Lee v. State

• Decision Date: 10 April 1997
• Docket Number: No. 01-95-00279-CR,01-95-00279-CR
• Parties: Yul Tracy LEE, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 3

964 S.W.2d 3

Yul Tracy LEE, Appellant, v. The STATE of Texas, Appellee.

No. 01-95-00279-CR.

Court of Appeals of Texas,

Houston (1st Dist.).

April 10, 1997.

Discretionary Review Refused Sept. 10, 1997.

Tony Aninao, Houston, for appellant.

Sandra J. Pomerantz, Houston, for appellee.

OPINION

HEDGES, Justice.

A jury found appellant, Yul Tracy Lee, guilty of capital murder, specifically of intentionally causing the death of Jerome Listvan while in the course of committing and attempting to commit robbery. The court assessed punishment at life imprisonment because the State did not seek the death penalty. We affirm the judgment of the trial court.

In six points of error, appellant contends that the evidence was insufficient to show his intent either to cause the death of the deceased or to commit robbery; that the trial court failed to make required written findings of facts and conclusions of law concerning the voluntariness of his confession; that the trial court erred in refusing to grant his motion to suppress; and that a portion of the prosecution's jury argument was improper.

The Facts

Jerome Listvan was killed on September 29, 1993. He was 69 years old and had lived in Houston since 1945. He had operated an auto sales and repair business at a location on Fulton since 1966. Although Listvan had retired about 1990, he continued to do auto repairs for friends. He lived at his former business establishment on Fulton.

Irene Medina lived next door to Listvan. She testified that at 10 minutes before 4:00 p.m. on September 29, she spoke to Listvan through her window and asked him to come light the pilot light on her water heater. He promised to come in a few minutes.

Medina worked on her laundry for a while. Then, as she was watching through her window for Listvan to come, she saw a man walk from the front of Listvan's establishment toward the front of her house. The man came up to a car, looked in, and opened the car door. Medina shouted at him. The man turned and looked at her, then got in the car and left at a normal rate of speed.

Medina testified that she ran to Listvan's place and banged on the door. When she got no answer, she went back to her house and called him; she got only his answering machine. Shortly thereafter, a friend of Listvan's arrived. Upon looking in the windows of the establishment, he ran to Medina's house and asked her to call the police. After calling 911, Medina went into the establishment and saw Listvan lying in the living room, on his back, with blood everywhere. She testified that about 30 or 35 minutes had elapsed since she had spoken to him through her window.

Appellant testified that he was 38 years old. On September 29, 1993, he had been unemployed for about a month. He was living "in and out of places." Sometimes he stayed with his brother, sometimes with friends. ¹ For a few days before September 29, he was staying down the block from Listvan in a vacant house without utilities, lights, or water. He had about $15 or $20 in his pocket before his encounter with Listvan.

Appellant stated that he and Listvan considered themselves good friends and that he had been in Listvan's establishment many times. As he was walking by Listvan's establishment on the afternoon of September 29, he saw a car in front that he had never seen before, and he noticed that the keys were in it. ² He approached the front of Listvan's establishment, saw that the door was ajar, knocked on the wall, opened the door, and saw Listvan sitting at a table doing some paperwork. He called to Listvan and asked if he could come in to use the bathroom and have a drink of water. Listvan acquiesced.

Appellant testified that after he used the bathroom, Listvan filled a coffee cup with water for him. They then engaged in conversation. In the course of their conversation, Listvan inquired about appellant's parents. Appellant became frustrated when he learned that Listvan had not visited his parents in a year or two. He scolded Listvan and gestured with his forefinger. At that point, Listvan pushed appellant's hand away and called him a "son-of-a-bitch." He pushed appellant so that appellant fell backwards and landed on his back on the edge of the couch. Appellant said that Listvan, normally a mild man with whom he had never quarreled, then started hitting him. ³ Angered, appellant started hitting Listvan with the coffee cup in his hand.

Appellant stopped hitting Listvan when the latter stopped hitting him and finally fell. When appellant laid him on the "deal," he could hear Listvan's breathing very distinctly. He admitted he did not call 911 for help.

In the bathroom, appellant saw blood all over himself. He tried unsuccessfully to rinse the blood off. He then remembered that Listvan owned a truck. He decided to leave in the truck. He was unable to find the truck's keys in Listvan's pockets. He pulled out Listvan's wallet, thinking the keys might be under the wallet. He was concerned that Listvan would wake up during the search for the keys. He was emphatic that Listvan was breathing and moving during this time. Then appellant remembered the car outside with the keys in it. He walked out the door with the mug and wallet still in his hand. He heard someone say "hey," looked around, got into the car, and drove away.

Appellant testified that all he could think of was how to get away quickly from the scene. However, Officer Padilla, a latent print examiner with the Houston Police Department, testified that the bathroom floor and sink had been wiped clean. He said that with the use of chemicals he observed fingerprints and blood smears at the crime scene. There were not enough characteristics in the fingerprints, however, to make an identification.

Appellant drove the car to Hunt's Motel and left it in the parking lot. He also spent some, if not all, of the money he had found in Listvan's wallet (about $100) on crack. He testified that he walked to the vacant house where he had been staying and left Listvan's wallet there; walked to his brother's house to shower and change clothes; got high on crack (for a long time); stopped twice at the Corner Bar and left Listvan's car there. The time frame of those events is unclear in both appellant's trial testimony and in his statement to the police. Appellant testified that he was in the habit of using crack. He stated that he had been under the influence of alcohol or drugs on the morning of September 29 but not in the afternoon. Eventually, he returned to the vacant house to retrieve Listvan's wallet. Then he walked back to the car at the Corner Bar. His arrest occurred much as the police officers testified.

Sergeant Burmester testified that he and Officer Fincher received information about 7:30 p.m. on September 30 that Listvan's missing car (the one taken by appellant) had been located at the Corner Bar. Burmester and Fincher went to the Corner Bar where they were joined by Officer Kay, the officer who had done the crime scene investigation at the Fulton location the previous day. Officer Kay began examining the car for evidence. Burmester noticed a man, later identified as appellant, walking towards the car. Fincher stopped appellant, who appeared to fit the description given by Medina, and asked him for his I.D. Fincher also asked him to raise his shoe because Fincher remembered the shoe pattern that he had seen the day before at Listvan's establishment. The pattern was the same. Burmester had noticed footprints next to the car and asked appellant to place his foot beside them in the soft sand. The footprints matched. Burmester and Fincher also noticed there were blood spots on appellant's shoes. Appellant attempted to pull away from the police, but Fincher restrained and handcuffed him. During a search of appellant, the officers found a set of car keys, two wallets, and a crack pipe. The police took appellant downtown where he made a statement.

Waiver

We first address the State's contention that under DeGarmo v. State, 691 S.W.2d 657, 661 (Tex.Crim.App.1985), appellant has waived any error when he admitted committing the crime. To establish that appellant admitted killing and robbing Listvan, the State relies on the statement appellant gave to the police, which was admitted into evidence, and on appellant's testimony at the guilt/innocence phase of the trial. We disagree with the State's contention.

It is clear from his testimony at the guilt/innocence phase of the trial that appellant did not dispute that he killed Listvan or that he took Listvan's wallet and car. Appellant maintained, however, that he did not have the requisite intent to be guilty of capital murder.

Appellant did not testify at the punishment phase of his trial. He did request permission of the trial court to make a statement, which the court granted after the jury was discharged. In that statement, appellant expressed regret over Listvan's death but stated that, "I didn't plan for any of that to happen." Accordingly, appellant's statement does not constitute an admission that he committed the crime for which he was charged and convicted, i.e., the crime of capital murder.

We overrule the State's contention that appellant has waived his right to assert any error that may have occurred during the guilt/innocence phase of his trial.

Sufficiency of the Evidence

In point of error one, appellant argues that the evidence was insufficient to sustain his conviction because the evidence did not show that the robbery (his taking Listvan's wallet and vehicle) took place during the course of Listvan's killing. In point of error two, appellant contends that the evidence was insufficient to sustain his conviction because no rational trier of fact could have reasonably concluded that he had the specific intent to cause the death of Listvan during the course of the robbery. In point of error three, appellant insists that the evidence was insufficient to sustain his conviction because no...