Ford v. State

• Decision Date: 21 February 1996
• Docket Number: No. 71760,71760
• Citation: 919 S.W.2d 107
• Parties: Tony Egbuna FORD, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 107

919 S.W.2d 107

Tony Egbuna FORD, Appellant, v. The STATE of Texas, Appellee.

No. 71760.

Court of Criminal Appeals of Texas En Banc.

Feb. 21, 1996.

Rehearing Denied April 3, 1996.

Norbert J. Garney, El Paso, for appellant.

John L. Davis and Karen L. Landinger, Asst. Dist. Attys., El Paso, Robert A. Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

OVERSTREET, Judge.

In a four count indictment, appellant was charged with one count of capital murder committed during the course of robbery and three counts of attempted capital murder committed during the course of robbery, all alleged to have been committed on or about December 18, 1991 in El Paso County. In July of 1993, appellant was convicted in the 346th District Court of El Paso County of capital murder and of the three counts of attempted capital murder. During the punishment phase the jury affirmatively answered the special issues set forth in Article 37.071, § 2(b)(1)(2), V.A.C.C.P., and negatively answered the special issue set forth in Article 37.071, § 2(e), V.A.C.C.P., whereupon the trial court sentenced appellant to death. ¹ Direct appeal of that death sentence is automatic. Article 37.071, § 2(h), V.A.C.C.P. On direct appeal, appellant raises five points of error.

Appellant does not challenge the sufficiency of the evidence at guilt/innocence. However, he does challenge the sufficiency of the evidence to support the jury's affirmative answer to the first special issue. We will first address that point challenging the jury's answer to the future dangerousness special issue, i.e. whether there was a probability that appellant would commit criminal acts of violence that would constitute a continuing threat to society.

I. SUFFICIENCY OF THE EVIDENCE AT PUNISHMENT

In appellant's first point of error, he contends that the evidence was insufficient for the jury to return an affirmative answer to the question of future dangerousness. The record reflects that on the evening of December 18, 1991, appellant and a cohort forced their way into the home of a mother with three of her adult children and proceeded to rob them. The decedent, his mother, and one sister were shot. Another sister was shot at, but missed. The decedent died from the gunshot wound to the back of his head. The following is a more detailed recitation of the evidence adduced at trial.

On December 18, 1991 the Murillo family attended a Christmas play to see their cousin perform. At the conclusion of the play the family departed to their mother's, Myra Concepcion Murillo's, home for a quick dinner. The mother and her three children, Myra Magdalena, Armando and Lisa, all planned to do some Christmas shopping later that evening. After dinner, Armando was in the family room watching television, Myra Magdalena was readying herself in her bedroom for her shopping trip, and Lisa was in the kitchen. Their mother called out to her children at some point to inquire if any had heard the two men who had knocked at the door. The two men were apparently looking for the "man of the house" and the mother had refused to permit their entrance. After the children informed her they had heard nothing, each returned to his or her previous task.

Moments later Myra Magdalena stepped out into the hallway to encourage her family to hurry up. At that moment, she saw her mother and her brother retreating from the doorway. Her mother was backing up as if she was in fear of her life, kind of crouching down, and her brother looked as if he had been hit in the head and just huddled straight into the corner. She testified that within a few seconds, she saw appellant standing to her right, next to her at the entry to her bedroom. Subsequently she saw his cohort. She testified that they both had guns. Lisa testified that she "heard a barging in, just a lot of noise, racket, like somebody kicking wood." She saw two strangers in the hallway with guns. Appellant's cohort pointed a gun at Lisa and walked her into the den area.

Appellant and his cohort ordered the four individuals to kneel on the floor and to be quiet. The Murillo's began to pray. Appellant first demanded money, then jewelry. Throughout these demands, appellant would yell and threaten the family, occasionally pausing to strike Armando with the gun. Recognizing appellant's cohort as "a very familiar face in the neighborhood," Myra Magdalena attempted to divert her gaze away from the cohort to prevent being recognized. The four continued to pray as they were asked to remove their jewelry. Finally, appellant asked for the keys to the car parked outside. When Myra Magdalena hesitated in releasing her automobile keys, her sister retrieved them and awkwardly threw them towards appellant. The keys skinned his face and hit the wall. Myra Magdalena testified that appellant's response was, "[F]uck you, just for that, I was just going to blow him. Now I'm just going to fucking blow you all[.]" She testified that appellant then began shooting.

Appellant shot Armando in the back of the head. Myra Concepcion, upon seeing her son shot, jumped up to comfort Armando. Appellant hooked his arm around her and shot her on the right side of the head. Myra Magdalena testified that appellant had to curve his gun around to aim it properly at her mother's head before he shot her. Upon being shot in the head at point blank range, Myra Concepcion fell to the floor. Myra Magdalena believed she would be next. As appellant stepped toward her, Myra Magdalena rose and pushed him. The gun discharged and she fell to the ground pretending to be hit. The bullet had missed her. Another shot went off and she heard her sister "gulp." After the robbers left, Myra Magdalena got up and phoned for help. Armando died from the gunshot wound. The others survived. Appellant was identified as doing the shooting, and as being dominating, doing the most talking and giving the most orders.

Appellant testified at guilt/innocence and at punishment. He steadfastly denied participating in the home invasion and shooting, but rather insisted that he had remained outside, initially sitting in the vehicle but then getting out, while two associates entered the home and committed the offense. He maintained that he did not shoot or kill anybody.

At punishment, neither the State nor appellant presented any psychiatric or psychological testimony. The State did not present any evidence of prior criminal record, unadjudicated offenses, or bad character. ² The State only presented testimony from the decedent's father, mother, and two sisters. They testified about the effect that the decedent's death and the others' injuries was having on them. The State also presented exhibits, which were medical records of the two shooting survivors.

Appellant's mother testified that appellant was born on June 19, 1973, making him 18-years-old at the time of the offense. Appellant also presented testimony from his sister, and three family friends who had known him for a number of years. They indicated that appellant previously had not exhibited any violence or acts of aggression, and opined that he would follow the rules and regulations of prison society, would take advantage of rehabilitation opportunities, and would not be a future danger if incarcerated for life. Appellant himself testified at punishment and indicated that he could follow prison rules and regulations if incarcerated for life. He also cried on cross-examination, stating that he would not want what had happened to the Murillo's to happen to anybody, and acknowledging that he also felt bad that he was facing a possible death penalty. He added that "[e]verybody is a victim in this case[,]" including in some instances himself in that he did not agree with the jury's verdict because he did not do anything wrong besides sitting outside in the truck.

In determining the sufficiency of the jury's answer to the special issue concerning future dangerousness, the evidence must be viewed in the light most favorable to the jury's answer. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); Johnson v. State, 853 S.W.2d 527, 532 (Tex.Cr.App.1992), cert. denied, 510 U.S. 852, 114 S.Ct. 154, 126 L.Ed.2d 115 (1993). This Court has often cited numerous factors a jury may consider when determining the answer to that special issue. These factors include, but are not limited to:

1. The circumstances of the capital offense, including the defendant's state of mind and whether he or she was working alone or with other parties;

2. The calculated nature of the defendant's acts;

3. The forethought and deliberateness exhibited by the crime's execution;

4. The existence of a prior criminal record, and the severity of the prior crimes;

5. The defendant's age and personal circumstances at the time of the offense;

6. Whether the defendant was acting under duress or the domination of another at the time of the commission of the offense;

7. Psychiatric evidence; and

8. Character evidence.

See, e.g., Johnson, 853 S.W.2d at 532; Keeton v. State, 724 S.W.2d 58, 61 (Tex.Cr.App.1987). The evidence in this case, however, was generally limited to the offense itself. Nevertheless, as we noted in Johnson, "No killing exists in a vacuum. The circumstances of the offense, and the events surrounding it may provide greater probative value than any other evidence regarding the probability of future acts of violence." Johnson, 853 S.W.2d at 532.

In the instant cause, several factors are initially noteworthy. Appellant took the stand during both phases of the trial. During guilt/innocence, he denied participation of the shooting and placed the blame on two other individuals. He insisted that they went inside the house and committed the numerous acts of violence while he remained uninvolved outside. As discussed above, appellant testified at punishment and continued to deny involvement, in spite of the jury's guilty verdict. A jury...