Roberts v. State

Decision Date18 April 2007
Docket NumberNo. AP-75051.,AP-75051.
Citation220 S.W.3d 521
PartiesDonnie Lee ROBERTS, Jr., Appellant, v. The STATE of Texas.
CourtTexas Court of Criminal Appeals

Robert A. Morrow, Spring, for Appellant.

William Lee, Assistant Criminal District Atty., Livingston, Matthew Paul, State's Atty., Austin, for State.

KELLER, P.J., delivered the opinion of the Court in which WOMACK, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., joined.

Appellant was convicted of capital murder.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 him to death.2 Direct appeal to this Court is automatic.3 Appellant raises sixteen points of error. We find all of them to be without merit and therefore affirm.

I. GUILT—Factual Sufficiency

In point of error one, appellant contends that the evidence was factually insufficient to establish the underlying offense of robbery. In a factual sufficiency review, the evidence is reviewed in a neutral light rather than (as in a legal sufficiency review) in the light most favorable to the verdict.4 Evidence can be factually insufficient in one of two ways: (1) when the evidence supporting the verdict is so weak that the verdict seems clearly wrong and manifestly unjust, and (2) when the supporting evidence is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust.5 We have recently explained that a reversal for factual insufficiency cannot occur when "the greater weight and preponderance of the evidence actually favors conviction."6 Although an appellate court reviewing factual sufficiency has the ability to second-guess the jury to a limited degree, the review should still be deferential, with a high level of skepticism about the jury's verdict required before a reversal can occur.7 We turn to a review of the evidence under these principles.

At the time of the murder, appellant lived with the victim, Vicki Bowen. Appellant was unemployed, often drank alcohol, and used cocaine. Bowen worked as a dental assistant. On October 15, 2003, she went shopping with co-worker Brenda Bland, but she did not show up for work the next day. Because Bowen was a punctual person who always called if she was going to be late, Bland became concerned and went to Bowen's house to check on her. When Bland arrived at the home, she found the front door open. After knocking and receiving no answer, Bland entered the home and found Bowen dead. Bland noticed that Bowen was still in the scrubs she had worn at work the previous day. She was covered by a blanket and was lying face down with her head turned to the side in a pool of blood. Blood spatters were present in the living room on the coffee table, the couch, and the walls. The medical examiner would later determine that Bowen died from two gunshot wounds to the head.

It was immediately apparent from an examination of the scene that Bowen's television and her son's truck were missing. That same day, the police found appellant after tracking down the stolen truck. It was later determined that appellant had taken the truck, the television, Texans/Titans football tickets, jewelry, a Western Union money order, a .22 rifle, and a .22 pistol. Appellant had sold the football tickets for one hundred dollars. He had bought cocaine from Edwin Gary on October 15 on three different occasions, the last of which involved trading the .22 caliber pistol. Appellant had apparently abandoned the .22 rifle, later determined to be the murder weapon, a few blocks from where he was found. The Western Union money order was found in the residence at which appellant had parked his truck, but the television and the jewelry were never recovered.

Appellant was interviewed and gave a confession. In that confession, he acknowledged that he had "a crack cocaine problem" and that he would go to bars, get drunk, and then look for drugs. With regard to the victim's death, appellant said, "I pointed the gun at her and I told her just give me some money." Later in the interview, appellant stated:

I pointed the gun at her and I said, "if you'd just give me some money." And she said "No." And then I said, "Look, it doesn't have to be this way." That's all I remember saying to her. And the next thing I know, I shot her.

At trial, appellant testified to a different sequence of events. He claimed that he picked up the .22 rifle because it was out of place, near the door. He also claimed that he saw what looked like a .22 pistol in Bowen's pocket and that she moved her hand to her pocket to reach for it. He then said that he "must have chambered a round into the .22 rifle at that time," but he did not remember if he pulled the safety off. He also claimed that he did not remember his gun firing but that he knows it did. Appellant further testified that he did not intend to rob Bowen at the time he shot her, but he admitted to taking items of her property later.

Appellant begins his argument by saying, "It may seem bold to claim that the evidence is insufficient to prove capital murder where the defendant said he pointed a gun at the victim and told her to give him the money." He claims that the evidence is nevertheless factually insufficient because there was "no other evidence to show that a robbery took place." He claims that his request for "the money" was a request for twenty dollars that Bowen typically left for him in the morning. He also asserts that he and the victim shared expenses and that testimony at a pre-trial hearing established that he gave Bowen ninety-five percent of his pay when he was working. He concedes that he took property from the house for the purpose of obtaining cocaine but contends that the removal of the property was a mere after-thought. He concludes that any dispute over money was a domestic dispute rather than a robbery.

By his own admission, appellant pointed a gun at the victim and demanded money from her immediately before he killed her. Appellant does not claim that the money he demanded was actually his, and he implicitly concedes that some of the evidence that might support such an assertion was never presented to the jury. Even if it had been, the evidence at trial showed that appellant was unemployed at the time of the shooting, and therefore, the jury could legitimately conclude that the money demanded was not the result of shared finances. Moreover, appellant attempts to buttress his suggestion that he and the victim were arguing over a sum the victim regularly paid him by characterizing his videotaped description of his demand as "give me the money." But our review of the videotape indicates that appellant said, "give me some money," which suggests he was not talking about a previously-agreed-upon payment. Even if we were to assume, however, that he was demanding only money that the victim had regularly paid him in the past, it would be more than understandable for the victim to decide that she would not continue to advance sums of money to support his drug habit. That he believed she should continue to give him money did not absolve him of the intent to take money he knew did not belong to him or of his threat (and ultimately use) of deadly force to accomplish that objective.

Moreover, several items of the victim's property were discovered missing at the same time the victim's body was discovered, and it was determined that appellant possessed these items either the day of the murder or the next day. A jury could have inferred that appellant took these items shortly after the murder. And from that conclusion, the jury could have further inferred that the murder was committed during the course of a robbery.8

Finally, we observe that a "domestic dispute" was not the only apparent possible motive for murder. By his own admission, appellant had a "crack cocaine problem," and his statements suggested that he also had an alcohol problem. That he bought cocaine on three different occasions on the same day further supports a conclusion that appellant had a cocaine addiction. Statements in appellant's confession, along with his conduct, amply support the conclusion that he needed money to purchase the drugs to satisfy this habit. The evidence was factually sufficient to support the underlying offense of robbery. Point of error one is overruled.

II. PUNISHMENT
A. Factual Sufficiency

In point of error two, appellant contends that the evidence was factually insufficient to support the jury's answer to the future-dangerousness special issue. We have consistently declined to conduct a factual-sufficiency review in this context,9 and appellant's arguments do not persuade us to retreat from those holdings.10 Point of error two is overruled.

B. Evidence
1. Investigator's Notes

In point of error three, appellant contends that the trial court erred when it ordered the defense to turn over its investigator's notes to the prosecution for cross-examination of the defense punishment-phase witnesses. Appellant further claims that this error was "structural," and thus immune from a harmless error analysis, because his right to counsel was violated.

Appellant's investigator was a "mitigation specialist" who talked to a number of defense witnesses who testified at the punishment phase of the trial. The investigator took notes relating to these interviews. From the record of the conversations between the trial court and the parties set out in appellant's brief, it appears that the notes involved some direct quotations of statements by witnesses and some opinions of the investigator. The trial court permitted defense counsel to excise the latter from the notes before turning the notes over to the prosecution. The notes relating to a particular witness were turned over after that witness testified.

Appellant has failed to include in his brief any record citations showing that the redacted notes were ever made a...

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