Love v. State

• Decision Date: 15 June 2006
• Docket Number: No. 01-05-00452-CR.,01-05-00452-CR.
• Citation: 199 S.W.3d 447
• Parties: Gregory O'Neil LOVE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

199 S.W.3d 447

Gregory O'Neil LOVE, Appellant, v. The STATE of Texas, Appellee.

No. 01-05-00452-CR.

Court of Appeals of Texas, Houston (1st Dist.).

June 15, 2006.

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Robert Morrow, Hocker & Morrow, Boyd & Mathews, Spring, for Appellant.

Charles A. Rosenthal, Jr., Dist. Atty.-Harris County, Carmen C. Mitchell, Asst. Dist. Atty., Houston, for Appellee.

Panel consists of Justices KEYES, ALCALA, and BLAND.

OPINION

JANE BLAND, Justice.

Appellant Gregory O'Neil Love pleaded not guilty to the felony offense of capital murder. A jury found Love guilty. As the State did not seek the death penalty, the trial court sentenced Love to life imprisonment. In three issues, Love contends (1) the evidence is legally and factually insufficient to demonstrate that he intended to aid in the offense of capital murder, (2) the trial court erred in failing to charge the jury on the defense of renunciation, and (3) the trial court erred in admitting improper victim impact evidence during the guilt-innocence phase of trial. We conclude that legally and factually sufficient evidence supports the conviction and that the trial court did not abuse its discretion in charging the jury or admitting the evidence in question. We therefore affirm.

Facts

In May 2003, Love worked as a night manager of a Whataburger in northwest Houston. One night, Gerald Marshall, with whom Love previously had worked at a Popeye's restaurant, visited the Whataburger. Derrel McQueen, who occupied the car with Marshall, testified that Love stood outside the Whataburger, hosing down the parking lot. Marshall recognized Love, and exited the car to speak with him. Tony Ketchum, a Whataburger employee on duty that night, testified that Love recognized one of the men in a car that pulled up to the drive-through window, and went outside to speak to him.

McQueen testified that he overheard Love tell Marshall that he should return to the restaurant to commit a robbery on a night while Love worked, at around three or four o'clock in the morning. Love told Marshall to enter the store by climbing through the drive-through window, and Love would pretend as though they did not know each other and would give Marshall money. McQueen further testified that Love told Marshall that, if someone was working besides Love, not to let that person tell him that he did not have keys or know how to open the safe, because that person could open the safe. Love gave Marshall his telephone number and some free food, and Marshall and McQueen left. Marshall's girlfriend, Tamara Woods, testified that she saw Marshall with a napkin bearing the name "Greg" and a telephone number. Marshall told her that he knew a manager at a Whataburger who was going to help him rob the store.

After talking with Marshall, Love told several employees that the men he had been talking to outside had guns and were attempting to rob someone at the restaurant, but that he knew one of the men and was able to convince them not to rob anyone. Several Whataburger employees testified that Love had mentioned this foiled robbery to them, and Ketchum testified that when he came to work the next day, everyone was talking about it. One employee testified that Love told everyone to be careful in case the robbers attempted to rob someone at the restaurant again. Davilyn Spencer, the general manager, testified that Love explained the incident to her as a food complaint, not an attempted robbery. She testified that he told her merely that some men were dissatisfied with their food and Love gave them free food to make them happy. Love never notified police or management of the attempted robbery.

On May 11, 2003, Love arrived early to his graveyard shift. Also on duty that night were Wilbert Marsh, Ketchum, Agnes, and Chris Dean. Dean was a mentally retarded employee who had worked for Whataburger for fourteen years. Dean was very dedicated to Whataburger, knew everything about the restaurant, and had worked at every position except team leader or manager. Though Love was scheduled to work from 11:00 p.m. to 7:00 a.m., he arrived early, around 9:00 p.m. Arthur Miller, the manager scheduled to work from 3:00 p.m. to 11:00 p.m., was on duty when Love arrived. Miller asked Love if he could leave early since Love had arrived, and Love agreed. Before Miller left, he counted the money in the safe, but he and Love agreed that Love would count the money that had accumulated in the registers during the 3:00 p.m. to 11:00 p.m. shift. Miller testified that company policy provided for money to be counted and placed in the store safe at the end of every shift, but that occasionally managers would agree to count the money from someone else's shift. The general and area managers of the Whataburger testified that it was important for the manager on duty to "count down" the cash registers at the end of a shift to ensure that a minimum amount of cash would be available on the floor in the event of a robbery.

Telephone records established that Love called Marshall from his cell phone around 9:45 p.m., and around 10:00 p.m. Marshall called Love. Miller testified that about ten or fifteen minutes after he left the Whataburger, his wife telephoned him, reporting that Love had called Miller's house to say that Love needed to leave work because his brother had been shot. Miller and Love then had a telephone conversation in which Love told Miller he needed to leave work and asked if he could leave Dean in charge of the restaurant. Miller told Love that Dean had run the restaurant before, but that he had not done so since the new general manager, Spencer, had taken over, because Dean was not a team leader. Miller and Spencer both testified that a manager or team leader was supposed to be in charge of the restaurant at all times, and that Dean should not have been left in charge because he was not a team leader. Dean wanted to be a team leader but was unable to pass the written test. Miller and Spencer also testified that the proper procedure in such a situation would be to notify the general manager or area manager if a family emergency arose and obtain approval to leave. Miller further testified that if Love had asked him to return to the restaurant to work that evening, he would have done so.

Love did not ask Miller to return, but instead left Dean in charge of the restaurant without permission from the general or area managers. Marsh, a cook working at the Whataburger that night, testified that Love asked Agnes to stay late so he could leave. Love left the store around 11:30 p.m., leaving Dean, Marsh, Agnes, and Ketchum alone at the restaurant. Marsh and Ketchum both testified that Agnes stayed at the Whataburger until about 2:00 a.m. to cover for Love, though her shift had been scheduled to end at 11:00 p.m. Love did not count the money in the cash registers or deposit any money in the safe or lockboxes before he left, thus leaving the maximum amount of cash in the registers. Love also left $125 in petty cash outside the safe in case Dean needed to make change for large bills. Spencer testified that there would have been about $1,600 in the registers that night before Love left.

After Love left, Dean discovered that Love had not counted the money in the registers. Although it was not his responsibility, Dean took it upon himself to count the money in the registers and deposit the excess in the lockboxes. In addition, Dean called Love several times to inquire when he would be returning to the restaurant, and several witnesses testified that Love said he would be returning to work. Love never returned to the restaurant that night.

At around 4:00 a.m., three men came through the drive-through and placed an order. When the men arrived at the drive-through window, Dean leaned out the window to tell them he did not understand their order. At that point, one of the men grabbed Dean by his shirt collar, pointed a gun at Dean's head, and told him it was a stickup. The man, later identified as Marshall, entered the restaurant by climbing through the window. Marsh, who was standing nearest to Dean making a hamburger, ran and hid in the storage area near the back door of the restaurant. Ketchum hid in the freezer. Marshall then chased Dean to the back of the restaurant where he demanded that Dean give him the key to the safe. Marsh testified that Marshall told Dean three times that if he did not give him the key to the safe he would shoot him. Dean did not have the key to the safe because the safe could only be opened by combination, but he did have a key to the lockboxes. After Dean failed to produce the key, Marshall shot him in the face and fled the scene. Marsh testified that he waited about fifteen minutes and then called the police.

The next morning, Spencer, Miller, and other employees of the Whataburger arrived at the restaurant and waited outside while the police finished investigating the scene. Love was the only Whataburger employee who did not appear. When Spencer re-entered the restaurant, she counted the money in the safe, and discovered that only the $125 in petty cash that Love had left for Dean to use in making change was missing. Love arrived for work that evening, and collected his payroll check the following day. While he was there, Spencer asked him about the missing petty cash. Spencer and Miller both testified that Love went into the office and showed them that the petty cash was on a shelf above the computer. Both testified that the money was not on the shelf when they searched the office upon re-entering the restaurant after Dean's murder.

A Crimestoppers tip later identified Marshall and Ronald Worthy as the men who robbed the Whataburger. Kenny Calliham, who drove the getaway car the night of the robbery, turned himself in. Calliham testified that he was unaware of the plan to rob the Whataburger until they arrived at the restaurant and Marshall pulled a gun. Calliham testified that no one...