Adanandus v. State

• Decision Date: 16 June 1993
• Docket Number: No. 70897,70897
• Citation: 866 S.W.2d 210
• Parties: Dwight Dwayne ADANANDUS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 210

866 S.W.2d 210

Dwight Dwayne ADANANDUS, Appellant, v. The STATE of Texas, Appellee.

No. 70897.

Court of Criminal Appeals of Texas.

June 16, 1993.

Rehearing Denied Sept. 22, 1993.

Julie B. Pollock, San Antonio, for appellant.

John F. Carroll, Dist. Atty., Pro Tem, San Antonio, Robert Huttash, State's Atty., Austin, for the State.

OPINION

MALONEY, Judge.

Appellant was convicted of murder in the course of committing a robbery. TEX.PENAL CODE ANN. § 19.03(a)(2). The jury affirmatively answered the special issues submitted. TEX.CODE CRIM.PROC.ANN. art. 37.071(b). Appeal to this court is automatic. TEX.CODE CRIM.PROC.ANN. art. 37.071(h).

In point of error forty appellant claims "the trial court erred in denying [his] motion for acquittal based on insufficient evidence to prove the death of the victim was intentional." A discussion of the facts is necessary in order to address this and the other points of error alleging insufficiency of the evidence. On January 28, 1988, appellant entered the lobby of the Continental National Bank in San Antonio, approached Patricia Martinez, a teller, and gave her a hand-written note which said:

1. First of all, this is a robbery! If you "anything" [sic] other than this note ask [sic]; you'll be the first to lose your life! O.K.? I'm for real.

2. Put all the big bill [sic] from your cash tray in the brown folder $100, 50, 20, 10, & 5's. Return note and bag to me in that order!

3. Close your position and excuse yourself to the rear without speaking a word about this until you know that I am no longer here.

Martinez testified that while she was filling appellant's folder with cash, appellant repeatedly threatened to kill her if she identified him. Martinez further testified that appellant put his hand to his pants as if he were reaching for a gun. In removing the cash from her drawer, Martinez activated the bank's lobby cameras. As appellant walked away from Martinez' station with the cash, she pointed to appellant and shouted that he had robbed her. Vernon Hanan, a customer who had just entered the bank, heard the outcry and tackled appellant. Appellant dropped the folder containing the cash, the holdup note and some other papers. The two men wrestled out of the lobby doors and into the bank foyer. Hanan fell to the floor and appellant shot him, causing Hanan's death. Appellant re-entered the bank lobby to retrieve the money and papers, pointing his gun at another customer on his way out. Fleeing the bank, appellant ran into a suburban neighborhood and took refuge under a house. He was apprehended by the police and Federal Bureau of Investigation (F.B.I.) agents approximately four hours later.

The standard of review for a challenge to sufficiency of the evidence is whether, when viewed in the light most favorable to the verdict, any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Dunn v. State, 819 S.W.2d 510, 513 (Tex.Crim.App.1991), cert. denied, 506 U.S. 834, 113 S.Ct. 105, 121 L.Ed.2d 63 (1992). Intent to kill may be inferred from the use of a deadly weapon in a deadly manner. Godsey v. State, 719 S.W.2d 578, 580-81 (Tex.Crim.App.1986). Further, "[i]f a deadly weapon is used in a deadly manner, the inference is almost conclusive that [the defendant] intended to kill...." Id. at 581.

The evidence shows that appellant used a deadly weapon in a deadly manner. He entered the bank carrying a loaded gun and made verbal and written threats on the life of a bank employee in order to carry out his plan. When Hanan, an unarmed customer, attempted to thwart appellant's escape, appellant pulled his gun and shot Hanan after Hanan had fallen to the ground. ¹ The bullet went through the deceased's right arm and entered his chest. Appellant also pointed his gun at another customer on his way out of the bank. We hold that any rational trier of fact could have found the evidence sufficient to support a finding that appellant acted intentionally in causing the death of Hanan. See Turner v. State, 805 S.W.2d 423, 427 (Tex.Crim.App.), cert. denied, 502 U.S. 870, 112 S.Ct. 202, 116 L.Ed.2d 162 (1991); Godsey, 719 S.W.2d at 580. The trial court did not err in overruling appellant's motion for acquittal. Point of error forty is overruled.

In point of error forty-one appellant claims the evidence is insufficient to support the jury's affirmative answer to special issue number one, "whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result". TEX.CODE CRIM.PROC.ANN. art. 37.071(b)(1). Appellant argues that because the shooting took place during a physical struggle, it was accidental and therefore not deliberate.

In reviewing the evidence in a light most favorable to the verdict we ask whether a rational trier of fact could have found beyond a reasonable doubt that appellant acted deliberately and with the expectation that death would result from his actions. Westley v. State, 754 S.W.2d 224, 229 (Tex.Crim.App.1988), cert. denied, 492 U.S. 911, 109 S.Ct. 3229, 106 L.Ed.2d 577 (1989). Evidence that the defendant arrived at the scene of the crime carrying a loaded weapon is probative of deliberate conduct. Carter v. State, 717 S.W.2d 60, 67 (Tex.Crim.App.1986), cert. denied, 484 U.S. 970, 108 S.Ct. 467, 98 L.Ed.2d 407 (1987). Further, evidence of a struggle does not necessarily negate deliberate conduct. Turner, 805 S.W.2d at 428.

As discussed in connection with the previous point of error, appellant entered the bank with a loaded gun and made verbal and written threats on the life of a bank employee. Appellant planned his actions with forethought, having entered the bank with a written note outlining his demands and the implications for failing to comply therewith. There was testimony that appellant shot the deceased after the deceased had fallen to the ground and appellant was standing over him. In addition, the State's firearms expert testified that appellant's gun had a heavy trigger pull and was fired from approximately two feet from the deceased. Instead of fleeing immediately after firing, appellant returned to the lobby of the bank to retrieve his papers and the money, wielding his gun at another bank customer on his way out. Evidence was admitted at punishment that appellant was experienced in using firearms--appellant had shot an unarmed man in the head during an altercation with the man's brother over a basketball game, appellant had a prior conviction for unlawfully carrying a handgun, appellant was convicted of burglary of a building and for two separate aggravated robberies of convenience stores, and appellant had committed an aggravated robbery of a savings institution involving facts similar to the instant case. Based on the foregoing evidence, we hold that any rational trier of fact could have found beyond a reasonable doubt that appellant acted deliberately in killing the deceased. See, e.g., Rousseau v. State, 855 S.W.2d 666, 684 (Tex.Crim.App.1993), reh'g denied (April 7, 1993); Fuller v. State, 827 S.W.2d 919 (Tex.Crim.App.1992), cert. denied; Turner, 805 S.W.2d at 428-29; Carter, 717 S.W.2d at 67; Smith v. State, 676 S.W.2d 379, 393 (Tex.Crim.App.1984), cert. denied, 471 U.S. 1061, 105 S.Ct. 2173, 85 L.Ed.2d 490 (1985). Point of error forty-one is overruled.

In his forty-second point of error, appellant claims the evidence is insufficient to support the jury's affirmative answer to special issue number three, "whether the conduct of [appellant] in killing the deceased was unreasonable in response to the provocation, if any, by the deceased." TEX.CODE CRIM.PROC.ANN. art. 37.071(b)(3). Appellant points to Hanan's attempt to stop appellant from exiting the bank as evidence of provocation justifying appellant's use of deadly force against Hanan.

Efforts to apprehend a would-be robber or prevent the completion of a robbery do not amount to provocation for purposes of the third special issue. See, e.g., Rousseau, 855 S.W.2d at 684-85; Westley, 754 S.W.2d at 230; Smith, 676 S.W.2d at 393-94. Hanan was unarmed and tackled appellant in an attempt to abort a robbery. Point of error forty-two is overruled. See, e.g., Rousseau, 855 S.W.2d at 684-85; Turner, 805 S.W.2d at 428; Westley, 754 S.W.2d at 230-31.

In his first five points of error, appellant claims that continued voir dire of the jury panel in his absence violated his rights under Article 1, § 10 of the Texas Constitution, the Sixth Amendment to the Constitution of the United States, and TEX.CODE CRIM.PROC.ANN. art. 33.03. Appellant argues that the right of the accused to be present at voir dire is "unwaivable", citing Miller v. State, 692 S.W.2d 88 (Tex.Crim.App.1985). The State contends that error, if any, was harmless.

During voir dire defense counsel informed the court that appellant was feeling ill and did not know if he would be feeling well enough to attend proceedings the next day. Appellant agreed to the continuation of voir dire in his absence. The next day defense counsel informed the court that appellant was still not feeling well and had decided to remain in his cell. Counsel reaffirmed appellant's desire to voluntarily waive his presence. Eight persons were voir dired that day in appellant's absence. Three of those were successfully challenged for cause by the defense. The other five were accepted by both parties as "potential" jurors (peremptories were to be saved and utilized at the conclusion of all of the individual voir dire). The following day the State informed the court that it had come to its attention that appellant's absence the previous day was in violation of article 33.03 of the Code of Criminal Procedure. ² After considerable debate, the court decided to recall the eight venirepersons for re-examination in appella...