Barnes, Ivery Cedric v. The State of Texas--Appeal from 405TH District Court of Galveston County

Affirmed and Memorandum Opinion filed April 28, 2005

Affirmedand Memorandum Opinion filed April 28, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00220-CR

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IVERY CEDRIC BARNES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 405th District Court

Galveston County, Texas

Trial Court Cause No. 02CR1260

M E M O R A N D U M O P I N I O N

Appellant Ivery Cedric Barnes was convicted by a jury of capital murder and, because the State did not seek the death penalty, was sentenced to life in the Texas Department of Criminal Justice, Institutional Division. In four issues, he challenges the legal and factual sufficiency of the evidence supporting his conviction. We affirm.

I. Factual Background

The indictment charged that on or about March 21, 2002, appellant intentionally cause[d] the death of an individual, namely James Gaines, by shooting the said James Gaines with a handgun, and the defendant was then and there in the course of committing or attempting to commit the offense of robbery of James Gaines. At trial, the evidence showed that on March 20, 2001, James Gaines, who held three jobs, completed his shift at a Chevron gas station in La Marque. Before he left, he purchased some cigarettes and a six-pack of Smirnoff Ice. He told a coworker that the Smirnoff Ice was for his friend, Youngster, and he talked about wanting to have sex with Youngster that night. Gaines left work and picked up appellant some time after 11:00 p.m. and drove appellant to his home. At the time, appellant was armed with a .357 magnum handgun.

At Gaines s home, appellant apparently had one Smirnoff Ice. At around 11:20 p.m., Gaines went to his bedroom and telephoned a female friend, Yolanda Cole.[1] Around 12:10 or 12:15 a.m., after Gaines and Ms. Cole had been speaking for about an hour, the phone line suddenly went dead. The telephone was later found on the floor of Gaines s bedroom, disconnected from the wall. A savings bank in the shape of a parking meter was also found broken open on the bedroom floor, with most of its contents missing. Additionally, a canvas bag Gaines regularly used to carry his personal belongings was found on the floor with the contents dumped out.

At 12:23 a.m., Gaines was recorded withdrawing $200 from a drive-though ATM at the Galveston County Federal Credit Union. This amount is the maximum generally allowed. Surveillance video showed only Gaines in his Isuzu Rodeo, but appellant was in the back seat of the car. After Gaines got the money, they drove a short distance and stopped on a dark street. Both Gaines and appellant got out of the car. Appellant shot at Gaines three times, hitting him twice. One bullet entered the left side of Gaines s neck and exited just behind the right earlobe; the other bullet hit him in the left side of his back, and lodged under his right arm. Gaines died at the scene.

Appellant got in the Isuzu Rodeo and drove a short distance to an acquaintance s apartment, where he used the telephone to call someone to pick him up. Appellant also threw the handgun in some bushes, but later returned for it and sold it to another individual. The police found the Isuzu Rodeo at the apartment building on the day Gaines was killed; in it were five bottles of Smirnoff Ice and the receipt from the ATM for Gaines s $200 withdrawal. During the course of the investigation, appellant contacted the police and ultimately gave several statements. Appellant initially denied having any knowledge of Gaines s murder.[2] Later, however, he admitted that he shot Gaines. The police also located the .357 magnum handgun, and appellant identified it as the gun he used to shoot Gaines. Appellant was charged with capital murder.

At trial, appellant s defense relied in part on some of the things appellant said in his various statements. Appellant contended that he went to Gaines s house that night because Gaines agreed to prepare his income tax return and loan him $250. At Gaines s home, appellant fell asleep, but later awoke to find Gaines performing oral sex on him. Appellant then asked to go home, and they got back in the Isuzu Rodeo and drove to the ATM machine where Gaines withdrew the money while appellant gathered his income tax papers in the back seat. After they left the ATM machine and drove a few blocks, they got in an argument. They got out of the car, Gaines attacked appellant, and appellant shot Gaines in self defense. The jury rejected appellant s contention that he acted in self-defense and convicted him of capital murder as alleged in the indictment.

II. Analysis of Appellant s Legal and Factual Sufficiency Issues

In his first and second issues, appellant contends the evidence is legally and factually insufficient to support his conviction because it fails to prove that appellant intentionally caused Gaines s death. In his third and fourth issues, appellant contends the evidence is legally and factually insufficient to support his conviction because it fails to prove that appellant intentionally caused Gaines s death while in the course of committing or attempting to commit a robbery. We disagree and affirm appellant s conviction.[3]

Appellant discusses all four of his issues together, so we will do the same. He contends no evidence was introduced to counter his statements that (1) Gaines sexually assaulted him, and (2) Gaines agreed to prepare his income tax return and lend him $250. He also contends, in a conclusory fashion, that no evidence supports a finding that appellant robbed Gaines or that he intentionally caused Gaines s death while robbing him. Appellant points to several of his statements to support his claims. We apply the standards of review applicable to criminal cases to appellant s claims. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Johnson v. State, 23 S.W.3d 1, 7 11 (Tex. Crim. App. 2000).

As set out above, the evidence shows that when appellant came to Gaines s house, he was armed with a .357 magnum pistol. Gaines was talking on the phone when it suddenly went dead around 12:10 p.m., and the phone was disconnected from the wall and on the floor of his bedroom. Gaines then withdrew the maximum amount of money allowed from his credit union s drive-through ATM machine, while appellant was out of sight in the back seat with a gun. Shortly after that, Gaines was dead in the middle of a dark road. The evidence also showed that he was shot, from a distance of at least two feet, in the side of the neck and in the left side of his back with the .357 magnum handgun appellant brought with him.

Against the backdrop of this and other evidence, the jury heard several statements appellant made concerning the events surrounding Gaines s death. For example, in one statement, appellant stated that he went to Gaines s house because Gaines was supposed to prepare his income taxes, and appellant was already drunk when he arrived at Gaines s home and drank the Smirnoff Ice. Then, appellant fell asleep and awoke to Gaines performing, or trying to perform, oral sex on him. He got mad and started tossing shit in his house, and knocked over the savings bank. Then, after Gaines had withdrawn the $200 and left the ATM, he stopped the Jeep in the middle of the road like we was gonna fight and I shot him . . . I was so angry at the time. In a different statement, appellant explained that he shot Gaines cause he got me drunk and was performing oral sex on him. In yet another statement, appellant admitted he shot Gaines because I was angry and the fact he acted like it was nothing.

Thus, by his own statements, appellant repeatedly admitted he shot Gaines because he was angry with him. Appellant does not explain how the claimed lack of evidence disproving that Gaines sexually assaulted him constitutes reversible error. The jury rejected his claim of self-defense, and he does not challenge this non-finding on appeal.[4] Moreover, appellant s numerous accounts of Gaines s alleged behavior vary, and the jury was free to believe or disbelieve them.

The same is true regarding appellant s claim that Gaines agreed to prepare his tax returns and lend him $250 until his income tax refund came in. In appellant s statements, he variously explains that, in anger, he knocked over the savings bank in the bedroom and picked up the money from it, or that Gaines told him to take it, or that Gaines gave it to him, or that he did not know who knocked it over. In one statement, appellant stated that Gaines withdrew the $200 from the ATM because Gaines said he was gonna let me use it. In another statement, however, appellant described the incident but made no mention of any agreement to loan him money. Moreover, appellant was in the back seat of Gaines s car out of view of the surveillance cameras while Gaines withdrew the $200 from his ATM. Appellant, in one statement, claimed he could not be seen because he was getting his tax papers, which had scattered, but in the videotape, he claimed he was getting his jacket and stuff. It is undisputed, however, that he remained out of sight with the loaded .357 magnum handgun, and when the ATM transaction was completed, he and Gaines drove to a dark and unlit road where appellant shot and killed Gaines. The jury could have found appellant s various explanations not credible and concluded Gaines did not offer or agree to lend appellant the money.

From appellant s contradictory statements and the physical evidence, the jury could have rejected appellant s claims and instead concluded that appellant intentionally caused Gaines s death, and did so while in the course of committing or attempting to commit a robbery. We hold that the evidence is legally and factually sufficient to support the jury s findings.

III. Conclusion

We hold that the evidence is both legally and factually sufficient to support the jury s findings and overrule appellant s issues.

/s/ Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed April 28, 2005.

Panel consists of Chief Justice Hedges and Justices Fowler and Edelman.

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

[1] At trial, Ms. Cole testified that her conversation with Gaines was intimate, and she testified that Gaines was bisexual. Others testified Gaines was homosexual.

[2] Later, when asked why he did not tell the truth when he was first interviewed, appellant explained: Because I was scared of getting in trouble for it . . . I felt like they wouldn t understand what he did to me. I didn t feel they would understand my side of the story. I was pressured by my conscience to turn myself in . . . but I didn t because I didn t want to go to jail.

[3] The State argues that appellant has waived any alleged error by failing to produce a complete record, citing Texas Rule of Appellate procedure 34.6(c)(5). This rule requires that, in a criminal case, if the appellant complains that evidence is insufficient to support a finding of guilt, the record must include all the evidence admitted at the trial on the issue of guilt or innocence and punishment. Tex. R. App. P. 34.6(c)(5). The State points out that two exhibits admitted at trial, one videotape and one audiotape containing some of appellant s statements, were not included in the record. Our review of the record reveals that appellant requested all exhibits, but these items remained in the custody of the clerk s office. We have ordered the reporter to supplement the record with these exhibits. See Tex. R. App. P. 34.6(d) (appellate court may direct the court reporter to prepare, certify, and file a supplemental report s record containing omitted items). Therefore, we find the State s waiver contention without merit.

[4] In at least two statements, appellant stated that Gaines got out of the Isuzu Rodeo to fight, so appellant shot him. In another statement, appellant claimed that Gaines had gotten out of the Jeep and took a swing at appellant before appellant backed up and shot him. Appellant never contended that Gaines was armed, and in fact, in the video statement, conceded he had no weapons. Also, appellant s contention in another statement that he and Gaines were face to face when he shot Gaines was contradicted by the evidence Gaines was shot in the neck and back.