Opinion issued November 7, 2019




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-18-00559-CR
                           ———————————
              ANTHONY JAMAL CUNNINGHAM Appellant
                                       V.
                     THE STATE OF TEXAS, Appellee


                  On Appeal from the 207th District Court
                           Comal County, Texas1
                     Trial Court Case No. CR2016-899


                                 OPINION

     A jury found Anthony Jamal Cunningham guilty of the capital murder of

Christopher Lowe.2 The trial court sentenced Cunningham to life in prison as

1
     The Texas Supreme Court transferred this appeal from the Court of Appeals for
     the Third District of Texas. See TEX. GOV’T CODE § 73.001 (authorizing transfer
     of cases between courts of appeals).
statutorily required.3 In one issue, Cunningham contends that the evidence was

insufficient to support the judgment of conviction.

      We affirm.

                                    Background

      On the night of August 24, 2016, Zoie B.; her mother, Denise; and Zoie’s

friend, Sunee S., went to a few bars in New Braunfels, Texas. After leaving the last

bar, the hood of Zoie’s truck flew open, and they could not close it. Sunee called

her friend, Luis DeLeon, to come help with the hood.

      Cunningham was DeLeon’s friend, and he went with DeLeon to help with

Zoie’s truck. After some effort, they realized that they did not have the proper tools

to fix the hood.

      Zoie’s truck was drivable, and the group convinced her to take it to a storage

facility where DeLeon rented a storage unit and kept his tools. DeLeon had

constructed a makeshift apartment in the storage unit and was living there. As they


2
      See TEX. PENAL CODE § 19.03(a)(2).
3
      Appellant was 16 years old at the time of the offense. The juvenile court of Comal
      County waived jurisdiction and ordered Cunningham transferred to criminal
      district court. Because he was a juvenile at the time the offense was committed,
      Cunningham was given the mandatory sentence of life in prison. See TEX. PENAL
      CODE § 12.31(a)(1)–(2) (providing that adult offenders convicted of capital
      offenses receive sentence of life without parole, while juvenile offenders receive
      life with possibility of parole); see also TEX. GOV’T CODE § 508.145(b) (providing
      that offender who was juvenile when offense committed and sentenced to life in
      prison is eligible for release on parole after 40 years).

                                           2
drove to the storage facility, DeLeon and Cunningham rode in DeLeon’s car. Zoie,

Denise, and Sunee followed in Zoie’s truck.

       Meanwhile, Christopher Lowe had jumped the fence to the storage facility

and had entered DeLeon’s storage unit to retrieve property, including a cell phone,

that had been taken from him. Lowe was still in DeLeon’s storage unit as

DeLeon’s car and Zoie’s truck neared the storage facility. When they were about

half a mile from the storage facility, Sunee answered a call on Zoie’s phone. After

ending the call, Sunee immediately called DeLeon. When he answered, Sunee

screamed into the phone: “Lowe. Lowe. Get Lowe in the storage unit.”

       At the entrance to the storage facility, DeLeon got out of his car, retrieved a

baseball bat from the trunk, and got back into the car with the bat. DeLeon then

quickly drove away from the entrance into the storage complex. Sunee urged Zoie

to follow DeLeon, yelling, “Go, go, go. Get ‘em. Get ‘em. Go, go, go.” Zoie

followed DeLeon and within a minute arrived at the storage unit.

       When Zoie pulled up, the overhead door to the storage unit was raised.

Inside the storage unit, Lowe was on a bed in the corner. DeLeon was repeatedly

striking Lowe with the baseball bat while Cunningham repeatedly punched Lowe

with his fists.

       Zoie and Sunee got out of the truck, and Sunee ran into the storage unit. She

jumped on the bed and started punching Lowe. Zoie saw DeLeon continually strike


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Lowe in the head with the baseball bat, and Cunningham repeatedly punched Lowe

in the head with his fists. Sunee was standing on the bed over Lowe punching him

from above wherever she could land a blow. Lowe was screaming for help and

kept a defensive posture with his arms up to protect his head and his legs tucked

against his body.

      Disturbed by what she was witnessing, Zoie decided to leave with Denise.

However, when she reached the front of the storage facility, the gate would not

open without a passcode, which she did not know. Zoie then drove back to the

storage unit.

      The door to the storage unit was closed, but after about 30 seconds, the door

opened. Inside, Zoie saw Lowe standing up from the bed. DeLeon was striking

Lowe in his ribs with the bat telling him, “go, go, go,” while Cunningham punched

Lowe in the side. Zoie and Denise saw that Lowe was bleeding. DeLeon and

Cunningham were yelling at Lowe, ordering him to walk out of the storage unit.

Lowe was responding that he could not see. Lowe was unsteady on his feet,

appeared disorientated, and had difficulty walking. Cunningham and DeLeon

began pushing Lowe out of the storage unit. DeLeon left and moved his car closer

to the unit while Cunningham pushed Lowe toward the car.

      DeLeon opened the rear passenger door of his car, and Cunningham forced

Lowe into the backseat. Lowe tried to get out of the vehicle; half of his body was


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inside the car and half was outside. Cunningham slammed the car door into Lowe.

Cunningham then pushed Lowe all the way into the car and slammed the door shut.

At trial, Zoie testified that she knew Lowe was still alive when Cunningham forced

him into the car because she could see Lowe moving and heard Lowe making

“pain sounds.”

      Cunningham got into the car with DeLeon and they left the storage facility

with Lowe. Zoie and Denise followed the car out of the storage facility but later

returned. Zoie was worried that DeLeon and Cunningham might return and harm

Sunee. Zoie found Sunee cleaning the bloodstains from the storage unit.

      A couple of hours after DeLeon and Cunningham left, they returned to the

storage unit without Lowe. DeLeon told Sunee and Zoie that Cunningham had

stabbed Lowe “in the forehead” and “in the jugular.” Zoie saw Cunningham

laughing when DeLeon said that Cunningham had stabbed Lowe in the forehead.

      Lowe’s body was discovered later that day in a historic New Braunfels’s

cemetery. The following day, Zoie and Denise went to the police to report what

they had witnessed at the storage facility relating to Lowe’s death.

      DeLeon, Cunningham, and Sunee were taken into custody. The police noted

that DeLeon and Cunningham each had cuts on their hands known as “slip

injuries.” At trial, slip injuries were described as injuries typically seen when one




                                          5
person stabs another and loses his grip on the knife’s handle and his hand runs

across the knife blade.

      Cunningham was cooperative and provided authorities with information

leading to the recovery of two knives suspected as being used in Lowe’s murder.

DeLeon’s car was also recovered. The inside of the car had been cleaned, but

blood was found underneath the seats, the carpets and the interior panels of the

vehicle. Blood was also found on the bumper and the underside of the car.

      The police obtained a search warrant for Cunningham’s cell phone. The

phone contained an SD card, which had previously been used in Lowe’s cell

phone. Cunningham’s cell phone also had messages from the day after Lowe’s

body was discovered. In one message, he indicated to the person he was

corresponding with that he could not hang out because he was hiding at his

brother’s home. The message ended with “#MURDERGAME.” When the person

he was messaging with asked him what he meant, Cunningham responded,

“MURDER GANG.” Soon after that message, Cunningham posted a news story on

Facebook regarding the discovery of Lowe’s body. Later in the messages,

Cunningham stated, “I’m getting charged with murder.”

      Cunningham was indicted for capital murder. The indictment alleged, in

relevant part, that Cunningham had intentionally caused Lowe’s death by striking

him with his “hand or hands,” by striking Lowe with a bat, by stabbing Lowe with


                                        6
“a knife or knives,” by striking Lowe with a motor vehicle, and by running over

him with a motor vehicle. The indictment also alleged that Cunningham

“committed the murder in the course of committing or attempting to commit

kidnapping.”

      At trial, Zoie and Denise described what they had witnessed in the storage

facility. Zoie provided the most detailed testimony. She testified about witnessing

the beating of Lowe, about seeing and hearing indications that Lowe was still alive

when he was forced into DeLeon’s car, and about hearing DeLeon say that

Cunningham had stabbed Lowe in the forehead and “in the jugular.” Denise

testified that she saw Lowe being beaten, Cunningham lead Lowe to DeLeon’s car,

and Cunningham and DeLeon take off with Lowe in the vehicle.

      In addition to the investigating police officers, the State called Dr. S. Dana,

the forensic pathologist who performed Lowe’s autopsy. Dr. Dana testified that the

autopsy showed that Lowe had “several very large lacerations to his scalp” and that

his skull was fractured. She stated that Lowe had received a minimum of nine

blows to the head. Dr. Dana also testified that Lowe had about 20 stabs wounds.

She agreed that the stab wounds were consistent with two different knife blades

being used to inflict the injuries.

      Dr. Dana stated that Lowe’s body had abrasions that she referred to as “road

rash.” She stated that this indicated that Lowe had been dragged against a hard


                                         7
surface, such as a road. But these injuries appeared to have been inflicted post-

mortem.

      Regarding what caused Lowe’s death, Dr. Dana testified that Lowe

sustained two injuries—blunt force trauma to his head and a stab wound to his

back—each of which were potentially fatal. However, she concluded that Lowe

“died as a result of blunt force head injury and multiple stab wounds.”

      After the State rested, Cunningham moved for directed verdict. Cunningham

claimed that the State did not show Lowe was murdered in the course of being

kidnapped. He asserted that there was “absolutely no evidence . . . that kidnapping

. . . was a consideration either before the killing or during the killing.” The State

responded that the evidence showed “Lowe’s death was caused by multiple stab

wounds to his body, taken together in tandem, after his freedom of movement was

restrained and the underlying felony for kidnapping was committed.”

      The trial court denied the motion for directed verdict, stating,

      Inasmuch as it would appear that there’s a fact issue as to which, if
      any, of these inflicted wounds was the actual cause of death, and that
      some of those may have occurred after the placement of the deceased
      in the vehicle and the restraint of him in the vehicle, I’m going to
      deny the motion.

      The court’s charge authorized the jury to find Cunningham guilty as a

primary actor, under the law of parties, or as a conspirator. The jury found

Cunningham guilty of capital murder as charged in the indictment. The trial court


                                          8
sentenced Cunningham to life in prison as statutorily required. This appeal

followed.

                           Sufficiency of the Evidence

      In one issue, Cunningham contends that the evidence was insufficient to

prove that he committed capital murder because it did not show that he committed

murder in the course of committing kidnapping.

A.    Standard of Review

      We review the sufficiency of the evidence establishing the elements of a

criminal offense for which the State has the burden of proof under the standard

enunciated in Jackson v. Virginia, 443 U.S. 307, 319 (1979). See Winfrey v. State,

393 S.W.3d 763, 768 (Tex. Crim. App. 2013). Pursuant to the Jackson standard,

evidence is insufficient to support a conviction if, considering all the record

evidence in the light most favorable to the verdict, no rational fact finder could

have found that each essential element of the charged offense was proven beyond a

reasonable doubt. See Jackson, 443 U.S. at 319; In re Winship, 397 U.S. 358, 361

(1970); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v.

State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We can hold evidence to be

insufficient under the Jackson standard in two circumstances: (1) the record

contains no evidence, or merely a “modicum” of evidence, probative of an element

of the offense, or (2) the evidence conclusively establishes a reasonable doubt. See


                                         9
Jackson, 443 U.S. at 314, 318 & n.11, 320; see also Laster, 275 S.W.3d at 518;

Williams, 235 S.W.3d at 750.

      The sufficiency-of-the-evidence standard gives full play to the responsibility

of the factfinder to resolve conflicts in the testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at

319; see Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). An

appellate court presumes that the factfinder resolved any conflicts in the evidence

in favor of the verdict and defers to that resolution, provided that the resolution is

rational. See Jackson, 443 U.S. at 326.

      In our review of the record, direct and circumstantial evidence are treated

equally; circumstantial evidence is as probative as direct evidence in establishing

the guilt of an actor, and circumstantial evidence alone can be sufficient to

establish guilt. Clayton, 235 S.W.3d at 778. Finally, “[e]ach fact need not point

directly and independently to the guilt of the appellant, as long as the cumulative

force of all the incriminating circumstances is sufficient to support the conviction.”

Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

B.    Elements of the Offense

      Penal Code Section 19.03(a)(2) provides that a person commits capital

murder if he commits murder, as defined under Section 19.02(b)(1) (intentionally

or knowingly causing the death of an individual), and the person intentionally


                                          10
commits the murder in the course of committing or attempting to commit a

specified offense, in this case, kidnapping. TEX. PENAL CODE § 19.03(a)(2); see id.

§ 19.02(b)(1). As used in Section 19.03(a)(2), “in the course of committing” is

defined as conduct occurring during an attempt to commit, during the commission

of, or in immediate flight from, the forbidden behavior. Griffin v. State, 491

S.W.3d 771, 774–75 (Tex. Crim. App. 2016).

      Penal Code Section 20.03(a) provides that a person commits kidnapping if

he intentionally or knowingly abducts another person. TEX. PENAL CODE

§ 20.03(a). “‘Abduct’ means to restrain a person with intent to prevent his

liberation by: (A) secreting or holding him in a place where he is not likely to be

found; or (B) using or threatening to use deadly force.” Id. § 20.01(2). “‘Restrain’

means to restrict a person’s movements without consent, so as to interfere

substantially with the person’s liberty, by moving the person from one place to

another or by confining the person.” Id. § 20.01(1). A kidnapping becomes a

completed offense when (1) a restraint is accomplished, and (2) there is evidence

that the actor had the specific intent to prevent liberation by secretion or the use or

threatened use of deadly force. Santellan v. State, 939 S.W.2d 155, 162 (Tex.

Crim. App. 1997). The State proves attempted kidnapping when it shows that the

perpetrator committed an act beyond mere preparation with intent to secrete or




                                          11
hold the victim. See Laster, 275 S.W.3d at 522; see also TEX. PENAL CODE

§ 15.01(a) (defining criminal attempt).

C.    Analysis

      To recap, the evidence showed that Lowe had entered DeLeon’s storage unit

while DeLeon was helping Zoie with her truck. After discovering Lowe in the

storage unit, DeLeon and Cunningham repeatedly hit Lowe in the head. DeLeon

used a baseball bat, and Cunningham used his fists.

      Zoie testified that she and Denise attempted to leave the storage facility.

When they could not exit through the gate, they returned to the storage unit. Zoie

saw DeLeon and Cunningham hitting Lowe on his sides and screaming at him to

walk out of the storage unit. Lowe was on his feet, yelling that he could not see. He

was bleeding, and Zoie testified that he seemed “discombobulated” and “mentally

messed up.”

      After DeLeon moved his car closer to the unit’s entrance, Cunningham

pushed Lowe out of the storage unit to the car. Zoie testified that, after

Cunningham sat him in the car, Lowe tried to get out of the vehicle. Lowe’s body

was half in and half out of the car. Cunningham slammed the car door on Lowe’s

body and then pushed Lowe back into the car. Zoie said that she heard Lowe

moving in the car, and she heard him make noises that sounded like he was in pain.

DeLeon and Cunningham left the storage facility with Lowe.


                                          12
       Approximately two hours later, Cunningham and DeLeon returned to the

storage unit without Lowe. DeLeon told Zoie and Sunee that Cunningham had

stabbed Cunningham in the forehead and “in the jugular.”

       Later in the day, Lowe’s body was found in a local cemetery. Dr. Dana, the

forensic pathologist who performed Lowe’s autopsy, testified that Lowe had been

struck in the head at least nine times. She stated that Lowe had a skull fracture that

was potentially fatal. Dr. Dana also testified that Lowe had been stabbed at least

20 times. She indicated that the stab wounds were consistent with two knives being

used. Dr. Dana stated that one of the stab wounds, in Lowe’s back, had also been

potentially fatal.

       Dr. Dana testified that she had determined that Lowe’s cause of death was

blunt force head trauma and multiple stab wounds. She clarified that, although the

blunt-force head trauma and one of the stab wounds were each potentially fatal,

she had “made the cause of death as head trauma and stab wounds” because “the

combination of 20 stab wounds can cause significant bleeding.”

       On appeal, Cunningham does not dispute that the evidence, showing that

Lowe was forcibly placed in DeLeon’s car against his will and driven away from

the storage facility, was sufficient to prove the offense of kidnapping or attempted

kidnapping. See TEX. PENAL CODE § 20.03(a). Nor does he dispute that the

evidence was sufficient to show the offense of murder. See id. § 19.02(b)(1).


                                         13
Instead, Cunningham asserts that the evidence was insufficient to show that Lowe

was murdered in the course of the kidnapping as required to prove capital murder

in this case. See id.

       To show that Lowe was murdered in the course of being kidnapped, the

State had to prove that Cunningham (or DeLeon) developed the requisite intent for

kidnapping at or before the time of Lowe’s death. See Santellan, 939 S.W.2d at

162. Cunningham correctly observes that a felony committed as an afterthought

and unrelated to the murder is not sufficient to prove capital murder under Section

19.03(a)(2). Griffin, 491 S.W.3d at 776 (citing Herrin v. State, 125 S.W.3d 436,

440–41 (Tex. Crim. App. 2002) (holding that evidence of capital murder was

insufficient when no evidence showed that appellant intended to kidnap victim

before or during intentional murder)).

       Cunningham acknowledges that the evidence showed that Lowe was stabbed

at least 20 times and died after he was forcibly taken from the storage facility.

Nonetheless, Cunningham asserts that the kidnapping was an afterthought to the

murder because, at the time of the kidnapping, he and DeLeon had already struck

Lowe in the head. Cunningham intimates that, to satisfy the “in the course of”

requirement, the evidence must show that the kidnapping preceded the murder and

that, here, it did not because Lowe’s murder began when Cunningham and DeLeon

first struck him in the head.


                                         14
      To support of his position, Cunningham cites Herrin, 125 S.W.3d at 440. In

that case, Herrin walked up to the complainant, who was sitting in his truck, and

shot him at close range through the heart. Id. at 438. Herrin removed the

complainant’s body from the truck and began dragging it toward the back of the

pickup before being stopped by a bystander. Id. The forensic pathologist testified

that the complainant was dead within six minutes of being shot. Id. at 439.

      The Court of Criminal Appeals determined that the evidence was

insufficient for the jury to have found that the murder was committed in the course

of kidnapping or attempted kidnapping because there was no evidence that Herrin

intended to kidnap the victim at or before the time he committed the murder, that

is, at the time he shot the complainant in the heart. Id. at 440. The court held that

Herrin’s “moving of the body after the shooting in which [Herrin] intended to kill

the victim does not amount to a kidnapping or attempted kidnapping.” Id.

      A case that stands in contrast to Herrin is Santellan, 939 S.W.2d at 164. In

that case, Santellan shot his ex-girlfriend several times, including in the head. Id. at

162. He had then placed her in his car and drove her to a motel where he stayed

with her body for a number of hours. Id. The medical examiner testified that the

victim was likely brain dead at the time Santellan placed her in his car but said that

her heart may have still been beating for a few minutes. Id.




                                          15
      Santellan was convicted of murdering his ex-girlfriend in the course of

attempting to commit kidnapping. Id. at 159. On appeal, Santellan asserted that the

evidence did not show that he had the specific intent to kidnap the victim either at

or before the point of the murder. Id. at 163. The Court of Criminal Appeals

disagreed. Id. at 164.

      The court cited evidence of statements Santellan made to police following

the murder. Id. Santellan had told police that he thought the victim was alive when

he placed her in his car. Id. He also told police that he “just wanted to get away and

be with [the victim] and spend some time together,” he “wanted to show her how

much [he] really loved her,” and he “felt that [the victim] was right there with me.

We laid together and held each other like we used to.” Id. at 161, 164. Based on

this evidence, the court held that “sufficient evidence was presented upon which a

rational juror could have concluded that appellant had developed the intent to

kidnap the victim before or at the time of her death.” Id. at 164.

      Here, as in Santellan, the State presented evidence from the which the jury

could have reasonably inferred that the intent to kidnap was formed before Lowe’s

death. The evidence showed that Lowe was alive when DeLeon and Cunningham

forcibly took him from the storage facility. Zoie testified that, when she returned to

the storage unit after attempting to leave, Cunningham and DeLeon were

screaming at Lowe to walk and hitting him in the ribs, forcing him to leave the


                                          16
storage unit. When Lowe had difficulty walking, they started pushing him out of

the storage unit. Cunningham put Lowe in DeLeon’s car, but Lowe tried to leave

the vehicle. Cunningham then slammed the door on Lowe and forced him to get in

the car. After he was in the car, Zoie heard Lowe moving in the car and making

“pain noises,” indicating that he was still alive when DeLeon and Cunningham

drove away with him

      And in contrast to Herrin, here, the conduct finally resulting in Lowe’s

death—Cunningham’s and DeLeon’s stabbing Lowe 20 times—did not occur until

after Lowe was forcibly taken from the storage facility. See Bush v. State, No. PD-

1012-16, 2018 WL 2041439, at *6 (Tex. Crim. App. May 2, 2018) (not designated

for publication) (distinguishing Herrin on ground that, unlike Herrin, no evidence

was presented showing that abduction occurred after the murder). Dr. Dana

testified that, not only was one of the 20 stab wounds potentially fatal, she

determined that the blunt force trauma, inflicted before the kidnapping, and the

multiple stab wounds, inflicted after Lowe’s abduction from the storage unit,

caused Lowe’s death.

      In sum, based on the evidence, the jury could have reasonably inferred that

the intent to kidnap Lowe was formed at or before the time of his murder. See

Santellan, 939 S.W.2d at 164; see also Robertson v. State, No. 10-13-00105-CR,

2015 WL 1756317, at *5 (Tex. App.—Waco Apr. 16, 2015, pet. ref’d) (mem. op.,


                                        17
not designated for publication) (holding evidence was sufficient for jury to

reasonably infer that intent to kidnap was formed before or at time of murder when

evidence showed that appellant had stabbed victim while she sat in car, had entered

car and then had driven victim to another city).

      Viewing the evidence in the light most favorable to the verdict, we conclude

that a rational fact finder could have found, beyond a reasonable doubt, each

element necessary to support the finding that Cunningham committed the offense

of capital murder as charged in the indictment. See TEX. PENAL CODE

§ 19.03(a)(2). Accordingly, we hold that the evidence was sufficient to support the

judgment of conviction.

      We overrule Cunningham’s sole issue.

                                    Conclusion

      We affirm the judgment of the trial court.




                                              Sherry Radack
                                              Chief Justice

Panel consists of Chief Justice Radack and Justices Keyes and Countiss.

Publish. TEX. R. APP. P. 47.2(b).




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