Cooks v. State

• Decision Date: 16 September 1992
• Docket Number: No. 70,772,70,772
• Citation: 844 S.W.2d 697
• Parties: Vincent Edward COOKS, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 697

844 S.W.2d 697

Vincent Edward COOKS, Appellant, v. STATE of Texas, Appellee.

No. 70,772.

Court of Criminal Appeals of Texas,

En Banc.

Sept. 16, 1992.

Rehearing Denied Jan. 13, 1993.

E. Brice Cunningham, on appeal only, Dallas, for appellant.

John Vance, Dist. Atty., and Jeffrey B. Keck, Asst. Dist. Atty., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

MALONEY, Judge.

Appellant was indicted and convicted in Dallas County on a charge of Capital Murder. TEX.PENAL CODE ANN. 19.03(a)(2). The indictment alleged that appellant caused the death of the deceased by shooting him with a firearm in the course of appellant's attempt to commit robbery of Mark DeCardenas. The jury answered the issues submitted to it in the affirmative and the trial court assessed the death penalty. Article 37.071 V.A.C.C.P. Direct appeal was had to this Court. Article 37.071 § 2(h) V.A.C.C.P. Appellant has raised fifty-four points of error in this appeal. A discussion of the facts is necessary to fully address appellant's fifty-first point of error, alleging insufficiency of the evidence. The week of the robbery, appellant and two longtime friends, Tony Ray Harvey and Tracy Stallworth met in Dallas. Appellant and Harvey at that time were residents of Houston and Stallworth resided in Dallas. Harvey testified at trial that he, Stallworth and appellant stole an Oldsmobile Cutless and parked it in a hotel parking lot until the morning of the robbery. On February 26, 1988, the morning of the robbery, appellant, Harvey and Stallworth rented a blue Plymouth, retrieved the stolen Oldsmobile and drove it and the Plymouth to an area near Brancatos Grocery, where they parked the Oldsmobile in the parking lot across from Brancatos Grocery and all three then drove the Plymouth to a parking lot down the street. While appellant and his cohorts were parking in this lot, two passing police officers stopped and briefly questioned them as to what they were doing. Stallworth responded that they were waiting for a bus. Having no reason to inquire further, the officers went on their way. Mark DeCardenas, the owner of Brancatos Grocery, testified that he had noticed a blue Plymouth driving or parked near the store several times earlier on the day of the robbery.

About 4:30 p.m., Mark DeCardenas and the deceased, an off-duty police officer who worked part-time as a security guard at the store, drove to the bank to obtain cash in the amount of $30,000.00, necessary for the store's check cashing service. This additional money was needed in order to cash the number of paychecks customary for a Friday afternoon. Harvey testified at trial that when appellant, Harvey and Stallworth saw DeCardenas and the deceased returning from the bank, appellant and Harvey got out of the Plymouth, into the Oldsmobile and drove to the parking lot across from Brancatos Grocery. Testimony at trial showed that DeCardenas and the deceased were approached by appellant as they walked across the parking lot and that appellant attempted to grab the paper bag containing the money from DeCardenas. The deceased instructed DeCardenas to run into the store and pushed him toward the door. The bag containing the money was dropped in the scuffle. According to testimony at trial, appellant backed away from the scene, shooting at the deceased, got into the Oldsmobile with Harvey and drove away. The deceased shot at the retreating Oldsmobile, shattering the back window. The deceased sustained fatal gunshot wounds in the encounter.

As the Oldsmobile left the scene, two police officers driving in the opposite direction noticed the broken rear window and, suspecting a stolen vehicle, followed it. When they caught up with the Oldsmobile, it was stopped in the middle of the street, the doors were open and the occupants were gone. A revolver, recovered from the floorboard, was established as the murder weapon.

The license plate number of the rented blue Plymouth, obtained by the police officers who observed and questioned the trio before the robbery, was traced to Stallworth's girlfriend and led to Stallworth's arrest. Based upon information from Stallworth, the arrests of Harvey and appellant followed. Fingerprints obtained from the Plymouth and witnesses who identified appellant as the gunman corroborated Harvey's testimony that appellant was the gunman.

In his fifty-first point of error, appellant contends that the evidence was insufficient to support the jury's conviction for capital murder. Appellant points out that DeCardenas was unable to identify appellant as the gunman. DeCardenas testified that he momentarily "blacked out" and did not see the perpetrator's face. Appellant also argues that out of ten witnesses who viewed live lineups, only one positively identified appellant as the assailant and a number of witnesses identified persons other than appellant. ¹ Appellant further directs us to inconsistent descriptions of the gunman's height, weight and clothing given to the police following the robbery. ² Appellant also argues that his fingerprints were not found on the gun, the grocery sack or anywhere in the stolen Oldsmobile.

The State points to the testimony of witnesses who identified appellant as the gunman. In addition to Harvey, appellant's longtime friend and accomplice to the offense, two other witnesses testified at trial that appellant was the triggerman. Frank Green, the manager of the grocery, testified that he viewed the attempted robbery from the store window and subsequently made a positive identification during a live lineup. ³ Another witness, Oliver Powell testified that he was crossing the parking lot when the Oldsmobile cut in front of him and appellant got out and approached DeCardenas and the deceased. Powell further testified that appellant attempted to grab the paper bag containing the money from DeCardenas, that appellant then backed away from DeCardenas and the deceased, pulled out a gun and fired at the deceased. Powell testified that the day after the robbery, he identified appellant in a photo lineup. The State contends that despite some inconsistencies between descriptions given at the scene of the crime and appellant's actual appearance, Powell's and Green's testimony is sufficient to satisfy the issue of the sufficiency of the evidence. With respect to the lack of fingerprints, the State points out that a glove was recovered from the stolen vehicle and appellant's fingerprints were found in the blue Plymouth.

In reviewing the sufficiency of the evidence, we view the evidence "in the light most favorable to the verdict", Bowden v. State, 628 S.W.2d 782, 785 (Tex.Cr.App.1982), and ask whether "any rational finder of fact could have found the essential elements of the crime beyond a reasonable doubt." Griffin v. State, 614 S.W.2d 155, 159 (Tex.Cr.App.1981) (citing Jackson v. Virginia, 443 U.S. 307, 319 n. 12, 99 S.Ct. 2781, 2789 n. 12, 61 L.Ed.2d 560 (1979)). Here, eye witnesses to the crime positively identified appellant as the gunman in photo and live lineups and at trial. Appellant's fingerprints were found in the blue Plymouth which was observed by two police officers and DeCardenas as being near the scene of the crime close to the time of the offense. Appellant's friend and cohort, Tony Ray Harvey, testified that the robbery was planned and committed by appellant, Harvey and Stallworth and that appellant was the gunman. However, the weight to be given to the testimony of Harvey, an accomplice in the subject crime, is governed by article 38.14 of the Code of Criminal Procedure which states that "[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." The evidence at trial, apart from Harvey's testimony, must "tend to connect" appellant with the robbery.

The testimony of the other eye witnesses, the sightings of the blue Plymouth near the scene of the crime and the fingerprints of appellant found in the Plymouth all "tend to connect" appellant with the subject offense. The fact that the record contains some inconsistencies in the descriptions given of appellant does not render the evidence insufficient to support a conviction. Bowden, 628 S.W.2d at 784-85. Similarly, the fact that only one out of ten witnesses to the crime who were shown live lineups identified appellant as the gunman does not render the evidence insufficient. These facts and inconsistencies were presented to the jurors for their review and evaluation in light of all the evidence. Reconciliation of conflicts and inconsistent evidence are matters for consideration by the members of the jury. Id. We conclude that the evidence is sufficient to support the jury's conviction of appellant. Appellant's fifty-first point of error is overruled.

We now address the remainder of appellant's points of error. In appellant's first, second and third points of error, appellant contends that the trial court erred in overruling his challenges for cause with respect to three venirepersons, Madie Harvey, Samuel Weldon Jackson and Johnny Luttrull, alleging that their testimony reflected that they would each be unable to assess the minimum five year sentence for murder in the event of a guilty verdict. Venireperson Jackson was further challenged for cause because Jackson allegedly would require appellant to present mitigating evidence before he would answer "no" to submitted issue number two ⁴ and also because Jackson allegedly was biased due to his exposure to pretrial publicity.

Quoting from this Court's decision in Pierce v. State, 604 S.W.2d 185, 187 (Tex.Cr.App.1980), appellant argues that the subject venirepersons should have been excused for cause because appellant is "entitled to have jurors who believe in the full range of punishment." App...