Opinion
No. 05-16-00449-CR
05-24-2017
ROYAL DOUGLAS ROBINSON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 291st Judicial District Court Dallas County, Texas
Trial Court Cause No. F-1600017-U
MEMORANDUM OPINION
Before Justices Fillmore, Whitehill, and Boatright
Opinion by Justice Boatright
A jury found appellant guilty of capital murder. The trial court sentenced appellant to confinement for life without the possibility of parole. Appellant raises three issues on appeal, arguing that the evidence is insufficient to support the jury's findings of murder and kidnapping and that the State's closing argument impermissibly attacked defense counsel. We affirm.
Background
Cedric Coleman watched a white car swerve down a street and crash head on into another car. Alicia McDowell heard the crash and turned to see the driver of the white car reach into the back seat; she described the car as "rocking real bad." Coleman witnessed the driver and a man in the backseat "tussling" over a handgun. The passenger, appellant, held the gun's grip with two hands while the driver, J.L. Armington, held the barrel with one, trying to take the gun away from appellant. Coleman yelled "gun" to bystanders, then ran. He heard one or two shots. McDowell ran when she heard Coleman yell; she heard one shot.
Armington died. He had been shot twice.
Sufficiency of the Evidence
The jury found appellant guilty of capital murder. The verdict included two implicit findings: that 1) appellant intentionally caused Armington's death 2) in the course of committing, or attempting to commit, kidnapping. TEX. PENAL CODE ANN. § 19.03(a)(2) (West Supp. 2016). Appellant challenges the sufficiency of the evidence to support those implicit findings. We review a sufficiency challenge by examining the evidence in the light most favorable to the prosecution to determine whether rational jurors could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). The jury exclusively determines the credibility of the witnesses and the weight to be given their testimony. Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012). Circumstantial evidence alone can be sufficient to establish guilt, and it is as probative as direct evidence. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
Evidence of Intent to Kill
Appellant argues that the State failed to prove beyond a reasonable doubt that he intended to kill Armington. Proof of intent generally relies upon circumstantial evidence. Haye v. State, 634 S.W.2d 313, 315 (Tex. Crim. App. 1982). A jury may infer intent from the defendant's acts, words, and conduct. Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004).
Police investigating the shooting found the gun and a shell casing under the car and concluded that appellant had placed them there. The jury could have inferred intent from this attempt to conceal incriminating evidence. See Mashburn v. State, 272 S.W.3d 1, 14 (Tex. App.—Fort Worth 2008, pet. ref'd) (intent may be inferred from acts indicating consciousness of guilt); see also Lozano v. State, 359 S.W.3d 790, 814 (Tex. App.—Fort Worth 2012, pet. ref'd) (attempts to conceal incriminating evidence are probative of wrongful conduct and consciousness of guilt).
In addition, the specific intent to kill may be inferred from the use of a deadly weapon. Cavazos v. State, 382 S.W.3d 377, 384 (Tex. Crim. App. 2012). When a deadly weapon is used in a deadly manner, the inference of intent to kill is "almost conclusive." Adanandus v. State, 866 S.W.2d 210, 215 (Tex. Crim. App. 1993). A firearm is a deadly weapon. TEX. PENAL CODE ANN. § 1.07(a)(17)(A) (West Supp. 2016). Viewed in the light most favorable to the verdict, the evidence establishes that appellant fired a handgun at Armington at least twice.
Appellant contends that the State failed to prove that the final shot, which would have caused Armington's death almost immediately, was purposeful rather than an accidental result of the men struggling. But the medical examiner concluded that the earlier shot alone could have caused his death. And evidence of a struggle does not necessarily negate deliberate conduct. Adanandus, 866 S.W.2d at 216. Jurors could have determined that the "tussle" was Armington's effort to stave off appellant's intentional attempts to shoot him.
Rational jurors could have concluded beyond a reasonable doubt that appellant fired the gun intending to kill Armington. Therefore, sufficient evidence supports the jury's implicit finding that appellant intentionally killed Armington.
Evidence of Kidnapping
Appellant challenges the sufficiency of the evidence to support the jury's implicit finding that appellant intentionally kidnapped Armington. Kidnapping may be proved by circumstantial evidence. Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003).
Appellant's car was found parked within walking distance, but away from view, of Armington's home. A neighbor saw an individual walking away from the car at approximately 5:30 a.m. Armington shared a house with appellant's ex-wife, Catherine Harris. The peephole in their front door was covered from the outside sometime after Harris left the house that morning, preventing Armington from seeing someone outside. Witnesses testified that Armington would never have voluntarily gotten into a car with appellant or offered him a ride. Harris told police that Armington would likely have seen appellant if he were hiding in Armington's car, but evidence established that it was dark and raining between 7:15 and 7:30 when Armington must have left the house. Appellant was in the back seat of the car when it crashed, behind Armington, where appellant could see and direct him. Finally, appellant was in control of the gun: he shot Armington twice, then threw or placed the gun and a casing under the car.
Rational jurors could have concluded beyond a reasonable doubt that appellant intentionally abducted Armington.
Jury Argument
Appellant argues the prosecutor impermissibly attacked the character of defense counsel in the State's closing argument. A prosecutor improperly strikes at a defendant over the shoulder of counsel when the argument is made in terms of defense counsel personally and when the argument explicitly attacks defense counsel's character. Brown v. State, 270 S.W.3d 564, 572 (Tex. Crim. App. 2008). Appellant timely objected to the State's argument, and the judge sustained his objection. Appellant did not request further relief.
To preserve error regarding improper jury argument for appellate review, a defendant must contemporaneously object to the statement, request an instruction that the jury disregard the statement if the objection is sustained, and move for a mistrial if an instruction to disregard is given. Cook v. State, 858 S.W.2d 467, 473 (Tex. Crim. App. 1993).
Appellant acknowledges that he did not request an instruction to disregard or ask for a mistrial after his objection was sustained, but he argues that he should be permitted to pursue this appellate issue because the argument could not have been cured by an instruction to disregard. He relies on cases based on similar reasoning. However, the Court of Criminal Appeals expressly overruled those cases in Cockrell. "Before a defendant will be permitted to complain on appeal about an erroneous jury argument or that an instruction to disregard could not have cured an erroneous jury argument, he will have to show he objected and pursued his objection to an adverse ruling." Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996).
The trial court sustained appellant's objection concerning improper jury argument. Appellant failed to pursue his complaint to an adverse ruling by requesting an instruction to disregard, and he never asked for a mistrial, so he has not preserved any jury-argument complaint for our review.
Conclusion
We affirm the trial court's judgment.
/Jason Boatright/
JASON BOATRIGHT
JUSTICE Do Not Publish
TEX. R. APP. P. 47 160449F.U05
JUDGMENT
On Appeal from the 291st Judicial District Court, Dallas County, Texas
Trial Court Cause No. F-1600017-U.
Opinion delivered by Justice Boatright. Justices Fillmore and Whitehill participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 24th day of May, 2017.