IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS

Transcription

1 The State Requests Oral Argument Only if Appellant Argues No CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS 5th Court of Appeals FILED: 05/29/ :00 Lisa Matz, Clerk DEMARIUS DWIGHT CUMMINGS, Appellant v. THE STATE OF TEXAS On appeal from Criminal District Court No. 7 of Dallas County, Texas Cause No. F Y STATE S BRIEF Counsel of Record: Craig Watkins Buford H. Robertson, Jr. Criminal District Attorney Assistant District Attorney Dallas County, Texas State Bar No Frank Crowley Courts Building 133 N. Riverfront Boulevard, LB-19 Dallas, Texas (214) /(214) Fax bobby.robertsonjr@dallascounty.org Attorneys for the State of Texas

2 TABLE OF CONTENTS TABLE OF AUTHORITIES...ii STATEMENT OF THE CASE...1 STATEMENT OF THE ISSUES...1 SUMMARY OF THE ARGUMENT...1 ARGUMENT...2 THE EVIDENCE IS SUFFICIENT TO SHOW THAT APPELLANT WAS A PARTY TO THE OFFENSE OF CAPITAL MURDER...2 PRAYER...8 CERTIFICATE OF SERVICE...8 i

3 TABLE OF AUTHORITIES Federal Cases Jackson v. Virginia, 443 U.S. 307 (1979)...2 Lockhart v. Nelson, 488 U.S. 33 (1988)...2 State Cases Hatley v. State, 206 S.W.3d 710 (Tex. App. Texarkana 2006, no pet)...4, 5, 7 Hernandez v. State, 198 S.W.3d 257 (Tex. App. San Antonio 2006, pet. ref d)...7 Johnson v. State, 967 S.W.2d 410 (Tex. Crim. App. 1998)...2 Jones v. State, 944 S.W.2d 642 (Tex. Crim. App. 1996)...3 Love v. State, 199 S.W.3d 447 (Tex. App. Houston [1 st Dist.] 2006, pet. ref d)..5, 6, 7 McCray v. State, 861 S.W.2d 405 (Tex. App. Dallas 1993, no pet.)...3 Michel v. State, 834 S.W.2d 64 (Tex. App. Dallas 1992, no pet.)...7 Sharp v. State, 707 S.W.2d 611 (Tex. Crim. App. 1986)...3 Taylor v. State, 106 S.W.3d 827 (Tex. App. Dallas 2003, no pet.)...2, 3 Thompson v. State, 697 S.W.2d 413 (Tex. Crim. App. 1985)...7 Whitmire v. State, 183 S.W.3d 522 (Tex. App. Houston [14 th Dist.] 2006, pet. ref d)...4 ii

4 Statutes TEX. PENAL CODE ANN. 7.02(b)...3, 4 Rules TEX. R. APP. P iii

5 TO THE HONORABLE COURT OF APPEALS: The State of Texas submits this brief in reply to the brief of Appellant, Demarius Dwight Cummings. STATEMENT OF THE CASE Appellant was charged by indictment with the offense of capital murder. (CR:5). Appellant entered a plea of not guilty to the charged offense and was tried before a jury. (CR:58). The jury found Appellant guilty and the trial court assessed his punishment at life imprisonment without the possibility of parole. (CR:57-58). Appellant filed a motion for new trial asserting that the verdict was contrary to the law and the evidence. (CR:63). The trial court overruled the motion. (CR:63). This appeal followed. STATEMENT OF THE ISSUE Whether the evidence presented is sufficient to prove that Appellant was a party to the offense of capital murder, pursuant to 7.02(b) of the Penal Code. SUMMARY OF THE ARGUMENT Appellant asserts that the evidence was insufficient to show that he intended to commit murder. Under 7.02(b) of the Penal Code, however, the State was not required to show that Appellant intended to commit murder. Rather, the State was required to show only that Appellant 1

6 conspired to commit aggravated robbery, that a murder was committed in furtherance of the unlawful purpose of the conspiracy, and that the murder should have been anticipated as a result of the carrying out of the conspiracy to commit aggravated robbery. Viewed in the light most favorable to the verdict, the evidence presented at Appellant s trial easily met that standard. ARGUMENT THE EVIDENCE IS SUFFICIENT TO SHOW THAT APPELLANT WAS A PARTY TO THE OFFENSE OF CAPITAL MURDER PERTINENT FACTS The State adopts by reference the Statement of Facts in Appellant s brief. TEX. R. APP. P APPLICABLE LAW Appellate review of legal sufficiency is limited to determining whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, (1979); Taylor v. State, 106 S.W.3d 827, 830 (Tex. App. Dallas 2003, no pet.). In reviewing the sufficiency of the evidence, this Court should consider all of the evidence, whether or not properly admitted. Lockhart v. Nelson, 488 U.S. 33, (1988); Johnson v. State, 967 S.W.2d 410, (Tex. Crim. App. 1998); Taylor, 106 2

7 S.W.2d at 830. The factfinder is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996); Taylor, 106 S.W.3d at 830. As such, the fact finder may choose to believe or disbelieve all or any part of any witness s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); McCray v. State, 861 S.W.2d 405, 407 (Tex. App. Dallas 1993, no pet.). ANALYSIS Appellant was convicted as a party to the offense of capital murder. Appellant asserts that the evidence is insufficient to show that Appellant had the intent to commit murder and, thus, the judgment should be reformed to show a conviction for the lesser-included offense of aggravated robbery. Appellant acknowledges that, pursuant to 7.02(b) of the Penal Code, the State was not required to show that he had the intent to commit murder. Section 7.02(b) of the Penal Code states as follows: If, in an attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy. 3

8 TEX. PENAL CODE ANN. 7.02(b). To prove that Appellant was a party to capital murder, the State was required to show merely that (1) Appellant conspired to commit the offense of aggravated robbery, (2) the offense of capital murder was committed in furtherance of the unlawful conspiracy, and (3) that the capital murder should have been anticipated as the result of the carrying out of the conspiracy to commit aggravated robbery. Id. Appellant does not contest the sufficiency of the evidence that he conspired to commit aggravated robbery, that a capital murder was committed by his co-conspirator, or that the capital murder was committed in furtherance of the unlawful conspiracy. Rather, Appellant contests only the sufficiency of the evidence that he should have anticipated that a capital murder would be committed. To make this showing, the State was required merely to present sufficient evidence that the capital murder was foreseeable, under the circumstances. Whitmire v. State, 183 S.W.3d 522, 526 (Tex. App. Houston [14 th Dist.] 2006, pet. ref d). A number of courts have concluded, on facts similar to those in the instant case, that the evidence was sufficient to convict the defendant as a party to the offense of capital murder, pursuant to 7.02(b). In Hatley v. State, 206 S.W.3d 710 (Tex. App. Texarkana 2006, no pet), the 4

9 defendant and co-conspirators decided to rob some nearby Hispanics. Id. at 716. The defendant and his co-conspirators went to the defendant s home, where they planned the robbery. Id. The defendant provided the gun that would be employed, but one of his co-conspirators actually wielded the gun during the robbery. Id. The defendant and his two co-conspirators each participated in the robbery; but after the first shot was fired, the defendant and one co-conspirator ran way. Id. The co-conspirator who wielded the gun fired another shot and then ran away. Id. The Texarkana Court of Appeals concluded that the foregoing evidence (especially the defendant s role in planning the robbery) was factually sufficient to convict the defendant as a party to capital murder. Id. at 717. In Love v. State, 199 S.W.3d 447 (Tex. App. Houston [1 st Dist.] 2006, pet. ref d), the defendant, a manager at a Whataburger in Houston, conspired with an associate to rob the restaurant. Id. at 449. The defendant told his co-conspirator that they should commit the robbery at around three or four o clock on a morning when he was working. Id. The defendant told his co-conspirator to climb through the drive-through window. Id. The defendant also told his co-conspirator that, if he was not there when they robbed the place, he should not believe anyone who claims to be unable to open the safe. Id. On the night of the robbery, 5

10 the defendant was supposed to be at work, but left before his shift was scheduled to end. 1 Id. at At approximately four o clock that morning, the defendant s co-conspirator arrived at the restaurant. Id. at 451. As the defendant advised, the co-conspirator climbed through the drive-through window, pointing a gun at the head of an employee and informing him it was a stickup. Id. The co-conspirator demanded the key to the safe, threatening to shoot the employee if he did not comply. Id. When the employee failed to produce the key, the co-conspirator shot him in the face and fled the scene. Id. The Houston Court of Appeals concluded that the foregoing evidence was legally and factually sufficient to show that the defendant was a party to capital murder, and specifically, to show that the defendant should have anticipated that murder, given that he knew his co-conspirator likely would be carrying a gun. Id. at 453. The evidence in the instant case shows that Appellant and his cousin, James Broadnax, conspired to rob someone in order to obtain money to go to Texarkana. Appellant and Broadnax obtained a pistol and then hunted for targets. After taking a train to Garland, Appellant and Broadnax identified Stephen Swann and Matthew Butler as potential 1 As a result, the defendant was not actually present at the time of the murder. 6

11 targets. During the robbery, Broadnax shot Stephen and Matthew multiple times. After Broadnax shot Stephen and Matthew, Appellant went through Stephen s pockets and took his wallet and car keys. Appellant drove Stephen s car to his aunt s house to get some clothes. Appellant and Broadnax cleaned out the car and changed its license plates, and Appellant pawned some of the items found in the car. The following morning, Appellant and Broadnax drove to Texarkana in Stephen s car. Considering the foregoing facts in the light most favorable to the verdict, it is plain that a rational juror could have concluded that Appellant should have anticipated that a murder would occur during the robbery. Appellant planned the robbery (along with Broadnax), knew that a gun would be used, and rifled through Stephen s pockets and stole his car after the killings. 2 Accordingly, the evidence is sufficient to show that Appellant was a party to the offense of capital murder. Hatley, 206 S.W.3d at 717; Love, 199 S.W.3d at 453; Hernandez v. State, 198 S.W.3d 257, (Tex. App. San Antonio 2006, pet. ref d) (concluding that 2 In determining whether a defendant participated in an offense as a party, the court may examine events before, during, and after the commission of the offense and may rely on any actions by the defendant that show an understanding and common design to commit the offense. Thompson v. State, 697 S.W.2d 413, 416 (Tex. Crim. App. 1985); Michel v. State, 834 S.W.2d 64, 67 (Tex. App. Dallas 1992, no pet.). 7

12 murder should have been anticipated because the defendant knew that force would be used). Appellant s sole point of error should be overruled. PRAYER The State prays that this Honorable Court will affirm the trial court s judgment. Respectfully submitted, Craig Watkins Buford H. Robertson, Jr. Criminal District Attorney Assistant District Attorney Dallas County, Texas State Bar No Frank Crowley Courts Building 133 N. Riverfront Boulevard, LB-19 Dallas, Texas (214) (214) Fax CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing brief was served on counsel for Appellant, Kathleen A. Walsh, Dallas County Public Defender s Office, 133 N. Riverfront Blvd., LB-2, Dallas, Texas 75207, via electronic mail on May 25, 2012, and via hand delivery on May 29, Buford H. Robertson, Jr. 8