Larson Edwin Moore III v. State ( 2016 )

IN THE
TENTH COURT OF APPEALS
No. 10-15-00378-CR
LARSON EDWIN MOORE III,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 87th District Court
Freestone County, Texas
Trial Court No. 14-030-CR
MEMORANDUM OPINION
In two issues, appellant, Larson Edwin Moore III, challenges his capital-murder
conviction. See TEX. PENAL CODE ANN. § 19.03 (West Supp. 2016). Specifically, Moore
contends that the evidence is legally insufficient to support his conviction and that the
jury charge did not properly instruct the jury that the burglary in support of the capital-
murder conviction must be directed at someone other than the victim that was murdered.
We affirm.
I. LEGAL SUFFICIENCY OF THE EVIDENCE
In his first issue, Moore asserts that the evidence supporting his conviction is
insufficient because “the evidence shows that appellant’s purpose in entering the victim’s
house was to commit a felony against the victim (not against the victim’s brother as the
State argued).” In other words, Moore argues that the State improperly bootstrapped to
get a charge of capital murder.
A. Standard of Review
In Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), the Texas Court of
Criminal Appeals expressed our standard of review of a sufficiency issue as follows:
In determining whether the evidence is legally sufficient to support a
conviction, a reviewing court must consider all of the evidence in the light
most favorable to the verdict and determine whether, based on that
evidence and reasonable inferences therefrom, a rational fact finder could
have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979);
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). This “familiar
standard gives full play to the responsibility of the trier of fact fairly to
resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at
319. “Each fact need not point directly and independently to the guilt of
the appellant, as long as the cumulative force of all the incriminating
circumstances is sufficient to support the conviction.” Hooper, 214 S.W.3d
at 13.
Id.
Our review of "all of the evidence" includes evidence that was properly and
improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if
the record supports conflicting inferences, we must presume that the factfinder resolved
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the conflicts in favor of the prosecution and therefore defer to that determination. Jackson,
443 U.S. at 326, 99 S. Ct. at 2793. Furthermore, direct and circumstantial evidence are
treated equally: “Circumstantial evidence is as probative as direct evidence in
establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to
establish guilt.” Hooper, 214 S.W.3d at 13. Finally, it is well established that the factfinder
is entitled to judge the credibility of the witnesses and can choose to believe all, some, or
none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d 459, 461
(Tex. Crim. App. 1991).
The sufficiency of the evidence is measured by reference to the elements of the
offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953
S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically-correct jury charge does four
things: (1) accurately sets out the law; (2) is authorized by the indictment; (3) does not
unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s
theories of liability; and (4) adequately describes the particular offense for which the
defendant was tried. Id.
B. Discussion
Here, the indictment charged Moore with the offense of capital murder under
section 19.03 of the Penal Code and provided the following allegations:
Defendant, on or about the 9th day of February A.D., 2014, and before the
presentment of this indictment, in the County and State aforesaid,
Moore v. State Page 3
did then and there intentionally cause the death of an individual,
namely Marjorie Pevehouse, by stabbing Marjorie Pevehouse with a sharp
edged instrument and striking her in the head with an object unknown to
the Grand Jury, and the defendant was then and there in the course of
committing or attempting to commit the offense of burglary of a habitation
of Marjorie Pevehouse, who was the owner of said habitation . . . .
Section 19.03 of the Penal Code provides the following:
(a) A person commits an offense if the person commits murder as defined
under Section 19.02(b)(1) and:
....
(2) the person intentionally commits the murder in the course of
committing or attempting to commit kidnapping, burglary, robbery,
aggravated sexual assault, arson, obstruction or retaliation, or
terroristic threat . . . .[1]
TEX. PENAL CODE ANN. § 19.03. Furthermore, section 30.02(a), entitled “Burglary,” states
that:
(a) A person commits an offense if, without the effective consent of the
owner, the person:
(1) Enters a habitation, or a building (or any portion of a building)
not then open to the public, with intent to commit a felony, theft,
or an assault; or
(2) Remains concealed, with intent to commit a felony, theft, or an
assault, in a building or habitation; or
(3) Enters a building or habitation and commits or attempts to
commit a felony, theft, or an assault.
1“‘[I]n the course of committing’ is defined as conduct occurring during an attempt to commit,
during the commission of, or in immediate flight from, the forbidden behavior.” See Griffin v. State, 491
S.W.3d 771, 774-75 (Tex. Crim. App. 2016) (citing Rivera v. State, 808 S.W.2d 80, 93 (Tex. Crim. App. 1991)).
Moore v. State Page 4
Id. § 30.02(a) (West 2011).
At trial, Brent Watson, a forensic scientist in the DNA section of the Texas
Department of Public Safety Crime Lab, testified that the front-door jamb of the victim’s
house was damaged and showed “that there could potentially be a forced entry into the
residence.” Jake Burson, a Ranger with the Texas Rangers Division, agreed with
Watson’s conclusion and stated that: “The door frame was split. In addition to the door
frame being spilt, there was also a shoe print on the door which is a fairly good indication
the door was forced open.” Further, upon entering the residence, investigators observed
Pevehouse’s body covered in blood, as well as a bloody $100 bill in her left hand. And a
few feet away from Pevehouse’s body was a knife.
Dr. Emily Ogden, a medical examiner at the Dallas County Medical Examiner’s
Office, testified that Pevehouse had multiple stab and blunt-trauma wounds around her
head and chest—none of which would have, by themselves, immediately caused death.
Dr. Ogden noted that, based on the severity, extent, and detail of the injuries, Pevehouse
struggled with her killer prior to her death. The ultimate cause of Pevehouse’s death was
“[s]harp and blunt force injuries.”
Moore’s uncle, Charles Wright, testified that, on the night of the incident, Moore
came to his house. Wright noticed that Moore had blood on his face and clothes. Wright
asked Moore if he had been hurt, but Moore simply moved his finger at him. Moore
asked Wright for a gun; however, Wright did not have a gun at the residence. Later,
Moore v. State Page 5
Moore picked up a pen on the table and wrote on a sheet of paper. In very bad
handwriting, Moore wrote, “I killed her.” Wright also opined that Moore was acting very
strangely that night. In particular, Moore hit Wright in the mouth, drawing blood and
knocking out two teeth; Moore demanded that Wright leave his own house; Moore
kicked in walls at Wright’s house; and Moore spoke in a strange and hard-to-understand
manner.
Sergeant William Flores of the Texas Rangers testified that he had expertise in
blood analysis. Sergeant Flores analyzed the clothing that Moore wore on the night of
the incident and determined that there was blood on Moore’s jeans, long-sleeved shirt,
shoes, and short-sleeved t-shirt. Sergeant Flores characterized the blood as “saturation”
and “spattering” stains and noted that subsequent DNA testing revealed that the blood
on Moore’s clothing was Pevehouse’s and that the DNA of Pevehouse and Moore was
mixed together.2 Furthermore, when asked about the conclusions drawn from his
investigation of the incident, Sergeant Flores opined:
My written conclusion on the examination is that Marjorie Pevehouse died
as a result of multiple sharp force injuries and blunt force traumas reported
in the SWIFS autopsy report analysis of the digital images indicates that
active and dynamic blood shedding event occurred at the scene. That’s my
evaluation.
2 Sergeant Flores defined a “saturation” stain as “an accumulation of liquid, blood and absorbent
material.” He later noted that a “spatter” stain is:
a stain that’s been produced from blood that’s been moved through the air due to an
impact. So if there was liquid here and it was impacted the liquid that flew away from that
impact area would be spatter in motion and then when it hit another surface it would
create a spatter stain.
Moore v. State Page 6
A DNA analysis of blood recovered from clothing worn by Larson
Moore indicated a single source DNA profile of Marjorie Pevehouse was
present as follows on this clothing: in 6 of the 11 stains on the jeans, 3 of the
8 stains on the shirt, the long sleeve shirt—2 of 3 stains on the shoes and—
and 1 of the 5 stains identified on the black t-shirt.
....
It is my opinion that Larson Moore was present in the crime scene at
the time that Marjorie Pevehouse received blood letting injuries and while
Marjorie Pevehouse’s blood was in dynamic motion within that crime
scene.
Despite the aforementioned evidence, Moore contends that section 19.03(a)(2) of
the Penal Code does not apply when a defendant enters a home for the sole purpose of
murdering the victim. See TEX. PENAL CODE ANN. § 19.03(a)(2). Essentially, Moore argues
that the State improperly used the intentional murder of Pevehouse as a circumstance
transforming Moore’s purported illegal entry of the habitation into a burglary, and then
used the same intentional murder coupled with the burglary to establish the offense of
capital murder.
In response to Moore’s contention, the State directs us to the Court of Criminal
Appeals’s decision in Homan v. State. See generally 19 S.W.3d 847 (Tex. Crim. App. 2000).
In Homan, appellant was indicted for the capital murder of Stephanie Homan, though the
State opted not to seek the death penalty. Id. at 847. Appellant pleaded not guilty to the
indictment, and the jury was instructed on both capital murder and the lesser-included
offense of murder. Id. Ultimately, the jury found appellant guilty of capital murder, and
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the trial court sentenced appellant to life imprisonment. Id. On appeal, the Tyler Court
of Appeals determined that the evidence was insufficient to prove the charge of capital
murder, but upheld appellant’s conviction on the lesser-included offense of murder. Id.
at 847-48. “The Tyler Court of Appeals concluded that the murder of the victim could
not be used to make the entry into her home a burglary and, at the same time, use the
burglary as the aggravating offense to make the murder into a capital murder.” Id. at 848.
In reversing the Tyler Court of Appeals, the Court of Criminal Appeals noted the
following:
We note the merger doctrine, however, does not apply to the instant capital
murder. See Barnard v. State, 730 S.W.2d 703, 709 (Tex. Crim. App. 1987).
Rather, it would be more accurate to describe appellant’s claim in this cause
as an argument that the State improperly bootstrapped to get a charge of
capital murder. The court of appeals essentially decided that the State
improperly used the intentional murder of Stephanie Homan as the
circumstance transforming appellant’s illegal entry of the habitation into a
burglary, and then used the same intentional murder coupled with the
burglary to establish the offense of capital murder. This Court rejected the
same bootstrapping argument in Fearance v. State, 771 S.W.2d 486, 492-93
(Tex. Crim. App. 1988), cert. denied, 492 U.S. 927, 109 S. Ct. 3266, 106 L. Ed.
2d 611 (1989).
This Court concluded in Fearance that appellant engaged in
“felonious criminal conduct, specifically, at the time [the victim] was
murdered. This conduct was a property offense. Therefore, there was a
showing of felonious criminal conduct other than the assault which caused
the death of [the victim].” Fearance, 771 S.W.2d at 493. This Court has
upheld capital murder convictions, concluding that the evidence
sufficiently established the underlying felony of burglary by murder of the
victim following the unlawful entry into the habitation. Fearance v. State,
and Matamoros v. State, 901 S.W.2d 470, 474 (Tex. Crim. App. 1995) (where
evidence showed appellant entered the victim’s habitation without
permission and subsequently murdered the victim, this Court concluded
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the intent necessary to establish the felony of burglary was shown by the
ultimate murder of the victim.) This Court has rejected other claims
regarding bootstrapping in Barnard v. State, 730 S.W.2d at 708-09 and in
Barber v. State, 737 S.W.2d 824, 835 (Tex. Crim. App. 1987).
Id. at 849.
As noted earlier, the record shows that the front-door jamb to Pevehouse’s
residence was damaged and that there was a footprint on the front door. The State’s
witnesses characterized these facts as evidence of forced entry, and the jury could have
reasonably concluded that Moore entered Pevehouse’s residence without permission.
And similar to Fearance, Homan, and Matamoros, the evidence in this case reveals that
Moore engaged in felonious criminal conduct at the time that Pevehouse was murdered.
See id. at 849; see also Matamoros, 901 S.W.2d at 474; Fearance, 771 S.W.2d at 493. This
conduct was a property offense. Thus, there was a showing of felonious criminal conduct
other than the assault that caused the death of Pevehouse. Accordingly, in light of
Fearance, Homan, and Matamoros, we reject Moore’s bootstrapping argument. See Homan,
19 S.W.3d at 849; see also Matamoros, 901 S.W.2d at 474 (“In a capital murder prosecution,
the requirement that a felony be committed is satisfied by the actual murder of the
victim. . . . That requirement was met in this case. As to the absence of consent, the
evidence is sufficient to establish that Goebel was sleeping in his bed when appellant
entered the house without the victim’s knowledge or consent and that appellant
surprised and killed him.”); Fearance, 771 S.W.2d at 493. Moreover, viewing the evidence
in the light most favorable to the jury’s verdict, we conclude that there is sufficient
Moore v. State Page 9
evidence to support Moore’s conviction for capital murder. See TEX. PENAL CODE ANN. §
19.03(a)(2); see also Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Lucio, 351 S.W.3d at 894;
Hooper, 214 S.W.3d at 13. We therefore overrule Moore’s first issue.
II. THE JURY CHARGE
In his second issue, Moore complains about the jury charge. In reviewing a jury-
charge issue, an appellate court’s first duty is to determine whether error exists in the
jury charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996). If error is found,
the appellate court must analyze that error for harm. Middleton v. State, 125 S.W.3d 450,
453-54 (Tex. Crim. App. 2003). If an error was properly preserved by objection, reversal
will be necessary if the error is not harmless. Almanza v. State, 686 S.W.2d 157, 171 (Tex.
Crim. App. 1985). Conversely, if error was not preserved at trial by a proper objection, a
reversal will be granted only if the error presents egregious harm, meaning appellant did
not receive a fair and impartial trial. Id. To obtain a reversal for jury-charge error,
appellant must have suffered actual harm and not just merely theoretical harm. Sanchez
v. State, 376 S.W.3d 767, 775 (Tex. Crim. App. 2012); Arline v. State, 721 S.W.2d 348, 352
(Tex. Crim. App. 1986).
The record reflects that Moore did not object to the jury charge; thus, the record
must show egregious harm. See Almanza, 686 S.W.2d at 171. In examining the record for
egregious harm, we consider the entire jury charge, the state of the evidence, the final
arguments of the parties, and any other relevant information revealed by the record of
Moore v. State Page 10
the trial as a whole. Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006). Jury-
charge error is egregiously harmful if it affects the very basis of the case, deprives the
defendant of a valuable right, or vitally affects a defensive theory. Stuhler v. State, 218
S.W.3d 706, 719 (Tex. Crim. App. 2007); Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim.
App. 2006).
Moore’s second issue is premised on his first issue. Specifically, Moore asserts
that:
If this Court concludes that there is somehow evidence to support the
State’s theory that appellant intended to murder or harm the victim’s
brother when he entered the victim’s home, it should nevertheless reverse
for a new trial because the jury charge does not adequately instruct the jury
that the burglary, to support capital murder, must be directed at someone
other than the victim that was murdered. The charge suggests that
appellant is guilty of capital murder even if he entered the home with the
intent to kill the victim.
As mentioned earlier, the Court of Criminal Appeals has upheld capital-murder
convictions, concluding that the evidence sufficiently established the underlying felony
of burglary by murder of the victim following the unlawful entry into the habitation.
Homan, 19 S.W.3d at 849 (citing Matamoros, 901 S.W.2d at 474; Fearance, 771 S.W.2d at 493).
Moreover, the charge in this case included instructions on both capital murder and the
lesser-included offense of murder. The jury unanimously concluded that Moore was
guilty of capital murder tied to the burglary of Pevehouse’s habitation.
After reviewing the charge and the Homan, Fearance, and Matamoros decisions, we
cannot say that the charge instruction for capital murder is erroneous. See id.; see also
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Matamoros, 901 S.W.2d at 474; Fearance, 771 S.W.2d at 493. Accordingly, we overrule
Moore’s second issue.
III. CONCLUSION
Having overruled both of Moore’s issues on appeal, we affirm the judgment of the
trial court.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed November 23, 2016
Do not publish
[CRPM]
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