Donald Nealey v. State

Opinion issued August 8, 2017

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-15-00999-CR
———————————
DONALD NEALEY, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 228th District Court
Harris County, Texas
Trial Court Case No. 1481930

MEMORANDUM OPINION

A jury found appellant, Donald Nealey, guilty of the offense of capital

murder.1 Because the State did not seek the death penalty, the trial court assessed

1
See TEX. PENAL CODE ANN. § 19.03(a)(2) (Vernon Supp. 2016).
his punishment at confinement for life without parole.2 The trial court further found

that appellant used a deadly weapon, namely, a firearm, in the commission of the

offense. In three issues, appellant contends that his conviction is “void,” as the

record does not affirmatively show that the visiting trial court judge took the

constitutionally-required oaths of office; the trial court erred in denying his motion

for an instructed verdict; the non-accomplice evidence is insufficient to connect him

to the offense; and the trial court erred in not instructing the jury on the

lesser-included offenses of murder and robbery.

We affirm.

Background

Lawrence Scott testified that on the evening of March 6, 2014, the

complainant, Stanly Kumbanattel, stopped by to visit him at his home at the Little

Nell Apartments in Houston. He noted that the complainant, who was a medical

student from Dallas, was in town for the weekend to celebrate his birthday with his

family. Shortly after the complainant left, Scott learned from a neighbor that there

had been a shooting outside his apartment building. Several days later, Scott learned

that it was the complainant who had been shot and killed.

Jerome Monroe testified that on the evening of March 6, 2014, while sweeping

his garage at the Little Nell Apartments, he saw the complainant running past his

2
See id. § 12.31(a) (Vernon Supp. 2016).

2
garage. “[A]bout 10 seconds later,” he saw three other men, wearing “dark colored”

“hoods,” chasing him. A few seconds later, he heard “gunfire,” “saw the light from

the gun,” and saw the complainant fall down. Afterwards, Monroe saw the men get

into the complainant’s car, a black Acura. The driver drove the car near the

complainant, where one of the men got out and shot the complainant again. The

shooter then got back into the car, and the driver drove away.

Shejuan Bumpers testified that on the evening of March 6, 2014, she was at

her home at the Little Nell Apartments, with her mother, Sheryl Mitchell; her sister;

and a couple of friends. After hearing gunshots, she looked out the window of her

second-story apartment and saw a man wearing khaki-colored pants and a blue

“hoodie” running to a black Acura. As the man ran past her, Bumpers saw his eyes.

She then ran outside and saw someone lying on the ground. The Acura returned

momentarily, then sped away. And Bumpers called for emergency assistance.

Mitchell testified that she and Bumpers were sitting down to dinner when she

heard a “pop, pop” sound coming from outside. She then heard, “pow, pow, pow,

pow, pow.” And she went to the balcony of the apartment and saw someone running

by wearing a hoodie. When Mitchell asked if he was “okay,” he looked away and

did not answer. She also saw someone lying on the ground. She and her other

daughter then went running downstairs, outside, and over to the complainant, where

several other people were beginning to gather. Someone yelled, “Here they come!”

3
A black car appeared, and everyone started running. After the driver drove past the

complainant, he drove away.

Houston Police Department (“HPD”) Officer D. Gwosdz testified that at

8:38 p.m. on March 6, 2014, he was dispatched to the Little Nell Apartments on the

West Sam Houston Parkway in Houston to investigate a shooting. There, he found

the complainant lying face up on the pavement, not breathing, and surrounded by

blood.

HPD Officer M. Perez testified that when he arrived, officers on the scene

directed him to Building 11. There, he found, located near the complainant, a white

glove and eight bullet casings that he identified as having been fired from a

9-millimeter firearm. They noted numerous bloody tire tracks through the scene.

He also noted that the complainant did not have a wallet or car keys on his person.

HPD Sergeant R. Bridges testified that at 6:00 a.m. on the day after the

shooting, March 7, 2014, while working the homicide division hold desk, he

received a telephone call from appellant. Appellant said that he had learned that an

acquaintance or friend of his had been killed and he realized that his identification

was in the friend’s car. He explained that he was out on bail, was afraid that he

might be connected to the death, and wanted to “clear the air.”

HPD Sergeant E. Cisneros testified that he, through his investigation, learned

that witnesses at the Little Nell Apartments had seen a four-door, black Acura

4
leaving the scene. Investigators had recovered a four-door, black Acura from a

House of Pies restaurant, located seven miles from the crime scene, that had been

robbed approximately one hour after the shooting. And HPD dispatchers had

received calls for emergency assistance at 8:17 p.m., from the apartments, and at

9:42 p.m., from the restaurant.

Sergeant Cisneros went to the HPD vehicle impound lot to examine the Acura

and learned that it was registered to the complainant. He accessed the complainant’s

driver’s license photograph and noted that it matched the images of the complainant

in the crime scene photographs. Cisneros found, on the driver’s side of the center

console of the Acura, a wallet containing a bank card and a State of Texas

identification card belonging to appellant and stating that he lived at Little Nell

Apartments. Cisneros also confirmed that the telephone call that Sergeant Bridges

had received the day after the murder was from appellant.

Sergeant Cisneros further testified about the surveillance videotapes and still

photographs, which the trial court admitted into evidence, from the robbery at the

House of Pies restaurant. He identified the complainant’s car being driven into the

restaurant parking lot and two black men getting out of the complainant’s car. The

men wore masks, partially hiding their faces, and hooded sweatshirts. The driver

dressed was in black, and the passenger in blue. Cisneros identified the man dressed

in black as appellant and the man dressed in blue as appellant’s co-defendant,

5
Marquis Davis. The videotapes show the men, each holding a firearm, entering the

House of Pies restaurant at 9:41 p.m., holding the workers and patrons at gunpoint,

and taking their money, wallets, and cellular telephones. Cisneros identified

appellant’s weapon as a semi-automatic firearm and Davis’s weapon as a revolver.

The videotapes and photographs show that, at times during the robbery, Davis’s

mask fell down and revealed most of his face. The men are also shown running

through the kitchen and out through the back door of the restaurant. HPD Officer

R. Gonzelez testified that officers subsequently arrested Davis in the attic of a nearby

residence.

Anthony Green testified that he was a patron at House of Pies restaurant on

the night of the robbery. He noted that the man in the black hoodie used “either a

9-millimeter or 10-millimeter” semi-automatic firearm. And he identified appellant

in court as one of the assailants.

HPD Investigator V. McLean testified that Bumpers identified the black

Acura recovered from the House of Pies restaurant as the car that she saw at the

Little Nell Apartments at the time of the shooting. And Bumpers identified Davis

from a photographic array as the man that she saw running through the apartments

after the shooting. McLean also interviewed Davis, and he identified appellant as

having been involved in the shooting of the complainant. Davis also admitted that

his car, a Mercury Grand Marquis, had been left at Little Nell Apartments. HPD

6
Officer A. Looney testified that, after the shooting, officers found a 1995 Mercury

Grand Marquis parked at the Little Nell Apartments, near Building 11.

C. Bassett, a Houston Forensic Science Center (“HFSC”) firearms examiner,

testified that officers recovered eight casings that had been fired from a 9-millimeter

firearm. He noted that, “usually whenever cartridge cases are on the ground,” as

here, “it’s from a semi-automatic.” Bassett explained that when a semi-automatic

weapon is fired, the cartridge casings are extracted and ejected from the firearm.

When a revolver is fired, however, the casings stay in the firearm and must be

manually removed.

M. Hines, an assistant medical examiner at the Harris County Institute of

Forensic Sciences, testified that the complainant suffered eleven gunshot wounds

from “8 bullets.” A bullet was fired into the complainant’s neck, which perforated

his jugular vein, carotid artery, and a portion of his vertebral column. He was also

shot in the left and right sides of his chest and in his abdomen. And Hines opined

that the complainant died from multiple gunshot wounds.

Marquis Davis testified that although the State had charged him as a

co-defendant for the offense of capital murder of the complainant, it, in exchange

for his guilty plea and agreement to testify against appellant, agreed to reduce the

charge to aggravated robbery and recommend that his punishment be assessed at

confinement for fifty years. Davis further explained that on March 6, 2014, he

7
picked up appellant from the Rainy Meadows Apartments and they met up with

some friends at a nearby convenience store. Appellant told Davis that “the police

took $2,000 from him” and he needed to meet up with a girlfriend to get some

money. He then got into the driver’s seat of Davis’s Mercury Grand Marquis and,

with Davis in the passenger seat, drove to the Little Nell Apartments. When they

arrived, Davis waited in the passenger seat while appellant went to get the money.

About five minutes later, however, appellant “came back around the corner”

with the complainant in a “headlock.” All Davis could hear were “curse words,”

and he got out of the car to see what had happened. Davis did not see “any facial

expressions” on appellant “to say that the man did something to him,” and the

complainant was “really quiet.” Appellant had a gun pointed at the complainant,

who was bleeding from his nose, said that he was home from college and kept asking,

“Please, can you please let me make it?” Davis urged appellant to leave the

complainant alone, but appellant refused. When Davis started to walk back to his

car, he heard a “gunshot go off.” Appellant shot the complainant in the stomach and,

while the complainant was lying on the ground, appellant stood over him and “kept

shooting him in his body,” “more than five times.” Although Davis “took off

running,” appellant drove up in the complainant’s car, and Davis entered it on the

passenger side.

8
 Davis asked appellant why he shot the complainant, and he replied that he

wanted to go and rob the House of Pies restaurant. Appellant drove to the restaurant

and then drove around the perimeter for several minutes. Davis said that he urged

appellant to leave because there were too many people inside. Appellant insisted

that it would be quick, so Davis agreed to participate. On the way to the restaurant,

appellant gave Davis a .38 caliber revolver.

Once inside the restaurant, Davis stood by the front door while appellant, who

was wearing plastic gloves on his hands and a black bandana over his face, jumped

the counter. Davis pointed his weapon at patrons, forcing them to gather in one

place. And he fired his revolver into the ceiling because they “kept talking like they

didn’t know the place was getting robbed.” As Davis and appellant loaded up their

wallets and cellular telephones, Davis saw through the window that a police patrol

car was approaching. He and appellant then ran out through the back door of the

restaurant, and Davis paused during his run to remove his shoes because they had

blood on them from the shooting at the Little Nell Apartments.

Judicial Qualification

In his first issue, appellant argues that his conviction is “void” because it was

rendered by a legally unqualified visiting trial court judge. He asserts that “nothing

in the record shows” that the visiting trial court judge3 took the

3
The Honorable Leslie Yates, retired Justice, Fourteenth Court of Appeals.
9
“constitutionally-required oath of office” before sitting as a visiting judge on his

case. The State argues that appellant’s conviction is not “void” because the visiting

judge, after being first elected in 1994 to the Fourteenth Court of Appeals, took the

constitutionally-required oaths of office4 and these “oaths remain effective and

continue to authorize her actions as a visiting judge assigned to a district court.” See

TEX. GOV’T CODE ANN. § 75.001 (Vernon 2013). Appellant responds that a retired

court of appeals justice who elects to continue serving as a visiting judge is

“constitutionally required to execute new oaths before acting as [a] visiting judge[].”

(Emphasis added.)

Although appellant did not raise this issue in the trial court, a “challenge to

[a] trial judge’s legal qualifications may . . . be raised for the first time on appeal.”

Wilson v. State, 977 S.W.2d 379, 380 n.3 (Tex. Crim. App. 1998); Murphy v. State,

95 S.W.3d 317, 320 (Tex. App.—Houston [1st Dist.] 2002, pet ref’d).

This Court, in Murphy, noted that “it has long been a ‘cardinal rule’ of

appellate procedure in Texas that we ‘must indulge every presumption in favor of

the regularity of the proceedings and documents’ in the trial court.” 95 S.W.3d at

320 (quoting McCloud v. State, 527 S.W.2d 885, 887 (Tex. Crim. App. 1975)). “The

presumption of regularity is a judicial construct that requires a reviewing court,

‘absent evidence of impropriety,’ to indulge every presumption in favor of the

4
See TEX. CONST. art. XVI, § 1(a) (oath of office), (b) (anti-bribery oath).
10
regularity of the trial court's judgment.” Id. (quoting Light v. State, 15 S.W.3d 104,

107 (Tex. Crim. App. 2000)). And we have “consistently upheld the ‘presumption

of regularity of the judgment and the proceedings absent a showing to the contrary.’”

Id. (quoting Dusenberry v. State, 915 S.W.2d 947, 949 (Tex. App.—Houston [1st

Dist.] 1996, pet. ref’d)). Thus, the burden is on an appellant to overcome the

presumption. Id.

Also in Murphy, this Court held that the presumption of regularity of trial

court judgments and proceedings applies to appellate challenges of visiting judges

for alleged failures to take their constitutionally-required oaths. Id. And an appellant

who makes such a challenge “must make a prima facie showing that the trial court

judge did not take the required oaths before we will consider the issue on the merits.”

Id. “[A] lack of filing of any required oath is not proof, in itself, of the failure of the

judge to take the constitutionally-required oaths.” Id. n.3.

Here, appellant simply alleges, without citing any evidence in the record, that

the visiting judge did not take the constitutionally-required oaths of an appointed

officer before presiding over the trial in his case. Cf. Prieto Bail Bonds v. State, 994

S.W.2d 316, 318 (Tex. App.—El Paso 1999, pet. ref’d) (setting out evidence of

judge’s history). This is insufficient to overcome the presumption of regularity. See

id. (bare allegation visiting judge did not take required oaths failed to overcome

presumption of regularity); see also Barnes v. State, No. 03-13-00434-CR, 2016 WL

11
3917126, at *7 (Tex. App.—Austin July 13, 2016, pet. ref’d) (mem. op., not

designated for publication) (lack of filing of any required oath not proof, in itself, of

retired, visiting judge’s failure to take constitutionally-required oaths); McMillan v.

State, No. 13-11-00123-CR, 2012 WL 3241830, at *3 (Tex. App.—Corpus Christi

Aug. 9, 2012, no pet.) (mem. op., not designated for publication) (allegation retired

judge failed to take required oath insufficient to overcome presumption of

regularity); Pease v. State, No. 03-06-00369-CR, 2007 WL 2274879, at *5 (Tex.

App.—Austin Aug. 9, 2007, no pet.) (mem. op., not designated for publication)

(“Without citing to any proof in the record, Pease merely alleges that Judge Bender

[who was retired and sitting by assignment] failed to take the required oaths. That

is not enough to overcome the presumption of regularity.”); Davis v. State, 227

S.W.3d 766, 768 (Tex. App.—Tyler 2005) (no evidence of county attorney’s failure

to subscribe to constitutionally-mandated oath of office and anti-bribery oath), aff’d,

227 S.W.3d 733 (Tex. Crim. App. 2007); Simpson v. State, No. 05-02-01203-CR,

2004 WL 1232832, at *3 (Tex. App.—Dallas June 4, 2004, no pet.) (not designated

for publication) (defendant did not meet his burden to overcome presumption trial

judge took constitutionally-required oaths).

In support of his argument that he “has no burden to make a prima facie

showing” that the visiting judge did not take the constitutionally-required oaths

because, without a record affirmatively showing that she “took an oath of office,”

12
his conviction is simply “void,” appellant relies on Herrod v. State, 650 S.W.2d 814

(Tex. Crim. App. 1983).

In Herrod, the Texas Court of Criminal Appeals examined the statutory

“authority of a retired district judge to act in the [c]ounty [c]riminal [c]ourt.” Id. at

815–17. The court observed that the statute “made clear that the regular judge must

be absent, disabled, or disqualified, before a retired judge may be appointed.” Id. at

817 (applying former TEX. REV. CIV. STATS. art. 1970-31.30 sec. 1(a) (repealed)).

Further, the statute expressly required that: “A retired judge appointed to sit for a

regular judge under the provisions of this Act shall execute the bond and take the

oath of office which is required by law for the regular judge for whom he is sitting.”

Id. at 816 (quoting former TEX. REV. CIV. STATS. art. 1970-31.30 sec. 2 (repealed))

(emphasis added). There, because the appointment of the retired district judge was

predicated on statutory requisites that were not met, the appointment lacked statutory

authorization. Id. at 818–19. And the court reversed the defendant’s conviction “for

the failure of the record to show by what authority the retired district judge presided.”

Id. at 815.

Here, appellant does not direct us to any similar statutory requisites in the

provisions of the Texas Government Code5 governing the assignment of former and

retired appellate court justices to sit as visiting judges in district courts. Further,

5
See TEX. GOV’T CODE ANN. §§ 74.055, 75.002(b), 75.003 (Vernon 2013).

13
appellant cites “no constitutional or statutory authority requiring [that] a visiting

judge’s judicial oath[s] . . . be included within the record of each and every trial over

which the judge presides.” See Connaly v. State, No. 2-08-264-CR, 2009 WL

1650028, at *1 (Tex. App.—Fort Worth June 11, 2009, no pet.) (mem. op., not

designated for publication).

Nothing in the record indicates that the visiting judge did not take the

constitutionally-required oaths.6 The record, therefore, does not support appellant’s

complaint that the visiting judge could not lawfully sit as the presiding judge over

his trial. See Connaly, 2009 WL 1650028, at *1; see also Murphy, 95 S.W.3d at 320

(presumption of regularity in proceedings absent contrary evidence).

We overrule appellant’s first issue.

Accomplice-Witness Testimony

In his second issue, appellant argues that the trial court erred in denying his

motion for an instructed verdict because the State failed to corroborate the testimony

6
Moreover, as noted by the Austin Court of Appeals in Connaly v. State, appellant
“could easily have sustained his burden by objecting to the trial judge and making
sufficient record at trial or by filing a motion for new trial and making the necessary
record at that time.” No. 2-08-264-CR, 2009 WL 1650028, at *1 (Tex. App.—
Austin June 11, 2009, no pet.) (mem. op., not designated for publication). As the
record stands, however, “there is no evidence that the trial judge did not take the
necessary oaths and was not properly assigned to try the case now before this court.”
Id.

14
of Davis, an accomplice-witness. He concedes that “[s]ome of the other evidence

corroborates” that he stole the complainant’s car. He asserts, however, that “[n]one

of the other evidence connected [him]” with the shooting of the complainant.

In regard to accomplice-witness testimony, the Texas Code of Criminal

Procedure provides:

A conviction cannot be had upon the testimony of an accomplice unless
corroborated by other evidence tending to connect the defendant with
the offense committed; and the corroboration is not sufficient if it
merely shows the commission of the offense.

TEX. CODE CRIM. PROC. ANN. art. 38.14 (Vernon 2005).

In reviewing the sufficiency of the corroborating evidence, we exclude the

accomplice testimony from our consideration and determine whether there is any

independent evidence that tends to connect the defendant with the commission of

the offense. Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008);

Hernandez v. State, 454 S.W.3d 643, 647 (Tex. App.—Houston [1st Dist.] 2014,

pet. ref’d). Unlike legal sufficiency, the accomplice-witness rule is not derived from

federal or state constitutional principles. See Druery v. State, 225 S.W.3d 491, 498

(Tex. Crim. App. 2007). Thus, the standard of review for sufficiency of

corroborating evidence is “tendency to connect” rather than rational sufficiency. See

Cathey v. State, 992 S.W.2d 460, 462–63 (Tex. Crim. App. 1999); Davis v. State,

No. 01-13-00947-CR, 2015 WL 5626592, at *4 (Tex. App.—Houston [1st Dist.]

Sept. 24, 2015, no pet.).
15
 We view the corroborating evidence in the light most favorable to the jury’s

verdict. Brown v. State, 270 S.W.3d 564, 567 (Tex. Crim. App. 2008). If there are

two views of the evidence, one tending to connect the accused to the offense and the

other not, we defer to the jury’s view. Smith v. State, 332 S.W.3d 425, 442 (Tex.

Crim. App. 2011). “[I]t is not appropriate for appellate courts to independently

construe the non-accomplice evidence.” Id. It is not necessary that corroborating

evidence directly connect a defendant to an offense or be sufficient by itself to

establish guilt. Cathey, 992 S.W.2d at 462. The corroborating evidence may be

direct or circumstantial. Smith, 332 S.W.3d at 442. The evidence must simply link

the accused in some way to the commission of the offense and show that rational

jurors could conclude that the evidence sufficiently tended to connect the accused to

the offense. Simmons v. State, 282 S.W .3d 504, 508 (Tex. Crim. App. 2009).

A person commits capital murder if he intentionally or knowingly causes the

death of an individual in the course of committing or attempting to commit a robbery.

TEX. PENAL CODE § 19.03(a)(2) (Vernon Supp. 2016). The trial court instructed the

jury that it could convict appellant pursuant to the law of parties, under which, “[a]

person is criminally responsible as a party to an offense if the offense is committed

by his own conduct, by the conduct of another for which he is criminally responsible,

or by both.” Id. § 7.01(a). A person is “criminally responsible” for an offense

committed by the conduct of another if, acting with intent to promote or assist the

16
commission of the offense, he solicits, encourages, directs, aids, or attempts to aid

the other person to commit the offense. Id. § 7.02(a)(2).

Here, excluding the testimony of Davis from consideration, the other evidence

shows that two men, wearing “dark colored” “hoods,” chased and shot the

complainant at the Little Nell Apartments. See Malone, 253 S.W.3d at 257. And

Bumpers identified Davis as wearing a blue hoodie. Immediately after the

complainant fell down, the men got into the complainant’s black Acura. After

stopping to shoot the complainant again, the men drove away.

Approximately one hour after the shooting, two men robbed a House of Pies

restaurant, located seven miles from the Little Nell Apartments. The complainant’s

car was driven into the restaurant parking lot; a man dressed in a black hoodie exited

the driver’s side of the car; and he and a man wearing a blue hoodie entered the

restaurant and committed the robbery. During the robbery, the mask on the man in

blue fell, exposing his facial features on the videotapes and photographs admitted

into evidence. Also, the upper portion of the face of the man in black is revealed.

The jury was free to compare these images to appellant’s and Davis’s appearances

at trial and conclude that they were the robbers at the House of Pies restaurant. See

Johnson v. State, 354 S.W.3d 491, 494 (Tex. App.—San Antonio 2011, pet. ref’d)

(surveillance photographs sufficient independent evidence tending to connect

defendant to robbery); see also Simmons v. State, 282 S.W.3d 504, 509 (Tex. Crim.

17
App. 2009) (issue “is not how an appellate court would independently assess the

non-accomplice evidence but whether a rational [jury] could conclude that the

non-accomplice evidence ‘tends to connect’ [the] appellant to the offense”).

Further, Green identified appellant in court as one of the robbers at the House

of Pies restaurant. The testimony of a single eyewitness can be sufficient to support

a conviction. See Bradley v. State, 359 S.W.3d 912, 917 (Tex. App.—Houston [14th

Dist.] 2012, pet. ref’d).

Law enforcement officers found next to the complainant eight shell casings

that had been fired from the same 9-millimeter firearm. Hines, the medical

examiner, testified that the complainant, who suffered eleven wounds from “8

bullets,” died from them. And Green testified that the man in the black hoodie used

“either a 9-millimeter or 10-millimeter” semi-automatic firearm. Proof that connects

an accused to a weapon used in an offense is proper corroborative evidence,

including evidence that a defendant had a gun which was merely similar to the

murder weapon. Cockrum v. State, 758 S.W.2d 577, 582 (Tex. Crim. App. 1988).

A white glove was also found near the complainant, and the photographs taken at

the robbery at the House of Pies restaurant show the man in black wearing a single

white glove.

Bumpers identified the complainant’s black Acura recovered from the House

of Pies restaurant as the car that she saw at the Little Nell Apartments at the time of

18
the shooting. And, located on the driver’s side of the center console of the Acura,

was a wallet, containing a bank card and a State of Texas identification card

belonging to appellant and stating that he lived at the Little Nell Apartments. See

Smith, 332 S.W.3d at 443 (“[P]roof that the accused was at or near the scene of the

crime at or about the time of its commission, when coupled with other suspicious

circumstances, may tend to connect the accused to the crime so as to furnish

sufficient corroboration to support a conviction.” (internal quotations omitted)).

Further, officers found Davis’s 1995 Mercury Grand Marquis parked at the Little

Nell Apartments, near Building 11.

Eliminating the accomplice testimony from consideration, we conclude that

the combined weight of the non-accomplice evidence, viewed in the light most

favorable to the jury’s verdict, sufficiently tends to connect appellant to the offense

of capital murder, i.e., the murder of the complainant in the course of robbing him

of his car. See Simmons, 282 S.W .3d at 508; Malone, 253 S.W.3d at 257.

Accordingly, we overrule appellant’s second issue.

Lesser-Included Offense

In his third issue, appellant argues that the trial court erred in denying his

request for a jury instruction on the lesser-included offenses of murder and robbery

because they are lesser-included offenses of capital murder, evidence existed that

19
would have permitted the jury to rationally find that he committed either murder or

robbery, but not both, and, thus, he did not commit capital murder.

We review a trial court’s decision not to submit a lesser-included offense

instruction for an abuse of discretion. Jackson v. State, 160 S.W.3d 568, 574 (Tex.

Crim. App. 2005); Threadgill v. State, 146 S.W.3d 654, 665–66 (Tex. Crim. App.

2004). And courts use a two-step analysis to determine whether a defendant is

entitled to a lesser-included offense instruction. Hall v. State, 225 S.W.3d 524, 528,

535–36 (Tex. Crim. App. 2007); Rousseau v. State, 855 S.W.2d 666, 672–73 (Tex.

Crim. App. 1993).

First, we determine whether the requested offense is a lesser-included offense

by comparing the elements of the two offenses. Hall, 225 S.W.3d at 535–36; Young

v. State, 428 S.W.3d 172, 175–76 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d).

Second, we determine whether some evidence exists in the record that would permit

a rational jury to find that the defendant is guilty only of the lesser offense, if he is

guilty at all. Hall, 225 S.W.3d at 536; Salinas v. State, 163 S.W.3d 734, 741 (Tex.

Crim. App. 2005); Rousseau, 855 S.W.2d at 672–73; Young, 428 S.W.3d at 176.

There must be some evidence from which a rational jury could acquit the defendant

of the greater offense, while convicting him of the lesser-included offense. Moore

v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998). We review all evidence presented

at trial to make this determination. Rousseau, 855 S.W.2d at 673. And we may not

20
consider whether the evidence is credible, controverted, or in conflict with other

evidence. Moore, 969 S.W.2d at 8. Anything more than a scintilla of evidence

entitles a defendant to an instruction on the lesser-included offense. Hall, 225

S.W.3d at 536.

Because the State concedes that murder and robbery are lesser-included

offenses of capital murder, we need only determine whether the evidence would

allow a rational jury to find that appellant was guilty only of the lesser offense of

either murder or robbery. See TEX. CODE CRIM. PROC. ANN. art. 37.09(1) (Vernon

2006); compare TEX. PENAL CODE ANN. § 19.03 (Vernon Supp. 2016), with

§§ 19.02, 29.02 (Vernon 2011).

Appellant argues that the jury could have believed that he committed the

offense of robbery, but not murder, because Bumpers saw a man, whom she

“tentatively identified as Davis,” running from the complainant’s body to the black

Acura, which was being driven by another person. He asserts that “[t]hese facts

could lead a jury to believe that [Davis] shot the complainant and then ran from his

body.” And “although [appellant] may have robbed [the complainant] of his black

Acura, [he] did not murder him.”

Appellant further argues that there is some evidence that he committed the

offense of murder, but not robbery because Monroe testified that he saw three men

chasing the complainant and at least one of the three men then shot him. Monroe

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noted that he saw a black Acura pull up to the complainant, a man exit the car, and

shoot the complainant again. He asserts that although this testimony “constitutes at

least some evidence that [he] may have been one of the three men who chased and

shot” the complainant, it “also constitutes some evidence that [he] may not have

been involved in robbing [the complainant] of his car.”

Here, the trial court, in its charge instructed the jury on the law of parties,

authorizing a conviction if the jury found that appellant was a party to the offense.

“When a legal theory of liability—such as law of the parties—is contained in the

abstract portion of the jury charge and supported by sufficient evidence, that theory

should be taken into account for the purpose of determining whether submission of

a lesser-included offense instruction was appropriate.” See Yzaguirre v. State, 394

S.W.3d 526, 531 (Tex. Crim. App. 2013); Young, 428 S.W.3d at 177.

Appellant does not argue on appeal that the State failed to present sufficient

evidence to support his conviction under the law of parties. See Young, 428 S.W.3d

at 177. As discussed in detail above, the evidence shows that the complainant was

murdered while being robbed of his car. Even if the jury believed that it was Davis,

and not appellant, who had shot and killed the complainant, the evidence, as

appellant notes, shows that appellant assisted in chasing the complainant until he

was gunned down. He then either drove or entered, i.e., stole, the complainant’s car.

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 We conclude that there is no evidence that appellant is guilty, if at all, only of

the offense of murder or of robbery. See Hall, 225 S.W.3d at 536; Salinas, 163

S.W.3d at 741; Rousseau, 855 S.W.2d at 672–73; Vargas v. State, No.

01-03-00870-CR, 2005 WL 729460, at *10 (Tex. App.—Houston [1st Dist.] Mar.

31, 2005, pet. ref’d) (mem. op., not designated for publication) (affirming denial of

lesser-included-offense instruction for murder and robbery in capital murder case

because “no rational trier of fact could conclude that [the defendant] was guilty of

murder, robbery, or aggravated robbery without finding him guilty of capital

murder”).

Accordingly, we hold that the trial court did not err in denying appellant’s

request for a jury instruction on the lesser-included offenses of murder and robbery.

We overrule appellant’s third issue.

Conclusion

We affirm the judgment of the trial court.

Terry Jennings
Justice

Panel consists of Chief Justice Radack and Justices Jennings and Bland.

Do not publish. TEX. R. APP. P. 47.2(b).

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