Sholars v. State

312 S.W.3d 694

Heywood Joseph SHOLARS, Appellant, v. The STATE of Texas, Appellee.

No. 01-08-00060-CR.

Court of Appeals of Texas, Houston (1st Dist.).

September 24, 2009.

Discretionary Review Refused March 3, 2010.

Danny Karl Easterling, Easterling & Easterling, P.C., Houston, TX, for Appellant.

Bridget Holloway, Assistant District Attorney, Houston, TX, for Appellee.

Panel consists of Justices KEYES, HANKS, and BLAND.

OPINION

EVELYN V. KEYES, Justice.

A jury convicted appellant, Heywood Joseph Sholars, of capital murder.¹ The trial court sentenced appellant to life in prison. In two points of error, appellant argues that (1) the trial court erred in using a stair-step instruction which prohibited consideration of a lesser offense in determining guilt as to the charged offense and in permitting prosecutorial jury argument that repeated the error; and (2) the evidence presented at trial was factually insufficient to show that appellant intentionally shot the complainant or intended to shoot another person.

We affirm.

Background

On April 7, 2005, at approximately 9:00 p.m., appellant and Jesse Davis traveled to a shopping center on Griggs Road in Houston, Texas. Appellant and Davis arrived at the shopping center, stood on the sidewalk and watched as patrons of the Winning World gaming room at 5060 Griggs Road entered and exited the illegal gaming business. Appellant was carrying a black gun in his pocket. Both appellant and Davis were wearing black shirts, black shorts, and black hats. Paul Boutte arrived at the gaming room and rang the doorbell to gain entry. The manager, Melissa Rivera, opened the door to let Boutte into the gaming room. As Boutte entered the gaming room, appellant and Davis ran down the sidewalk toward the gaming room. Appellant and Davis ran behind Boutte and began to push him into the gaming room. An unidentified customer shouted, "Don't let them in." Boutte quickly turned and tried to close the door behind him to prevent appellant and Davis from entering the gaming room.

Appellant was standing outside the door of the gaming room; Davis was standing behind appellant. Appellant and Boutte were struggling as Boutte tried to prevent appellant from entering the gaming room. The complainant saw Boutte struggling to keep appellant outside and came up behind Boutte to assist him. Appellant opened the door and placed his foot in the door to pry it open. Appellant was able to open the door approximately six inches. He took the gun from his pocket with his right arm and pointed it at Boutte through the door. Appellant fired the gun once and paused for approximately two seconds before firing the gun again. The complainant was struck in the abdomen. Appellant did not speak throughout the entire transaction of events.

After the second shot, Davis grabbed appellant's right arm and pulled it out of the door frame. Appellant and Davis ran away from the scene and passed Yosly Ordonez's home. Ordonez was on the porch of her home when she heard noises resembling gunshots. Soon after she heard the noises, appellant and Davis ran in front of the house. She asked appellant and Davis why they were running "like you did something." Neither responded to Ordonez's question. Appellant and Davis disposed of the gun, ran to their car, which was parked at a nearby apartment complex, and drove away from the scene. On April 12, 2005, after receiving an identification from Ordonez, Houston Police Department ("HPD") officers arrested appellant. Appellant was charged with committing the offense of capital murder by attempting to commit a robbery and intentionally causing the death of the complainant by shooting him with a deadly weapon, namely a firearm.

Trial began on January 8, 2008. At trial, the State presented testimony from Boutte. Boutte testified that as he was struggling to prevent appellant from opening the door, he saw appellant take the gun from his pocket. Appellant aimed the gun toward Boutte. Boutte testified that he used his left hand "and started tussling with him with the gun and the gun kept going back and forth." He also testified that appellant shot the gun "more than two times."

The State also presented testimony from Ordonez. Ordonez testified that she was an acquaintance of both appellant and Davis because they lived in the same neighborhood. She immediately recognized them when they ran in front of her house. As they were running in front of her house, she saw an object in appellant's hand but was not certain whether appellant was carrying a gun. When she asked them why they were running, appellant and Davis failed to respond. Ordonez testified that appellant and Davis ran toward three apartment complexes down the street.

The State also presented testimony from Davis. Davis testified that he pled guilty to aggravated robbery in this case and was awaiting sentencing at the time of his testimony. He stated that he and appellant had been friends and associates for over 10 years. Davis testified that appellant wanted to rob the gaming room and asked him to assist in the robbery. Appellant knew the layout of the gaming room and also knew where the gaming room's money was stored. Appellant also possessed a gun, which Davis described as a ".357 Magnum." Davis testified that, during the incident, he and appellant were trying to force themselves into the gaming room when Boutte blocked their entry. During the struggle with Boutte, appellant pulled his gun out of his pocket with his right hand and pointed it inside the door frame. Davis testified that he could not see the gun after appellant pointed it inside the door frame. However, he heard appellant fire the gun once. Appellant paused for two seconds and fired the gun again. Davis testified that after the second shot he took appellant's right arm and pulled it out of the door frame. He and appellant then ran away from the gaming room.

The State presented testimony from HPD Officer D. Shorten. Shorten testified that he investigated the crime scene and obtained statements from Boutte, Ordonez, Rivera, and other witnesses. He prepared two different photo spreads, one containing appellant's picture and one containing Davis's picture. On April 8, 2005, he presented the photo spreads to Boutte, but Boutte could not make an identification of either appellant or Davis. He also presented the photo spreads to Ordonez. Ordonez identified appellant as one of the people running in front of her home in the period after the incident. Shorten testified that, on April 13, 2005, HPD police officers presented Boutte with a "video lineup" that included appellant. Boutte identified appellant as the shooter.

Appellant presented testimony from Rudy Vargas, a private investigator. Vargas testified that he interviewed Ordonez and that she told him she was not certain that appellant was carrying a gun when he ran in front of her house. Vargas testified that Ordonez said the object appellant was carrying looked like a "big white gun."

At the end of the guilt/innocence phase, the trial court read the entire charge to the jury. It stated, in relevant part:

Now, if you find from the evidence beyond a reasonable doubt that on or about the 7th day of April, 2005, in Harris County, Texas, appellant did then and there unlawfully, while in the course of committing or attempting to commit the robbery of Melissa Rivera, intentionally cause the death of the complainant by shooting the complainant with a deadly weapon, namely, a firearm, then you will find the defendant guilty of capital murder, as charged in the indictment.

Or, if you believe from the evidence, beyond a reasonable doubt that appellant in Harris County, Texas, on or about the 7th day of April, 2005, intending to cause the death of Paul Boutte by shooting at Paul Boutte with a deadly weapon, namely a firearm while in the course of committing a robbery of Melissa Rivera, did then and there cause the death of the complainant by shooting the complainant with a deadly weapon, namely a firearm while in the course of committing or attempting to commit a robbery of Melissa Rivera, then you will find the defendant guilty of capital murder as charged in the indictment.

Unless you so find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant of capital murder and next consider whether appellant is guilty of the lesser offense of felony murder.

....

Unless you so find from the evidence beyond the reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant of felony murder and next consider whether appellant is guilty of the lesser offense of aggravated robbery.

....

Unless you so find from the evidence beyond the reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant of aggravated robbery and next consider whether appellant is guilty of the lesser offense of manslaughter.

....

If you have a reasonable doubt as to whether the defendant is guilty of any offense defined in this charge you will acquit the defendant and say by your verdict "Not Guilty."

Regarding the jury charge, the State made the following closing argument to the jury, in relevant part:

State: Remember how lessers work and how you are instructed to deliberate on them. You have to decide whether he is guilty or not guilty of capital murder first. If you have a reasonable doubt, then you must acquit him of capital murder. And remember, it's an individual deliberation. If you believe he's guilty of capital murder, then that is your deliberation. And all 12 of you, in order to get to a lesser offense and start deliberating about that, you are told in that charge—

Appellant: Objection as to any instructions at this point as to how to deliberate. That's outside the charge.

Court: Just restate your argument. That's overruled.

State: Yes, ma'am. That charge instructs you that you must first deliberate on the higher offense and

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