Dunn v. State

• Citation: 819 S.W.2d 510
• Decision Date: 15 May 1991
• Docket Number: No. 70505,70505
• Parties: Kenneth Dwayne DUNN, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 510

819 S.W.2d 510

Kenneth Dwayne DUNN, Appellant, v. The STATE of Texas, Appellee.

No. 70505.

Court of Criminal Appeals of Texas,

En Banc.

May 15, 1991.

Rehearing Overruled Sept. 18, 1991.

Kenneth P. Mingledorff, on appeal only, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty. & Timothy G. Taft, Russell Hardin & Joe Magliolo, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

OVERSTREET, Judge.

Appellant was convicted of capital murder pursuant to V.T.C.A. Penal Code, § 19.03(a)(2). Death was imposed by the trial court after the jury returned affirmative findings to both special issues submitted under Article 37.071(b)(1) and (2), V.A.C.C.P. Direct appeal to this Court was automatic. We will affirm appellant's conviction.

Appellant raises twenty-three points of error. In point of error twenty-one, appellant challenges the sufficiency of the evidence to support the jury's verdict of guilty. Specifically, appellant alleges that there was insufficient evidence to demonstrate that he intentionally committed the offense of murder in the course of a robbery, or an attempted robbery, thereby precluding a conviction for capital murder. ¹

The indictment alleges that appellant, on or about March 17, 1980, "while in the course of committing and attempting to commit robbery of GREGORY PUTMAN, intentionally cause[d] the death of MADELINE RAE PETERS by shooting MADELINE RAE PETERS with a gun." Since appellant challenges the sufficiency of the evidence resolution of this issue requires a detailed recitation of the facts.

The testimony reveals that on March 17, 1980, at approximately 11:00 a.m., a gunman identified as appellant, entered Almeda Bank in Harris County. Upon entering he surreptitiously approached Ray Valenta, an off duty Houston police officer, working as a security guard for the bank. Carolyn Warren, a patron of the bank, described appellant's initial entry as being made on the balls of his feet while toting a gun held high and heading directly for Valenta, whose back was to appellant. Valenta was at the time of appellant's approach engaged in a conversation with the receptionist and was unaware of appellant's presence. Appellant disarmed Valenta and ordered him face down on the floor. Valenta, now relieved of his weapon and staring at appellant's cocked .45 pistol, obeyed appellant's command.

Greg Putman, a vice president of the bank, testified that he was in the note department giving the department a payment for one of his customers when he noticed appellant coming towards him yielding two revolvers. When appellant reached Putman, who was directly behind the teller cages, appellant had one gun in his hand pointing straight in Putman's face. Putman then related that appellant had a cloth bag in his hand and dropped it on the counter and told him [Putman] to fill it up and put all the money in the bag. Putman's testimony indicated he was positioned near the tellers' windows when appellant advanced. They approached the first teller and appellant directed her to put the money in the bag. After that transaction, according to Putman, both he and appellant moved down to the next teller window, where the teller was on a lunch break so Putman retrieved the money and they then proceeded to the teller window operated by the deceased, Madeline Peters.

When they arrived at Madeline Peters' window she was on the computer telephone. Appellant told her to "put all the money in the bag," and at the same time, with his finger on the trigger and the hammer cocked, he placed the gun in the teller cutout. At that time Ms. Peters responded, "what?" With the gun aimed at Peters, appellant shot her in the head.

To buttress Putman's testimony, among the witnesses called by the State was Lamar Dace, who was in Madeline Peters' line about to transact business when the individual identified as appellant demanded that he "get back" and pointed the gun right at Peters' head and then fired the weapon. During this entire episode the evidence indicates that appellant would periodically aim one of the revolvers directly at Valenta to keep him from moving from his face down position on the floor.

To recapitulate, it is appellant's precise contention that the evidence was insufficient to demonstrate that appellant intentionally committed the murder. ² Appellant makes no challenge as to the sufficiency of evidence to establish that the homicide occurred in the course of the commission or attempted commission of a robbery, rather his sole dispute centers on whether the act which resulted in the death of Madeline Peters was intentional so as to warrant a conviction for capital murder. Appellant argues that in this respect the evidence was insufficient. Naturally, it is incumbent upon the State to prove each and every element of the crime beyond a reasonable doubt. When the State seeks to obtain a conviction pursuant to § 19.03(a)(2), supra, it is mandatory that it establish beyond a reasonable doubt that the accused intentionally committed a killing in the course of one of the enumerated felonies set out in the statute and as alleged in the indictment. In determining sufficiency of the evidence we will view the evidence in the light most favorable to the verdict to decide 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, 61 L.Ed.2d 560 (1979); Butler v. State, 769 S.W.2d 234, 239 (Tex.Cr.App.1989), Thompson v. State, 691 S.W.2d 627, 630 (Tex.Cr.App.1984), Ransom v. State, 789 S.W.2d 572, 576 (Tex.Cr.App.1989).

Applying the Jackson criteria to the facts of this case we find that a rational trier of fact could have found beyond a reasonable doubt that appellant intentionally caused the death of the deceased. ³ Among the facts the jury could have reasonably considered to determine that the appellant intentionally caused the death of Madeline Peters are: (1) the appellant entered the Bank of Almeda armed with a per se deadly weapon, a .45 caliber pistol; (2) no effort was made by appellant to conceal the weapon, rather it was exposed from the onset of the crime and ready for use; (3) appellant immediately approached the security guard, Ray Valenta, stuck the gun in his back, disarmed him and compelled Valenta to lie face down on the floor; (4) throughout this entire ordeal Valenta was under the constant fear of death, as appellant would periodically aim one of the loaded weapons at him to prevent Valenta from foiling the robbery, while appellant was taking the money from the various tellers; (5) in the course of compelling Greg Putman in assisting him to obtain the money from the teller stations a gun was pointed straight at Putman's face; (6) when the two ultimately reached the deceased's teller station, appellant put the loaded weapon with his left hand in the teller cutout, aimed straight at Madeline Peters and fired the weapon when she responded "what?" to appellant's demand for the money; (7) according to the testimony, appellant had his finger on the triggers and both guns were cocked. Under these circumstances, we conclude that a rational jury could have believed that appellant had the conscious objective or desire to cause the death of the deceased. See Dorough v. State, 639 S.W.2d 479, 480 (Tex.Cr.App.1982). Point of error number twenty-one is therefore overruled.

In point of error twenty-two, appellant contends that the evidence is insufficient to sustain the jury's affirmative finding to special issue number one. ⁴ Specifically, appellant challenges the sufficiency of the evidence to support an affirmative finding that appellant acted with deliberateness.

In Kinnamon v. State, 791 S.W.2d 84, 95-96 (Tex.Cr.App.1990), this Court recently opined:

We recently noted that an affirmative finding on the first special issue that the conduct of the defendant was "deliberate" requires evidence that the defendant's conduct alone constituted a conscious decision, greater than mere will, to cause the victims death. Nichols v. State, 754 S.W.2d 185 (Tex.Cr.App.1988). Accordingly, a jury must find "a moment of deliberation and the determination on the part of the actor to kill" before it is justified in answering "yes" to special issue number one. This determination may be found by the totality of the circumstances in each case. Cannon v. State, 691 S.W.2d 664, 677 (Tex.Cr.App.1985), cert. denied 474 U.S. 1110, 106 S.Ct. 897, 88 L.Ed.2d 931. Deliberate conduct, however, need not be the result of a premeditated act. Cannon, supra, at 677; Granviel v. State, 552 S.W.2d 107, 123 (Tex.Cr.App.1976); Fearance v. State, 620 S.W.2d 577, 584, n. 6 (Tex.Cr.App.1981), cert. denied 454 U.S. 899, 102 S.Ct. 400, 70 L.E.2d 215.

We again utilize the familiar standard enunciated in Jackson v. Virginia, supra, and view the evidence in the light most favorable to the prosecution, to determine whether any rational jury could have found beyond a reasonable doubt that the appellant's conduct which caused the death of the deceased was committed "deliberately" with the reasonable expectation that her death would result. The evidence adduced at the punishment phase relevant to deliberateness is as follows: The State at this stage introduced appellant's confession which was given to Special Agent Homer Hoffman, Jr., of the F.B.I., in St. Louis, Missouri, where the appellant ultimately surrendered. Although appellant denied that he intentionally shot the deceased, he did relate to Hoffman his participation in the Almeda robbery and that he did indeed shoot Madeline Peters. The confession detailed how he instigated and planned the robbery, and how he was able to confiscate the weapon from a security guard at a convenience store. In addition the statement revealed that appellant had committed numerous other robberies, and other victims testified to appellan...