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Jacob v. State

Court of Appeals of Texas, Fourteenth District

August 29, 2019


          On Appeal from the 263rd District Court Harris County, Texas Trial Court Cause Nos. 1543812 & 1543813

          Panel consists of Chief Justice Frost and Justices Jewell and Bourliot.


          Kem Thompson Frost, Chief Justice

         Appellant Leon Phillip Jacob challenges his convictions for solicitation to commit capital murder of two complainants, his ex-girlfriend and his girlfriend's ex-husband. The central issue in the jury trial was whether the evidence established beyond a reasonable doubt that appellant intended for a hitman to murder the complainants. Appellant's sufficiency-of-the-evidence challenge focuses on whether the use of initials to refer to the complainant in each indictment creates a material variance because the trial evidence proved the full names of each complainant. Appellant also complains that the trial court abused its discretion in excluding enhanced audio recordings that appellant's expert prepared for the stated purpose of assisting the jury in understanding recorded phone conversations. Appellant claims the enhanced audio recordings would have given the jury a more complete picture on the element of intent. In his third issue appellant asserts that a comment the trial court made during voir dire violated his right to an impartial judge. Finding no merit in these challenges, we affirm.

         I. Factual and Procedural Background

         Appellant met and began dating Meghan Verikas in 2014 in Pittsburgh. She moved with appellant back to his hometown of Houston. While living together in January 2017, appellant and Verikas had a fight, in which appellant allegedly assaulted Verikas. Verikas moved out but had difficulty avoiding appellant, who allegedly harassed her at her workplace. In February 2017, charges were brought against appellant for assault and stalking.

         After appellant was arrested on the stalking charge, he sought out Felix Kubosh, whose company had provided the bail bond for the stalking offense. Appellant told Kubosh that he needed "Zack's number." Kubosh had no clue what appellant was talking about. To further clarify for Kubosh, appellant explained to Kubosh that he had paid Zack "a lot of money" to "take care of this matter" and he needed Verikas "to not testify against him on these cases because it would . . . hurt his medical license." Kubosh was concerned and notified the police.

         Further details were later uncovered as to the events that occurred before appellant's arrest on the stalking charge. In January 2017, appellant had asked a law-firm employee, Laura Thurlow, to determine the status of any criminal charges pending against him. Thurlow later would testify that appellant also had asked a series of contingent requests - (1) to approach Verikas to help him get Verikas back, and (2) if she could not help him get Verikas back, he wanted Thurlow to ask Verikas to "please leave town," and (3) if Verikas refused to leave town, he wanted Thurlow to "grab her, put her in a car, and take her to him or have somebody do that" and appellant suggested he had a syringe Thurlow could use and he would "take care of the rest." Thurlow ultimately refused to help appellant, and referred Moataz Azzeh, known as "Zack," to appellant.

         Azzeh had served in the military. Appellant wanted Azzeh to kidnap Verikas and convince her to "drop" the criminal case against him, and if that did not happen, he wanted Azzeh to "make her disappear," which Azzeh interpreted as make her "dead." After Kubosh notified the police, the police contacted Azzeh, who became a confidential informant.

         Azzeh assisted in arranging for a face-to-face meeting between appellant and an undercover officer, Javier Duran, who was introduced to appellant as a hitman. Valerie McDaniels, with whom appellant had become romantically involved, also took part in the meeting. Information that the police learned at the meeting indicated that appellant and Valerie were seeking to hire someone to murder Verikas and Marion "Mack" McDaniels, Valerie's ex-husband.

         In addition to seeking assistance from Azzeh, the police asked Verikas and Mack to assist in the police investigation. Verikas and Mack posed in pictures that the police would use to assist officer Duran in convincing appellant and Valerie that he was carrying out the hitman's end of the bargain. Mack posed for pictures in which it appeared that he had been shot in a carjacking. Verikas posed for pictures in which it appeared that she was bound and held hostage. These pictures assisted the police in building the case against appellant and Valerie.

         After appellant and Valerie were charged by indictment with solicitation to commit capital murder as to each of the complainants, Valerie took her own life. Appellant pled "not guilty" to each indictment and stood trial before a single jury on both charges.

         The jury heard evidence of the events leading to the solicitation-to-commit-capital-murder charges, including recorded phone conversations between appellant and officer Duran, and testimony from Thurlow, Azzeh, and Kubosh about appellant's expressed intentions before the police undercover unit became involved. Azzeh, Verikas, Mack, and various members of the police department testified about their respective involvement in the investigation and undercover operation. Verikas and Mack testified about their respective personal relationships with appellant and Valerie. Jacob's mother, an attorney, testified that she had represented Valerie in her divorce proceeding with Mack and that Valerie had expressed intentions to kill Mack. Undercover police officer Duran, who was named as the solicitee in the indictment, testified that he had handled similar operations before. He explained that only about half the time do such operations result in criminal charges, because the targets of the investigation sometimes choose not to follow through with the plan.

         At the close of the evidence, the trial court charged the jury to determine if appellant was guilty of solicitation to commit capital murder of either Verikas or Mack. In the charge, the trial court inquired of appellant's guilt both as a principal and as a party to the offenses, with Valerie acting as the principal.

         The jury found appellant guilty as charged as to each offense. As to each offense, the jury assessed appellant's punishment at confinement for life and a $10, 000 fine.

         II. Issues and Analysis

         A. Sufficiency of the Evidence

         In his first issue, appellant challenges the sufficiency of the evidence to support his solicitation-to-commit-capital-murder convictions.[1] Appellant asserts that the trial evidence is insufficient to prove the allegations as to the identity of the complainant in each indictment. Appellant does not assert that the evidence is insufficient in any other respect. Appellant claims the proof at trial on the identity of each complainant is insufficient because it shows that appellant solicited the capital murders of "Meghan Verikas" and "Marion 'Mack' McDaniel," as opposed to showing that appellant solicited the capital murders of "M.V." and "M.M.," as alleged in the indictments. Appellant asserts that there is a fatal and material variance between each indictment's allegations as to the identity of each complainant and the proof at trial. On this basis, appellant asks this court to overturn both convictions and render a judgment of acquittal in each case.

         Standard of Review

         In evaluating a challenge to the sufficiency of the evidence supporting a criminal conviction, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The issue on appeal is not whether we, as a court, believe the State's evidence or believe that appellant's evidence outweighs the State's evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The jury "is the sole judge of the credibility of the witnesses and of the strength of the evidence." Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury may choose to believe or disbelieve any portion of the witnesses' testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with conflicting evidence, we presume the jury resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). So, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).

         Elements of ...

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