Bell v. State, No. 2-07-166-CR (Tex. App. 8/29/2008)
| Decision Date | 29 August 2008 |
| Docket Number | No. 2-07-166-CR.,2-07-166-CR. |
| Parties | DARRELL GLENN BELL, Appellant v. THE STATE OF TEXAS, State. |
| Court | Texas Court of Appeals |
Appeal from Criminal District Court No. 2 of Tarrant County.
PANEL: LIVINGSTON, DAUPHINOT, and McCOY, JJ.
Appellant Darrell Glenn Bell appeals his conviction for capital murder. In twelve points, appellant argues that the evidence is legally and factually insufficient, that the indictment failed to contain notice of the State's intent to establish his criminal responsibility as a party or conspirator under Chapter 7 of the Texas Penal Code, that the trial court erred by denying his request for a lesser included offense instruction on conspiracy to commit capital murder and conspiracy to commit aggravated robbery, that the trial court erred by denying his request for a benefit of the doubt instruction in the jury charge, that the trial court erred by denying his request for an accomplice witness instruction, that the trial court erred by denying his request for an independent impulse rule instruction regarding the conduct of Tarrence L. Stevenson, that the prosecutor commented on appellant's silence, and that Shawntee Abbs's written statement should have been excluded from evidence. We affirm.
On April 13, 2005, Patrick and Brenda Kilpatrick went to Terry's Food Mart at 5500 Hemphill in Fort Worth. Patrick went to the counter to speak with the store clerk, Syed Karim, while Brenda grabbed some beer and Pepsi. While Patrick spoke to Syed, a black male walked in and went to the back of the store. A few minutes later, two more black men dressed in black pants and sweatshirts with hoodies came in and said, "This is a robbery, fools." One of the men wore a mask and had a gun. Syed took out the cash register, set it on the counter, and begged for his life.
Patrick and Brenda, who had backtracked down one of the aisles away from the counter and crouched on the floor, called 9-1-1 when they heard a shot fired. The men left in a black four-door car. Patrick ran to the front, noticed that the men were gone, and saw Syed holding his stomach before he fell to the floor. Patrick ran to the Shell station next door where he knew an ambulance was parked, but the EMTs refused to help until the police cleared the scene. Syed later died from his wounds at the hospital.
Based on the information the Kilpatricks provided, the police believed that only two men were involved in the robbery. However, after viewing the store surveillance video, police realized a third man had been involved. On April 15, 2005, police received a crime stoppers tip from Maricia Holland. Holland had overheard a conversation between her girlfriend Shawntee Abbs and appellant in which appellant told Abbs that he had committed a robbery and had some money. A couple of days later, Holland, Abbs, and appellant were at Abbs's house, and appellant again admitted that he was involved with the robbery and showed them a "wad" of cash. Appellant also talked about the robbery on another occasion at Abbs's house and said that he "got them [his friends] pumped up" and one of them "got trigger happy."
Amanda Bivens testified that she had met appellant two years ago when he was selling drugs. Bivens had a black, four-door 1998 Oldsmobile Cutlass, which she would rent to appellant in exchange for drugs. On April 13, 2005, Bivens was with appellant in her car when he began talking about needing money to purchase drugs to sell; appellant said he was going to rob a clerk at a convenience store. Appellant, who was driving, stopped at a house and picked up his friends T.T. and Julian. Bivens waited in the car for about fifteen minutes until appellant, T.T., and Julian came out wearing black sweatshirts. Appellant threw a gun in her lap and told her to hold it, but Bivens handed the gun to T.T. and Julian in the back seat. Appellant drove around and tried to find another gun, but he could not locate one. Appellant then dropped Bivens off at a house on Savage Street where she waited for about thirty minutes until appellant, T.T., and Julian returned. Appellant told Bivens to "[g]et that cash register out your car" and gave her ten dollars for the use of her car. Bivens also saw a black sweatshirt and black ski mask in the back seat of her car. Appellant, T.T., and Julian left in another car.
Bivens saw the robbery on the news the next morning and, although she knew appellant and his friends were going to commit a crime the night before, she did not know that they had shot someone until she saw the story. When Bivens later saw appellant, she asked him what had happened, but he was evasive. Appellant changed his story a couple of times; for example, one time he told her that he had gone into the store but also that he had waited in the car.
Several days later, Bivens and Abbs were driving in Bivens's car when the police surrounded them. Bivens and Abbs accompanied the police to the station and told them what they knew. After speaking with police, Bivens went with a detective to a pay phone at a Chevron station and called appellant to meet her. When appellant arrived, police arrested him.
A grand jury charged appellant as follows:
Darrell Glenn Bell, hereinafter called Defendant, in the County of Tarrant and State aforesaid, on or about the 13th day of April 2005, did
Then and there intentionally cause the death of an individual, Syed Karim, by shooting him with a firearm, and the said defendant was then and there in the course of committing or attempting to commit the offense of robbery.
A jury convicted appellant of the offense of capital murder, and the trial court assessed punishment at life imprisonment. Appellant timely filed this appeal.
In points one and two, appellant argues that the evidence was legally and factually insufficient to support the jury's verdict. Specifically, appellant claims that he lacked specific intent to kill Syed.
In reviewing the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the prosecution in order to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
When reviewing the factual sufficiency of the evidence to support a conviction, we view all the evidence in a neutral light, favoring neither party. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006); Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005). We then ask whether the evidence supporting the conviction, although legally sufficient, is nevertheless so weak that the fact-finder's determination is clearly wrong and manifestly unjust or whether conflicting evidence so greatly outweighs the evidence supporting the conviction that the fact-finder's determination is manifestly unjust. Watson, 204 S.W.3d at 414-15, 417; Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). To reverse under the second ground, we must determine, with some objective basis in the record, that the great weight and preponderance of all the evidence, though legally sufficient, contradicts the verdict. Watson, 204 S.W.3d at 417.
In determining whether the evidence is factually insufficient to support a conviction that is nevertheless supported by legally sufficient evidence, it is not enough that this court "harbor a subjective level of reasonable doubt to overturn [the] conviction." Id. We cannot conclude that a conviction is clearly wrong or manifestly unjust simply because we would have decided differently than the jury or because we disagree with the jury's resolution of a conflict in the evidence. Id. We may not simply substitute our judgment for the fact-finder's. Johnson, 23 S.W.3d at 12; Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Unless the record clearly reveals that a different result is appropriate, we must defer to the jury's determination of the weight to be given contradictory testimonial evidence because resolution of the conflict "often turns on an evaluation of credibility and demeanor, and those jurors were in attendance when the testimony was delivered." Johnson, 23 S.W.3d at 8. Thus, we must give due deference to the fact-finder's determinations, "particularly those determinations concerning the weight and credibility of the evidence." Id. at 9.
An opinion addressing factual sufficiency must include a discussion of the most important and relevant evidence that supports the appellant's complaint on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). Moreover, an opinion reversing and remanding on factual insufficiency grounds must detail all the evidence and clearly state why the finding in question is factually insufficient and under which ground. Goodman v. State, 66 S.W.3d 283, 287 (Tex. Crim. App. 2001); Johnson, 23 S.W.3d at 7.
A person commits capital murder if he intentionally or knowingly causes the death of an individual while in the course of committing or attempting to commit robbery. TEX. PENAL CODE ANN. § 19.02(b)(1), 19.03(a)(2) (Vernon 2003 and Vernon Supp. 2008); Johnson v. State, 853 S.W.2d 527, 535 (Tex. Crim. App. 1992), cert denied, 510 U.S. 852 (1993); Frank v. State, 183 S.W.3d 63, 72 (Tex. App.-Fort Worth 2005, pet. ref'd). The law of parties applies to the offense of capital murder. Johnson, 853 S.W.2d at 534; Frank, 183 S.W.3d at 72.
Under the law of parties, "[a] person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible,...
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