Donald Nealey v. State
01-15-00999-CR
| Tex. App. | Aug 8, 2017Background
- On March 6, 2014 the victim, Stanly Kumbanattel, was chased, shot multiple times outside the Little Nell Apartments in Houston, and later died from multiple gunshot wounds.
- Witnesses saw two or three men in hoodies run from the scene to a black Acura; eight 9mm shell casings and a white glove were recovered near the victim.
- About an hour later the victim's Acura was used in an armed robbery at a House of Pies seven miles away; surveillance showed two masked men (one in black, one in blue) exit the Acura and commit the robbery.
- Appellant (identified in surveillance and at trial) and co-defendant Marquis Davis (who pleaded guilty to a reduced charge) were tied to the robbery; Davis testified he saw appellant repeatedly shoot the victim, then they used the victim's Acura to rob the restaurant.
- Police found a wallet bearing appellant's ID in the victim's Acura; appellant called police the morning after the murder saying his ID was in the victim's car and he feared implication.
- A jury convicted appellant of capital murder; because the State did not seek death, punishment was life without parole and the court found use of a firearm.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Nealey) | Held |
|---|---|---|---|
| Visiting judge's qualification / oaths | Presumption of regularity: retired appellate justice had previously taken required oaths and could serve as visiting judge; no record evidence of defect | Conviction void because record does not affirmatively show visiting judge took constitutionally required oaths before sitting | Court rejected Nealey's claim: bare allegation insufficient to overcome presumption of regularity; no proof judge failed to take oaths, issue overruled |
| Motion for instructed verdict / accomplice corroboration (Davis) | Non-accomplice evidence (surveillance, ID in car, eyewitness ID, shell casings, glove, victim's car at robbery) tends to connect Nealey to murder/robbery even excluding Davis | Davis uncorroborated as accomplice; absent corroboration conviction should be overturned | Court held non-accomplice evidence sufficiently tended to connect Nealey to the capital murder; denied instructed verdict claim |
| Request for lesser-included offenses (murder, robbery) | Law of parties covered in charge; evidence supports convicting as party to capital murder | Some evidence might support conviction for murder or robbery only, so jury should have been instructed on lesser offenses | Court held no evidence that Nealey was guilty only of murder or only of robbery; trial court did not err in refusing lesser-included instructions |
Key Cases Cited
- Wilson v. State, 977 S.W.2d 379 (Tex. Crim. App. 1998) (preservation and review of judge qualification challenges)
- Murphy v. State, 95 S.W.3d 317 (Tex. App.—Houston [1st Dist.] 2002) (presumption of regularity applies to visiting judges; burden on appellant to make prima facie showing)
- McCloud v. State, 527 S.W.2d 885 (Tex. Crim. App. 1975) (indulge presumption in favor of regularity of proceedings)
- Herrod v. State, 650 S.W.2d 814 (Tex. Crim. App. 1983) (reversal where retired judge lacked statutory authority to sit and record did not show authority)
- Malone v. State, 253 S.W.3d 253 (Tex. Crim. App. 2008) (accomplice corroboration rule: exclude accomplice testimony and look for independent evidence that tends to connect defendant)
- Cathey v. State, 992 S.W.2d 460 (Tex. Crim. App. 1999) (corroboration standard is "tends to connect," not constitutional sufficiency)
- Simmons v. State, 282 S.W.3d 504 (Tex. Crim. App. 2009) (non-accomplice evidence need only tend to connect accused to offense; defer to jury's view of evidence)