Robbins v. State

• Decision Date: 12 August 2004
• Docket Number: No. 08-02-00519-CR.,08-02-00519-CR.
• Citation: 145 S.W.3d 306
• Parties: Mark E. ROBBINS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

145 S.W.3d 306

Mark E. ROBBINS, Appellant, v. The STATE of Texas, Appellee.

No. 08-02-00519-CR.

Court of Appeals of Texas, El Paso.

August 12, 2004.

Rehearing Overruled September 1, 2004.

Appeal from the 243rd Judicial District Court, El Paso County, David Guaderrama, J Matthew DeKoatz, El Paso, for Appellant.

Jaime E. Esparza, District Atty., El Paso, for State.

Before Panel No. 1 LARSEN, McCLURE, and CHEW, JJ.

OPINION

SUSAN LARSEN, Justice.

A jury convicted Mark Robbins of seven counts of attempted capital murder and two counts of aggravated assault on a public servant. The jury sentenced him to twenty years' imprisonment for attempted capital murder and fifteen years' imprisonment for aggravated assault on a public servant. On appeal, Robbins argues that the evidence was legally insufficient and that the prosecutor made an improper jury argument. Finding no merit to these contentions, we affirm.

FACTUAL BACKGROUND

Two El Paso Police Department Officers were dispatched to Robbins's house based on a report of an altercation between Robbins and his wife. The officers were informed that Robbins had worked for the El Paso County Sheriff's Office, that he may have weapons in the house, and that he might be suicidal. When the officers arrived, they asked the dispatcher to call the house. The dispatcher called several times without getting an answer. One of the officers knocked on the door and got no response. They noticed that the house had some broken windows. They also saw Robbins's mother down the street. She was "hysterical" and had heard shots coming from Robbins's house. One of the officers testified that he spoke over the phone with Robbins's wife, who told him that Robbins had shot at her using a bow and arrow and that she had left the house.¹ One of the officers also spoke on the phone with Robbins. Robbins told the officer that he did not intend to come out of the house because he believed he would be arrested for aggravated assault or placed in protective custody for mental problems.

The officers' supervisor arrived and spoke with Robbins over the phone. Robbins told him that "things" were "going to get ugly." A decision was made to call out the Special Weapons and Tactics Unit (SWAT). Eventually, as many as sixty officers arrived, and a standoff ensued until Robbins finally surrendered six-to-eight hours after SWAT arrived. As discussed in detail below, the State presented evidence that Robbins shot at several of the officers during the course of the standoff.

SUFFICIENCY OF THE EVIDENCE

The jury convicted Robbins of the attempted capital murder of Officers Steve Moreland, Adrian Ruiz, John Cataldi, Bernandino Martinez, Sergio Lopez, Ken Law, and Steven Smith, and of the aggravated assault of Officers Jose Reveles and Carlos Contreras. In his first issue, Robbins argues that the evidence is legally insufficient to establish that he intended to kill or harm any of these officers.

Standard of Review

In reviewing the legal sufficiency of the evidence, we must consider all the evidence in the light most favorable to the verdict to determine whether a rational jury could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Wallace v. State, 52 S.W.3d 231, 234 (Tex.App.-El Paso 2001, no pet.). The jury, not the reviewing court, has the power to weigh the evidence and to resolve conflicts in the evidence. Wallace, 52 S.W.3d at 234. In reviewing the legal sufficiency of the evidence to prove intent, we must presume that the jury resolved conflicting inferences from the evidence in favor of the verdict, and we must defer to that resolution. Hullaby v. State, 911 S.W.2d 921, 929 (Tex.App.-Fort Worth 1995, pet. ref'd).

The Attempted Capital Murder Counts

To establish that a defendant is guilty of attempted capital murder, the State must prove that the defendant had the specific intent to kill. See TEX. PEN.CODE ANN. §§ 15.01(a), 19.02(b)(1) (Vernon 2003), § 19.03(a)(1) (Vernon Supp.2004); Flanagan v. State, 675 S.W.2d 734, 741 (Tex.Crim.App.1984) (op. on reh'g); Tubbs v. State, 57 S.W.3d 519, 522-23 (Tex.App.-Waco 2001, pet. ref'd). Whether the defendant had the intent to kill is a question of fact for the jury to determine. Brown v. State, 122 S.W.3d 794, 800 (Tex.Crim.App.2003), cert. denied, ___ U.S. ___, 124 S.Ct. 1678, 158 L.Ed.2d 359 (2004); Hall v. State, 418 S.W.2d 810, 812 (Tex.Crim.App.1967). In determining whether the State has proven the intent to kill, the jury may use its collective common sense and may apply common knowledge and experience. See Rodriguez v. State, 90 S.W.3d 340, 355 (Tex.App.-El Paso 2001, pet. ref'd). The jury may infer the intent to kill from any evidence that it believes proves the existence of that intent. Brown, 122 S.W.3d at 800. For example, the jury may infer the intent to kill from the defendant's words or conduct. Hall, 418 S.W.2d at 812; see also Wallace, 52 S.W.3d at 234. The jury may also infer the intent to kill from the defendant's use of a deadly weapon, such as a gun, unless it would be unreasonable to infer that death or serious bodily injury could result from the use of the weapon. Brown, 122 S.W.3d at 800; Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App.1996); see also TEX. PEN.CODE ANN. § 1.07(a)(17)(A) (Vernon Supp.2004).

With these principles in mind, we turn to the record to determine whether the evidence is legally sufficient to establish that Robbins had the specific intent to kill the officers.

Officer Moreland

Officer Moreland arrived on the scene after the first officers had arrived but before SWAT arrived. He climbed on the roof of a house near Robbins's house. While on the roof, he heard a loud pop, which he identified from experience as a shot from a high-powered rifle. Other officers had already informed Moreland that Robbins had high-powered weapons. He also heard the sound and felt the breeze from a bullet "whizzing" by him at a distance of no more than five feet. He called out over the police radio that shots were fired in his direction. Moreland testified that he was the only person in the area and that he believed the shot was aimed at him. He was only seventy-five to eighty yards from Robbins's house. According to Moreland, it is "not very hard" to shoot someone from that distance. Moreland acknowledged that it was dark when the shot was fired and that it would have been hard to see his head from Robbins's house.

Officer Ruiz

SWAT Officer Ruiz was stationed on the roof of a shed in Robbins's backyard. Robbins walked out of the house into the yard and saw Ruiz and another officer. He went back into the house and turned on floodlights in the backyard. A SWAT negotiator, Officer Valencia, testified that at one point during the standoff, Robbins said that he was focusing his sights on an officer who was on the shed by a tree. After passing this information along, Valencia heard over the radio that a shot had been fired. Several officers, including Ruiz, testified that they heard over the police radio that Robbins had told the negotiator that he saw someone in the trees behind his house and that he was going to shoot him. Less than a minute later, a shot was fired. Officer Martinez testified that he heard yelling coming from inside the house and saw a muzzle flash coming from the back of the house.²

Ruiz testified that the muzzle flash was pointed at him. He also testified that the bullet could have passed within a foot of him and was at most ten feet from him. Ruiz stated that he had no doubt that Robbins was shooting at him. He acknowledged, however, that he only called out over the police radio that he saw a muzzle flash in his direction; he did not say that Robbins shot at him.

Officer Cataldi

Officer Cataldi served as the primary negotiator on the public address (PA) team during the incident. The PA team was located behind the trunk of a patrol vehicle pointed towards Robbins's house. The lights of the vehicle were on so that Robbins could not see the PA team. Valencia, who was negotiating with Robbins over the phone, testified that Robbins asked him who "John" was. When Valencia told him that John Cataldi was another negotiator, Robbins told Valencia to tell the PA team to "shut up" or he was going to start shooting. Several officers testified that they heard Robbins shout something like "John, where are you?" He then stuck his hand out of one of the windows in his house and pointed a gun in the direction of the PA team, including Cataldi. Robbins held the gun in a level position and pointed it straight ahead, not up or down. Seconds later, there was a muzzle flash at the window where Robbins had been standing, and the PA team announced over the radio that a shot had been fired in the team's direction. Martinez had "no doubt" that the gun was leveled directly at the PA team. Cataldi's loud speaker was directly behind the lights of the patrol vehicle, and Robbins shot in the direction of Cataldi's voice.

Cataldi testified that he heard over the radio that Robbins was taking aim at the PA team. He then heard a very loud gunshot. Cataldi did not know how close the bullet came to him.

Officers Martinez, Lopez, Law, and Smith

Officer Reveles, a SWAT sergeant, led a group of officers that approached Robbins's house using an armored rescue vehicle (ARV). Officer Lopez drove the ARV, and Officer Martinez was stationed at a turret on the top of the ARV. Officers Smith, Contreras, and Law were stationed behind the ARV once it stopped near Robbins's driveway. At that point, the ARV was about fifty feet from the front of Robbins's house. The ARV had a police badge painted on it, along with the words "police" and "rescue." The vests the officers were wearing had a police emblem on the front and back.

In an early conversation with Officer Valencia, the telephone negotiator, Robbins asked Valencia if he had ever seen...