Ross v. State

• Decision Date: 09 December 1992
• Docket Number: No. 69206,69206
• Citation: 861 S.W.2d 870
• Court: Texas Court of Criminal Appeals
• Parties: James Clarence ROSS, Appellant, v. The STATE of Texas, Appellee.

Page 870

861 S.W.2d 870

James Clarence ROSS, Appellant, v. The STATE of Texas, Appellee.

No. 69206.

Court of Criminal Appeals of Texas,

En Banc.

Dec. 9, 1992.

Rehearing Granted Jan. 20, 1993.

Opinion Reconsidering Decision in Part on Rehearing Jan. 20, 1993.

Douglas M. O'Brien (court appointed on appeal only), Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., and Winston E. Cochran, Jr. and Timothy G. Taft, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Matthew W. Paul, Asst. State's Atty., Austin, for State.

Before the Court en banc.

OPINION

BENAVIDES, Judge.

Appellant was convicted on August 24, 1983 of capital murder for intentionally killing Ronald Ted Martin while in the course of committing a robbery. See, V.T.C.A., Penal Code, § 19.03(a)(2). After the jury answered affirmatively to both special issues submitted under Article 37.071, V.A.C.C.P. the trial court imposed the penalty of death.

Appellant presents eleven points of error for our review. Because we will set aside the conviction for failure of the trial judge to correctly charge the jury, we will review only three points of error.

Appellant's points of error are based on the following confession by appellant which was introduced by the State:

On Friday September 24, 1982 at approximately 8:30 p/m Ronald Nix who is a friend of mine came and picked me up at the B & B store which is located on Safebuy. Ronald who was driving his blue toyota. We left the B & B store and went to northwood manor and picked Robert Lewis up at his house. Then we went to a friend of mines house named Clifford who lives near Homestead and Highway 59. We stayed there smoking pot and drinking until about 10 p.m. We went down off Jensen and rode around and we started to take Robert back home, Nix was driving, and Robert was in the front and I was in the back. We got off the freeway somewhere around Littleyork and Robert said let's go make some money. I told him I did not have a gun and he said he had one. Robert pulled a silver derringer out of his back pocket and handed it to the backseat to me and I looked at it and I told him "What are you going to do with this thang it only shoots two times?" I then passed the gun back to Robert in the front seat.

We were then driving on the feeder street and Robert told Nix to turn in by a topless club and stop. Robert got out of the car and walked up to a white man and Ronald ran up and hit the white guy I don't know with what. As I got up to the white mans car which was a tan colored thunderbird Robert and Ronald put the white man in the back seat of his car. The white man was lying face down in the back seat and Robert was driving, and I got into the front seat on the passengers side and Ronald got into his toyota and followed us.

We then went by Roberts house and left Nix's toyota and Nix got in the front seat with me and Robert and I was riding in the middle of the front seat. The derringer was lying in the seat and when I scooted over I picked it up and I asked him how it worked and Robert told me I had to cock it first. While we were driving around Ronald was going through the mans pockets. Robert drove to a dark road in the back of northwood manor and stopped. Robert got out, then Nix got out and then I got out of the car. Robert grabbed the man on the left shoulder and I grabbed the man by the right shoulder and then we walked the man about a 100 feet and Nix was following behind us and I had the gun in my right hand pointing up towards the mans head. Robert said this is far enough and I told him no "Lets take him into the weeds," and then I shoved him while the gun was still in my right hand up near the mans shoulder pointing towards his head. When I shoved the man the gun went off and struck the man in the head. When the gun went off I told Robert to go ahead and put him down and then he touched the back of his head and then he fell to the ground. I told Robert I just shot him in the head lets go. We then left. We went to Roberts house and I asked him how much money did the man have I don't remember how much he had.

Robert said lets go make some more money and I said lets wait until tomorrow. We went a drank a little while and I told Robert to take me back to Nix's car because I was getting ready to go because it was getting late. Robert dropped me and Nix off and we went back to the house.

We note that in addition to the confession, the State introduced testimony from other sources. One neighbor testified that he heard two shotgun shots and a pistol shot fired in rapid succession. Another neighbor also testified that he heard three shots fired in rapid succession. Near where the victim's body was found, a deputy sheriff located two spent shotgun shells on the roadway. Other police officers revealed that appellant's car was found at an abandoned house, approximately two blocks from the murder scene. The State also introduced medical testimony. The medical examiner testified that the victim died from a contact wound behind the right ear. He testified that the barrel of the gun was two to three millimeters from the skin, and the bullet entered the right side of the head, traveled through the brain tissue, and lodged into the upper left portion of the head.

I.

In point of error number one, appellant directs our attention to the following statement in his confession: "[w]hen I shoved the man the gun went off and struck the man in the head." Appellant argues that because of this statement, the evidence is insufficient to prove he intentionally caused the death of Martin as required by V.T.C.A. Penal Code, § 19.03(a)(2). While this isolated statement may raise an inference that the shooting was accidental, we find the evidence adduced at trial is sufficient to find appellant intentionally caused the death of the victim.

The standard of review to determine the sufficiency of the evidence to show an intentional killing is the same under murder and capital murder. Thompson v. State, 691 S.W.2d 627, 630 (Tex.Crim.App.1984), cert. denied, 474 U.S. 865, 106 S.Ct. 184, 88 L.Ed.2d 153 (1985). The jury may infer the intent to kill from the use of a deadly weapon unless it would not be reasonable to infer that death or serious bodily injury could result from the use of the weapon. Godsey v. State, 719 S.W.2d 578, 581-82 (Tex.Crim.App.1986). And in determining the sufficiency of the evidence, the evidence must be viewed in the light most favorable to the verdict to decide whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Dunn v. State, 819 S.W.2d 510, 513 (Tex.Crim.App.1991); Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

Applying the Jackson criteria to the facts of this case, we find a rational trier of fact could have found beyond a reasonable doubt that appellant intentionally caused the death of the deceased. V.T.C.A. Penal Code, § 19.03(a)(2). While the isolated statement by appellant in his confession may lend support to his argument that the shooting was accidental, that was not the only evidence the jury reviewed. A rational jury could conclude from appellant's request for information on how to fire the derringer after the victim had been abducted; the placement of the derringer underneath the ear of the victim with the gun pointed in an upwards direction towards his brain; the manner in which the robbers walked the victim out into a deserted field; the lack of shock or remorse for killing the victim; and the statement of appellant that "[he] just shot him in the head lets go" as an indication that appellant intentionally caused the death of the victim.

Appellant further argues that because the state introduced the purported exculpatory statement by appellant, the state must disprove that statement. See Palafox. v. State, 608 S.W.2d 177, 181 (Tex.Crim.App.1980); County v. State, 812 S.W.2d 303, 313 (Tex.Crim.App.1989). ¹ In Palafox, the defendant, charged with capital murder, admitted to killing the victim and burglarizing his home. The confession illustrated that he took the items from the house to make the murder appear to look like a burglary. The confession admitted murder but exculpated him of the capital offense charged: murder in the course of robbery. Because the statements were exculpatory of the offense charged the State was required to disprove those statements in the confession. Id., 608 S.W.2d at 181.

The rule of law articulated in Palafox is inapplicable to the facts of this case. The statement is not exculpatory. Here, the State was required to prove beyond a reasonable doubt that appellant intentionally caused the death of Martin. Appellant argues on appeal that the statement contained in the confession raises an inference that the killing was accidental. While the isolated statement in and of itself may be insufficient to show appellant intentionally caused the death of the victim, it does not follow that the State's burden is somehow made greater because the State admitted the confession into evidence. Gribble v. State, 808 S.W.2d 65, 69 (Tex.Crim.App.1990), cert. denied, 501 U.S. 1232, 111 S.Ct. 2856, 115 L.Ed.2d 1023 (1991). As this court stated, "[r]equiring the State to disprove beyond a reasonable doubt that appellant killed the deceased unintentionally is neither qualitatively nor quantitatively different than requiring it to prove beyond a reasonable doubt that he killed [him] intentionally." Gribble, 808 S.W.2d at 69.

Because the evidence is sufficient to find appellant intentionally caused the death of Martin and because there is no exculpatory statement in the confession which must be disproved, appellant's first point of error is overruled. We note in addition that any inference of accident that could be made from the alleged exculpatory statement was clearly outweighed by the evidence outlined above.

II.

In point of error number four, appellant asserts...