Zimmerman v. State
Decision Date | 07 April 1993 |
Docket Number | No. 71106,71106 |
Citation | 860 S.W.2d 89 |
Parties | Kevin Lee ZIMMERMAN, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Criminal Appeals |
Douglas M. Barlow, Beaumont, for appellant.
Tom Maness, Dist. Atty. & John R. DeWitt, Asst. Dist. Atty., Beaumont, Robert Huttash, State's Atty., Austin, for the State.
Before the Court en banc.
OPINION
After a trial held in May 1990, a Jefferson County jury found appellant, Kevin Lee Zimmerman, guilty of the October 23, 1987, capital slaying of L__ G__ H__ (hereinafter "the decedent"). The aggravating element of the murder was provided by appellant's commission of it while in the course of also committing robbery. 1 See Tex.Penal Code § 19.03(a)(2). At the punishment phase, the jury answered affirmatively the punishment issues set forth in Article 37.071(b) of the Texas Code of Criminal Procedure, 2 and appellant was sentenced to death. Direct appeal to this Court was then automatic under Article 37.071(h). 3 We will affirm.
In seventeen points of error, appellant challenges: the sufficiency of the evidence to support the jury's verdict; the failure of the trial court to grant two of appellant's challenges for cause; the trial court's grant of two of the State's challenges for cause; the trial court's conduct in sustaining the State's objection to appellant's explanation of the presumption of innocence; the admission in evidence of letters written by appellant; the admission in evidence of a picture of the decedent with his wife and child, and of testimony regarding the results of another capital case; the trial court's overruling of appellant's objection to the State's closing argument; the trial court's refusal to submit to the jury appellant's requested instructions regarding mitigating evidence and the definitions of certain terms contained in the two punishment issues. After addressing appellant's sufficiency point, we will address the majority of appellant's points of error in the order 4 in which they occurred during the course of the trial.
In point of error eight, appellant argues that the evidence at trial was insufficient to sustain his conviction. Appellant does not contest the sufficiency of the evidence to prove that a murder occurred. Appellant does, however, contend that the evidence is insufficient to prove that the killing of the decedent occurred in the course of the commission of a robbery. Therefore, our review will focus briefly upon the facts of the murder, but will specifically focus on those facts which proved the robbery.
In conducting this review, we must consider all of the evidence in the record in the light most favorable to the jury's verdict, and decide whether any reasonable jury could have found from that evidence every element of the offense 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, 158-159 (Tex.Cr.App.1991). Our purpose is not to reevaluate the weight and credibility of the evidence, but to ensure that the jury reached a rational decision. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Cr.App.1988).
Appellant was charged with, and found guilty of, violating Tex.Penal Code § 19.03(a)(2). The State presented twelve witnesses and numerous pieces of physical evidence during the trial's guilt-innocence phase to prove appellant's guilt. Appellant presented three witnesses. Viewed in the light most favorable to the jury's verdict, the testimony adduced at trial established the following:
Appellant, George Weber, and Kay Gonzales, arrived at a Motel 6 in Beaumont on October 23, 1987. While at the motel, they met the decedent, who also was staying at the motel. After having some drinks, the decedent suggested that they all go to the fair. After returning from the fair, all four people returned to appellant's room. After a short time, the decedent and Kay Gonzales went to the decedent's room, and the decedent paid Gonzales to have sexual intercourse. Then, the decedent and Gonzales returned to the room where appellant and Weber were.
After some time, Gonzales went to the bathroom and heard a struggle ensuing in the nearby bedroom. In that room, appellant and Weber, armed with knives, attacked the decedent. After the two men stabbed the decedent 31 times, appellant took the decedent's wallet and gave it to Weber. Then, appellant, Weber, and Gonzales, left in their car to try and get appellant to a hospital. While the car broke down after only a short time, appellant did finally reach the hospital, where he received treatment for a knife wound.
Appellant was subsequently arrested and placed in jail. While in jail, appellant wrote numerous letters to Weber and to the district attorney. At trial, the State introduced many pieces of correspondence which appellant had written and signed. In one of these letters 5 to the district attorney, appellant wrote that:
Mr. H__ [the decedent] never stabbed me and we never got into a fight. Mr. H__ had 4 or 5 hundred dolars (sic) on him and we were drinking so I decided to kill him and take his fucking money. When we got back to the room Mr. H__ did not leave because I took out my knife and opened it and started stabbing him an in the course of me stabbing him I accidentally got stabed (sic) in my arm. After he was dead and I robbed--I rolled him over took the money out of his front pocket and took his wallet. I told George Weber that if he ever said any thing I would kill him, too an we left. The car broke down on the side of the road I made George flag somebody down to take me to the hospital and he did. I through (sic) the knife in the ditch, kicked off my shoes and threw my wallet out. I don't know how much money there was but it was not much because G__ [the decedent] bought some jewlry (sic) for Kay at the fair but however much it was I gave it to George and told him to be cool and split, I would handle the rest.
The contents of this letter were corroborated by the testimony of Gonzales. According to her, appellant and the decedent were arguing about an incident that had occurred at the fair. Suddenly, appellant "picked up a knife and ... stabbed him [the decedent] in his shoulder." Gonzales then went into the bathroom and came back out, only to see both appellant and Weber stabbing the decedent, who was " After the decedent stopped moving, appellant "went to get his tickets--wallet out of his pockets."
Appellant argues that this testimony proves "that the only taking of property described by this witness occurred AFTER the conclusion of the alleged murder, and not as a part and parcel thereof." Appellant also argues, based upon other testimony from Gonzales, that there was no robbery.
On cross-examination, Gonzales admitted that in exchange for her testimony, she pled guilty to second degree robbery. She stated, however, that she had in fact committed no robbery. According to appellant, "[t]he only conclusion to be drawn is that despite the fact that [Gonzales] pled guilty to robbery, her trial testimony indicated that there was in fact no robbery." Also, appellant argues that Weber's testimony that the decedent started the altercation, that appellant and Weber were acting in self-defense, 6 and that there was no robbery, proves that the evidence was insufficient to support the conviction. In response, the State argues that the evidence was sufficient to show that appellant murdered the decedent in the course of committing a robbery because "[t]he mere fact that the wallet was not taken until after Weber and Appellant had finally succeeded in subduing the victim by stabbing him until he was dead does not mean that the killing was not in the course of committing a robbery."
To prove this offense, the State was required to show that appellant killed the decedent, and that prior to, or during the murder, appellant had the requisite intent to obtain or maintain control of the decedent's property. See Tex.Penal Code §§ 19.03(a)(2), 29.02, and 31.03. After reviewing the evidence in the light most favorable to the verdict, we conclude that appellant's arguments are without merit.
Concerning Gonzales' testimony, the fact that she pled guilty to a robbery that she claims she did not commit does not mean that no robbery occurred. At most, this testimony means only that she did not rob the decedent. It does not mean that appellant and Weber did not rob him.
Concerning Weber's testimony, which appellant's letter contradicts, the jurors were free to assign it as much or as little credibility as they desired. Moreover, appellant's letter contradicts his argument that the robbery was not "part and parcel of" the murder. In his letter, appellant specifically stated that he "decided to kill [the decedent] and take his fucking money."
Finally, even if the facts showed that appellant robbed the decedent's body after he had already died, that would not be dispositive. 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." Nelson v. State, 848 S.W.2d 126, 132 (Tex.Cr.App.1992), rehearing denied, January 20, 1993. Since the jury could rationally conclude from the evidence that appellant had formed the requisite intent, we overrule appellant's point of error eight.
Appellant's points of error four and five are directed at two instances where the trial court refused to grant appellant's challenges for cause of two veniremembers. In points of error four and five, respectively, appellant argues that Lionel Harrington and John Thomas should have been...
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