Robertson v. State, No. 71224

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Writing for the Court: John Vance, Dist. Atty., and A. Wetherholt; MALONEY; CLINTON
• Citation: 871 S.W.2d 701
• Parties: Mark ROBERTSON, Appellant, v. The STATE of Texas, Appellee.
• Docket Number: No. 71224
• Decision Date: 08 December 1993

Page 701

871 S.W.2d 701 Mark ROBERTSON, Appellant,
v.
The STATE of Texas, Appellee. No. 71224. Court of Criminal Appeals of Texas. Dec. 8, 1993.
Rehearing Overruled March 9, 1994.

Page 703

Lawrence B. Mitchell, Dallas, for appellant.

John Vance, Dist. Atty., and A. Wetherholt, J. Warder, H. Wilson and L. Breading, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for State.

OPINION

MALONEY, Judge.

Appellant was found guilty of capital murder committed in the course of a robbery. TEX.PENAL CODE ANN. § 19.03(a)(2) (West 1990). After the jury returned affirmative answers to the special issues, the trial court sentenced appellant to death. TEX.CODE CRIM.PROC.ANN. art. 37.071(b) (West 1990). Appeal to this Court is automatic. TEX.CODE

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CRIM.PROC.ANN. art. 37.071(h) (West 1990). We will affirm.

I.

Appellant challenges the sufficiency of the evidence in his first point of error. Specifically, he complains the evidence is insufficient to prove the underlying felony component of the capital murder. A review of the facts is necessary.

Several days after the murder at issue in this case, an officer of the Las Vegas, Nevada police department, running a routine license check on a blue Cadillac with Texas plates, was informed that the car was stolen and that the subjects should be considered armed and dangerous. Appellant and another man were observed approaching the car, which was now parked and unoccupied. The two were apprehended as soon as appellant placed his key in the ignition. Appellant was read his Miranda ¹ rights, after which he began a series of confessions.

Appellant first informed the two officers who arrested him that they were lucky to have approached the Cadillac so quickly, because he had not had time to retrieve a gun which was under the seat. Appellant then inquired as to where the television cameras were, believing that by now he would be on the television program "America's Most Wanted."

When Las Vegas Police Department Sergeant Mark Medina arrived at the scene, appellant bragged to him that he was famous. Unaware of what appellant was speaking of, Sergeant Medina inquired further. Appellant responded, "I figured I'd be on America's Most Wanted TV show by now." Sergeant Medina asked appellant if he had been read his Miranda rights, and if he still wanted to talk. Appellant said yes, and then stated that he was on probation in Dallas for robbery and that he had shot a boy and his grandmother. Appellant informed Sergeant Medina that he had gone to the house of a friend, Sean Hill, who lived with his grandmother, Edna Brau, in Dallas. Hill had previously sold appellant drugs so the two were acquainted. Appellant and Hill ingested some crystal methamphetamine, commonly referred to as "crank," and went outside to fish. While Hill was fishing, appellant shot him in the back of the head with a .38 caliber pistol. He told Sergeant Medina that he went back inside to steal Hill's drugs. Once inside he saw Ms. Brau in the den watching television and shot her in the head.

Appellant similarly confessed orally to two other officers. In each of those confessions, appellant indicated he shot Hill, went back inside the house, shot Ms. Brau, and began searching the house for valuables, drugs, and the title to Ms. Brau's car, the blue Cadillac.

Appellant also signed a written confession stating:

On Saturday night around 9 PM I decided to walk over to Sean's house on Hathaway where he lived with his grandmother. When I got there, Sean was in his room watching T.V. We sat around watched TV and did some pot and crank. We then decided to go fishing out in the backyard. We were using one stick with a string and a hook. We would trade off, I think we caught some seven catfishes. While we were fishing, I think we were kneeling. I pulled my gun out of my pants and shot Sean once in the head. After I shot him, Sean fell in the water. I then ran in the house through Sean's bedroom and into the bathroom where I splashed some water over my face. I then walked into the den where Mrs. Hill, Sean's grandmother, was watching TV and I shot her once. I unplugged the TV because it was playing and so was the radio in the bedroom.

I looked through her bedroom drawers and found her purse on the make-up counter. I saw some costume jewelry but left it alone. I did take a wristwatch which I later threw away in a garbage can but I don't remember where. I then ran into Sean's room and took his crank which was left on the bed. I then drove off in Mrs. Hill's car. I went on home and then went to Showtime on Greenville and Lover's where I wiped it all down and left it there. I then walked back home. Next day while

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listening to the evening news I heard about their bodies being found. I couldn't sleep for the next couple of days so I figured that I would just leave. I walked back to the parking lot at Showtime where I got in the car and decided to drive to Las Vegas where my parents used to bring me. I had left the car in the parking lot. I threw the purse away in a dumpster at the Village Apts. I think that I left on Tuesday sometime around 4 PM. I drove all the way to Albuquerque, N. Mexico where I spent the night and the following day I drove to Vegas. I was staying at the SuLinda Motel in Vegas. I met Nikki two or three days later at the Circus-Circus. I used my roommate's money to get to Vegas. He had some $700.00 in cash in his room. I think that Mrs. Hill's purse had some $37.00 in cash which I took. These past few days I didn't know what to do and when I got arrested I felt relieved for the most part because I didn't have to run anymore.

Appellant challenges the sufficiency of the evidence to prove he formed the intent to rob Ms. Brau during or prior to her murder. ² This Court has defined "in the course of committing" an offense listed in section 19.03(a)(2), supra, as conduct occurring in an attempt to commit, during the commission, or in the immediate flight after the attempt or commission of the offense. Garrett v. State, 851 S.W.2d 853, 856 (Tex.Crim.App.1993); Riles v. State, 595 S.W.2d 858, 862 (Tex.Crim.App.1980). In order for the murder to qualify as capital murder under section 19.03(a)(2) of the Texas Penal Code, the intent to rob must be formed prior to or concurrent with the murder. Garrett, supra; see White v. State, 779 S.W.2d 809, 814-15 (Tex.Crim.App.1989), cert. denied, 495 U.S. 962, 110 S.Ct. 2575, 109 L.Ed.2d 757 (1990).

In reviewing the sufficiency of the evidence in a direct or circumstantial evidence case, a reviewing court determines whether, based on the evidence viewed in the light most favorable to the verdict, a rational jury could have found all the essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Geesa v. State, 820 S.W.2d 154, 155-61 (Tex.Crim.App.1991). "If the State introduces evidence from which the jury could rationally conclude that appellant formed the intent to obtain or maintain control of the victim's property either before or during the commission of the murder, then the State 'has proven that a murder occurred in the course of robbery, although the element of appropriation occurred after the murder.' " Zimmerman v. State, 860 S.W.2d 89, 93 (Tex.Crim.App.1993) (quoting Nelson v. State, 848 S.W.2d 126, 132 (Tex.Crim.App.1992)). When viewed in the light most favorable to the verdict, the evidence is sufficient to prove appellant murdered Edna Brau in the course of robbing or attempting to rob her.

Appellant places great importance on the fact that in his oral confession to Sergeant Medina he stated that the reason he went back into the house after shooting Hill was to steal Hill's drugs. Initially we note that in all the other confessions no such intent was stated. Additionally, in one of appellant's other confessions, he stated that after shooting Ms. Brau he began searching the house for jewelry, money, drugs, and the title to the automobile.

Intent may be inferred from the actions or conduct of appellant. McGee v. State, 774 S.W.2d 229, 234 (Tex.Crim.App.1989), cert. denied, 494 U.S. 1060, 110 S.Ct. 1535, 108 L.Ed.2d 774 (1990). The evidence showed that Hill's living area was separate from Ms. Brau's quarters and could be entered separately from the outside. When appellant arrived he entered the house through Hill's entrance. Had appellant's intent

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only been to steal Hill's drugs, he could have accomplished that objective without ever entering Ms. Brau's portion of the house. A rational inference could be made that appellant not only intended to steal the drugs, but entered Ms. Brau's portion of the house with the intention of finding the keys and title to the Cadillac as well as other valuable items in the house. This evidence, in addition to the other confessions of appellant, could lead a rational juror to conclude appellant intended to rob Ms. Brau before or when he shot her. See Upton v. State, 853 S.W.2d 548 (Tex.Crim.App.1993); Nelson v. State, 848 S.W.2d 126 (Tex.Crim.App.1992); compare Ibanez v. State, 749 S.W.2d 804 (Tex.Crim.App.1986) (opinion on original submission) (appellant's confession denied "that the murder occurred in order to facilitate the theft."). Appellant's first point of error is overruled.

In his second point of error, appellant claims that he was entitled to an instruction on the lesser included offense of murder. Like the first point of error, appellant contends the evidence of intent to rob the decedent is weak and as such appellant may only be guilty of murder.

A charge on a lesser included offense must be submitted if the offense requested to be charged is a lesser included offense, and if there is some evidence in the record that if the defendant is guilty, he is guilty of only the lesser included offense. Royster v. State, 622 S.W.2d 442 (Tex.Crim.App.1981) (opinion on reh'g) (plurality opinion), adopted, Aguilar...