Mosley v. State

• Citation: 983 S.W.2d 249,1998 WL 349513
• Decision Date: 01 July 1998
• Docket Number: No. 72281,72281
• Parties: DaRoyce Lamont MOSLEY, Appellant, v. The STATE of Texas.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 249

983 S.W.2d 249

DaRoyce Lamont MOSLEY, Appellant, v. The STATE of Texas.

No. 72281

Court of Criminal Appeals of Texas En Banc.

July 1, 1998.

Published in Part Pursuant to Tex. R. App. P. 90.

Cynthia Hujar Orr, San Antonio, for appellant.

C. Patrice Savage, Asst. District Attorney, Longview, Matthew Paul, State's Atty., Austin, for State.

OPINION ON COURT'S MOTION FOR REHEARING ^*

KELLER, Judge, delivered the opinion of the Court, in which McCORMICK, P.J., and MANSFIELD, HOLLAND and WOMACK, JJ. Joined.

Our prior opinions are withdrawn.

Appellant was convicted in October 1995 of capital murder. Tex. Penal Code § 19.03(a)(2). ¹ Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071 §§ 2(b) and 2(e), the trial judge sentenced appellant to death. Article 37.071 § 2(g). ² Direct appeal to this Court is automatic. Article 37.071 § 2(h). Appellant raises points of error numbered through 176. ³ We will affirm.

A. SUFFICIENCY OF THE EVIDENCE

1. Guilt

In point of error 126, appellant contends that the evidence is legally insufficient to establish his guilt per the indictment: intentionally causing the death of Patricia Colter while in the course of committing and attempting to commit the robbery of Sandra Cash. Specifically, appellant asserts that the State failed to prove his intent to cause the death of Patricia Colter.

Viewed in the light most favorable to the verdict, the evidence at trial established the following: At approximately 11:45 p.m. on July 21, 1994, Sandra Cash, the night waitress at Katie's Lounge in Kilgore, was closing up for the evening and placing the night's receipts, including about $308 in cash, into a tackle box Katie's used for money. Four customers remained and were keeping her company. Cash looked out the window and saw two men walking up and joked that she would have to make the men mad because she had already "closed everything up." Suddenly, the door was kicked open and two men in ski masks came in and stated they were there to rob them. Both men were brandishing guns. The man that burst through the door first said, "Give me the money, you white bitch." Cash slid the tackle box towards this first man, but he shot her anyway. As Cash shielded her face with her hands, the shot hit her in the wrist and went through her hand. She was then shot in the stomach and she fell to the floor. Cash remembered hearing more gunfire, but could remember little else after she was shot. However, in this shock-induced state, Cash still managed to call 911.

When the police and emergency medical services (EMS) arrived shortly thereafter, they discovered the bodies of the four customers: Patricia and Duane Colter, Luva Congleton, and Alvin Waller. Cash, the only survivor, was removed by EMS and taken to the hospital. Cash had nine holes in her body from approximately three to four bullets, two of which were recovered from her at the hospital; the police recovered a third bullet from behind the bar where Cash was shot. Cash had wounds to her wrist, heel, right breast, and abdominal cavity. However, the most serious wound went across her upper body, perforating both lungs and going through her spinal cord thereby leaving her permanently paralyzed from the chest down. All three recovered bullets were fired from the same gun.

At the autopsies, the medical examiner determined Patricia and Duane Colter each died from a single gunshot wound to the back of the head. Both bullets were recovered from the victims. Congleton also died from a gunshot wound to the back of the head, but the bullet exited and was not recovered at the autopsy. Waller received three gunshot wounds--two to the head and one to his thigh. Any one of the three wounds would have been fatal.

Appellant, Marcus Smith, and Ray Don Mosley (appellant's uncle) were separately arrested the next evening after the police received information from various sources. Ricky Wheat gave the police one of their first leads. Ricky lived across the street from Katie's Lounge and testified that on the evening of July 21, 1994, he and his brothers, Darrell and Napoleon, and some other guys were sitting in the front yard drinking beer. Ray Don, his friend, walked up and stated there was some money in the area and he had to have it. Ray Don was accompanied by Marcus and a man later identified as appellant. Ricky noted Ray Don had a pistol on him at the time. The three men stayed about five minutes and then walked off. Ricky eventually went inside. About thirty minutes later, Ray Don returned and stated he had shot someone over at Katie's and needed a ride. Ricky refused, but Napoleon agreed. Marcus and appellant then came walking up from the direction of an abandoned building. Napoleon and Darrell then gave Ray Don, Marcus, and appellant a ride. Ricky testified the men had a tackle box that he had not noticed the first time the men had come by.

After first stating appellant was not involved with the crime, Christopher "Kaboo" Smith, appellant's best friend and Marcus's cousin, also gave information to the police. On the evening of July 21, 1994, appellant told Kaboo he planned to "make a gank move" at Katie's that night. ⁴ Later that evening, Kaboo saw appellant with a gun. Appellant stated he got the gun from Kaboo's neighbor, Stanley Rossum, and was going to use it to rob Katie's. Kaboo recognized the gun as belonging to Rossum. Appellant left, but when he returned later he stated, "We did it." Ray Don and Marcus came into Kaboo's room shortly thereafter.

Appellant told Kaboo some of what happened during the robbery at Katie's. Appellant stated that Ray Don had shot the lady behind the counter and had told appellant to get the people from underneath the pool table. Appellant said he complied, told the people they were moving too slow, and shot them. Appellant never stated he had been forced into doing the robbery in any way. Appellant then brought in a box and began counting the money inside. Appellant divided the money evenly between himself, Kaboo, Ray Don, and Marcus, each receiving seventy-seven dollars. Although Kaboo had not helped with the robbery, he testified he took a share of the money "just because [he] wanted it." ⁵ Appellant and Kaboo then discussed appellant's plans to buy a new car the next day with the proceeds of an insurance check he had received.

After appellant purchased his car the next day, he went to see Kaboo. They went to the mall where appellant spent his seventy-seven dollars on shoes, cologne, a shirt, and shorts. Afterwards they went to Taco Bell. Appellant told Kaboo he had taken his grandfather with him to buy the car. When appellant and his grandfather went out to eat afterwards, appellant told his grandfather he was involved in the crime, but after seeing the shocked look on his grandfather's face, appellant told him he was just playing. Also, upon returning from the mall, appellant had picked up his brother, Franceosa, and Marcus. The police pulled them over and arrested Marcus. The police were unaware of appellant's involvement at this time. However, the police asked all the occupants of the car if they might voluntarily come to the police station to answer some questions. Everyone agreed. While driving them to the police station, Kaboo stated appellant seemed nervous and scared "like it was on his conscience." The occupants of the car agreed they would not say anything to the police. Kaboo changed his mind the next day.

Once at the police station, appellant stated he had no involvement in the robbery and murders. However, later that evening appellant was arrested due to information received from Marcus. When informed he was under arrest, appellant cried out, "Oh what have I done. I've ruined my life. I'm going to spend the rest of my life in jail." Appellant stated he shot two of the people in Katie's. He then agreed to answer more questions about the crime, but requested that his grandparents be there when he did so. The police arranged to have his grandparents come in.

Once his grandparents arrived, appellant gave an oral confession, which was made into a written statement. In this confession, appellant stated the offense had been planned a couple of days before. He further stated that once it was time to commit the crime, he did not want to participate; and, although he was present during the offense, he did not shoot anyone. He did admit to borrowing a gun from Stanley Rossum, but claimed Marcus took it from him once they were inside Katie's. Appellant also told them he had been wearing a toboggan during the offense and had thrown it into the woods near Nate Wheat's house.

The next morning, Special Agent Larry Smith of the Bureau of Alcohol, Tobacco, and Firearms ⁶ asked appellant if he would be willing to show him and the police where he had thrown the toboggan. Appellant agreed and directed Smith to an area next to an abandoned building near Katie's where the toboggan and a glove were recovered. Appellant admitted he had been wearing the glove during the robbery. Smith advised him there were scientific tests that could be run on the glove to determine if it had been worn when firing a gun. He then asked if appellant had anything to add to the statements he had already given. At this point, appellant stated he shot four people at Katie's and Ray Don shot the girl behind the bar. He further admitted he had used a .380 automatic pistol he borrowed from someone named Stanley. Appellant agreed to make another written statement later that day after getting some rest.

Appellant gave his final confession later that day. Appellant stated that the idea of committing the crime came up because he told Ray Don and Marcus that he felt like "doing something devious." Appellant said he had never done anything bad before and he felt like doing something bad. Ray Don suggested robbing Katie's. He further stated that although he told them on July 21, 1994,...