Adams, Beunka

• Court: Court of Criminal Appeals of Texas
• Decided: June 27, 2007
• Docket: AP-75,023
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,023 BEUNKA ADAMS, Appellant

v.

THE STATE OF TEXAS

ON DIRECT APPEAL FROM CAUSE NO. 15057

IN THE 2^ND JUDICIAL DISTRICT COURT

CHEROKEE COUNTY

Cochran, J., delivered the opinion of the unanimous Court.

O P I N I O N

In August 2004, a jury convicted appellant of capital murder. ⁽¹⁾ Based on the jury's answers to the special issues, ⁽²⁾ the trial judge sentenced appellant to death. ⁽³⁾ Direct appeal to this Court is automatic. ⁽⁴⁾ After reviewing appellant's ten points of error, we find them to be without merit. Therefore, we affirm the trial court's judgment and sentence of death.

Facts

On September 2, 2002, Candace Driver and Nikki Dement ⁽⁵⁾ were working at BDJ's convenience store in Rusk, Texas. Kenneth Vandever, a customer described as mentally challenged who often "hung around" at BDJ's and helped take out the trash, was in the store with Candace and Nikki when two masked men entered the store. One of the men was armed with a shotgun and demanded money. The two men were later identified as appellant and his co-defendant, Richard Cobb.

After taking the money from the cash register, appellant demanded the keys to a Cadillac parked outside. After Candace produced her car keys, appellant forced her, along with Nikki and Kenneth, into the car. As appellant drove Candace's car, Nikki said, "I know you, don't I?" Appellant said "Yes," and took his mask off. When they arrived at a remote pea patch near Alto, Cobb pointed the shotgun at Candace and Kenneth and appellant ordered them to get into the trunk of the Cadillac. Appellant then took Nikki to a more secluded spot, away from the car, and sexually assaulted her. Later, appellant led Nikki back to the Cadillac and let Candace and Kenneth out of the trunk, but he tied the two women's arms behind their backs and made them kneel on the ground while the two robbers made their escape. Appellant and Cobb seemingly developed a plan to leave Kenneth untied so that he could free the women once appellant and Cobb were far enough away from the scene. Appellant, however, believed that Kenneth was attempting to untie the women too soon, so he returned and ordered Kenneth to kneel behind the women. Candace heard Kenneth say that "it was time for him to take his medicine and that he was ready to go home."

The women then heard a single gunshot. Appellant asked, "Did we get anybody?" And Candace said, "No." Shortly thereafter, a second shot was fired, and Kenneth cried out, "They shot me." Kenneth Vandever died from the gunshot wound. Seconds later, Candace heard another shot, and Nikki fell forward. Candace fell forward as well, pretending to be hit. Appellant approached Candace and asked her if she was bleeding. He was carrying the shotgun. Candace did not immediately answer in the hope that appellant would believe she had been killed. Appellant then said, "Are you bleeding? You better answer me. I'll shoot you in the face if you don't answer me." When Candace said, "No, no, I'm not bleeding," appellant shot her in the face, hitting her lip.

Appellant and Cobb then turned to Nikki, asking her the same questions. Appellant kicked Nikki for about a minute, joined by Cobb. Then they picked her up by her hair and held a lighter to her face to see if she was still alive. Candace feigned death for fear of being shot again. She heard Cobb say about Nikki, "She's dead. Let's go." ⁽⁶⁾ That was the only time that Candace ever heard Cobb speak. After appellant and Cobb left, Candace got up and ran barefooted down the deserted country road and banged on the door of the first house she saw.

Sufficiency of the Evidence

In his first point of error, appellant alleges that the evidence at trial was neither legally nor factually sufficient to support the capital-murder verdict because the State failed to prove that he intentionally and personally shot and killed Kenneth Vandever. He notes that neither Candace nor Nikki actually saw who pulled the trigger of the shotgun when Kenneth was killed. ⁽⁷⁾

When deciding whether evidence is legally sufficient to support a conviction, we assess all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. ⁽⁸⁾ Evidence is factually insufficient when, although legally sufficient, it is "so weak" that the verdict "seems clearly wrong or manifestly unjust," or it is "against the great weight and preponderance of the evidence." ⁽⁹⁾

Appellant was indicted for intentionally causing the death of Kenneth Vandever by shooting him with a firearm in the course of committing or attempting to commit (1) robbery or kidnaping of Candace Driver, Kenneth Vandever, or Nikki Dement, or (2) aggravated sexual assault of Nikki Dement. The charge authorized the jury to convict appellant as a principal or as a party.

The jury heard testimony from both Candace Driver and Nikki Dement that from the time appellant and Cobb entered BDJ's convenience store until they left, appellant was in charge, giving orders, and threatening the victims with the shotgun. Appellant demanded the money from the register at BDJ's as well as the keys to the car parked outside. Appellant ordered Candace and Kenneth into the trunk of the car, and appellant sexually assaulted Nikki. Later, appellant forced the women to kneel with their hands tied behind their backs. Appellant took charge of his and Cobb's escape from the scene, but then he returned and ordered Vandever to kneel as well. When Candace heard the first shot, appellant asked if anyone was hit. When she said no, the shot that killed Kenneth was fired. Candace testified that when appellant approached her after Nikki was shot, he was holding the shotgun, and she said that it was appellant who fired the shotgun when he learned that she was not bleeding. Nikki testified that appellant lifted her by her hair and kicked her to find out if she was still alive.

The jury also heard testimony from Lavar Bradley, who had been incarcerated with appellant in the Cherokee County Jail, that appellant bragged that he had fired the shotgun "because Cobb didn't have the balls to do it."

From this evidence, the jury could have reasonably inferred that appellant fired the shot that killed Kenneth Vandever. Or, because the jury was charged on the law of parties, the jury could have found that appellant, acting with the intent that Cobb kill Kenneth, aided and assisted his co-defendant in that murder. ⁽¹⁰⁾ While the State's evidence may not conclusively show that appellant fired the shot that killed Kenneth, at the very least, the evidence, viewed in the light most favorable to the verdict, established beyond a reasonable doubt that appellant participated as a party. Thus, the evidence was legally sufficient to support the jury's verdict. Furthermore, the evidence is factually sufficient because it is not so weak that the verdict is clearly wrong and manifestly unjust, nor is it against the great weight and preponderance of the evidence. Appellant makes no separate argument about the factual sufficiency of the evidence except to reiterate that no witness and no testimony conclusively demonstrated that the hand that fired the fatal shot at Kenneth was his own. But that is not the standard by which either legal or factual sufficiency is judged because the jury could find appellant guilty if he either fired the fatal shot himself or assisted his co-defendant in committing the murder. Appellant fails to make any argument that he was not involved in the robbery-murder or that there was legally or factually insufficient evidence that he intended Kenneth's death and assisted Cobb in committing that act. Point of error one is overruled.

Admission of Evidence

In points of error two through four, appellant complains of the admission, during the punishment phase, of testimony concerning extraneous violent acts. ⁽¹¹⁾ Appellant argues that the admission of this testimony violated both his Sixth Amendment right to confrontation and the provisions of Article 37.071, § 2(a).

To preserve error for appellate review, a party must make a timely and specific objection or motion at trial, and there must be an adverse ruling by the trial court. ⁽¹²⁾ The rules of evidence also require an objection to a ruling admitting evidence. ⁽¹³⁾ Failure to preserve error at trial forfeits the later assertion of that error on appeal. ⁽¹⁴⁾ In fact, almost all error - even constitutional error - is forfeited if a party fails to object. ⁽¹⁵⁾ We have consistently held that the failure to object in a timely and specific manner during trial forfeits complaints about the admissibility of evidence. ⁽¹⁶⁾ This is true even though the error may concern a constitutional right of the defendant. ⁽¹⁷⁾

Appellant admits that he did not object to the admission of this evidence at trial, and he does not argue that his current complaints fall within any exceptions to the contemporaneous objection rule. As a result, appellant has forfeited appellate review of any error associated with the admission of the complained-of testimony. Points of error two through four are overruled.

Future Dangerousness

In his fifth point of error, appellant claims that the evidence is insufficient to support the jury's affirmative answer to the future-dangerousness punishment issue. ⁽¹⁸⁾ Appellant asserts that the State's evidence "establishes nothing more than appellant was a troubled child who acted out by getting [sic] and had trouble adhering to the management of the juvenile authority."

A jury may consider a variety of factors when determining whether a defendant will pose a continuing threat to society. ⁽¹⁹⁾ We must view all of the evidence in the light most favorable to the jury's finding and determine whether, based on that evidence and reasonable inferences therefrom, a rational jury could have found beyond a reasonable doubt that the answer to the future dangerousness issue was "yes." ⁽²⁰⁾

The State introduced evidence that, in the days preceding the instant offense, appellant participated in two aggravated robberies with Cobb. During those offenses, appellant had remained outside, and no one was physically hurt or injured. Following those offenses, appellant kept the shotgun and shells used in the robberies. Both appellant and Cobb planned the robbery at BDJ's. Unlike the other two robberies, appellant decided to go into the store with Cobb at BDJ's.

The jury heard that during this robbery, appellant was the leader. He did nearly all the talking, including commanding Cobb and giving orders to the three victims. The jury also heard that it was appellant who initiated the kidnaping and was in charge during that time. At the scene of the sexual assault and shootings, appellant was again doing all of the talking and giving orders. Candace testified that appellant threatened to kill her if she did not do what he said. Nikki testified that it was appellant who sexually assaulted her. The jury also heard that it was appellant who forced all three victims to kneel. After the first shot was fired, appellant questioned whether anyone had been hit, and it was appellant who fired the shotgun again when Candace said she was not bleeding. Appellant then began kicking Nikki in the chest so hard that he fractured her ribs and then lifted her up by her pony-tailed hair to see if she was still alive.

The State also presented evidence that appellant was in charge of Cobb's and his escape from the scene of the shootings. While his statements to law enforcement downplayed his role, appellant later bragged about the shooting to another jail inmate. Further, the State produced evidence of appellant's bad character as a law-abiding citizen. Additionally, the State presented expert psychiatric testimony that appellant fit the profile of a person for whom there is a probability of future dangerousness.

A rational jury could determine from this evidence that, beyond a reasonable doubt, there was a probability that appellant would commit criminal acts of violence in the future so as to constitute a continuing threat to society. Point of error five is overruled.

Sufficiency of the Evidence Regarding the Mitigation Issue

In his sixth point of error, appellant argues that the evidence is insufficient to support the jury's negative answer to the mitigation special issue. This Court, however, does not review the jury's finding on the mitigation issue for sufficiency of the evidence because "the determination as to whether mitigating evidence calls for a life sentence is a value judgment left to the discretion of the fact finder." ⁽²¹⁾ Appellant's sixth point of error is overruled.

Constitutionality of Article 37.071

In his seventh point of error, appellant argues that the Texas death-penalty scheme violates the Eighth Amendment prohibition against cruel and unusual punishment because it allows jurors too much discretion in deciding who receives the death penalty and who does not. This Court has previously considered and rejected this claim, and appellant has given us no reason to reconsider it here. ⁽²²⁾ The seventh point of error is overruled.

In his eighth point of error, appellant alleges that the Texas death-penalty scheme is unconstitutional under Penry v. Johnson ⁽²³⁾ because the mitigation issue "sends mixed signals to the jury thereby rendering any verdict reached in response to that special issue intolerably unreliable." Penry is distinguishable because, in that case, the jury received a judicially crafted nullification instruction. ⁽²⁴⁾ Here, the jury received the statutorily prescribed question required under Texas law, which does not contain a nullification instruction. ⁽²⁵⁾ No error exists. ⁽²⁶⁾ The eighth point of error is overruled.

In his ninth point of error, appellant argues that Article 37.071 is unconstitutional because it places the burden on him to prove that there are mitigating circumstances rather than requiring the State to prove insufficient mitigating circumstances beyond a reasonable doubt. This Court has previously rejected this claim, and appellant has given us no reason to revisit the issue here. ⁽²⁷⁾ The ninth point of error is overruled.

Challenge to the Grand Jury Array

In his tenth point of error, appellant complains of the trial court's refusal to quash the indictment against him because the grand jury allegedly was not comprised of a representative cross-section of Cherokee County citizens. In his motion to quash, appellant alleged that the grand jury that handed down the indictment was comprised of twelve non-Hispanic citizens and as such its composition was not representative of the population of Cherokee County, which is 8.9 percent Hispanic. Appellant argues that he has presented a prima facie case of discrimination because his evidence shows that, over the course of the statistical period presented, approximately sixteen grand jurors should have been Hispanic, but that the actual number was considerably less. ⁽²⁸⁾

During the hearing on his motion to quash, appellant presented evidence consisting of Cherokee County grand jury lists, census materials, and telephone books for the preceding ten years prior to his trial. However, this evidence showed no definitive demographic conclusions about the number of Hispanics who served on grand juries during that time. ⁽²⁹⁾ In fact, testimony during the hearing showed that several grand jurors whom appellant believed were non-Hispanic were known to be Hispanic by either the district clerk or the district judge.

While the record does show that no one with an identifiably Hispanic surname sat on the grand jury that indicted appellant, we have previously noted that relying on surnames alone is not a reliable indication of the heritage of individuals chosen for grand jury service. ⁽³⁰⁾ However, even if we were to rely on identifiably Hispanic surnames, as appellant suggests, his argument would fail. In the two years before appellant was indicted, ten percent of the grand jurors in Cherokee County had identifiably Hispanic surnames. In the eight most recent grand juries, over seven percent of the grand jurors had identifiably Hispanic surnames. Census records show that the Hispanic population of Cherokee County during this time ranged from 7.9 to 8.9 percent.

While the grand jury that indicted appellant contained no grand jurors with identifiable Hispanic surnames, after examining the records of recent earlier grand juries, we are not able to conclude that the absence of identifiable Hispanics on appellant's grand jury was caused by purposeful discrimination. The tenth point of error is overruled.

We affirm the judgment of the trial court.

Delivered: June 27, 2007

Do Not Publish

1. Tex. Penal Code Ann. § 19.03(a).

2. Tex. Code Crim. Proc. art. 37.071, §§ 2(b) & (e).

3. Tex. Code Crim. Proc. art. 37.071, § 2(g).

4.

Tex. Code Crim. Proc. art. 37.071, § 2(h).

5. Between the time of the offense and the time of trial, Nikki Ansley married, taking the name Nikki Ansley Dement. She is referred to throughout this opinion by her married name, Nikki Dement.

6. In fact, Nikki had not died. She was life-flighted to a hospital, but she had suffered broken ribs, a broken shoulder blade, and a collapsed lung. The shotgun blast had torn away a 15 by 12 centimeter "divot" of skin and tissue on her left shoulder blade.

7. Appellant argues

No witness put the gun in [appellant's] hand during the killing of Vandever, nor was the weapon found with the possession or control of [appellant], nor was any comment even overheard by either [Candace or Nikki] that could be induced to conclude that [appellant] shot Vandever.

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

9. Watson v. State, 204 S.W.3d 404, 414-15, 417 (Tex. Crim. App. 2006).

10. Rabbani v. State, 847 S.W.2d. 558-59 (Tex. Crim. App. 1992).

11. Appellant does not specify precisely what evidence should have been excluded. He claims that "the State presented certain witnesses, that through the course of their testimony, related facts intimating extraneous acts, through reference to records and documents, in particular, the material proffered in the course of testimony by Dr. Tynus McNeel (R.R. Vol. 61, pg. 80) and Mr. A.P. Merillat (R.R. Vol. 63, pg. 118).

12. Tex . R. App . P. 33.1 (a); Tucker v. State, 990 S.W.2d 261, 262 (Tex. Crim. App. 1999).

13. Tex. R. Evid. 103(a)(1).

14. Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999).

15. Tex . R. App . P. 33.1 (a); Aldrich v. State, 104 S.W.3d 890, 894-95 (Tex. Crim. App. 2003).

16. Saldano v. State, 70 S.W.3d 873, 889 & nn 73-74 (Tex. Crim. App. 2002).

17. Id.

18. Tex. Code Crim. Proc. art. 37.071, § 2(b)(1).

19. See Wardrip, 56 S.W.3d at 594 n.7; Keeton v. State, 724 S.W.2d 58, 61 (Tex. Crim. App. 1987).

20. Ladd v. State, 3 S.W.3d 547, 557-58 (Tex. Crim. App. 1999).

21. Green v. State, 934 S.W.2d 92, 106-07 (Tex. Crim. App. 1996); Colella v. State, 915 S.W.2d 834, 845 (Tex. Crim. App. 1995); Hughes v. State, 897 S.W.2d 285, 294 (Tex. Crim. App. 1994).

22. Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999); McFarland v. State, 928 S.W.2d 482, 519 (Tex. Crim. App. 1996).

23. 532 U.S. 782 (2001).

24. Penry, 532 U.S. at 789-90.

25. Tex. Code Crim. Proc. art. 37.071, § 2(e)(1).

26. See McFarland, 928 S.W.2d at 488-89.

27. See Perry v. State, 158 S.W.3d 438, 446-48 (Tex. Crim. App. 2004), cert. denied, 126 S. Ct. 416, 163 L. Ed. 2d 317 (2005); Blue v. State, 125 S.W.3d 491, 500-01 (Tex. Crim. App. 2003).

28. See Castaneda v. Partida, 430 U.S. 482 (1977).

29. See Ovalle v. State, 13 S.W.3d 774, 779-80 & n. 22 (Tex. Crim. App. 2000).

30. Id.