Cooper v. State

373 S.W.3d 821

Michael COOPER, Appellant

v.The STATE of Texas, Appellee.

No. 03–10–00348–CR.

Court of Appeals of Texas, Austin.

June 27, 2012.

Blake Williams, Assistant District Attorney, Austin, TX, for State.

Linda Icenhauer–Ramirez, Attorney at Law, Austin, TX, for Appellant.

Before Chief Justice JONES, Justices HENSON and GOODWIN.

OPINION

J. WOODFIN JONES, Chief Justice.

Michael Cooper and two co-defendants were indicted for multiple counts of aggravated robbery arising out of a single home invasion that involved the attack of several people inside the home. SeeTex. Penal Code Ann. § 29.03 (West 2011). A jury convicted appellant of five counts of aggravated robbery. The jury assessed appellant's punishment at imprisonment for 60 years on two counts, 80 years on two counts, and 65 years on the final count. See id. § 12.32 (West 2011). The trial court sentenced appellant in accordance with the jury's verdicts, ordering all five sentences to run concurrently. Appellant raises three points of error on appeal. We affirm the judgments of the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

The jury heard evidence that during the early morning hours of July 16, 2009, around 3:30 a.m., appellant and two accomplices, Joseph Foley and Abasi Price, invaded a house with the intention of robbing its occupants. Appellant, Foley, and Price were dressed in black, had their faces covered with bandanas, and brandished numerous weapons, including a baseball bat, a gun, and a knife. Upon entering the house, the men began assaulting the occupants.

One of the assailants put a gun to the head of one of the two female occupants, Telia Cuspard, and ordered her to “get naked” and surrender her money. When Cuspard moved to comply, the intruder hit her over the head with the gun, and she fell to the floor. As she lay face down on the floor, one of the intruders cut open her shirt with a knife. She remained on the floor during the attack where she saw, and heard, the intruders beating up the other occupants and searching for valuables. Eventually, she heard a gunshot. Another of the occupants, James Barker, resisted, tackling one of the intruders and struggling with him until another intruder struck him repeatedly with a baseball bat. Barker lost consciousness. He suffered a fractured pelvis, head injury, internal bleeding to his brain, and heavy bruising over his body. At the time of trial, Barker continued to suffer headaches and memory problems resulting from the brain injury.

Three other occupants, Michael Mullins, Alvin Duran, and Paul Linden, were also injured during the attack. Mullins was hit in the head with an unknown object and fell to the floor. Duran was hit in the head with a pistol. Linden, struck repeatedly with a bat, suffered two broken skull bones, a broken jaw, a torn ear, and was still experiencing paroxysmal positional vertigo at the time of trial. Another occupant, Andrew Chaney, fled out the back door and attempted to scale the back fence, but Price caught him and forced him to return to the house at gun-or knife-point.¹ After Price forced Chaney back into the house and ordered him to lie down, one of the intruders emptied Chaney's pockets and, as Chaney attempted to protect himself by covering his head with his hands, shot him in the hand. Chaney suffered nerve damage to his hand and, at the time of trial, had not recovered his full range of motion and still experienced pain in his hand during cold weather. Chaney's plastic surgeon testified that Chaney would never recover the normal use of his hand.

Another occupant, Brian Forisha, was sleeping in his bedroom at the back of the house when the attack began. He awoke to the sounds of screaming, fighting, and things breaking. Two of the intruders then came into his room. One held a gun on him while the other punched him repeatedly in the face as he lay in bed. One of the intruders took his cell phone. Another occupant, Donald Lineberry, who was at the back of the house when the intruders burst through the front door, managed to escape the house undetected. He ran to a nearby convenience store and called 911.

The first police officers to arrive at the house observed Price carrying a television out the front door. When Price saw the police, he dropped the television and ran. Officers eventually apprehended him on the roof of a neighboring home. Police saw a second suspect drop a camcorder, camera, and baseball bat while attempting to flee the scene. They recovered these items plus additional items strewn throughout the neighborhood. Police discovered a bandana and a black Nike Air Jordan shoe in the backyard of a nearby house. Further down the street, in an alleyway, police found another black Nike Air Jordan shoe. Nearby, in the same alley, police also discovered a black t-shirt and black gloves. Across the street, officers found a black beanie hat. Subsequent DNA testing indicated that Foley could not be eliminated as the major contributor of the DNA on the bandana. Foley's DNA was also found on the t-shirt. Neither appellant nor Foley could be eliminated as the source of the DNA on the black gloves. One of the gloves tested positive for gunshot residue.

Michael Stoll, who lived several blocks from the crime scene, testified that he came out of his house when he heard police helicopters flying overhead and found a bundle of clothes on the edge of the bed of his pickup truck. When he picked up the bundle—a jacket and a pair of blue and black gloves—two cellular telephones fell out and he saw a gun sitting on his truck. Stoll turned all of these items over to the police. Subsequent DNA testing of the blue and black gloves revealed a DNA mixture of several individuals, from which appellant could not be excluded as a contributor. Subsequent ballistics testing revealed that the gun had fired a casing that was found at the crime scene.

During his post-arrest interrogation, Price identified appellant and Foley as his accomplices. After interviewing Price, police officers determined that a Cadillac registered to appellant's wife had been parked near the crime scene.² Appellant's wife and stepson confirmed that appellant had taken the car from San Antonio to Austin the night of the robbery. Appellant's wife testified that she had to drive with appellant and a friend from the family's home in San Antonio to retrieve the Cadillac from a residential neighborhood in Austin. She indicated that appellant refused to go with her all the way to get the car but instead waited at Home Depot while she retrieved the car with appellant's father. Appellant's stepson testified that he saw appellant load a baseball bag (a bag designed to hold baseball bats) into the trunk of the Cadillac the night before the robbery. He also testified that appellant was wearing black clothing and black shoes when he left for Austin that night and identified the baseball bat recovered from the crime scene as belonging to appellant. Cell phone records offered at trial indicated that at 3:35 a.m. the morning of the attack, appellant's cell phone was within a few miles of the crime scene.

The State eventually arrested appellant and charged him with sixteen counts of aggravated robbery. Before trial, the State elected to proceed on only six of the counts. The State charged appellant and Foley using essentially identical indictments, and the two men proceeded to trial as co-defendants. During trial, the victims of the robbery, Stoll, and appellant's wife and stepson testified to the events described above. Price also testified for the State. Price testified that, on the night of the robbery, appellant came to the house Price shared with Foley in Austin and told them he wanted to “hit a lick,” which meant he wanted to rob someone. The three agreed to commit a robbery and got into appellant's Cadillac to drive around Austin to find someone to rob. Eventually, the trio followed a car with two women leaving a gentlemen's club to the house where the instant robbery occurred. Soon after the women entered the house, another car pulled up and another group of people went inside the house. Then, according to Price, appellant got a baseball bat and some gloves out of the car and also gave a gun to Foley. The three men covered their faces, went into the house, and began hitting people with the bat. Price testified that he saw someone trying to leave out of the back, but he grabbed that person from the fence and brought him back inside. The robbers put everyone on the floor and Foley held the gun on them. The three then went through everyone's pockets and took things from the house. Price testified that when the three attempted to leave through the front door, they saw police officers in the front yard. He indicated that he was able to run away and climb up onto a neighboring roof, where he was later apprehended. The State also presented expert testimony from Austin Police Department DNA analyst Elizabeth Morris on the DNA evidence and Texas Department of Public Safety forensic scientist Juan Rojas on the gunshot residue found on one of the black gloves near the crime scene.

At the close of the evidence, the State waived one of the six counts and proceeded on the remaining five: aggravated robbery causing bodily injury to Chaney; aggravated robbery involving threat to Chaney; aggravated robbery causing bodily injury to Barker; aggravated robbery involving threat to Barker; and aggravated robbery causing bodily injury to Linden. The jury returned guilty verdicts on all five counts as to both defendants and, for appellant, assessed punishment at 60 years on two counts, 80 years on two counts, and 65 years on the final count. The trial court ordered appellant to serve all five sentences concurrently.

After trial, the State informed appellant's attorney that its DNA expert, Morris, had previously been reprimanded for quality-control issues related to her laboratory work.³ Appellant moved for a new trial on...