Ex Parte Thompson

• Decision Date: 09 November 2005
• Docket Number: No. AP-75151.,AP-75151.
• Citation: 179 S.W.3d 549
• Parties: Ex Parte Robert Lee THOMPSON, Applicant.
• Court: Texas Supreme Court

Page 549

179 S.W.3d 549

Ex Parte Robert Lee THOMPSON, Applicant.

No. AP-75151.

Court of Criminal Appeals of Texas.

November 9, 2005.

Tom Moran, Houston, for appellant.

Ann Lee Dulevitz, Asst. D.A., Houston, Matthew Paul, State's Attorney, Austin, for State.

OPINION

COCHRAN, J., delivered the opinion of the Court in which MEYERS, PRICE, WOMACK, KEASLER, HERVEY, and HOLCOMB, JJ., joined.

Applicant was convicted of capital murder for the shooting death of Mansor Bhai Rahim Mohammed during an aggravated robbery at the 7-Evenings Food Store in Houston. Based upon the jury's answers to the special issues set out in Article 37.071,¹ the trial court set punishment at death. This Court affirmed applicant's conviction and sentence on direct appeal.²

Applicant raises six claims in his habeas corpus application filed pursuant to Article 11.071 of the Texas Code of Criminal Procedure. We ordered the parties to brief two of those claims which we rephrased:

1) Whether applicant is factually innocent of the offense of capital murder; and

2) Whether applicant was deprived of the effective assistance of counsel due to his trial counsel's failure to request a charge on felony murder.

Both of these claims hinge upon the "newly available" fact that Sammy Butler, applicant's triggerman-accomplice, was convicted of felony-murder after applicant's trial.

Applicant's position on the first claim is that

There is no evidence that Applicant personally killed the complainant. To the contrary, the only evidence is that Butler committed the offense. Thus, Applicant's guilt is derivative of Butler's guilt. Simply stated, at most Applicant is guilty of the offense for which Butler is guilty.

Regarding the second claim, applicant argues that the only viable defense strategy in his trial was to request a jury instruction on felony-murder—a strategy which succeeded in the accomplice's trial. Because applicant's counsel did not request an instruction on felony-murder, applicant contends that his trial attorney provided ineffective assistance of counsel under Strickland v. Washington.³

For the reasons set out below, we reject both of these claims. As for his remaining claims, we adopt the trial court's findings of fact and conclusions of law. Based upon those findings and our independent review, we deny relief.

I.

The State's evidence at trial showed that applicant and Sammy Butler acted together in planning the armed robbery at the 7-Evenings Food Store. Applicant told Butler that this would be their last robbery and it was going to be "a big one." Applicant, armed with a .25 caliber semiautomatic weapon, went into the convenience store to exchange a beer he had purchased earlier. Butler, armed with a .38 caliber revolver, came into the store with him.

Applicant approached Mubarakali Meredia, who was tending the counter, pointed his pistol at Mr. Meredia, and told him to open the cash register and hand over all of the money. Applicant shot Mr. Meredia in the abdomen when he did not move quickly enough. He shot at Mr. Meredia's cousin, Mansor Bhai Rahim Mohammed, who also worked at the shop, when he began running toward the back of the store.⁴ Applicant then shot Mr. Meredia three more times as he lay on the floor. He ordered Mr. Meredia to get up and get the money for him. Mr. Meredia did so. Then applicant put his pistol to Mr. Meredia's neck and pulled the trigger. Nothing happened. He had run out of bullets. So applicant hit Mr. Meredia on the head with the butt of his gun and struck him with the cash register drawer. Nonetheless, Mr. Meredia survived.

Applicant took the money and ran out of the store. Butler grabbed a stack of lottery tickets as he followed behind applicant. Applicant jumped into the driver's seat of their car, while Butler got into the passenger's seat, rolled down his window, and fired two shots at Mr. Rahim who had run to the front door. One bullet hit Mr. Rahim in the chest, and he died.

Based upon this evidence, the jury convicted applicant of capital murder. During the punishment phase, the jury heard evidence that this robbery-murder was only one part of a robbery-murder spree during which applicant, as the triggerman, had committed two additional capital murders.⁵ Based upon all of the evidence submitted, the jury found that applicant would pose a future risk of danger and that there were no mitigating circumstances that would call for a life sentence. The judge sentenced him to death.

Approximately six months after applicant's conviction, his accomplice, Sammy Butler, was tried for capital murder. The jury in that case returned a guilty verdict on the lesser-included offense of felony-murder and sentenced Butler to life imprisonment.

II.

A. Claim of Factual Innocence

Applicant contends that he is factually innocent of capital murder because a different jury found Sammy Butler guilty only of felony-murder.⁶ He argues that his accomplice liability for the robbery-murder of Mr. Rahim hinges upon Butler's conviction in a separate trial rather than the evidence of his and Butler's conduct and mental states in applicant's own trial. Applicant argues that "it is the intent of the killer which determines whether the offense is a capital murder or a felony-murder. If the actual killer intended the death, it is a capital murder. If he did not, it was not capital murder." Applicant misinterprets the law.

Under Section 7.02(a), a person is criminally responsible for a capital-murder offense committed by another person's conduct, if

(1) acting with the kind of culpability required for the offense, he causes or aids an innocent or nonresponsible person to engage in conduct prohibited by the definition of the offense; [or]

(2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense[.]

Thus, applicant could be found guilty of capital murder under Section 7.02(a) if he had the intent to kill someone during this aggravated robbery, and (1) he caused or aided a totally innocent person to shoot and kill Mr. Rahim, or (2) he solicited, encouraged, directed, or aided Sammy Butler to commit capital murder.⁷

Furthermore, under Section 7.02(b), a person may be found guilty of capital murder if the following conditions are met:

[I]f, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.

The jury in this case was instructed that it could find applicant guilty of capital murder in any of three different ways: as the actual triggerman; as a party to Sammy Butler's shooting of Mr. Rahim under Section 7.02(a)(2); or as a co-conspirator to the aggravated robbery under Section 7.02(b). Under the first two theories, the jury was required to find that applicant himself intended the death of Mr. Rahim; under the third theory the jury was required to find that applicant should have anticipated Mr. Rahim's death as a consequence of his and Butler's agreement to commit aggravated robbery and Mr. Rahim's death occurred in furtherance of that crime.

If the jury found that applicant and Sammy Butler conspired to commit an aggravated robbery, and either one of them shot and killed Mr. Rahim (intentionally or unintentionally), either or both of them may be convicted of capital murder if Mr. Rahim was killed in furtherance of the aggravated robbery and his murder was one that should have been anticipated as a part of this aggravated robbery.

There is nothing in Texas law that limits applicant's criminal responsibility for the conduct of his accomplice, Sammy Butler, to only those specific crimes for which a jury has convicted Butler. In fact, Texas law is exactly the opposite. Section 7.03(2) of the Penal Code states that it is no defense

that the person for whose conduct the actor is criminally responsible has been acquitted, has not been prosecuted or convicted, has been convicted of a different offense or of a different type or class of offense, or is immune from prosecution.⁸

It is well-established that one accomplice may be found guilty of a different, more serious offense than other accomplices.⁹ Indeed, the acquittal of the principal does not prevent conviction of his accomplice.¹⁰ And it does not matter whether the acquittal of the principal occurs before or after the accomplice's trial.¹¹ What matters under Section 7.02(a) is the criminal mens rea of each accomplice; each may be convicted only of those crimes for which he had the requisite mental state. As Professor LaFave notes:

The notion that the accomplice may be convicted, on an accomplice liability theory, only for those crimes as to which he personally has the requisite mental state, is applicable in a variety of circumstances. It means, for example, that one may not be held as an accomplice to the crime of assault with intent to kill if that intent was not shared by the accomplice. But this limitation has proved most significant in the homicide area, where the precise state of mind of the defendant has great significance in determining the degree of the offense. To determine the kind of homicide of which the accomplice is guilty, it is necessary to look to his state of mind; it may have been different from the state of mind of the principal and they thus may be guilty of different offenses. Thus, because first degree murder requires a deliberate and premeditated killing, an accomplice is not guilty of this degree of murder unless he acted with premeditation and deliberation. And, because a killing in a heat of passion is manslaughter and not murder, an accomplice who aids while in such a state is guilty only of...