James Earl Cutsinger v. State ( 2007 )

Affirmed and Memorandum Opinion filed December 20, 2007

Affirmed and Memorandum Opinion filed December 20, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00893-CR

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JAMES EARL CUTSINGER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 10th District Court

Galveston County, Texas

Trial Court Cause No. 04CR3051

M E M O R A N D U M   O P I N I O N

A jury convicted appellant James Earl Cutsinger of intentionally causing the death of Daniel Kohlhofer in the course of committing a robbery and sentenced him to life in prison.  In a single issue, appellant claims the evidence is legally insufficient to support his conviction of capital murder.  We affirm.

BACKGROUND

Appellant chose to testify in his own defense.  According to appellant, early in the morning on November 28, 2004, Daniel Kohlhofer pulled his truck over and asked appellant, who was walking down the road, if he needed a ride.  Appellant accepted, saying he needed to get to the nearest store.  After noticing they had passed two stores without stopping, appellant became concerned.  Appellant asked Kohlhofer to stop the truck, and Kohlhofer touched  appellant on the inside of his leg and said, AYou=ll be all right.@  Fearing Kohlhofer intended to sexually assault him, appellant reached for the gun tucked under his shirt, intending to force Kohlhofer to pull over.  Kohlhofer reacted by hitting appellant twice with a coffee mug.  Appellant pulled his gun out and pointed it at Kohlhofer, at which point a struggle for the gun ensued. The gun went off three times during the struggle, hitting Kohlhofer in the chest and leg.  At this point the truck had stopped, and appellant opened the door to get out.  As he was getting out, the gun went off a fourth time, hitting Kohlhofer in the head and killing him.

Appellant dragged Kohlhofer out of the truck and left him on the side of the road. Appellant walked back to the truck and then thought he should attempt to hide Kohlhofer=s identity.  He returned to the body and retrieved the wallet, which contained $1000 in cash, from Kohlhofer=s pants.  Appellant drove Kohlhofer=s truck to a deserted location and set it on fire.  Appellant did not remove from the truck property belonging to Kohlhofer or the $443 in cash hidden in the center console before burning the vehicle.  The discovery of Kohlhofer=s body later that morning led to an investigation, and appellant was arrested one week later.

SUFFICIENCY OF THE EVIDENCE

Appellant contends the evidence is legally insufficient to support the conviction for capital murder.  In evaluating a legal sufficiency claim attacking a jury=s finding of guilt, we view the evidence in the light most favorable to the verdict.  Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).  We do not ask whether we believe the evidence at trial established guilt beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 318B19 (1979).  Rather, we determine only whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Cardenas v. State, 30 S.W.3d 384, 389 (Tex. Crim. App. 2000).  In our review, we accord great deference A>to the responsibility of the trier of fact [to fairly] resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.=@  Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996) (quoting Jackson, 443 U.S. at 319).  We presume that any conflicting inferences from the evidence were resolved by the jury in favor of the prosecution, and we defer to that resolution.  Id.

For a murder to qualify as capital murder under section 19.03(a)(2) of the Texas Penal Code, the killer=s intent to rob must be formed before or at the time of the murder.  Tex. Penal Code Ann. _ 19.03(a)(2) (Vernon 2007).  Proof that the robbery was committed as an afterthought and was unrelated to the murder is not sufficient.  Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001).  The State must prove a nexus between the murder and the theft_that the murder occurred in order to facilitate the taking of the property.  Ibanez v. State, 749 S.W.2d 804, 807 (1986) (en banc).  An intent to steal may be inferred from the action or conduct of the defendant, such as evidence showing the theft occurred immediately after the victim was murdered.  McGee v. State, 774 S.W.2d 229, 234 (Tex. Crim. App. 1989).  Even if there is no other evidence of a nexus, that inference alone will support a conviction.  Cooper v. State, 67 S.W.3d  221, 224 (Tex. Crim. App. 2002).  The inference will not be negated by evidence of an alternative motive that the jury could rationally disregard. Id.

Appellant argues the evidence is insufficient to sustain a conviction for capital murder because it does not show the murder was committed in the course of a robbery.  Appellant claims that his alternative motive of anger and disdain, in response to what he perceived as a homosexual advance, is not a motive a rational jury could disregard.  The evidence put forth by the defense consisted of: (1) testimony that Kohlhofer had been involved in a homosexual relationship fifteen years earlier, (2) testimony by both appellant and his stepmother that appellant had been sexually assaulted by a man when he was fifteen years old, and (3) appellant=s testimony that he did not kill Kohlhofer with the intent of robbing him.  Appellant argues that setting fire to the truck without first searching the truck to discover whether it held other money or valuable property lends credence to his assertion that he did not kill with the intent to rob.

The State=s evidence included testimony by appellant=s former employer that appellant earned seven dollars an hour working for him.  The employer testified that prior to the offense, he did not see appellant with any money, nor was he aware of appellant holding other employment at that time.  Kohlhofer=s brother and a long-time employee of Kohlhofer testified they had no knowledge that Kohlhofer was a homosexual.  The State also attempted to impeach the witness who testified about Kohlhofer=s homosexuality with evidence that a dispute with Kohlhofer and his girlfriend gave the witness a motive to seek revenge.  

We conclude the evidence is legally sufficient to allow the jury to reject appellant=s theory that he killed Kohlhofer in self-defense to an attempted sexual assault and to conclude that appellant killed Kohlhofer to rob him.  The State presented evidence showing (1) that Kohlhofer was not homosexual and (2) a negative motive in order to discredit the witness who testified to the contrary.  See Prince v. State, 192 S.W.3d 49, 60 (Tex. App._Houston [14th Dist.] 2006, pet. ref=d) (evidence legally sufficient to support capital murder conviction because rational jury could believe testimony elicited by State regarding robbery and disbelieve appellant=s testimony that he did not intend to rob).  The jury could have found that appellant had little or no money in the days prior to the offense, and appellant admitted he took Kohlhofer=s wallet immediately after killing him.  The general rule is that a theft immediately following an assault supports an inference that the assault was intended to facilitate the theft, and evidence showing an alternative motive that the jury could rationally disregard will not negate this inference.  Cooper, 67 S.W.3d at 224.  Given the circumstances here, including the proximity in time between appellant shooting Kohlhofer and taking his wallet and truck, a rational jury could infer appellant committed the murder to facilitate robbing Kohlhofer.  See Roberts v. State, 220 S.W.3d 521, 526 (Tex. Crim. App. 2007) (jury could infer appellant took property shortly after murder and murder was committed during course of a robbery where victim=s missing property was found in appellant=s possession on day following murder); Cooper, 67 S.W.3d at 223B24 (robbery nexus supported by evidence showing defendant=s financial difficulties gave him motive to steal); McGee, 774 S.W.2d at 235 (circumstantial evidence showing robbery occurred immediately after murder was legally sufficient to support capital murder conviction); Fierro v. State, 706 S.W.2d 310, 313 (Tex. Crim. App. 1986) (evidence appellant shot taxi driver, drove to a park, and dragged body some distance before removing watch and wallet was sufficient for rational jury to find murder occurred in course of robbery).

Accordingly, we overrule appellant=s single issue and affirm the trial court=s judgment.

/s/      Leslie B. Yates

Justice

Judgment rendered and Memorandum Opinion filed December 20, 2007.

Panel consists of Justices Yates, Fowler, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).