Murray v. State

DOCK TYRONE MURRAY, JR., Appellant v. THE STATE OF TEXAS, Appellee

No. 05-13-00070-CR

No. 05-13-00084-CR

No. 05-13-00090-CR

Court of Appeals Fifth District of Texas at Dallas

Dated: June 9, 2014

Affirmed as Modified; Opinion Filed June 9, 2014.

On Appeal from the 292nd Judicial District Court

Dallas County, Texas

Trial Court Cause Nos. F11-45384-V, F11-45385-V, F11-45386-V

OPINION

Before Justices Lang-Miers, Myers, and Lewis

Opinion by Justice Myers

A jury convicted appellant Dock Tyrone Murray, Jr. of three aggravated robbery offenses and assessed a punishment of three concurrent terms of fifty-five years in prison. In ten issues, appellant alleges he received ineffective assistance of counsel, the trial court erred by overruling his voir dire challenges for cause, the evidence is insufficient to support the convictions, and the trial court abused its discretion by allowing the two accomplice witnesses to testify despite an alleged violation of "the Rule." As modified, we affirm the trial court's judgments.

BACKGROUND AND PROCEDURAL HISTORY

On the evening of Tuesday, December 21, 2010, at around 8:30 p.m., Sheresa Tuggle and a friend from California, Kyle Shubel, visited the Zone D'Erotica adult lingerie and novelty store on Central Expressway at Spring Valley Road in Richardson, Texas. Tuggle and her friend werebrowsing the t-shirts when she noticed three men enter the store—a white male, an Hispanic male, and a black male. Tuggle noticed the men were wearing heavy coats, which seemed odd since it was unseasonably warm that day. The Hispanic male moved towards her and told her to go to the counter, where he took the money out of her purse. When she told him to put it back, the white male, who by that point was standing behind the counter, told her to face the wall. In addition to approximately $130 in cash, the Hispanic male took Tuggle's driver's license, the key to her truck, and a couple of house keys. The black male took Shubel's watch and Blackberry. Tuggle testified that after the men took their belongings, she and her friend were told to go into a back room and lay face down on the carpet. She noticed that the cashier, who was forced to lie down on the ground with them, was very upset. The cashier begged the men not to kill her and repeatedly told them she had two children. One of the men replied that if she wanted her children to have a "happy Christmas," she should stay on the floor and do what she was told. Tuggle got up when she thought she heard the three men leave the store. After making sure they were gone, she and Shubel used a fax machine to call 911.

Shubel testified that he and Sherry Tuggle were looking at t-shirts at the Zone D'Erotica when a black male wearing a bulky coat approached him and told him to move over to the counter. When Shubel hesitated to move towards him, thinking it was store security or perhaps a joke, the individual gestured towards his right hand. Shubel could see he had a pistol. Shubel said he was familiar with firearms because he had been an NRA member for nearly two decades and produced video games that required him "to do a significant amount of research on profiles and appearance of firearms." The gun he saw was not a toy, and he thought it looked like an 82 Beretta. He said that once they got to the counter, the black male began frisking him, taking his Blackberry, his wallet, and his watch. After the men went through the cash register and Tuggle's purse, they took them to the back room and told them to lay on the ground. He said the menasked for the tapes from the store's video surveillance system and when they were told it was a "satellite surveillance system," they threw the computer monitor to the ground. Shubel recalled that the store's cashier, who was with Shubel and Tuggle in the back room, "was noticeably afraid and freaking out."

Tera Mitchell, the cashier who was working at the Zone D'Erotica on the night of the robbery, testified that she saw three men—a white male, a black male, and a man who appeared to be Hispanic—enter the store at approximately 8:30 p.m. She was talking to the white male in a "caged" or "sectioned" area at the back of the store (which contained pornographic videos and various adult devices) when she noticed he was wearing a jacket, shorts, and black gloves, which was odd given the warm weather. She became suspicious and returned to the register and removed the money from that day and hid it, leaving $50 in the register. Eventually, the white male went over to the counter, climbed over it, and opened the register. He took the money from the cash register and went through Mitchell's purse, taking her "money and stuff." She did not see the two customers in the store until she was told to go to the back room. She said the black male had a tattoo scar under his eye and was the one holding the gun when they were in the back room. The only thing he said to her was that if she did not cooperate "no one would have a Merry Christmas." When they were in the back room, the robbers also ordered Mitchell to open the store safe. She told them that she could not do that but she "could call someone and get it open for them." Mitchell testified that the robbers "didn't want to do that."

Tuggle, Shubel, and Mitchell all identified appellant from photographic lineups and in court as the black male who participated in the robbery. On the night of the robbery, Tuggle was shown photographic lineups but was unable to identify anyone. Nine days later, on December 30, 2010, she was shown another photographic lineup and identified all three individuals involved in the robbery, but testified she was only "about 50 percent" certain of her identificationof appellant as the black male she saw because his back was turned to her almost the entire time and she rarely saw his face. Tuggle remembered, however, that the bridge of his nose "was distinctive with the eyes." The morning that she testified in court, Tuggle viewed a photographic lineup and identified appellant in court as one of the individuals who committed the robbery. After Tuggle identified appellant, the in-store video surveillance footage was played for the jury. Watching the video footage from one of the store's surveillance cameras, she noted that a black male wearing an orange baseball cap could be seen "meandering" around the store shortly before the robbery, and that the same video feed later showed him holding a gun. Shubel testified that when he selected appellant's photograph from the lineup, he was "[i]n excess of 50 percent" sure of his identification of the man because he had gotten a good look at his face. Shubel also identified appellant in court. Mitchell testified that she did not identify anyone in the first photo lineup the police showed her but did make an identification from a photo lineup shown to her on December 30, 2010, and she testified she was "a hundred percent sure" of her identification. She identified appellant in court as the black male she saw in the store that day.

The lead detective in the case was Adam Perry, with the Richard Police Department's Crimes Against Persons (CAPERS) unit. He testified that he interviewed the three complaining witnesses (Mitchell, Shubel, and Tuggle), viewed the video surveillance footage, consulted a database of law enforcement agencies for assistance in identifying suspects, and decided to release the surveillance video to the media. Following the media release, the Richardson Police Department received several tips identifying the white male suspect in the surveillance footage as Tommy McClendon. About one week later, a jailer at the Dallas County Jail contacted the Richardson police and identified the Hispanic suspect as Eric Ellis. Perry examined Ellis's driver's license and jail book-in photos, and found him to be the "spitting image" of the Hispanic individual seen in the surveillance footage. After Tera Mitchell identified Ellis in a photographiclineup as one of the suspects--Perry noted Ellis was "light-complected" and had a receding hairline and a mole on the top of his head—Perry obtained a warrant for Ellis's arrest.

The Richardson police soon learned Ellis's mother lived in Farmer's Branch. Perry went to the mother's residence along with officers from the Farmer's Branch Police Department. When the officers knocked on the door, Ellis answered. Perry immediately recognized Ellis and took him into custody.

Ellis was transported to the Richardson Police Department, where Perry read him his Miranda rights and interviewed him. During the interview, Ellis admitted to his involvement in the Zone D'Erotica robbery and provided information regarding appellant. He told Perry that he, appellant, and the white male suspect, who he knew as "White Chocolate" (he did know the individual's real name), committed the robbery. He positively identified appellant as the black male suspect in the robbery. Ellis also told Perry that appellant's last known address was a Budget Suites motel in Lewisville.

Ellis received a telephone call from appellant while he was being interviewed by Perry. Perry asked Ellis to set up a meeting with appellant at Ellis's mother's house in Farmer's Branch. Appellant was arrested on the street where Ellis's mother lived. Brent Gibson, at that time a Richardson Police Department detective, testified that when police officers searched Ellis's mother's house--they had a search warrant and entered with her consent--they found clothing matching that worn by Ellis during the robbery and an item (a vibrating sex toy) taken from the store during the robbery.

During his interview with Perry, appellant denied any involvement in the Zone D'Erotica robbery. Appellant admitted the individual in the surveillance video looked like him, but it was not him. He also told Perry that it looked like someone he knew named "Sleepy." But appellant provided no information on "Sleepy" and Perry could find no one by that name in the police...