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<P><SPAN STYLE="font-family: Univers" STYLE="font-size: 14pt"><CENTER></SPAN><SPAN STYLE="font-family: Arial" STYLE="font-size: 14pt"><STRONG>NUMBER 13-07-00094-CR</CENTER> 

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<P><SPAN STYLE="font-family: Arial" STYLE="font-size: 14pt"><STRONG><CENTER>COURT OF APPEALS</CENTER> 

</STRONG></SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P><SPAN STYLE="font-family: Arial" STYLE="font-size: 14pt"><STRONG><CENTER>THIRTEENTH DISTRICT OF TEXAS</CENTER> 

</STRONG></SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P><SPAN STYLE="font-family: Arial" STYLE="font-size: 14pt"><STRONG><CENTER>CORPUS CHRISTI</STRONG></SPAN><SPAN STYLE="font-family: Arial"> - </SPAN><SPAN STYLE="font-family: Arial" STYLE="font-size: 16pt"><STRONG>EDINBURG</STRONG>  </SPAN><SPAN STYLE="font-family: Arial" STYLE="font-size: 14pt"></CENTER> 

</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial" STYLE="font-size: 14pt"><STRONG>                                                                                                                      </STRONG></SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P><SPAN STYLE="font-family: Arial" STYLE="font-size: 14pt"><STRONG>CHRISDON DARNEL ALEXANDER,	 		                   Appellant,</STRONG></SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P><SPAN STYLE="font-family: Arial" STYLE="font-size: 14pt"><STRONG><CENTER>v.</CENTER> 

</STRONG></SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P><SPAN STYLE="font-family: Arial" STYLE="font-size: 14pt"><STRONG>THE STATE OF TEXAS,						           Appellee.</STRONG></SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial" STYLE="font-size: 14pt"><STRONG>                                                                                                                      </STRONG></SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P ALIGN="CENTER"><SPAN STYLE="font-family: Arial" STYLE="font-size: 14pt"><STRONG>On appeal from the 351st District Court </STRONG></SPAN></P> 

 

<P ALIGN="CENTER"><SPAN STYLE="font-family: Arial" STYLE="font-size: 14pt"><STRONG>of Harris County, Texas</STRONG></SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial" STYLE="font-size: 14pt"><STRONG>                                                                                                                      </STRONG></SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P ALIGN="CENTER"><SPAN STYLE="font-family: Arial" STYLE="font-size: 16pt"><STRONG></STRONG></SPAN><SPAN STYLE="font-family: Arial" STYLE="font-size: 16pt"><STRONG>MEMORANDUM OPINION</STRONG></SPAN><SPAN STYLE="font-family: Arial"><STRONG></STRONG></SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P><SPAN STYLE="font-family: Arial"><CENTER><STRONG>Before</STRONG></SPAN><SPAN STYLE="font-family: Arial" STYLE="font-size: 14pt"><STRONG> Justices Ya&ntilde;ez, Rodriguez, and Vela</CENTER> 

</STRONG></SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial" STYLE="font-size: 14pt"><STRONG><CENTER>Memorandum Opinion by Justice Vela</STRONG></SPAN><SPAN STYLE="font-family: Arial"></CENTER> 

</SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<BR WP="BR1"><BR WP="BR2"> 

<P><SPAN STYLE="font-family: Univers Medium">	</SPAN><SPAN STYLE="font-family: Arial">A jury found appellant, Chrisdon Darnel Alexander, guilty of capital murder,<A HREF="#N_1_"><SUP> (1)</SUP></A> and the 

trial court assessed punishment at life imprisonment.<A HREF="#N_2_"><SUP> (2)</SUP></A>  By three issues, appellant 

challenges the legal and factual sufficiency of the evidence to support his conviction, and 

he complains the trial court erred by denying his requested instruction on the lesser-included offense of aggravated robbery.  We affirm.</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial"><CENTER>A. Background</CENTER> 

</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	Rodreka Thompson lived with her girlfriend, Clauthia Castrillon, known as "Coco," 

at the Britmoore Apartments in Houston.  Appellant, known as "Chris," lived with them.  

Coco and appellant made money by selling marihuana.  The apartment had a "smoke 

room," where they would measure and cut up the marihuana for sale.  Thompson testified 

there were times when "Coco would leave amounts of cash laying around" the apartment 

and appellant was "sometimes" "aware of where that cash was kept."  Coco did not trust 

appellant and "always hid her money."  Coco put her money in a "safe box," which she kept 

under the bed.  Coco and appellant sold marihuana for about a year.  In late 2004, Coco 

told appellant to leave the apartment.  After appellant moved out, he continued to come 

by the apartment and talk to Coco.</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	On the morning of February 7, 2005, Coco took Thompson to work and returned to 

their apartment.  Between noon and 1:00 p.m. that day, LaQuietta Ayers, who also lived 

at the Britmoore Apartments, was in her apartment when she heard Crystal Mason banging 

on her front door.  Mason, known as "Bird," was hysterical, bloody, and had duct tape 

around her arms and neck.  She repeatedly told Ayers, "Chris did it."  Mason knew 

appellant as "Chris."</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	When Officers Audie Cohn and Arturo Bazan arrived at Ayers's apartment, Mason 

told Officer Cohn, "Chris did it.  Go check on my friend, Coco, because she's in the 

apartment."  Officer Cohn found Coco's body in the living room of her apartment.  </SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	In the afternoon of February 7th, appellant called Rodreka Thompson, and 

afterwards he called Coco's sister, Noubia Castrillon.  Thompson testified appellant told 

her that "three guys" came into the apartment where she and Coco lived</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	and took him and Crystal [Mason] into the other room and took Coco into 

one room and started duct taping them, like trying to hog tie them.  And he 

said that when he was in the other room, he tried to get away.  When the guy 

was trying to tie him up, he tried to get away.  So he so-called knocked him 

unconscious and jumped out the window is what he told me.</SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P><SPAN STYLE="font-family: Arial">When the prosecutor asked her, "Did he tell you that there were three guys with guns that 

had come into the apartment?", she replied, "Yes."  Thompson also testified appellant told 

her, "'I got that bitch Bird, Dreka.'"<A HREF="#N_3_"><SUP> (3)</SUP></A>  That night, he called Thompson and asked her, 

"'Where's Coco at?'"  When she told him Coco was dead, he did not say anything.</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	On cross-examination, Thompson stated she never saw appellant either threaten 

or act violent towards Coco.  She testified Coco's safe box was under the bed when the 

murder occurred.  The safe box was not taken during the incident, but that there is "nothing 

in it."  	</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	When appellant called Castrillon, he told her, "'It's Coco.  It's Coco'" and said that 

he had been at Coco's apartment.  He also said Bird (Crystal Mason)</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	set them up.  And he left and he came back from the store and when he 

came back from the store, he saw three men and a gun in his face.  He said 

that his life flashed before his eyes.  He told me that he stabbed Bird.  He 

told me he beat a guy up and knocked him unconscious and that he jumped 

out the window.</SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P><SPAN STYLE="font-family: Arial">	* * *</SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P><SPAN STYLE="font-family: Arial">	Exactly he said that when he came over, he saw that Bird was there and 

then when the guys came in, it's like she set them up I guess dealing with 

drugs or whatever it had to do with it.  That she set them up and that 

somebody was there to rob them.</SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P><SPAN STYLE="font-family: Arial">Noubia said appellant told her the three men were dressed in black and that the incident 

happened at Coco's apartment.  When Noubia told appellant Coco was dead, he did not 

say anything.</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	On cross-examination, counsel asked Noubia, "Tell the jury how Chris [appellant] 

described why he thought Bird, Crystal Mason, had set them up."  She replied, "He just 

basically told me that Bird set him and my sister [Coco] up.  That's all he said."  When 

Noubia asked appellant what had happened to Coco, he told her he did not know.</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	Shirley Cormier testified that on the date in question, she lived at the apartment 

complex.  She testified that "a little after 1:00," as she went through the gate to enter the 

apartment complex, she saw "three guys" "going out the gate."  She stated that "[i]t looked 

like they was running, but I didn't pay too much attention. . . ."  When the prosecutor asked 

her if they were wearing "all black," she replied, "I really don't recall."  She said one of them 

was wearing blue jeans, and another had a jogging suit.</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	Mason testified appellant and Coco sold marihuana together and stored their 

marihuana in the smoke room.  On the morning of February 7, 2005, Mason received a call 

from Coco, stating she had taken Thompson to work and asking Mason to come to their 

apartment.  Mason arrived at Coco's apartment sometime before 11:00 a.m.  When 

appellant showed up at the apartment, Coco asked him to go buy condoms and cigars.  

Coco gave him money from a stack of money located on a dresser inside the bedroom.  

When appellant returned, he sat on the couch while Coco and Mason went in the bedroom.  

Later, appellant knocked on the bedroom door.  Mason said that rather than getting out of 

bed to unlock the door, she told him to unlock the door with a butter knife.  He came into 

the bedroom and left without saying anything, re-locking the door.  Afterwards, he re-entered the room, apologized, and then left the bedroom, locking the door behind him.  He 

re-entered the bedroom again, this time with another man who pointed a revolver at Coco 

and Mason.  Mason said that appellant, wearing gloves and wielding a knife and tape, 

asked, "[W]here the shit was."  Appellant pulled Mason out of the bedroom while the other 

man kept his gun pointed at Coco.  Appellant took Mason into the smoke room, taped her 

hands together, and told her to get on her knees.  He taped her hands to her feet, grabbed 

her ponytail and began cutting her neck.  When she fell forward, the tape binding her feet 

broke.  Appellant stabbed her in the side and left the room.  She escaped by jumping out 

the window.</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	Mason testified she later told the paramedic she did not know who had hurt her 

because she was scared "that they weren't going to find him and he was going to come 

and kill me."  She stated she did not "set up" appellant with unknown men, and called it 

"stupid" and untrue for someone to claim that she set him up or that she "know [sic] where 

the thousands are at."  Mason admitted she had been convicted of theft in 2002 and that 

there was presently an open warrant for her arrest for writing a hot check.  She said that 

she had not been promised any special treatment by the D.A.'s office for her testimony.</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial"><EM>Appellant's Statement to Detective Alan Brown</EM></SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	Thompson and Castrillon spoke to Detectives Alan Brown and John Swaim about 

what had happened.  Afterwards, the detectives showed Mason a photo spread.  She 

identified appellant as her attacker.  In the late evening of February 7th, they arrested 

appellant for Coco's murder.  After waiving his <EM>Miranda<A HREF="#N_4_"><SUP> (4)</SUP></A></SPAN><SPAN STYLE="font-family: Arial"> rights, he voluntarily agreed to give 

Detective Brown an oral statement.  When the prosecutor asked Officer Brown, "[W]hat did 

the Defendant tell you that was different than what Rodreka [Thompson] said?", he replied:</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">		That when he went to leave the apartment, the two masked men 

entered the apartment, both armed with guns, one had a shotgun, one had 

a pistol.  Then later in the statement he talks about how Crystal Mason and 

himself are separated from Clauthia [Coco], who is deceased, and taken into 

the--I think it's the west bedroom or the bedroom to the right where the 

window screen is knocked out.</SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P><SPAN STYLE="font-family: Arial">		At that part when he's talking about that part, he says the two 

suspects took him in there.  And I asked, "Who's with Coco," who is the 

nickname of the deceased female, and he says, "Well, no, no, no, just one 

guy.  He gets his story back straight and he says, "No, just one guy is with 

me and he's got a knife."</SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P><SPAN STYLE="font-family: Arial">		And I asked, "Where did the pistol go," and he doesn't know where 

the pistol went.  Then he talks about the supposed other suspects--suspect 

puts the knife on top of the T.V. and when he does that, that he, the 

defendant, starts hitting him and beating him up.  And they start, what is his 

words, tussling all over the room.  Well, the room--the room where this 

occurred, there's pictures lined up on a windowsill across the room, there's 

a futon bed, there's a table and there's a T.V. on a stand.  There was 

definitely no fight between two men in this room because nothing is disturbed 

in the room except for where Crystal Mason went out the window where the 

blood is in front of the window and the blinds and the screen is kicked out.</SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P><SPAN STYLE="font-family: Arial">		When he's talking about it, he says he has the knife in his hand--he 

says the guy puts the knife on top of the T.V. and that's when he hits him 

and they start tussling and he says, "I hit him one last time."  And he's real 

dramatic, you know, he makes noises, like, (indicating) I hit him, and he says 

I stunned him really hard and he dropped the knife.  </SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P><SPAN STYLE="font-family: Arial">		And I said, "Well, I thought you said he put the knife on top of the 

T.V.," and he said, "Well, he must have grabbed it back.  Somewhere in this 

tussle he must have grabbed it back."</SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P><SPAN STYLE="font-family: Arial">		So he says that once he stabs Crystal Mason in the side, he goes out 

the window, leaving her there.  So I clarify with him that he never went back 

into the apartment, he never went back into the front rooms, that after he 

stabbed her and went out the window, he never returned back into any of 

those rooms.  And he said no, that's because he had a cut on his hand.</SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P><SPAN STYLE="font-family: Arial">		And I knew we had taken blood samples from various parts of that 

room, in the kitchen, where Ms. Castrillon's [Coco's] body was, the room 

where this--where Ms. Mason was stabbed.  So we took all these various 

blood samples from these places.  So his blood and his DNA should not 

show up back in that room.  And it did.</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">Asked whether appellant mentioned that he had stabbed Mason because he thought she 

had "set him up or something like that," he replied, "Yes," "he said he stabbed her and left 

the knife" "in that room."  The prosecutor questioned Officer Brown as follows:</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	Q.  Now, looking at State's Exhibit 69, do you see on that exhibit, . . . the 

east wall of the living room?</SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P><SPAN STYLE="font-family: Arial">	A.  Yes, sir.</SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P><SPAN STYLE="font-family: Arial">	Q.  How close is that to the Complainant's [Coco's] body?</SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P><SPAN STYLE="font-family: Arial">	A.  [T]hree feet.</SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P><SPAN STYLE="font-family: Arial">	Q.  And you also see a cabinet there in the kitchen there in one whatever?</SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P><SPAN STYLE="font-family: Arial">	A.  Yes, sir.</SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P><SPAN STYLE="font-family: Arial">	* * *</SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P><SPAN STYLE="font-family: Arial">	Q.  [D]id you verify that the Defendant's blood, the Defendant's DNA was 

located on that east wall [of the living room] and in the kitchen?</SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P><SPAN STYLE="font-family: Arial">	A.  Yes.</SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P><SPAN STYLE="font-family: Arial">	Q.  Now, is that inconsistent--is that inconsistent, Officer Brown, with his 

claim that this tussle went on in the smoke room and that he had cut his 

hand fighting with this knife?</SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P><SPAN STYLE="font-family: Arial">	A. Yes.</SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P><SPAN STYLE="font-family: Arial">	Q.  Did he ever tell you that he had been involved in any kind of a fight or 

confrontation in either of the front room, the kitchen or the dining room?</SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P><SPAN STYLE="font-family: Arial">	A.  No, sir, just that one bedroom.</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">Appellant told Officer Brown the assailants were dressed in "all black."</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial"><EM>The Forensic Evidence</EM></SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	Officer Glenn Riddle collected blood samples and retrieved evidence from the crime 

scene.  He found blood on the steps leading up to Coco's apartment and on the outside 

doorknob of her apartment's front door.  Inside her apartment, he found blood on the 

kitchen counter, kitchen cabinet, and on the kitchen-stove knobs.  He said three or four 

rags had been placed on the stove top "that would appear to be an attempt to start a fire."  

He found a steak knife<A HREF="#N_5_"><SUP> (5)</SUP></A> on the dining-room floor.  The blade's tip was bent, and the blade 

had blood on it.  He testified, "It appeared that the knife had been used with some force 

on something or somebody."  He found a small sawed-off shotgun in between the mattress 

and box springs of the bed in the east bedroom (Coco's bedroom).  He found a large pool 

of blood on the carpet next to a window in the smoke room (the west bedroom).  He found 

a "pattern of cast-off blood spatter"<A HREF="#N_6_"><SUP> (6)</SUP></A> towards the bottom of an open closet door.  He said 

this spatter "could be consistent with someone . . . jumping out that window" "[a]nd having 

laid on the floor there for enough of a period of time for that blood pool to collect in the 

carpet."  Appellant's fingerprints were not found at the scene.  However, Officer Riddle said 

this did not mean appellant was not there.</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">	Jennifer Otto, a forensic DNA analyst,<A HREF="#N_7_"><SUP> (7)</SUP></A> tested the blood samples collected at the 

crime scene.  She obtained "a full female DNA profile" from blood found on a step outside 

of Coco's apartment.  This DNA profile matched the profile obtained from Coco.  A "full 

male profile" was obtained from blood obtained from a kitchen-cabinet door.  This DNA 

profile matched appellant's DNA profile.  A blood sample taken from the east wall of the 

living room matched appellant's DNA profile.  Otto found appellant's blood on cuttings from 

appellant's boxer shorts and pants.  A blood sample taken from the windowsill of the west 

bedroom matched Mason's DNA profile.  Blood taken from the steak knife's blade matched 

Mason's profile.  With respect to blood taken from a roll of duct tape found at the scene, 

Otto said the blood had "a mixture of DNA.  The reference from Mason is consistent with 

the major component" and that "[h]er profile was found on the roll of duct tape."</SPAN></P> 

 

<P><SPAN STYLE="font-family: Univers Medium">	On cross-examination, Otto testified that based upon how the blood samples were 

packaged and stored before she received them, she could not say there was no cross 

contamination of the samples.  In her opinion, Coco's blood was on a kitchen-stove knob, 

the kitchen counter, and on the outside doorknob of the front door to the apartment.  Otto 

did not find Coco's or Mason's blood on appellant's arms.</SPAN></P> 

 

<P><SPAN STYLE="font-family: Univers Medium"><EM>The Autopsy Results</EM></SPAN></P> 

 

<P><SPAN STYLE="font-family: Univers Medium">	Dr. Anna Lopez, a forensic pathologist at the Harris County Medical Examiner's 

Office, supervised Coco's autopsy.  She testified Coco had a total of eight cuts on her face 

and neck, indicating an attempt to cut open her throat.  She also had a cut on her right 

wrist, which Dr. Lopez described as a defensive wound.  Coco had two gunshot entrance 

wounds, one on her right cheek and the other on her forehead.  Both wounds were 

surrounded by soot and strippling, indicating a close range of fire.  The bullet that had 

entered the cheek had lodged inside the left parietal lobe of the brain, and the bullet that 

had entered the forehead was lodged under the scalp in the back of the head.  When the 

prosecutor asked Dr. Lopez whether the bullets could have come from a shotgun, she 

replied, "[T]hese are bullets.  And it's completely different from a shotgun injury."  Typically 

in a shotgun wound, she would find several smaller pellets as well as the shotgun wadding.  

Dr. Lopez explained that a shotgun wound would have produced more "distortion" to the 

facial tissues and bone.</SPAN></P> 

 

<P><SPAN STYLE="font-family: Univers Medium">	Dr. Lopez said the cause and manner of death was a homicide caused by gunshot 

wounds to the head and sharp-force injuries to the head and neck.  She explained that 

while the gunshot wounds were the "main" cause of death, the cuts to Coco's face and 

neck "caused significant bleeding," and thus Dr. Lopez had listed the cuts as a cause of 

death.  Asked whether the cuts alone could have killed Coco, Dr. Lopez said that, while 

none of the major blood vessels had been cut, left untreated for long enough, the cuts 

could have led to death.  When the prosecutor asked her whether Coco's wounds could 

have been caused by two different people, she replied, "[I]t's possible" because there were 

two gunshot wounds and there were wounds from two different weapons.  The prosecutor 

then asked whether Coco, after being shot in the face, could have been able to place her 

own blood on the stove or the stairs, Dr. Lopez said no.</SPAN></P> 

 

<P><SPAN STYLE="font-family: Univers Medium">	On cross-examination, Dr. Lopez testified she could not tell whether the gunshot 

wounds or stab wounds had come first, and said that it would be impossible to determine 

that based on an autopsy.</SPAN></P> 

 

<P><SPAN STYLE="font-family: Univers Medium">	Appellant did not testify at trial and no defense testimony was offered.</SPAN></P> 

 

<P><SPAN STYLE="font-family: Univers Medium"><CENTER>B. Discussion</CENTER> 

</SPAN></P> 

 

<P><SPAN STYLE="font-family: Univers Medium"><EM>1. Legal and Factual Sufficiency of the Evidence</EM></SPAN></P> 

 

<P><SPAN STYLE="font-family: Univers Medium">	In issues one and two, appellant challenges the legal and factual sufficiency of the 

evidence to support his conviction for capital murder.  In reviewing the legal sufficiency of 

the evidence to support a conviction, we view all the evidence in the light most favorable 

to the verdict in order to determine whether any rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt.  <EM>Jackson v. Virginia</EM>, 443 U.S. 

307, 319 (1979); <EM>Hampton v. State</EM>, 165 S.W.3d 691, 693 (Tex. Crim. App. 2005).  This 

standard gives full play to the responsibility of the trier of fact to resolve conflicts in the 

testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to 

ultimate facts.  <EM>Jackson</EM>, 443 U.S. at 319.  The trier of fact is the sole judge of the weight 

and credibility of the evidence.  Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); 

<EM>Margraves v. State</EM>, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000).  Thus, when performing 

a legal sufficiency review, we may not re-evaluate the weight and credibility of the evidence 

and substitute our judgment for that of the fact-finder.  <EM>Dewberry v. State</EM>, 4 S.W.3d 735, 

740 (Tex. Crim. App. 1999).  We must resolve any inconsistencies in the evidence in favor 

of the judgment.  <EM>Curry v. State</EM>, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000). </SPAN></P> 

 

<P><SPAN STYLE="font-family: Univers Medium">	When reviewing the factual sufficiency of the evidence, we view all the evidence in 

a neutral light, favoring neither party.  <EM>Watson v. State</EM>, 204 S.W.3d 404, 414 (Tex. Crim. 

App. 2006); <EM>Drichas v. State</EM>, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005).  We will set 

aside the verdict only if:  (1) the evidence supporting the conviction, although legally 

sufficient, is nevertheless so weak that the fact-finder's determination is clearly wrong and 

manifestly unjust; or (2) the verdict is against the great weight and preponderance of the 

evidence.  <EM>Watson</EM>, 204 S.W.3d at 414-15; <EM>Johnson v. State</EM>, 23 S.W.3d 1, 11 (Tex. Crim. 

App. 2000).  We cannot conclude a conviction is "clearly wrong" or "manifestly unjust" 

simply because we would have voted to acquit.  <EM>Watson</EM>, 204 S.W.3d at 417.  In other 

words, we may not simply substitute our judgment for the fact-finder's judgment.  <EM>Johnson</EM>, 

23 S.W.3d at 12; <EM>Cain v. State</EM>, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).  To reverse 

for factual sufficiency, we must determine, with some objective basis in the record, that the 

great weight and preponderance of the evidence contradicts the verdict.  <EM>Watson</EM>, 204 

S.W.3d at 417.  In examining a factual sufficiency challenge, we defer to the fact-finder's 

determination of the credibility of the evidence.  <EM>Swearingen v. State</EM>, 101 S.W.3d 89, 97 

(Tex. Crim. App. 2003).</SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<BR WP="BR1"><BR WP="BR2"> 

<P><SPAN STYLE="font-family: Univers Medium"><EM><A HREF="https://web2.westlaw.com/KCNotes/default.wl?vr=2.0&serialnum=2009604149&locatestring=HD(005)%2cCL(H%2cO)%2cDC(A%2cL%2cO%2cD%2cG)%2cDT(E%2cD%2cC%2cM)&rlti=1&rs=WLW7.02&eq=search&n=2&db=TX-CS&fn=_top&sv=Split&rp=%2fKCNotes%2fdefault.wl&cfid=1&rlt=CLID_QRYRLT342"><A NAME="B52009604149"></A><A HREF="  "></A><A></A><A></A><A></EM></SPAN><SPAN STYLE="font-family: Univers Medium"><EM></EM></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></A><A></A><A></A><A></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Univers Medium"><EM></EM></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Univers Medium"><EM></EM></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></SPAN></EM></SPAN><SPAN STYLE="font-family: Univers Medium"><EM></EM></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Univers Medium"><EM></EM></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></A><A></A><A></A><A></A><A></A><A></A><A></A><A></A><A></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Univers Medium"><EM></EM></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Univers Medium"><EM></EM></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Univers Medium"><EM></EM></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Univers Medium"><EM></EM></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Univers Medium"><EM></EM></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Univers Medium"><EM></EM></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Univers Medium"><EM></EM></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Univers Medium"><EM></EM></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></SPAN></EM></SPAN><SPAN STYLE="font-family: Univers Medium"><EM></EM></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Univers Medium"><EM></EM></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Univers Medium"><EM></EM></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Univers Medium"><EM></EM></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></SPAN></EM></SPAN><SPAN STYLE="font-family: Univers Medium"><EM></EM></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Univers Medium"><EM></EM></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></SPAN></EM></SPAN><SPAN STYLE="font-family: Univers Medium"><EM></EM></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Univers Medium"><EM></EM></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></SPAN></EM></SPAN><SPAN STYLE="font-family: Univers Medium"><EM></EM></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Univers Medium"><EM></EM></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Univers Medium"><EM></EM></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></A><A></A><A></A><A></A><A></A><A NAME="SR;2792"></A><A NAME="SR;2812"></A><A NAME="SR;2863"></A><A NAME="SR;2985"></A><A NAME="SR;2990"></A><A NAME="SR;3003"></A><A NAME="sp_999_4"></A><A NAME="SDU_4"></A><A NAME="citeas((Cite as: 2002 WL 1840927, *4 (Tex.App.-San Antonio))"></A><A NAME="SR;3031"></A><A NAME="SR;3039"></A><A NAME="SR;3062"></A><A NAME="SR;3089"></A><A NAME="SR;3093"></A><A NAME="SR;3125"></A><A NAME="SR;3136"></A><A NAME="SR;3151"></A><A NAME="SR;3155"></A><A NAME="SR;3196"></A><A NAME="SR;3204"></A><A NAME="SR;3229"></A><A NAME="SR;3237"></A><A NAME="SR;3261"></A><A NAME="SR;3264"></A><A NAME="SR;3273"></A><A NAME="SR;3276"></A><A NAME="SR;3333"></A><A NAME="SR;3335"></A><A NAME="SR;3341"></A><A NAME="SR;3419"></A><A NAME="SR;3426"></A><A NAME="SR;3433"></A><A NAME="SR;3445"></A><A NAME="SR;3459"></A><A NAME="SR;3473"></A><A NAME="SR;3487"></A><A NAME="SR;3493"></A><A NAME="SR;3511"></A><A NAME="SR;3526"></A><A NAME="SR;3529"></A><A NAME="SR;3550"></A>The Law of Capital Murder</SPAN></EM></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"></SPAN></SPAN></P> 

 

<P><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline">	As charged in this case, a person <A NAME="SR;2630"></A><A NAME="SearchTerm"></A>commits <A NAME="SR;2631"></A>capital <A NAME="SR;2632"></A>murder if he or she <A NAME="SR;2635"></A>commits 

murder as defined under section 19.02(b)(1) of the Texas Penal Code and, <EM>inter alia</EM>, the 

person intentionally <A NAME="SR;2651"></A>commits the murder in the course of committing or attempting to 

commit <A NAME="SR;2663"></A>robbery.  Tex. Penal Code Ann.  19.03(a)(2) (Vernon Supp. 2007).  A person 

commits murder if he or she "intentionally or knowingly causes the death of an individual."  

<EM>Id</EM>.  19.02(b)(1) (Vernon 2003).  A person commits robbery if, in the course of committing 

theft, as defined in Chapter 31 of the Texas Penal Code, and with intent to obtain or 

maintain control of property, he or she intentionally, knowingly, or recklessly causes bodily 

injury to another, or intentionally or knowingly places another in fear of imminent bodily 

injury or death.  <EM>Id</EM>.  29.02(a).  Theft is the unlawful appropriation of property with the 

intent to deprive the owner of the property.  Tex. Penal Code Ann.  31.03 (Vernon Supp. 

2007).  A person acts intentionally with respect to a result of his or her conduct when it is 

his or her conscious objective or desire to engage in the conduct or to cause the result.  

Tex. Penal Code Ann.  6.03(a) (Vernon 2003).</SPAN></SPAN></P> 

 

<P><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline">	Circumstantial evidence, by itself, may be enough to support a jury's verdict.  

<EM>Kutzner v. State</EM>, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999); <EM>see Smith v. State</EM>, 965 

S.W.2d 509, 515 (Tex. Crim. App. 1998).  It is not necessary that every fact point directly 

and independently to the defendant's guilt; it is enough if the conclusion is warranted by 

the combined and cumulative force of all the incriminating circumstances. <EM> Barnes v. State</EM>, 

876 S.W.2d 316, 321 (Tex. Crim. App. 1994); <EM>Johnson v. State</EM>, 871 S.W.2d 183, 186 

(Tex. Crim. App. 1993).<A NAME="sp_999_3"></A><A NAME="SDU_3"></A></SPAN></SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<BR WP="BR1"><BR WP="BR2"> 

<P><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline">The Law of Parties</SPAN></EM></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"></SPAN></SPAN></P> 

 

<P><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline">	The charge included an instruction on the law of parties.  "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."  Tex. Penal Code 

Ann.  7.01(a) (Vernon 2003).  A person is criminally responsible for an offense committed 

by the conduct of another if:  (2) "acting with intent to promote or assist the commission of 

the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to 

commit the offense." <EM> Id.</EM>  7.02(a)(2).  "Each party to an offense may be charged with 

commission of the offense."  <EM>Id.</EM>  7.01(b).</SPAN></SPAN></P> 

 

<P><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline">	While the presence of an accused at the scene of an offense is not alone sufficient 

to support a conviction, it is a circumstance tending to prove guilt, which, combined with 

other facts, may suffice to show that the accused was a participant.  <EM>Beardsley v. State</EM>, 

738 S.W.2d 681, 685 (Tex. Crim. App. 1987).  Further, participation in an enterprise may 

be inferred from circumstances and need not be shown by direct evidence.  <EM>Id</EM>. at 684.<A HREF="https://web2.westlaw.com/KCNotes/default.wl?vr=2.0&serialnum=2009604149&locatestring=HD(005)%2cCL(H%2cO)%2cDC(A%2cL%2cO%2cD%2cG)%2cDT(E%2cD%2cC%2cM)&rlti=1&rs=WLW7.02&eq=search&n=2&db=TX-CS&fn=_top&sv=Split&rp=%2fKCNotes%2fdefault.wl&cfid=1&rlt=CLID_QRYRLT342"></A><A HREF="https://web2.westlaw.com/KCNotes/default.wl?vr=2.0&serialnum=2009604149&locatestring=HD(005)%2cCL(H%2cO)%2cDC(A%2cL%2cO%2cD%2cG)%2cDT(E%2cD%2cC%2cM)&rlti=1&rs=WLW7.02&eq=search&n=2&db=TX-CS&fn=_top&sv=Split&rp=%2fKCNotes%2fdefault.wl&cfid=1&rlt=CLID_QRYRLT342"></A></SPAN></SPAN></P> 

 

<P><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline">	<EM><A></A><A></A><A></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><EM></EM></SPAN><SPAN STYLE="font-family: Univers Medium"><EM></EM></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></A><A></A><A></A><A></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Univers Medium"><EM></EM></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Univers Medium"><EM></EM></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></SPAN></EM></SPAN><SPAN STYLE="font-family: Univers Medium"><EM></EM></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Univers Medium"><EM></EM></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></A><A></A><A></A><A></A><A></A><A></A><A></A><A></A><A></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Univers Medium"><EM></EM></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Univers Medium"><EM></EM></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Univers Medium"><EM></EM></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Univers Medium"><EM></EM></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Univers Medium"><EM></EM></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Univers Medium"><EM></EM></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Univers Medium"><EM></EM></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Univers Medium"><EM></EM></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></SPAN></EM></SPAN><SPAN STYLE="font-family: Univers Medium"><EM></EM></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Univers Medium"><EM></EM></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Univers Medium"><EM></EM></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Univers Medium"><EM></EM></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></SPAN></EM></SPAN><SPAN STYLE="font-family: Univers Medium"><EM></EM></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Univers Medium"><EM></EM></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></SPAN></EM></SPAN><SPAN STYLE="font-family: Univers Medium"><EM></EM></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Univers Medium"><EM></EM></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></SPAN></EM></SPAN><SPAN STYLE="font-family: Univers Medium"><EM></EM></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Univers Medium"><EM></EM></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></A><A></SPAN></EM></SPAN><SPAN STYLE="font-family: Univers Medium"><EM></EM></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline"></A><A></A><A></A><A></A><A></A><A></A></SPAN></EM></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline">In this case, a rational jury could have determined the following from the evidence:  

(1) appellant lived in the same apartment as Coco and Thompson and moved out in late 

2004; (2) Coco and appellant made money selling marihuana together; (3) Coco left money 

laying around the apartment and, on the day of the murder, she gave him money to buy 

condoms and cigars from a stack of money on the dresser; (4) Coco kept her money in a 

safe box under her bed; (5) Coco stored marihuana in the smoke room; (6) while Coco and 

Mason were in Coco's bedroom, (7) appellant entered the bedroom with another man who 

pointed a revolver at them; appellant asked, "Where the shit was;" (8) the safe box was 

under the bed when Coco was murdered; (9) the safe box was not taken during the 

incident, but after the murder, there was nothing in the safe box; (10) Coco died from two 

gunshot wounds to the face; (11) appellant said that he had stabbed Crystal Mason; (12) 

Mason denied that she had set up appellant; and (13) after the incident, appellant left the 

scene. </SPAN></SPAN></P> 

 

<P><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline">	Controverting evidence showed that:  (1) appellant claimed Mason had set up Coco 

and himself for a robbery perpetrated by either two or three male subjects; (2)  appellant's 

blood was found in Coco's apartment, on his pants, and on his boxers, indicating he was 

injured during the incident; (3) no one saw who killed Coco; (4) no one saw appellant or the 

man with the revolver take anything from Coco's apartment; (5) appellant's fingerprints 

were not found in the apartment; (6) appellant had never previously threatened Coco nor 

acted violently towards her; and (7) three men were seen leaving the apartment complex 

contemporaneous to the time of the incident. </SPAN></SPAN></P> 

 

<P><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline">	The jury was entitled to disbelieve appellant's statements that Mason had set up 

Coco and appellant to be robbed by two or three men. <EM> See Margraves,</EM> 34 S.W.3d at 919; 

<EM>see also Roy v. State,</EM> 997 S.W.2d 863, 868 (Tex. App.-Fort Worth 1999, pet. ref'd).  

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

is legally sufficient for a rational jury to find appellant guilty of capital murder, either as a 

party or acting alone, beyond a reasonable doubt.  We also conclude that the evidence 

supporting the conviction is not so weak that the fact-finder's determination is clearly wrong 

and manifestly unjust, or that the verdict is against the great weight and preponderance of 

the evidence.  Issues one and two are overruled.</SPAN></SPAN></P> 

 

<P><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><EM><SPAN STYLE="text-decoration: underline">2. Lesser-Included Offense Instruction</SPAN></EM></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"></SPAN></SPAN></P> 

 

<P><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline">	In his third issue, appellant contends the trial court erred in failing to instruct the jury 

on the lesser-included offense of <A NAME="SR;2639"></A>aggravated <A NAME="SR;2640"></A>robbery.  Whether one offense is a lesser-included offense of another is determined by application of article 37.09 of the Texas Code 

of Criminal Procedure.  Tex. Code Crim. Proc. Ann. art. 37.09.  The court of criminal 

appeals recently clarified the two-step analysis to be used in applying article 37.09.  <EM>Hall 

v. State,</EM> 225 S.W.3d 524, 534-37 (Tex. Crim. App. 2007).  In the first step, the elements 

of the offense as alleged in the indictment are compared to the statutory elements of the 

potential lesser-included offense.  <EM>Id</EM>. at 535-36.  If the elements of the lesser offense could 

be established by proof of the same or less than all of the facts required to establish the 

commission of the charged offense, then the analysis moves to the second step.  <EM>Id</EM>. at 

536-37.  Here, the parties agree that under the circumstances of this case, <A NAME="SR;2794"></A>aggravated 

<A NAME="SR;2795"></A>robbery was a lesser-included offense of <A NAME="SR;2802"></A>capital <A NAME="SR;2803"></A>murder.  We therefore move to 

consideration of the second analytical step.</SPAN></SPAN></P> 

 

<P><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline">	In the second step, the evidence adduced at trial must be reviewed to determine if 

there is some evidence to support instructing the jury on the lesser-included offense. <EM> Id.</EM>  

In order to support submission of the lesser-included offense, the evidence must include 

proof of the lesser offense, and the evidence must show that if the defendant is guilty, he 

or she is guilty only of the lesser-included offense. <EM> Id.</EM> (citing <EM>Bignall v. State,</EM> 887 S.W.2d 

21, 23 (Tex. Crim. App. 1994)).  Submission of a lesser-included offense is not required 

simply because the jury may disbelieve crucial evidence pertaining to the greater offense; 

rather, there must be some evidence directly germane to the lesser-included offense 

before an instruction on a lesser-included offense is warranted.  <EM>Hampton v. State</EM>, 109 

S.W.3d 437, 441 (Tex. Crim. App. 2003).</SPAN></SPAN></P> 

 

<P><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline">	Rather than pointing to evidence affirmatively demonstrating that he committed only 

<A NAME="SR;2968"></A>aggravated <A NAME="SR;2969"></A>robbery, appellant argues there is no evidence to show he killed Coco and that 

a rational jury could have had a reasonable doubt about whether he could have anticipated 

that the man with the revolver would kill Coco.  However, while this point may have caused 

the jury to closely consider what appellant did know before Coco's murder (e.g., that they 

were going to commit a robbery and that the other man was armed with a pistol), it does 

not constitute evidence directly germane to the lesser-included offense, which suggests 

if appellant is guilty, he is guilty only of the lesser-included offense.  <A NAME="SR;3106"></A><A NAME="SR;3107"></A>Contrary to appellant's 

assertion that this evidence shows he did not have reason to anticipate that murder may 

occur in the course of the <A NAME="SR;3140"></A>aggravated <A NAME="SR;3141"></A>robbery, it demonstrates instead that appellant in fact 

knew that they were going to commit robbery armed with a deadly weapon.  <EM>See, e.g., 

Love v. State,</EM> 199 S.W.3d 447, 454-55 (Tex. App.-Houston [1st Dist.] 2006, pet. ref'd) 

(holding that defendant's participation in robbery with knowledge that co-conspirator might 

use a gun in committing the robbery was sufficient to sustain conviction for <A NAME="SR;3206"></A>capital <A NAME="SR;3207"></A>murder 

under the law of parties). Accordingly, we overrule appellant's third issue.</SPAN></SPAN></P> 

 

<P><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline">	We affirm the trial court's judgment.<A NAME="B00542015479354"></A><A></A><A NAME="sp_999_5"></A><A NAME="SDU_5"></A><A NAME="citeas((Cite as: 2008 WL 667628, *5 (Tex.App.-Hous. (14 Dist.)))"></A><A NAME="IN;F1"></A><A></A><A HREF="https://web2.westlaw.com/find/default.wl?rs=WLW8.05&sv=Split&fn=_top&findtype=%23&docname=LINK-GUID(I25EB3A2ADCD111DBAF8DAFD7EE2B8B26)&db=183947&vr=2.0&rp=%2ffind%2fdefault.wl&mt=Texas"></SPAN></SPAN><SPAN STYLE="font-family: Univers Medium"></SPAN><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline"></A></SPAN></SPAN></P> 

 

<P><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline">	</SPAN></SPAN></P> 

 

<P><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline">							ROSE VELA	</SPAN></SPAN></P> 

 

<P><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline">							Justice</SPAN></SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<BR WP="BR1"><BR WP="BR2"> 

<P><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline">Do not publish.</SPAN></SPAN></P> 

 

<P><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline">Tex. R. App. P. 47.2(b).</SPAN></SPAN></P> 

 

<BR WP="BR1"><BR WP="BR2"> 

<P><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline">Memorandum Opinion delivered and</SPAN></SPAN></P> 

 

<P><SPAN STYLE="font-family: Univers Medium" STYLE="COLOR: #0000ff"><SPAN STYLE="text-decoration: underline">filed this 12th day of June, 2008. 

<P><A NAME="N_1_">1. </A></SPAN><SPAN STYLE="font-family: Arial"><EM>See</EM> Tex. Penal Code Ann.  19.03(a)(2) (Vernon 2007). 

<P><A NAME="N_2_">2. </A><EM>See Id.</EM>  12.31 (Vernon 2003), 19.03 (Vernon Supp. 2007). 

<P><A NAME="N_3_">3. </A>"Dreka" is Rodreka Thompson's nickname.    

<P><A NAME="N_4_">4. </A><EM>See Miranda v. Arizona</EM>, 384 U.S. 436 (1966). 

<P><A NAME="N_5_">5. </A>This knife was admitted into evidence as State's Exhibit 203. 

<P><A NAME="N_6_">6. </A>When the prosecutor asked Officer Riddle to explain what he meant by "blood spatter," he stated, 

"Blood that is projected or cast off of something, rather than transferred."  When the prosecutor asked him, 

"Would that be consistent with somebody who is moving quickly or in some form of motion trying to go from 

one point to another?", he replied, "It could be, yes." 

<P><A NAME="N_7_">7. </A>Jennifer Otto </SPAN><SPAN STYLE="font-family: Arial"> worked for Identigene, a Houston-based forensic and paternity DNA testing company</SPAN><SPAN STYLE="font-family: Univers Medium">.</SPAN></SPAN></P> 

 

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