Briggs v. State

1

CHARLES WADE BRIGGS, Appellant v. THE STATE OF TEXAS, Appellee

No. 06-22-00058-CR

Court of Appeals of Texas, Sixth District, Texarkana

April 21, 2023

Do Not Publish

Submitted: January 27, 2023

On Appeal from the 336th District Court Fannin County, Texas Trial Court No. CR-20-27896

Before Stevens, C.J., van Cleef and Rambin, JJ.

MEMORANDUM OPINION

Charles van Cleef Justice

On the night of July 21, 2017, at least three men forced their way into the home of Gina and Johnnie Jones, and while one of the men subdued Gina, the other men subdued Johnnie and shot him at close range in the back of his head. Johnnie survived the attempt to murder him. A Fannin County jury convicted Charles Wade Briggs of attempted^[1] murder,^[2] burglary of a habitation with intent to commit aggravated assault,^[3] and engaging in organized criminal activity.^[4] In this appeal,^[5] Briggs challenges his conviction for engaging in organized criminal activity. He contends (1) that there was insufficient evidence to support the jury's verdict that he engaged in organized criminal activity, (2) that the trial court erred when it failed to give an accomplice-witness instruction, and (3) that the evidence does not corroborate the testimony of the accomplice witness. Because we agree that the evidence was insufficient to support Briggs's conviction, we reverse the trial court's judgment and render a judgment of acquittal for the charge of engaging in organized criminal activity.

I. The Evidence at Trial

The evidence at trial showed that sometime after 10:00 on the night of July 21, 2017, Gina Jones was in her kitchen when she was knocked unconscious by an unknown intruder. When she woke up, she was laying on the floor on her back, with a man she knew as Josh on top of her holding her down with his right hand on her throat. Gina heard another man go to her door and tell a third man to come in. Those two men, one of whom had a gun in his hand, went to the back of the Joneses' house. Although Gina could not identify the two other men, she described the one with the gun as taller with dark hair and the other as shorter with curly hair. A short time later, Gina heard the gun discharge. The two men came running by, told Josh that he was supposed to keep her knocked out, and told him to get her cell phone. When the men were gone, Gina called 9-1-1 and reported that her husband had been shot by a group of men. Gina testified that sometime before the shooting, Johnnie received a telephone call from a person who said he was Josh's dad.

Ralph Belen, a Fannin County deputy, was dispatched to the home at 10:40 p.m. and was met at the door by Gina. She led him to the living room where Johnnie lay on his back. Belen testified that Johnnie was shot in the back of the head, moaned, and was in and out of consciousness.^[6]

Texas Ranger Brad Oliver conducted the initial investigation. He testified that he did not recover a shell casing but that the evidence showed that a hollow-point bullet was used. He testified that he did not recover the firearm used and did not determine the type of firearm or caliber used but that, based on the injuries Johnnie sustained and the blood spatter evidence, he thought the firearm was a handgun.

Oliver recovered Johnnie's cell phone and found several text messages, the last of which was received at 7:25 p.m. on July 21 from a person identified as "Josh." After Oliver determined that the telephone number for "Josh" belonged to Joshua Wade Briggs, Briggs's son, Gina positively identified Josh from a photograph array as the person who held her down. On July 23, Oliver went to Josh's house to take a recorded statement.

In his statement, Josh claimed he lost his cell phone three days earlier but gave Oliver the same telephone number as the one associated with "Josh" in Johnnie's cell phone. Josh said that he knew Johnnie as "Chip" and that Johnnie supplied him with methamphetamine and marihuana. He claimed that he had not gone anywhere on July 21 and that the last time he went to Johnnie's house was on either July 19 or 20. Josh maintained that Gina lied if she said that he was at Johnnie's house. Josh provided information to Oliver that he was familiar with Johnnie's house and that he knew how to enter through the back door. Oliver found that significant because Gina told him that the men invaded their home through the back door.

Oliver took Briggs's recorded statement that day. Briggs said that he got a telephone call at work on July 21 and was told that Josh left on his motorcycle. Briggs tried to call Josh even though he said Josh had lost his cell phone. He maintained that he left work a little after 8:00 p.m. and that Josh was home when he arrived about forty-five minutes later. Briggs said he would not let Josh leave after that and that he went to bed around one or two the next morning.

He denied that he knew where Josh got his methamphetamine and gave Oliver his cell phone number.^[7]

After taking those statements, Oliver obtained two photographic arrays-one that contained the photograph of Briggs and one that contained the photograph of Briggs's brother, Dallas Shane Briggs (Shane). Oliver explained that he obtained one for Shane because Shane was the president of the local chapter of an outlaw motorcycle gang called the "Kinfolk." Gina, however, was not able to identify either Briggs or Shane as the other men who invaded her home. Oliver acknowledged that neither Briggs nor Josh was associated with the "Kinfolk" gang.

When asked on cross-examination if he had any evidence that Briggs was at Johnnie's house on the night of July 21, Oliver maintained that Josh confessed that his father was at Johnnie's house during Josh's trial six months earlier. Oliver pointed out several excerpts in the transcript of Josh's testimony from that trial placing Briggs at Johnnie's house that night:

A. [By Oliver] . . . [T]he answer, it says, We -Shane and I went to the front door. I don't know where the other car went - where the other car, where they were. They - they came in the house, and I don't know where they parked at or anything like that.

So he's talking about his dad was in another vehicle. There was - two vehicles left their house, and he's talking about that car. And I believe there's one other place here. Just give me a second. I'll find it.

. . . .

A. . . . . Line 8, question was asked by the State, "Okay. Where was your dad during all of this?"

Joshua Briggs: "I don't remember. It all happened so fast. I don't remember him even being in the house."

"Okay. Your dad did go with you to the residence; is that correct?"

"He was in a different vehicle."

"But he did go to the location?"

["]We - Shane and I went to the front. I don't know where the other car went - where the other car, where they were. They came in the house.["]

Let me look here and see. I thought there was one other place, sir. Here we go. On Page 32, sir, question number - Line 23. It says, "Okay" - that was a question asked by the State. "Okay. You indicate your father was in another vehicle, but he - but he was at the" - "he was at the residence?" Question.

"I never seen him come in the house. I never seen him at the residence, but he got in the car that Mac was in."

The cell phone records of Josh, Briggs, and Gina from July 18, 2017, through July 27, 2017, were introduced into evidence. Elizabeth Buhay, an analyst with the telecommunication research analysis unit of the Texas Department of Public Safety, testified that those records showed that, on July 20 at 11:03 p.m., Briggs made a call on his cell phone to the telephone owned by Gina and that the call lasted one minute and five seconds. Buhay testified that the records showed that Briggs's cell phone exchanged calls with Josh's cell phone eight times between 5:45 p.m. and 7:59 p.m. on July 21 and that it exchanged calls with Shane's cell phone four times between 8:01 p.m. and 8:21 p.m. on July 21. In addition, Buhay testified that there was no contact between Briggs's cell phone and Shane's cell phone after July 21. Buhay testified that the records showed that Josh made a cell phone call to Gina's cell phone at 10:14 p.m. on July 21.

David Thompson, the commander of the criminal investigation division of the Fannin County Sheriff's Office (FCSO), subsequently took over the investigation. He testified that, although they suspected Josh, Briggs, and Shane were involved in the shooting based on Gina's and Johnnie's statements, the consistency of the phone records with their statements, and the inconsistencies between Josh's and Briggs's statements and the phone records, there was not enough evidence to make an arrest. This changed on August 17, 2020, when Sapphire Briggs, Josh's wife at the time, came to the FCSO to make a complaint on an unrelated matter. Thompson testified that, when he interviewed Sapphire that day, she provided information about the shooting that was not known to the public and that only people involved would know. Thompson also testified that her statement was consistent with those of Gina and Johnnie and was consistent with the phone records.^[8]

Based on that new evidence, Thompson obtained arrest warrants for Josh and Briggs. After Josh was arrested, Briggs fled into the woods as deputies pulled into his driveway. With the aid of prison dogs, Briggs was located behind a house. After his arrest, Josh was interviewed and again repeatedly denied that he had any knowledge of the shooting of Johnnie.^[9] Briggs was also interviewed and repeatedly denied that he had any involvement, that he knew Johnnie, that he was at Johnnie's house, and that he made the telephone calls.

Thompson testified that Josh was charged with attempted murder because Johnnie was shot in the head from...