2014-10-28

STATEMENT OF THE CASE

Appellant brings this appeal from the judgment of his conviction for aggravated robbery. See Tex. Penal Code Ann. Sec. 29.03 (West 2011). He here asserts the judgment should be reversed because of alleged error in the jury charge and the improper receipt of hearsay evidence.

The Potter County grand jury on March 7, 2012 indicted appellant for a capital murder offense alleged to have occurred on or about July 3, 2011. CR: 5. After a trial had February 3-6, 2014, a jury convicted appellant of aggravated robbery, a lesser-included offense. CR: 116. Trial of the punishment issue was to the jury. The jury assessed appellant’s punishment at fifty-one (51) years imprisonment. CR: 116. The court imposed sentence on February 6, 2014. CR: 116. Appellant timely, on February 10, 2014, filed a notice of appeal.

FACT STATEMENT

The victim, 51-year old Ricky Provence, was brutally murdered and robbed of his possessions on or about July 3, 2011 in his Amarillo apartment. The victim’s daughter Cristin Provence (“Cristin”) last saw her father July 2, a Friday. RR3: 51. On that occasion, the victim had stopped by Cristin’s sister’s residence, where Cristin happened to be. RR3: 36. The victim told Cristin a “crazy girl” had asked him for a ride at a bar and was in his truck. RR3: 36, 66. Cristin never again spoke with the victim. RR3: 37. On July 3 and 4, she telephoned the victim about twenty times, receiving no answer. RR3: 38. Finally, about 8 a.m. July 5 she went to the apartment building where the victim resided, and noticed his pickup truck was not there

Cristin did not have a key to the apartment building, so she went by several of the victim’s friends’ residences; no one had seen the victim. RR3: 41. About 1 p.m. that day, Cristin, accompanied by her boyfriend Josh Williams (“Josh”), went back to the apartment building. RR3:41,43. Peering through the victim’s apartment window, Cristin saw that the refrigerator door was open. RR3: 43. Josh broke the window, cutting himself, but did not try to gain entry through the window. RR3: 43, 54. Instead, neighbor Jeremy Martin (“Jeremy”), possessing a key to the building because his mother lived in the apartment next to the victim’s, opened the building door. Jeremy supplied a hatchet and broke through the victim’s apartment door. RR3: 43. Josh found the victim’s body in the bedroom. Jeremy’s mother than telephoned the police.

All the victim’s firearms were missing from the apartment, Cristin noticed. RR3: 45. Further, although the victim’s pickup and its keys were missing, photographs of Cristin’s son the victim had on his key ring had been removed from the key ring and placed on the living room table; likewise, photographs of the son had been removed out of the victim’s wallet and placed on the table.

Co-defendant Leslee Wiseman’s DNA was found in the victim’s apartment; appellant’s DNA was not found there. RR3: 143. Incriminating appellant were circumstantial evidence and the statements against penal interest made by appellant and Wiseman to others.

Samuel Warrick was staying temporarily at the apartment of his friend “Kimmy” the night of July 2; the apartment was near the Pine Shed lounge off the Canyon Expressway. RR3: 101. Around sunrise, as Warrick slept, Wiseman crawled through the open bedroom window and fell on top of him. RR3: 102. Wiseman was hysterical, “babbling a bunch of stuff.” RR3: 104. According to Wiseman, she and appellant “robbed a guy and left him hurt.” RR3: 104. Leslee told Warrick the victim was putting his hands on her and she called appellant to come help her. RR3: 105. Upon arriving, appellant beat up the victim and Wiseman choked the victim with her hands, Wiseman related to Warrick. RR3:

Wiseman handed a Crown Royal bag containing pocket watches and trinkets to Warrick and asked him to keep it for her. After Warrick called to Wiseman’s mother, who also was in Kimmy’s apartment, Wiseman left the apartment with David Dunn, Warrick recounted

Later that day, appellant telephoned Warrick and asked if Wiseman had given Warrick a Crown Royal bag for safekeeping. Warrick confirmed he had the bag, and agreed to meet appellant at a convenience store to deliver the bag to appellant. RR3: 110. As the two sat in appellant’s parked truck, appellant told Warrick appellant had “screwed up”. Appellant said he had “hit the guy too many times” and that Wiseman had gotten on top of the guy and choked him out. RR3: 112. They had intended to rob the victim and take his money, appellant declared to Warrick. To that end, appellant explained, Wiseman flirted with the victim at a bar. RR3: 128. Warrick told appellant he did not want to hear any more about the occurrence, and left; he saw no more of appellant or Wiseman.

David Dunn also was at Kimmy’s apartment the night in question. Sometime between 10 p.m. and 12 midnight, he saw appellant and Wiseman there together briefly; appellant and Wiseman then left the apartment. RR3: 204. A few hours later, Dunn related, Wiseman came back to the apartment, entering through a window. RR3: 205. When she arrived that second time, Wiseman was “acting irate,” Dunn noted. RR3: 206. Dunn accompanied Wiseman outside when she decided to leave, and he saw that she had the victim’s pickup truck. Angered by that observation, Dunn took the truck keys, and recovered the victim’s shotgun, from Wiseman.

Laura Colson (“Laura”) saw appellant and his girlfriend Peggy Reid (“Peggy”) at a house1 about 11: 30 p.m. July 3. Appellant remarked that he had killed someone. RR3: 267. About 5:00 the next morning, at appellant’s request, he, Laura, and Peggy walked to the apartment building where the victim resided. Appellant said he wanted to see “if the guy was really dead.” RR3: 270. She knew the victim and knew he lived in the building, Laura testified, but did not realize he was the person appellant was referencing. RR3: 271. Laura stayed downstairs in the laundry room while appellant and Peggy went into the apartment to be
checked. RR3: 270-71. After staying in the apartment 20-25 minutes, appellant and Peggy told Laura to exit the building via the fire escape upstairs

Dewanna Adams (“Dewanna”) was Wiseman’s cellmate at the Potter County Jail in July, 2011. RR4: 73. Wiseman shared with the other seven inmates in the eight-person jail pod the details of the offense she had been arrested for. RR4: 74. Dewanna heard Wiseman state she, appellant, and Brian Childs were involved in the killing. RR4: 76. According to the plan, Wiseman related to the inmates, Wiseman seduced the victim at a bar and accompanied him home, where the others met her. RR4: 76. The group then beat the victim and searched his apartment for valuables, Wiseman told Dewanna. The next day, Wiseman recounted to the inmates, she met appellant and Childs back at the victim’s apartment; the victim was still alive, and they strangled him.

Dewanna did not give a statement to police about what Wiseman had said until February 28, 2013. RR4: 79. She came forward after meeting the victim’ sister Renee in a drug class. RR3: 79. Renee had reported what Dewanna had told her to police, and the police came to interview Dewanna The testimonial accounts of Wiseman and appellant being at Bosco’s bar before the victim’s murder and at a convenience store the following day were somewhat corroborated by video recordings from those establishments. Cause of the victim’s death and the nature of the victim’s injuries were evidenced through the testimony of forensic pathologist Dr. Elizabeth Miller; Dr. Miller performed the victim’s autopsy on July 6, 2011. RR4: 17. The victim’s body, noted Dr. Miller, had moderate decomposition, with bloating and discoloration of the skin; a ligature was around the neck. RR4: 18, 19. The cause of death, Dr. Miller declared, was asphyxia by ligature. RR4: 40. Because of the body’s condition, Dr. Miller could not determine a precise time of death

In his defense, appellant presented his own testimony and that of Amarillo police officer Susan Goodson. Goodson testified to an incident days before the murder in which she investigated a report that Wiseman was suicidal. Wiseman then was obviously under the influence of narcotics, Goodson observed; Wiseman said she had taken pills to “come down” from the narcotics. RR4: 137. Days later, upon hearing about the murder investigation, Goodson related the account of her earlier encounter with Wiseman to the officers investigating the murder. RR4: 138. Persons high on drugs “often make wild claims and don’t make any sense,” Goodson agreed.

In his testimony, appellant related he had met Wiseman about two months before the murder. RR4: 145. On July 2, 2011, Wiseman telephoned him and asked him to pick her up because she had been “kicked out” from where she had been staying. RR4: 146. Appellant had had a fight with his then-girlfriend Peggy
Reid, so he spent the day going various places with Wiseman. RR4: 146. Ultimately that night, they ended up at Bosco’s bar. Appellant there lost sight of Wiseman. He exited the bar and saw her walking toward a truck with the victim. RR4: 149. Appellant got a ride from the victim to the residence where appellant was staying in the San Jacinto neighborhood.

After a short time, Wiseman telephoned appellant, saying the victim would not let her leave his apartment and that she was frightened; she texted him the apartment’s location. RR4: 151. Appellant went there, and the victim answered appellant’s knock on the door. When appellant asked why the victim was not allowing the victim to leave, the victim became “agitated” and reached for something on the couch. Appellant wrestled the victim a little; Wiseman hit the victim on the back of the head with some object, jumped on the victim’s back, and began choking him with her arm. RR4: 153. Appellant got Wiseman off the victim. He checked the victim’s pulse, determining the victim was still alive. RR4: 153. At appellant’s direction, Wiseman left with appellant; before they left, Wiseman grabbed the victim’s pickup keys and other items out of the victim’s pockets. RR4: 154. With Wiseman driving, they left in the victim’s pickup. Wiseman dropped appellant off at Moonlight Slots

The next day Wiseman came to the residence where appellant was staying to collect the belongings she had there. RR4: 155. While doing so, Wiseman told appellant the victim was dead. RR4: 155. Later that day, appellant walked to a convenience store with Peggy to meet Peggy’s friend Laura. En route, they passed
by the victim’s apartment. Appellant decided to see whether the victim would answer the door. He knocked on the door, but the knock went unanswered. RR4: 156. Appellant was at the door to appellant’s apartment less than five minutes; he left after that, without entering the apartment

Wiseman told appellant she had given everything she had taken from the apartment to Sam “Bone Crusher” [Warrick]. RR4: 156. Appellant later called Sam and asked that Sam deliver what Wiseman had given him to appellant. RR4: 157. Appellant met Sam at a convenience store and Sam gave appellant the Crown Royal bag Wiseman had given Sam to hold. RR4: 157. Appellant denied taking any property from the victim’s apartment or having any intent to rob the victim. RR4: 157. Further, appellant denied telling Laura he had killed someone.

By its verdict, the jury rejected the defensive theory. Still, the jury convicted appellant of the lesser aggravated robbery offense, rather than the indicted capital murder offense.