Fabian v. State
| Decision Date | 29 July 2021 |
| Docket Number | 03-19-00486-CR |
| Parties | Robert Fabian, Appellant v. The State of Texas, Appellee |
| Court | Texas Court of Appeals |
Do Not Publish
FROM THE 421ST DISTRICT COURT OF CALDWELL COUNTY NO. 18020, THE HONORABLE WILLIAM C. KIRKENDALL, JUDGE PRESIDING
Before Chief Justice Byrne, Justices Baker and Kelly
A jury convicted appellant Robert Fabian of the murder of Zuzu Verk and of tampering with a corpse, sentencing him to respective concurrent sentences of life imprisonment and twenty years' imprisonment, and the trial court entered judgments of conviction consistent with those verdicts. See Tex. Penal Code §§ 19.02, 37.09. On appeal, Fabian complains that the trial court erred in allowing the indictment to be amended over his objection allowing improper character evidence; "improperly validat[ing] the strength of" certain witnesses' testimony by thanking them for "this information" and allowing testimony by an accomplice witness and a jailhouse informant.[1] He also argues throughout his brief that the evidence was insufficient to support the convictions and that he received ineffective assistance of counsel. As explained below, we affirm the trial court's judgments of conviction.
Zuzu Verk was a college student at Sul Ross State University in Alpine, Texas, who began dating Fabian in early 2016. The two had a romantic dinner at Fabian's apartment on Tuesday October 11, 2016, and Zuzu was never heard from or seen again. Fabian reported her missing on Friday, October 14, and in February 2017, her skeletal remains were found in a shallow grave about a six-mile drive from Alpine.[2]
Andreana Doggett, Zuzu's best friend, testified that she and Zuzu communicated several times a week. Doggett met Fabian in April 2016 when he and Zuzu went to Fort Worth to celebrate Zuzu's twenty-first birthday. She said he was "mostly pouting" and "wasn't very inviting as a person." She was annoyed by his insistence on sleeping in Zuzu's room, rather than sleeping on the couch while Zuzu and Doggett shared Zuzu's room as planned, and by his drinking some expensive tequila that she had intended to give to Zuzu. Doggett testified that Zuzu wanted a "friends with benefits," casual relationship with Fabian but that he was "extremely needy" and made Zuzu feel "pressured into dating him." She also said that the two had an on/off relationship and that Zuzu said Fabian "would get angry at very little things" and would "constantly" text her when they broke up. Doggett testified that she told Zuzu "[t]hat she needed to leave and let [the relationship] be done." In August, Zuzu told Doggett that she wanted to transfer to Texas A&M and work in Japan and did not want to take Fabian with her.
On Tuesday, October 11, Zuzu sent Doggett a video of Zuzu "walking upstairs" at what Doggett believed was Fabian's apartment-there were "those little candles and they're in a heart and it says, I love you, Zuzu, and on the side there's champagne in ice." Doggett said she wrote back that if Zuzu was dating Fabian again, Doggett "was going to kill her, and she needed to text [Doggett] immediately." Zuzu never responded, which was unusual, but Doggett thought Zuzu might be "a little mad" or stressed about midterms. However, Zuzu's mother, Lori Verk, called Doggett a few days later, "frantic" and "really nervous" because she had not heard from Zuzu in several days, which Doggett testified was "extremely" unusual and "very shocking."
Like Doggett, Lori Verk testified that Zuzu's relationship with Fabian was "off and on, they were breaking up, getting back together, breaking up." And like Doggett, when Lori met Fabian in April 2016, she did not care for his "arrogant" and "manipulative" attitude. Lori and her husband had wanted Fabian to sleep on the couch during the visit, but he insisted on sleeping in Zuzu's room, going "against her parents' wishes in her house, in our house." Lori got the impression that Fabian "didn't like to share" Zuzu and testified that he had "wanted to go home early" from Zuzu's party "and not finish celebrating Zuzu's birthday." She said "it was all about [Fabian], and if he wasn't the center of attention he was going to pout." Lori testified that Zuzu had applied to transfer to Texas A&M University the same week she disappeared and that the transfer was both for Zuzu's career but "also a way of a final, you know, breaking it off" with Fabian. On Monday, October 10-during her last phone call with Lori-Zuzu said that she was going to tell Fabian about her transfer plans. Lori tried throughout the week to reach Zuzu through increasingly frantic calls, texts, and social-media messages and testified that it was "[v]ery much" out of character for Zuzu to be so unresponsive, although Lori tried to tell herself that it was due to the stress of midterms that week. Several days into the week, Lori contacted Fabian, who said that he had not heard from Zuzu and that he "was giving her her space." Fabian did not mention his Tuesday-night dinner with Zuzu until Lori learned of it from Doggett and specifically asked Fabian about it. At that point, Fabian said that he had made Zuzu dinner and that she had left at around 2:00 or 3:00 a.m. Lori testified that on her urging, Fabian called the police on Friday, October 14, to ask them to do a welfare check.
John Franco was Fabian's downstairs neighbor in October 2016. He testified that the apartment building is "very, very old" with "really, really thin" floors, meaning "you can basically hear each other's conversations, like the downstairs to the upstairs, so it was always problems with footsteps or talking or being loud, loud music, like you can hear everything to the-perfect to the T." Franco testified that he could hear when Fabian used the bathroom, was watching television, walked from room to room, fought with Zuzu, or had sex with her.
Between 10:00 and 11:00 p.m. on October 11, Franco and his girlfriend saw Zuzu park her car, a Mazda Miata, where she usually parked and heard her walk upstairs. Franco's girlfriend commented that Fabian was making dinner because they could smell his cooking. Franco testified that he heard Fabian and Zuzu arguing at about midnight and that Fabian said "something like, shut the fuck up," and then started playing a movie "really loud," so loud that Franco's girlfriend could not sleep and Franco and his girlfriend could tell which scene was playing. Franco heard Fabian's bed squeak and shake, and Franco said the noise was different in sound and duration from when Fabian and Zuzu usually had sex. Fabian then started cleaning or "pacing around the house" while Franco fell asleep. Franco's girlfriend woke him in the middle of the night because she was scared by a "loud thump" and thought someone was trying to break in-Franco thought it was at about 4:00 or 5:00 a.m. but said it might have been as early as 2:00 a.m. Franco then heard a car start, so he looked outside and saw Fabian drive away in his vehicle. Zuzu's car was still parked where she had left it.
Franco testified that on Wednesday, October 12, he woke up at about 9:45 a.m. to do laundry and get ready for his job at a restaurant called Guzzi Up. He found clothing in the apartment complex's washing machine and sheets and a mattress pad in the dryer.[3] Franco thought both loads were Fabian's, so he put the clothes in the dryer with the bedding and went to take a shower. When Franco left for work at about 10:15 a.m., Fabian's car was not there, but Zuzu's car was still parked in front of the building. Franco "thought that was weird" because on school mornings, she "never stayed longer than 10:00 in the morning." Franco saw Fabian with Chris Estrada, one of Fabian's long-time friends, at Guzzi Up that night at about 9:30 p.m., and Zuzu's car was gone when Franco got home from work. Franco testified that Fabian did not sleep at his residence from Thursday through the weekend; he did not know if Fabian slept there on Wednesday night.
Oumy Ndiaye testified that at about 8:00 a.m. on Wednesday, October 12, she noticed Zuzu's Miata parked in front of Fabian's apartment building. Ndiaye often saw the car parked there and had "no doubt" that the car was Zuzu's because she "used to see [Zuzu] in that car." She noticed the car that morning because it was parked "recklessly," further from the curb than it should have been. After Ndiaye saw reports about Zuzu's disappearance, she contacted the police to report that the car had been in front of Fabian's residence on the morning of October 12. One of Zuzu's neighbors testified that when she went out for a walk at 6:15 a.m. on Wednesday, October 12, she saw Zuzu's dog running loose in the area, with a green leash attached. The dog was still loose at 8:30 a.m., so the neighbor sent a message to Fabian, who she knew through work and who was "the only person that I knew . . . to get ahold of [Zuzu], to tell her that her dog was loose so that she could get it before the animal control did." The neighbor did not see Zuzu's Miata that morning.
Sergeant Aaron Villanueva of the Alpine Police Department testified that when Fabian reported Zuzu missing, he said that Zuzu had left his house between 2:00 and 3:00 a.m. on Wednesday October 12, after arguing about his ex-girlfriend. Fabian said he had not spoken to Zuzu since and thought "it was because she was mad at him for the way the conversation ended." He told Villanueva that Zuzu had been wearing "white boots with zippers on the side," black fleece leggings, and "a large, either V-neck sweater or large shirt and underneath that was a black or blue sports bra, and in the back it was woven into each other, like lace type." Fabian said that...
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