Reed v. State, 06-17-00163-CR

550 S.W.3d 748

Deion REED, Appellant

v.The STATE of Texas, Appellee

No. 06-17-00163-CR

Court of Appeals of Texas, Texarkana.

Date Submitted: April 18, 2018

Date Decided: May 2, 2018

Jeff Jackson, Attorney at Law, 736–A Hwy. 259 N, Kilgore, TX 75662, for Appellant.

John J. Roberts, Assistant District Attorney, 101 E. Methvin St., Ste. 333, Longview, TX 75601, for Appellee.

Before Morriss, C.J., Moseley and Burgess, JJ.

OPINION

Opinion by Justice Moseley

Deion Reed and Torry Jamal Reed were both implicated in the murder of Deaundray Rossum. A Gregg County jury convicted Deion of one count of murder and one count of aggravated robbery. On each count, Deion was sentenced to sixty years' imprisonment and was ordered to pay a $10,000.00 fine. On appeal, Deion argues (1) that the trial court erred in failing to include an accomplice-witness instruction in the jury charge, (2) that the trial court erred in failing to suppress extraneous-offense evidence of another shooting allegedly caused by Deion, and (3) that the evidence is legally insufficient to support the jury’s findings of guilt on both counts alleged in the State’s indictment.

We conclude that Deion was not egregiously harmed by the failure to include an accomplice-witness instruction, that the trial court did not abuse its discretion in allowing evidence of an extraneous offense, and that Deion’s conviction was supported by legally sufficient evidence. Accordingly, we affirm the trial court’s judgment.

I. Factual Background

On the night of May 15, 2012, the Longview Police Department (LPD) received reports that shots had just been fired in the Signal Hill apartment complex parking lot. LPD officers Dennis Phillips and Benny Cooks were dispatched to Signal Hill with instructions to be on the lookout for an orange Mitsubishi Eclipse, which they soon spotted. While witnesses urged Phillips to quickly attend to Elginn Jackson, who was alive but had just been shot in the back, Cooks went to inspect the Eclipse. He found Rossum slumped over in the driver’s side of the vehicle, dead from gunshot wounds to the head and neck. Jackson was taken to the hospital by ambulance as Phillips and Cooks began the murder investigation.

Jimmie Redmon, a physical evidence specialist with the LPD, arrived on the scene and collected several .380 caliber and nine-millimeter cartridge casings from the parking lot. Redmon also located Jackson’s wallet on the ground, and Longview police office Chris Taylor found a cell phone later discovered to belong to Brendon Douglas. In examining Rossum, LPD found no money on his person. Redmon and Taylor processed the Eclipse for fingerprints, but only found prints from Rossum and other known occupants of the vehicle.

Cooks testified that a man named Marcus Davis was in the parking lot when the shooting occurred. Davis testified that he was living with his girlfriend, Franceshell Nelson, and their children at Signal Hill and that they were returning home when they witnessed the shooting. Nelson testified that she saw an unfamiliar man walking down the stairs as she and her oldest son entered her ground-floor apartment. While Davis, who was taking their four-year-old son out of a car seat, was still in the parking lot, Nelson heard multiple shots being fired. Nelson immediately ran inside and called 9-1-1 to report the incident. She peeked out of the window to make sure Davis and her son were okay and happened to see an "older model," "light color" car speeding by. Unfortunately, neither Davis nor Nelson could identify the shooter.

David Cheatham, a detective with the LPD, turned to Jackson in hopes that he could supply additional information. Jackson testified that he grew up with Rossum, who drove the Eclipse, and saw him "pretty much every day." On the morning of the shooting, Rossum arrived at Jackson’s house with his friend, Don Robert Perry, Jr. According to Jackson, the group’s goal for the day was to acquire a large amount of marihuana and cocaine to sell. In order to accomplish their goal, Jackson, Rossum, and Perry went to a McDonald’s in Longview to meet Douglas, who had promised Rossum that he could facilitate the drug purchase through his connection in Shreveport. Jackson testified that he was carrying $2,000.00 in cash to make the large drug purchase and that Rossum had pulled out his cash several times in front of Douglas in order to count it. After ensuring that they had enough money, the group drove to Shreveport, waited for some time for Douglas' connection, and decided to return home to Longview empty-handed after it became apparent that they would be unable to acquire the drugs. Jackson said Rossum was aggravated with Douglas for his false promise that he could get cheaper marihuana in Shreveport.

Jackson testified that Douglas "was texting a lot" on the way back from Shreveport and asked Rossum to pull into Signal Hill before dropping him home so he could purchase a marihuana blunt from someone living in an upstairs apartment. According to Jackson, Rossum let Douglas out of the back seat and waited by the car as Douglas went upstairs to buy his blunt. Jackson testified that two men wearing gray hoodies and basketball shorts approached the Eclipse, asked Rossum an undiscernible question, waited for Rossum to respond that Douglas was upstairs, and then started shooting. Jackson jumped out of the car as soon as he heard gunshots, tried to run, was shot in the back, and fell.¹ Jackson testified that he heard Douglas say, "Man, you shot me" to the shooters and then instructed them to check Jackson’s pockets. Scared, Jackson pretended to be dead as the shooters went through his pockets, but were unable to find any money.

Perry, who was in the back seat of the Eclipse with Douglas, also testified that Douglas was texting and smiling on the way back from Shreveport. Perry confirmed Jackson’s testimony that the group went to Signal Hill because Douglas wanted to purchase a blunt. He testified that he saw Douglas coming back downstairs as two men wearing gray hoodies, black shorts, black shoes, gray socks, and white undershirts approached. According to Perry, Douglas "shook their hand and looked both ways, and took off running. And then that’s when they started shooting." Because he was in the back seat, Perry was unable to escape. While he was still in the car, he saw one of the shooters reach into Rossum’s pocket to take his wallet. The shooter saw Perry, froze for a second, and ran away.

Neither Perry nor Jackson was able to identify the shooters. However, Jackson told Cheatham that they had climbed into a light-colored Lincoln with Douglas and sped off. Since Jackson’s description of the getaway car was similar to Nelson’s, the LPD set out to find the getaway vehicle.

Brandon Thornton and Chris Taylor, officers with the LPD, were both stationed at Good Shepherd Medical Center when a light-colored Lincoln dropped Douglas off at the emergency room to receive medical treatment for his gunshot wound. According to Taylor, Douglas was uncooperative, did not allow gunshot residue testing to be conducted on his hands, and claimed he had been shot at a local EZ Mart store. Thornton and Taylor were both informed that the people who brought Douglas to the emergency room were standing outside in the parking lot around a vehicle. Thornton and Taylor located the light-colored Lincoln, which was identified as belonging to Gabrina Ward. Although Ward was not present, she provided her consent to search the vehicle that was being driven by Korvarsia Skinner.

Ward testified that she allowed Skinner to borrow her light-colored Lincoln Town Car from time to time. Ward said she was getting ready to go to the store on the day of the incident and, when she was ready to leave her apartment, was shocked to find her keys missing and the car gone. Ward testified that Skinner and Douglas were at her apartment while she was getting ready, and she knew that they must have taken the car. Ward called Skinner and, according to Ward, Skinner and Douglas admitted that they had taken the car, but assured her that it would soon be returned.

During the course of the investigation, Taylor was able to extract text messages from Douglas' telephone in order to uncover more information about the Signal Hill shooting. Taylor extracted the following text message conversation between Douglas and someone using a telephone number labeled in Douglas' telephone as "Reed":

Reed: "Dnt go to [Ward’s] house wen u get back dwn hur ... If [Ward] ... call u dnt answer"

Douglas: "were yall at ... b behind ezmart in 30min"

Reed: "We still got da car wat u wnt to do"

Douglas: "b at ezmart wit da kar n thirty min"

Reed: "Ok we finna go up dur now ima park on da side"

Douglas: "u ready or not m* * * * * * * * *"

Reed: "Nigga we already hur waitin on u"

Douglas: "say yall pop da driver n I got da passenger.... okk tell [Skinner] I said iiiiiiiiiight mane"

Reed: "Do u wnt us to park in signal hill or da feed store"

Douglas: "say soon as I get out pop da driver ... signal hill"

Reed: "We gone b in da back bro...."

Douglas: "naw just park at signal hill boi ... ok bout 15min we b der"

Reed: "You want us to walk up to the car as soon as yall pull up"

Douglas: "yea wen u c him open da door open for me"

Reed: "So he gettin out"

Douglas: "yeah im n da back it’s a two door kar.... n nigga put dat bitch smooth to his head n pop his ass"

Reed: "How much he got"

Douglas: "$1000.... light"

Reed: "So when I hit the driver you.hittin the passenger?"

Douglas: "yea.... okk we finna pull up"

Reed: "Yeah"^[2]

This conversation occurred on the day of the shooting, with the last few messages being exchanged just before Rossum was shot. Because the messages established Douglas' participation in the murder, he was convicted of capital murder. Douglas v. State , 489 S.W.3d 613, 618 (Tex. App.—Texarkana 2016, no pet.). In setting out to find other suspects, the LPD spoke to Skinner.

Skinner testified that he went to Ward’s house and that, contrary to Ward’s...