jury resolved the issue of witness

credibility if favor of the State. See Westbrook v. State , 29 S.W.3d 103,

111 (Tex. Crim. App. 2000).

We

conclude that the verdict is not “clearly wrong and manifestly unjust” and the proof

of guilt is not against the great weight and preponderance of the evidence. See

Watson, 204 S.W.3d at 414-15. Accordingly, we hold that the evidence is

factually sufficient to support appellant’s conviction.

We overrule appellant’s second and

third points of error.

CONCLUSION

We affirm the judgment of the trial

court.

Sherry

Radack

Chief

Justice

Panel

consists of Chief Justice Radack and Justices Bland and Sharp.

Do

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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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