No. AP-74,912
Marcus Druery, Appellant,
v.
The State of Texas
On Direct
Appeal from Brazos Country
Keasler, J.,
delivered the opinion of the Court, in which Meyers,
Price, Womack, Hervey, Holcomb, and
Cochran JJ., joined. Johnson, J.,
concurred in
point of error fourteen and otherwise joined the opinion of the
Court. Keller, P.J., filed a
concurring opinion.
O P I N I O N
In December 2003, a jury convicted Marcus Druery of a capital
murder committed on October 31, 2002.
(1) Based on the
jury's answers to the special issues set forth in Texas Code of
Criminal Procedure Article 37.071, Sections 2(b) and 2(e), the
trial judge sentenced Druery to death.
(2) Direct appeal
to this Court is automatic.
(3) After
reviewing Druery's twenty-one points of error, we find them to be
without merit. Accordingly, we affirm the trial court's judgment
and sentence of death.
Statement of Facts
On October
30, 2002, Druery went to Skyyler Browne's apartment on the Texas
State Technical College campus in Waco where both were students.
Browne was commonly known by his nickname "Rome." Druery asked
Rome to travel with him to Bryan; Rome hesitated but eventually
agreed to go. Rome, who was known to have sold marijuana, took his
cell phone, $400 to $500, his gun, and some marijuana. No one at
the school ever saw him again.
Druery later told a Texas Ranger
that, after he and Rome had traveled from Waco to Bryan, they
partied into the night, but Rome wanted to go home. Druery
recounted to the Ranger that Rome called a girlfriend, and the
girlfriend picked him up from the Contiki Club in an orange
Cadillac. Law enforcement, however, was never able to locate an
orange Cadillac.
Joquisha
Pitts and Marcus Harris told a different story. Pitts was Druery's
former girlfriend, and Harris was Druery's younger friend who was
still in high school. Pitts recounted at trial that she had known
Rome for only a couple of days when she witnessed his murder. She
accompanied Druery and Rome to the Contiki Club, and on the way,
the group picked up Harris, as well as some ecstasy tablets and
some embalming fluid, which is put on cigarettes and smoked to
produce a high.
Harris recounted at trial that this was his first
meeting with Rome. Around 1:00 to 1:30 a.m., at Druery's
suggestion, Druery, Rome, Pitts, and Harris left the Contiki Club
to go to rural property owned by the Druery family. Pitts drove
Druery's car as Druery navigated because she had never been there
before. Neither Pitts nor Harris was aware of Druery's plans.
During the
drive to the country, Druery claimed that someone was following
them, and he repeatedly asked Rome for his gun so he could shoot
whomever it was. Rome refused. Once at the property, Druery
unlocked the gate and drove the group the rest of the way to a
stock pond. Using the vehicle's headlights for illumination, each
member of the group took turns shooting Rome's gun at bottles they
had thrown into the water. At this time, Druery called Pitts to
the car and told her he was going to kill Rome, saying he wanted
Rome's "stuff." Pitts reminded Druery that Druery had a two-year-old
son, and she ultimately believed that Druery was "just playing."
After he
shot the gun, Druery claimed that the ammunition had run out, and
he returned to the driver's seat of the car. Pitts saw that Druery
was taking bullets from the car's console, wiping them clean with
a rag, and placing them in the pistol's magazine. Druery then
called Harris to the vehicle, telling him that he planned to shoot
Rome, but Harris believed that Druery was "tripping" on embalming
fluid that he had smoked. Druery then ordered both Pitts and
Harris to sit in the car.
Standing
near the pond, Rome pulled his jacket or a hood over his head to
block the wind as he attempted to light a pipe or cigar filled
with marijuana. Druery skulked toward Rome under the cover of
darkness, held the gun within six inches of Rome's head, and fired.
As Rome's body fell, Druery fired a second shot into Rome's neck,
and then he fired a third shot into Rome's body as it lay on the
ground. Pitts and Harris began to cry and scream, and both saw
Druery kneel over Rome's body. Druery returned to the vehicle with
Rome's cellular phone, money, marijuana, and gun. He attempted to
calm his hysterical companions by giving each forty dollars.
Soon
thereafter, Druery obtained some gasoline (perhaps with Harris's
assistance) and poured it on Rome's body. He set it ablaze, and
the three left as the body burned. During the drive, Druery
instructed Pitts and Harris on how to respond to questions about
Rome. He told them to say that Rome's girlfriend picked him up in
an orange Cadillac to take him to get his sister in Washington
D.C. and that they didn't see him again. The next day, Druery
returned to the pond with Pitts and two others, burned the body a
second time, and threw the body into the pond. Later, Harris
assisted Druery in disposing of the murder weapon.
Pitts
eventually went to the police and told them that she was scared
and wanted to get it off her chest. Harris told authorities that
he thought he would die because he believed Druery would not want
to leave any witnesses to the killing.
Accomplice Witness Testimony
Druery's points of error one through nine are related. In points
of error one and three, Druery asserts that the evidence is
insufficient to prove that he committed the underlying predicate
felony offense of robbery during the course of the commission of
murder. He argues that the only evidence he committed robbery came
from two witnesses, Pitts and Harris, whom he maintains were
accomplice witnesses as a matter of law. He then reasons that
because of the witnesses' status as accomplices, the accomplice
witness rule,
(4) which
requires corroboration of an accomplice's testimony by other non-accomplice
evidence that tends to connect the defendant to the charged
offense, also requires that the testimony of Pitts and Harris
concerning the underlying robbery be corroborated. Druery contends
that such corroborating evidence concerning the underlying robbery
is wholly lacking.
In point of error two, Druery urges us to overrule our previous
holding in Holladay v. State
(5) that the
accomplice witness rule does not require the non-accomplice
testimony to corroborate a defendant's connection to the specific
element that raises the offense from murder to capital murder.
Here, the specific element is the underlying robbery, which Druery
claims in points of error one and three is not corroborated by
non-accomplice witness evidence. In points of error four and five,
Druery contends that the trial judge erred when he refused to
instruct the jury that Pitts and Harris were accomplices as a
matter of law. In points of error six and seven, Druery contends
that the trial judge's instruction to the jury regarding whether
Pitts and Harris were accomplice witnesses as a factual matter was
constitutionally inadequate. He argues that the instruction failed
to provide sufficient guidance to allow the jury to reliably
ascertain the witnesses' status. And in points of error eight and
nine, Druery argues that the trial judge's instruction allowing
the jury to determine whether Pitts and Harris were accomplice
witnesses as a factual matter constituted an improper comment on
the weight of the evidence.
All of these
claims rest upon the threshold issue of whether Pitts and Harris
were accomplices--either as a matter of law or of fact--to the
capital murder or a lesser-included offense of the capital murder.
If they are not accomplices, then there is no error in the trial
judge's refusal to instruct the jury that the witnesses were
accomplices as a matter of law. Also, if Pitts and Harris are not
accomplices, then the trial judge's instruction regarding
accomplice witnesses as a matter of fact was superfluous and did
not harm Druery. Indeed, such an instruction could only benefit
him because it allowed the jury to require corroboration of the
witnesses' testimony if it believed that the witnesses were
accomplices to Rome's murder.
Similarly,
if Pitts and Harris are not accomplices, then the superfluous
accomplice witness instruction as a factual matter in this case
cannot be considered an improper comment on the weight of the
evidence. Again, the instruction could only benefit Druery by
requiring additional corroborating evidence that would otherwise
not be required. Last, if Pitts and Harris are not accomplices,
then a review to determine whether non-accomplice evidence
sufficiently corroborated their testimony is not applicable, and
there is no need to review whether this Court's decision in
Holladay concerning accomplice witness corroboration of the
underlying predicate felony should be overturned. We find that
Pitts and Harris were neither accomplices as a matter of law nor
accomplices as a matter of fact.
Texas law requires that, before a conviction may rest upon an
accomplice witness's testimony, that testimony must be
corroborated by independent evidence tending to connect the
accused with the crime.
(6) This
accomplice witness rule creates a statutorily imposed review and
is not derived from federal or state constitutional principles
that define the legal and factual sufficiency standards.
(7) An accomplice
is someone who participates with the defendant before, during, or
after the commission of a crime and acts with the required
culpable mental state.
(8) To be
considered an accomplice witness, the witness's participation with
the defendant must have involved some affirmative act that
promotes the commission of the offense with which the defendant is
charged.
(9) A witness is
not an accomplice witness merely because he or she knew of the
offense and did not disclose it, or even if he or she concealed it.
(10) In addition,
the witness's mere presence at the scene of the crime does not
render that witness an accomplice witness.
(11) And
complicity with an accused in the commission of another offense
apart from the charged offense does not make that witness's
testimony that of an accomplice witness.
(12) In short, if
the witness cannot be prosecuted for the offense with which the
defendant is charged, or a lesser-included offense of that charge,
the witness is not an accomplice witness as a matter of law.
(13)
A trial judge, therefore, has no duty to instruct the jury that a
witness is an accomplice witness as a matter of law unless there
exists no doubt that the witness is an accomplice.
(14) For instance,
the instruction is appropriate when the witness is charged with
the same offense as the defendant or a lesser-included offense or
when the evidence clearly shows that the witness could have been
so charged.
(15) If the
evidence presented by the parties is conflicting and it remains
unclear whether the witness is an accomplice, the trial judge
should allow the jury to decide whether the inculpatory witness is
an accomplice witness as a matter of fact under instructions
defining the term "accomplice."
(16) However, as
with an accomplice as a matter of law, there must still be some
evidence of an affirmative act on the part of the witness to
assist in the commission of the charged offense before such an
instruction is required.
(17)
Here,
neither Pitts nor Harris was an accomplice as a matter of law or
as a matter of fact. Neither witness was indicted for the capital
murder or a lesser-included offense of the capital murder, and the
evidence does not show that the witnesses could have been so
charged. A review of the record reveals that testimony was
elicited regarding the actions of Pitts and Harris before, during,
and immediately after the murder as follows: (1) when Druery,
Pitts, Harris, and Rome left the Contiki Club around 1:00 a.m.,
Druery decided to go to his father's property; (2) although Pitts
drove the car, she had never been to this property before; Druery
gave her directions; (3) when the group began the drive to the
country, Pitts had no idea what Druery was going to do; (4) before
he shot Rome, Druery told Pitts that he was going to kill Rome;
(5) Druery also told Harris, "Right now I'm going to kill this
nigger, this dude"; (6) Pitts reminded Druery that he was
responsible for taking care of his two-year-old son, but Druery
responded by stating, "So, I want his stuff"; (7) Pitts thought to
herself that Druery was "just playing" when he threatened to kill
Rome; (8) Harris thought that Druery was "tripping" on the
embalming fluid that he had smoked; (9) Druery waited until Rome
had his jacket over his head to block the wind before putting the
gun about six inches from Rome's head and shooting him; (10)
immediately after he killed Rome, Druery went through Rome's
pockets and came back to the vehicle with Rome's cell phone, gun,
marijuana, and money; (11) Pitts started crying after she
witnessed the shooting; (12) Druery told Pitts, immediately after
shooting Rome, that he "shouldn't have done this in front of us";
(13) immediately after he murdered Rome, Druery asked Pitts and
Harris if they were all right and attempted to calm them down;
(14) Harris lied to Druery and told him that he was all right;
(15) Harris thought he was going to die because he believed that
Druery would not want to leave any witnesses to the murder; (16)
Druery asked Pitts and Harris if they wanted any money, and
neither Pitts nor Harris replied; Druery gave forty dollors to
each of them; (17) after the murder, Druery told Angela Minor, an
acquaintance of his, "I killed somebody"; Druery explained to
Minor that he and the others were out at the trailer where he used
to live and they were shooting a gun; he stated that he made two
people that were with him go back to the car and sit; he then
relayed that while Rome had his back turned to him, he shot Rome;
he said that the two people with him when he shot Rome were Pitts
and Harris; (18) after the murder, Druery told Lakeisha Green,
another acquaintance of his, that Rome had been trying to light a
cigarette and had placed his jacket over his head to block the
wind; at that time, Druery stated, he called out, "Say Rome," and
Rome replied "What?" to him; Druery then shot Rome in the head;
Druery also told Green that when he shot Rome, Pitts and Harris
ran to the car screaming.
This
evidence does not indicate that either Pitts or Harris performed
any affirmative act to assist in the commission of the capital
murder or a lesser-included offense of the capital murder, so, it
does not show that either witness was an accomplice as a matter of
law or an accomplice as a matter of fact. Still, Druery points to
several facts that he believes indicate that Pitts and Harris were
accomplices: (1) both Pitts and Harris were present prior to and
during the murder; (2) neither warned Rome that Druery had said
that he intended to kill Rome; (3) there was evidence that both
witnesses may have distracted Rome's attention before the shooting;
(4) Harris assisted in the disposal of the body and the gun after
the murder; and (5) Pitts and Harris received forty dollars each
after the murder. Apart from the allegation that the witnesses may
have distracted Rome, none of these acts rise to the level of an
affirmative act to assist in the commission of the capital murder
or a lesser-included offense of the capital murder.
The mere presence of Pitts and Harris at the scene of the crime
does not render either an accomplice witness, and neither Pitts
nor Harris is an accomplice witness merely because he or she knew
of the planned offense but did not disclose it.
(18) More
importantly, the testimony itself reveals that neither Pitts nor
Harris believed Druery was actually going to kill Rome. Pitts
believed Druery was "just playing," and Harris thought Druery was
"tripping" on embalming fluid. Additionally, nothing in the record
shows that either Pitts or Harris distracted Rome to help
facilitate his murder. To the contrary, the record indicates that
Druery later told Angela Minor that he made Pitts and Harris "go
back to the car and sit" before shooting Rome in the head.
As for the argument that Harris assisted in the disposal of the
body and the gun after the murder, we have previously held that
merely assisting after the fact in the disposal of a body does not
transform a witness into an accomplice witness in a prosecution
for murder.
(19) The witness
must still be susceptible to prosecution for the murder itself by
having affirmatively assisted in committing the offense.
(20) This same
logic applies to assisting Druery in disposing of the gun after
the murder; the fact that Harris did so does not make him an
accomplice witness to the capital murder. Finally, the fact that
both Pitts and Harris received forty dollars after the murder does
not transform either witness into an accomplice witness. The
record shows that neither requested the money nor did either
respond affirmatively when asked about wanting the money. It is
reasonable to infer that Druery gave Pitts and Harris the money in
an attempt to calm them after the murder because they were crying
and screaming.
In short,
none of the evidence presented at trial indicates that either
Pitts or Harris was an accomplice as a matter of law or as a
matter of fact. Therefore, we will not review their testimony
through the lens of the accomplice witness rule to determine if
sufficient non-accomplice corroborating evidence was introduced at
trial. Likewise, Druery's arguments concerning accomplice witness
instructions given to or not given to the jury and concerning the
application of the accomplice witness rule to the underlying
predicate felony offense are inapposite. Points of error one
through nine are overruled.
Admission of Letter Into Evidence
In related
points of error ten, eleven, and twelve, Druery challenges State's
Exhibits 116A, 116B, and 116C, which were admitted into evidence
by the State at punishment to rebut Druery's evidence of good
character. Exhibit 116A is a letter purportedly written by Druery
and Exhibit 116C is the letter's envelope; Exhibit 116B is a copy
of the letter and the envelope that was made before the original
Exhibits 116A and 116C were damaged in the process of extracting
latent finger prints from them. The letter contains admissions by
Druery concerning his violent acts and indicates a lack of remorse
for Rome's murder.
In point of
error eleven, Druery argues that the trial judge erred in
admitting the exhibits because they were not sufficiently
authenticated. In point of error ten, he alleges that the trial
judge erred in admitting the exhibits because the chain of custody
was broken, rendering the exhibits irrelevant. In point of error
twelve, Druery claims that the trial judge erred in failing to
instruct the jury that it must make a handwriting comparison to
determine if the letter was written by him. We find that the
exhibits were properly admitted into evidence and that the lack of
an instruction to make a handwriting comparison was not error.
The letter
in question was initially mailed from the Brazos County jail to
Jamesia Idlebird, but was returned due to insufficient postage.
The return address written on the envelope identifies Ronnie
Taylor, another inmate at the jail, rather than Druery as the
sender and lists the address for the jail as the sender's address.
By the time the letter was returned to the jail, Idlebird had been
arrested and was also incarcerated there. The returned letter was
intercepted by jail staff for security reasons because it was
addressed from one inmate to another. Jail staff forwarded the
letter to the jail administrator, who forwarded it to the chief
deputy of the sheriff's department. The chief deputy then
delivered the letter to Kenny Elliott, an investigator with the
sheriff's office working on Druery's case. Elliot received the
letter the day after general voir dire had begun. Only Elliot
testified at punishment regarding how the letter was intercepted.
The letter
itself consists of five handwritten pages and five pages of
attachments. The attachments are copies of the first page of the
typewritten transcriptions of police interviews with LaKeisha
Green, Charles Kennard, Marcus Harris, Joquisha Pitts, and Chasiti
Hall. In the first handwritten page, the writer identifies himself
as "Marky D," Druery's nickname, and identifies Green, Kennard,
Harris, Pitts, and Hall as snitches. Each of these witnesses
subsequently testified for the State at the guilt stage of the
trial, and Idlebird testified as a State witness during punishment.
The writer explains in the letter that he was forwarding only the
first pages of the transcribed interviews because he had to study
the remaining portions to prepare for trial. The writer also
explains that he had to put a different name as the sender in the
return address in an attempt to circumvent inspection by jail
authorities.
A latent
fingerprint examiner testified that eleven fingerprints on the
exhibits belonged to Druery. These latent prints were located on
three of the handwritten pages and one of the typewritten
interview pages. The examiner also testified that four other
latent fingerprints found on the letter did not match Druery's
fingerprints. Druery objected to the admission of the letter on
the ground that it was not properly authenticated and on the
ground that the chain of custody was not properly established. He
did not request an instruction for the jury to conduct a
handwriting comparison, nor did he object to the trial court's
failure to include an instruction regarding Texas Code of Criminal
Procedure Article 38.27, which concerns evidence of handwriting.
A.
Authentication
We first address Druery's claim that State's Exhibits 116A, 116B,
and 116C were not properly authenticated and should not have been
admitted into evidence. As the evidentiary rules state, "Preliminary
questions concerning . . . the admissibility of evidence shall be
determined by the court
(21) [and] [w]hen
the relevancy of evidence depends upon the fulfillment of a
condition of fact, the court shall admit it upon, or subject to,
the introduction of evidence sufficient to support a finding of
the fulfillment of the condition."
(22)
Whether a conditional fact has been proven is a question for the
jury, and the trial judge's role is limited to determining whether
there is sufficient evidence to support such a finding.
(23) In other
words, the trial judge should admit evidence that is relevant
based upon a conditional fact only if there is sufficient evidence
to support a jury finding that the conditional fact is true.
Indeed, "[t]he requirement of authentication or identification as
a condition precedent to admissibility is satisfied by evidence
sufficient to support a finding that the matter in question is
what the proponent claims."
(24) This
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."
(25) The trial
judge does not abuse his or her discretion in admitting evidence
where he or she reasonably believes that a reasonable juror could
find that the evidence has been authenticated or identified.
(26)
The issue before us, then, is whether the trial judge abused his
discretion by admitting the letter and its envelope into evidence.
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 Druery wrote the
letter.
(27) We will
affirm the trial judge's decision as long as his or her ruling is
within the zone of reasonable disagreement.
(28) Here, the
evidence in question was properly authenticated because the letter
and envelope contained sufficient distinctive internal
characteristics to support a finding that Druery was the author of
the letter.
First, the
letter was returned to the Brazos County jail while Druery was an
inmate there on or about November 4, 2003. Even though the
envelope does not have a postmark and the letter itself is undated,
it is reasonable to infer that it was mailed after February 7,
2003, the latest date indicated on the transcribed interview pages
enclosed with the letter. Druery had remained in custody since his
arrest date on November 14, 2002, and was in custody at the jail
from the earliest possible date the letter could have been mailed
until it was recovered. This evidence establishes that Druery was
in a position to mail the letter from the jail.
Second, the
writer of the letter identifies himself as Druery. The top of the
first page of the handwritten portion of the letter states, "This
is Marky D," and the letter is closed on the last handwritten page,
"Marky D a/k/a lil dip." The evidence at trial showed that Druery
is known as "Marky D."
Third, the
letter was sent to Idlebird, Druery's cousin and a witness in his
case. Fourth, the content of the letter identifies five witnesses,
all of whom had given statements to the police and were going to
testify for the State against Druery. The writer identifies all of
these witnesses as snitches. Fifth, the letter includes the cover
page of transcribed interviews with each of the witnesses the
writer identifies as snitches. It is therefore reasonable to infer
that Druery had access to these transcriptions. Sixth, the
handwritten letter discusses facts known to Druery regarding his
case, including statements that Pitts and Harris had witnessed the
murder and talked with police. Seventh, the author writes that the
return address had a different name than the true sender because
the true sender was attempting to avoid having the letter read by
jail staff. Eighth, eleven of Druery's fingerprints were
positively identified as being on the letter or on the attached
transcriptions.
Druery did
not present any evidence of tampering or other fraud regarding the
letter. So while Druery is correct that a possibility does exist
that another person knew and had access to all of this information
as well as blank pages containing Druery's fingerprints upon which
to write the letter, 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. The
letter was properly authenticated, and the trial judge's decision
to admit the letter was not an abuse of discretion. Point of error
eleven is overruled.
B.
Chain of Custody
Next, Druery
complains that the chain of custody for the exhibits was not
established because Investigator Elliot did not personally seize
the letter and envelope in question. He asserts that under the
circumstances, there was no chain of custody connecting the
writing of the letter to Druery.
A trial judge has great discretion in the admission of evidence at
trial,
(29) and although
the evidentiary rules do not specifically address proper chain of
custody, they do state that identification for admissibility
purposes is satisfied if the evidence is sufficient to support a
finding that the matter in question is what its proponent claims.
(30) As stated
above, there was sufficient evidence before the trial judge to
support the finding that Druery authored the letter in question.
Absent evidence of tampering or other fraud, which has not been
presented here, problems in the chain of custody do not affect the
admissibility of the evidence.
(31) Instead,
such problems affect the weight that the fact-finder should give
the evidence, which may be brought out and argued by the parties.
(32) Point of
error ten is overruled.
C.
Jury Instruction
Turning to Druery's claim that the jury should have been
instructed to make a handwriting comparison, Texas law provides, "It
is competent to give evidence of handwriting by comparison, made
by experts or by the jury. Proof by comparison only shall not be
sufficient to establish the handwriting of a witness who denies
his signature under oath."
(33) Druery
argues that the trial judge committed error when he did not charge
the jury at punishment that it could compare the handwriting of
the letter in question to the handwriting of other letters known
to have been written by him in determining the authenticity of the
letter.
(34) He reasons
that without such an instruction, a reasonable juror will merely
assume that the letter was written by him. Druery concedes that he
did not request an instruction regarding jury comparison or object
to the lack of such an instruction. He argues, however, that the
lack of such an instruction caused him to suffer egregious harm.
(35) We disagree.
In reviewing charge error, we must first determine whether error
exists.
(36) If we find
error, we must then determine whether the error caused sufficient
harm to require reversal.
(37) As we have
stated, the degree of harm necessary for reversal depends upon
whether the error was preserved.
(38) Error
properly preserved by an objection to the charge will require
reversal as long as the error is not harmless.
(39) We have
interpreted this to mean that any harm, regardless of degree, is
sufficient to require reversal.
(40) But when the
charging error is not preserved, a greater degree of harm is
required, and this standard of harm is described as egregious harm.
(41) Errors that
result in egregious harm are those affecting the "'very basis of
the case,'" those depriving "the defendant of a 'valuable right,'"
or those that "'vitally affect a defensive theory.'"
(42)
Druery fails
to demonstrate that there was any error at all in the omission of
a charge concerning handwriting comparison. He never denied that
he was the author of the letter, and we cannot say that the
decision to not request such an instruction or to not object to
the lack of such an instruction was not a matter of trial strategy.
But even if we were to assume error in failing to instruct the
jury to make a handwriting comparison, such error was not
egregious. Druery does not explain how the omission of the
instruction at issue harmed him other than to argue that this case
was very close as to whether a life or death sentence was
appropriate. But as the State points out, other instructions in
the punishment charge served to instruct the jury as to its duty
as fact-finder.
The jury was instructed, "You are the exclusive judges of facts
proved, of the credibility of the witnesses, and the weight to be
given their testimony[.]" The jury was additionally told, "You
cannot consider any evidence of unadjudicated extraneous crimes or
bad acts other than the one charged in the indictment in this case
for any purpose unless you find and believe beyond a reasonable
doubt that the defendant committed such acts, if any." These
instructions served to guide the jury in its evaluation of the
letter with regard to the chain of custody, the fingerprint
evidence, and the contents of the letter itself. As we have stated,
when a refused charge is adequately covered by the charge given,
no harm is shown.
(43) Because
Druery fails to demonstrate that the omission of the instruction
was erroneous or that the omission, even if erroneous, constituted
egregious harm, point of error twelve is overruled.
Instruction on Offense of Abuse of Corpse
In point of error thirteen, Druery complains that the trial judge
erred when he refused Druery's request to charge the jury on the
offense of abuse of corpse. Druery concedes that abuse of corpse,
while a less serious offense than capital murder, is not a lesser-included
offense of capital murder.
(44) He was
therefore not entitled to the instruction. Point of error thirteen
is overruled.
Instruction on Lesser-Included Offense of First-Degree Murder
In his
fourteenth point of error, Druery complains that the trial court
should have instructed the jury at guilt, sua sponte, on
the lesser-included offense of first-degree murder. He argues that
the failure to include the instruction amounted to fundamental
error even though Druery, through counsel, unequivocally informed
the trial court that the lesser-included instruction was not
desired. We find that Druery is estopped from bringing this claim.
Texas law mandates that a trial court submit a charge to the jury
setting forth "the law applicable to the case,"
(45) and as this
Court has stated, "[An appellant] must object to the charge before
he may be heard to complain on appeal about 'errors claimed to
have been committed in the charge, as well as errors claimed to
have been committed by omissions therefrom or in failing to charge
upon issues arising from the facts.'"
(46) On the other
hand, this Court has stated that if no proper objection was made
at trial to the jury charge, an appellant must claim that the
alleged error was fundamental.
(47) An appellant
will obtain a reversal only if the error was so egregious and
created such harm that the he or she "has not had a fair and
impartial trial--in short 'egregious harm.'"
(48) We have
noted, however, that "[i]f a party affirmatively seeks action by
the trial court, that party cannot later contend that the action
was error."
(49) Indeed, "the
law of invited error estops a party from making an appellate error
of an action it induced."
(50)
Here, the
record reveals that Druery, through counsel, affirmatively advised
the trial judge that he did not desire a charge on the lesser-included
offense of first-degree murder. At the charge conference, the
following exchange took place:
THE COURT:
Has the State had an adequate opportunity to review the proposed
charge?
[STATE]: We
have, Your Honor.
THE COURT:
And are there any objections?
[STATE]: No,
Your Honor.
THE COURT: I
want to be sure the State is not requesting a lesser-included
offense of murder.
[STATE]:
That's correct.
THE COURT:
Very well. [Defense counsel], do you have any objections?
[DEFENSE]:
Yes, Your Honor, I have [three] that I will memorialize Monday
morning. I'm -- oh, I'm sorry. I have no objections to the Court's
charge as presented to us at -- at 12:40 today.
* * *
THE COURT:
All right. Court will overrule those three objections [which
concern an instruction on the use of illegally obtained evidence,
an instruction on the lesser-included offense of abuse of corpse,
and an instruction on accomplice as a matter of law rather than of
fact] with the understanding that I expect you to memorialize
those in writing on Monday before we begin. Are there any other
objections?
[DEFENSE]:
Not on behalf of Mr. Druery, Your Honor.
THE COURT:
Be sure y'all are not asking for a lesser-included offense of
murder.
[DEFENSE]:
We are not, Your Honor.
In light of the above exchange, it is evident that Druery not only
did not object to the omission of the lesser-included instruction
on first-degree murder but that he affirmatively requested, after
inquiry by the trial judge, that the lesser-included instruction
not be given. Druery induced the alleged error of which he now
complains. He may not now argue on appeal that the trial judge had
a duty to sua sponte give the jury an instruction on the
lesser-included offense of first-degree murder in the face of his
specific request that the charge not be included. Because Druery
is estopped from bringing this charge-error claim on appeal, we do
not address whether the omission of and failure to sua sponte
give the lesser-included instruction was erroneous or
amounted to egregious harm.
(51) Point of
error fourteen is overruled.
Future Dangerousness
Druery claims in his twenty-first point of error that the evidence
presented at trial was legally insufficient to support the jury's
finding that he would be a continuing threat to society.
(52) The State
has the burden of proving the punishment issue of future
dangerousness beyond a reasonable doubt.
(53) In other
words, the State has the burden of proving beyond a reasonable
doubt that there is a probability that Druery would commit
criminal acts of violence in the future, so as to constitute a
continuing threat, whether in or out of prison.
(54) In its
determination of the issue, the jury is entitled to consider all
of the evidence presented at both the guilt and punishment stages
of trial.
(55)
Indeed, when determining whether a defendant will pose a
continuing threat to society, a jury may consider a variety of
factors.
(56) As we have
said, these factors include, but are not limited to, the
circumstances of the capital offense, including: the defendant's
state of mind and whether he was working alone or with other
parties; the calculated nature of the defendant's acts; the
forethought and deliberateness exhibited by the crime's execution;
the existence and severity of prior crimes; the defendant's age
and personal circumstances at the time of the offense; whether the
defendant was acting under duress or the domination of another at
the time of the commission of the offense; psychiatric evidence;
and character evidence.
(57) But the
circumstances of the offense itself "can be among the most
revealing evidence of future dangerousness and alone may be
sufficient to support an affirmative answer to that special issue."
(58) As an
appellate court reviewing the jury's finding, we must view all of
the evidence before the jury in the light most favorable to its
finding and determine whether, based on that evidence and
reasonable inferences therefrom, a rational jury could have found
beyond a reasonable doubt that the answer to the first punishment
issue was "yes."
(59)
The evidence
presented at trial shows that Druery picked Rome up in Waco and
drove him to Bryan. He attempted on several occasions to obtain
Rome's gun while at a club and on the drive out to the Druery
property. At the property, Druery was able to get the gun while
he, Pitts, Harris, and Rome shot the gun into a stock tank. During
this time, Druery informed both Pitts and Harris that he was going
to kill Rome. Pitts reminded Druery that Druery was responsible
for taking care of his two-year-old son, but Druery's response was
"So, I want his stuff."
After
ordering Pitts and Harris back to the vehicle, Druery approached
Rome in a manner by which he could not be seen, held the gun
within six inches of Rome's head, and shot him once in the head,
followed by two additional shots to his neck and body. Druery then
took a cell phone, some marijuana, and some cash from Rome's body.
He also kept the gun. Druery attempted to destroy evidence of the
crime by twice burning the body and by dumping it into the stock
tank. Additionally, directly after the murder, rather than
demonstrating remorse for the crime itself, Druery showed regret
only for killing Rome in front of Pitts and Harris, giving each
forty dollars to calm them. He also concocted a cover story to
explain why Rome would be missing and instructed Pitts and Harris
to give the story if questioned.
This
evidence shows that Druery killed Rome with calculation,
forethought, and deliberateness to obtain a minimal amount of
personal property. Moreover, he committed the murder even after
Pitts had tried to dissuade him by reminding Druery of his
obligation to care for his own young son.
Evidence
apart from the circumstances of the crime itself was also
presented to the jury. The State introduced evidence of his: five
prior marijuana possession charges; physically violent behavior
toward a former girlfriend, which caused her severe injury;
pointing a gun at another person in an aggressive manner when
confronted about a coat; physically assaultive behavior toward a
roommate; overly hostile and violent reactions in situations that
angered or frustrated him; threats while displaying a knife to
commit physical violence upon pawn shop employees who would not
refund money for some merchandise; throwing a chair and table
toward two people and swinging a mop at one of them, hitting her,
in response to an allegation that he had a puppy he was calling "Cocaine"
that did not belong to him; beating on a door, yelling that he
wanted his CD's and that he was going to kill someone; shooting a
pistol while at a club on one occasion and a shotgun on another
occasion; head-butting Pitts, hitting and kicking her, choking her,
and threatening to kill her while she was his girlfriend; heavy
drug use and his constant possession of weapons; breaking into an
apartment where a gun was later found to be missing; chasing Pitts
with a rifle when she refused to make him something to eat;
threats to kill several people; threatening his father,
grandfather, and grandmother with a hammer; attempts to kick down
a door of a house because he wanted to use the phone; destroying
property while an inmate at the county jail and making threats
while at the jail that he was going to hurt someone; and in a
letter sent from the jail containing his DNA where he wrote, "Shit
if I saw him again before I came in here I would have 2 murder
cases. Fuck em all cause Im ball when I get out."
A rational
jury could determine from all of this evidence that there was a
probability beyond a reasonable doubt that Druery would commit
criminal acts of violence in the future so as to constitute a
continuing threat, whether in or out of prison. Point of error
twenty-one is overruled.
Constitutionality of Article 37.071 of the
Texas
Code of Criminal Procedure
In his fifteenth point of error, Druery contends that the omission
of a burden of proof in the mitigation special issue,
(60) which
instructs the jury to consider all evidence in determining whether
sufficient mitigating circumstances warrant a life sentence
instead of a death sentence, is unconstitutional. He argues that
the burden should rest with the State to prove lack of mitigation
beyond a reasonable doubt but that the burden was effectively and
wrongfully placed on him to convince the jury to forgo a death
sentence for that of life.
Druery candidly concedes that this claim has been rejected by us
but asks that we revisit the issue.
(61) Druery has
not distinguished his case, and we decline Druery's invitation to
revisit the issue. Point of error fifteen is overruled.
In his sixteenth point of error, Druery complains that the rule
prohibiting the trial judge, the State, the defendant, or defense
counsel from informing the jury that a failure of the jury to
agree on a special issue would result in a life rather than a
death sentence being imposed is unconstitutional.
(62) Druery
recognizes that we have repeatedly rejected this claim
(63) but asks
that we reconsider it. He has not distinguished his case from
those in which this same claim was denied, however, and we decline
to revisit the issue. Point of error sixteen is overruled.
In his seventeenth, eighteenth, and nineteenth points of error,
Druery asserts that the trial judge's failure to define the words
"probability," "continuing threat to society," and "criminal acts
of violence" to the jury with regard to the future-dangerousness
special issue is unconstitutional.
(64) Druery
acknowledges that we have previously rejected these claims
(65) but asks
that we reconsider them.
As we have previously stated, "This Court has repeatedly held that
the terms . . . 'probability,' 'criminal acts of violence' and 'continuing
threat to society,' . . . require no special definitions."
(66) "Where terms
used are words simple in themselves, and are used in their
ordinary meaning, jurors are supposed to know such common meaning
and terms and under such circumstances such common words are not
necessarily to be defined in the charge to the jury."
(67) In addition,
the Supreme Court of the United States has concluded that the
submission of this special issue, even without the definitions in
question, is sufficient to constitutionally guide the jury's
determination.
(68) We decline
to reconsider our previous holdings, especially when it has not
been shown that Druery's case is distinguished from those cases in
which these same claims were rejected. Points of error seventeen,
eighteen, and nineteen are overruled.
Similarly, Druery contends in his twentieth point of error that
the trial court's failure to define the jury-instruction term
"moral blameworthiness" with regard to the mitigation special
issue, which asked whether there was sufficient mitigating
circumstance or circumstances to warrant a sentence of life rather
than death,
(69) is
unconstitutional. The jury was instructed at punishment that it "shall
consider mitigating evidence to be evidence that a juror might
regard as reducing the defendant's moral blameworthiness."
(70) The question
of whether the failure to define the term "moral blameworthiness"
has already been decided adversely to Druery for the same reasons
discussed above,
(71) and he does
not distinguish his case from those previously decided. We decline
to revisit the issue. Point of error twenty is overruled.
We affirm
the judgment of the trial court.
Delivered:
April 4, 2007
Publish
*****
1. Tex. Penal Code Ann. ?
19.03(a).
2. Tex. Code Crim. Proc.
art. 37.071 ? 2(g).
3. Tex. Code Crim. Proc.
art. 37.071 ? 2(h).
4. Tex. Code Crim. Proc.
art. 38.14.
5. 709 S.W.2d 194, 199 (Tex.
Crim. App. 1986).
6. Tex. Code Crim. Proc.
art. 38.14.
7. Cathey v. State,
992 S.W.2d 460, 462-63 (Tex. Crim. App. 1999).
8. Paredes v. State,
129 S.W.3d 530, 536 (Tex. Crim. App. 2004); Kunkle v. State,
771 S.W.2d 435, 439 (Tex. Crim. App. 1986).
9. Paredes, 129 S.W.3d
at 536.
10. Kunkle, 771
S.W.2d at 439.
11. Id.
12. Id.
13. Id.;
Paredes, 129 S.W.3d at 536.
14. Paredes, 129
S.W.3d at 536.
15. Id.
16. Id.
17. Kunkle, 771
S.W.2d at 440.
18. See id. at
439.
19. Paredes, 129
S.W.3d at 536.
20. Id.
21. Tex. R. Evid. 104(a).
22. Tex. R. Evid. 104(b).
23. Harrell v. State,
884 S.W.2d 154, 159-61 (Tex. Crim. App. 1994); Gonzales v.
State, 929 S.W.2d 546, 550 (Tex. App.--Austin 1996, pet.
ref'd).
24. Tex. R. Evid. 901(a).
25. Tex. R. Evid.
901(b)(4).
26. Jackson v. State,
968 S.W.2d 495, 499 (Tex. App.--Texarkana 1998, pet. ref'd).
27. Moses v. State,
105 S.W.3d 622, 627 (Tex. Crim. App. 2003); Angleton v. State,
971 S.W.2d 65, 67 (Tex. Crim. App. 1998).
28. Moses, 105 S.W.3d
at 627.
29. Montgomery v. State,
810 S.W.2d 372, 378-79 (Tex. Crim. App. 1990).
30. Tex. R. Evid. 901(a);
Kingsbury v. State, 14 S.W.3d 405, 407-08 (Tex. App.--Waco
2000, no pet.).
31. Tex. R. Evid. 901(a);
Lagrone v. State, 942 S.W.2d 602, 617 (Tex. Crim. App.
1997).
32. Tex. R. Evid. 901(a).
33. Tex. Code Crim. Proc.
art. 38.27.
34. See Tex. Code
Crim. Proc. art. 38.27.
35. Almanza v. State,
686 S.W.2d 157, 171 (Tex. Crim. App. 1985).
36. Id. at 171;
Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App.
1996).
37. Hutch, 922 S.W.2d
at 171-72 (quoting Almanza, 686 S.W.2d at 172).
38. Id. at 171.
39. Id.
40. Id.
41. Id.
42. Id.
43. Davis v. State,
651 S.W.2d 787, 792 (Tex. Crim. App. 1983).
44. See Rousseau v.
State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993); Tex. Code
Crim. Proc. art. 37.09.
45. Tex. Code Crim. Proc.
art. 36.14.
46. Posey v. State,
966 S.W.2d 57, 61 (Tex. Crim. App. 1998) (quoting Tex. Code Crim.
Proc. art. 36.14); see also Tex. Code Crim. Proc.
art. 36.19.
47. Almanza, 686
S.W.2d at 171.
48. Id.
49. Prystash v. State,
3 S.W.3d 522, 531 (Tex. Crim. App. 1999).
50. Id.
51. Almanza, 686
S.W.2d at 171-72.
52. See Tex. Code
Crim. Proc. art. 37.071 ? 2(b)(1).
53. Tex. Code Crim. Proc.
art. 37.071 ?? 2(b)(1), 2(c); Ladd v. State, 3 S.W.3d
547, 557-58 (Tex. Crim. App. 1999).
54. Tex. Code Crim. Proc.
art. 37.071 ?? 2(b)(1), 2(c).
55. Id.
56. Wardrip v. State,
56 S.W.3d 588, 594 (Tex. Crim. App. 2001); Keeton v. State,
724 S.W.2d 58, 61 (Tex. Crim. App. 1987).
57. Wardrip, 56
S.W.3d at 594.
58. Id.; Muniz
v. State, 573 S.W.2d 792, 795 (Tex. Crim. App. 1978).
59. Ladd, 3 S.W.3d
at 558.
60. Tex. Code Crim. Proc.
art. 37.071 ? 2(e)(1).
61. See Howard v. State,
941 S.W.2d 102, 119 (Tex. Crim. App. 1996) (citations omitted);
see also Blue v. State, 125 S.W.3d 491, 501 (Tex. Crim.
App. 2003).
62. Tex. Code Crim. Proc.
art. 37.071 ?? 2(a)(1), (g).
63. Davis v. State,
782 S.W.2d 211, 222 (Tex. Crim. App. 1989).
64. See Tex. Code
Crim. Proc. art. 37.071 ? 2(b)(1).
65. King v. State,
553 S.W.2d 105, 107 (Tex. Crim. App. 1977).
66. Earhart v. State,
877 S.W.2d 759, 767 (Tex. Crim. App. 1994).
67. King, 553 S.W.2d
at 107.
68. Jurek v. Texas,
428 U.S. 262, 275 (1976).
69. Tex. Code Crim. Proc.
art. 37.071 ? 2(e)(1).
70. Tex. Code Crim. Proc.
art. 37.071 ? 2(f)(4).
71. Blue, 125 S.W.3d
at 505 (citing Wright v. State, 28 S.W.3d 526, 537 (Tex.
Crim. App. 2000); Ladd, 3 S.W.3d at 572-73; Raby v.
State, 970 S.W.2d 1, 8 (Tex. Crim. App. 1998); Cockrell
v. State, 933 S.W.2d 73, 93 (Tex. Crim. App. 1996)).
