IN THE COURT OF CRIMINAL APPEALS

OF TEXAS




NO. 2055-00

 

HERBERT HUBERT COOPER, Appellant


v.



THE STATE OF TEXAS




ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE NINTH COURT OF APPEALS

JEFFERSON COUNTY


KELLER, P.J., delivered the opinion of the Court in which WOMACK, KEASLER, HERVEY, and HOLCOMB, JJ., joined. 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.

O P I N I O N



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 a nexus between the assault and the theft. (2) The Court of Appeals cited cases from this Court for the proposition that evidence will be sufficient to show a nexus if it shows that the theft occurred immediately after the assault. (3) However, the Court of Appeals believed that we had clarified the issue in Nelson, in which we indicated that, in the capital murder context, it is possible to have murder followed by theft without having murder in the course of robbery. (4) From Nelson, the Court of Appeals concluded 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 appellant 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." (5)

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 nexus requirement for capital murder involving murder in the course of a robbery is the same as the nexus requirement in a robbery between the assault and the theft. (7) Our holdings in McGee and Ibanez thus indicated that in a robbery case the nexus is sufficiently proven if the State proves that the theft occurred immediately after the assault. In Nelson, we appeared to qualify that holding by indicating the possibility that such circumstances would not always be sufficient to show a robbery:

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 difficulties and drug use. (9) Although the defendant offered evidence of a different motive for murder - rage against the deceased for looking at appellant in a homosexually lustful way - we held that a rational jury could reject that evidence. (10)

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 inference 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 support 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.



KELLER, Presiding Judge

DATE DELIVERED: January 30, 2002

PUBLISH

1. Texas Penal Code 29.02(a)(1).

2. Cooper v. State, 29 S.W.3d 901 (Tex. App.-Beaumont 2000).

3. Id. at 904 (citing McGee v. State, 774 S.W.2d 229, 234 (Tex. Crim. App. 1989), cert. denied, 494 U.S. 1060 (1990)).

4. Id. (citing and quoting Nelson v. State, 848 S.W.2d 126(Tex. Crim. App. 1992)(plurality opinion)).

5. Id.

6. McGee v. State, 774 S.W.2d 229, 234 (Tex. Crim. App. 1989).

7. Ibanez v. State, 749 S.W.2d 804, 807 (Tex. Crim. App. 1986).

8. Nelson v. State, 848 S.W.2d 126, 131-132 (Tex. Crim. App. 1992) (citations omitted; ellipses inserted).

9. Id. at 132.

10. Id.

11. Ex parte Anderer, S.W.3d , (Tex. Crim. App. delivered Nov. 14, 2001).