in Re Robert Whitfield

Opinion

IN THE

TENTH COURT OF APPEALS

 

No. 10-06-00400-CR

In re Robert Whitfield

Original Proceeding

ORDER

            Robert Whitfield filed a petition for writ of mandamus with this Court requesting relief from the trial court’s failure to rule on a motion for DNA testing.  Numerous motions for DNA testing have been filed by Whitfield.  We denied the petition on April 25, 2007.  No timely motion for rehearing was filed.[1]  It has come to our attention that Whitfield’s court appointed counsel requested and received funding for an investigator regarding Whitfield’s request for DNA testing; such information was provided to the Court just days before our denial of the petition.

            Due to conflicting information on where the evidence was initially sent for testing, it appears that the issue to be investigated is whether any biological material remains in existence to be tested.  The State has responded that no biological evidence remains in existence to test.  The trial court has made a finding that no such evidence exists and has based its prior denial of at least one of the DNA motions filed by Whitfield upon that determination.

            Our opinion and judgment dated April 25, 2007 are withdrawn.  See Tex. R. App. P. 19.1(a).  Whitfield’s court appointed attorney, Walter “Skip” Reaves, is ordered to provide the Court with a report of the investigator’s findings within 30 days from the date of this order.  Counsel is specifically ordered to report the status of the search for any evidence which may contain biological material.

                                                                                    PER CURIAM

Before Chief Justice Gray,

            Justice Vance, and

            Justice Reyna

Opinion and judgment withdrawn

Order issued and filed June 22, 2007

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[1] Whitfield filed a pro se motion to reconsider on June 18, 2007.

nt evidence of the corpus delicti of the offense. Emery v. State, 881 S.W.2d 702, 705 (Tex. Crim. App. 1994); Gribble v. State, 808 S.W.2d 65, 70-71 (Tex. Crim. App. 1990), cert. denied, 501 U.S. 1232, 111 S.Ct. 2856, 115 L.Ed.2d 1023 (1991). In a capital murder prosecution, the confession must be corroborated as to both the murder and the underlying felony. Id.; Tex. Penal Code Ann. § 19.03(a)(2). Thus, there must be independent evidence indicating that the murder and underlying felony occurred. Fisher v. State, 851 S.W.2d 298, 302-03 & n.3 (Tex. Crim. App. 1993). To be sufficient corroboration, the independent evidence need only be "some evidence which renders the corpus delicti more probable than it would be without the evidence." Emery, 881 S.W.2d at 705; Gribble, 808 S.W.2d at 72.

      McGowan confessed to murder in the course of a robbery. Thus, the confession must be corroborated with respect to murder and robbery. To show the corpus delicti of murder, the State must show (a) the death of a human being (b) caused by the criminal act of another. Fisher, 851 S.W.2d at 303; Self v. State, 513 S.W.2d 832, 834-35 (Tex. Crim. App. 1974). Robbery occurs when, in the course of committing theft and with the intent to obtain or maintain control of property, a person intentionally causes or threatens to cause bodily injury to another. Tex. Penal Code Ann. § 29.02. An actual theft is not a requirement for robbery; rather, the corpus delicti of robbery involves assaultive conduct in the course of theft or attempted theft. Crank v. State, 761 S.W.2d 328, 350 (Tex. Crim. App. 1988), cert. denied, 493 U.S. 874, 110 S.Ct. 209, 107 L.Ed.2d 162 (1989); Purser v. State, 902 S.W.2d 641, 646-47 (Tex. App.—El Paso 1995, no pet. h.).

      Mendoza's mother identified her son in an autopsy photograph. Dr. Nizam Peerwani, the Tarrant County Medical Examiner, testified that he preformed the autopsy, and that Mendoza died from a gunshot wound to his chest. Dr Peerwani also stated that the weapon was fired from an area "distant to the body," a distance he estimated to be at least thirty inches away. The first police officer on the scene of the shooting testified that he did not find a weapon in the house. This evidence is sufficient to establish the corpus delicti of murder in the death of Joe Ricky Mendoza. Fisher, 851 S.W.2d at 303.

      Becky Jordan, the sister of McGowan's girlfriend at the time of the offense, testified that McGowan told her that "he was thinking about jacking Joe, or whoever was at that house." She defined jacking as "to pull a knife or a gun on them . . . taking something from someone with force." She confirmed that "jacking" was "like a robbery." These statements, admitted over McGowan's hearsay objections, are admissible to show that McGowan subsequently acted in accordance with his stated plan. Tex. R. Crim. Evid. 803(3); Green v. State, 839 S.W.2d 935, 942 (Tex. App.—Waco 1992, pet. ref'd); 2 S. Goode, O. Wellborn III & M. Sharlot, Guide To The Texas Rules Of Evidence: Civil And Criminal § 803.7 (Texas Practice 1993). Thus, Becky's testimony is "some evidence which renders the [robbery] corpus delicti more probable than it would be without the evidence." Emery, 881 S.W.2d at 705; Gribble, 808 S.W.2d at 72; Purser, 902 S.W.2d at 646-47. Cynthia Jordan, Becky's sister and McGowan's ex-girlfriend, testified that McGowan told her "that he had went to the house to get marijuana from Joe Ricky, and . . . he went in with a gun or something." McGowan also told Cynthia that he wore a mask when he went into Mendoza's house. This evidence also corroborates McGowan's confession with respect to robbery. Id. Thus, we conclude that there is sufficient evidence to corroborate McGowan's statement. Points one and three are overruled.

      By point two, McGowan claims that the evidence is insufficient to establish that he intentionally caused Mendoza's death because the State failed to disprove statements in his confession that he claims indicate that he did not intend to kill Mendoza. However, the "voucher rule," under which the State was required to disprove any exculpatory statements in the defendant's confession admitted into evidence at the State's request, is no longer valid. Tex. R. Crim. Evid. 607; Russeau v. State, 785 S.W.2d 387, 389-90 (Tex. Crim. App. 1990). Additionally, there are no exculpatory statements in McGowan's confession. In the relevant portion of his confession, McGowan stated:

[Mendoza] stepped back and sat down in the chair. I asked him where is the weed at, where is the weed at. He told me that he didn't have any. . . . Mark Harper had told me that there was a shotgun in the house. I did not see a shotgun. When Joe Ricky was in the chair, he moved like he was getting up. This spooked me. I thought he was going to go to the bedroom to get the shotgun. This is when I shot Joe Ricky Mendoza. I first thought that I shot him in the arm because he was saying, "Go check." He then put his hands up on his chest and started coughing up blood. I then got scared and dropped the gun and run out of the house. . . .

McGowan claims that this portion of the confession demonstrates that he did not intend to kill Mendoza. To the contrary, these statements indicate that he intended to shoot Mendoza to prevent him from getting out of the chair. Thus, there is sufficient evidence for the jury to infer that McGowan intended to cause Mendoza's death. Ross v. State, 861 S.W.2d 870, 873 (Tex. Crim. App. 1992). Point two is overruled.

      In point four, Mendoza claims that the court erred when it refused to submit a self-defense charge to the jury. He premises this argument on his statements, set out above, that he had been told that Mendoza had a shotgun in the house and that he thought Mendoza was preparing to arm himself with it. The State characterizes McGowan's request that the trial court submit a self-defense instruction to the jury as "preposterous." We agree.

      A person is justified in using deadly force only when he has formed a reasonable belief that the deadly force is immediately necessary to protect himself against another's use of unlawful deadly force or to prevent the imminent commission of specified crimes of violence. Tex. Penal Code Ann. §§ 9.31, 9.32; Riddle v. State, 888 S.W.2d 1, 6-7 (Tex. Crim. App. 1994); Werner v. State, 711 S.W.2d 639, 644 (Tex. Crim. App. 1986). There is no evidence whatsoever to indicate that McGowan's belief was reasonable or that his use of deadly force was necessary to protect himself against unlawful deadly force. Id. Point four is overruled.

      In point five, McGowan argues that the court erred in allowing the State to use his confession at trial because it was not freely and voluntarily made but, instead, was made in exchange for a promise of leniency from the police. See Tex. Code Crim. Proc. Ann. art. 38.21 (Vernon 1979); Sossamon v. State, 816 S.W.2d 340, 345 (Tex. Crim. App. 1991). The determination of whether a confession is voluntary is based on an examination of the totality of the circumstances surrounding its acquisition. Penry v. State, 903 S.W.2d 715, 744 (Tex. Crim. App. 1995). At a suppression hearing, the trial court is the judge of the credibility of the witnesses and the weight to be given to their testimony. Id.; Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). The judge may choose to believe any or all of the witnesses' testimony. Meek v. State, 790 S.W.2d 618, 620 (Tex. Crim. App. 1990). If the record supports the court's findings, they will not be disturbed. Penry, 903 S.W.2d at 744; Romero, 800 S.W.2d at 543. If the findings are supported by the record, the only question on appeal is whether the court properly applied the law to the facts. Id.

      McGowan challenged the admissibility of his confession by a motion to suppress, alleging that it was involuntarily given. The court denied his motion after a pre-trial hearing. The court found that McGowan was not threatened or coerced by the police and that he was not directly or indirectly promised any benefit by the police in exchange for his statement. The court also found that he knowingly and intelligently waived his rights to remain silent and to consult with an attorney. These findings are supported by the testimony at the pre-trial hearing. Dinkins v. State, 894 S.W.2d 330, 348-50 (Tex. Crim. App. 1995). Thus, the court did not abuse its discretion in admitting McGowan's confession. Penry, 903 S.W.2d at 744; Romero, 800 S.W.2d at 543. Point five is overruled.

      Having overruled all of McGowan's points, his conviction is affirmed.

                                                                                 BOB L. THOMAS

                                                                                 Chief Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Affirmed

Opinion delivered and filed November 29, 1995

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