Robert Earl Parker v. State

• Court: Court of Appeals of Texas
• Decided: August 28, 2008
• Docket: 14-07-00578-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed August 28, 2008

Affirmed and Memorandum Opinion filed August 28, 2008.

In The

Fourteenth Court of Appeals

____________

NO. 14-07-00578-CR

ROBERT EARL PARKER, Parker

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 262^nd District Court

Harris County, Texas

Trial Court Cause No. 1090016

M E M O R A N D U M   O P I N I O N

Robert Earl Parker was convicted of murder and sentenced to confinement for 99 years in the Institutional Division of the Texas Department of Criminal Justice.  Parker challenges his conviction, asserting that the evidence was legally and factually insufficient to support the verdict.  We affirm.

I.  Factual and Procedural Background

On the evening of July 26, 2004, Houston Police Department officer Joseph Rothman responded to a call about a residential shooting.  When he arrived at the scene, emergency medical personnel were actively treating a man inside the home, later identified as Richard Lee.  They were unable to revive Lee.  Officer Rothman secured the scene, and later found another man, Birshal Mitchell, in a back bedroom.  Mitchell had a gunshot wound to his shoulder.  Officer Rothman found no weapons in the house, but did find illegal drugs.  He also noticed a suspicious van parked across the street from Lee=s home.  Officer Rothman eventually searched the van, finding 15 pounds of marijuana, several bottles of codeine syrup, more than 500 ecstacy tablets and a semi-automatic pistol.  The pistol found in the van was not warm and did not appear to have been fired recently. 

Birshal Mitchell, a friend of Lee=s, testified that while in the back bedroom where the officer found him, he heard a knock on the door.  He heard Lee answer the door, but  Mitchell could not understand the conversation between Lee and the visitor.  At some point during this conversation, Mitchell went from the back bedroom to the front room.  Mitchell testified that Lee=s front door was open, but the burglar-bar door was closed during the conversation.  Mitchell was not able to identify Parker as the person at the door.  As Mitchell attempted to return to the bedroom, he heard a shot and felt a blow to his shoulder.  Additional shots followed as he ran back towards the bedroom.  While laying down on the bedroom floor with his feet pressed up against the closed door, Mitchell called 9-1-1 using his cellphone.  He remained in the bedroom until police arrived.

A second witness, Damon Hickerson, testified that he was outside the house during the shooting.  Hickerson claimed to have known Lee since high school.  Hickerson testified that Lee had previously worked with Parker in a scheme that involved using counterfeit money to buy drugs, which they would later sell for profit.  Lee, Parker, and a third person did this twice in the months preceding the shooting.  Hickerson estimated that they may have made profits of between $20,000 and $10,000 in these transactions. Hickerson also described how Lee had sold Asimulated@ or fake drugs for profit.   Hickerson further testified that Parker had complained to him that he did not get a fair share of the profits from these transactions, and that he blamed Lee.  Hickerson also suggested that there was tension between Parker and Lee over a woman.

On the evening of the shooting, Hickerson drove a white van to Lee=s house to visit Lee.  This was the same white van discovered and searched by Officer Rothman.  Hickerson admitted to possession of the gun, the marijuana, and the ecstasy pills.   Hickerson testified that, before getting out of the van, he saw Parker pull up to Lee=s house in a blue Cadillac Escalade; park the vehicle; and approach the house while holding a firearm.  Hickerson could not tell if the interior front door was open.  Hickerson testified that he then witnessed Parker fire his gun into the house about five times, and then run back to his vehicle before driving away.  Hickerson said that, since he didn=t think that Lee was home during the shooting, he left to check for Lee at Lee=s grandmother=s house down the street.  After finding that Lee was not there, Hickerson returned to Lee=s house, where another individual B AE@ B had arrived and parked out front.  E did not see or hear the shooting and thought that Lee was in the back of the house, out of earshot from the front door.  Hickerson testified that, despite the fact that the door was open, he could not see into the house because the lights were out.  When the emergency medical personnel arrived, Hickerson used his key to let them into the house.  Knowing that there were warrants out for his arrest, Hickerson left the scene, driven by E=s girlfriend, leaving the van behind.  Hickerson testified that he did not provide the tip that led the police to Parker.  Finally, Hickerson described that he later spoke with Parker on the phone and felt threatened by him.

Hickerson admitted to having two felony warrants outstanding when the shooting occurred; at the time of the trial, he was serving a 17-year sentence.  Hickerson said that, after the trial, the prosecutor and his lawyer would ask that his sentence be lowered based on his cooperation in this case. 

Lee=s mother testified that she and her boyfriend had visited Lee in his home on the day before he was killed.  When she arrived, Parker answered the door and then went to sit on Lee=s couch.  Lee=s mother described Lee as frantic, scared, and upset.  She testified that Lee told her he was unable to get Parker to leave the house.  When Lee eventually demanded that Parker leave, Parker went outside and sat on a bench on the patio.  Lee=s mother then observed that Parker had a gun.  Lee=s mother testified that she told Lee about Parker=s gun, and that Lee then asked her boyfriend to retrieve Lee=s gun from his car.  The boyfriend then brought the gun to Lee, and Lee again asked Parker to leave.  Lee=s mother testified that Parker soon left, but before driving away said: AI=m going to kill you nigga.@ Lee=s mother admitted that Parker=s threatening statement to her son did not appear in a sworn statement she gave the police in 2006.

Additional testimony was given by two men that Parker met while incarcerated.  Makeba Thomas had met Parker several years before at the Harris County Boot Camp.  Parker spoke to Thomas about the Lee shooting while the two were housed at the Federal Detention Center in Houston during December of 2004.  According to Thomas, Parker told him about a robbery that Parker had committed with two others, and that Parker Adidn=t get what he supposed to have got off of it.@  Parker told Thomas that he went to ABig Richard=s mother=s house@ and Athey got into an argument.@  Parker also told Thomas that he later returned after the argument and Ashot him through the door.@ 

Thomas testified that he was cooperating in this case to reduce his current sentence, despite having received threats.  On cross-examination, Thomas admitted that he had discussed the shooting with Hickerson, although Hickerson previously stated that he did not know Thomas.  There was also some dispute over the dates that Parker and Thomas met while at the Federal Detention Center.

Witness Maurice York met Parker while both men were incarcerated in Beaumont.  York testified that, over a game of craps during a recreation period, Parker told York that Ahim and a couple guys hit a lick^[1], and they were trying to cut him out on the lick.@  York further testified that Parker told him he Ablasted the guy Richard.@ 

York=s criminal history involved charges for possession of dangerous drugs, assault, evading arrest, possession of a controlled substance, and failure to identify to a peace officer.  York admitted to testifying in hopes that his sentence would be reduced.

The defense called only one witness, Thomas McCain, Lee=s neighbor.  McCain testified that he awoke to the sound of gunshots, and then looked out his window in the direction of Lee=s house.  McCain said that he saw a big black or blue car leaving Lee=s house.  While his testimony wavered, he did testify that the car he saw drive away was not a Cadillac Escalade. 

A jury convicted Parker of murder and he was sentenced to 99 years confinement.  This appeal timely followed. 

II.  Analysis

A person commits murder if he intentionally or knowingly causes the death of another individual.  Tex. Penal Code Ann. ' 19.02(b)(1) (Vernon 1994).  Parker asserts that the evidence is legally and factually insufficient to support the verdict.^[2]  We disagree.

A.  Legal Sufficiency

When evaluating a legal-sufficiency challenge, we view the evidence in the light most favorable to the verdict.  Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).  If any rational trier of fact could have found the crime=s essential elements beyond a reasonable doubt, we must affirm.  McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997). We do not resolve any conflict of fact, weigh any evidence, or evaluate any witness=s credibility, as this was the function of the trier of fact.  See Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992).  The jury may choose to believe or disbelieve any portion of a witness=s testimony.  Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).  When faced with conflicting evidence, we presume that the trier of fact resolved conflicts in the prevailing party=s favor.  Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).  We may overturn the verdict only if it is irrational or unsupported by proof beyond a reasonable doubt.  Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). 

Two witnesses testified that while Parker was in custody, he discussed a robbery involving money and drugs.  Parker expressed frustration about being cut out of some of the profits, and admitted to killing Lee.  Hickerson testified that he watched Parker approach the house and shoot into Lee=s front room.  Mitchell testified that he saw Lee talking with another male on the other side of the front door right before the shots were fired into the room, hitting both Mitchell and Lee.  Considering these facts in the light most favorable to the verdict, a rational trier of fact could have found the essential elements of murder necessary to convict Parker beyond a reasonable doubt.

B.  Factual Sufficiency

When hearing a factual-sufficiency challenge, we view all the evidence neutrally.  See Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997).  We especially discuss and examine the specific evidence that the appellant contends undermines the jury=s verdict.  See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).  We may set aside the verdict if the evidence is so weak that the verdict is clearly wrong and manifestly unjust or if the verdict is against the great weight and preponderance of the evidence.  Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006).  We must not, however, intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony.  See Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999).  We may disagree with the jury=s conclusions; however, we must avoid substituting our judgment for that of the jury, particularly in matters of credibility.  See Watson, 204 S.W.2d at 414.

During the trial, the defense questioned the State=s witnesses about potential bias.  Hickerson, Thomas, and York may receive reduced sentences for cooperating in this case.  However, the jury is the ultimate judge of the credibility of a witness.  Fuentes, 991 S.W.2d at 271.  Further, a decision is not manifestly unjust merely because the jury resolved conflicting views of the evidence in favor of the State.  Cain, 958 S.W.2d at 410.  Considering all of the evidence in a neutral light, the evidence was not so weak that the verdict is clearly wrong or manifestly unjust.  Therefore, we conclude that the evidence is factually sufficient to support the jury=s verdict. 

Based on the foregoing, we affirm the judgment of the trial court.

/s/      Jeff Brown

Justice

Judgment rendered and Memorandum Opinion filed August 28, 2008.

Panel consists of Justices Yates, Anderson, and Brown.

Do Not Publish C Tex. R. App. P. 47.2(b).

---

^[1]  A Alick@ is street slang for a robbery.

^[2]  Parker provides the governing legal principles; however, he fails to apply the principles to the facts of this case.  Instead, he makes broad assertions that evidence is legally and factually insufficient without explaining how or why the evidence is insufficient.  Assuming that this satisfies the minimum requirements to present an issue on appeal, we address both issues.