Nealey v. State
| Decision Date | 08 August 2017 |
| Docket Number | NO. 01-15-00999-CR,01-15-00999-CR |
| Parties | DONALD NEALEY, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the 228th District Court Harris County, Texas
A jury found appellant, Donald Nealey, guilty of the offense of capital murder.1 Because the State did not seek the death penalty, the trial court assessedhis punishment at confinement for life without parole.2 The trial court further found that appellant used a deadly weapon, namely, a firearm, in the commission of the offense. In three issues, appellant contends that his conviction is "void," as the record does not affirmatively show that the visiting trial court judge took the constitutionally-required oaths of office; the trial court erred in denying his motion for an instructed verdict; the non-accomplice evidence is insufficient to connect him to the offense; and the trial court erred in not instructing the jury on the lesser-included offenses of murder and robbery.
We affirm.
Lawrence Scott testified that on the evening of March 6, 2014, the complainant, Stanly Kumbanattel, stopped by to visit him at his home at the Little Nell Apartments in Houston. He noted that the complainant, who was a medical student from Dallas, was in town for the weekend to celebrate his birthday with his family. Shortly after the complainant left, Scott learned from a neighbor that there had been a shooting outside his apartment building. Several days later, Scott learned that it was the complainant who had been shot and killed.
Jerome Monroe testified that on the evening of March 6, 2014, while sweeping his garage at the Little Nell Apartments, he saw the complainant running past hisgarage. "[A]bout 10 seconds later," he saw three other men, wearing "dark colored" "hoods," chasing him. A few seconds later, he heard "gunfire," "saw the light from the gun," and saw the complainant fall down. Afterwards, Monroe saw the men get into the complainant's car, a black Acura. The driver drove the car near the complainant, where one of the men got out and shot the complainant again. The shooter then got back into the car, and the driver drove away.
Shejuan Bumpers testified that on the evening of March 6, 2014, she was at her home at the Little Nell Apartments, with her mother, Sheryl Mitchell; her sister; and a couple of friends. After hearing gunshots, she looked out the window of her second-story apartment and saw a man wearing khaki-colored pants and a blue "hoodie" running to a black Acura. As the man ran past her, Bumpers saw his eyes. She then ran outside and saw someone lying on the ground. The Acura returned momentarily, then sped away. And Bumpers called for emergency assistance.
Mitchell testified that she and Bumpers were sitting down to dinner when she heard a "pop, pop" sound coming from outside. She then heard, "pow, pow, pow, pow, pow." And she went to the balcony of the apartment and saw someone running by wearing a hoodie. When Mitchell asked if he was "okay," he looked away and did not answer. She also saw someone lying on the ground. She and her other daughter then went running downstairs, outside, and over to the complainant, where several other people were beginning to gather. Someone yelled, "Here they come!"A black car appeared, and everyone started running. After the driver drove past the complainant, he drove away.
Houston Police Department ("HPD") Officer D. Gwosdz testified that at 8:38 p.m. on March 6, 2014, he was dispatched to the Little Nell Apartments on the West Sam Houston Parkway in Houston to investigate a shooting. There, he found the complainant lying face up on the pavement, not breathing, and surrounded by blood.
HPD Officer M. Perez testified that when he arrived, officers on the scene directed him to Building 11. There, he found, located near the complainant, a white glove and eight bullet casings that he identified as having been fired from a 9-millimeter firearm. They noted numerous bloody tire tracks through the scene. He also noted that the complainant did not have a wallet or car keys on his person.
HPD Sergeant R. Bridges testified that at 6:00 a.m. on the day after the shooting, March 7, 2014, while working the homicide division hold desk, he received a telephone call from appellant. Appellant said that he had learned that an acquaintance or friend of his had been killed and he realized that his identification was in the friend's car. He explained that he was out on bail, was afraid that he might be connected to the death, and wanted to "clear the air."
HPD Sergeant E. Cisneros testified that he, through his investigation, learned that witnesses at the Little Nell Apartments had seen a four-door, black Acuraleaving the scene. Investigators had recovered a four-door, black Acura from a House of Pies restaurant, located seven miles from the crime scene, that had been robbed approximately one hour after the shooting. And HPD dispatchers had received calls for emergency assistance at 8:17 p.m., from the apartments, and at 9:42 p.m., from the restaurant.
Sergeant Cisneros went to the HPD vehicle impound lot to examine the Acura and learned that it was registered to the complainant. He accessed the complainant's driver's license photograph and noted that it matched the images of the complainant in the crime scene photographs. Cisneros found, on the driver's side of the center console of the Acura, a wallet containing a bank card and a State of Texas identification card belonging to appellant and stating that he lived at Little Nell Apartments. Cisneros also confirmed that the telephone call that Sergeant Bridges had received the day after the murder was from appellant.
Sergeant Cisneros further testified about the surveillance videotapes and still photographs, which the trial court admitted into evidence, from the robbery at the House of Pies restaurant. He identified the complainant's car being driven into the restaurant parking lot and two black men getting out of the complainant's car. The men wore masks, partially hiding their faces, and hooded sweatshirts. The driver dressed was in black, and the passenger in blue. Cisneros identified the man dressed in black as appellant and the man dressed in blue as appellant's co-defendant,Marquis Davis. The videotapes show the men, each holding a firearm, entering the House of Pies restaurant at 9:41 p.m., holding the workers and patrons at gunpoint, and taking their money, wallets, and cellular telephones. Cisneros identified appellant's weapon as a semi-automatic firearm and Davis's weapon as a revolver. The videotapes and photographs show that, at times during the robbery, Davis's mask fell down and revealed most of his face. The men are also shown running through the kitchen and out through the back door of the restaurant. HPD Officer R. Gonzelez testified that officers subsequently arrested Davis in the attic of a nearby residence.
Anthony Green testified that he was a patron at House of Pies restaurant on the night of the robbery. He noted that the man in the black hoodie used "either a 9-millimeter or 10-millimeter" semi-automatic firearm. And he identified appellant in court as one of the assailants.
HPD Investigator V. McLean testified that Bumpers identified the black Acura recovered from the House of Pies restaurant as the car that she saw at the Little Nell Apartments at the time of the shooting. And Bumpers identified Davis from a photographic array as the man that she saw running through the apartments after the shooting. McLean also interviewed Davis, and he identified appellant as having been involved in the shooting of the complainant. Davis also admitted that his car, a Mercury Grand Marquis, had been left at Little Nell Apartments. HPDOfficer A. Looney testified that, after the shooting, officers found a 1995 Mercury Grand Marquis parked at the Little Nell Apartments, near Building 11.
C. Bassett, a Houston Forensic Science Center ("HFSC") firearms examiner, testified that officers recovered eight casings that had been fired from a 9-millimeter firearm. He noted that, "usually whenever cartridge cases are on the ground," as here, "it's from a semi-automatic." Bassett explained that when a semi-automatic weapon is fired, the cartridge casings are extracted and ejected from the firearm. When a revolver is fired, however, the casings stay in the firearm and must be manually removed.
M. Hines, an assistant medical examiner at the Harris County Institute of Forensic Sciences, testified that the complainant suffered eleven gunshot wounds from "8 bullets." A bullet was fired into the complainant's neck, which perforated his jugular vein, carotid artery, and a portion of his vertebral column. He was also shot in the left and right sides of his chest and in his abdomen. And Hines opined that the complainant died from multiple gunshot wounds.
Marquis Davis testified that although the State had charged him as a co-defendant for the offense of capital murder of the complainant, it, in exchange for his guilty plea and agreement to testify against appellant, agreed to reduce the charge to aggravated robbery and recommend that his punishment be assessed at confinement for fifty years. Davis further explained that on March 6, 2014, hepicked up appellant from the Rainy Meadows Apartments and they met up with some friends at a nearby convenience store. Appellant told Davis that "the police took $2,000 from him" and he needed to meet up with a girlfriend to get some money. He then got into the driver's seat of Davis's Mercury Grand Marquis and, with Davis in the passenger seat, drove to the Little Nell Apartments. When they arrived, Davis waited in the passenger seat while appellant went to get the money.
About five minutes later, however, appellant "came back around the corner" with the complainant in a "headlock." All Davis could hear were "curse words," and he got out of the car to see what...
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