Robert Lee Elliott, A/K/A Robert Lee Elliott, III v. State ( 1998 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-97-00454-CR

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Robert Lee Elliott, a/k/a Robert Lee Elliott, III, Appellant

v.

The State of Texas, Appellee

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FROM THE DISTRICT COURT OF BEXAR COUNTY, 226TH JUDICIAL DISTRICT NO. 96-CR-0987, HONORABLE SID L. HARLE, JUDGE PRESIDING

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A jury found appellant Robert Lee Elliott guilty of capital murder. Tex. Penal Code Ann. § 19.03(a)(2), (7) (West 1994). After hearing evidence at the punishment stage, the jury found that there were sufficient mitigating circumstances to warrant a sentence of life imprisonment. Tex. Code Crim. Proc. Ann. art. 37.071, § 2(e) (West Supp. 1998). The district court sentenced appellant accordingly. Id. art. 37.071, § 2(g). We will affirm the district court's judgment.

Appellant first contends the evidence is factually insufficient to sustain the conviction. When conducting a factual sufficiency review, the evidence is not viewed in the light most favorable to the verdict. Instead, all the evidence is considered equally, including the testimony of defense witnesses and the existence of alternative hypotheses. Orona v. State, 836 S.W.2d 319, 321 (Tex. App.--Austin 1992, no pet.). A verdict will be set aside for factual insufficiency only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State 922 S.W.2d 126, 129 (Tex. Crim. App. 1996); Stone v. State, 823 S.W.2d 375, 381 (Tex. App.--Austin 1992, pet. ref'd as untimely filed).

The bodies of Lee Carroll and Jeffery Pylant were found in the Carroll family home in Live Oak on the afternoon of January 10, 1996. Both young men had been shot in the head by .38 caliber hydroshock bullets. Lee Carroll's Ford Probe automobile was missing.

Joseph Britt, appellant's friend and classmate at Southwest Texas State University in San Marcos, testified that he drove appellant to the Carroll house on the morning of January 10, 1996. There, appellant got out and instructed Britt to meet him in a few minutes at a nearby grocery store. About twenty minutes later, appellant drove into the store's parking lot in a Ford Probe. Britt and appellant then returned to San Marcos.

Later that day, police found Carroll's Ford Probe parked in a university parking lot in San Marcos. Inside the car, police found a gun case containing three pistols: a .38 caliber semi-automatic, a 9 mm semi-automatic, and a .357 revolver. Appellant's fingerprints were found on the car and on the .38 caliber pistol. Ballistics tests showed that the fatal shots were fired from this pistol. The gun case and the other two pistols were identified as belonging to Lee Carroll's father. Hydroshock ammunition of the type used in the murders was found in appellant's apartment, as were several gold chains taken from the Carroll house. Blood matching Pylant's blood type was found on appellant's shoe.

When first questioned by the police, appellant gave a statement denying any knowledge of or involvement in the murders. When the investigating officer told appellant that he had been seen driving Carroll's automobile and that the officer did not believe appellant's story, appellant responded, "I shot them both." Appellant then gave a second written statement. In this statement, appellant said that he went to Carroll's house to collect money he was owed. When Carroll told appellant he did not have the money and did not know when he would, appellant became angry and shot him. He then shot Pylant, who was in the same room. After taking the gold chains and the two pistols, appellant left in Carroll's car.

In his own testimony, appellant acknowledged going to the Carroll house on the morning of the murders, where he met Carroll, Pylant, and a third person he knew only as Little Jay. According to appellant, Carroll owed Little Jay money. When Carroll said he could not pay, Little Jay shot Carroll, and then Pylant, with the .38 caliber pistol appellant had previously sold to him. After shooting Carroll and Pylant, Little Jay ordered appellant to take the gold chains from Carroll's room and to drive Carroll's automobile to San Marcos. Appellant said that he complied with these orders because he was in fear for his life. He testified that he did not mention Little Jay in his statements to the police because he was afraid of what Little Jay might do to his family.

Appellant urges that the evidence is factually insufficient because his exculpatory testimony was not contradicted by any physical evidence. In particular, appellant points out that there was no evidence of blood spatters on his clothing or of gunpowder residue on his hands. This argument ignores all of the evidence the State did introduce, including appellant's possession of the murder weapon and his written confession. If ever a case merited the phrase "overwhelming evidence of guilt," it is this one.

Appellate courts exercise their fact jurisdiction only to prevent a manifestly unjust result. We must maintain appropriate deference to the jury's verdict by finding error only when the verdict is so against the great weight of the evidence as to be clearly wrong and unjust. Clewis, 922 S.W.2d at 135; Reina v. State, 940 S.W.2d 770, 773 (Tex. App.--Austin 1997, pet. ref'd). Considering all the evidence before us, we have no difficulty concluding that the jury's verdict is not clearly wrong or unjust. Point of error one is overruled.

In his remaining point of error, appellant contends the district court erred by admitting evidence of an extraneous offense. See Tex. R. Evid. 404(b). The testimony in question was that of Van Fonda Nixon. Nixon testified that appellant told her in the summer of 1995 that he carried a weapon with him "while he cruised over on Southwest Military."

Appellant did not object to Nixon's testimony on the ground he now advances and therefore failed to preserve error. See Tex. R. App. P. 33.1(a). Moreover, he did not object at all to similar testimony from other witnesses. Joseph Murphy testified that he once saw appellant carrying the pistol in his belt under his shirt. Joseph Britt testified that he twice saw appellant carrying the pistol in the small of his back. San Marcos police officer Ron Trampus Gooding testified that in November 1995 he investigated a reported disturbance involving a weapon at a San Marcos apartment complex. Appellant was present at the scene of the disturbance and had a loaded .38 caliber semi-automatic magazine in his coat pocket. Appellant first told Gooding that the pistol to which this magazine belonged was in San Antonio, but later took the officer to the place where he had hidden it. In light of this testimony, and given the volume of evidence of appellant's guilt, any error in the admission of Nixon's testimony was clearly harmless. See Tex. R. App. P. 44.2(b). Point of error two is overruled.

The judgment of conviction is affirmed.

John Powers, Justice

Before Justices Powers, Kidd and B. A. Smith

Affirmed

Filed: September 11, 1998

Do Not Publish

fficer did not believe appellant's story, appellant responded, "I shot them both." Appellant then gave a second written statement. In this statement, appellant said that he went to Carroll's house to collect money he was owed. When Carroll told appellant he did not have the money and did not know when he would, appellant became angry and shot him. He then shot Pylant, who was in the same room. After taking the gold chains and the