Opinion
No. 05-10-00579-CR
Opinion Filed October 25, 2011. DO NOT PUBLISH. TEX. R. APP. P. 47.
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F-0814821-S.
Before Justices MORRIS, O'NEILL, and FILLMORE.
MEMORANDUM OPINION
A jury convicted appellant Theron Lecinq Lacey, Jr. of capital murder, and the trial court sentenced him to life imprisonment. In two issues, appellant argues the evidence is legally insufficient to support his conviction because the State failed to prove he intended to kill the victim, and his counsel was ineffective by failing to request an instruction on the lesser-included offenses of aggravated robbery and robbery. We affirm.
Background
On October 28, 2008, sixty-seven-year-old Dorothy Reiter was taking her regular morning walk in her neighborhood. At the time, Reiter was 5'7" and weighed 109 pounds. Appellant approached Reiter and tried to steal her purse. When Reiter fought back, appellant stabbed her twice in the back and fled the scene. Blood trails at the scene indicated Reiter stumbled around before collapsing in the street and dying as a result of the two stab wounds in her back. Rozalyn Chaffin, a civilian investigator with the Cedar Hill Police Department, saw Reiter laying in the street at approximately 11:40 a.m. Chaffin approached the body, and it was obvious Reiter was dead. A blood trail of approximately twenty feet led from the street corner to the body. Detective Steven Jackson was called to the crime scene. When he inspected the body, he saw defects in Reiter's jacket indicating knife wounds. Reiter was also laying in a pool of her own blood. Police received their first lead in the case when Brandon Gaddy came forward with information on October 31, 2008. Gaddy told police appellant came to his house on the evening of October 28 or 29. Appellant's demeanor was "very quiet. Kind of giddy, nervous." Gaddy said appellant confessed to stabbing a woman when he tried to grab her money, but she would not give it up. Gaddy provided officers with appellant's address. When officers searched appellant's house, they found Reiter's cell phone stuffed between two mattresses. Officers also received information linking appellant to the stabbing from his girlfriend, from acquaintances named LaBaron Neal and Matthew Bonner, and from Jatavis Bivins, a prisoner in the same jail where appellant was taken after his arrest. Appellant was charged with capital murder. The jury found him guilty, and the trial court sentenced him to life in prison.Legal Sufficiency of the Evidence
In his first issue, appellant argues the State failed to prove he intended to kill Reiter. He supports his claim through evidence that the knife he used was eight inches long; however, he only plunged it into her back four inches. If he intended to kill her, he would have stabbed the entire knife into a more fatal location, like her neck or chest, rather than her back. He further argues that his statement, "I did what I had to do," was in reference to completing the robbery and not killing her. The State responds a reasonable jury could infer appellant intended to kill Reiter based on his conduct. In determining the evidence is legally sufficient to support a conviction, a reviewing court must consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences, a rational factfinder could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). This standard gives full play to the responsibility of the factfinder to fairly resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Id. at 319. An appellate court will not reassess credibility because the factfinder is the sole judge of witness's credibility and the weight to be given the testimony. Id. To prove appellant committed capital murder, the State was required to show appellant intentionally caused Reiter's death while in the course of committing or attempting to commit robbery. Tex. Penal Code Ann. § 19.03(a)(2) (West 2011). For murder to qualify as capital murder under section 19.03, the killer's intent to rob must be formed before or at the time of the murder. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). Proof of robbery committed as an afterthought and unrelated to a murder is not sufficient evidence of capital murder. Id. If there is evidence, however, from which the jury could rationally conclude beyond a reasonable doubt that the defendant formed the intent to obtain or maintain control of the victim's property either before or during the commission of the murder, then the State has proven the murder occurred in the course of the robbery. Id. Intent is most often proven through the circumstantial evidence surrounding the crime, and the jury may infer the requisite intent from the defendant's conduct, including his acts and words. Id.; Sholars v. State, 312 S.W.3d 694, 703 (Tex. App.-Houston [1st Dist.] 2009, pet. ref'd). Additionally, the use of a deadly weapon in a deadly manner raises an almost conclusive inference of intent to kill, unless it would not be reasonable to infer that death could result from the use of the weapon. Sholars, 312 S.W.3d at 703; see also Adanandus v. State, 866 S.W.2d 210, 215 (Tex. Crim. App. 1993). While a knife is not a "deadly weapon" per se, it can qualify as such through the manner of its use, its size and shape, and its capacity to produce death or serious bodily injury. Denham v. State, 574 S.W.2d 129, 130 (Tex. Crim. App. 1978); see Tex. Penal Code Ann. § 1.07(a)(17)(B) (West 2011). Here, the jury heard sufficient evidence from which to conclude appellant intentionally killed Reiter while in the course of committing robbery by stabbing her in the back with a deadly weapon. Dr. Keith Pinckard, a medical examiner for Dallas County, testified the knife was a deadly weapon, and he certified the cause of death in this case as stab wounds to the back. In describing the injuries, Dr. Pinckard testified the stab wound on the left side of Reiter's back damaged the ninth and tenth ribs and traveled through two portions of the left lung resulting in substantial bleeding. The measurable portion of this wound was approximately four inches deep. The autopsy revealed over one liter of blood within the left side of the chest compressing the lungs. This amount of blood was roughly a third of the expected blood volume in her whole body. The second stab wound tracked right under the last rib and went into her liver. Dr. Pinckard testified that although the second stab wound was of a lesser magnitude, either one could have been lethal. While appellant argues he did not intend to kill Reiter because he did not stab the entire eight-inch knife blade into her back, the jury heard evidence that Reiter was wearing a jacket, a sweatshirt, a t-shirt, and a bra at the time of the attack. Thus, appellant stabbed with enough force to penetrate through all the layers of clothing before penetrating four inches into her body. Moreover, Dr. Pinckard testified "skin provides one of the most strong resistors to a knife entering the body. The skin is fairly strong . . . in order to drive a knife into the body and damage ribs and hit internal organs, it does require a fair amount of force." Thus, the jury could infer, based on the forceful blows he stabbed into her back, appellant intended to kill her. Appellant also argues the blood evidence indicates Reiter was alive "for some time after the injuries were sustained," indicating his use of the knife did not make it readily apparent death would result. However, Dr. Pinckard testified the time lapse between the stabbing and her death was "probably on the order of minutes." Thus, the record does not support appellant's argument Reiter lived for some time after the injuries. Rather, it indicates she stumbled around for a few minutes before dying from her injuries and blood loss. Accordingly, this argument is without merit. The jury also heard evidence from appellant's girlfriend, Lashaunda Johnson, that appellant said he stabbed Reiter the first time because he was scared, and he stabbed her the second time because he wanted Reiter to feel his pain. While appellant argues he said, "I did what I had to do," meaning he had to stab her in order to finish the robbery, the jury could infer he intended to kill her based on stabbing her a second time and stating he wanted her to "feel his pain." The jury could rationally conclude appellant's intent was not only robbery when he stabbed a 109 pound, sixty-seven-year-old woman a second time in the back. Appellant further argues the location of Reiter's stab wounds indicate his lack of intent to kill because if he intended to kill her, he would have stabbed her in the chest or neck. This overlooks the evidence that he stabbed her twice, with force enough to penetrate through several layers of clothing and then four inches into her body, where the knife punctured her ribs, lungs, and liver. Finally, the jury heard testimony from Bivens that appellant told him, "I hit the bitch twice with that thing," meaning he stabbed her twice. Bivens said appellant's attitude seemed like he was "cool with it" and proud of his actions. Given the circumstantial evidence surrounding the crime, we conclude the evidence is legally sufficient to support the jury's verdict, that based on appellant's conduct and words, he intended to kill Reiter. See Conner, 67 S.W.3d at 197 (intent is often proven through circumstantial evidence, including the words and actions of defendant); Sholars, 312 S.W.3d at 703. Appellant's first issue is overruled.Ineffective Assistance of Counsel
In his second issue, appellant argues his counsel acted ineffectively by failing to request a lesser-included offense instruction on aggravated robbery and robbery. The State responds appellant was not entitled to the lesser-included offense instructions, and defense counsel was following appellant's desire to go forward with a strategy of actual innocence. The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). Strickland requires a two-step analysis whereby appellant must show both that (1) counsel's performance fell below an objective standard of reasonableness, and (2) but for counsel's unprofessional error, there is a reasonable probability the result of the proceedings would have been different. Id. It is appellant's burden to prove ineffective assistance, and he must overcome the strong presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.-Houston [1st Dist.] 1996, no pet.). It can be reasonable trial strategy to decide not to request a lesser-included offense instruction. Davis v. State, 930 S.W.2d 765, 768 (Tex. App.-Houston [1st Dist.] 1996, pet. ref'd). This is particularly true if it appears defense counsel is pursuing an "all-or-nothing" strategy. See, e.g., Shanklin v. State, 190 S.W.3d 154, 161 (Tex. App.-Houston [1st Dist.] 2005, pet. dism'd); see also Ex parte White, 160 S.W.3d 46, 55 (Tex. Crim. App. 2004) (concluding counsel was not ineffective for failing to request an instruction on a lesser-included offense the defendant did not want). Here, defense counsel told the trial court that he had explained to appellant the evidence was not favorable to him. The following exchange then took place on the record pretrial: Q: Now, even though yesterday when we began to get ready to go to trial on these cases, we talked about different matters of strategy. How I could try to pick a jury in terms of being able to seek a-what's called a lesser-included offense, and-but you indicated to me that you wish to go forward, and then maintain your claim of innocence; is that right?A: Yes, sir.
Q: Now, I've explained to you that it's awful difficult for defense lawyers to go through a court proceeding saying number one, that, you know, it should be a lesser; but, number two, it doesn't matter because my client didn't do it anyway. Understand what I'm saying?
A: Yes, sir.
Q: We talked about all that, right?
A: Yes.
Q: But this is how you instructed me to handle your defense; is that right?
A: Yes.At the end of trial before the parties closed and rested, counsel again had a discussion with appellant on the record where counsel stated "as we said earlier on the record, you indicted to me that you wish for me to enter-to conduct the trial on your behalf and with a plea of innocence, basically that you didn't-you weren't responsible for this . . . you understand the things that we do are a matter of trial strategy. . . ." Appellant agreed that he understood. Accordingly, we cannot say defense counsel acted unreasonably by failing to request instructions on the less-included offenses and instead pursuing an "all or nothing strategy" when the record indicates appellant approved of the strategy. See, e.g., Shanklin, 190 S.W.3d at 161; see also Ex parte White, 160 S.W.3d at 55. Appellant's second issue is overruled.