                                   NO. 12-08-00050-CR

                         IN THE COURT OF APPEALS

           TWELFTH COURT OF APPEALS DISTRICT

                                      TYLER, TEXAS

RODNEY WAYNE CEARLEY,                                §    APPEAL FROM THE 159TH
APPELLANT

V.                                                   §    JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,
APPELLEE                                             §    ANGELINA COUNTY, TEXAS

                                     MEMORANDUM OPINION
        Rodney Cearley appeals his conviction for murder. In six issues, Appellant argues that the
evidence is insufficient, that the trial court erred in denying his request for a jury instruction, and that
the trial court should have excluded the testimony of a witness. We affirm.

                                             BACKGROUND
        The last time his mother saw Michael Grimes was in January 1999 when he left her home
with Appellant. Days after Grimes disappeared, Appellant told a tradesman he did business with that
he had killed Grimes. The tradesman did not report this statement. Several months later Appellant
told his mother that he had killed Grimes, that he had done so in self defense, and that he had buried
Grimes in the woods and thrown away the knife he used.
        In 2000, Appellant’s mother told the police about Appellant’s statement. The police
conducted a search for the body, but did not find it. The case remained unsolved until Sergeant A.G.
Miller of the Texas Rangers Unsolved Crime Unit was assigned the case. He directed another search
for Grimes’s body or remains, but the search was unsuccessful. Miller reinvestigated the case, and
he looked into the various stories that had proliferated about what had happened to Grimes. Miller
determined to his satisfaction that the rumors were not accurate. He concluded his investigation by
searching various public and private databases to look for evidence that contradicted Appellant’s
statement that he killed Grimes in January 1999. He did not find any.
       An Angelina County grand jury indicted Appellant for the murder of Michael Grimes in
2006. He pleaded not guilty, but was found guilty by a jury after a trial held in 2007. The jury
assessed punishment at imprisonment for twenty years. This appeal followed.

                                         CORPUS DELICTI
       In his first three issues, Appellant argues that the evidence is insufficient to corroborate his
confession.
Applicable Law
       When the state relies on a statement or confession of the accused to support a conviction,
there must be independent evidence which tends to establish the corpus delicti of the offense, that
is that the person was killed by the criminal act of another. See Fisher v. State, 851 S.W.2d 298,
302–03 (Tex. Crim. App. 1993) (en banc). The corpus delicti rule is a common law, judicially
created rule of evidence intended to ensure that a person will not be convicted based solely on his
own false confession to a crime that never occurred. See Salazar v. State, 86 S.W.3d 640, 644 (Tex.
Crim. App. 2002) (“The corpus delicti rule guarded against the shocking spectacle and deleterious
effect upon the criminal justice system when a murder victim suddenly reappeared, hale and hearty,
after his self-confessed murderer had been tried and executed.”).
       The corroborative evidence must show, in the case of a murder, that the person is deceased
and that the person died as a result of a criminal act. Id. at 644. That the defendant committed the
murder may be established by his confession, and the corpus delicti rule is satisfied “if some
evidence exists outside of the extra–judicial confession which, considered alone or in connection
with the confession, shows that the crime actually occurred.” Id. at 644–45. It was once the law in
Texas that the body or remains of the deceased had to be produced to support a murder conviction,
but that is no longer the law. See Fisher, 851 S.W.2d at 303.
Analysis
       There is evidence that tends to establish that Michael Grimes met his end through a criminal
act. He was last seen in Appellant’s company, leaving his mother’s house to go with Appellant. He


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did not have health problems that were life threatening, and there was no evidence that he was likely
to commit suicide or to go into hiding. The Texas Ranger who did the investigation testified that
he searched public and private databases and that there was no record of Grimes’s being arrested,
renewing his driver’s license, earning any money, filling any prescriptions, or paying any taxes since
the date of his disappearance. Grimes was living with his mother at the time he left with Appellant.
There was testimony that he regularly checked in with his mother when he was not living with her.
Additionally, Grimes was a doting father to his son, and he spent a considerable amount of time with
him. At the time of trial, Grimes had been missing for more than seven years and yet there was no
record of him and he had not contacted his mother or his son. Finally, there was testimony that it
was his nature to get arrested somewhat regularly, and that had not happened since he disappeared.
       This evidence tends to show that Grimes is dead and that his death was the result of a
criminal act. We overrule Appellant’s first, second, and third issues.

                                                  SELF-DEFENSE
       In his fourth issue, Appellant argues that the evidence was insufficient for the State to carry
its burden of persuasion on the issue of self-defense. Specifically, Appellant argues that there was
no evidence that he did not act in self-defense.
Applicable Law
       A person may use deadly force against another if he reasonably believes that deadly force is
necessary to protect himself against another’s use or attempted use of unlawful force and if a
reasonable person in the actor’s situation would not have retreated.             TEX . PENAL CODE
ANN . §§ 9.31(a), 9.32(a) (Vernon Supp. 1996).1 The defendant has the initial burden of producing
evidence to support a claim of self-defense, but the state retains the burden of persuasion on the
issue. See Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). A finding of guilt is an
implied finding against the defensive theory. Id.
       In a case where the jury has found the defendant guilty despite an assertion that he acted in
self-defense, we do not look to whether the state presented evidence that refuted the appellant’s self-
defense evidence. Rather, we determine whether after viewing all the evidence in the light most


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           Applicable statute for 1999 offense.

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favorable to the prosecution, any rational trier of fact would have found the essential elements of
murder beyond a reasonable doubt and also would have found against the appellant on the self-
defense issue beyond a reasonable doubt. Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App.
1991).2
Analysis
          Appellant argues that there is “no evidence” that he did not act in self-defense and so the
State could not have met its burden of persuasion on this issue. This misperceives the nature of the
burden on the State. The State’s burden of persuasion requires only that the State prove its case
beyond a reasonable doubt but does not require the production of evidence. See Zuliani, 97 S.W.3d
at 594.
          The evidence conflicts on the issue of self-defense. Appellant told three people that he had
killed Grimes. One of the witnesses overheard Appellant talking at a party and did not hear his
whole account. The other two witnesses, Appellant’s mother and the tradesman, testified that he said
he acted in self-defense. His account to them was slightly different in that he told his mother that
his wife was not present and he told the tradesman that he acted to protect his children and his wife.
Appellant did not testify. The account itself was not very detailed, and the jury could have had some
questions as to the nature of the threat Appellant faced when he killed Grimes. Furthermore,
Appellant’s mother’s version of his statement is the most complete, and it includes some facts that
might undermine a self-defense claim. Specifically, Appellant told his mother that the fight started
in the house. There was apparently a single knife involved, and Grimes was killed outside. There
was no explanation for how the fight moved from the house to the yard or how Appellant came to
have the upper hand.
          These statements were the only evidence that Appellant acted in self-defense, although they
were bound up in the most compelling evidence supporting the verdict, that is Appellant’s admission
that he killed Grimes. The jury also heard that Grimes could be a violent person and that he had
been diagnosed with bipolar disorder. Furthermore, there was no compelling evidence of any motive



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           This is the standard for reviewing the legal sufficiency of the evidence. Appellant does not cite a
proposed standard of review. He argues that there is no evidence to support the jury’s rejection of his defense. W e
interpret Appellant’s argument to be a challenge to the legal sufficiency of the evidence.

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Appellant would have had to kill Grimes.
         There is also evidence that is more directly contrary to Appellant’s self-defense claim. First,
Appellant did not report to the authorities that he had been attacked by Grimes. Not only did he not
report it, but the police asked him on at least three occasions whether he knew anything about
Grimes’s disappearance. He told them he could not talk about it. Furthermore, and even more
unusual, Appellant continued to call Grimes’s mother after he disappeared, asking when Grimes
would return to work.
         The determination of whether a defense is shown by the evidence is essentially a credibility
determination to be made by the jury. See Saxton, 804 S.W.2d at 914. The jury’s task in this case
was not to evaluate the credibility of a witness, but to assess whether Appellant’s assertion that he
acted in self-defense was credible. We disagree with Appellant’s assertion that the State was
required to accept Appellant’s version of events in total or not at all. It is not uncommon for a
defendant to confess to an offense and offer a justification, and a jury is free to accept or reject either
independently.
         In light of all of the evidence, we hold that a rational trier of fact could have found the
essential elements of murder beyond a reasonable doubt and also could have found against Appellant
on the self-defense issue beyond a reasonable doubt. Appellant’s account of his use of force, gleaned
through other witnesses, was fragmentary, and there was compelling evidence about how he acted
after he killed Grimes to suggest that his actions were not justified. We overrule Appellant’s fourth
issue.

                                             JURY INSTRUCTION
         In his fifth issue, Appellant argues that the trial court erred in not instructing the jury about
the corpus delicti rule for corroboration of confessions.
         Appellant has failed to offer any argument in his brief that the trial court erred. In four
paragraphs, Appellant sets out the proposed instruction and states the law regarding how instructions
are to be proposed and what must be done to preserve a complaint. The fifth and final paragraph3

         3
          In his summary of the argument, Appellant cites Self v. State, 513 S.W .2d 832, 835–37 (Tex. Crim. App.
1974). The Self decision is important in the area of corpus delicti jurisprudence, but does not assist with the
question of whether the trial court erred in not giving the instruction Appellant sought.

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on this issue in his brief reads as follows:

        The corpus delicti instruction was appropriate and should have been granted [sic] by the trial court.
        The trial court refused to give the appropriate requested instruction and thereby committed reversible
        error.


        An appellant’s brief must contain a clear and concise argument for the contentions made.
See TEX . R. APP . P. 38.1(i). An appellant’s brief should argue to the court the law and the facts that
weigh in the party’s favor, and rule 38.1(i) is not satisfied by brief and conclusory statements that
are unsupported by authority. See Mack v. State, No. 12-02-00037-CR, 2003 Tex. App. LEXIS
10787, at *4–6 (Tex. App.–Tyler Dec. 23, 2003, pet. ref’d) (citing McFarland v. Sanders, 932
S.W.2d 640, 647 (Tex. App.–Tyler 1996, no writ)); see also Wyatt v. State, 23 S.W.3d 18, 23 n.5
(Tex. Crim. App. 2000) (court declined to make arguments for an appellant where issue is
inadequately briefed.).
        The question of whether such an instruction should be given to the jury and the related
question of how to assess a trial court’s decision not to give such an instruction are not
uncomplicated questions. See, e.g., 43 George E. Dix & Robert O. Dawson, CRIMINAL PRACTICE
AND   PROCEDURE § 31.351 (2d ed. 2001) (questioning whether juries should be instructed on the
corpus delicti corroboration rule); see also Daniels v. State, No. 02-06-00258-CR, 2007 Tex. App.
LEXIS 7119, at *16 n.8 (Tex. App.–Fort Worth Aug. 31, 2007, no pet.) (mem. op., not designated
for publication) (corpus delicti jury instruction given).
        Appellant’s conclusory statement that the proposed instruction was appropriate is not an
argument. Accordingly, Appellant has waived this issue. See TEX . R. APP . P. 38.1(i). We overrule
Appellant’s fifth issue.

                                              SURPRISE WITNESS
        In his sixth issue, Appellant argues that the trial court erred by allowing the State to call a
witness during the punishment phase of the trial who had not been disclosed in pretrial discovery.
Facts
        Following television coverage of the verdict in Appellant’s trial, a witness contacted the State
to report that Appellant had assaulted her in 2005 or 2006. The assistant district attorney alerted the


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court and Appellant the next morning before the sentencing portion of the trial was to begin. The
court heard testimony from the witness who corroborated that she contacted the State after a relative
told her that she had seen on television that Appellant had been convicted in this case. The witness
testified that Appellant had attempted to strangle her and that she had barely managed to escape.
Appellant was permitted to cross examine her outside the presence of the jury.
       The trial court determined that the State had not known about the evidence. The court ruled
that the State would be permitted to present the evidence and Appellant would be given time to
investigate the matter.
Applicable Law
       Subject to certain conditions, the state is required to disclose the witnesses it intends to call,
along with photographs, the defendant’s written statements, letters, accounts, and other evidence
material to any matter in the case. See TEX . CODE CRIM . PROC. ANN . art. 39.14 (Vernon Supp.
2008). Evidence that is willfully withheld from disclosure under a discovery order should be
excluded from evidence. Oprean v. State, 201 S.W.3d 724, 726 (Tex. Crim. App. 2006).
Determining if the state acted willfully encompasses two factors: (1) whether the prosecutor acted
in bad faith in failing to disclose the evidence and (2) whether the defendant could have reasonably
anticipated the contested evidence. Wood v. State, 18 S.W.3d 642, 649–50 (Tex. Crim. App. 2000);
Nobles v. State, 843 S.W.2d 503, 514 (Tex. Crim. App. 1992).
       In determining whether the state acted in bad faith, we consider whether the defendant
established that the state intended to deceive him, whether the state’s notice left the defendant
adequate time to prepare, and whether the state had otherwise met its discovery obligations. See
Hardin v. State, 20 S.W.3d 84, 88 (Tex. App.–Texarkana 2000, pet. ref’d). In determining whether
the defense could have anticipated the state’s witness, we evaluate the degree of surprise to the
defendant and the degree of disadvantage inherent in that surprise. Id. at 88–89. We also overlook
the degree to which the trial court was able to remedy that surprise. Id.
       We review the trial court’s determination of whether to allow evidence that was not disclosed
prior to trial for an abuse of discretion. Wood, 18 S.W.3d at 649.
Analysis
       The State did not act in bad faith. The witness was not known to the State prior to trial, the


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State was not on constructive notice of the incident because it had not been reported to law
enforcement, and the prosecutor disclosed the witness the morning following the evening she learned
of the witness. On the other hand, Appellant did not expect the witness to testify.
         The trial court may have been within its discretion to simply allow the evidence. However,
the trial court went further and assiduously sought to alleviate any harm to Appellant. The disclosure
came on a Friday, and the witness testified that day. Appellant’s counsel was able to cross examine
the witness effectively and had a command of the details surrounding the incident. Appellant’s
counsel indicated that he was going to rest and close that Friday. The trial court invited Appellant
to seek a continuance. Appellant’s counsel declined, but later he asked that the trial be continued
over the weekend to allow him to find a witness to the alleged assault. The trial court granted his
request.
         Over the weekend the trial court issued a bench warrant for Appellant’s witness, who was
in jail. That witness testified on Monday and rebutted the other witness’s account of the assault.
Appellant did not seek a further delay of the trial to prepare or to gather evidence relating to this
issue.
         We hold that the trial court did not abuse its discretion. This was evidence that became
available after the verdict. The trial court carefully balanced the prerogative of one party to present
evidence that has not been withheld with that of the other to have a reasonable approximation of
what evidence will be presented at trial. Appellant had the time he needed to prepare, and the trial
court’s decision to allow the evidence was reasonable. We overrule Appellant’s sixth issue.

                                                    DISPOSITION
         Having overruled Appellant’s six issues, we affirm the judgment of the trial court.
                                                                  SAM GRIFFITH
                                                                     Justice
Opinion delivered June 30, 2009.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)




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