Donald Wayne Johnson, Petitioner-appellant, v. Gary L. Johnson, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-appellee, 192 F.3d 509 (5th Cir. 1999)

Donald Wayne Johnson appeals the dismissal of his 28 U.S.C. section 2254 petition. Johnson was convicted of capital murder under Texas Penal Code section 19.03(a) (2) for murder during the course of committing a robbery. He received a sentence of life imprisonment. As he did on direct appeal, Johnson argues in his habeas petition that there was insufficient evidence that he formed the intent to rob the victim before or during the murder.

Johnson was convicted of stabbing a 74-year-old schoolteacher. The state presented evidence that after the murder, Johnson obtained false identification and cashed the victim's paycheck, drove the victim's car, and was wearing the victim's watch at the time of arrest. Further, evidence suggested no motive other than robbery for the murder. There was no evidence that Johnson had a prior acquaintance with the victim. Johnson borrowed a weapon on the morning of the murder and theft. The murder scene indicatedno signs of a fight between the victim and his killer.

Johnson's case is distinguishable from Cruz v. State, on which he relies. In that case, the defendant and victim roomed together, the defendant claimed that they had an altercation leading to the murder, and the state linked only the victim's watch to the defendant. The appellate court found insufficient evidence in light of other plausible explanations for motive and the small value of the stolen property. Cruz v. State, 629 S.W.2d 852, 858-60 (Tex. App. 1982). In Johnson's case, the evidence suggests no other motive for the murder, and the amount of stolen property was much more substantial.

This court finds that there was sufficient evidence to support Johnson's conviction for capital murder.

AFFIRMED.