Howard v. State, 08-12-00154-CR

DARIUS LATREA HOWARDAKA DARIUS HOWARD, Appellant, v. THE STATE OF TEXAS, Appellee.

No. 08-12-00154-CR

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

August 20, 2014

Appeal from the 213th District Court of Tarrant County, Texas

(TC#1221982D)

OPINION

Appellant, Darius Latrea Howard, appeals his conviction for the offense of murder.¹ We affirm.

BACKGROUND

On November 21, 2010, Alysha Tann engaged in a brief fight with Appellant's girlfriend, Nicole Bogan, at the Heather Glen Apartments in Arlington. Others who were present in the area began fighting without weapons, but someone who was a distance from the brawl shot repeatedly into the crowd. One of the bullets struck Tann in the central area of her back and she died. Appellant was charged by indictment for the offense of murder. Police determined that Appellant was the registered owner of a brown Cadillac.

Multiple witnesses who were present during the shooting testified at trial. Arvis Vaughner, who was shot in his leg that evening, drove Tann to a hospital but did not see the gunman. Ron Pruitt was present when the fights and shooting occurred. Pruitt testified he had broken up the brawl and then heard gunshots. Pruitt hid behind a gate after hearing the gunshots, and could see everything because streetlights lighted the area. When he looked to see from where the shots were being fired, Pruitt saw a person he knew as "D. Howard." At trial, Pruitt identified Appellant as the person he knows as "D. Howard," testified that Appellant "fired like he didn't have no mind, like - like he didn't care," and proceeded to demonstrate how Appellant held and pointed the gun at the crowd and fired five to six shots. Although he had never met Appellant, Pruitt had previously seen Appellant at parties and while Appellant performed at a nightclub.

Bogan testified that she saw Appellant's Cadillac vehicle earlier in the evening at the apartment complex but did not see who had fired the gun. When Bogan and her friends left the area after the shooting, Bogan observed Appellant's vehicle speed up behind them on the main street by the apartments but could not tell who was driving the vehicle. When Bogan and Appellant spoke by telephone after the shooting, Appellant informed Bogan that he needed to dispose of a gun. Bogan initially went to her "granny's" house, but later left with Appellant and his friend, "C.J.," and spent the night at the home of C.J.'s girlfriend, where they consumed drugs. Bogan testified that while she was sleeping she overheard Appellant say he was going to urinate on his hands, an act that she and Appellant had learned about while watching a crime show on television.²

On cross-examination, Bogan adamantly denied that she ever informed Appellant'sdefense counsel that Appellant didn't shoot into the crowd, and asserted that she had only stated to him that she did not see Appellant "do it." In response to being asked whether she had asked Appellant why he had shot Tann, Bogan stated that she had asked Appellant that question and Appellant would deny that he had committed the act. When defense counsel asked Bogan if she was testifying because she was mad at Appellant, Bogan stated, "Me telling the truth has nothing to do with me being mad at D. Howard." Bogan admitted that prior to the commencement of trial, she posted on a social media site, "I'm pretty sure if somebody gave you an STD you couldn't get rid of . . . [y]ou'll try and kill them." Bogan described the comment as a "general thought," and confirmed that she believed Appellant had given her a sexually-transmitted disease.

Craig Gadley, Appellant's roommate, testified that Appellant owned a semi-automatic gun. Appellant and his roommate, Craig Gadley, were at their apartment on November 21, 2010, when Appellant informed Gadley that he was leaving because somebody was "getting jumped," or was going to fight, but Appellant did not tell Gadley his destination.³ Gadley testified that Appellant left with a pistol, and stated that Appellant owned a semi-automatic gun. When Appellant later returned to the apartment with the weapon, he told Gadley that he needed to dispose of the gun but never explained the reason for needing to do so. Gadley did not know if the gun was loaded or empty because he did not see the clip for the weapon. Gadley testified that he and Appellant disposed of the gun by taking it to someone Appellant knew, and later picked up Bogan, and went to Gadley's girlfriend's home.⁴

Defense counsel presented evidence that Gadley later executed an unauthorized sale of Appellant's car, which was apparently owned by Appellant's grandmother, to Gadley's girlfriend's mother. The purchaser, who was "out some money for nothing," eventually returned the car to Appellant's grandmother. Gadley was the registered owner of a white Cadillac vehicle.

Another witness at the fight, Deri Thompson, testified that she observed Appellant, a friend who she has known since 2004 or 2005, and his Cadillac at the Heather Glen Apartments. Although she initially testified, "I ran past D. Howard. . . . I ran past him right before . . . he shot," Thompson later clarified that she did not actually see Appellant with a gun or firing a gun, nor saw his face. Thompson said she knew she had run past Appellant because "everybody knows . . . his Batman race car jacket or whatever," and then stated, "When I ran past D. Howard, he had his jacket over his head like this, and I ran past him. And after that, the shots were fired (indicating)." When asked on cross-examination if she had seen Appellant, Thompson responded, "No," and she acknowledged that she believed she had seen Appellant because of the jacket and Cadillac she saw at the apartments. Through re-direct and cross-examination, Thompson testified that she knew and was absolutely certain that the person in the NASCAR Batman jacket was Appellant because she had known him "forever," and noted that she had also had an intimate relationship with Appellant but had never dated him.

The State offered into evidence a jailhouse recording of Appellant speaking with a non-defendant regarding an alibi. The State offered the recording: (1) as a statement against interest; (2) "under rule 80.36;" (3) in rebuttal to a witness who attacked the credibility of C.J. Gadley and because "Mr. Gadley had previously testified the Defendant was with him;" and (4) because witness testimony placed Appellant's vehicle at the crime scene. Appellant objected to supports an inference that Craig Gadley is "C.J."the admission of the recording on the bases that it: (1) was not relevant; (2) was more prejudicial than probative; (3) constituted an improper attack on his character; (4) was an improper attempt to rebut an alibi defense as no alibi defense had been presented; (5) was hearsay and contained the non-declarant's hearsay within hearsay; (6) was being offered in violation of Articles 36.01 and 36.02 of the Texas Code of Criminal Procedure; (7) failed to rebut "anything [Appellant has] offered;" and (8) violated Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 1374, 158 L.Ed.2d 177 (2004), because the other declarant on the recording was not available for Appellant's cross-examination. TEX. CODE CRIM. PROC. ANN. arts. 36.01, 36.02 (West 2007).

The State responded that the recording met the hearsay exception because it contained Appellant's statement against interest regarding the establishment of an alibi, and that Crawford was not implicated because Appellant's statements were his alone and did not involve police conduct or interrogation. The trial court ordered the State to redact the non-declarant's statements which were unrelated to Appellant's statements regarding the establishment of an alibi. Appellant objected to the admission of the redacted recording, re-urged his previous objections, and countered that he had not offered evidence that he could not have been present at the shooting but, rather, had presented evidence to rebut both witness testimony that Appellant's car was seen at the shooting and Gadley's testimony about driving the car to another location. Appellant complained that the introduction of the recording as a basis to show Appellant's knowledge of guilt failed to rebut any evidence Appellant had offered. The State argued that it was permitted to rebut Appellant's defensive theories about identity, scheme, plan, preparation, motive, and other defensive theories as well as to show consciousness of guilt. The trial court overruled Appellant's objections and admitted the redacted recording into evidence.

The shell casings recovered at the apartment complex were consistent with those used in a .40 semi-automatic pistol. The bullet found in Tann's body was believed to be a hollow-point bullet which is more damaging than a traditional bullet. A firearms expert testified that a person using a semi-automatic handgun must make a conscious decision to squeeze the trigger multiple times in order for the gun to fire multiple times.

When police executed a warrant for Appellant's arrest on November 22, 2010, they found Appellant hiding in a closet. Samples taken from Appellant's hands and face were tested. Kelly Belcher, a Senior Trace Analyst for the Tarrant County Medical Examiner's Crime Laboratory, testified that gunshot primer typically contains lead, barium, and antimony and explained that when a particle contains all three, it may be described as "characteristic" of gunshot primer residue, but the existence of only two of the three elements are characterized as "commonly associated" with gunshot primer residue. Belcher also explained that the presence of only two elements may appear for legitimate reasons and may be present in other environmental sources such as a car battery where lead and antimony may be found together. The results of the tests performed on Appellant's hand samples were inconclusive because particles "commonly associated" with gunshot primer residue were...