Roberts v. State

273 S.W.3d 322, 2008 Tex. Crim. App. LEXIS 1570, 2008 WL 5234254
CourtCourt of Criminal Appeals of Texas
DecidedDecember 17, 2008
DocketPD-1054-07
StatusPublished
Cited by174 cases

This text of 273 S.W.3d 322 (Roberts v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Roberts v. State, 273 S.W.3d 322, 2008 Tex. Crim. App. LEXIS 1570, 2008 WL 5234254 (Tex. 2008).

Opinions

[324]*324 OPINION

JOHNSON, J.,

delivered the opinion of the Court in which

MEYERS, PRICE, WOMACK, HOLCOMB and COCHRAN, JJ., joined.

Appellant was charged with capital murder by two separate indictments, one alleging the death of a pregnant woman and her embryo and the other alleging the deaths of more than one person. A jury convicted appellant of capital murder under both indictments. Because the state did not seek the death penalty, appellant’s sentences were assessed at life imprisonment.1 Appellant appealed both convictions, and the court of appeals affirmed each with a separate opinion. Appellant sought discretionary review of both decisions of the court of appeals, but we granted review of only the appeal of the conviction for killing a pregnant woman and her embryo. We reform the judgment to reflect a conviction for the murder of Virginia Ramirez and remand to the trial court for sentencing on that charge.

FACTS

Around midnight on December 19, 2003, multiple assailants invaded a Dallas apartment, firing numerous rounds of gunfire inside and killing three of the occupants of the apartment: Heath Laury, a resident, Jennifer Thompson, a visitor and Laury’s girlfriend, in the south bedroom and, in the north bedroom, Virginia Ramirez, a resident who was in the early stages of pregnancy. When the shooting had ended, Ramirez’s two-year-old daughter was also in the north bedroom. Royale Bolden, a resident of the apartment and the father of the two-year-old, testified that he and a visitor, Corey Smith, hid in the closet in the north bedroom and escaped harm. Another visitor escaped by jumping out of the window in the south bedroom.

Ms. Ramirez’s mother, Elsa Moncayo, testified that her daughter had lived in the apartment with her two children from March of 2003 until her death in December of that year.2 Emmanuel Rogers, a co-defendant, gave a written statement in which he indicated that the attackers knew the residents of the apartment, and he described a confrontation earlier in the evening at the apartment “where the Mexican girl and Heat3 stayed,” during which “the Mexican girl tried to fight” Brandon Shaw, a co-defendant in the murders.4 [325]*325Detective James Vineyard testified that examination of the north bedroom door showed 4 holes made by bullets, each entering the door at different angles.5 Detective Vineyard stated that the differing angles of impact indicated that either the door was being closed when the shots were fired or that the door was stationary and the shooter was moving. He also stated, “The position of the body and transferred blood [on the wall behind the door] and in relationship to the door would indicate that she was obviously behind the door. Indication is that she probably was trying to close the door and was turning toward the wall or the inside of the bedroom as she was shot.”

The indictment alleged that appellant had intentionally and knowingly caused the death of Ms. Ramirez by shooting her with a firearm, a deadly weapon, and during the same criminal transaction had intentionally and knowingly caused the death of “another individual, to-wit: an unborn child of Virginia Ramirez by shooting Virginia Ramirez while said unborn child was in gestation of said Virginia Ramirez.” The jury found appellant guilty of capital murder as alleged in the indictment.

On appeal, appellant raised several points of error including claims that: 1) the evidence was legally and factually insufficient to sustain the conviction; and 2) the trial court erred by submitting an erroneous jury charge that failed to require a culpable mental state for the death of the unborn child, thereby causing egregious harm. The court of appeals overruled both issues and affirmed the trial court’s judgment. Roberts v. State, No. 06-05-00165-CR, 2007 WL 1702771, 2007 Tex.App. LEXIS 4605 (Tex.App.Texarkana, delivered June 14, 2007)(not designated for publication).

We granted two of appellant’s grounds for review, which assert that the court of appeals erred

(1) by holding that the evidence was both legally and factually sufficient to support the jury’s verdict;
(2) in holding that the charge did not contain a material variance or lack a required culpable mental state.

In his brief, appellant “rephrases the issues” and questions the sufficiency of the evidence to establish his participation in a capital murder when the state relied upon testimony from two witnesses who were his accomplices in another murder and whose testimony did little more than place him at the scene of the shooting and establish his friendship with one of the shooters. He asserts that, because the evidence merely established his presence at the location of the offense and his friendship with one of the shooters, the evidence was insufficient to support the conviction.

Appellant also questions whether proof that he killed a pregnant woman and her embryo in the same transaction established capital murder when he was unaware of the pregnancy. He notes that the state’s medical expert testified that it was impossible for someone to look at Ms. Ramirez’s outward appearance at the time of her death and be able to tell that she was pregnant. He argues that, because it was impossible for him to know that she was pregnant, he lacked the specific intent to kill her embryo, which is an element of capital murder as alleged in the indictment.

SUFFICIENCY OF THE EVIDENCE

The state asserts that this court lacks jurisdiction to review appellant’s complaint [326]*326that the evidence does not sufficiently corroborate the testimony of the two witnesses because that claim was never raised in the court of appeals. Alternatively, it argues that the corroboration requirement for accomplice-witness testimony does not apply because these two witnesses were not accomplices in the case being tried, but rather were accomplices in an unrelated murder case.

The court of appeals observed in its opinion that there was a portion of appellant’s brief on direct appeal that could be read as raising the issue that accomplice testimony must be corroborated by non-accomplice testimony. Roberts v. State, supra at 2007 WL 1702771, at *8, n. 9, 2007 Tex.App. LEXIS 4605 * 23-24, n. 9. It concluded, however, that if appellant intended to raise such issue, he had failed to provide any substantive analysis of corroboration issues and that, because his brief contained no analysis of the sufficiency of the state’s evidence to corroborate accomplice-witness testimony, “any such issues would have been inadequately briefed and would be properly overruled.” Id.

Appellant did not raise, nor did we grant review of, a ground complaining about the testimony of the two named witnesses (Nero and Jackson) who had been co-defendants with appellant in regard to a different murder. We observe that appellant’s brief on direct appeal includes a discussion of the testimony of these two witnesses, Nero and Jackson, as simply providing evidence of appellant’s mere presence at the scene of the crime, which was not enough to prove guilt. But it made no mention of any challenge to the testimony provided by those two witnesses because of any insufficiency of evidence to corroborate their testimony, nor did it make any argument that corroboration was required.

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Cite This Page — Counsel Stack

Bluebook (online)
273 S.W.3d 322, 2008 Tex. Crim. App. LEXIS 1570, 2008 WL 5234254, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roberts-v-state-texcrimapp-2008.