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Click here for the full text of this decision FACTS:On Oct. 30, 2002, Marcus Druery went to Skyyler Browne’s apartment on the Texas State Technical College campus in Waco, where both were students. Druery asked Browne to travel with him to Bryan. Browne hesitated but eventually agreed to go. Browne, who was known to have sold marijuana, took his cell phone, $400 to $500, his gun and some marijuana. Druery later told a Texas Ranger that after he and Browne traveled from Waco to Bryan, they partied into the night, but Browne wanted to go home. Druery told the ranger that Browne called a girlfriend and the girlfriend picked him up from the Contiki Club in an orange Cadillac. Law enforcement, however, was never able to locate an orange Cadillac. Joquisha Pitts and Marcus Harris told a different story. Pitts was Druery’s former girlfriend, and Harris was Druery’s younger friend, who was still in high school. Pitts recounted at trial that she had known Browne for only a couple of days when she witnessed his murder. Pitts said that she accompanied Druery and Browne to the Contiki Club. On the way, the group picked up Harris, as well as some ecstasy tablets and some embalming fluid, which is put on cigarettes and smoked to produce a high. Harris recounted at trial that this was his first meeting with Browne. Around 1 a.m. to 1:30 a.m., Druery, Browne, Pitts and Harris left the Contiki Club to go to rural property owned by the Druery family. Pitts drove Druery’s car as Druery navigated, because she had never been there before. During the drive to the country, Druery claimed that someone was following them, and he repeatedly asked Browne for his gun so he could shoot whomever it was. Browne refused. Once at the property, Druery unlocked the gate and drove the group the rest of the way to a stock pond. Using the vehicle’s headlights for illumination, each member of the group took turns shooting Browne’s gun at bottles they had thrown into the water. At this time, Druery called Pitts to the car and told her he was going to kill Browne, saying he wanted Browne’s “stuff.” Pitts reminded Druery that Druery had a two-year-old son. After he shot the gun, Druery claimed that the ammunition had run out, and he returned to the driver’s seat of the car. Pitts saw that Druery was taking bullets from the car’s console, wiping them clean with a rag, and placing them in the pistol’s magazine. Druery then called Harris to the vehicle, telling him that he planned to shoot Browne, but Harris believed that Druery was “tripping” on embalming fluid that he had smoked. Druery then ordered both Pitts and Harris to sit in the car. Standing near the pond, Browne pulled his jacket or a hood over his head to block the wind as he attempted to light a pipe or cigar filled with marijuana. Druery skulked toward Browne under the cover of darkness, held the gun within six inches of Browne’s head and fired. As Browne’s body fell, Druery fired a second shot into Browne’s neck, and then he fired a third shot into Browne’s body as it lay on the ground. Pitts and Harris began to cry and scream, and both saw Druery kneel over Browne’s body. Druery returned to the vehicle with Browne’s cellular phone, money, marijuana and gun. He attempted to calm his hysterical companions by giving each 40 dollars. Soon thereafter, Druery obtained some gasoline and poured it on Browne’s body. He set it ablaze, and the three left as the body burned. During the drive, Druery instructed Pitts and Harris on how to respond to questions about Browne. He told them to say that Browne’s girlfriend picked him up in an orange Cadillac to take him to get his sister in Washington, D.C., and that they didn’t see him again. The next day, Druery returned to the pond with Pitts and two others, burned the body a second time and threw the body into the pond. Later, Harris assisted Druery in disposing of the murder weapon. Pitts eventually went to the police and told them that she was scared and wanted to get it off her chest. Harris told authorities that he thought he would die, because he believed Druery would not want to leave any witnesses to the killing. In December 2003, a jury convicted Druery of capital murder. Based on the jury’s answers to the special issues set forth in Texas Code of Criminal Procedure Art. 37.071, ��2(b) and 2(e), the trial judge sentenced Druery to death. Automatic appeal to the Court of Criminal Appeals (CCA) followed. HOLDING:Affirmed. Druery asserted that insufficient evidence proved he committed the underlying predicate felony offense of robbery during the course of the commission of murder. He argued that the only evidence he committed robbery came from Pitts and Harris, two alleged accomplice witnesses as a matter of law. Because of the witnesses’ status as alleged accomplices, Druery claimed that the testimony of Pitts and Harris concerning the underlying robbery must be corroborated by a nonaccomplice. But the CCA found that Pitts and Harris were not accomplices. The mere presence of Pitts and Harris at the scene of the crime, the CCA stated, did not render either an accomplice witness, and neither Pitts nor Harris was an accomplice witness merely because he or she knew of the planned offense but did not disclose it. More importantly, the CCA stated, the testimony itself reveals that neither Pitts nor Harris believed Druery was actually going to kill Browne. As for Harris’ assistance in the disposal of the body and the gun after the murder, the CCA held that merely assisting after the fact in the disposal of a body did not transform a witness into an accomplice witness in a prosecution for murder. In short, the CCA found that no evidence presented at trial indicated that either Pitts or Harris was an accomplice. Next, Druery challenged the state’s exhibits 116A, 116B and 116C, which were admitted into evidence by the state at punishment to rebut Druery’s evidence of good character. Exhibit 116A was a letter purportedly written by Druery, and Exhibit 116C was the letter’s envelope; Exhibit 116B was a copy of the letter and the envelope that was made before the original Exhibits 116A and 116C were damaged in the process of extracting latent finger prints from them. The letter contained admissions by Druery concerning his violent acts and indicated a lack of remorse for Browne’s murder. The CCA found that the letter was properly authenticated. Druery did not present any evidence of tampering or other fraud regarding the letter. Thus, the CCA found it reasonable for the trial judge to believe that a reasonable juror could find that the exhibit was what the state purported it to be: a letter written by Druery. The CCA also found that Druery failed to demonstrate error in the trial court’s omission of an instruction to the jury concerning a handwriting comparison. Druery never denied that he was the author of the letter, the court noted, and his failure to object could have been a part of his trial strategy. But even if an error occurred, the CCA found it was not egregious. Other instructions in the punishment charge served to instruct the jury as to its duty as fact-finder, the CCA found. Druery then complained that the trial court should have instructed the jury at the guilt phase of the trial, sua sponte, on the lesser-included offense of first-degree murder, even though Druery unequivocally informed the trial court that he did not desire the lesser-included instruction. The CCA found Druery estopped from bringing that claim. Finally, Druery claimed that legally insufficient evidence supported the jury’s finding that he would be a continuing threat to society. But the court found that a rational jury “could determine from all of this evidence that there was a probability beyond a reasonable doubt that Druery would commit criminal acts of violence in the future so as to constitute a continuing threat, whether in or out of prison.” OPINION:Keasler, J., delivered the opinion of the court, in which Meyers, Price, Womack, Hervey, Holcomb, and Cochran JJ., joined. Johnson, J., concurred in point of error fourteen and otherwise joined the opinion of the Court. CONCURRENCE:Keller, P.J., filed a concurring opinion. “[T]here were other factors linking Pitts and Harris to the crime as accomplices. . . . I think that, at the least, the evidence was sufficient to submit Harris’s accomplice status to the jury. . . . If accomplice status was, at best, a fact question for the jury, then the jury was free to decide that the witnesses were not accomplices, and thus, their testimony did not have to be corroborated. “In any event, their testimony was corroborated. Appellant does not challenge the sufficiency of the evidence to show the murder, and indeed, such a challenge would be laughable. He confessed to the murder to four friends and acquaintances.”

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