Herbert Hubert COOPER, Appellant, v. The STATE of Texas
No. 2055-00
Court of Criminal Appeals of Texas
Jan. 30, 2002
67 S.W.3d 221
It is axiomatic that the law does nоt require a futile act. Clearly, the trial court believed that appellant should be incarcerated for a long time and intended to give effect to its personal judgment despite the judgment of the community, in the form of the jury, to the contrary. Any attempt by appellant to challenge “zero tolerance” risked the high probability of assessment of even harsher terms of probation by an еven more irate trial court. The court of appeals correctly analyzed the situation when it said, “These remarks show that the judge had committed himself to revoke probation for any violation whatsoever, no matter what exigent circumstances existed. This was error. It rendered him unable to apply the law the legislature enacted.” Id.
A motion to recuse would have been equаlly futile and destined to provoke the increased wrath of the trial court. The judge, by his own words, made clear that he was going to correct the jury‘s “error.” Can we say, then, that he would have, if asked, entrusted sentencing to another judge, who might actually consider the facts? Or that he would give appropriate consideration to a motion for resentencing? I think not.
In his concurrence, Judge Keаsler asserts that the trial court‘s actions “reflect a reasoned response to the evidence admitted at the hearing, not a predetermined decision to revoke.” Ante, at 220. Judge Keasler also asserts that “[d]espite the judge‘s comments to the contrary, the record reflects that the judge‘s decision to revoke was not based solely on his ‘promise’ to revoke.” Id. at 220. How do we reconcile a record which contains statements by the trial judge that reveal a predetermined decision to revoke with the discounting of those statements? How can we claim to know better than the judge himself what the judge intended? When one‘s own words convict, this Court should not acquit.
While I do not agree entirely with the reasoning of the court of appeals, I believe that it was corrеct in its result. I would affirm the judgment of the court of appeals.
Jess Williams, Beaumont, for Appellant.
Wayln G. Thompson, Asst. DA, Beaumont, Matthew Paul, State‘s Attorney, Austin, for State.
KELLER, P.J., delivered the opinion of the Court in which WOMACK, KEASLER, HERVEY, and HOLCOMB, JJ., joined.
A person commits robbery if, “in the course of committing theft” and with the intent to obtain or maintain control of the property, he assaults another person.1 In this case, we consider whether evidence that a theft occurred immediately after an assault is sufficient to establish that the assault was committed “in the course of committing theft.”
1. Facts
Appellant, recently paroled from prison, was living with his aunt and his uncle, E.W. Bluiett. Bluiett took appellant with him one day to help him work on a fence. As Bluiett was about to put a fence post into the ground, appellant struck him from behind without any warning. A struggle followed and both men fell to the ground. While appellant repeatedly struck Bluiett, Bluiett asked appellant, “What‘s the matter? What‘s the matter?” Appellant did not answer. When Bluiett released his grip on appellant, appellant stood up, walked to Bluiett‘s truck, got into it, and drove away. About an hour later, appellant was found in a neighboring town with the truck broken down, trying to fix it. He was arrested for public intoxication.
2. Court of Appeals opinion
The Court of Appeals found that the above evidence was insufficient to establish
3. Analysis
In McGee, we remarked that we had held “numerous times” that evidence is sufficient to prove murder “in the course of” committing robbery in a capital murder case if the State proves that the robbery occurred immediately after the murder.6 Our pronouncement in McGee was specifically directed at the nexus requirement between robbery and murder. But we said in Ibanez that the nеxus requirement for capital murder involving murder in the course of a robbery is the same as the nexus requirement in a robbery between
Appellant refers us to two of our recent treatments of this issue and complains that we seem to be suggesting that in all cases where there is evidence that a theft occurs after the victim is murdered this evidence will support a jury finding of murder in the course of a robbery. See Huffman v. State... and McGee v. State.... It is true that in both of the above-cited cases we stated that the evidence will be sufficient if the State proves that a robbery of the victim occurred immediately after the murder of the victim.... Contrary to the suggestion of appellant, we recognize that it is possible to have murder followed by theft without having murder in the course of robbery. What elevates the occurrence of theft to robbery is the presence, at the time of, or prior to, the murder, of the intent to obtain or maintain control of the victim‘s property.8
In the next paragraph in Nelson, we analyzed the record and found that the robbery nexus was supported by evidence showing a motive to steal, including evidence of the defendant‘s financial difficul-
We believe the Court of Appeals has read too much into Nelson, and we take this opportunity to clarify the matter. The Court of Appeals read Nelson to mean that the immediacy of a theft following an assault is a factor to be considered, but would be insufficient in the absence of other evidence supporting the nexus. This interpretation of our cases, however, goes too far in abrogating the general rule of McGee. The absence of additional evidence will not defeat the natural inference allowed by McGee; even if there is no other evidence of a nexus, that inference will support a conviction. Moreover, Nelson was a plurality opinion. As such, it has “limited precedential value” or even “no precedential value.”11 The general rule is still that a theft occurring immediately after an assault will support an inferеnce that the assault was intended to facilitate the theft.
The question remaining is whether, and under what circumstances, evidence of a motive other than theft can negate the natural inference that arises when a theft immediately follows an assault. We need not, in this case, attempt to answer that question comprehensively but simply hold that the inference will not be negated by evidence of an alternative motive that the jury could rationally disregard.
Appellant testified that, at the time of the attack, he was hearing voices and thought his uncle was hitting a child. When appellant was asked why he took the truck, he said, “Well, I needed—I didn‘t know what I was doing. I just ran and jumped in the truck and just took off.” The jury could have rationally disbelieved this testimony. The evidence in this case is sufficient to supрort an inference that the assault was committed in the course of the commission of the theft.
We reverse the judgment of the Court of Appeals and affirm the judgment of the trial court.
KEASLER, J. filed a concurring opinion in which HERVEY, J., joined.
MEYERS, J., filed a dissenting opinion in which PRICE, JOHNSON and COCHRAN, JJ., joined.
KEASLER, J., filed this concurring opinion, joined by HERVEY, J.
This is a simple case. To prove Cooper‘s guilt, the State had to prove that he assaulted Bluеitt “in the course of” taking his truck.1 This means the State had to prove that at the time Cooper assaulted Blueitt, he intended to take the truck.2 If the theft was committed “as an afterthought and unrelated to” the assault, then the evidence was insufficient to show a robbery.3
But Nelson said nothing new. We had previously noted many times that a theft could be committed “as an afterthought and unrelated to” a murder and that would not satisfy the “in the course of” requirement.8 That acknowledgment in no way increases the State‘s burden of proof. In a robbery case, the State still must prove that the theft occurred “in the course of” the assault. The defendant must form the intent to commit the theft either before or during the assault.
The critical rule of law which the court of appeals overlooked is that intent may be inferred from the acts and conduct of the defendant.9 The cоurt of appeals held that “the immediacy of the theft following the assault is a factor to be considered, but absent other evidence from which to infer at what time [Cooper] developed the requisite intent to take the truck, we cannot say that any rational trier of fact could have found that element of robbery proven beyond a reasonable doubt.”10 The court apрarently would require the State to psychoanalyze Cooper and prove his thought processes. The law, however, has no such requirement.
The evidence showed that Cooper hit Blueitt and then immediately stole his truck. The fact that the theft occurred immediately after the assault is circumstantial evidence of Cooper‘s intent. A rational trier of fact could infer from these еvents that Cooper intended to take the truck at the time of the assault and, therefore, that the assault was committed in the course of the theft. The appellate court apparently wanted more evidence from which to infer Cooper‘s intent, but the issue is whether a rational jury could have inferred Cooper‘s intent from this evidence. Here, it could have easily done so.
With these comments, I join the opinion of the Court.
MEYERS, J., filed a dissenting opinion, in which PRICE, JOHNSON, and COCHRAN, J.J., joined.
The majority claims that the Court of Appeals has read too much into Nelson v. State, 848 S.W.2d 126 (Tex.Crim.App.1992) (plurality op.), cert. denied, 510 U.S. 830, 114 S.Ct. 100, 126 L.Ed.2d 66 (1993).
The majority asserts that this Court‘s holdings in Ibanez v. State, 749 S.W.2d 804 (Tex.Crim.App.1986) and McGee v. State, 774 S.W.2d 229 (Tex. Crim.App.1989), cert. denied, 494 U.S. 1060, 110 S.Ct. 1535, 108 L.Ed.2d 774 (1990) indicated that in a robbery case, the nexus between an assault and a robbery is sufficiently proven if the State proves that the theft occurred immediately after the assault. Majority Op. at 223. I have not read such a draft of Ibanez. On my reading of Ibanez, proof of a theft immediately following an assault, standing on its own, has never been sufficient to prove intent. In Ibanez, this Court was asked to determine whether there was enough evidence to sustain a conviction for capital murder. Appellant argued that at most, the evidence adduced at trial proved a murder and an unauthorized use of a motor vehicle. Ibanez, 749 S.W.2d at 805. As such, it was necessary to determine whether the State proved that aрpellant intentionally and knowingly killed the deceased in the course of committing robbery. This Court turned to the robbery statute in order to determine the meaning of “in the course of committing.” Id. at 807. However, the Court did not stop its analysis there but went on to explain:
The State, in order to obtain a conviction, was bound to prove, beyond a reasonable doubt, that appellant committed the murder during the commission of a robbery. Since the State alleged the same assaultive conduct for both the murder and the robbery, it had to prove that the appellant intentionally strangled the deceased with the intent to obtain control of the deceased‘s property. A killing and unrelated taking of property do not constitute capital murder under
19.03(a)(2) : the State must prove a nexus betweеn the murder and theft, i.e. that the murder occurred in order to facilitate the taking of the property.
Id. It is apparent from Ibanez that the State would be required to show more than an assault followed by a theft in order to prove that the defendant intended to obtain the victim‘s property in the course of committing the assault.
The majority‘s characterization of McGee is also inaccurate. Although this Court held that “in the course of committing” is sufficiently proven if the State рroves that the robbery occurred immediately after the commission of the murder, it nevertheless went on to discuss other evidence which tended to prove that appellant formed the intent to commit the robbery either during, or immediately after the commission of the murder:
There is ample evidence that appellant committed a robbery either during or immediately after the commission of the murder. Crosby was found dead, brutally beaten, and his wallet and car were
missing. Andrew Sells testified that he and his friends saw appellant leaving Crosby‘s rental home in Crosby‘s car shortly after the time of the alleged murder. Appellant, who earlier that day borrowed a dollar for a can of Skoal, purchased clothing and jewelry for himself and his girlfriend later that evening.... While there is not evidence that aрpellant demanded money or property from Crosby before attacking him with the hammer, such evidence is not the talisman of an intent to steal; the intent may be inferred from the actions or conduct of appellant.
McGee, 774 S.W.2d at 234 (citations omitted; ellipses inserted).
The majority also fails to mention White v. State, 779 S.W.2d 809 (Tex.Crim.App.1989), cert. denied, 495 U.S. 962, 110 S.Ct. 2575, 109 L.Ed.2d 757 (1990), another case which addressed the nexus issue in a capital murder case involving a robbery following a murder, decided on the same day as McGee. Interestingly, however, the so-сalled “general rule” which was stated in McGee, was never mentioned in White. Instead, this court discussed the importance of determining the point at which appellant “formulated his intent” to take the victim‘s property. Id. at 815. The Court explained that this determination was critical in differentiating between the commission of a capital murder in the course of robbery and the commission of a first degree murder followed by theft from a corpse. Id.
In Nelson this Court clarified its position on the nexus requirement in capital murder jurisprudence. Appellant argued that based on his interpretation of prior case law,1 this Court seemed to be suggesting that in all cases in which there was evidence that a theft occurred immediately after a murder, then the evidence would automatically support a jury finding of murder in the course of robbery. Nelson, 848 S.W.2d at 131. This Court clarified the holdings of its prior decisions and explained that it still recognized that it was possible to have murder followed by theft without having murder in the course of robbery. Id. at 131-132. The ultimate question then was whether the State had proven that the requisite intent to obtain or maintain control of the victim‘s property was present at the time of, or prior to, the murder. Id. at 132. If this requisite intent has not been proven, thеn the State will have shown a murder followed by a theft, and not murder in the course of robbery.
Since Nelson, this Court has had the opportunity to revisit the nexus issue on more than one occasion. Although the majority declares that Nelson has “limited precedential value” and that the holding in McGee is the controlling law, our cases have consistently followed the principles outlined in Nelson.2
Under the “general rule” expounded by the majority, the State‘s job of proving robbery cases has just gоtten a whole lot easier. Whenever a defendant commits a theft following an assault, the State is no longer required to meet its burden of proving every element of the offense beyond a reasonable doubt. Instead, the fact finder will be permitted to infer intent simply from the sequence of events.
The Court of Appeals was correct in holding that proof of an assault followed by a theft without a showing that the assault was committed with the intent of facilitating the theft is not enough to sustain a robbery conviction. Cooper, 29 S.W.3d at 904-905. The State failed to provide any evidence that appellant formed the requisite intent to steal Bluiett‘s truck either before or during his commission of the assault. According to Bluiett, following the scuffle that occurred in the back of the house between the two men, appеllant “got up and left.” Appellant then went to the front of the house, got into the truck, and using the keys that were already in the car, drove off. The Court of Appeals correctly concluded that there was no evidence from which a rational trier of fact could have found that appellant developed the requisite intent to take the truck either prior to, or during the assault. Id. The judgment of the Court of Appeals should be affirmed. I respectfully dissent.
Luke Enoch EDWARDS, Appellant, v. The STATE of Texas.
No. 0373-00.
Court of Criminal Appeals of Texas.
Jan. 30, 2002.
Bob Wicoff, Houston, for Appellant.
Bridget R. Anderson, Asst. DA, Houston, Matthew Paul, State‘s Attorney, Austin, for State.
OPINION
The opinion was delivered PER CURIAM.
Appellant was convicted of aggravated robbery. During the punishment phase, the trial court submitted the mandatory jury instruction under