No. 05-10-00163-CR
Opinion issued May 25, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause No. F09-51610-SJ.
Before Justices O'NEILL, FITZGERALD, and LANG.
Opinion By Justice FITZGERALD.
Appellant Trolandria Straughter was convicted of capital murder and sentenced to life in prison. She raises six points of error on appeal. We overrule all of her points of error and affirm.
I. Background
Appellant was indicted for murdering Thomas Steele in the course of robbing him on or about December 28, 2008. Evidence at trial indicated that on or about that date, Steele's body was found inside the cab of his white pick-up truck in south Dallas. He had been shot twice in the head. A police detective observed and recovered three latent fingerprints from a reddish-brown stain on the passenger door of the truck. The police also recovered a .380 automatic cartridge case from the floorboard of the truck. Steele's wife testified that Steele had a paycheck and about $600 in cash with him the last time she saw him before he was murdered. The police recovered only about $14 from Steele's body. Appellant was arrested about two months later, after one of the fingerprints at the crime scene was identified as hers. Her Miranda rights were read to her, and she was interrogated. The interrogation was recorded on video, and it was admitted into evidence and played for the jury. During the interrogation, appellant said that Steele had picked her up in his truck and offered her money for sex. At first she said that her pimp shot Steele, but later in the interrogation she admitted that she had taken the gun out of her purse and shot Steele twice in the head. Then she took his wallet and gave all the money to her pimp later on. The police never found the gun or Steele's wallet. The case was tried in February 2010. Appellant did not testify. The jury found appellant guilty of capital murder. The trial judge then dismissed the jury and sentenced appellant to life in prison. II. Analysis
Appellant raises six points of error on appeal. We address her sixth point of error first because it challenges the trial court's jurisdiction to hear this case and render judgment. A. Jurisdiction
In her sixth point of error, appellant contends that the trial court-Criminal District Court No. 3 of Dallas County-lacked jurisdiction over this case because the indictment was presented to the 282nd Judicial District Court of Dallas County and no order transferring the case to Criminal District Court No. 3 was ever signed. She relies on article 4.16 of the code of criminal procedure for the proposition that "[o]nce the indictment is presented jurisdiction is exclusive in the receiving Court unless it is transferred to another Court." Although the indictment recites that the grand jury made presentment in the 282nd Judicial District Court, the indictment also indicates that it was filed in Criminal District Court No. 3. Specifically, near the top of the one-page indictment, the document reads: " DATE FILED March 25, 2009 COURT CDC3." The indictment is filemarked March 26, 2009, and the trial court's docket sheet recites the date of filing as "3-26-09." Nothing in the record indicates that the case was ever filed in or appeared on the docket of the 282nd Judicial District Court. We note that article 4.16 states that "the court in which an indictment or a complaint shall first be filed shall retain jurisdiction." See Tex. Code Crim. Proc. Ann. art. 4.16 (West 2005) (emphasis added). We rejected appellant's jurisdictional argument on similar facts in Bourque v. State, 156 S.W.3d 675 (Tex. App.-Dallas 2005, pet. ref'd). In that case, the indictment against Bourque was returned in the 380th Judicial District Court, but the case was then filed in the 219th Judicial District Court. Id. at 676. On appeal from his subsequent conviction, Bourque argued that his attorney was ineffective because he did not raise a jurisdictional objection based on the lack of a formal transfer order. Id. at 677. We rejected his argument, holding that no formal transfer order was required to vest the 219th Judicial District Court with jurisdiction: Because the record reflects appellant's cases were first filed in the 219th Judicial District Court, no transfer orders from the 380th Judicial District Court were required. Since no transfer orders were required, trial counsel could not be ineffective for failing to file pleas to the jurisdiction complaining of the lack of transfer orders.
Id. at 678; cf. Hernandez v. State, 327 S.W.3d 200, 204-05 (Tex. App.-San Antonio 2010, pet. ref'd) (concluding that the trial court to which the indictment is presented thereby receives jurisdiction over the case, but that the filing of the indictment in a different trial court presents only a procedural irregularity that must be objected to in order to preserve error). Bourque is controlling and dictates that Criminal District Court No. 3 properly had jurisdiction of the case. We overrule appellant's sixth point of error. B. Cruel and unusual punishment
Appellant was charged with capital murder, and the State did not seek the death penalty. Thus, once the jury found appellant guilty of capital murder, appellant automatically received a sentence of life imprisonment without parole. See Tex. Penal Code Ann. § 12.31(a)(2) (West Supp. 2010). In her first point of error, appellant contends that § 12.31(a), as applied to her, violated her Eighth Amendment right to be free of cruel and unusual punishment. Specifically, she argues that she was constitutionally entitled to an individualized sentencing determination because the trial evidence revealed certain mitigating facts, such as her difficult childhood and her history of mental illness, that could not be taken into account under the automatic sentencing statute. The Eighth Amendment provides, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. amend. VIII. The Eighth Amendment applies to the states. Roper v. Simmons, 543 U.S. 551, 560 (2005). The Supreme Court has rejected the argument that the Eighth Amendment forbids a state from imposing a mandatory sentence of life imprisonment without parole. See Harmelin v. Michigan, 501 U.S. 957, 961, 994-96 (1991) (upholding mandatory sentence of life imprisonment without parole for cocaine possession); see also Ex parte Chavez, 213 S.W.3d 320, 324 n. 20 (Tex. Crim. App. 2006) ("[T]he Eighth Amendment does not mandate individualized sentencing in non-capital cases."). Appellant argues that the Supreme Court's Eighth Amendment jurisprudence is evolving away from the rule adopted in Harmelin. She cites Graham v. Florida, 130 S. Ct. 2011 (2010), and Roper v. Simmons, 543 U.S. 551 (2005), in support. But Graham and Roper do not support her argument that the Eighth Amendment requires the states to conduct individualized sentencing determinations before imposing a sentence of life imprisonment without parole. In Roper, the Court held that the Eighth Amendment categorically forbids the imposition of the death penalty on offenders who were younger than 18 when they committed their crimes. Id. at 578. Roper does not address the constitutionality of mandatory sentences or of any sentence other than the death penalty. In Graham, the Court held that the Eighth Amendment categorically forbids the imposition of a sentence of life imprisonment without parole on a juvenile offender who did not commit homicide. 130 S. Ct. at 2034. Graham does not address the constitutionality of mandatory sentences, and it does not address homicide offenses. The Houston Fourteenth Court of Appeals recently held that Graham did not modify or overrule Harmelin. See Wilkerson v. State, No. 14-09-00025-CR, 2011 WL 1643567, at *1-3 (Tex. App.-Houston [14th Dist.] May 3, 2011, no pet. h.). We conclude that Harmelin is controlling, and that the Eighth Amendment does not forbid mandatory sentencing in noncapital cases. We overrule appellant's first point of error. C. Lesser included offense
In her second point of error, appellant contends that the trial judge erred by denying her request to instruct the jury on the lesser included offense of murder in addition to capital murder. This point of error invokes a two-step analysis. First, we must determine whether murder is a lesser included offense of capital murder by "comparing the elements of the greater offense, as the State pled it in the indictment, with the elements in the statute that defines the lesser offense." Hall v. State, 225 S.W.3d 524, 525 (Tex. Crim. App. 2007). Second, we consider the evidence. A defendant is entitled to an instruction on a lesser included offense if the proof for the offense charged includes the proof necessary to establish the lesser included offense and there is some evidence that would permit a jury rationally to find that if the defendant is guilty, she is guilty only of the lesser included offense. Id. at 536. It is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense; there must be some evidence directly germane to the lesser included offense for the finder of fact to consider before a lesser-included-offense instruction is warranted. Hampton v. State, 109 S.W.3d 437, 441 (Tex. Crim. App. 2003). In this case, the State concedes that the first step is satisfied, so we proceed to the second step of the inquiry. The jury was charged that the crime of capital murder required proof that appellant intentionally committed murder in the course of committing or attempting to commit robbery. Appellant argues that her videotaped interrogation contained evidence that she was guilty only of murder. During the interrogation, before she admitted shooting Steele herself, she told the detective that her pimp shot Steele and then went through his pockets and took his money. She argues on appeal that this evidence supported the theory that she was guilty only of murder under the law of parties. We reject appellant's argument. The evidence relied on by appellant tends to show that her pimp, a man whom she had just met and whose name she did not know, followed her and Steele after Steele picked her up. This evidence further tends to show that the pimp walked up to Steele's pick-up truck, shot Steele, and then took Steele's belongings out of his pockets, including Steele's money. In sum, the evidence tends to show that the pimp committed capital murder, i.e., murder in the course of committing or attempting to commit a robbery. See Tex. Penal Code Ann. § 19.03(a)(2). Appellant cites no evidence tending to show that the pimp shot Steele for any reason other than to facilitate the robbery. Thus, there was no evidence tending to show that the pimp committed the offense of murder rather than capital murder. See Wolfe v. State, 917 S.W.2d 270, 277-78 (Tex. Crim. App. 1996) (upholding refusal of murder instruction because evidence suggested "no motive other than robbery for the commission of the murder"). Under the evidence relied on by appellant, if she was guilty of the pimp's crime under the law of parties, she was guilty of capital murder, not the lesser offense of murder. Because the record contains no evidence that would permit a jury rationally to find that if appellant was guilty, she was guilty only of the lesser included offense of murder, the trial court did not err by refusing to submit the lesser included offense of murder to the jury. We overrule appellant's second point of error. D. Sufficiency of the evidence of robbery
In her third point of error, appellant contends that her conviction must be reversed because the State introduced insufficient independent evidence of robbery to corroborate her extrajudicial confession that she took Steele's wallet. A defendant cannot be convicted based solely on an extrajudicial confession. See Salazar v. State, 86 S.W.3d 640, 644 (Tex. Crim. App. 2002). Under the rule of corpus delicti, there must some additional evidence that, considered alone or in connection with the confession, tends to show that the crime actually occurred. Id. at 645. The rule's purpose is to ensure that a person is not convicted of a crime that did not actually occur; the rule does not require independent evidence that the defendant was the criminal culprit. Id. at 644. In a capital-murder case, independent evidence must corroborate a defendant's extrajudicial confession as to both the murder and the underlying felony. Cardenas v. State, 30 S.W.3d 384, 390 (Tex. Crim. App. 2000). The corroborating evidence need not conclusively prove the underlying offense; the rule requires only that there be some evidence that renders the commission of the offense more probable than it would be without the evidence. Id. With respect to the underlying offense of robbery, a person commits the offense by intentionally, knowingly, or recklessly causing bodily injury to another in the course of committing theft and with the intent to obtain or maintain control of unlawfully appropriated property. See Tex. Penal Code Ann. § 29.02 (West 2003), § 31.03 (West Supp. 2010); Schneider v. State, No. 01-04-00868-CR, 2005 WL 2995824, at *2 (Tex. App.-Houston [1st Dist.] Nov. 3, 2005, pet. ref'd) (mem. op., not designated for publication). Steele's wife testified that when Steele left their house for the last time, he had a payroll check and about $600 in cash that he was supposed to use to pay bills. She also testified that he always carried a wallet in his right back pocket. The wallet was missing when Steele's body was found, and it was never recovered. Appellant contends this is insufficient evidence of robbery because other evidence showed that some time had passed between Steele's leaving his house and the murder, and he could have spent the money before he was killed. She notes that beer containers and marijuana were found in Steele's pick-up truck and infers that he spent some of the money on those items. She also points out that the police originally believed that robbery was not involved based on the facts that the truck was not stolen and that Steele's cell phone was found in his truck, along with about $14 in his front pocket. We conclude that the evidence of robbery was sufficient to satisfy the rule of corpus delicti. The evidence that Steele always carried his wallet with him and that it was missing when his body was found is sufficient to make it more likely that he was robbed than it would be without the evidence. Other courts have come to similar conclusions. The Schneider case, like this case, involved capital murder based on an alleged robbery. 2005 WL 2995824, at *1-2. The court held that the rule of corpus delicti was satisfied with evidence that the murder victim ordinarily kept cocaine in a small black bag that was missing after the murder. Id. at *2-3. Another similar capital-murder case is Simmons v. State, No. 07-08-0229-CR, 2009 WL 3817582 (Tex. App.-Amarillo Nov. 16, 2009, pet. ref'd) (mem. op., not designated for publication). The court of appeals held that the underlying offense of robbery was adequately corroborated by independent evidence that the victim had ten dollars on his person a little while before he was killed and that the money was missing when his body was found. Id., 2009 WL 3817582, at *4.8 We conclude that the independent evidence that Steele always carried his wallet with him, coupled with the evidence that it was not recovered from his body or thereafter, is sufficient to satisfy the rule of corpus delicti. We overrule appellant's third point of error. E. Destruction of evidence
In her fourth point of error, appellant contends that the trial court violated her rights under the due course of law clause of the Texas Constitution by granting the State's motion to destroy fingerprint evidence in order to perform DNA testing of the substance (apparently blood) in which the fingerprint was found. We conclude that appellant failed to preserve error in the trial court. The State recovered what appeared to be some bloody fingerprints from the passenger door of Steele's pick-up truck. The fingerprints were lifted with tape, and the tape was then applied to a notecard. A scanned copy of the fingerprint card was made. The State made a pre-trial motion to conduct additional testing on the material in which the fingerprints were preserved in order to determine whether it was blood, and, if so, to perform DNA testing on the material. The trial court conducted two hearings on the State's motion, and the evidence showed that the testing could not be performed without altering the fingerprint. The evidence also showed that the scanned copy of the fingerprint card was of high quality and could be used to make identifications. The trial court ultimately granted the State's motion. Although appellant opposed the State's motion for additional testing, her attorney never argued that the destructive testing of the substance would violate appellant's rights under the due course of law clause of the Texas Constitution. He never invoked the constitution at all. At the first hearing, appellant's counsel opposed the motion only on the ground that the State had not shown what facts the additional testing would reveal that justified the destruction of the evidence. At the second hearing, counsel said only, "We'll stand on our previous objection." Preservation of error is a systemic requirement on appeal. Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009). Accordingly, the court of criminal appeals has instructed us not to address the merits of issues that have not been preserved for appeal. Id.; accord Wilson v. State, 311 S.W.3d 452, 473-74 (Tex. Crim. App. 2010) (per curiam) (op. on reh'g). Appellant did not present her constitutional challenge to the trial court, so she did not preserve it for appeal. See Lovill v. State, 319 S.W.3d 687, 691-92 (Tex. Crim. App. 2009) ("A complaint will not be preserved if the legal basis of the complaint raised on appeal varies from the complaint made at trial."). We overrule appellant's fourth point of error. F. Definition of "reasonable doubt"
In her fifth point of error, appellant argues that the trial court erred by including the following sentence in the jury charge: "It is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution's proof excludes all reasonable doubt concerning the defendant's guilt." According to appellant, this instruction provides a definition of reasonable doubt in violation of Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000). We have repeatedly rejected appellant's precise argument in other cases. Bates v. State, 164 S.W.3d 928, 931 (Tex. App.-Dallas 2005, no pet.); Bratton v. State, 156 S.W.3d 689, 696-97 (Tex. App.-Dallas 2005, pet. ref'd); O'Canas v. State, 140 S.W.3d 695, 702 (Tex. App.-Dallas 2003, pet. ref'd). We overrule appellant's fifth point of error. III. Disposition
Having overruled all of appellant's points of error, we affirm the judgment of the trial court.