Cook v. State

• Citation: 858 S.W.2d 467
• Decision Date: 07 April 1993
• Docket Number: No. 70730,70730
• Parties: Anthony Quinn COOK, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 467

858 S.W.2d 467

Anthony Quinn COOK, Appellant, v. The STATE of Texas, Appellee.

No. 70730.

Court of Criminal Appeals of Texas,

En Banc.

April 7, 1993.

Rehearing Denied June 30, 1993.

Troy C. Hurley, Temple, for appellant.

Hollis C. Lewis, Jr., County Atty., Cameron, Charles H. Van Orden, Sp. Prosecutor, Belton, and Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

BAIRD, Judge.

Appellant was convicted of capital murder pursuant to Tex.Penal Code Ann. § 19.03(a)(2). ¹ The jury affirmatively answered the punishment issues submitted pursuant to Tex.Code Crim.Proc.Ann. art. 37.071(b)(1) and (2). ² Punishment was assessed at death. Id. at (e). Appeal to this Court is automatic. Id. at (h). We will affirm.

In his fifth point of error, appellant challenges the sufficiency of the evidence to support his conviction. Specifically, appellant contends that the trial court erred in overruling his motion for a directed verdict at the close of the State's case-in-chief, asserting that the State had failed to corroborate the accomplice witness testimony of Robert Brian Moore.

To resolve this point, we must first address the State's claim that appellant is procedurally barred from raising this point on appeal. Appellant moved for a directed verdict at the close of the State's case-in-chief and the motion was overruled. Appellant then presented defensive evidence. The State relies on Hafdahl v. State, 805 S.W.2d 396 (Tex.Cr.App.1990), to support the contention that, because appellant put on evidence after his motion for a directed verdict was overruled, appellant is procedurally barred from challenging the trial judge's decision overruling that motion. However, we disavowed the rule in Hafdahl, and its progenitors, in Madden v. State, 799 S.W.2d 683, 686 n. 3 (Tex.Cr.App.1990):

In Hafdahl v. State ... the Court held that appellant waived his right to complain that the trial court erred in overruling his motion for instructed verdict by presenting defensive evidence after the State rested its case-in-chief. In so holding, the Court cited Kuykendall v. State, 609 S.W.2d 791 (Tex.Cr.App.1981) and Shirley v. State, 501 S.W.2d 635 (Tex.Cr.App.1973), which the Kuykendall opinion solely relied on for this waiver proposition. Our research reveals that Shirley was decided on the basis of two prior opinions from this Court, viz: Bellah v. State, 415 S.W.2d 418 (Tex.Cr.App.1967), and Davis v. State, 440 S.W.2d 291 (Tex.Cr.App.1969), neither of which held that an appellant waives his right to complain of the trial judge's overruling of his motion for instructed verdict by presenting defensive evidence. On the contrary, Bellah and Davis both stand for the principle that an appellate court is not required to pass on the contention that the evidence was insufficient at the time the State rested its case-in-chief once the appellate court has determined, after considering all the evidence presented at trial by both the State and the defendant, the evidence is sufficient to sustain the conviction. Thus, the waiver language in Hafdahl is disavowed.

The harsh rule in Hafdahl was the result of a mistaken interpretation of prior caselaw, not an evolution of legal principles. As we recognized in Madden, "[a] challenge to the trial judge's ruling on a motion for an instructed verdict is in actuality a challenge to the sufficiency of the evidence to support the conviction." Madden, 799 S.W.2d at 686. Therefore, although originally appearing only in a footnote, we now adopt the foregoing language in Madden as the rule. See, Kunkle v. State, 852 S.W.2d 499, 504 (Tex.Cr.App.1993). Accordingly, we will consider the evidence presented at trial by both the State and appellant in determining whether there was sufficient evidence to corroborate the accomplice witness testimony of Robert Brian Moore.

Tex.Code Crim.Proc.Ann. art. 38.14, provides:

A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.

We have interpreted article 38.14 as follows:

It is well settled ... that the corroborative evidence need not directly link the accused to the crime or be sufficient in itself to establish guilt. [Citations omitted.] The test to determine the sufficiency of the corroboration is to eliminate from consideration the evidence of the accomplice witness and then examine the testimony of other witnesses to ascertain if there is inculpatory evidence which tends to link the accused with the commission of the offense. [Citations omitted.]

This same test is applied in determining the sufficiency of corroboration in capital cases. [Citations omitted.]....

Thompson v. State, 691 S.W.2d 627, 631 (Tex.Cr.App.1984) (Emphasis in original.)

After eliminating from consideration the testimony of Robert Brian Moore, a review of the record reveals inculpatory evidence which tends to link appellant with the commission of the offense of capital murder. According to appellant's own testimony, he participated in the kidnapping and robbery of the decedent, holding the gun while the decedent showed Moore which key fit in the ignition of the decedent's car. Appellant testified that he and Moore drove the decedent north on I-35 from Austin to a roadside park. Appellant testified that he held the gun on the decedent while Moore tied-up the decedent and took his wedding band. Immediately afterward, either Moore or appellant fatally shot the decedent. Moore and appellant then drove to Fort Worth.

Appellant's own testimony, which showed his participation in the decedent's kidnapping and robbery and his presence at the murder scene, established that he was, at a minimum, a party to capital murder. In addition, the decedent's watch and wallet were recovered from appellant's person, which also tends to connect appellant with the robbery and murder of the decedent. Appellant's fifth point of error is overruled.

In his first point of error, Appellant contends the trial judge erred in sustaining the State's challenge for cause of veniremember Margaret Lehnart. Lehnart testified that she would need greater proof of guilt than proof beyond a reasonable doubt before she could impose the death penalty:

Lehnart: Well, I would have to be very firmly--I would say that I would have to be convinced perhaps beyond a reasonable doubt to no shadow of a doubt of the guilt of this particular individual. In order to favor the death penalty, I would want to be absolutely certain, because if the State makes a mistake, you can let a person out of prison but you can't bring back somebody that's executed, so I would want to be absolutely, firmly convinced that this is the guilty party and that this person is guilty of this.

* * * * * *

If I'm going to vote to take somebody else's life, I want to be very sure of it. You just can't bring back a life if you take it wrongfully.

State: I understand that. What you are saying is you would require a higher burden than beyond a reasonable doubt?

Lehnart: In a death situation, yes, I would.

We said in Jacobs v. State, 787 S.W.2d 397, 404 (Tex.Cr.App.1990):

The State is entitled to have a prospective juror excluded for cause if the juror has a bias or prejudice against any phase of the law upon which the State is entitled to rely. If a prospective juror manifests an intention to hold the State to a stricter standard of proof than that of beyond a reasonable doubt, then that juror is subject to a challenge for cause under Article 35.16(b)(3), V.A.C.C.P. (Citations omitted.)

In the present case, Lehnart clearly expressed that she would require a stricter standard of proof than the beyond a reasonable doubt standard. Therefore, we find that the trial court did not err in sustaining the State's challenge for cause. Appellant's first point of error is overruled.

In his second and third points of error, appellant contends the trial court erred in overruling his Batson challenges to the State's peremptory strikes of two veniremembers, Jessie Mae Mathews and Helen Linued. ³ Both veniremembers were struck after the trial judge overruled the State's challenges for cause.

The State responds that appellant may not raise a Batson challenge because he is not a member of a cognizable racial group and Tex.Code Crim.Proc.Ann. art. 35.261(a) supports the State's argument:

The court shall grant the motion of a defendant for dismissal of the array if the court determines that the defendant is a member of an identifiable racial group, that the attorney representing the state exercised peremptory challenges for the purpose of excluding persons from the jury on the basis of their race, and that the defendant has offered evidence of relevant facts that tend to show that challenges made by the attorney representing the state were made for reasons based on race. If the defendant establishes a prima facie case, the burden then shifts to the attorney representing the state to give a racially neutral explanation for the challenges. The burden of persuasion remains with the defendant to establish purposeful discrimination.

(Emphasis added.)

However, the Supreme Court held in Powers v. Ohio, 499 U.S. 400, ----, 111 S.Ct. 1364, 1366, 113 L.Ed.2d 411 (1991), that under the Fourteenth Amendment, "a criminal defendant may object to race-based exclusions of jurors effected through peremptory challenges whether or not the defendant and the excluded juror share the same race." Therefore, the race of a defendant is irrelevant to a Batson challenge. Just as it is not necessary under Powers to show that the defendant is a member of a cognizable racial group, it is also not necessary under art. 35.261(a) that the veniremember be of a particular racial group. A race-based peremptory strike offends both the United States Constitution and art. 35.261(a)...