Lewis v. State

• Decision Date: 18 December 2014
• Docket Number: NO. 02-13-00367-CR,02-13-00367-CR
• Parties: GORDON RAY LEWIS APPELLANT v. THE STATE OF TEXAS STATE
• Court: Texas Court of Appeals

GORDON RAY LEWIS APPELLANT v. THE STATE OF TEXAS STATE

NO. 02-13-00367-CR

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

December 18, 2014

FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

TRIAL COURT NO. CR12234

MEMORANDUM OPINION¹

Appellant Gordon Ray Lewis appeals his conviction for capital murder. We affirm.

Background Facts

Ormand Gene Sabin owned TJ's Bar and Grill, a restaurant where Appellant's girlfriend, Kimberly Milwicz, had worked until she was fired in lateDecember 2012. Milwicz was angry with Sabin for firing her, and she and Appellant wanted to rob the bar for revenge. On the night of January 16, 2013, Appellant offered his acquaintance, Justin Ragan, methamphetamines if he would go with him to rob Sabin. Witnesses saw Appellant that evening with a pistol and saw Appellant and Ragan "suiting up" in black clothes and hoodies as a "disguise." Appellant and Ragan appeared very high on methamphetamines.

The manager of a convenience store near TJ's saw Appellant in her store buying a fountain drink around 5:15 or 5:20 a.m. Another witness testified that Ragan's truck sped past him near TJ's sometime around 5:00 a.m. Sabin's employee, Brandy Shirley, discovered Sabin lying on the floor when she went in to help him open the bar. The phone at TJ's had been ripped from the wall, so Shirley ran to the convenience store and called 911 at 6:24 a.m. Paramedics arrived but could not revive Sabin.

At 6:38 a.m., Ragan called 911 and reported that his truck had been stolen. At 6:57 a.m., someone called 911 and reported that Ragan's truck was abandoned in front of his house with the engine still running. A black bag found inside the truck contained prescription pill bottles in Appellant's name and several unfired nine millimeter bullets. An expert witness testified that the casing found at the crime scene had been loaded in the same magazine as the unfired cartridges found in the truck. A straw and lid from a soft drink found on the passenger-side floorboard contained Appellant's DNA. Police later found a duffle bag of money in the abandoned house next to Appellant's house. Appellantclaimed to own the abandoned house and treated it like it was his property. Appellant was eventually arrested and charged with Sabin's murder.

Prior to trial, Appellant's mother was convicted of retaliation against Judge Ralph Walton, who was to preside over Appellant's case. Appellant filed a motion to recuse Judge Walton from his case. Judge Walton referred the motion to Judge Jeff Walker who, after a hearing, denied the motion.

After a trial, a jury found Appellant guilty of capital murder. The trial court sentenced Appellant to life imprisonment. Appellant then filed this appeal.

Discussion

I. Sufficiency of the evidence supporting Appellant's conviction

In Appellant's first issue, he argues that the evidence was insufficient to support his conviction because it amounted to only a "strong suspicion of guilt."

A. Capital murder and the standard of review

In our due-process review of the sufficiency of the evidence to support a conviction, we view all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). The standard of review is the same for direct and circumstantial evidence cases; circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor. Dobbs, 434 S.W.3d at 170; Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). This standard gives full playto the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Dobbs, 434 S.W.3d at 170.

The trier of fact is the sole judge of the weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs, 434 S.W.3d at 170. Thus, when performing an evidentiary sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). Instead, we determine whether the necessary inferences are reasonable based upon the cumulative force of the evidence when viewed in the light most favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex. Crim. App. 2011); see Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). We must presume that the factfinder resolved any conflicting inferences in favor of the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Dobbs, 434 S.W.3d at 170.

A person commits capital murder if he intentionally or knowingly causes the death of an individual and commits the murder in the course of committing robbery. Tex. Penal Code Ann. § 19.02(b)(1) (West 2011). Appellant could be found criminally responsible for a capital murder offense committed by anotherunder two theories.² See id. § 7.02 (West 2011). Under subsection (a), a person is criminally responsible if he, with the intent to promote or assist the commission of the offense, solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Id. § 7.02(a)(2). Under subsection (b), he is responsible if in an attempt to carry out a conspiracy to commit robbery, the murder was committed by one conspirator in furtherance of the unlawful purpose and should have been anticipated as a result of carrying out the conspiracy. Id. § 7.02(b). "Section 7.02(b) does not require the State to prove that Appellant actually anticipated the secondary felony, only that the crime is one that should have been anticipated." Anderson v. State, 416 S.W.3d 884, 889 (Tex. Crim. App. 2013). In determining whether one has participated in an offense, the court may examine the events occurring before, during, and after the commission of the offense. Beier v. State, 687 S.W.2d 2, 3-4 (Tex. Crim. App. 1985); Ervin v. State, 333 S.W.3d 187, 201 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd).

B. The evidence

Ray Yates testified that one day he, Appellant, and Milwicz were driving to Fort Worth to buy methamphetamine when Appellant and Milwicz began discussing "robbing TJ's so that [Milwicz] could have the money, or someone, to go back to California or something like that. She was wanting to get out of Texas. I think she was in trouble already for something."

Rebecca Cleere testified that Ragan was at her house the night before the murder. While he was visiting, Appellant and Milwicz arrived. Cleere testified that Milwicz was aggravated and was talking about "wanting [Sabin] to be hurt, and he needed to get what he had . . . coming to him. She had lost her home, lost her job, and she blamed it all on him." Cleere said that Milwicz was trying to get someone to burglarize TJ's and if she could not get Appellant to do it, she would get someone else to do it. Cleere testified that Appellant asked Ragan to go with him to rob TJ's. Cleere testified that Ragan "thought it was a stupid idea to go out there to rob the old man for a few hundred dollars." Appellant then offered Ragan methamphetamines if he would go. Cleere also testified that another person who was sleeping at her house, Bryce Cobbs, "popped his head into the room," and Appellant asked him if he too wanted to go to TJ's.

Later that night, Ragan borrowed a car from a woman named Christina Munoz, who was visiting Michael Eubank's house down the street from Appellant's house. Munoz later decided she wanted her car back. Yates, who was also at Eubank's house, walked down the street to see if he could find the car. He found the car with Ragan and Appellant. He testified that "they looked pretty high" and were "suiting up for something." He believed they were suiting up for a robbery because they were wearing dark clothes and hoodies as a "disguise." He testified that he had a conversation with Appellant. He said,

A. Well, I was trying to tell him that it wasn't a good idea, it was way too late or early, however you want to look at it.

Q. What wasn't a good idea?

A. To go rob TJ's.

. . . .

I mean pretty much anybody knows that the owner of the place gets there at four or five o'clock in the morning and—to drink coffee and eat breakfast. Some—somebody's going to be there or going to show up.

Q. And why is that a problem?

A. Well, if you're going to rob the place, you don't want nobody there.

. . . .

[I]t ain't going to go right. Either you're not going to be able to do it or any number of things.

Q. And how did [Appellant] respond to this?

A. He said he got it.

Q. What did that mean to you?

A. Keep out of his business.

Yates testified that Appellant owned two guns, including a nine-millimeter pistol, and that he had never seen Ragan with a gun. Yates admitted that the pistol that he saw could have been a BB gun.

Richard McClatchy testified that Appellant pulled a pistol or BB gun on him the evening before the murder. He testified that Ragan was very high that evening. McClatchy admitted that he had told police that Appellant was also very high and that he believed that "the odds of it being the same gun that was usedin the murder that was pointed at [him] was a ten on a scale of one to ten." McClatchy testified that he saw Ragan's truck drive by near TJ's around 5:00 a.m. He previously told the police that he might have seen someone else in the truck but that it was too dark to tell. Joshua Jenkins also testified that he saw Appellant and Ragan together that night.

On the morning of the murder, the manager of the convenience store down the street from TJ's saw Appellant enter her store around 5:15 or 5:20 a.m. Appellant bought cigarettes and a fountain drink. Justin Pratt testified that Appellant had told him that when he came...