                     PD-1407-15                                               PD-1407-15
                                                            COURT OF CRIMINAL APPEALS
                                                                             AUSTIN, TEXAS
                        No. PD-___________                  Transmitted 11/2/2015 4:55:35 PM
                                                              Accepted 11/3/2015 2:17:27 PM
                                                                              ABEL ACOSTA
                             IN THE                                                   CLERK
                   COURT OF CRIMINAL APPEALS
                            FOR THE
                        STATE OF TEXAS


                      HERBERT GARDNER
                          Appellant

                                 V.

                      THE STATE OF TEXAS
                            Appellee

    __________________________________________________

         FROM THE COURT OF APPEALS FOR THE
       FOURTEENTH JUDICIAL DISTRICT OF TEXAS
                    HOUSTON, TEXAS
                    NO. 14-14-00690-CR
   ___________________________________________________

        APPEAL FROM THE 180TH JUDICIAL DISTRICT
                 HARRIS COUNTY, TEXAS
             TRIAL COURT CAUSE NO. 1372136


   APPELLANT’S PETITION FOR DISCRETIONARY REVIEW


                                   PATTI SEDITA
                                   State Bar No. 00787484
                                   One Sugar Creek Center Blvd., #1045
                                   Sugar Land, TX 77478
November 3, 2015                   281.313.4225
                                   Counsel for appellant on appeal


                       ORAL ARGUMENT REQUESTED
                  STATEMENT REGARDING ORAL ARGUMENT

       Pursuant to TEX. R. APP. PROC. 75, appellant requests oral argument in this case.

Appellant believes oral argument would be helpful in deciding the issues in the case because it

would allow for an expanded discussion of the factual differences between various conflicting

cases and how those factual differences impact the legal standards and their application.

                      CERTIFICATE OF INTERESTED PARTIES

       In order that the members of this Court may determine disqualification and recusal

Appellant certifies that the following is a complete list of the parties, attorneys, and other

persons with an interest in the outcome of this lawsuit:

Honorable Terry Flenniken        Presiding Judge in 180th District Court

Hattie Sewell Mason              Defense counsel at trial
Vivian King                      Defense counsel at trial
Patti Sedita                     Defense counsel on appeal

Mary McFaden                     Assistant District Attorney at trial
Kathryn Kahle                    Assistant District Attorney at trial
Allen Curry                      Assistant District Attorney on appeal

Herbert Gardner                  Appellant




                                             Page ii
!
                                                 SUBJECT INDEX
         !!

Statement regarding oral argument ................................................................................ ii

Identification of the parties ............................................................................................. ii

Preliminary statement ...................................................................................................... 1

Statement of the facts ....................................................................................................... 2

Appellant’s issue for review ............................................................................................. 9

Summary of reasons for review ....................................................................................... 9

Reasons for review ......................................................................................................... 10

Conclusion and prayer for relief ................................................................................... 14

Certificate of service ...................................................................................................... 14

Statement of word count ................................................................................................ 15

    7!




                                                          Page iii
                                            TABLE OF AUTHORITIES


Cases!


Fearance v. State, 771 S.W.2d 486 (Tex. Crim. App. 1988)......................................... 11


Furman v. Georgia 408 U.S. 23892 S.Ct. 272633 L.Ed.2d 346 (1972) ........................ 11


Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)........... 10


Jurek v. State, 522 S.W.2d 934 (Tex. Crim. App. 1975) ............................................... 11


Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976)......................... 12


Salinas v. State, 163 S.W.3d 734, 737 (Tex. Crim. App. 2005) .................................... 10


Rules!


TEX. R. APP. PROC. 66.3 .................................................................................................. 9


TEX. R. APP. PROC. 75 ..................................................................................................... ii


!




                                                          Page iv
                         STATEMENT OF THE CASE

      Appellant was charged by indictment in cause number 1372136 with the

offense of capital murder alleged to have been committed on December 23, 2012

(CR: p. 7). On August 11, 2014 the case proceeded to trial by jury. (CR: p. 344).

On August 15, 2014 the jury returned a verdict of guilty of the offense of capital

murder. (CR: p. 372). On August 15, 2014, as required by statute, the trial judge

assessed Appellant’s punishment at confinement for life without parole in the

Texas Department of Criminal Justice, Institutional Division and signed the

judgment and sentence that same day. (CR: p. 374). On that same day, Appellant

gave notice of appeal. (CR: p. 376).

      On September 17, 2015, the Fourteenth Court heard oral argument in this

matter. On October 1, 2015, the Fourteenth Court of Appeals at Houston issued a

published opinion affirming Appellant’s conviction. (See exhibit A).
                        STATEMENT OF THE FACTS

      On December 23, 2012, Herbert Gardner was arrested and subsequently

charged with capital murder following the death of his girlfriend, Connie Bowie.

(RR Vol. 3, p. 52). Mr. Gardner had been living with Ms. Bowie at 4827 Brisbane

Drive in Houston, Texas, for four years up until he temporarily moved into a motel

room on November 2, 2012. (RR Vol. 3, p. 54; Vol. 5, p. 168).

      Prior to Mr. Gardner being charged with capital murder, there were two

incidents where police were called to their residence in order to mediate

arguments. On March 24, 2012, Mr. Gardner and Ms. Bowie’s neighbor, Lawanda

Roberts, called the police after Ms. Bowie requested to be let inside her home and

appeared to have a leg injury. (RR Vol. 3, p. 266-270). Mr. Gardner also went to

the neighbor’s to ask that Ms. Bowie come home. (RR Vol. 3, p. 268). Ms. Roberts

testified that both Mr. Gardner and Ms. Bowie appeared to be in an excited state.

(RR Vol. 3, p. 266-271). No arrest was made that night and Ms. Bowie returned to

her residence early the next morning. (RR Vol. 3, p. 277; Vol. 4, p. 46-47) Ms.

Roberts took Ms. Bowie to a medical clinic in Pearland two days later but Ms.

Roberts was unaware if Ms. Bowie received treatment for her leg injury. (RR Vol.

3, p. 279). Ms. Roberts was also unaware of how Ms. Bowie received her injury.

(RR Vol. 3, p. 278). According to testimony by Jorge Castillo, a counselor for the

Houston Police Department Family Violence Unit, Ms. Bowie sought counseling

                                     Page 2
and information on a protective order should charges ever be filed. (RR Vol. 4, p.

14-15; 30). Additionally, Mr. Castillo took photos of Ms. Bowie’s leg injuries. (RR

Vol. 4, p. 16). Mr. Castillo also testified that Ms. Bowie did not reveal to him that

she started the altercation with Mr. Gardner by throwing a bottle at him as she

previously stated to the police. (RR Vol. 4, p. 41-42). In filing paperwork with Mr.

Castillo, Ms. Bowie listed Mr. Gardner’s address as 4827 Brisbane Drive. (RR

Vol. 4, p. 45).

       On November 2, 2012, police were called to 4827 Brisbane because Ms.

Bowie and Mr. Gardner were arguing outside their residence. (RR Vol. 4, p. 61-

65). Ms. Bowie requested that Mr. Gardner leave their home, so police arrested

Mr. Gardner on the charge of public intoxication. (RR Vol. 4, p. 65-66). There was

no allegation or evidence of domestic violence. (RR Vol. 4, p. 76-77) During trial,

the arresting officer, J.W. James, was shown the deed for 4827 Brisbane Drive to

which he testified that Ms. Bowie’s name was listed on it. (RR Vol. 4, p. 70-71).

Officer James was also shown records from Sun Suites Motel, by which he

testified that Mr. Gardner was listed as renting a hotel room beginning November

2, 2012. (RR Vol. 4, p. 72-73). However, Officer James listed Mr. Gardner’s

address as 4827 Brisbane Drive (according to his driver’s license). (RR Vol. 4, p.

75).



                                       Page 3
      Following a night of drinking, doing cocaine, and smoking marijuana with

his friend Terrell “Nu-Nu” Lewis, Mr. Gardner returned to his residence at 4827

Brisbane Drive in the early morning hours of December 23, 2012. (RR Vol. 5, p.

164; 172). Mr. Lewis testified that Mr. Gardner backed his vehicle into the

driveway and then walked to the home’s front door. (RR Vol. 5, p. 174-175).

According to Mr. Lewis’ testimony, Mr. Gardner was “banging” on the front door

until Ms. Bowie answered. (RR Vol. 5, p. 175). Mr. Lewis then heard the voices of

Ms. Bowie and Mr. Gardner become agitated and soon thereafter heard breaking

glass. (RR Vol. 5, p. 176; 179). Mr. Lewis quickly moved into Mr. Gardner’s

driver seat and drove away from the scene. (RR Vol. 5, p. 179-184). Driving in a

vehicle with a multitude of Mr. Gardner’s personal belongings in it, Mr. Lewis

used Mr. Gardner’s cell phone to dial 911 and reported a domestic disturbance.

(RR Vol. 5, p. 166-167; 184). Mr. Lewis subsequently “misplaced” nearly all of

Mr. Gardner’s personal belongings in the car— including the vehicle’s tires—

before trial (RR Vol. 5, p. 231-232). Additional 911 calls were made shortly after

Mr. Lewis’ call reporting gunshots, and Officer Anthony Thomas was quickly

dispatched to the area. (RR Vol. 3, p. 74). While Officer Thomas was driving on

Brisbane shots were fired at his patrol vehicle (RR Vol. 3, p. 83-89). Officer

Thomas quickly drove away from the area and called for backup (RR Vol. 3, p. 90-

92). Nothing in the record indicates that Officer Thomas was injured in the

                                     Page 4
incident. A man, later identified as Mr. Gardner, then left 4827 Brisbane Drive in a

red Dodge Nitro just as other officers were arriving at the residence and they gave

chase (RR Vol. 3, p. 92; 142-145). During the course of the pursuit police fired at

Mr. Gardner because it appeared that he was holding a shotgun in a position that

suggested he may fire at officers pursuing him. (RR Vol. 3, p. 121) Mr. Gardner

subsequently wrecked the vehicle into another residence and was found in a nearby

backyard holding a shotgun (RR Vol. 3, p. 123; 132-134; 147-148). Mr. Gardner

and the shotgun were found covered in blood (RR Vol. 3, p. 133-134; 148-149).

      After finding Mr. Gardner nearly passed out in a back yard he was

transported by ambulance to Ben Taub hospital. (RR Vol. 3, p. 132; 236-238).

Houston Police Officer Jarvis Robin accompanied Mr. Gardner in the ambulance.

(RR Vol. 3, p. 238). Over the objection of Mr. Gardner’s counsel, Officer Robin

testified at trial that while riding in the ambulance, prior to being Mirandized, and

not being recorded, Mr. Gardner allegedly stated, “I should not have shot her. I’m

going to hell.” (RR Vol. 3, p. 238; 242; 247).

      Officer Jamie Exley of the Houston Police Department Crime Scene Unit

arrived at 5351 Glen Rio, the area of the end of the pursuit. (RR Vol. 3, p. 192).

Officer Exley made note of a blood trail from the vehicle crash site to the location

where Mr. Gardner was found and collected various ballistic evidence. (RR Vol. 3,

p. 196-225).

                                       Page 5
      Officer R.J. Standfield of the Houston Police Department arrived at 4827

Brisbane Drive shortly after Mr. Gardner left and observed broken glass on the

front porch, broken glass in the front living room, blood trails, pools of blood

throughout the house, and the body of Ms. Bowie on the front porch. (RR Vol. 4,

p. 97-99). Officer Standfield also observed bloody footprints throughout the house.

(RR Vol. 4, p. 109).

      Officer Daniel Nunez of the Houston Police Department Crime Analysis

Division arrived at 4827 Brisbane Drive later that morning. (RR Vol. 4, p. 132).

Officer Nunez identified, photographed, and collected various evidence throughout

the house, including male clothing. (RR Vol. 4, p. 144-219; 225). Officer Nunez

also photographed Ms. Bowie’s body and noted that her wounds indicated that she

fell or was pushed out the front window. (RR Vol. 4, p. 222). Officer James

Dueler, also with the Crime Analysis Division, diagramed the inside of the

residence and collected blood swabs. (RR Vol. 4, p. 232).

      Sergeant Richard Rodriguez, a homicide investigator for the Houston Police

Department, subsequently arrived at 4827 Brisbane Drive and attempted to

interview possible witnesses. (RR Vol. 5, p. 4-12). Additionally, he observed the

broken front window and testified that there was a possible forced entry. (RR Vol.

5, p. 75). Through the course of his investigation he was led to Mr. Lewis, who

cooperated fully. (RR Vol. 5, p. 37-39). Through Mr. Lewis, Sergeant Rodriguez

                                      Page 6
was able to recover personal documents, which listed Mr. Gardner’s address as

15015 West Airport Boulevard, Sugar Land, Texas on November 6, 2012. (RR

Vol. 5, p. 69). Sergeant Rodriguez did not go to this Sugar Land address in their

investigation. (RR Vol. 5, p. 86). The hotel Mr. Gardner was staying at prior to

December 22, 2012, was found completely empty. (RR Vol. 5, p. 89). Sergeant

Rodriguez testified that while attempting to interview Mr. Gardner, he observed

that Mr. Gardner had two large lacerations on his arm. (RR Vol. 5, p. 32).

      At trial, Ms. Donna Eudaley, a firearms examiner for the Houston Police

Department Crime Laboratory, testified that all shotgun shells located at or near

4827 Brisbane Drive were fired from the weapon that was found with Mr. Gardner.

(RR Vol. 5, p. 275-304).

      Ms. Amanda Duda, a DNA analyst at Bodie Technology, testified that blood

swabs taken from the shotgun contained the same male DNA profile. (RR Vol. 5,

p. 95; 100-103).

      Jennifer Clay, a DNA analyst at the Houston Forensic Science Center,

testified that all but one tested blood swab taken from 4827 Brisbane Drive and all

samples taken from the shotgun could not eliminate Mr. Gardner as a major

contributor to the samples collected. (RR Vol. 5, p. 106-153). Connie Bowie could

not be eliminated as a major contributor to one blood swab collected. (RR Vol. 5,

p. 141-142).

                                      Page 7
      Dr. Merrell Hines testified that, according to autopsy reports prepared by

another medical examiner who actually preformed the autopsy on Ms. Bowie, it

appeared the cause of death was a shotgun wound to the head and torso. (RR Vol.

5 p. 252; 273).




                                    Page 8
                             GROUND FOR REVIEW


                Whether evidence is insufficient to support the jury’s
               verdict that Appellant committed the offense of capital
               murder as there was insufficient proof of the predicate
                 crime of burglary because this Court’s decision in
               Fearance and its progeny has been misinterpreted and
                                should be revisited.




                   SUMMARY OF REASONS FOR REVIEW

      Review is proper pursuant to TEX. R. APP. PROC. 66.3. The court below correctly

applied decisions of this Honorable Court. However, this Court should revisit the

Fearance decision and its progeny. The continued affirmation of the misinterpreted

holding in Fearance is an unlawful expansion of the death eligibility for murder. This is

an important question of state and federal law that should be closely examined by the

Court of Criminal Appeals.




                                         Page 9
                            REASONS FOR REVIEW

         When conducting a sufficiency review, an appellate court should view all

evidence in the light most favorable to the verdict and determine whether any

rational trier of fact could have found the essential elements of a crime beyond a

reasonable doubt. Salinas v. State, 163 S.W.3d 734, 737 (Tex. Crim. App. 2005);

Jackson v. Virginia, 443 U.S. 307, 318 (1979).

          The evidence in this case did not meet legal sufficiency standards. In this

case, the State was obligated to present evidence that Appellant (1) intentionally

killed Connie Bowie, (2) in the course of committing the crime of burglary which

requires proof that Appellant (3) entered the residence without her consent, and (4)

with the intent to commit or committing (5) (a) theft or (b) assault or (c) a felony.

Burglary requires more than unlawful entry; it requires the commission or attempt

to commit an assault, theft or other felony while in the course of the unlawful

entry.

          There is nothing in the record to suggest or support that Appellant had the

intent to commit a theft or intended to commit an assault prior to his entry into his

home. There is nothing in the record to suggest or support that Appellant

committed a theft after he entered his home or committed an assault once inside.

There is nothing in the record to suggest or support that Appellant intended to

commit a felony when he entered his home.

                                       Page 10
        There is evidence that Appellant committed one felony while inside his

house; the murder of Connie Bowie. However, the state should not be able to turn

murder into a capital murder by proving that the Appellant committed murder

while in the course of committing burglary by murder. This is illogical. Such a

statutory construction allows the state to “double dip”, using one act or offense two

times in the same charge. The court of appeals upheld Appellant’s conviction

citing the holdings by this Court in Fearance v. State, 771 S.W.2d 486 (Tex. Crim.

App. 1988), and its progeny.

      Appellant contends this Court should grant review because a reassessment is

needed of the line of case law originating from Fearance. This case has been

subsequently cited to support a conclusion for which the original opinion did not

stand. This Court should correct this misinterpretation of this body of capital

murder case law and prevent the continued expansion of capital eligible homicides.

      In 1972, in response to the United States Supreme Court holding in Furman

v. Georgia 408 U.S. 23892 S.Ct. 272633 L.Ed.2d 346 (1972), the Texas

Legislature enacted a new statutory scheme that narrowed the scope of its laws

relating to capital crimes. In Jurek v. State, 522 S.W.2d 934 (Tex. Crim. App.

1975) the Texas Court of Criminal Appeals upheld the constitutionality of the new

capital murder statute and stated:



                                      Page 11
             First, Article 1257, supra, [now Section 19.03, Texas
             Penal Code] limits the circumstances under which the
             State may seek the death penalty to a small group of
             narrowly defined and particularly brutal offenses. This
             insures that the death penalty will be only imposed for
             the most serious crimes. It also insures that the death
             penalty will only be imposed for the same type of
             offenses, which occur under the same types of
             circumstances.

      Id. at 939. See also Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950,
      49 L.Ed.2d 929 (1976) (upholding the constitutionality of the
      Texas capital murder statute).

      The body of case law stemming from Fearnace represent a misreading of

that case’s original holding. Fearance doesn’t stand for the proposition for which

it, and the cases that follow, have been continually cited.

      The Fourteenth Court of Appeals affirmed Appellant’s conviction following

a strict adherence to the body of case law stemming from Fearance. The following

chart diagrams the “family tree” of Fearance case law. The Fourteenth Court of

Appeals was constrained by this body of case law that has stretched the death

eligibility of murder cases beyond a place contemplated by Furman or Jurek. This

Court should undo the damage done by this trend before this area of capital murder

jurisprudence is stretched beyond recognition and United States Supreme Court

limitations become meaningless.




                                       Page 12
                                       Fearance
                            771 S.W.2d 486 (Tex. Crim. App.
                                        1988)




      Homan                    Matamoras                          Boyd                   Beathard
19 S.W.3d 847 (Tex. Crim.   901 S.W.2d 470 (Tex. Crim.    811 S.W.2d 105 (Tex. Crim.   767 S.W.2d 423 (Tex.
       App. 2000)                  App. 1995)                    App. 1991)              Crim. App. 1989)




      Brown                      Russeau                       Whitaker
92 S.W.3d 655 (Tex. App.    171 S.W.3d 871 (Tex. Crim.    394 S.W.3d 90 (Tex. App.
         2002)                     App. 2005)                      2012)




     Jackson                     Gardner
424 S.W.3d 140 (Tex. App.   306 S.W.3d 274 (Tex. Crim.
         2014)                     App. 2009)




                                McGregor
                            394 S.W.3d 90 (Tex. App., -
                               Houston [1st], 2012)




                                                  Page 13
                 CONCLUSION AND PRAYER FOR RELIEF

      FOR THESE REASONS, Appellant prays this Court Appellants

respectfully pray that this Honorable Court grant their Petition for Discretionary

Review, set this case for oral argument, and reverse the decision of the court of

appeals, entering a judgment of acquittal on appeal.

                                       Respectfully submitted,


                                         PATTI SEDITA
                                         State Bar No. 00787484
                                         One Sugar Creek Center Blvd., #1045
                                         Sugar Land, TX 77478
                                         281.313.4225
                                         Counsel for appellant


                         CERTIFICATE OF SERVICE

      I certify that I delivered a copy of the Appellant’s Petition for Discretionary

Review to the Harris County District Attorney’s Office, Appellate division, via

efiletex.gov, on this the 30th of October 2015.


                                       Patti Sedita




                                       Page 14
                      STATEMENT OF WORD COUNT

      In compliance Texas Rules of Appellate Procedure, the number of words in

this petition, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1). as counted

by the word processing program used is 2382.

                                      _________________
                                      Patti Sedita




                                      Page 15
                Exhibit A
 Affirmed and Opinion filed October 1, 2015.




                 In The



Fourteenth Court of Appeals



           NO. 14-14-00690-CR




HERBERT GARFIELD GARDNER,

              Appellant V.

 THE STATE OF TEXAS, Appellee




 On Appeal from the 180th District
   Court Harris County, Texas
  Trial Court Cause No. 1372136


                 Page 16
                                     OPINIO N




Appellant, Herbert Garfield Gardner, appeals from his conviction for capital murder. A jury
found appellant guilty, and the trial court sentenced him to mandatory life in prison. While
appellant concedes that he intentionally murdered the complainant, he contends in two issues
that the evidence was insufficient to prove that he did so in the course of committing a
burglary, the aggravating factor that elevated the murder to a capital offense. We affirm.




                                           Page 17
                             Background



On December 23, 2012, appellant shot and murdered complainant Connie Bowie inside her
home in Houston, Texas. It was undisputed at trial that Bowie owned and lived in the home at
the time of the murder and that previous to the murder, appellant was in a romantic relationship
with Bowie and had lived with her at the property for around four years.
Officer J.W. James of the Houston Police Department testified that on November 2, 2012, he
responded to a disturbance call at the home to find appellant and Bowie arguing in the street.
James reported that Bowie appeared fearful and had asked appellant to leave. Appellant was then
arrested for public intoxication. Records obtained from the Sun Suites Hotel and admitted into
evidence revealed that appellant began renting a room at the hotel on the same day as the
disturbance, November 2, 2012, and continued to rent a room there until December 23, 2012, the
                         1
day before the murder.

Terrell Lewis testified that he was a friend of appellant’s prior to the murder and went out
drinking and taking drugs with appellant on the evening of December 22, 2012 until the early
morning hours of December 23. According to Lewis, appellant had several suitcases and bags in
his car at the time and explained that he had “been staying in a room.” When Lewis and appellant
left a club for appellant to drive Lewis home, appellant instead drove to Bowie’s home and
                                      2
backed his car into the driveway. Appellant exited but left the vehicle running. He then
approached the home and began banging on the front door. At that point, Lewis could hear
appellant and Bowie talking through the door. Appellant sounded



        1
            The murder occurred in the early morning hours of December 23, 2012.

        2
            Lewis identified the house in a photograph that was otherwise established to be of the

home.




                                                  2
angry. Bowie told him “[j]ust come back, come back,” “[c]ome back. I’m sleeping,” and “[c]ome
back in the morning, we’ll talk.” Lewis then heard a window break, and when he turned to look
at the house again, he could no longer see appellant. Lewis called to appellant “[w]hat . . . you
doing?” and moved to the driver’s side of the car. When appellant did not come out of the house
after a few seconds, Lewis drove to the end of the street, called 9-1-1, and reported “domestic
violence.”

Officer Anthony Thomas testified that on the morning of December 23, 2012, he was dispatched
to the home for an assault in progress. As he approached, he heard a gunshot and his rear
window “exploded.” Thomas then saw a man standing about ten feet away pointing a shotgun at
    3
him. The man fired twice more as Thomas sped away. After reporting that shots had been fired,
Thomas returned to the area and saw the man with the shotgun enter a red Dodge Nitro and drive
away. Thomas and two other police vehicles gave chase, soon joined by several others. The Nitro
eventually crashed into a house, and appellant was identified as the driver and transported by
ambulance to the hospital. An officer described appellant at that point as having blood on him
“from head to toe.” Officer     Jarvis
Robins rode with appellant in the ambulance and reported that on the ride, appellant said, “I
should not have shot her,” and “I’m going to hell.”
Officer Rodrick Standfield testified that he also responded to the crime scene that morning and
discovered Bowie’s body lying on the front porch with one foot still inside the window. She
appeared to have suffered shotgun wounds to the face and torso. The inside of the home appeared
to have been ransacked; broken glass and blood drops were “all over” and there were “pools
of blood in every room.”



        3
            Under the circumstances, Thomas was unable to make a positive identification of the

man with the shotgun.




                                                3
Standfield also observed spent shotgun shells.



Sergeant Daniel Nunez, a crime scene unit supervisor, investigated the murder scene and
concluded that someone had used “a good amount of force” to break into the home through the
front window. Blood patterns near the window were “consistent with someone breaking in,
pushing in through the window,” cutting an arm, and starting to bleed. Sergeant Richard
Rodriquez with the HPD Homicide Division opined based on his experience and training that the
window initially was broken by someone coming in through the window and not by Bowie having
fallen out through the window. He further explained that it appeared someone had walked through
the house “spurting out blood.” When appellant was arrested, he had two severe lacerations on his
arm, which Rodriquez stated would explain the blood pattern observed at the home. Subsequent
DNA testing of blood samples taken at the home produced positive matches to appellant’s blood.
Rodriquez additionally noted that only two items found in the home appeared to belong to a
male—a pair of jeans and a pair of boots—and that a vehicle registration receipt found among
appellant’s possessions and dated November 6, 2012, showed a different address than Bowie’s
home for appellant.
The jury charge permitted the jury to find appellant not guilty, guilty of murder, or guilty of
capital murder. The jury found appellant guilty of capital murder.

                                     Standards of Review



As charged in this case, a person commits capital murder if he intentionally or knowingly causes
an individual’s death while in the course of committing or attempting to commit burglary. Tex.
Pen. Code § 19.03(a)(2). A person commits burglary if, without the effective consent of the
owner, he: (1) enters a building or habitation with intent to commit a felony, theft, or an
assault, or (2) enters a




                                                 4
building or habitation and commits or attempts to commit a felony, theft, or assault. Tex. Pen.
Code § 30.02(a)(1), (3).
In assessing whether evidence is sufficient to support a conviction, we view all of the evidence in
the light most favorable to the verdict and determine, based on that evidence and any reasonable
inferences therefrom, whether any rational fact finder could have found the elements of the
offense beyond a reasonable doubt. Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011)
(citing Jackson
 v. Virginia, 443 U.S. 307, 318–19 (1979)). We may not substitute our judgment
 for that of the fact finder; rather, we defer to the fact finder to fairly resolve
 conflicts in testimony, weigh the evidence, and draw reasonable inferences from
 basic facts to ultimate facts. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App.
 2010). If any rational trier of fact could have found the essential elements of the
 crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d
 607, 614 (Tex. Crim. App. 1997).

                                          Unlawful Entry



In his first issue, appellant contends that the evidence was insufficient to prove the unlawful entry
element of burglary. Appellant emphasizes that he had lived at the home where the murder
occurred for four years prior to the murder, the address was listed as his residence on his driver’s
license, and neighbors observed him regularly coming and going from the home. On that basis, he
insists he had an equal right to possession of the property and thus could not be found to have
entered without the owner’s effective consent.
The record, however, contains numerous pieces of evidence indicating that, while appellant may
at one time have had a right to enter and possess the premises, he had lost that right before the
murder occurred. This evidence includes:




                                                  5
        • Complainant was the sole owner of the property as listed on the
          property deed.
        • On November 2, 2012, more than seven weeks before the murder,
          a police officer responding to a disturbance call at the residence
          heard complainant ask appellant to leave.

        • Hotel records beginning on the same date, November 2, 2012,
          show appellant rented a hotel room from that date until the day
          before the murder.
        • A friend of appellant’s, who was with appellant for several hours
          immediately prior to the murder and rode to the crime scene with
          appellant, reported appellant had several suitcases and bags in his
          car and told the friend he had “been staying in a room.” The same
          friend stated that when they arrived at the house, appellant banged
          on the door and complainant told him to come back later. The
          friend then heard glass break and no longer saw appellant. The
          clear implications being that appellant had not been staying at the
          house and did not have a key, the complainant did not want
          appellant to enter the house at that time, and appellant nonetheless
          entered by breaking into a window.

        • A front window of the home was broken and blood was observed
          around the window and throughout the house, suggesting an
          intruder had cut his arm while entering through the window and
          then walked around the house bleeding. When found, appellant
          had two severe lacerations on his arm. Blood inside the home was
          determined to be appellant’s.
        • After the murder, a search of the premises revealed that the only
          male-related items in the home were a pair of jeans and a pair of
          boots, suggesting no male was living in the home at the time of the
          murder.

        • A vehicle registration receipt discovered among appellant’s
          possessions and dated November 6, 2012, showed a different
          address than the complainant’s home for appellant.
This evidence was sufficient for a rational jury to conclude that appellant no longer lived at the
home and no longer had the owner’s consent to enter the home


                                                6
at the time of the murder. See, e.g., Gregg v. State, 881 S.W.2d 946, 952 (Tex. App.—Corpus
Christi 1994, pet. ref’d) (“[T]he evidence is sufficient for a rational trier of fact to have found
beyond a reasonable doubt that appellant, who had not been a member of his wife’s household
for seven months, was not welcome there and was not permitted to just enter in at will.”);
Hudson v. State, 799 S.W.2d 314, 315-16 (Tex. App.—Houston [14th Dist.] 1990, pet. ref’d)
(holding burglary defendant had lost right of possession to girlfriend’s apartment          when,
although they once lived together, she later made him move out).        The evidence further
supports the conclusion that complainant, the homeowner, denied appellant entry shortly before
                                                                   4
the murder and appellant then forced his way in through a window.

Because the evidence was sufficient to prove the unlawful entry element of burglary, we overrule
appellant’s first issue.

                  Commission of a Felony



In his second issue, appellant contends the evidence was insufficient to prove that when he
entered complainant’s home, he committed or intended to commit a felony, theft, or assault.
Appellant primarily argues under this issue that the State impermissibly attempted to use his
murder of complainant in two ways: to establish the murder requirement for capital murder and
to establish the felony component of the underlying burglary in order to elevate the murder to
capital murder. As the State points out and appellant concedes, however, the Court of Criminal
Appeals has held in several cases that a murder occurring after a break-in
        4
            During oral argument, appellant’s counsel pointed out that there was no evidence

regarding what, if anything, had transpired on the day of the murder between appellant and the

complainant before he arrived at the house. Counsel even speculated that appellant may have

been moving back in and simply forgot his key. This argument, however, ignores the evidence

suggesting appellant broke in while the complainant was inside the home telling him to come

back later. That testimony, along with all of the evidence recited in the text above, clearly




                                                7
supports the conclusion that appellant did not have permission to enter the premises, much less

an equal right to possession of the premises on the day of the murder, as counsel suggests.




                                                8
can indeed serve as both the basis for the murder charge and the underlying felony required for
burglary. See Gardner v. State, 306 S.W.3d 274, 287 (Tex. Crim. App. 2009) (“In a prosecution
for capital murder based on burglary, the requirement that a felony be intended is satisfied by the
murder of the victim.”); Homan v. State, 19 S.W.3d 847, 848 (Tex. Crim. App. 2000) (reversing
court of appeals which held the murder of complainant could not be used to turn entry into home a
burglary); Matamoros v. State, 901 S.W.2d 470, 474 (Tex. Crim. App. 1995) (holding evidence
was sufficient to prove burglary component of capital murder where defendant entered
complainant’s home without his consent and killed complainant).
Nonetheless, appellant urges this court to adopt the reasoning set forth in a dissent in Homan,
wherein the dissenting justice argued that it would be illogical to allow the State to use the murder
of the complainant to “bootstrap” a murder offense into a capital murder offense. 19 S.W.3d 849-
51 (Johnson, J., dissenting). Of course, under stare decisis, this court is bound to follow the
precedent established by the Court of Criminal Appeals majority. See Lewis v. State, 448 S.W.3d
138, 146 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d); see also State of Texas ex rel. Vance
v. Clawson, 465 S.W.2d 164, 168 (Tex. Crim. App. 1971) (“The Court of Criminal Appeals is the
court of last resort in this state in criminal matters. This being so, no other court of this state has
authority to overrule or circumvent its decisions, or disobey its mandates.”); Mason v. State, 416
S.W.3d 720, 728 n.10 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (“When the Court of
Criminal Appeals has deliberately and unequivocally interpreted the law in a criminal matter, we
must adhere to its interpretation under the dictates of vertical stare decisis.”).
         Appellant additionally attempts to distinguish the several Court of Criminal




                                                    9
Appeals cases on this issue, arguing that each of them involved other aggravating factors that
are not present in this case. Whether or not the factors noted actually were present in these
cases, it is clear that they played no role in the higher court’s analysis. In Gardner, Homan, and
Matamoros, the Court held that it was the murder of the complainant that completed the
burglary, not another aggravating factor. See Gardner, 306 S.W.3d at 287; Homan, 19 S.W.3d
at 848; Matamoros, 901 S.W.2d at 474. Accordingly, the lack of other aggravating factors in
this case does not necessitate reversal.

Because the evidence was sufficient to prove appellant committed a felony upon his unlawful
entry into complainant’s home, we overrule his second issue.
        The trial court’s judgment is affirmed.




                                              /s/     Martha Hill Jamison

                                                      Justice




Panel consists of Justices Jamison, McCally, and Wise. Publish —

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