Mohamed Kamara Baimba v. State

• Court: Court of Appeals of Texas
• Decided: December 10, 2020
• Docket: 01-19-00178-CR
• Status: Published

Opinion

Opinion issued December 10, 2020

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-19-00178-CR ——————————— MOHAMED KAMARA BAIMBA, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 174th District Court Harris County, Texas Trial Court Case No. 1484829

MEMORANDUM OPINION

A jury convicted appellant Mohamed Kamara Baimba of the offense of capital

murder.1 Because the State did not seek the death penalty, the trial court

1 See TEX. PENAL CODE § 19.03(a)(2) (stating that person commits offense of capital murder if he “intentionally commits the murder in the course of committing or attempting to commit . . . robbery”). automatically assessed appellant’s punishment at imprisonment for life without

parole. In two issues, appellant argues that: (1) the evidence is insufficient to support

his conviction; and (2) section 12.31(a)(2) of the Texas Penal Code violates the

protections against cruel and unusual punishment set forth in the Eighth Amendment

of the United States Constitution and in Article I, section 13 of the Texas

Constitution because it imposes the automatic punishment of life imprisonment

without parole, without allowing the defendant to offer mitigating evidence. We

affirm the trial court’s judgment.

Background

Appellant and the complainant, Tahorma Stephen Gboyah, were part of the

same small West African community in Houston. Gboyah, who had been appellant’s

father’s best friend, often helped his neighbors by giving them rides to medical

appointments and buying groceries for them.

On October 8, 2015, Baby Bah went to Gboyah’s apartment after she had been

unable to reach him. The apartment’s front door was unlocked, and the television

had been unplugged and was sitting on top of the sofa in living room. When she

looked inside the bedroom, Bah saw Gboyah lying naked on the floor with his hands

bound behind his back. She then ran to the apartment complex’s leasing office and

called the police.

2 Upon arriving at the scene, the police found Gboyah’s body on the floor next

to the bed. His face was bruised and swollen, and he had blood in his ears, eyes, and

mouth. His hands were secured behind his back with an appliance cord, and belts

had been tied around his neck and around his upper left arm. The bedroom was in

disarray, and there was blood on the mattress and pillows and blood spatter on the

walls and headboard. The forensic pathologist later determined that Gboyah’s cause

of death was ligature strangulation with blunt force injuries.

During their investigation, the police learned that Gboyah’s car, a gold Honda

Accord, was missing from the parking lot and they found appellant’s state-issued

identification card on the bedroom floor approximately one foot away from

Gboyah’s head. The police also learned that twenty-three-year-old appellant had

been staying with Gboyah for a few days. Appellant was arrested the next day while

driving Gboyah’s car.

Appellant gave a recorded statement to police several hours later during which

he confessed to beating up Gboyah, tying him up, and then stealing his car.

Specifically, appellant told the police that his father had kicked him out of their

apartment after they had a dispute about the rent. Appellant, who had nowhere to go

and no one else who would help him, turned to his father’s friend Gboyah for help.

Gboyah told appellant that he could stay with him. Appellant, who stayed with

3 Gboyah for two or three days, told police that he had hoped to stay with Gboyah for

a few months until he could save up enough money to get his own apartment.

Appellant told the officer that Gboyah made him uncomfortable from the day

he moved in by walking around the apartment naked, acting overly affectionate, and

insisting on sharing his bed with appellant. Appellant told police that one night he

came back to the apartment after work and found Gboyah lying naked in bed. When

appellant told Gboyah that he was going to sleep on the floor in the bedroom,

Gboyah became angry and told appellant that he had to leave in the morning.

Appellant then made a place for himself on the floor and Gboyah went to the

bathroom. When Gboyah returned, he stood over appellant in such a way that

appellant, who had been raped as a child, believed that Gboyah was going to rape

him. Appellant told the police that he kicked Gboyah in the balls and then the men

began to fight.

Appellant claimed that he felt like he was fighting for his life and he “flipped.”

When he realized that he was winning the fight, appellant decided to tie up Gboyah

and leave him naked on the floor for others to find because he wanted them to know

that Gboyah was a homosexual and a rapist.

Appellant told the officer that after he tied up Gboyah, he realized that he

needed to leave. He thought about how Gboyah “had so much and [he] had so little”

and he considered stealing Gboyah’s television and pawning it to buy groceries, but

4 he decided against it and left the television on the sofa. He then took Gboyah’s keys

and left in the car. Appellant told police that he had nowhere to go after he left

Gboyah’s home and he had been sleeping in a vacant apartment.

The jury found appellant guilty of the charged offense of capital murder and

because the State did not seek the death penalty, appellant’s punishment was

automatically assessed at imprisonment for life. Appellant did not object to his

sentence. This appeal followed.

Sufficiency of the Evidence

In his first issue, appellant argues that there is insufficient evidence to prove

that he formed the intent to rob Gboyah before or during the commission of the

murder.

A. Standard of Review and Applicable Law

We review an appellant’s challenge to the sufficiency of the evidence under

the standard enunciated in Jackson v. Virginia, 443 U.S. 307 (1979). See Brooks v.

State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). We examine all the evidence

in the light most favorable to the jury’s verdict to determine whether “any rational

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

doubt.” Jackson, 443 U.S. at 318–19; Merritt v. State, 368 S.W.3d 516, 525 (Tex.

Crim. App. 2012). Our review includes all of the evidence introduced, whether it be

5 properly or improperly admitted. See Winfrey v. State, 393 S.W.3d 763, 767 (Tex.

Crim. App. 2013).

“The jury is the sole judge of credibility and weight to be attached to the

testimony of witnesses.” Merritt, 368 S.W.3d at 525 (citing Jackson, 443 U.S. at

319). As the sole factfinder, the jury may reasonably infer facts from the evidence

presented, credit the witnesses it chooses, disbelieve any or all of the evidence or

testimony proffered, and weigh the evidence as it sees fit. See Canfield v. State, 429

S.W.3d 54, 65 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d). We afford almost

complete deference to the jury’s determinations of credibility. See id. (citing Lancon

v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008)). In the event of conflicting

evidence, we presume the jury resolved conflicts in favor of the verdict and defer to

that determination. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010);

Canfield, 429 S.W.3d at 65. Circumstantial evidence is as probative as direct

evidence in establishing guilt, and circumstantial evidence, alone, can be sufficient.

See Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016).

A person commits the offense of capital murder, as charged in the instant case,

if he intentionally commits murder in the course of committing or attempting to

commit robbery. See TEX. PENAL CODE § 19.03(a)(2). A person commits robbery if,

in the course of committing theft and with the intent to obtain or maintain control of

the property, he “intentionally, knowingly, or recklessly causes bodily injury to

6 another.” TEX. PENAL CODE § 29.02(a). “In the course of committing” the offense

describes “conduct occurring in an attempt to commit, during the commission, or in

the immediate flight after the attempt or commission of the offense.” Dawkins v.

State, 495 S.W.3d 890, 895 (Tex. App.—Houston [14th Dist.] 2016, no pet.)

(quoting Robertson v. State, 871 S.W.2d 701, 705 (Tex. Crim. App. 1993)).

For a murder to qualify as capital murder in this context, the intent to rob must

be formed prior to or concurrent with the murder. Robertson, 871 S.W.2d at 705.

Proof that the robbery was committed as an afterthought and unrelated to the murder

is not sufficient. Herrin v. State, 125 S.W.3d 436, 441 (Tex. Crim. App. 2002).

The defendant’s requisite intent to commit the offense may be inferred from

his actions or conduct. Robertson, 871 S.W.2d at 705. A robbery occurring

immediately after a murder will support an inference that the murder was intended

to facilitate the robbery. See Padilla v. State, 326 S.W.3d 195, 200 (Tex. Crim. App.

2010) (citing Cooper v. State, 67 S.W.3d 221, 224 (Tex. Crim. App. 2002)); McGee

v. State, 774 S.W.2d 229, 234 (Tex. Crim. App. 1989) (“We have held numerous

times that this aggravating element [murder in the course of committing robbery] is

sufficiently proven if the State proves the robbery occurred immediately after the

commission of the murder.”).

7 B. Analysis

Citing to Ibanez v. State, appellant argues that the evidence is insufficient to

support his conviction because the State, which offered his confession into evidence,

failed to disprove beyond a reasonable doubt his exculpatory statement to police that

he did not form the intent to rob Gboyah until after he had tied up Gboyah. Id., 749

S.W.2d 804, 808 (Tex. Crim. App. 1986). The basis for this common law principle

was the so-called “voucher rule,” by which each party was held to the verity of its

own witnesses’ testimony. In Russeau v. State, which was decided four years after

Ibanez, the Texas Court of Criminal Appeals held that the “voucher rule” had been

“rejected with the enactment of [Texas Rule of Evidence] 607.” See Russeau v. State,

785 S.W.2d 387, 390 (Tex. Crim. App. 1990) (en banc); see also TEX. R. EVID. 607

(allowing credibility of witness to be attacked by any party, including party calling

witness); Hughes v. State, 4 S.W.3d 1, 5 (Tex. Crim. App. 1999) (stating rule 607

“abandon[ed] the traditional ‘voucher’ rule which prohibited a party from

impeaching its own witness”). Because Ibanez was based on the now defunct

“voucher rule,” appellant’s reliance upon Ibanez is unavailing.2

2 The dissent in Ibanez noted that the voucher rule “seems to be abolished by the soon-to-be-effective Texas Rules of Criminal Evidence” because “[t]he rationale behind the voucher rule is effectively destroyed by Rule 607.” Ibanez v. State, 749 S.W.2d 804, 812 (Tex. Crim. App. 1986) (David, J., dissenting). In a footnote, the majority acknowledged the truth of the dissent’s assessment of the future of the voucher rule but stated that the appellant is entitled to rely on existing law, not future changes to the law. Id. at 807 n.3. 8 Nevertheless, appellant argues that Russeau was wrongly decided and urges

this court to reconsider the applicability of the voucher rule and apply it in this case,

as it was in Ibanez. “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.” Guzman v. State, 539

S.W.3d 394, 404 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d) (quoting Mason

v. State, 416 S.W.3d 720, 728 n.10 (Tex. App.—Houston [14th Dist.] 2013, pet.

ref’d); see also State of Tex. 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.”). Accordingly, we

decline the invitation to reconsider the propriety of Russeau.

Here, the record reflects that appellant had been kicked out of his father’s

home, and he had nowhere else to go until Gboyah agreed to take him in. Gboyah

became angry with appellant after he refused to sleep in the same bed as Gboyah and

he told appellant that he had to leave the next morning. Appellant killed Gboyah

soon afterwards and then fled the scene in Gboyah’s car. He admitted to the police

that he also considered stealing Gboyah’s television and pawning it to buy groceries,

but he decided against it and left the television on the sofa. Appellant, who did not

9 have anywhere to stay after he killed Gboyah, slept in a vacant home before he was

arrested while driving Gboyah’s car.

In light of this evidence, the jury could have rationally inferred that appellant

decided to steal Gboyah’s car and other valuable items either before or during the

commission of the murder. See Cooper, 67 S.W.3d at 224; Robertson, 871 S.W.2d

at 705; McGee, 774 S.W.2d at 234. Furthermore, as the sole factfinder, it was the

jury’s responsibility to assess the credibility of the witnesses and weigh the evidence.

See Canfield, 429 S.W.3d at 65. In doing so, the jury was free to disbelieve any or

all of the evidence or testimony proffered. See id. The jury could have rationally

disregarded appellant’s self-serving testimony that his decision to take Gboyah’s car

was an after-thought and that he did not form the intent to rob Gboyah until after he

had beaten him and left him tied up on the bedroom floor. See id.; Robertson, 871

S.W.2d at 705 (defining “in the course of committing” to include conduct occurring

“in the immediate flight after the attempt or commission of the offense”); see also

Cooper, 67 S.W.3d at 224 (holding jury could have rationally disbelieved

defendant’s self-serving testimony that he did not know what he was doing when he

took the victim’s vehicle immediately after assault).

We therefore hold that the State presented sufficient evidence from which a

rational jury could conclude, beyond a reasonable doubt, that appellant killed

10 Gboyah in the course of committing robbery and, thus, committed capital murder.

See TEX. PENAL CODE § 19.03(a)(2).

We overrule appellant’s first issue.

Cruel and Unusual Punishment

In his second issue, appellant argues that the automatic punishment of life

imprisonment without parole violates the Eighth Amendment of the United States

Constitution and article I, section 13, of the Texas Constitution because it deprives

defendants in non-death penalty capital cases of the opportunity to present mitigating

evidence during an individualized sentencing hearing. See U.S. CONST. amend. VIII

(prohibiting “cruel and unusual punishment”); TEX. CONST. art. I, § 13 (prohibiting

“cruel or unusual punishment”).3

Generally, the right to be free from cruel and unusual punishment is a

waivable right that must be preserved for appellate review. TEX. R. APP. P. 33.1(a);

see Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (holding that

defendant waived complaint regarding violation of state constitutional right against

cruel and unusual punishment because complaint was raised for first time on appeal);

Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995) (holding that defendant

3 See Cantu v. State, 939 S.W.2d 627, 645 (Tex. Crim. App. 1997) (finding no significance in differences between Eighth Amendment’s “cruel and unusual” phrasing and Texas Constitution’s “cruel or unusual” phrasing); Duran v. State, 363 S.W.3d 719, 723 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (following Cantu).

11 waived complaint that punishment was cruel and unusual under Eighth Amendment

when complaint was raised for first time on appeal); see generally Karenev v. State,

281 S.W.3d 428, 434 (Tex. Crim. App. 2009) (holding facial challenge to

constitutionality of statute is right that can be forfeited by failure to object at trial).

To preserve a complaint for appellate review, a party must have presented to

the trial court a timely request, objection, or motion stating the specific grounds for

the ruling desired. TEX. R. APP. P. 33.1(a). Appellant did not assert that his

mandatory life sentence violated the constitutional prohibitions against cruel and

unusual punishment at the time his sentence was assessed, nor did appellant raise

this issue in a post-trial motion. By failing to assert his complaint in the trial court,

appellant failed to preserve this issue for appeal. See TEX. R. APP. P.; Rhoades, 934

S.W.2d at 120; Curry, 910 S.W.2d at 497.

Even if appellant had preserved this issue for our review, however, he would

not prevail on the merits. In Harmelin v. Michigan, 501 U.S. 957 (1991), the United

States Supreme Court held that the imposition of mandatory life imprisonment

without the possibility of parole did not violate the Eighth Amendment's protection

against cruel and unusual punishment. See id. at 995–96. In Miller v. Alabama, the

Court revisited this issue with respect to juvenile offenders and held that the

imposition of mandatory life imprisonment without the possibility of parole

constituted cruel and unusual punishment with respect to juveniles under the age of

12 18. 567 U.S. 460, 489 (2012). In deciding Miller, the Court expressly limited its

holding to cases involving juvenile offenders and declared that it “neither overrules

nor undermines nor conflicts with Harmelin.” Id. at 480–82.

Appellant argues that this mandatory sentencing scheme violates the

constitutional prohibitions against cruel and unusual punishment under the Eighth

Amendment and Article I, section 13 because it deprives defendants in non-death

penalty capital cases of the opportunity to present mitigating evidence during an

individualized sentencing hearing. Relying upon Harmelin, this court has previously

rejected similar arguments challenging the constitutionality of section 12.31(a)(2).

Cormier v. State, 540 S.W.3d 185, 194 (Tex. App.—Houston [1st Dist.] 2017, pet.

ref’d) (refusing to extend Miller to adult-offenders); Lopez v. State, 493 S.W.3d 126,

139 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d) (addressing Miller’s language

and concluding that Miller did not alter Harmelin).

We overrule appellant’s second issue.

13 Conclusion

We affirm the trial court’s judgment.

Russell Lloyd Justice

Panel consists of Justices Keyes, Lloyd, and Landau.

Do Not Publish. TEX. R. APP. P. 47.2(b).