Moore v. State

• Decision Date: 09 October 1985
• Docket Number: No. 68871,68871
• Citation: 700 S.W.2d 193
• Parties: Bobby James MOORE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 193

700 S.W.2d 193

Bobby James MOORE, Appellant, v. The STATE of Texas, Appellee.

No. 68871.

Court of Criminal Appeals of Texas,

En Banc.

Oct. 9, 1985.

John H. Ward, Al Bonner (Court appointed), Houston, for appellant.

John B. Holmes, Jr., Dist. Atty. and James C. Brough and Ned Morris, Asst. Dist. Atty., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

TEAGUE, Judge.

Bobby James Moore, appellant, appeals his conviction by a jury for committing the offense of capital murder. It was alleged in the indictment that is on file in this cause that the appellant "heretofore on or about APRIL 25, 1980, did then and there unlawfully while in the course of committing and attempting to commit the Robbery of James McCarble, hereafter styled the Complainant, intentionally cause[d] the death of the Complainant by shooting the Complainant with a [shot] gun." Because the jury answered in the affirmative the special issues that were submitted to it pursuant to Art. 37.071, V.A.C.C.P., the trial judge assessed appellant's punishment at death.

We will affirm the trial court's judgment.

We are favored with several briefs in this cause. This occurred because initially Al Bonner, an attorney in Houston, who with the late C.C. Devine, another attorney in Houston, represented appellant at his trial, and until replaced by John H. Ward, who is court appointed counsel on appeal, represented appellant on appeal as a volunteer attorney. Bonner filed a brief on appellant's behalf. After Ward was appointed to represent appellant on appeal he, too, filed a brief. Because this is a death penalty case, we will review all of the grounds of error that both Bonner and Ward present in their respective briefs, as well as those that appellant has submitted in the pro se brief that he has filed.

In the fifth and last ground of error urged by Ward, he asserts that "there is no evidence to suggest that the deceased's murder occurred in the course of committing or attempting to commit a robbery." Ward also asserts that "[t]here is no evidence which supports a finding that the appellant killed the deceased in immediate flight after the commission of, or in an attempt to commit robbery."

Because of these allegations, we will set out many of the pertinent facts that were presented to the jury in this cause.

The facts of this case reflect that James "Jim" Mc Carble, who was 72 years of age and had been a long time employee of the Birdsall Super Market, which was located at 231 Birdsall Street in Houston, was shotgunned to death by appellant on Friday afternoon, April 25, 1980. Prior to his death, Mc Carble, along with another employee of the store, Edna Scott, had been inside of a courtesy booth of the store.

Scott testified that unknown to her and Mc Carble an unknown and uninvited stranger, who was later identified as Willie "Ricky" Koonce, came into their courtesy booth. Soon thereafter, Koonce pushed a white cloth bank bag towards Mc Carble and said: "Fill it up, man. You are being robbed." Mc Carble then jumped to the left of Scott, which allowed Scott to see appellant, who she believed was wearing a wig, facing her with a shotgun. At that time, appellant was standing outside of the courtesy booth in front of its window or cage. When Koonce told Mc Carble "Fill it up, man. You are being robbed," Scott shouted: "J.B. [referring to an assistant manager who did not testify], we are being robbed." Scott dropped to the floor, after which she heard a loud noise. Mc Carble then fell on the floor right beside Scott. Scott looked at Mc Carble and observed that "Jim's head [had been shot] off."

After the appellant fired his shotgun, he and Koonce then ran from the store. When running on the outside of the store towards what was identified as Koonce's vehicle the wig that appellant was wearing fell off his head. He also dropped a bag that he was carrying.

Scott was unable to give the police a good description of the hijackers. However, she later identified Koonce at a lineup the police conducted and also made an in court identification of Koonce as being the hijacker who had come inside of the courtesy booth.

Debra Salazar, an employee of the store, positively identified appellant in court as the hijacker who shot Mc Carble in the head with a shotgun, which shooting caused the death of Mc Carble. However, see post concerning Salazar's "positive" identification testimony.

Arthur Wallace Moreno, another employee of the store, who witnessed appellant and Koonce run from the store, recovered the wig and bag that appellant had dropped when he was running towards Koonce's car. Moreno turned these items over to Leonard Goldfield, the owner of the store, who turned them over to the police. The bag contained a receipt that was traced to appellant's "play mother's" residence, which was where appellant had either lived or stayed at in the past. Moreno was also unable to positively identify either appellant or Koonce. Moreno, however, positively identified Everett Anthony Pradia, who the evidence showed left the store after Scott shouted "J.B., we are being robbed."

As previously pointed out, Salazar made a positive in court identification of appellant as being the triggerman. Salazar testified: "That would be him for sure. I do know for sure that it was him right now." Salazar also positively identified a shotgun that was shown her as being one and the same shotgun with which appellant had shot Mc Carble. Salazar also testified that she attended several lineups and positively identified appellant, Koonce, and Pradia as being the robbers. However, on cross-examination, Salazar changed her testimony from being positive on everything to "I feel that it is him but I'm not positive," and "The best [I] can say is [I] saw a [shot]gun that looked like that one."

We pause to point out that this Court has held in the past that the fact that a witness cannot be positive in his identification of another person goes to the weight of his testimony and not to its admissibility; therefore, the lack of a positive identification is a jury issue. Valenciano v. State, 511 S.W.2d 297 (Tex.Cr.App.1974).

Wulfrido Cazares, a customer of the store who was on the outside of the store when the robbery occurred, testified that he gave Goldfield, the owner of the store, a license plate number of a motor vehicle. Goldfield turned this information over to the police, who established that it belonged to a vehicle that was owned by Koonce. Cazares became attracted to Koonce's vehicle because he saw three persons, one of whom was armed, fleeing from the store at a fast pace, and thereafter saw them get into Koonce's vehicle and drive off.

Dr. Robert Bucklin, who was then Chief Deputy Medical Examiner for Harris County, testified that Mc Carble "was killed as a result of a shotgun wound to the head."

Pradia testified for the prosecution and he testified that he, appellant, and Koonce planned and committed the robbery. Pradia testified that they went to the store in Koonce's vehicle. Pradia also testified that when they went inside of the store appellant was armed with a shotgun and he was armed with a .32 calibre pistol. Pradia further testified that each person had an assigned task: Because Koonce was the tallest, he was to reach over the courtesy booth and unlatch the door to the courtesy booth and then go inside of the booth and get the money. Appellant was to be "the lookout man" at the courtesy booth. Pradia was to "clean out the cash registers."

Everything went well for the hijackers until Scott screamed that a robbery was occurring. Things then went downhill for the hijackers and Mc Carble.

After Scott screamed that a robbery was occurring, Pradia immediately left the store, with Koonce and appellant not too far behind him. They all got in Koonce' vehicle and left the scene. After they got inside of the car, appellant told them that he had shot someone inside of the store. Pradia testified that at that time he did not believe appellant but later, after he had heard on the news that Mc Carble had been shot and died as a result of the shooting, he then believed appellant had told him the truth. The three hijackers later split up.

Pradia turned himself into the police several days later, and subsequently "got his business straight." He confessed to the police and told them how he, appellant, and Koonce had planned and committed the robbery. Thereafter, Pradia entered a plea of guilty to the lesser included offense of murder that pertained to this cause and also entered pleas of guilty to four other robberies that he had committed. The pleas were taken by another trial judge. At the time of appellant's trial, Pradia had not been sentenced.

Appellant was arrested several days later at his grandmother's residence in Coushatta, Louisiana by Louisiana law enforcement officers who were acting pursuant to a fugitive warrant that had issued in Houston as a result of a complaint being filed against appellant that accused him of the robbery and murder of Mc Carble.

After Houston police homicide Detectives L.S. Ott and D.W. Autrey went to Coushatta and returned to Houston with appellant, Ott took a confession from appellant, which was witnessed by two other homicide detectives, who did not testify. A "Jackson v. Denno hearing" on the admissibility of the appellant's written confession was conducted by the trial judge. In Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), the Supreme Court held that the trial judge must first make the actual determination whether a written confession is admissible evidence. Also see Art. 38.22, V.A.C.C.P., and Lopez v. State, 384 S.W.2d 345 (Tex.Cr.App.1964). After conducting the hearing, the trial judge ruled that the confession was admissible evidence. Ott testified that the confession was in all things taken in accordance with the law.

Appellant testified at both the "...