In the Court of Criminal Appeals of Texas

No. 74,936

DAMON ROSHUN MATTHEWS, Appellant
v.
THE STATE OF TEXAS

ON DIRECT APPEAL

FROM HARRIS COUNTY

Keller, P.J., delivered the opinion of the unanimous Court.

O P I N I O N

Appellant was convicted in April 2004 of capital murder. ⁽¹⁾ Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, §§ 2(b) and 2(e), the trial judge sentenced appellant to death. ⁽²⁾ Direct appeal to this Court is automatic. ⁽³⁾ Appellant raises ten points of error. Finding no merit in appellant's claims, we shall affirm.

Around 2:00 a.m. at the scene, Mayer interviewed appellant and taped the interview. ⁽⁴⁾ In his oral statement, appellant denied any involvement in Gonzalez's murder. He said that a short Hispanic male, with a bald head and gold in his mouth, named "Creeper," ⁽⁵⁾ came over to the motel in Gonzalez's car and asked him if he wanted to "pimp the car for a little bit."

At first, appellant claimed that he did not know that the car belonged to Gonzalez. He said that he drove the car for a few minutes, before he noticed the blood on his hands and on the car. He then took the car to the carwash to wash out the blood. When the police arrived, he denied any knowledge of the gun on the floorboard. He stated that he never fired a weapon that night. When asked about the identity of "Grumpy," a nickname of Gonzalez, appellant said he did not know who Grumpy was. He later admitted that Grumpy had called him earlier that day and that he had known Grumpy since they were in school together.

Around 5:00 a.m., Police Officer Norman Ruland interviewed appellant on video. ⁽⁶⁾ In his videotaped statement, appellant changed his story multiple times. At first, appellant told Ruland that, around 7:00 p.m., Grumpy picked up appellant and asked him where to get cocaine. ⁽⁷⁾ Appellant then took Gonzalez to see Creeper and a guy named "T-Man." Appellant stayed in the car while Gonzalez talked to Creeper and T-Man. According to appellant, before Gonzalez returned to Creeper, he took appellant to the motel room that appellant shared with Flax. Creeper then drove to the motel in Gonzalez's car and asked appellant if he wanted a ride. Appellant took the car for a ride. When he noticed the blood on his hands and clothing, he took the car to the carwash.

After further questioning, appellant claimed that he heard gunfire when Gonzalez, Creeper and T-Man were talking and he was sitting in the car. According to appellant, Creeper shot at Gonzalez, and Gonzalez shot at Creeper, and then Gonzalez went to the car, shouted to appellant that he had set him up, and shot two or three times at appellant. Everyone was outside the car at this time, and appellant shot his gun, "a little .25," once in self-defense, before he threw down his gun and ran back to the motel. He claimed that he did not know that Gonzalez was dead or who shot Gonzalez.

He also claimed that he did not know that the car was full of blood or who owned the gun on the floorboard, although he speculated that the gun belonged to Creeper. Appellant later said that Gonzalez and Creeper were members of the La Primera gang ⁽⁸⁾ and therefore friends. He admitted that it did not make sense that Creeper would kill Gonzalez and take his car to appellant, a non-member of the gang. He then recalled that it was an unknown black man, not Creeper, who brought Gonzalez's car, full of blood, to him and asked him if he wanted a ride. He then drove Gonzalez's car to the carwash.

The record, viewed in a neutral light, reveals the following evidence favorable to appellant. In both statements to the police, appellant repeatedly denied killing Gonzalez. A fingerprint lifted on the outside of the driver's door and submitted for latent examination had insufficient characteristics to be identifiable. No fingerprints were lifted from the .380 or the bullets. Dr. Eric Sappenfield, a trace section supervisor for the Harris County Medical Examiner's Office, analyzed samples submitted from appellant's hands on March 6, 2003, for gunpowder residue under a scanning electron microscope. The results were "inconclusive," meaning gunpowder residue was either not present or it could not be determined whether it was present. ⁽⁹⁾

Finally, Lawrence Renner, a blood stain expert, determined that the blood stain on appellant's sweatshirt was a transfer pattern stain, caused by something with blood on it touching the surface of the sweatshirt. There was no blood spatter on the sweatshirt, though there should have been if appellant was wearing the sweatshirt while shooting Gonzalez from one to three feet away. ⁽¹⁰⁾

In points of error one and two, appellant contends that the evidence is legally and factually insufficient to sustain his conviction for capital murder. Evidence is legally insufficient if, viewed in the light most favorable to the prosecution, no rational jury could find the defendant guilty beyond a reasonable doubt. ⁽¹¹⁾ Under a factual sufficiency review, we consider all of the evidence in a neutral light and ask whether the jury was rationally justified in finding guilt beyond a reasonable doubt. There are two ways in which the evidence may be factually insufficient. ⁽¹²⁾ First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. ⁽¹³⁾ Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. ⁽¹⁴⁾ If, in weighing all the evidence under this balancing scale, the contrary evidence is strong enough that the beyond-a-reasonable-doubt standard could not have been met, the guilty verdict should not stand. ⁽¹⁵⁾ We find appellant's claims of legal insufficiency and factual insufficiency to be without merit.

In reviewing the legal sufficiency of the evidence, we look at the events occurring before, during, and after the commission of the offense. ⁽¹⁶⁾ Circumstantial evidence alone can be sufficient to establish guilt. ⁽¹⁷⁾ Each fact does not need to point directly and independently to the guilt of the appellant as long as the cumulative effect of all the incriminating facts are sufficient to support the conviction. ⁽¹⁸⁾

In reviewing the evidence for factual sufficiency, we do not "find" facts or substitute our judgment for that of the fact finder. ⁽¹⁹⁾ The jury is the sole judge of the weight and credibility to be given to a witness's testimony. ⁽²⁰⁾

The jury could accept or reject any or all of the statements that the appellant made in his tape-recorded and videotaped statements. ⁽²¹⁾ Looking at the evidence in a neutral light, we conclude that the jury was rationally justified in finding guilt beyond a reasonable doubt, and thus the evidence is factually sufficient to sustain the conviction for capital murder. Point of error two is overruled.

Under state law, a lesser-included offense must be included in the jury charge if: (1) the requested charge is for a lesser-included offense of the charged offense; and (2) there is some evidence that, if the defendant is guilty, he is guilty only of the lesser offense. ⁽²²⁾ In other words, there must be some evidence from which a jury could rationally acquit the defendant of the greater offense while convicting him of the lesser-included offense. ⁽²³⁾

To convict appellant of capital murder, the jury was required to find beyond a reasonable doubt that appellant intentionally caused the death of Esfandiar Gonzalez while in the course of committing or attempting to commit robbery. Robbery is a lesser-included offense of murder in the course of robbery. Theft is a lesser-included offense of robbery. ⁽²⁴⁾ But unauthorized use a motor vehicle is not a lesser-included offense of the capital murder charged in this case, since it is not included in the proof necessary to establish that the defendant intentionally committed murder in the course of committing or attempting to commit robbery. ⁽²⁵⁾ The trial court therefore did not violate state law in denying appellant's request for an instruction on unauthorized use of a motor vehicle.

Although theft is a lesser-included offense of robbery, there is no evidence here that appellant is guilty only of the lesser-included offense of theft. To be entitled to a jury instruction on the lesser-included offense of theft, the record must contain evidence that appellant committed a theft of the victim's property but did not injure or threaten him and did not make him fearful of imminent physical injury. ⁽²⁶⁾

With regard to the alleged violations of the Federal Constitution, appellant has not shown that the trial court's action in refusing appellant's requested instructions denied appellant his due process rights or violated the prohibition against cruel and unusual punishment. ⁽²⁷⁾

Appellant filed a pretrial motion to quash the indictment and preclude the death penalty as a sentencing option on the ground that § 8.07(c) ⁽²⁸⁾ of the Texas Penal Code violated the Eighth and Fourteenth Amendments of the United States Constitution. After the State rested in the guilt phase of trial, appellant argued the motion and specifically argued that Roper v. Simmons ⁽²⁹⁾ was before the United States Supreme Court and that the Court would be deciding whether to uphold the imposition of the death penalty on persons seventeen years old or under. As appellant was eighteen years old at the time of the offense, the trial court denied the motion.

The United States Supreme Court held in Simmons that the Eighth and Fourteenth Amendments to the United States Constitution "forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed." ⁽³⁰⁾ Because appellant was eighteen years old when he committed the offense of capital murder, the holding in Simmons does not apply, and, therefore, the assessment of the death penalty in this case did not violate the Eighth Amendment of the United States Constitution.

Appellant also asserts that the admission of evidence in the punishment phase of prior bad acts and prior offenses he committed while he was under the age of eighteen was unconstitutional. However, appellant did not object to the admission of the evidence ⁽³¹⁾ at trial on this basis.

To preserve error for appellate review, the complaining party must make a timely, specific objection and obtain a ruling on the objection. ⁽³²⁾ The failure to make an objection at trial on the grounds complained of on appeal forfeits many claims, including an Eighth Amendment claim of cruel and unusual punishment. ⁽³³⁾ Appellant forfeited his complaint that admission of evidence of prior bad acts and prior offenses committed as a juvenile violated the Eighth Amendment prohibition against cruel and unusual punishment.

Moreover, appellant's complaint is without merit. Article 37.071 permits the admission of evidence at the punishment phase of capital cases regarding "any matter that the court deems relevant to sentence, including evidence of the defendant's background or character. . . ." ⁽³⁴⁾ Youth is neither a mitigating ⁽³⁵⁾ nor an aggravating factor as a matter of law; rather, the jurors interpret the facts and determine if youth is a mitigating or aggravating factor, or neither. ⁽³⁶⁾

In the punishment phase of a capital murder trial, the admission of prior offenses committed when the defendant was a juvenile does not violate the Eighth Amendment if he was assessed the death penalty for a charged offense that occurred when he was at least eighteen years old. ⁽³⁷⁾ Appellant was assessed the death penalty for the charged offense of capital murder, which he committed when he was eighteen years old. Point of error six is overruled.

In points of error seven and eight, appellant contends that the trial court erred in failing to instruct the jury that the State has the burden of proof beyond a reasonable doubt on the mitigation issue. He argues that the Texas statute ⁽³⁸⁾ is inconsistent with Apprendi v. New Jersey ⁽³⁹⁾ and its progeny and with the Texas constitutional guarantee of due course of law. Appellant filed a proposed jury charge ⁽⁴⁰⁾ regarding the mitigation issue, and the trial court denied the request. The Apprendi and Blakely claims have been raised and rejected. ⁽⁴¹⁾

Appellant also relies on United States v. Booker. ⁽⁴²⁾ He claims that Article 37.071 is a guidelines-type statute that differs from the Federal Sentencing Guidelines in degree rather than in kind.

In Booker, the Court held that the Sixth Amendment requirement that any fact, other than a prior conviction, which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt was incompatible with the Federal Sentencing Act, which called for promulgation of mandatory federal sentencing guidelines; thus, provisions of the Act that made guidelines mandatory and set forth the standard of review on appeal would be severed and excised. ⁽⁴³⁾ The Supreme Court also reaffirmed its holding in Apprendi that any fact, other than a prior conviction, which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict, must be admitted by the defendant or proved to a jury beyond a reasonable doubt. ⁽⁴⁴⁾ We have held that Article 37.071 satisfies these requirements. ⁽⁴⁵⁾ Points of error seven and eight are overruled.

At trial, appellant requested an instruction on the State's burden of proof on the mitigation issue, based on Penry v. Johnson, ⁽⁴⁶⁾ because without this instruction, the mitigation issue gives the jury, at best, mixed signals as to how the jury is to go about answering the issue. The trial court denied the request. Appellant claims that the Texas death penalty statute violates the Eighth Amendment, as interpreted in Penry II, because, in that it is unclear as to the burden of proof, the mitigation instruction suffers from the same constitutional flaw of sending "mixed signals" to the jury. We have rejected the argument that the mitigation issue sends "mixed signals" to the jury, and we have rejected the argument that the failure to assign a burden of proof violates the Eighth Amendment. ⁽⁴⁷⁾ Point of error nine is overruled.

In point of error ten, appellant contends that the punishment charge misinformed the jury by failing to disclose that each juror could prevent a death sentence by disagreeing with the other jurors, in violation of the heightened reliability requirement of the Eighth Amendment of the United States Constitution and the Due Process Clause of the Fourteenth Amendment. We have decided these claims adversely to this position. ⁽⁴⁸⁾ Point of error ten is overruled.