









In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana


______________________________

No. 06-00-00082-CR
______________________________


RUSSELL WAYNE LAFLEUR, Appellant

V.

THE STATE OF TEXAS, Appellee



On Appeal from the 410th Judicial District Court
Montgomery County, Texas
Trial Court No. 00-01-00217-CR





Before Cornelius, C.J., Grant and Ross, JJ.
Opinion by Chief Justice Cornelius

O P I N I O N

	Russell Wayne Lafleur was convicted of capital murder and sentenced to life imprisonment. 
 Tex. Pen. Code Ann. §§ 12.31(a), 19.03 (Vernon 1994).  Lafleur was originally charged in a two-count indictment, along with Lonnie Rayallen Labonte, with capital murder and arson.  A jury
returned a verdict of guilty on both counts.  The State, however, dismissed the arson count. 
	Court-appointed counsel for Lafleur has filed a brief pursuant to the United States Supreme
Court case of Anders v. California (1) and certified that an appeal in this case would be frivolous.  
Lafleur filed a pro se response to counsel's Anders brief.  
	We have reviewed both the Anders brief and Lafleur's pro se  response, as well as the State's
brief.  We have reviewed the record for legal and factual sufficiency of the evidence and have
reviewed the record regarding Lafleur's request for a change of venue, all in the interest of justice. 
We also have reviewed the issues raised by Lafleur in his pro se response to the Anders brief.  In its
brief, the State has pointed out that Lafleur's response does not generally meet the requirements for
briefing set out in Tex. R. App. P. 38.  We agree, but in the interest of justice, we have attempted to
address Lafleur's contentions on the merits where possible.     
Change of Venue
	Lafleur moved for a change of venue on the ground that extreme prejudice against him in
Montgomery County made a fair and impartial trial impossible or highly unlikely.  The motion was
accompanied by statements of two residents of Montgomery County to that effect.  The State
responded with an affidavit of a resident stating that no prejudice existed that would prevent Lafleur
from obtaining a fair and impartial trial in the county. 
	The trial court summoned a jury panel to hear the motion and read to them a summary of the
facts of the case.  The court noted that two newspapers, the Conroe Courier and the Houston
Chronicle, as well as the radio and television stations in Houston and Conroe, had covered the events
of the case. The court then asked if members of the panel were aware of the media coverage, or had
knowledge of the facts of the case through some other source, and if such knowledge established in
their mind a conclusion as to Lafleur's guilt or innocence.  Several persons indicated they had such
knowledge.  Some received their information from the media; all who so indicated also said they
could set aside such information and render a judgment in accordance with the evidence presented
in court.  One panel member received his information from social contact with police officers, and
he said he could set his opinion aside and make a fair determination from the evidence.  Another had
what he believed to be a previous personal encounter with one of the three men accused in the
murders.  He stated he had not formed an opinion of Lafleur's guilt or innocence.  One panel
member's wife had been a teacher of one of the victims.  He said he would be able to follow the
court's instructions regarding the law.  Another panelist knew an employee of the district attorney's
office, but that employee had not told her anything about the investigation.  Lafleur then introduced
Exhibits 1 - 55, which were copies of twenty-nine articles from the Conroe Courier and twenty-six
articles from the Houston Chronicle.            
	A motion for change of venue must be supported by the defendant's own affidavit and the
affidavits of at least two credible persons who are residents of the county where the prosecution is
instituted, and must allege one of two possible bases for the motion, including prejudice in the
county that would prevent a fair trial.  Tex. Code Crim. Proc. Ann. art. 31.03(a)(1) (Vernon  1989). 
Lafleur's motion did not comply with these rules; he filed in support of his motion the unsworn
declaration of two individuals, and he filed no affidavit of his own. The State filed a proper affidavit
controverting the motion.  Although the State did not oppose the motion on the grounds of
noncompliance with the rules, we will review the trial court's denial of the motion on the merits.  	To prevail on a motion for change of venue, the defendant must demonstrate that publicity
about the case is pervasive, prejudicial, and inflammatory.  The record must show that prejudice
within the county is such that the likelihood of the defendant obtaining a fair trial by an impartial
jury is doubtful.  The defendant must show that the outside influences of the media affecting the
community are so inherently suspect, or are so inflammatory, pervasive, or prejudicial as to raise
doubt about the likelihood of his obtaining a fair trial.  Review of the trial court's decision is on an
abuse of discretion standard.  The trial court is authorized to use the jury selection process to gauge
the tenor of the community as a whole.  Dewberry v. State, 4 S.W.3d 735, 745-46 (Tex. Crim. App.
1999), cert. denied, 529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000).  
	We have reviewed the newspaper articles offered in evidence.  Some of them contain detailed
accounts of evidence uncovered by police in their investigation; some contain stories about a
possible codefendant who would be given immunity from prosecution to "turn state's evidence"; 
some contain pictures of Lafleur.  Despite the admittedly detailed and extensive  coverage, the trial
court's examination of the prospective jurors did not indicate that they were predisposed to convict
Lafleur.  Lafleur brought forth no other evidence indicating that these articles and the broadcast
media coverage of the murders had so influenced the community that he could not obtain a fair trial. 
The articles are not inflammatory or pervasive.  None of the prospective jurors interviewed displayed
detailed recall of the facts of the investigation that the newspaper articles reported.  During voir dire
of the jury panel,  the trial court and the lawyers questioned a number of panelists who indicated on
a written questionnaire that they had formed an opinion as to Lafleur's guilt or innocence.  Thirteen
jurors were excused on this basis, either on challenge for cause or by agreement between the State
and the defense.  Lafleur made no further motions alleging grounds for change of venue.  We
conclude that the trial court did not abuse its discretion in denying Lafleur's motion for change of
venue.
Legal Sufficiency of the Evidence
          In considering a legal insufficiency claim, we review the relevant evidence in the light most
favorable to the verdict and determine whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319,
99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000).  
         Lafleur was charged with capital murder by intentionally causing the deaths of Sarah Cleary
and Misty Morgan by burning, beating, and stabbing them.  Tex. Pen. Code Ann.  § 19.03(a)(7)(A)
(Vernon 1994).    
	The jury was charged under the law of parties:
	A person is criminally responsible as a party to an offense if the offense is committed
by his own conduct, by the conduct of another for which he is criminally responsible,
or by both.  Each party to the offense may be charged with commission of the
offense.
 
	A person is criminally responsible for an offense committed by the conduct of
another if, acting with intent to promote or assist the commission of the offense, he
solicits, encourages, directs, aids, or attempts to aid the other person to commit the
offense.  Thus, depending on the circumstances, a person may be a party to an
offense whether or not they were present during, or participated in, the actual
commission of the offense.  However, mere presence at the location of the offense
does not, by itself, make one a party to the offense.
 
        Under the charge, the jury could convict Lafleur if it found that he was present at the
commission of the offense and encouraged its commission by words or other acts.  In reviewing the
sufficiency of the evidence to support the conviction of Lafleur as a party, we may consider events
occurring before, during, and after the commission of the offense, and we may rely on Lafleur's
actions that show an understanding and common design to aid in the murders.  King v. State, 29
S.W.3d 556, 564 (Tex. Crim. App. 2000).  


	Viewed in the light most favorable to the verdict, the evidence showed the following.  
	Gabriel Saxton lived in Conroe with his sister, Lori Parker.  On June 7, 1997, Saxton, Lori,
and her boyfriend, Clay, went in Lori's Explorer to a club called Trio's.  On the way, they stopped
at a topless bar called Fantasy North, where Saxton, but not the other two, went inside and purchased 
cocaine.  When they arrived at Trio's, they danced, shot pool, and drank beer. Saxton was wearing
denim blue jeans, a white undershirt, and a long-sleeved green, blue, and maroon Tommy Hilfiger
shirt, along with a pair of Skechers, a type of dressy hiking boot.  Late that evening, Saxton was
introduced  to Misty Morgan by his sister.  He also met Misty's friend, Sarah Cleary.  Saxton danced
and talked with Misty, and he testified that Misty offered him a ride home because Lori and her
boyfriend wanted to leave.   
	At the club's closing time, Saxton went to Lori's vehicle to get his shirt and baseball cap. 
Saxton, Misty, and Clay then drove in Lori's vehicle to Sarah's car, dropped off Misty and Saxton,
and Lori and Clay left.  Sarah left and went back into the club to talk to some people, and Misty and
Saxton smoked marihuana and used cocaine.  Saxton remembered talking with some friends.  By that
time, Sarah returned to the car.  The three of them drove away from the club in Sarah's car.  They
first stopped at a convenience store to buy cigarettes and drinks, then went to an apartment where
the two girls went inside while Saxton remained in the parking lot.  He transferred some items to
Misty's  car:  his  hat,  his  shirt,  purses,  tobacco  pouch, and two cellular telephones.  After Misty
and Sarah returned, they drove back to Fantasy North, where Saxton went in alone and purchased
an additional $50.00 of cocaine.  They then drove back to Conroe to drop off Saxton, with Sarah
driving Misty's car.  As they neared Saxton's residence, they asked Saxton if he wanted to ride with
them to "take care of some business."  They did not tell him what they meant, but he recalls some
names being mentioned, including that of a girl named "Cat."  	
	Misty then directed Sarah to drive to a wooded area near some railroad tracks.  They rolled
down the windows, sat there and used marihuana and cocaine, apparently waiting for someone.
Saxton had to "use the restroom."   He left the car and went into the woods, far enough away where
they would not see him, estimated to be about thirty feet. 
	Saxton then testified that while he was "preparing to use the restroom," he noticed lights on
the tops of the trees, as if someone was approaching in another vehicle.  He pulled his pants back up
and ran across the road in front of the car to the other side of the dirt road.  He thought the
approaching vehicle was a truck, due to the configuration of the headlights.  He noticed three figures
in the vehicle.  He testified that the truck stopped about 100 feet from the girls' car, and the driver
and a passenger exited the vehicle.  He saw the driver of the truck pull something up off the
floorboard, and saw the passenger in the truck walk to the back of the truck and remove something. 
Saxton then ran to the other side of the road because he thought he might be seen.  The driver of the
truck went to the driver's side of the girls' car, and the passenger in the truck went to the passenger
side of the car.  Saxton then saw the driver of the truck engage Sarah in conversation, and then the
girls exited the car.  The driver then grabbed Sarah and threw her to the ground and the passenger
threw Misty to the ground.  The driver had Sarah on the ground, and was straddling her with his
knees.  Saxton saw the passenger appear to strike Misty, while the driver continued to pin down
Sarah, possibly choking her.  The passenger quickly returned to the truck, and when the driver saw
the passenger going back toward the truck, he got off Sarah and started jogging toward the truck also,
to catch up with the passenger.  Saxton testified on direct examination that all he could hear from
the scene was mumbling.  However, on cross-examination, he did not deny the truth of an earlier
statement he had given to police that he heard one of the girls say something like, "Leave us alone,
don't hurt us and we won't tell."  Saxton then ran toward the railroad tracks, waiting for the lights of
the vehicle to move out of sight.   He waited ten or fifteen minutes, and when he could no longer see
the lights, he returned to the girls' car.
	Q. You went back toward the girls?
 
	A. Yes.
 
	Q. And when you got there, what did you find?
 
	A. I saw Sarah laying at the left rear of the car.  It looked like they tried to--I don't
know.  Her head was pretty much detached from her body.  And Misty was at the rear
of the car and she was laying on her back, also. 
 
	Saxton decided to pick up all of his things and get away.  He grabbed his shirt and hat, and
looked for the drugs.  There is testimony that he removed the boots Sarah was wearing and intended
to steal them, but instead he just dropped them at the scene.  He also took the watches the girls were
wearing, but said that he dropped those also.  He denied taking one of the girl's panties, which were
found away from the car.  He indicated he was going to steal the car and try to get away. He started
the car and drove a few feet, but noticed headlights in the mirror and was afraid the occupants of the
truck were returning.  He decided that it would be better if he escaped on foot.  He took the cellular
telephones and all of his things and began to run along the railroad tracks toward his home.  One of
the people from the truck apparently noticed that he was nearby and shouted obscenities at him. He
remained hidden in the woods for a period of time, during which time he heard "like a woosh sound,
I guess."  When he was sure that the persons in the truck had again left, he returned to the car.  The
back seat of the car was completely engulfed in flames, and the girls were no longer on the ground. 
He attempted to use the cellular telephones to call his sister and 9-1-1, but the calls would not go
through.  Saxton stated that he was afraid to go back to the girls because he had just gotten out of
jail and was on probation, and later, because he was afraid the occupants of the truck would kill him
also. 
	Saxton then proceeded on foot back toward his home, following the railroad tracks and
various highways. On the way, he dropped one of the cellular  telephones, which was later found by
a passerby.   When he got back to the house, he took everything out of his pockets and left his clothes
where his sister could wash them.  He went to work the following day.  When he got home, he took
the telephone, as well as keys and a driver's license that he had also picked up, to his attic.  He had
been doing some construction work there, and he dropped the items behind the sheet rock on the
wall.  These were later recovered by authorities.  
	On cross-examination, Saxton testified that he could not identify the persons he saw murder 
the two girls.  He admitted that when he tried to drive the car away the first time, he left the bodies
of the girls lying on the road.   He was afraid because he had outstanding warrants for his arrest, and
the people approaching could have been the police and he had been using drugs.  He originally went
with the girls to the woods hoping to have sexual relations with them.
	In a statement that Lafleur gave while being questioned at the Houston Arson Bureau, he
stated that he saw Lonnie  Labonte do something to Misty and saw Misty slump over.  Lafleur said
that he ran from the scene, but Labonte came back and picked him up, and that he helped Labonte
burn the bodies of the girls. 
	Craig Manuel testified that while Lafleur and he were discussing the murders of Sarah and
Misty, Lafleur said he participated in the whole deal, the cocaine deal-in the woods by Conroe. 
Lefleur told Manuel that he was there during the murders, and helped burn the girls in the car.  	John Paul Fontenot testified that Lafleur told him he (Lafleur) was present at the murders of
the two girls.   
	Faith Lee Weston testified that while Lafleur and she were at her house a couple of days after
the murders, they saw a news story about the murders, and Lafleur said  he did the murders.   
	We find that this evidence, viewed in the light most favorable to the prosecution, is legally
sufficient to support Lafleur's conviction for the capital murders of Misty and Sarah. 
Factual Sufficiency of the Evidence
          In a factual sufficiency review, we view the evidence in a neutral light and set aside the verdict
only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. 
Our  review  must  be  appropriately  deferential  to  prevent  us  from  substantially  intruding  on
the fact-finder's role as the sole judge of the weight and credibility of the witnesses' testimony. 
Johnson v. State, 23 S.W.3d at 7.  
	In addition to the testimony summarized above with regard to legal sufficiency, we note the
following, which tends to favor Lafleur:
	Saxton, the main witness for the State, was unable to positively identify either of the two
persons he saw murder the victims and burn their bodies that night; some of his courtroom testimony
was inconsistent with earlier statements he had given to police.
	The physical evidence gathered from the scene did not implicate Lafleur:  the Harris County
Medical Examiner's testimony concerned two badly burned bodies, with very little left from which
a determination of the cause of death could be made; no blood was found on Lafleur's clothing that
matched that of the victims; no DNA evidence implicated Lafleur;  and no one else could positively
identify Lafleur as being at the murder scene.
	Although one of Lafleur's statements put him at the scene, in his videotaped statement which
was played for the jury, he denied that he was present at the time of the murders.  
	The jury had the opportunity to view Lafleur in his videotaped statement, and they were able
to evaluate his credibility and view him in person during the trial.  They were also able to view the
other witnesses, especially Saxton, and also evaluate his credibility.  Saxton was subject to extensive
cross-examination by defense counsel, as were other prosecution witnesses.  Based on our review
of the record, and giving proper deference to the jury's finding as the trier of fact, we cannot find that
the verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and
unjust.  We find the evidence factually sufficient to support the verdict. 
Ineffective Assistance of Counsel
	In his pro se response, Lafleur raises issues of ineffective assistance of counsel.  Specifically,
he alleges that:
	1. the witness, Craig Manuel, is alleged to have told his trial attorney that he was forced to
lie and that he was threatened by a police officer.  He also said that defense counsel did not
adequately cross-examine him.
	2. Lafleur's trial attorney failed to object to anything presented by the State;
	3. Lafleur's trial counsel failed to get his confession suppressed; and
	4. Lafleur's trial counsel became "furious" with him when he decided not to testify.
	We apply the standard of review for claims of ineffective assistance of counsel set out by the
United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984), and by the Texas Court of Criminal Appeals in Hernandez v. State, 726 S.W.2d 53 (Tex.
Crim. App. 1986).  This standard of review has two prongs.  Under the first prong, the appellant
must show that his counsel's performance was deficient, i.e., that counsel's representation fell below
an objective standard of reasonableness.  Under the second prong, the appellant must demonstrate
that the deficient performance prejudiced his defense.  To demonstrate prejudice, the appellant must
show a reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different.  The review of counsel's performance is highly deferential,
and we indulge in a strong presumption that counsel's actions fell within a wide range of reasonable
professional assistance.   An allegation of ineffective assistance made on direct appeal must be firmly
grounded in the record.  See Wallace v. State, 06-01-00068-CR, 2002 Tex. App. LEXIS 2031, at
*27-28 (Tex. App.-Texarkana Mar. 20, 2002, no pet. h.).  
	In Manuel's statement, he said that Lafleur told him, while the two of them were sitting on
the tailgate of a pickup truck at 3:00 or 4:00 a.m. one morning, that "[h]e helped burn the girls," and
Manuel so testified at trial.  Further, Manuel said that it was over a cocaine deal.  Manuel also
testified that Lafleur called him and told him not to talk to police officers without an attorney. 
 On cross-examination, Manuel was extensively questioned about the circumstances of and
details surrounding the giving of his written statement. He was specifically asked whether he felt
intimidated by his surroundings when he gave the statement.  He was asked several times whether
the statement was truthful.  We find this vigorous cross-examination to be sufficient for
constitutionally effective assistance of counsel in this regard.  Even if other attorneys would have
pursued a different tack regarding cross-examination of this witness, a claim of ineffective assistance
cannot be sustained based on such second-guessing of trial counsel's strategy.  Passmore v. State,
617 S.W.2d 682, 686 (Tex. Crim. App. [Panel Op.] 1981).  
	As to Lafleur's claim that his trial attorney failed to object to anything presented by the State,
a review of the trial record establishes the contrary.  Further, such a claim is so vague that we cannot
determine from it whether any specific act or omission of trial counsel would meet the two-pronged
requirement for demonstrating ineffective assistance.
	Regarding whether trial counsel failed to get Lafleur's confession suppressed, an appellant
claiming ineffective assistance for failure to file a motion to suppress is required to prove that the
motion would have been granted.  Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998). 
The record in this case shows that a Miranda (2) warning was given to Lafleur before he gave the
statement.  Lafleur fails to establish that had a motion to suppress been filed, it would have been
granted.  He has failed to establish ineffective assistance in this regard.
	As to Lafleur's allegation that his trial counsel became furious with him when he decided not
to testify, the record shows the following:
     Q. [By Defense Counsel]:  Mr. Lafleur, did you tell me this morning, before we started 
testimony, that you had made the decision regarding whether you wished to testify  or whether you
wished to exercise your Constitutional rights and elect not to testify?

        A. [By Lafleur]:  Yes.

     Q. And what is you [sic] decision at this time?

     A. I would like not to testify.

     Q. And we discussed this matter and your option, have you and I discussed this topic on several
occasions?
 
     A. Yes, sir.

     Q. And did we discuss it at the Montgomery County jail this weekend?
 
     A. Yes, sir.
 
     Q. And had we discussed it before trial?
 
     A. Yes, sir.

     Q. And at an earlier time, had you told me that you wished to testify?
 
     A. No, sir. 
 
     Q. You didn't tell me that at the jail?
 
     A. No, sir.  I told you I was thinking about it.  I didn't say I wanted to testify.
 
     Q. So, if you were leaning towards testifying, you've now made a decision in your mind that you
do not wish to testify?
 
     A. Yes, sir, due to the aggression of the prosecution.  They might try to call me.
 
     Q. And that is your choice?
 
     A. Yes, sir.
 
     Q. Has anybody put any pressure on you or-
 
     A. No, sir.
 
     Q. Has anybody told you what they think you ought to do?
 
     A. They told me what might be in my best interest.
 
     Q. Okay.  But this is your decision?
 
     A. Yes.
 
     Q. Nobody threatened you, nobody intimidated you, nobody overcame your free will about this?
 
     A. That is correct.
 
	The record fails to substantiate Lafleur's claim.  We find no ineffective assistance of counsel
demonstrated by the record in this case.
	The other claims raised by Lafleur in his pro se response are:  1) that a detective told Lafleur
that his Miranda rights were violated several times; 2) that he and other witnesses were told over and
over again that "a needle would be put in my arm"; and 3) that an ineligible juror, Michael David
Gorney, who had been previously convicted for burglary, served on the jury.
	None of these allegations is substantiated by the record, and there is no authority cited in
support of any of these claims.  General allegations regarding violations of Miranda rights, without
specifying some details, cannot be considered by this Court.  We are not required to scour the record
for all situations where Miranda may be applicable and determine whether Miranda warnings were
properly given.  Any statements allegedly made to witnesses that do not appear in the record of this
case cannot be considered on appeal.  Lafleur's motion for new trial did not allege or substantiate any
intimidation of witnesses.  Finally, as to the presence of an allegedly unqualified juror on the panel,
Juror Gorney's name appears twice in the record during voir dire, but in neither instance is there any
mention of his having a previous burglary conviction.  None of the above-referenced contentions find
any support in the record.
	The judgment of the trial court is affirmed.

							William J. Cornelius
							Chief Justice

Date Submitted:	May 14, 2002
Date Decided:		May 15, 2002

Publish
1. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
2. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
