Opinion
No. 05-19-00349-CR
08-13-2020
RONALD GAYLON ROSSER, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 199th Judicial District Court Collin County, Texas
Trial Court Cause No. 199-81000-2015
MEMORANDUM OPINION
Before Justices Schenck, Molberg, and Nowell
Opinion by Justice Molberg
Ronald Gaylon Rosser appeals his capital murder conviction. On appeal, he claims the evidence was insufficient, the trial court erred by denying his motion to suppress, and the trial court erred by denying his motion to strike a juror for cause. We affirm the trial court's judgment. See TEX. R. APP. P. 47.4.
In two issues, Rosser challenges the sufficiency of the evidence to support that he committed the murder and, separately, that he did so for remuneration or in the course of burglary. We review a challenge to the sufficiency of the evidence on a criminal offense under the standard set forth in Jackson v. Virginia, 443 U.S. 307 (1979), to wit, viewing the evidence in the light most favorable to the verdict, we determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Acosta v. State, 429 S.W.3d 621, 624-25 (Tex. Crim. App. 2014); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2011).
The jury charge authorized a guilty verdict if the jury found beyond a reasonable doubt that Rosser, "either acting alone or with another, namely Stephen Brockway, Chansamorn Pokai, or both, as a party to the offense . . . did then and there intentionally or knowingly cause the death of an individual, namely, Richard Moore, by shooting Richard Moore with a firearm, for remuneration or the promise of remuneration" or "in the course of committing or attempting to commit the offense of burglary of a habitation." See TEX. PENAL CODE §§ 19.03(a)(2), (3); 30.02(a)(3). Rosser challenges the sufficiency of evidence to support the verdict under either theory.
There was little direct evidence to support conviction here, but convictions may be supported by circumstantial evidence alone, especially "when the defendant takes steps to eliminate witnesses and conceal other forms of evidence." See Gardner v. State, 306 S.W.3d 274, 285 (Tex. Crim. App. 2009); Ex parte Weinstein, 421 S.W.3d 656, 668 (Tex. Crim. App. 2014). The jury may infer intent to commit murder from circumstantial evidence, including a defendant's acts or words. Weinstein, 421 S.W.3d at 668.
Moore was found naked on his bathroom floor on February 27, 2015, shot four times in the front of his head, three times in the back of his head, and once in his right arm. There were five spent .22 caliber cartridge casings under, on, or near his body, and an investigator testified these casings came from a semiautomatic firearm. A forensic scientist testified the unique defects on each shell casing at the scene were potentially indicative of some type of silencer having been used. The forensic scientist told the jury the weapon was a firearm capable of chambering and firing a .22 long or .22 long rifle caliber cartridge, and either a pistol, revolver, or rifle could have fired that cartridge. There was one bullet and several bullet fragments inside Moore's head.
No neighbors reported hearing shots. There was no sign of forced entry. A neighbor's surveillance camera showed a person either large-of-build or in bulky clothes enter the side of Moore's house at 11:48 a.m. and a similar person leave the house at 11:56 a.m.
Pokai, Moore's wife, came home around lunchtime, while firefighters were at the house. She had a store receipt indicating that she had been shopping at the time of the murder and store footage confirmed this. She also said she had gone to pick up her children from school, and they were in her car when she returned. Pokai told investigators there had been $17,000 in a safe in the house, which police found open and empty. Pokai consented to a search of the home, her car, and her phone. According to a detective, when she voluntarily spoke with him, she "was quiet, appeared to be relaxed" and there "wasn't a lot of crying or a whole lot of stress that you see in some victims." A neighbor, Ed Myrick—who also was a friend of Brockway—soon appeared and told police neither Pokai nor anyone else in the Moore family would speak to them. This seemed odd to them, given that Pokai had been cooperative.
Four days later, investigators learned from one of Moore's adult daughters from another marriage that Pokai had been in a relationship with Brockway, a family friend. She said Moore had seemed unhappy of late and that he and Pokai "were quite off with each other." She said Pokai looked mad and unhappy and she related that in January, Moore told her Pokai had bitten his arm such that it left a flap of skin hanging. She also said her father had a girlfriend in Thailand he had recently visited.
A police detective and a Texas Ranger were the primary investigators. We refer to them in more general terms unless a specific reference to one of the two is necessary.
Brockway accepted an invitation to meet with investigators. He invoked his right to remain silent but gave them a timeline of his day on February 27, and he provided them a receipt. He offered the investigators a .357 handgun, which they did not take because they knew it could not have fired the shots that killed Moore. Notably, they had not told Brockway that Moore had been shot, so his presentation of the firearm indicated to them that he had some knowledge of the events surrounding Moore's demise. Brockway also provided his cell phone. As a result of their limited interaction with Brockway, police learned Brockway had met with Rosser the day Moore was killed.
It is not clear from the testimony what the receipt was for. An investigator testified the receipt did not "prove or mean anything to [him]" because of the security surveillance video footage the investigators had.
The State notes in briefing that Brockway appeared at the police station for his interview with an attorney, "although no one had told him he was a suspect." We discern nothing suspicious in the least about a person appearing at a police station with counsel when being asked to relate his timeline of the day a man whose wife he was having an affair with was killed.
The investigators showed up unannounced at Rosser's Longview house to request an interview and he complied, riding with them to the local sheriff's office. According to investigators, Rosser was very friendly and open. He explained that he drove to Dallas on the day of the murder to meet with a financial advisor but he did not make the meeting due to worsening weather and instead decided to meet with Brockway to discuss a tiling project Rosser would do for him. Brockway had told police he and Rosser discussed a popcorn ceiling job. The financial advisor told police he did not have a meeting scheduled with Rosser. Rosser indicated he drove home in the afternoon once the weather cleared up, though the weather actually worsened in the afternoon. The Ranger testified that Rosser's story "conflicted and changed and evolved as we interviewed him."
Rosser testified at trial that he had not told the truth during this interview for fear of being prosecuted for his marijuana operation and that the real purpose for going to Dallas was to sell a large quantity of marijuana to Brockway. He also explained that he and Brockway spoke in a kind of code about the marijuana transaction, talking about construction-type projects, to explain why Brockway said "popcorn ceiling" and he said "tiling job." Rosser consented to a search of his phone.
The phone showed Rosser's internet search history. Six days before Moore's death, Rosser searched for local gun shows. Four days before Moore's death, Rosser searched for "How far will a .22 long rifle kill"; "Best way to quiet down a .22 LR rifle?"; "How to Make an easy homemade rifle silencer"; "PVC Pipe Suppressor .22LR"; and "How to Make a Suppressor." A State witness said a .22 is not a loud gun that would ordinarily need a silencer. At trial, Rosser agreed .22s are quiet and that there is no need to silence them. At trial, Rosser also explained he had bought a .22 "off the internet" for his girlfriend's son and he wanted to fix it up with a suppressor so it would look cool. He said he searched the internet as described because he was not sure if that would affect the gun's range or accuracy.
Based on Rosser mentioning his girlfriend, Tracy Bowers, and by indicating she could confirm his alibi, police spoke to her the next day. Bowers did not "vouch for him." Instead, she told them Rosser possessed and sold guns and conducted a marijuana-growing operation at his home. She helped police set up a gun-buy, and this led to Rosser's arrest. Bowers was the confidential informant supplying information for the affidavit in support of a search warrant for Rosser's house.
During the search, police found a box for a .22 caliber rifle in Rosser's home, but no rifle. Rosser explained that he kept the rifle at his father's home. Rosser's father testified his son was not allowed to possess guns due to a felony DWI conviction and a .22 matching the description on the box from Rosser's house remained locked up in his gun safe where it had been since before Moore's death. In their search, police also found various calibers of bullets, magazines, and a Bank of America envelope.
The envelope held several pictures of Moore and a piece of 8.5 x 11-inch paper. Moore's name was at the top of the paper, followed by his home address, and the descriptions and license plates of the two vehicles associated with his house. Police found Brockway's fingerprints on the paper. Rosser admitted at trial that Brockway gave him the envelope, and that he was considering going into business with Moore, who he said was to provide grow lights for his marijuana operation.
Further evidence demonstrated Rosser's phone pinged the same cell tower as both Pokai's and Brockway's two weeks before Moore's death, and that the tower was the closest one to Moore's house. At trial, Rosser testified he had been delivering marijuana to Brockway, and that, once there, Brockway drove them around the area. Because Brockway lived near Moore, he surmised he could have been close enough to connect to the cell tower nearest Moore's house. Rosser also denied having met Pokai, and no evidence showed the two exchanged text messages or phone calls.
Rosser and Brockway exchanged several phone calls and multiple texts before and after the eight-minute-window during which the large person was in Moore's house and the State believed Moore was murdered. Brockway and Pokai also texted that morning about the weather and her leaving the house given the weather. Generally, when Rosser had a question about Pokai's whereabouts that morning, Brockway then texted Pokai. For example, Rosser asked Brockway if "she" would be leaving the house or if schools would close early due to the weather and Brockway then texted Pokai asking if she would leave and whether she thought schools would close. Pokai confirmed she would be leaving the house. The State emphasized that Rosser failed to answer a Brockway call during the window the person was in Moore's house, but the two had talked before and then approximately thirty minutes later. That said, Rosser's cell phone never pinged off the tower closest to Moore's house on the day of Moore's death, though it remained near Brockway's home during the time Moore was killed, some fifteen minutes away. In all, Rosser and Brockway were in contact by phone some seventy-eight times in February. Brockway and Pokai were in contact by phone eighty-four times that month.
Rosser had deleted many of these text messages and explained at trial that he customarily deleted old text messages. In response to the State noting that he had not deleted hundreds of other text messages, he said he did not delete messages with his girlfriend Bowers, only those related to his marijuana operation.
Police found receipts at Rosser's house dated the afternoon of Moore's death indicating $5,000 in payments made at four different banks and a handwritten $3,000 receipt indicating cash payment from "Ron Rosser" for "pf's." One bank receipt was timestamped 1:31 p.m. from a Bank of America branch in McKinney, and surveillance video there showed him paying in cash. Another receipt reflected a 4:20 p.m. cash payment on a Capital One credit card made at a branch, though there is no indication which branch it was. Three other receipts were from two banks in Longview and were timestamped 4:59 p.m. and 5:18 p.m., in enough time for Rosser to drive from Dallas to Longview and from bank to bank in Longview.
Rosser said these cash payments were proceeds from marijuana sales and explained that he regularly paid his bills at the end of the month. Some evidence supported that he paid bills at the end of the month, though he did not always pay his entire credit card balances due. Rosser testified he was not desperate for money, he made approximately $70,000 a year selling marijuana, and his parents would help him financially if he needed it. A long-time friend of Rosser's testified that Rosser would never want for money because his parents had previously helped him financially. Rosser's father said Rosser rarely paid even the meager rent he charged his son to live on property he owned.
A Collin County detention officer testified he saw Rosser drop a note in Brockway's cell, which read, "Are you okay? I was just checking on you. I have kept my mouth shut. They have nothing on us." Rosser testified he was concerned for Brockway, whom he had heard was suicidal, and that the note was an admission to the marijuana operation, not murder, because he did not murder Moore.
Rosser presented a computer and cell phone expert who said the cell tower mapping could only show that a phone was in a general area. He presented a drug expert who testified drugs are a cash business, and a pound of marijuana sold from $3,000 to $4,000 wholesale at the time. He testified a person could grow three to four pounds of marijuana in a month. The drug expert also said that drug traffickers investigate and conduct surveillance on potential buyers to ensure their safety when selling to others, which could explain Rosser having pictures of Moore and the paper with Moore's details on it.
The jury was free to resolve conflicts in the evidence, to weigh and even to reject the State's evidence, and to draw reasonable inferences from basic facts to ultimate facts. See Clayton, 235 S.W.3d at 778. When the record supports potentially conflicting inferences, we presume the jury resolved conflicts in favor of the verdict and we defer to that determination. Id. These facts are more than sufficient to provide a rational trier of fact a basis for concluding the State proved Rosser intentionally killed Moore either in the course of burglary or for remuneration. We resolve Moore's first and second issues against him.
In his third issue, Rosser complains the trial court erred by denying his motion to suppress because the search warrant affidavits contained stale information, and thus the magistrate could not have found probable cause. We do not agree.
A search warrant must be supported by probable cause, meaning that under the totality of the circumstances, there is a fair probability that a particular item will be found in a particular location. See State v. Duarte, 389 S.W.3d 349, 354 (Tex. Crim. App. 2012). A reasonable reading of the "four corners" of the affidavit must provide a substantial basis for issuing the warrant. Id. There is an exception to the "four corners" rule when the State alleges a typographical error or technical defect exists in the search warrant. Somoza v. State, 481 S.W.3d 693, 700 (Tex. App.—Houston [1st Dist.] 2015, no pet.). Purely technical discrepancies in dates or times "do not automatically vitiate the validity of search or arrest warrants." Green v. State, 799 S.W.2d 756, 759 (Tex. Crim. App. 1990).
Rosser's complaint centers on a typographical error for a year listed in a search warrant. After speaking with Rosser's girlfriend, Tracy Bowers, on March 6, 2015, Detective Hardin drafted a search warrant indicating he had information that Rosser had a marijuana-growing operation on his property and possessed guns as of "March 6, 2014."
We do not address Rosser's complaint that the affidavit fails for staleness due to lack of a date for when Tracy Bowers (the confidential informant for warrant purposes) saw the guns or marijuana-growing operation at his property. He did not make this argument below and thus it is not preserved for our review. See TEX. R. APP. P. 33.1.
Uncontradicted evidence established that the investigation team first contacted Bowers on March 5, 2015, calling her during their interview with Rosser, and then interviewed her the next day, all of which related to a murder on February 27, 2015. A detective signed the search warrant affidavit on March 7, 2015, the magistrate signed the warrant that day, and it was executed the next day. The Ranger involved testified the "2014" date was a typographical error because no events occurred in 2014. The trial court concluded this was a typographical error and declined relief based on the staleness argument.
The trial court was free to resolve this factual dispute, interpreting the affidavit in a "common sense and realistic manner," and drawing all reasonable inferences to conclude the date March 6, 2014, was in error and was intended to be "March 6, 2015." See Crider v. State, 352 S.W.3d 704, 707-08 & n.8 (Tex. Crim. App. 2011) (describing staleness in DWI context); Lane v. State, 971 S.W.2d 748, 753-54 (Tex. App.—Dallas 1998, pet.) (affirming denial of motion to suppress based on typographical error and staleness when affidavit recited "January 13, 1992," instead of "January 13, 1993"). We resolve Rosser's third issue against him.
In his fourth issue, Rosser complains the court abused its discretion by denying his challenge for cause of a veniremember he claims could not consider the minimum punishment for murder. We review a trial court's ruling on a challenge for cause with considerable deference because the trial judge is in the best position to evaluate a veniremember's demeanor and responses. Tracy v. State, 597 S.W.3d 502, 512 (Tex. Crim. App. 2020).
Rosser's trial counsel asked the juror a very specific question: if the jury found Rosser not guilty of capital murder but guilty of murder, and was considering what sentence to give him, could the juror consider the lowest end of the punishment range, five years. The juror first said, "Yes. I would say yes, but with extreme extenuating circumstances to get the minimum." Later, during individual questioning, the juror responded to Rosser's counsel, who had suggested the juror could not consider the low range of punishment, by correcting counsel, responding, "No. Actually, I said that only with an extreme extenuating set of circumstances would I consider the minimum . . . . such as when an "old man kill[ed] his wife because she was terminally ill and—or something like that."
The juror later said "we don't know anything about this case yet. . . . Then I would have to say, I would find it very hard to give somebody five years for murder. In this type of case." In response to another question from Rosser's counsel, the juror said, "So in this case—in this type of case, I could consider it. I would find it very unlikely that I would—and, again, without extenuating circumstances, which I can imagine in this case . . . unless something came up, there's no way I would give five years for murder." The State clarified, saying the question was not whether "you would give five years, but whether you could at least consider it." The juror answered, "Oh, I could consider anything."
The veniremember clearly and repeatedly indicated an ability to consider the minimum punishment for murder. A "potential juror need only agree that the minimum punishment will be appropriate in some circumstances and the maximum legal punishment will be appropriate in some circumstances." Johnson v. State, 982 S.W.2d 403, 406 (Tex. Crim. App. 1998) (en banc). This means "they must be able to keep an open mind with respect to punishment regardless of whether the defendant might be found guilty as a principal or as a party." Id. The veniremember here indicated a willingness to consider the low end of the punishment range and articulated potential circumstances when it might be appropriate. We resolve Rosser's fourth issue against him.
Having resolved Rosser's four issues against him, we affirm the trial court's judgment.
/Ken Molberg//
KEN MOLBERG
JUSTICE 190349f.u05
Do Not Publish
TEX. R. APP. P. 47
JUDGMENT
On Appeal from the 199th Judicial District Court, Collin County, Texas
Trial Court Cause No. 199-81000-2015.
Opinion delivered by Justice Molberg. Justices Schenck and Nowell participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 13th day of August, 2020.