NO. 2055-00








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 (1993). Cooper v. State, No. 2055-00, slip op. (Tex. Crim. App. January___, 2001) (hereinafter cited as "Majority Op."). The Court of Appeals reads Nelson to stand for the proposition that although the immediacy of a theft is a factor to be considered when proving robbery, there must be additional evidence from which it can be inferred that a defendant formed the intent to commit a robbery either prior to or during the assault. Cooper v. State, 29 S.W.3d 901, 904 (Tex. App.- Beaumont 2000). The majority states that under the "general rule" pronounced in McGee, proof of a theft occurring immediately after an assault is enough evidence from which intent can be inferred. Majority Op. at 4. However, a closer look at the cases upon which the majority relies, in conjunction with the other cases which it fails to examine, makes it clear that not only was this never the "general rule," but it would be unwise to begin to treat it as such. Therefore, I respectfully dissent.

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 (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 3. 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 appellant 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 between 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 proves 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 appellant 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 (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-called "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, then 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 gotten 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, appellant "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.

DATE DELIVERED: January 30, 2002


1. In addition to citing McGee, appellant cited Huffman v. State, 746 S.W.2d 212 (Tex. Crim. App. 1988).

2. See, e.g,. Zimmerman v. State, 860 S.W.2d 89, 93 (Tex. Crim. App. 1993), vacated on other grounds, 513 U.S. 1021 (1994) (relying on Nelson this Court stated, "[E]ven if the facts showed that appellant robbed the decedent's body after he had already died, that would not be dispositive." This Court went on to explain that the State must introduce evidence from which the jury could rationally conclude that appellant formed the intent to obtain or maintain control of the victim's property either before or during the commission of the murder.); Robertson v. State, 871 S.W.2d 701, 705 (Tex. Crim. App. 1993), cert. denied, 513 U.S. 853 (1994). ("If the State introduces evidence from which the jury could rationally conclude that appellant formed the intent to obtain or maintain control of the victim's property either before or during the commission of the murder, then the State 'has proven that a murder occurred in the course of robbery, although the element of appropriation occurred after the murder'") (citing and quoting Zimmerman, 860 S.W.2d at 93) (citations omitted); Alvarado v. State, 912 S.W.2d 199, 207 (Tex. Crim. App. 1995) (proof of a robbery committed as an afterthought and unrelated to a murder isl not sufficient evidence of a capital murder); Conner v. State, No. 73,591, slip.op. at 5, 2001 Lexis 61, at *6 (Tex. Crim. App. September 12, 2001) (same).