Jackson v. The State Of Tex.

• Decision Date: 12 August 2010
• Docket Number: No. 06-09-00115-CR.,06-09-00115-CR.
• Parties: Desmond Dewayne JACKSON, Appellant,v.The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

320 S.W.3d 873

Desmond Dewayne JACKSON, Appellant,
v.
The STATE of Texas, Appellee.

No. 06-09-00115-CR.

Court of Appeals of Texas,
Texarkana.

Submitted June 30, 2010.
Decided Aug. 12, 2010.

320 S.W.3d 874

COPYRIGHT MATERIAL OMITTED

320 S.W.3d 875

COPYRIGHT MATERIAL OMITTED

320 S.W.3d 876

Lew Dunn, Longview, for appellant.

Zan Colson Brown, Asst. Dist. Atty., Carl Dorrough, Gregg County Dist. Atty., Longview, for appellee.

Before MORRISS, C.J., CARTER and MOSELEY, JJ.OPINIONOpinion by Chief Justice MORRISS.

During Desmond Dewayne Jackson's six-day jury trial for capital murder arising from a robbery and shooting of Melvin Brad Mitchell in the parking lot outside

320 S.W.3d 877

Cash America Pawn in Longview, the State spent approximately two and a half days, on rebuttal, providing evidence that, as an extraneous offense, Jackson committed an armed robbery of a Kroger grocery store in Marshall approximately a month after the charged murder. Though the State does not claim that the Kroger robbery is so similar to the pawn shop murder as to be a “signature” crime, it maintains that proof of the Kroger robbery was admissible to prove identity or intent or to rebut a defensive theory.

Jackson appeals his conviction and sentence of life imprisonment without parole, raising thirteen issues. We reverse Jackson's conviction and remand for a new trial, because we hold that, although (1) the evidence is legally and factually sufficient, (2) admitting evidence of the Kroger robbery was reversible error.¹

(1) The Evidence Is Legally and Factually Sufficient

A person commits capital murder if he or she intentionally commits murder while in the course of committing or attempting to commit robbery. Tex. Penal Code Ann. §§ 19.02(b)(1), 19.03(a)(2), 29.02 (Vernon 2003). Jackson claims the State failed to prove he was involved in the crime and failed to prove the requisite intent.

In reviewing the legal sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App.2000).

In a factual sufficiency review, we review all the evidence, but do so in a neutral light and determine whether the evidence supporting the verdict is so weak or is so outweighed by the great weight and preponderance of the evidence that the jury's verdict is clearly wrong or manifestly unjust. Lancon v. State, 253 S.W.3d 699, 705 (Tex.Crim.App.2008); Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App.2007); Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App.2006); Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App.2006); Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App.1996).

The State presented sufficient evidence for a reasonable jury to conclude, beyond a reasonable doubt, that Jackson was guilty.

On the morning of Monday, December 10, 2007, Mitchell, an employee of the pawn shop, arrived at the bank to make a number of deposits and with a change order of $400.00 for Monday's business. Due to an error in Friday's deposit, the bank sent Mitchell back to the pawn shop with Friday's deposit. Mitchell left the bank with approximately $8,884.00. After Mitchell had parked his truck, but before he entered the store with the bank bag,² Mitchell was robbed and shot.

Three witnesses to the shooting testified at trial. While leaving a nearby grocery store with her friend, Maria Hernandez, Tammy Renee Flores saw a man run from the front of the pawn shop, hit the pickup truck which set off the truck's alarm, run between the Plasma Center and the retaining wall, and then run up the hill beside the E-Z Mart, a convenience store. Flores testified she did not think anything out of the ordinary had occurred and proceeded

320 S.W.3d 878

to a nearby “Spanish store on Green Street.” Upon leaving the store on Green Street, Flores observed police cars at the pawn shop and stopped to report her observations.

Hernandez testified she heard screaming and then saw a man running with a gun in his hand.

Walter, who was cleaning a State Farm Insurance office located across the street “at an angle,” observed Mitchell go to the door of the pawn shop, enter the pawn shop, come back out, and go to the side of the building. Walter then observed an African-American person wearing a “red hoodie” run from behind the Plasma Center across the parking lot, observed the person stop in the parking lot “maybe just a second,” and then heard a gunshot. After the gunshot, Walter observed the person run behind the building in the same direction the person had come from. Walter was unable to tell whether the person was a male or female.

Cyrus Dean, the manager of the pawn shop, heard some shouting outside the shop and went to the front window to look out. Dean observed Mitchell lying on the ground between his parked truck and the building. The alarm on Mitchell's pickup truck had been activated. Thinking Mitchell may have fallen, Dean rushed to Mitchell's side and discovered Mitchell had been shot. Mitchell told Dean that he had been shot by “a tall, slender black dude wearing a red top.” While Dean and Mitchell were waiting on the ambulance, Mitchell also expressed a concern that, if the paramedics did not get there soon, he was going to die.

Officer Danny Stroud, a police officer with the Longview Police Department, arrived at the scene a few minutes before the ambulance. Stroud testified Mitchell appeared to be scared and kept saying, “Please hurry. Please hurry. It hurts.” Mitchell informed Stroud that the man who shot him had come from behind the dumpsters.

Dr. Keith Pinckard, a medical examiner for Southwestern Institute of Forensic Sciences, testified Mitchell died from a gunshot wound to the chest.

Officer Kirby DeLoach, a police officer with the Longview Police Department, tracked the suspect with a certified tracking dog. The tracking dog lost the scent in a parking lot of a church located at Birdsong and Baxter Avenues. DeLoach noticed a spot of water in the parking lot of the church consistent with a spot of water created by a car's air conditioning unit. DeLoach presumed that the suspect got into a car in the church parking lot.

Within hours of the robbery, Cash America Pawn offered a $20,000.00 reward for “information leading to the arrest and indictment of the individual(s) responsible for the robbery/murder of Melvin ‘Brad’ Mitchell.” On or about January 18, Detective Douglas Brinkley, a detective with the Criminal Investigation Division of the Longview Police Department, received a call from Ladarian Beechum. Beechum informed Brinkley that her brother, Robert Blaylock, had some information for him concerning the pawn shop robbery. Brinkley interviewed Blaylock, who lived in Atlanta, Georgia, by telephone and then traveled to Atlanta to interview Blaylock in person. Shortly before Christmas, while Jackson and Blaylock were drinking and playing a video game, Jackson admitted to Blaylock that Jackson had killed a man with a “.45.” Blaylock denied being drunk. According to Blaylock, Jackson stated he knew the guy's routine of going to the bank in the morning and returning with money for the day. Jackson stated he stole approximately $8,000.00 and had fled

320 S.W.3d 879

through some woods. Blaylock admitted he had received the $20,000.00 reward from Cash America Pawn. Blaylock also admitted he had previously lied under oath about his finances on an application for a court-appointed attorney.

James Roberson, Jackson's accomplice in the Kroger robbery, testified Jackson admitted that “[h]e robbed a guy, and he [had] shot him” because “[h]e wouldn't give him the money.” Roberson testified he could not remember the details other than the victim was an older white man.

The Longview police searched Jackson's house a total of three times. The first search was conducted pursuant to the consent of Francis Jackson, Jackson's wife. During the search, the police seized a .32 caliber pistol, a .45 caliber automatic pistol, a box of .45 caliber Federal brand shells, twenty rounds of .45 caliber Blazer brand shells, and nine rounds of .45 caliber Remington brand shells. The second search was conducted pursuant to search warrant. The third search was conducted based on the consent of Lanie Smith, who had accepted a deed to the house in lieu of foreclosure.³ During this search, the police seized a .45 caliber Remington brand shell casing, which was found on the ground behind an air conditioning unit.

An analysis of the items seized provided a few links between the items and the pawn shop murder. Wade Thomas, a forensic scientist for the Texas Department of Public Safety, testified that State's Exhibit # 19B, a shell found at the scene of Mitchell's murder, and State's Exhibit # 30, the shell found in the third search of Jackson's house, were fired from the same gun. However, Thomas testified that tests to determine whether the shells were fired by the .45 caliber pistol seized at Jackson's house were inconclusive.⁴ Thomas testified the shells seized at Jackson's house had similar bunting markings as the shells found at the scene, supporting the conclusion that they were probably made at or near the same time. Thomas admitted on cross-examination that the same machine could make between 40,000 and 180,000 shells with the same bunting marks.

The State introduced business records from Delta Airlines which indicate Jackson flew from Atlanta to Dallas December 6, 2007, and returned to Atlanta December 11, 2007. In addition to the plane flights, the State presented evidence that Jackson had lied to the police about his whereabouts on the day of the crime,⁵ and Jackson's

320 S.W.3d 880

wife had some poorly explained absences from work on the day of the crime.⁶ Blaylock testified Jackson claimed to have called his wife to pick him up.

The evidence is legally sufficient. “Because it is...