Ross v. State

• Decision Date: 05 May 2004
• Docket Number: No. 74,459,74,459
• Citation: 133 S.W.3d 618
• Parties: VAUGHN ROSS, Appellant v. THE STATE OF TEXAS.
• Court: Texas Supreme Court

Page 1

133 S.W.3d 618

VAUGHN ROSS, Appellant v. THE STATE OF TEXAS.

No. 74,459

Court of Criminal Appeals of Texas.

Delivered May 5, 2004.

On Direct Appeal from Lubbock County.

HERVEY, J., delivered the opinion of the Court in which MEYERS, PRICE, WOMACK, JOHNSON, KEASLER, HOLCOMB and COCHRAN, JJ., joined. KELLER, PJ., concurred.

OPINION

HERVEY, J.

A jury convicted appellant of capital murder. The trial court sentenced appellant to death pursuant to the jury's answers to the special issues submitted at the punishment phase. Appellant raises seventeen points of error. We affirm.

Appellant claims that the evidence is legally insufficient (point of error eleven) and factually insufficient (point of error twelve) to support his conviction. In a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and then determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 99 S.Ct. 2781, 2789 (1979). In a factual sufficiency review, we view all of the evidence in a neutral light, and we will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. See Zuniga v. State, S.W.3d slip op. at 8 (Tex.Cr.App. No. 539-02, delivered April 21, 2004).

The indictment alleged that appellant murdered more than one person during the same criminal transaction. The evidence shows that appellant's victims (Viola Ross and Douglas Birdsall) were apparently murdered in Birdsall's car in an alley outside appellant's apartment complex. Appellant's neighbor reported hearing gunshots in the alley at around 10:00 p.m. The victims' bodies were discovered in Birdsall's car, which was parked in a ravine approximately 4.2 miles from the alley where the victims were murdered. Inside the car were shell casings, glass shards, and a fingertip piece of a latex glove. Shortly before the murders, appellant's girlfriend (Liza, who was also Viola's sister) saw appellant wearing latex gloves. Appellant told Liza to leave the apartment so she would not be there "if anything happens." Liza left the apartment and walked to her father's house, arriving at about 10:11 p.m.

In the alley outside appellant's apartment complex, the police discovered blood stains, glass shards and a shell casing. Testing revealed that the glass shards were similar to the glass windows of Birdsall's car. Additionally, the shell casing from the alley was tested and determined to be consistent with the shell casings in Birdsall's car. The day after the murders, appellant accompanied Liza to the police station to describe events of the previous night. Appellant told police he had argued with Viola over the telephone. During a second interview with police, appellant told an investigator that he and Viola did not get along and that they had argued because Viola kept calling and putting Liza's ex-boyfriend on the phone. Appellant consented to a police search of his apartment, which resulted in the recovery of two latex gloves and a sweatshirt. DNA testing showed that a blood stain on the sweatshirt belonged to Birdsall. DNA testing also showed that Birdsall's blood was on the outside of the latex glove tip found in Birdsall's car and that appellant's DNA was on the inside of the glove tip. Appellant incriminated himself during police questioning when asked about the location of the murder weapon, and again in a conversation with his mother recorded at the Lubbock County Jail.

The evidence is legally and factually sufficient to support appellant's conviction. The murders occurred in an alley very near appellant's apartment. Appellant threatened Viola with violence not long before she was murdered. Shortly before the murders, appellant told Liza to leave appellant's apartment because he did not want her there in case anything happened. Liza also saw appellant wearing latex gloves, and a latex glove tip containing appellant's DNA and Birdsall's blood was found inside Birdsall's car. Birdsall's blood was also on appellant's sweatshirt. Appellant incriminated himself when the police asked him about the murder weapon, and he incriminated himself to his mother. We cannot conclude that the jury's verdict is irrational or clearly wrong and unjust. Points of error eleven and twelve are overruled.

In point of error thirteen, appellant claims that the evidence is legally insufficient to support the jury's finding that there is a probability that appellant would commit criminal acts of violence that would constitute a continuing threat to society. We apply the Jackson v. Virginia standard in determining whether the evidence is sufficient to support this finding. See Allridge v. State, 850 S.W.2d 471, 487 (Tex.Cr.App. 1991), cert. denied, 114 S.Ct. 101 (1993).

At the punishment phase, the prosecution presented evidence that appellant has had problems controlling his anger and that in 1997 appellant stabbed a girlfriend and stole her car, for which appellant received and completed probation. Appellant completed an anger management course as a condition of this probation.

The State claims that the evidence presented at guilt/innocence and at punishment clearly establishes appellant's "escalating pattern of violence." Appellant claims that the circumstances of the offense and other evidence relative to his past indicate that he "is not likely to be a danger in the future." Appellant argues that the evidence shows that he committed the murders under a "distressed" state of mind because of having received a number of irritating phone calls from Viola. The evidence indicates that during these phone calls appellant and Viola argued and Liza spoke with at least one of her other boyfriends, who referred to appellant as a coward.¹ Appellant and Liza also argued. Appellant presented the testimony of several witnesses who characterized appellant as an educated, responsible, peaceful, nonuser of drugs or alcohol. Appellant argues:

Appellant's state of mind at the time of the commission of the offense can best be characterized as distressed. He had been the recipient of a number of phone calls from [Viola] directed to [Liza]. During these calls [Liza]'s other boyfriends conversed with her. [Appellant] had been called a coward by one of the male callers and his girlfriend had left his apartment after an argument. If we assume that [the victims] drove to Appellant's home to pick [Liza] up, per her request, the shooting cannot be seen as anything but a reaction, not the result of a scheme. There is no evidence that Appellant did anything to get [the victims] to come to his home. This indicates an absence of forethought. Appellant had been on probation for assault in the past and had successfully completed the term. Appellant was 29 years old. He had completed college, earning a degree in architecture. He had maintained employment with an architecture firm until he decided to return to school. Even as he worked toward an advanced degree, he worked. There is no evidence that Appellant was under duress or under the domination of another at the time of the offense. Finally, there was no psychiatric evidence or testimony from witnesses who claimed that Appellant's character was bad.

We do not agree that the evidence "indicates an absence of forethought" and that appellant's commission of this offense "cannot be seen as anything but a reaction." The evidence that, shortly before the murders and after appellant had threatened Viola, appellant put on latex gloves and asked Liza to leave his apartment in case anything happened supports a finding that appellant planned to murder at least Viola. See Keeton v. State, 724 S.W.2d 58, 61 (Tex.Cr.App. 1987) (some factors relevant to "future dangerousness" special issue are the calculated nature of the defendant's acts and the forethought and deliberateness exhibited by the crime's execution).

A rational jury could also have found that Birdsall was an unintended victim and that appellant intentionally murdered him for no other reason than that Birdsall was in the wrong place at the wrong time. See id. (circumstances of the offense is another factor relevant to the "future dangerousness" special issue). That Viola was the sister of appellant's girlfriend (Liza) is also a relevant consideration to the "future dangerousness" special issue. See id. Another relevant consideration is that appellant murdered the victims out of anger not long after completing an anger management course as a condition of probation for another violent assaultive offense. Appellant's criminal behavior does establish an escalating rather than a de-escalating pattern of violence.

On this record, a jury could rationally have found that there is a probability that appellant would commit criminal acts of violence that would constitute a continuing threat to society. Point of error thirteen is overruled.

In points of error one through six, appellant claims that portions of the parole charge at the punishment phase of his trial violated several federal constitutional provisions and Article 37.071, § 2(e)(2)(B), of the Texas Code of Criminal Procedure. In accordance with Article 37.071, § 2(e)(2)(B), the trial court should have submitted the following parole charge at the punishment phase:

Under the law applicable in this case, if the defendant is sentenced to imprisonment in the institutional division of the Texas Department of Criminal Justice for life, the defendant will become eligible for release on parole, but not until the actual time served by the defendant equals 40 years, without consideration of any good conduct time. It cannot accurately be predicted how the parole laws might be applied to this defendant if the defendant is sentenced to a term of imprisonment for life because the application of...