Ellis v. State

JIMMY RAY ELLIS, APPELLANT v. THE STATE OF TEXAS, APPELLEE

No. 07-20-00023-CR

Court of Appeals Seventh District of Texas at Amarillo

March 18, 2021

On Appeal from the 235th District Court Cooke County, Texas

Trial Court No. CR18-00145; Honorable Janelle M. Haverkamp, Presiding

MEMORANDUM OPINION

Before QUINN, C.J., and PIRTLE and PARKER, JJ.

Appellant, Jimmy Ray Ellis, appeals from his conviction by jury of the first degree felony offense of engaging in organized criminal activity-murder,¹ enhanced, and the resulting sentence of forty years of imprisonment. Appellant challenges his conviction through three issues: (1) the evidence was insufficient to corroborate the testimony of the co-defendants; (2) the trial court erred in failing to admonish Appellant of his constitutional rights when the prosecutor failed to recuse from the case in which his brother-in-law was a witness; and (3) the trial court erred when it failed to grant a new trial or reverse the judgment to allow Appellant to accept the plea bargain offered by the State prior to trial. For the reasons that follow, we will affirm.²

BACKGROUND

This appeal involves the 2006 fatal drive-by shooting of sixteen-year-old Raymundo Torres. Appellant was not charged in this matter until 2018, some twelve years later. The indictment alleged Appellant "as a member of a criminal street gang, intentionally and knowingly commit[ted] the offense of Murder, [by] then and there intentionally and knowingly caus[ing] the death of an individual, namely Raymundo Torres, by gunfire."

The evidence presented at trial showed Torres was killed when he was shot from a passing vehicle being driven by a street gang. A witness testified that Torres was a rival gang member and, on the night of the shooting, he and Appellant drove by Torres's home for the express purpose of shooting up the home. According to his testimony, the witness was a passenger, and Appellant was both the driver and the shooter. In addition, a neighbor testified he saw shots fired from the driver's side of the vehicle as it passed by.

At the time of the shooting, the police investigated the drive-by shooting and the death of Torres. They obtained statements from various witnesses concerning what they observed that day. The police also obtained fingerprints, shell casings, ammunition magazines and clips, and a bandana from the vehicle Appellant was driving when Torres was shot; however, no arrests were immediately made.

When the matter finally came to trial, after hearing the evidence and the arguments of counsel, the jury found Appellant guilty as charged in the indictment and sentenced him as previously noted. The trial court also made an affirmative finding that Appellant engaged in conduct or committed the offense as part of the activities of a criminal street gang, as defined in section 71.01 of the Texas Penal Code, to-wit: the "Nortenos."

ANALYSIS

ISSUE ONE—ACCOMPLICE TESTIMONY

Via his first issue, Appellant argues the accomplice witness testimony offered by the State was insufficiently corroborated and, therefore, the evidence was insufficient to support his conviction. In Texas, a conviction cannot be secured on the testimony of an accomplice unless that testimony is corroborated by other evidence tending to connect the defendant to the offense. TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005). Thus, the applicable standard requires that, to corroborate accomplice testimony, some amount of non-accomplice evidence must tend to connect the defendant to the commission of the crime in some way. Joubert v. State, 235 S.W.3d 729, 731 (Tex. Crim. App. 2007) (holding that there must be "some non-accomplice evidence tending to connect the defendant to the offense"), cert. denied, 552 U.S. 1232, 128 S. Ct. 1446, 170 L. Ed. 2d 278 (2008). The non-accomplice evidence does not, however, need to be sufficient alone to convict the defendant beyond a reasonable doubt, Malone v. State, 253 S.W.3d 253, 257-58 (Tex. Crim. App. 2008); Joubert, 235 S.W.3d at 731, so long as it is sufficient to "tend to connect" the defendant to the offense.

We thus eliminate the accomplice testimony from consideration and examine the remaining portions of the record to see if there was any evidence that tends to connect the accused with the commission of the offense. Malone, 253 S.W.3d at 257 (quoting Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001)). The remaining evidence must "simply link the accused in some way to the commission of the crime[.]" Simmons v. State, 282 S.W.3d 504, 508 (Tex. Crim. App. 2009) (quoting Malone, 253 S.W.3d at 257).

While a defendant's mere presence at the scene of the crime is not sufficient to link the defendant to the commission of the offense, a defendant's presence, coupled with other suspicious circumstances, can be sufficient to tend to connect a defendant to the offense. Malone, 253 S.W.3d at 257 (citing Golden v. State, 851 S.W.2d 291, 294 (Tex. Crim. App. 1993), and Brown v. State, 672 S.W.2d 487, 489 (Tex. Crim. App. 1984)). Suspicious circumstances may include the defendant being in the company of the accomplice at or near the time of the offense. Brown, 672 S.W.2d at 489 (an appellant's presence with the accomplice witness shortly before the commission of the offense is a suspicious circumstance); LeBlue v. State, No. 03-08-00278-CR, 2010 Tex. App. LEXIS 4822, at *12 (Tex. App.—Austin June 24, 2010, pet. ref'd) (mem. op., not designated for publication) (citing Killough v. State, 718 S.W.2d 708, 711 (Tex. Crim. App. 1986)). Additionally, police observations can sufficiently connect the defendant with the offense. See Malone, 253 S.W.3d at 258-59 (concluding the officer's use of informants, following the informants to the location of the drug deal, watching the informants interact with the defendant, and then seizing drugs from the informants that they did not have before, was sufficient evidence to corroborate accomplice testimony); Herron v. State, Nos. 01-04-00640-CR, 01-04-00641-CR, 2005 Tex. App. LEXIS 5474, at *10 (Tex. App.—Houston [1st Dist.] July 14, 2005, pet. ref'd) (mem. op., not designated for publication) (finding police watching the appellant drive a separate vehicle "in tandem" with the vehicle that contained drugs and then stand next to the vehicles during the drug deal was sufficient corroborating evidence).

Lastly, when there are conflicting views of the evidence, appellate courts should defer to the fact finders' view of the evidence. Simmons, 282 S.W.3d at 508 (holding that when there are two permissible views of the evidence (one tending to connect the defendant to the offense and the other not tending to connect the defendant to the offense), appellate courts should defer to that view of the evidence chosen by the fact finder). Accordingly, if a rational fact finder could conclude that the non-accomplice evidence tends to connect the appellant to the offense, the appellate court should hold that the evidence is sufficient to corroborate the accomplice testimony. Id. at 509 (internal quotations omitted).

Appellant argues the State failed to present any "hard evidence" linking him to the shooting of Torres.³ But, the State is not required to present direct evidence. The State's theory was Appellant was the person driving the vehicle involved in the drive-by shooting and that he was the shooter. To support its theory, the State presented the testimony of two accomplice witnesses, "Indio" and "Little Rob." One of those witnesses, Little Rob, admitted to being in the vehicle when Torres was shot. Little Rob also testified Appellant was in the car with him.⁴ He said Appellant was driving and he was in the passenger seat. Little Rob said he did not have a gun, but when asked if the only other person in the vehicle had a gun, he answered, "[p]robably." Little Rob also said he did not see or hear Appellant shoot Torres, but he remembered seeing this "flash" and "believe[d]" there "were gunshots that happened."

Once Little Rob's testimony is removed from consideration, Appellant argues, the State had only evidence of latent prints in the vehicle that did not match his and physical evidence found in the car including shell casings, an ammunition magazine/clip, and a bandana, none of which was found to have his DNA on it or was in any other way connected to him. Thus, Appellant asserts, outside of the accomplice witness testimony, there was no evidence that tended to connect him to Torres's shooting. We disagree.

As noted by the State, another witness, Roy Gonzalez, testified he was present at a party where Appellant and the two accomplice witnesses were present. Gonzalez became aware that a house was going to be "shot up" and saw another party guest, Albert Arenas, punch Appellant. Furthermore, it was established that the red car seen at the site of the shooting belonged to one of Indio's ex-girlfriends, Allison Brown. At the time of the shooting, Indio had an on-and-off relationship with Brown and was living with another woman, Portia McKinnon. Brown testified Brandon Skaggs took the car to fix it after she asked Indio for some help fixing it. She also told the jury the car was never returned to her.

McKinnon testified Indio stayed with her in her apartment "off and on." She said he kept rifles and handguns and clothes there. McKinnon testified that on August 11, 2006, the day of the shooting, Skaggs and Indio were at her apartment when she came home from work. Appellant and Little Rob arrived shortly thereafter. Appellant said they were going to someone's house to "talk to them" and he asked Indio to go. McKinnon testified she saw Appellant, Little Rob, and Indio with an AK, a .22 rifle, and an SKS. She also testified that the three men later returned to her apartment and Indio was mad at Appellant and said, "it jammed, it jammed." McKinnon also noticed Appellant "was real red and he was real hyped up and everything, and they had said he got into a fight with Albert."...