No. 14-07-00792-CR
Opinion filed November 18, 2008. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 180th District Court Harris County, Texas, Trial Court Cause No. 1064518.
Panel consists of Justices ANDERSON and FROST, and Senior Justice HUDSON.
Senior Justice J. Harvey Hudson sitting by assignment.
J. HARVEY HUDSON, Senior Justice.
Appellant, Tyrone Burnell Dixon, Jr., was convicted of capital murder and sentenced to life in prison. In his sole issue on appeal, he contends the trial court erred in refusing to submit an instruction on the lesser-included offense of murder. We affirm.
BACKGROUND
On August 8, 2006, while working at the Speedo Gas and Food Store ("the Store"), Rehan Ur Rehman, the complainant, died after he was shot twice in the head. Two witnesses, Markeka Venteres and Latonya Whitley, testified at trial that they observed appellant leaving the Store wearing a brown sweat suit with a hood over his head with his hands in his pockets, despite the hot weather. He was acting strange and there appeared to be something heavy in his pockets. Venteres testified that she and her boyfriend walked past appellant as he exited the Store on their way inside. Upon entering the store, Venteres and her boyfriend discovered the complainant's body behind the sales counter. Venteres testified that she and her boyfriend immediately called 9-1-1 from the parking lot and prevented others from entering the Store until the police arrived. Earlier that day, appellant's employer, Harold Nash, spoke with appellant outside of Nash's home. At the time, Nash lived in an apartment complex across the street from the Store. Nash testified that appellant was wearing a brown sweat suit and brown boots. Appellant told Nash that he was going to the Store and that he would return to the apartment with beer. Following their conversation, Nash went inside his apartment, and appellant began walking toward the Store. After appellant failed to return with beer, Nash and his stepson walked to the Store to purchase beer. When they arrived at the Store, they discovered the clerk had been shot. Michael Jones, a deputy with the Harris County Sheriff's Department, was the first officer to arrive at the scene. Upon entering the store, Jones noticed bloody footprints on the floor. The footprints began behind the counter next to the body and led out the front door. Charles Reece, a crime scene investigator for the Sheriff's Department, testified that the footprints were all made by the same right shoe shortly after the complainant was shot. One bullet was found on the floor of the Store while the other was recovered from the complainant's head. A five dollar bill was found on the floor behind the counter near the complainant's body. Police also found a jar and a cigar box full of coins under the sales counter and $2,060 in cash in a desk drawer in the office. Appellant was arrested when he returned to Nash's apartment complex later that day. That evening, Venteres and Whitley both identified appellant as the person they had seen leaving the Store, even though he was wearing different clothing at the time of their identification. Police found $417 in cash and several rolls of coins wrapped in plastic on appellant's person when he was arrested. DNA testing of blood recovered from several of the bills in appellant's possession indicated it was the complainant's blood. Simon Thomas, another store employee, testified that the store regularly kept rolls of coins wrapped in plastic like those found in appellant's pockets. Thomas also testified that the cash register was empty and that approximately $800 was missing from the Store following the shooting. The following day, police searched the home of Howard Handy, a pastor at a Houston area church. Appellant was living in Handy's home at the time of the murder. Appellant was unemployed when Handy offered him a room so he could help him find work. The police found a brown sweat suit and brown boots when they searched appellant's room. Blood found on the sweat suit pants and the right boot was determined to be the complainant's through DNA testing. A Davis Industry Model .32 caliber firearm, two live rounds of .32 ammunition, and two fired shell casings were found in the pockets of the brown sweat suit along with several rolls of coins. Using ballistics analysis, it was determined that the gun found in appellant's room had fired the two bullets that killed the complainant. STANDARD OF REVIEW
To determine whether a jury should be charged on a lesser-included offense, we must first decide whether the crime is, in fact, a lesser-included offense of the offense charged. Feldman v. State, 71 S.W.3d 738, 750 (Tex.Crim.App. 2002). We then determine whether some evidence exists from which a jury could rationally acquit the defendant of the charged offense and convict him only of the lesser-included offense. Id. at 750-51. Anything more than a scintilla of evidence is sufficient to entitle a defendant to a charge on the lesser-included offense, regardless of whether that evidence is weak, impeached, or contradicted. Saunders. v. State, 840 S.W.2d 390, 391 (Tex.Crim.App. 1992); Stadt v. State, 120 S.W.3d 428, 438 (Tex.App. Houston [14th Dist.] 2003), aff'd 182 S.W.3d 360 (Tex.Crim.App. 2005). In determining whether the trial court erred in failing to give a charge on the lesser included offense, we review all of the evidence presented at trial. Rousseau v. State, 855 S.W.2d 666, 673 (Tex.Crim.App. 1993) (citing Havard v. State, 800 S.W.2d 195, 216 (Tex.Crim.App. 1989) (opinion on reh'g)). ANALYSIS
Appellant was indicted for capital murder on the theory that he intentionally caused the shooting death of the complainant while in the course of committing or attempting to commit the robbery of the complainant. See Tex. Penal Code Ann. § 19.03 (Vernon Supp. 2008). The first prong of the test has been met because murder is necessarily a lesser-included offense of capital murder. See id.; McKinney v. State, 207 S.W.3d 366, 370 (Tex.Crim.App. 2006). We must now determine whether there is some evidence that appellant is guilty only of murder. Appellant argues that the fact police recovered some, but not all, of the money from the crime scene is evidence that he did not commit robbery. He claims this evidence, coupled with the lack of any direct evidence of his involvement in the robbery, demonstrates that he is guilty only of murder and not capital murder because the murder did not occur during the course of a robbery. Because the same evidence that appellant concedes connects him to the murder also implicates him in the robbery, we hold that the trial court did not err in refusing to instruct the jury on the lesser-included offense. It has been established that intent to commit robbery may be inferred from circumstantial evidence. Wolfe v. State, 917 S.W.2d 270, 275 (Tex.Crim.App. 1996). Although there was no direct evidence that appellant committed robbery presented at trial, the state introduced considerable circumstantial evidence of robbery. Appellant was the last person seen leaving the store just before the discovery of the complainant's body, and the gun used to kill him was found in the pockets of the sweat suit appellant was seen wearing as he left the Store. Rolls of coins like those customarily kept in the Store were also found in appellant's sweat suit. Appellant was carrying cash stained with the complainant's blood at the time of his arrest. Appellant's sweat suit and right boot also had the complainant's blood on them, and there were footprints made by his right boot leading from the complainant's body behind the counter to the front door. The cash register was empty and $800 was missing from the Store. The jury could easily infer from the circumstantial evidence presented that appellant went behind the counter after shooting the complainant and took money from the cash register. Appellant also argues that the lesser-included offense instruction should have been included in the jury charge because the police found money in the store following the murder. Appellant claims that the presence of money at the Store after the murder proves that he did not commit robbery. However, proof of a completed theft is not required to establish the underlying offense of robbery or attempted robbery. Bustamante v. State, 106 S.W.3d 738, 740 (Tex.Crim.App. 2003) (citing Maldonado v. State, 998 S.W.2d 239, 243 (Tex.Crim.App. 1999)). To show attempted robbery, the State must prove beyond a reasonable doubt that appellant had the specific intent to commit robbery and that appellant committed an act amounting to more than mere preparation for robbing the victim. See Tex. Penal Code Ann. § 15.01 (Vernon 2003); Maldonado, 998 S.W.2d at 243 (Tex.Crim.App. 1999). If the State introduced evidence from which the jury could rationally conclude that appellant possessed the specific intent to obtain or maintain control of the victim's property either before or during the commission of the murder, it has proven the murder occurred in the course of robbery. See Williams v. State, 937 S.W.2d 479, 483 (Tex.Crim.App. 1996); Robertson v. State, 871 S.W.2d 701, 705 (Tex.Crim.App. 1993); Nelson v. State, 848 S.W.2d 126, 132 (Tex.Crim.App. 1992). In resolving this question, the requisite intent may be inferred from circumstantial evidence and from the defendant's conduct. Wolfe, 917 S.W.2d at 275; Robertson, 871 S.W.2d at 705. Given the extensive circumstantial evidence presented at trial indicating that appellant went behind the sales counter after shooting the complainant and removed cash from the Store, we find that the jury could have rationally concluded that appellant had the specific intent to commit robbery. Thus, there is no evidence in the record from which a rational fact finder could find that he was guilty only of the lesser-included offense of murder. CONCLUSION
We find that the trial court did not err in denying appellant's requested charge on the lesser-included offense of murder. The judgment of the trial court is affirmed.