Bennett v. State

• Decision Date: 22 April 1992
• Docket Number: No. 08-90-00370-CR,08-90-00370-CR
• Citation: 831 S.W.2d 20
• Parties: Robert BENNETT, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 20

831 S.W.2d 20

Robert BENNETT, Appellant, v. The STATE of Texas, Appellee.

No. 08-90-00370-CR.

Court of Appeals of Texas El Paso.

April 22, 1992.

Louis J. Bodnar, El Paso, for appellant.

Steve W. Simmons, Dist. Atty., El Paso County, El Paso, for state.

Before OSBORN, C.J., and KOEHLER and BARAJAS, JJ.

OPINION

BARAJAS, Justice.

This is an appeal from a murder conviction. Appellant was found guilty by a jury and sentenced by the trial court to a term of imprisonment of 60 years' in the Institutional Division of the Texas Department of Criminal Justice. In three points of error, Appellant seeks review of the judgment of conviction. In short, Appellant's assignments of error challenge the admissibility of his confession, the sufficiency of evidence and the excessiveness of the sentence imposed. We affirm.

In his first point of error, Appellant contends the trial court erred in overruling his Motion to Suppress and subsequently admitting his confession into evidence.

It is well settled that when a pretrial motion to suppress evidence is overruled, the defendant need not subsequently object at trial to the same evidence in order to preserve error on appeal. Ebarb v. State, 598 S.W.2d 842, 843 (Tex.Crim.App.1980); Riojas v. State, 530 S.W.2d 298, 301 (Tex.Crim.App.1975); Harryman v. State, 522 S.W.2d 512, 516 (Tex.Crim.App.1975). However, when the defendant affirmatively asserts during trial that he has "no objection" to the admission of the complained of evidence, he waives any error in the admission of the evidence despite the pretrial ruling. Harris v. State, 656 S.W.2d 481 (Tex.Crim.App.1983); Mayberry v. State, 532 S.W.2d 80 (Tex.Crim.App.1976); McGrew v. State, 523 S.W.2d 679 (Tex.Crim.App.1975). As a consequence, we need not recount the evidence in the instant case because defense counsel's action waived any alleged error when the State, at trial, offered the confession in evidence for the jury's consideration, and defense counsel affirmatively stated, "no objection." Compare McGrew v. State, 523 S.W.2d 679 (Tex.Crim.App.1975) with Graves v. State, 513 S.W.2d 57 (Tex.Crim.App.1974). Accordingly, Appellant's first point of error is overruled.

In Point of Error No. Two, Appellant argues the trial court erred in not acquitting him of the offense of murder since there is insufficient evidence to support a verdict of guilty beyond a reasonable doubt. When reviewing such a point, we are constrained to view the evidence in a light most favorable to the judgment to determine whether any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979); Humason v. State, 728 S.W.2d 363, 366 (Tex.Crim.App.1987). The standard of reviewing sufficiency of evidence in a criminal case is identical, whether the evidence is direct or circumstantial in nature. United States v. Hall, 845 F.2d 1281 (5th Cir.), cert. denied, 488 U.S. 860, 109 S.Ct. 155, 102 L.Ed.2d 126 (1988). Consistent with this standard of review, the necessary facts will be discussed as needed.

Appellant was charged by indictment for the offense of murder. The State of Texas called two key witnesses in its case-in-chief. Detective Scott Graves of the El Paso Police Department testified that after having read the Appellant his rights pursuant to Miranda v. Arizona, the Appellant waived those rights and proceeded to confess as to his involvement in the death of James Morris. Appellant's confession was admitted in evidence and considered by the jury. In his confession, Appellant acknowledges striking his victim, both in the chest and jaw, causing him to pass out. Appellant admitted kicking the handle of the victim's cane up between the victim's legs. Appellant however, stated that he did not cut James' throat on purpose.

The State called Tyrone Delaney, a convicted felon, to testify at trial. Delaney was a witness to Appellant's admissions to the beating death of the victim. Delaney was also present at a subsequent encounter between Appellant, his brother and the victim. Delaney testified that at approximately 7 p.m. on March 5, 1990, he saw Appellant. Delaney further testified that Appellant was looking for his brother, Kenneth. According to Delaney, Appellant proceeded to tell him "what he had just did." In particular, Delaney testified that Appellant had told him that he had beaten the victim and "shoved a cane up his ass." Delaney further stated that Appellant said he was looking for his brother so they could go back and finish the job. Delaney testified that he, Kenneth and Appellant all returned to the victim's house, entering through a rear window. Delaney further testified that while at the victim's residence, he saw Kenneth standing over the victim with his foot on his throat, and Appellant placing a pillow over the victim's face. Delaney stated that upon leaving the residence, they removed various items from the premises. On a subsequent visit, Appellant removed a television set. Delaney testified that he called the police to report the murder. Delaney did admit to having made two conflicting statements, one of which failed to acknowledge his presence at the victim's residence.

In his defense, Appellant called seven witnesses, five of which were used by the Appellant to establish the fact that the victim was a homosexual. One of the remaining defense witnesses, Robert Sharp, himself a convicted felon, testified as to admissions allegedly made by Tyrone Delaney, which implicated Delaney in the beating death of James Morris.

In a case tried before a jury, the jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Mowbray v. State, 788 S.W.2d 658 (Tex.App.--Corpus Christi 1990), cert. denied, 498 U.S. 1101, 111 S.Ct. 999, 112 L.Ed.2d 1082 (1991). Although the witness Delaney had been previously convicted of a felony, the jury was free to accept or reject any part or all of his testimony. See Ruiz v. State, 654 S.W.2d 488 (Tex.App.--Corpus Christi 1983, no pet.). Likewise, the jury was free to accept or reject all or part of Robert Sharp's testimony as well as Appellant's confession.

On review, this Court does not resolve any conflict in fact, weigh any evidence nor evaluate the credibility of any witnesses, and thus, the fact-finding results of a criminal jury trial will be given great deference. Juarez v. State, 796 S.W.2d 523 (Tex.App.--San Antonio 1990, pet. ref'd); Schofield v. State, 658 S.W.2d 209 (Tex.App.--El Paso 1983, no pet.).

We have reviewed the record before us, carefully looking at all the evidence in the light most favorable to the judgment, and find that the jury in the instant case, as rational triers of fact, could have found beyond a reasonable doubt that the Appellant did in fact cause the death of James Morris. Consequently, Appellant's Point of Error No. Two is overruled.

In Point of Error No. Three, Appellant contends the sentence imposed by the trial court was excessive, in view of the facts, circumstances and evidence in the case.

Appellant, citing 1974 version of the Tex.Penal Code Ann. § 12.44(a), asserts that the Court of Appeals may set aside a judgment or verdict of guilty, or reduce a sentence, if after considering the gravity and circumstances of the offense committed, a court finds that such reduced sentence and punishment would best serve the ends of justice. Appellant, after having been adjudged guilty to one of the most serious crimes against the laws of man, one classified by society as a hate crime, seeks to have this Court impose the punishment for a Class A misdemeanor. ¹

The record before this Court clearly supports the fact that Appellant engaged in what society has chosen to graphically describe as "gay bashing."...