11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Monty Wayne Lamb

Appellant

Vs.                   No. 11-00-00295-CR  -- Appeal from Dallas County

State of Texas

Appellee

After a nonjury trial, Monty Wayne Lamb was convicted of capital murder and sentenced to confinement for life.  We affirm.  

                                                                Background Facts

During the afternoon of December 8, 1997, Dallas Police Officer Lesley Miller was sent by the police dispatcher to investigate a complaint about loud noise from one of the apartments in a large apartment complex on Skillman Road.  Officer Miller found the bodies of Marla Speaker,^[1] Laura Page, and Phillip Elliott.   They had been shot.  A lengthy police investigation led to the  indictments of four people:  John Warren Brown,^[2] Ann Marie Wilson,^[3] William Jordan Hardison, and appellant.  Hardison was the only one of the four who testified during the trial of this case, and we note that TEX CODE CRIM. PRO. ANN. art. 38.14 (Vernon 1979) provides that a conviction cannot be had upon the testimony of an accomplice Aunless corroborated by other evidence tending to connect the defendant with the offense committed.@

                                                The Accomplice=s  Testimony

Hardison was warned by the court that he had been indicted for the offense of capital murder; that he was not required to testify; that no one could make him testify; and that, if he did testify, anything he said could be used against him in the prosecution of the case against him.  Hardison said that he understood Aall of that@ and that he wanted to testify.  Hardison=s lawyer was present, and he stated on the record that he felt like Hardison fully understood what he was doing and that Hardison was competent to waive his rights and to testify.                  

After the State called him as a witness, Hardison testified that he was 31 years old and that he was Acurrently incarcerated@ in the Dallas County Jail.  Hardison testified that he was under indictment for capital murder in connection with the three people who were killed on December 8, 1997, and that no one had made any offers or promises of leniency in exchange for his testimony.  The State then went through his criminal record with him; Hardison testified that he had been convicted of:  (1) burglary in Denton County in 1987; (2) unauthorized use of a motor vehicle in Dallas County in 1990 or 1991; (3) forgery in Dallas County in 1998; and (4) forgery in Collin County in 1999.  Hardison said that he was about 20 or 21 when he went to the penitentiary the first time and that he joined the Aryan Brotherhood while he was in the penitentiary. 

Hardison testified that he met appellant through Brown at Brown=s house.  Hardison testified that Brown gave him some methamphetamine and that Hardison injected the methamphetamine with a needle.  Hardison also testified that Brown asked Hardison to hold onto a gun for Brown.  Hardison said that he stuck the gun into his coat pocket.  Later that afternoon, Brown said that he knew somebody that had a Alot of dope.@  Brown asked Hardison about Arobbing them.@  Hardison=s testimony reads in relevant part as shown:

I told him, well, I don=t know, I ain=t never did it before, but yeah, ain=t nobody going to get hurt or nothing, is that why you gave me the gun?  Maybe somebody is going to get hurt?  He said, no, man, it=s just for show.  I said, you sure nobody is going to get hurt or nobody is going to get killed in this because, man, you hear it all the time on the news about people robbing somebody and they shoot them or somebody gets hurt.  He said like no, man, it=s just all for show.  I need you there because it might be like three or four people there, and I need you there for show, you know. 

                                                           *    *    *

And he said, no, ain=t nobody going to get hurt.  I said, well, all right.  So, I agreed.  You know, I agreed we were going to go over there and jack these people for the dope.  Go in there and get it and leave.

Hardison testified that four people left Brown=s house when they went to rob the people who had the dope: (1) appellant was driving the car; (2) Brown was in the front passenger seat; (3) Christy was in the backseat; and (4) Hardison was also in the backseat.  Appellant drove to the parking lot of the apartment complex where the bodies were found.  Hardison testified that all four of them went up the stairs to the apartment and that Christy knocked on the door.  When the door was cracked, appellant Abusted on in,@ followed by Brown and Hardison.  Relevant portions of Hardison=s answers to questions by the assistant district attorney read as shown:

Q: What happened next when you got inside?

A: We got inside and [appellant] was yelling at the people to get down on the floor.  The girl [Christy] - - as soon as we got in the girl went over to the stereo and turned up the stereo, and I was like I had been up, man, I was on speed, and I was like, man, why have you-all got that music so loud for.

Q: Did it seem very loud to you?

A: Yeah, it was real loud, you know.  It startled me, you know. [Appellant] told me to get over there.  He said get your gun, Will, and hold it on these people, and I was holding it on these people, and this dude asked me - - he said, man, you-all don=t kill me.  I said, man, ain=t nobody going to kill you, man, we just want your dope.  We are just going to take your dope.

Q: And what was John Brown and Christy doing?

A: Christy was running around there pulling the cushions up, slinging them around, looking up under it, trying to look up under the sofas and running through there, and John Brown was in the back running through there, and he was yelling at Christy, AFind the dope, find the dope,@ and...people was crying and I told them, man, ain=t nothing to worry about, ain=t nothing going to happen to you, na, we=re just going to take your dope, and be off, you know...but [appellant] grabbed a=hold of my coat and he pointed a gun to me and told me, Will, you=re going to have to kill these people.  I said, man, I ain=t killing these people, man, I ain=t doing it.  He said, yeah, Mother F----r, you are or I=m going to kill you and kill them, too. 

Hardison testified that he shot the people and that appellant drove them back to Brown=s house.  Brown gave him some methamphetamine and told him to forget where Brown lived and to forget what had happened. 

                                                           The Trial Court=s Rulings

After the court thanked the attorneys for their efforts on the case, the court discussed matters which had been raised in the final arguments.  The court pointed out that Hardison could not rely on the defense of Aduress@ when he voluntarily went with appellant and Brown to participate in an armed robbery.  The court also said that it was not important whether the people were kneeling or not when they were shot to death, and the court said that it did not find any credible testimony to support the defensive theories (that there was an Aryan Brotherhood killing or a Mexican Mafia killing).  The court said that the evidence showed that it was a Adope killing.@

 The court said that the question was what part of the testimony was credible and what part of the testimony was not credible.  The court noted that there was non-accomplice testimony from three people that appellant had told that he was involved in the murders.  The court then mentioned the rule that he, as fact finder, could Abelieve some, all or none of what any witness says.@  The court then ruled:

Based on all the credible evidence and testimony, and the Court has weighed all of this very carefully over the last two weeks, the Court has held an open mind throughout all this, the Court finds the Defendant guilty of capital murder as charged in the indictment.

                                                                   Points of Error

Appellant presents two points of error.  First, he argues that the trial court erred in allowing inadmissible hearsay into evidence over timely objection.  Then, he argues that the accomplice witness testimony was not sufficiently corroborated.

                                                             The Hearsay Objection

Appellant argues in Point of Error No. 1 that the trial court erred in allowing inadmissible hearsay into evidence over timely objection.  The record shows that John Alan Betts was called as a witness by the State, that Betts was Acurrently in the Dallas County Jail,@ and that he had some problems.^[4]  Betts testified that there were no offers of leniency or any Adeals@ or agreements for his testimony.  Betts identified appellant in open court and said that he had known appellant as ARocco.@  Betts said that he had known appellant and Brown through Athe drug business.@  Betts said that he and his brother had sold drugs.  Before December 8, 1997, appellant and Brown were buying drugs from them.  After December 8,  appellant and Brown sold drugs to Betts and his brother.  Betts testified that Brown and appellant went Afrom zero to hero, a buyer to seller overnight.@ 

Appellant objected to testimony by Betts about a conversation which he had with Brown Asometime after December 8th,@ and that Ahearsay@ objection was sustained.  Subsequent portions of the reporter=s record read as shown:

[PROSECUTOR]:  I don=t want to get into what John Brown said.  Let me ask you, what did you say to [appellant]?

A:  I asked him what John was so agitated about?

[DEFENSE COUNSEL]:  We=ll object to hearsay again, Your Honor.

THE COURT:  Overruled.

A:  I asked [appellant] exactly what John meant by he killed - - why did [you] have to kill the pretty one?

[DEFENSE COUNSEL]:  Objection, Your Honor.  I mean now what he=s going to do is put it in the form of a question as to what he asked him and get the same thing in.

THE COURT:  Overruled.

Q:  And that=s the question you asked [appellant]?

A:  Yes, sir, it is.

Q:  Will you tell the Court, what was [appellant=s] reaction when you asked him that question?

A:  He became highly agitated at John.

Q:  What happened?  Was there any conversation between [appellant] and John Brown at that point?

A:  Yeah, they both stood up and began arguing.

Q:  Did you understand at that time what the argument was about?

A:  Yeah, judging from what the conversation that was taking place, yes, John was mentioning again the pretty one, the barbie doll.

[DEFENSE COUNSEL]:  Objection, your Honor.  Same objection.  Hearsay.  And again, Your Honor, I mean trying to dance around this by putting it in question form or saying well, [appellant] said this and it=s still trying to get into the same thing and it - -

THE COURT:  Well, the Court doesn=t see the objection if the Defendant is making a statement that may be against his penal interest.

                                                           *    *    *

Your objection is overruled....[A] statement against interest by somebody against their own penal interest is certainly admissible. 

                                                           *    *    *

[PROSECUTOR]:  Mr. Betts, once you asked [appellant] that question and he began arguing with Mr. Brown, can you describe for the Court that conversation that took place thereafter?

A:  As I was saying, the argument was going back and forth. [Appellant=s] response to John Brown was, AIf you don=t shut your f-----g mouth, you=re going to be one more.  What=s one more?

[DEFENSE COUNSEL]:  Objection, Your Honor.  This is not a question from the witness.

THE COURT:  What=s your objection?

[DEFENSE COUNSEL]:  That it doesn=t fit the exception.

THE COURT:  Overruled.  (Emphasis added)

Betts also testified that, in mid-December of 1997, he heard appellant say to Walter Bryan Ashlock in an argument over drugs: AMother F----r, I=ve already got three dead, one more wouldn=t matter.@

Point of Error No. 1 is overruled.  We agree with the trial court that appellant=s statements were admissible.  Those statements were not Ahearsay.@  See TEX.R.EVID. 801(e)(2)(A) which specifically provides that an admission by a party is not hearsay.  See, e.g., Trevino v. State, 991 S.W.2d 849, 853 (Tex.Cr.App. 1999); Bingham v. State, 987 S.W.2d 54, 56 n.2 (Tex.Cr.App. 1999).   The trial court also announced in open court that it did not find the statement by Brown to be admissible; consequently, there was no error in overruling the objection to the question when Betts was asked about appellant=s reaction to Brown=s statement.

                                  Corroboration of Accomplice=s Testimony

The accomplice=s testimony is not only corroborated by Betts=s testimony which has just been discussed, but it is also corroborated by testimony from Ashlock, Jonathan Blaine Valentine, and Rhonda Brewer.  We will disregard the statement from Christy because she was an accomplice.

Ashlock testified that he was Acurrently in TDC on a 25-year sentence@ for possession of a controlled substance.^[5]  He also admitted other prior felony convictions for burglary of a habitation, credit card abuse, theft, and possession of controlled substances.  Ashlock testified that he was at Betts=s house one night in December of 1997 when appellant and Brown came over to sell some dope.  Ashlock said that that was Avery unusual because normally they were there to buy dope.@  Ashlock identified appellant in open court and said that he had known him as ARocco.@  Ashlock said that appellant and Brown were arguing and that he heard appellant tell Brown: A[S]hut the f--k up...it can be one more, Mother F----r, if you don=t shut the f--k up.@

Valentine testified that he was Acurrently incarcerated@ in the Dallas County Jail and that he had been to the penitentiary twice.  Valentine testified that no one had made any offers of leniency, deals, or promises in order to get him to testify.  Valentine identified appellant in open court and said that he had known him as ARocco.@  Valentine testified about a conversation which he had with appellant in January of 1998.  Valentine said that appellant did not Acome right out and tell me he went over and killed them, but he was bragging about taking care of the Hundred Thousand Dollar deal.@  Other evidence shows that the three deaths on December 8 were connected to the AHundred Thousand Dollar deal.@

Brewer testified that she was a Adancer@ and that she had convictions for public lewdness.  She said that she had used a lot of different drugs, and she identified appellant in open court.  She said that she had met appellant through Brown, and she testified that appellant had asked her to be an alibi witness for him.  She testified that she did not ever go to a condo with appellant and Brown, but appellant wanted her to testify that she stayed in the car with him while Brown went up to the condo.

Point of Error No. 2 is overruled.  The testimony of the accomplice, Hardison, is corroborated by other non-accomplice evidence which tends to connect appellant with the murders of Speaker, Page, and Elliott.  See Cathey v. State, 992 S.W.2d 460, 462 (Tex.Cr.App. 1999), cert. den=d, 528 U.S. 1082 (2000).

                                                                This Court=s Ruling

The judgment of the trial court is affirmed.

BOB DICKENSON

SENIOR JUSTICE

March 13, 2003

Do not publish.  See TEX.R.APP.P. 47.2(b).

Panel consists of:  Arnot, C.J., and

McCall, J., and Dickenson, S.J.^[6]