Derrick Darnell Posey v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-94-00429-CR

Derrick Darnell Posey, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT

NO. 44,078, HONORABLE JACK W. PRESCOTT, JUDGE PRESIDING

PER CURIAM

A jury found appellant, Derrick Posey, and his codefendants, Marvin Clair and

Anthony Hurst, guilty of capital murder committed in the course of a robbery. Act of April 16,

1985, 69th Leg., R.S., ch. 44, § 1, 1985 Tex. Gen. Laws 434 ( Tex. Penal Code Ann.

§ 19.03 (a)(2), since amended). The State having waived the death penalty, the district court

assessed punishment at imprisonment for life. We will affirm. (1)

1. Sufficiency of evidence.

Celester German testified that he spent the evening of September 5 shooting dice

and selling drugs at a Killeen apartment complex that was a well-known drug market. Many other

people were present, including appellant, Clair, and Hurst. Clair was armed with a BB pistol that

was easily mistaken for a .45 caliber semiautomatic firearm. Hurst was carrying a .25 caliber

pistol. German overheard Hurst and Clair saying "they needed some money" and "they were

going to do a robbery." Appellant was not present during this conversation.

About midnight, Nathaniel Tabron drove to the apartment complex to purchase

cocaine. While Tabron was negotiating in the parking lot with a drug dealer named Red,

appellant and Clair approached Tabron's car. Clair pointed the BB pistol at Tabron's head and

attempted to seize the cash in Tabron's hand. Appellant came to Clair's aid when Tabron resisted.

As the three men struggled, Hurst walked up and fatally shot Tabron with the .25 caliber pistol.

Appellant gave two written statements to the police that were admitted in evidence

after being edited to delete references to his codefendants. In the first of these statements,

appellant said:

I then heard [blank] say he was going to get somebody tonight. By that I mean he

was going to jack somebody, by that I mean taking somebody's money or car while

trying to sell some dope . . . . [blank] I did see a gun on him. The gun he had

was in his front waist shorts. The gun was a 45 regular size all black automatic.

This was the first time I saw this gun. [blank] Afterwards, a dopefiend pulled up

. . . . Red went to the car. Red then came back to where we were and told us that

it was a hundred dollar bite. . . . All of us then started walking to the breezeway

located on the southside of the apartment complex [blank]. Red tried to service the

guy. Red was going back to his car [blank]. That's when I decided to help [blank]

by grabbing the dopefiend's right wrist and twisted it so that he could let go of the

gun, so that [blank] could get the dopefiend's money and for the dopefiend to let

go of the gun. [blank] The gun [blank] used to shoot the guy was a little .25

caliber chrome automatic with a brown handle. . . . I was just trying to help him

finish robbing the dopefiend, not to shoot him. . . . I tried to help [blank] finish

robbing the guy when the dopefiend grabbed [blank] gun.

Appellant's second statement read:

I heard [blank] say that he was going to jack someone. Right after that [blank] and

[blank] walked to a corner by themself [sic]. After their little talk, [blank] said he

was going to jack someone again. When [blank] said this the second time, he still

had the black gun in his shorts.

The district court charged the jury on the law of parties. Tex. Penal Code Ann.

§§ 7.01 , 7.02(a)(2), (b) (West 1994); see Livingston v. State , 542 S.W.2d 655, 660 (Tex. Crim.

App. 1976) (law of parties applies to prosecution for capital murder). Appellant concedes that

there was ample evidence to prove that he was a party to the lesser included offense of aggravated

robbery, but urges that the evidence was legally and factually insufficient to prove that he was a

party to capital murder.

If, in the attempt to carry out a conspiracy to commit one felony, another felony

is committed by one of the conspirators, all conspirators are guilty of the felony actually

committed, though having no intent to commit it, if the offense was committed in furtherance of

the unlawful purpose and was one that should have been anticipated as a result of carrying out the

conspiracy. Sec. 7.02(b). The key to the existence of a criminal conspiracy is an agreement

between two or more persons to commit a felony. Tex. Penal Code Ann. § 15.02 (a)(1) (West

1994). German testified that he heard Clair and Hurst agree to commit a robbery. Appellant

argues, however, that there was no evidence that he agreed to be part of this conspiracy or was

even aware that Clair and Hurst were acting in concert.

An agreement to engage in a conspiracy may be inferred from the acts of the

parties. Tex. Penal Code Ann. § 15.02 (b) (West 1994); see Farrington v. State , 489 S.W.2d 607,

609 (Tex. Crim. App. 1972); Walker v. State , 828 S.W.2d 485, 487 (Tex. App.--Dallas 1982, pet.

ref'd) (agreement may be proved circumstantially). In his statement to the police, appellant

admitted that he knew of the plan to rob a "dopefiend." Later, appellant actively assisted Clair

in the commission of the attempted robbery. Viewing this evidence in the light most favorable

to the verdict, the jury could rationally conclude that appellant conspired with Clair and Hurst to

commit an armed robbery, that Hurst murdered Tabron in furtherance of the conspiracy, and that

the murder was an offense that should have been anticipated as a result of carrying out the

conspiracy. See Jackson v. Virginia , 443 U.S. 307 (1979); Geesa v. State , 820 S.W.2d 154 (Tex.

Crim. App. 1991); Griffin v. State , 614 S.W.2d 155 (Tex. Crim. App. 1981) (test for legal

sufficiency). Considering all the evidence equally, instead of in the light most favorable to the

verdict, the jury's verdict is not so contrary to the overwhelming weight of the evidence as to be

clearly wrong and unjust. See Orona v. State , 836 S.W.2d 319 (Tex. App.--Austin 1992, no pet.);

Stone v. State , 823 S.W.2d 375, 381 (Tex. App.--Austin 1992, pet. ref'd as untimely filed) (test

for factual sufficiency); and see Clewis v. State , No. 450-94 (Tex. Crim. App. January 31, 1996)

(adopting Stone test for factual sufficiency).

The evidence supports the conclusion that Hurst intentionally murdered Tabron in

the course of and as a party to the robbery conspiracy. As a coconspirator, appellant was also

guilty of the murder. Because we find the evidence legally and factually sufficient to sustain

appellant's conviction as a coconspirator, we express no opinion whether the evidence supports

the conviction on the theory that appellant aided Hurst in the commission of capital murder. Sec.

7.02(a)(2). Points of error one and are overruled.

2. Admission of Clair's statement.

Clair gave a statement to the police implicating appellant, Hurst, and himself in the

robbery and murder of Nathaniel Tabron. Clair did not testify at trial. Clair's statement to the

police was admitted in evidence after being edited to remove incriminating references to appellant

and Hurst. The court also instructed the jury not to consider Clair's statement as evidence against

appellant or Hurst. The pertinent portion of Clair's statement reads:

I was shooting dice at the King Arms apartments. . . for about 30 minutes. I was

shooting dice with [blank] Red. [blank] Red and I shot dice for about 15-20

minutes, when this blue car pulled up on the other side of the apartments, Red

went over to service the people in the car. . . . I left the breezeway and walked

to rear of the car . . . . Then [blank] walked over to the blue car. I guess he was

trying to get the guy in the car to buy his stuff. I said, "ain't none of you all gettin

his money," and went over to the dumpster where I had thrown the BB gun earlier

and picked it up. I went back to where the blue car was and walked up to the car

from the rear and stopped by the rear drivers side window. I watched what was

going on for a minute and reached with my left hand, to grab the money that the

driver of the blue car had in his left hand, I then put the gun against the drivers

head and said "this is my money". The guy grabbed the gun with his right hand

and wouldn't let go. I struggled with him for about 3 seconds [blank]. The shot

surprised me and I took off running towards my girlfriends apartment. Celester

and I got back there first, then Kool Aid, [blank], and [blank].

In four points of error, appellant contends the district court erred by overruling his motion to

suppress Clair's statement in its entirety and by admitting in evidence the redacted version.

Appellant first contends that Clair's statement should have been suppressed because

it was involuntary. Appellant's motion to suppress the statement was based solely on appellant's

constitutional right of confrontation. U.S. Const. amend. VI; Tex. Const. art. I, § 10. The

motion did not complain that Clair's statement was involuntary and appellant's brief does not refer

us to any place in the record where he objected to Clair's statement on that ground.

Clair did move to suppress his statement as involuntary. In support of the motion,

Clair testified outside the jury's presence that he gave his statement only after numerous threats

and promises were made by the interrogating officers. The officers, who also testified, denied

making any threats or promises. The district court was the sole trier of fact regarding Clair's

motion to suppress and this Court may not disturb any finding that is supported by the record.

Green v. State , 615 S.W.2d 700, 707 (Tex. Crim. App. 1980). Because the officers' testimony

supports the district court's conclusion that Clair gave his statement voluntarily, point of error

three is overruled. (2)

Appellant next urges that the admission of Clair's statement violated his

constitutional right to confront the witnesses against him. (3) An accomplice's statement implicating

the accused in the accomplice's criminal conduct is inherently unreliable. This unreliability is

compounded when the alleged accomplice does not testify and cannot be tested by cross-examination. The Supreme Court has therefore determined that a criminal defendant's

confrontation right is violated by the admission in evidence of a confession given by his

nontestifying codefendant that incriminates both defendants. Bruton v. United States , 391 U.S.

123, 135-37 (1968); see Pointer v. Texas , 380 U.S. 400, 403 (1965) (Fourteenth Amendment

incorporates confrontation right). The Confrontation Clause is not violated, however, if the

nontestifying codefendant's confession is edited to eliminate any reference to the other defendant

and the jury is instructed not to consider the codefendant's confession in determining the other

defendant's guilt. Richardson v. Marsh , 481 U.S. 200, 211 (1987); McMahon v. State , 582

S.W.2d 786, 793 (Tex. Crim. App. 1978); Proctor v. State , 871 S.W.2d 225, 230 (Tex.

App.--Eastland 1993, pet. granted).

Appellant argues that Clair's statement tended to incriminate him even after

redaction and therefore its admission violated the Bruton rule. Appellant argues that from the

manner in which the statement was edited, which left blank spaces in the exhibit, and from the

objections to its admission voiced by himself and Hurst, the jury could readily infer that the

deleted portions of the statement referred to appellant and Hurst. In Marsh , however, the

Supreme Court held that the Bruton rule applies only to a confession that expressly incriminates

another defendant. If the confession incriminates another defendant only by inference, a proper

limiting instruction is sufficient to avoid a Sixth Amendment violation. Marsh , 481 U.S. at 208-09 . Because Clair's statement, after redaction, did not expressly refer to or incriminate appellant

and because a proper limiting instruction was given, the admission of Clair's statement did not

violate Bruton . Points of error five and six are overruled.

Appellant further contends that Clair's statement was inadmissible hearsay. As

previously discussed, however, the statement was edited to remove all incriminating references

to appellant and the jury was instructed not to consider Clair's statement as evidence against

appellant. Clair's statement was offered and admitted solely as evidence against Clair and, as

such, was not hearsay. Tex. R. Crim. Evid. 801(e)(2)(A). Point of error four is overruled.

3. Admission of appellant's statement.

After his two statements to the police, edited to omit references to Clair and Hurst,

were admitted in evidence, appellant moved for admission of each statement in its entirety, citing

the rule of optional completeness. Tex. R. Crim. Evid. 107. Clair and Hurst objected, citing

their constitutional confrontation rights as discussed in Bruton . In two points of error, appellant

contends the district court erred by overruling his requests for admission of his complete, unedited

statements.

Under the rule of optional completeness, when part of a writing is offered in

evidence by a party, the whole of the writing may be inquired into by the other party. Rule 107.

The purpose of the rule is to guard against the possibility of confusion, distortion, or false

impression arising from the use of part of a writing out of context. Pinkney v. State , 848 S.W.2d

363, 366 (Tex. App.--Houston [1st Dist.] 1993, no pet.). If the State places in evidence only part

of a defendant's confession, the defendant may as a general rule introduce the deleted parts of the

confession. Reece v. State , 772 S.W.2d 198, 203 (Tex. App.--Houston [14th Dist.] 1989, no

pet.). In this cause, however, appellant's right to optional completeness conflicted with his

codefendants' constitutional right to confront the witnesses against them. When the rule of

optional completeness conflicts with a codefendant's confrontation right, the superior

constitutional right must prevail. Finley v. State , 917 S.W.2d 122, 126 (Tex. App.--Austin 1996,

pet. filed; Rodriguez v. State , 746 S.W.2d 927, 932 (Tex. App.--Houston [1st Dist.]), rev'd on

other grounds , 753 S.W.2d 161 (Tex. Crim. App. 1988); Tex. R. Crim. Evid. 101(c).

Appellant argues that parts of the redacted material were exculpatory as to him and

that, as to these parts of his statements, the rule of optional completeness should have prevailed

over his codefendants' confrontation rights. Appellant did not make this argument at trial.

Appellant sought the admission of his statements in their entirety, not just those parts he now

claims are exculpatory. Having failed to present this contention to the trial court, appellant did

not preserve it for appeal. Finley , 917 S.W.2d at 126 ; Tex. R. App. P. 52(a).

We have examined the allegedly exculpatory passages and conclude that, contrary

to appellant's contention, they are not inconsistent with the conclusion that he was part of a

robbery conspiracy. At the same time, the redacted passages unquestionably incriminated

appellant's codefendants because they described Clair's and Hurst's involvement in the robbery

and murder. The district court did not err by giving priority to the codefendants' confrontation

rights and by refusing appellant's request that his statements be admitted unedited. Points of error

seven and eight are overruled.

4. Prosecutorial argument.

During his closing arguments at the guilt stage, the prosecutor defended the

credibility of State's witness Celester German as follows:

If they had a witness out there who said he's a known liar and can't tell the

truth, they would put him on the stand. Not one single witness is called after

months and months of preparation by this army of defense lawyers. These

purveyors of reasonable doubt, not one single witness have they subpoenaed to put

on this stand to refute this evidence and they have an obligation legally, morally

in every way to put them on if they've got somebody that can help these men that

are accused. But you've got a goose egg from the defense, folks.

No objection was voiced to this argument. Later in his argument, the prosecutor said:

And I'll tell you what too, when the evidence is this overwhelming, you've

got eye witnesses to this killing, they don't have any choice but to get up here and

say yes, my guy did at least this, but you better understand when they're doing --

they're saying -- because what they're really not saying is you give me the best

deal possible because they're shopping for the best deal possible and I don't care

if I ever convince a defense lawyer in my life about anything, I'm not paid to

convince them, I'll take my chances with 12 honest people any day to convince you

unanimously of their guilt before -- I'll die before I convince a defense lawyer that

it's daylight when it is. But I'll take 12 fair, honest people any day.

And when you look at this, if you think that we've overcharged this case,

then give them the good deal that their lawyers ask for. Give them what -- what

is -- if you want the kind of society that is -- that is ruled by the weakest most

apologetic lowest common denominator, then start giving defense lawyers what

they say we're at least guilty of. Because what they're not saying is God, I hope

you give me that deal. I hope you give me murder on behalf of Mr. Hurst and I

hope you give me ag robbery on behalf of the two others, but believe me they'll

turn cart wheels out of here they'll be so gleeful and happy.

Again, no objection was made by the defense. Finally, the prosecutor responded to defense

counsel's question why another witness to the shooting was not called to testify:

Ask why didn't we call Christopher Turner. I loved that, I love that. Why

didn't you all call Christopher Turner, defense attorneys? Why didn't you all?

We'd be here from now on. Me and him, Kimball [co-prosecutor] would have a

fist fight to get to see who could cross-examine Christopher Turner. Not one of

those defense lawyers called him so he obviously would be no help to them.

As before, there was no objection to this argument.

Appellant contends the prosecutor's last quoted remark improperly shifted the

burden of proof. This contention was not preserved for review. Tex. R. App. P. 52(a). In any

case, pointing out that an available witness could have been called by the defense does not shift

the burden of proof to the accused. Point of error nine is overruled.

Appellant also complains that the prosecutor, in his quoted remarks, improperly

attacked defense counsel. Allegations of misconduct by defense counsel have no place in a

prosecutor's argument. Gomez v. State , 704 S.W.2d 770, 771-72 (Tex. Crim. App. 1985). We

do not believe, however, that the prosecutor's remarks in this cause, if error, were so

inflammatory or unfairly prejudicial as to have been incurable by an instruction to disregard.

Accordingly, appellant waived the asserted error by failing to object. Tex. R. App. P. 52(a).

Point of error ten is overruled.

The judgment of conviction is affirmed.

Before Justices Powers, Jones and B. A. Smith

Affirmed

Filed: July 17, 1996

Do Not Publish

1. Hurst's conviction was affirmed by this Court in Hurst v. State , No. 3-94-428-CR (Tex.

App.--Austin May 17, 1995, pet. ref'd) (not designated for publication). We affirm Clair's

conviction in an opinion delivered today. Clair v. State , No. 3-94-430-CR (Tex. App.--Austin

July 17, 1996, no pet. hist.) (not designated for publication).

2. Appellant also briefly argues under this point of error that the admission of Clair's

statement violated his right of confrontation. We consider and overrule this contention in

our discussion of appellant's fifth and sixth points of error.

3. Appellant cites both the United States and Texas constitutions. Appellant does not

contend, however, that our state constitution's confrontation guarantee is any broader than

that contained in the federal constitution.

in his argument, the prosecutor said:

And I'll tell you what too, when the evidence is this overwhelming, you've

got eye witnesses to this killing, they don't have any choice but to get up here and

say yes, my guy did at least this, but you better understand when they're doing --

they're saying -- because what they're really not saying is you give me the best

deal possible because they're shopping for the best deal possible and I don't care

if I ever convince a defense lawyer in my life about anything, I'm not paid to

convince them, I'll take my chances with 12 honest people any day to convince you

unanimously of their guilt before -- I'll die before I convince a defense lawyer that

it's daylight when it is. But I'll take 12 fair, honest people any day.

And when you look at this, if you think that we've overcharged this case,

then give them the good deal that their lawyers ask for. Give them what -- what

is -- if you want the kind of society that is -- that is ruled by the weakest most

apologetic lowest common denominator, then start giving defense lawyers what

they say we're at least guilty of. Because what they're not saying is God, I hope

you give me that deal. I hope you give me murder on behalf of Mr. Hurst and I

hope you give me ag robbery on behalf of the two others, but believe me they'll

turn cart wheels out of here they'll be so gleeful and happy.

Again, no objection was made by the defense. Finally, the prosecutor responded to defense

counsel's question why another witness to the shooting was not called to testify:

Ask why didn't we call Christopher Turner. I loved that, I love that. Why

didn't you all call Christopher Turner, defense attorneys? Why didn't you all?

We'd be here from now on. Me and him, Kimball [co-prosecutor] would have a

fist fight to get to see who could cross-examine Christopher Turner. Not one of

those defense lawyers called him so he obviously would be no help to them.

As before, there was no objection to this argument.

Appellant contends the prosecutor's last quoted remark improperly shifted the

burden of proof. This contention was not preserved for review. Tex. R. App. P. 52(a). In any

case, pointing out that an available witness could have been called by the defense does not shift

the burden of proof to the accused. Point of error nine is overruled.

Appellant also complains that the prosecutor, in his quoted remarks, improperly

attacked defense counsel. Allegations of misconduct by defense counsel have no place in a

prosecutor's argument. Gomez v. State , 704 S.W.2d 770, 771-72 (Tex. Crim. App. 1985). We

do not believe, however, that the prosecutor's remarks in this cause, if error, were so

inflammatory or unfairly prejudicial as to have been incurable by an instruction to disregard.

Accordingly, appellant waived the asserted error by failing to object. Tex. R. App. P. 52(a).

Point of error ten is overruled.

The judgment of conviction is affirmed.

Before Justices Powers, Jones and B. A. Smith

Affirmed

Filed: July 17, 1996

Do Not Publish

1. Hurst's conviction was affirmed by this Court in Hurst v. State , No. 3-94-428-CR (Tex.

App.--Austin May 17, 1995, pet. ref'd) (not designated for publication). We affirm Clair's

conviction in an opinion delivered today. Clair v. State , No. 3-94-430-CR (Tex. App.--Austin

July 17, 1996, no pet. hist.) (not designated for publication).

2. Appellant also briefly argues under this point of error that the admission of Clair'