Wilmer Lee Cobb v. State of Texas ( 2009 )

Opinion filed January 30, 2009
In The
Eleventh Court of Appeals
____________
No. 11-07-00171-CR
__________
WILMER LEE COBB, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 238th District Court
Midland County, Texas
Trial Court Cause No. CR31750
MEMORANDUM OPINION
The jury convicted Wilmer Lee Cobb of the offense of capital murder, and the trial court
assessed punishment by operation of law at confinement for life. We affirm.
Appellant presents four issues for review. In the first issue, he makes a limitations argument
with respect to the robbery portion of the capital murder indictment. He challenges the factual
sufficiency of the evidence in his second issue. In the third and fourth issues, appellant contends that
his rights to equal protection and due process were violated by the automatic imposition of a life
sentence without a punishment hearing.
Limitations
Appellant argues in his first issue that the trial court erred in rejecting his defense of
limitations as to the robbery portion of the indictment. Appellant was indicted on April 5, 2006, for
the offense of capital murder. The indictment alleged that, on September 4, 1987, appellant
intentionally caused the death of Verna Peace by shooting her with a firearm in the course of
committing and attempting to commit the offense of robbery. Although murder and capital murder
have no limitation period, the offense of robbery has a five-year limitation period. See TEX . CODE
CRIM . PROC. ANN . art. 12.01(1)(A), (4)(A) (Vernon Supp. 2008); Demouchette v. State, 731 S.W.2d
75, 80 (Tex. Crim. App. 1986). Appellant contends that limitations had run for the offense of
robbery and that, therefore, appellant could not be charged with capital murder in which robbery was
alleged as the offense during which the murder occurred.
We disagree with appellant’s contention. Appellant was indicted for and convicted of capital
murder, not robbery. The underlying robbery, for which limitations had run, and the murder merged
into one offense: capital murder, for which there is no limitation period. See Graves v. State, 795
S.W.2d 185 (Tex. Crim. App. 1990) (applying longer limitation period for felony aggregated theft
offense even though limitations had run on underlying misdemeanor theft offenses). Appellant’s
first issue is overruled.
Factual Sufficiency
In the second issue, appellant contends that the evidence is factually insufficient to prove that
he committed the offense. To determine if the evidence is factually sufficient, we must review all
of the evidence in a neutral light and determine whether the evidence supporting the verdict is so
weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the
great weight and preponderance of the conflicting evidence. Watson v. State, 204 S.W.3d 404, 414-
15 (Tex. Crim. App. 2006); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). The
record shows that the jury was charged on the law of parties. Evidence is sufficient to support a
conviction under the law of parties where the defendant is physically present at the commission of
the offense and encourages the commission of the offense either by words or other agreement.
Beier v. State, 687 S.W.2d 2, 3 (Tex. Crim. App. 1985).
2
The record shows that the victim was working at the Town & Country convenience store on
the night of September 4, 1987, when she was shot three times during a robbery in which $185.84
was stolen from the store’s cash register. The victim, who would have died quickly from the gunshot
wounds that she suffered, was found lying facedown in a pool of blood. This crime remained
unsolved until J.D. Luckie, an investigator for the district attorney’s office, picked the case up as a
cold case in 2005. Appellant was indicted in 2006.
Several witnesses came forward with information relating to appellant’s involvement. Jerry
Allen Pennington testified that he went to the store around 11:00 on the night of the offense and
purchased a few items. When he left, he saw appellant sitting in a car at the gas pump. Appellant
and at least two other men were “huddled up” in the car. Pennington said the car belonged to
“Regina Cobb.” When Pennington told appellant he had seen him at the store, appellant kept trying
to convince Pennington that it was about 9:00 p.m., but Pennington testified that he was not in town
at that time. Pennington was sure about the time.
Shortly after 11:00 that night, Ann Marie Frost and Lynette Rae Langham left Frost’s house
to make a quick trip to the store. As they pulled up to the store, they noticed a vehicle parked on the
dark side of the building but not in a parking spot. The vehicle’s lights were pointed out, which
seemed odd. Frost described the car as an older model, large blue car with either a white or a light
blue top; Langham described the car as a big blue car with a white roof. Frost saw a male figure in
the shadows between the car and the dumpster. Langham saw motion by the dumpster, and then she
saw the driver get back into the car. Langham said that the passenger had something in his hand and
that somebody could also have been in the back.
Frost and Langham pulled up and parked in front of the store. Langham walked up to the
door, opened it, and started inside when she saw the victim lying on the floor with blood around her
face and head. Langham said the victim’s “hand was twitching.” After Langham turned around,
came back, and said, “Don’t go inside,” Frost got out of the car and went to the door. Frost
observed the victim lying facedown on the floor; the victim was not moving. Langham used the
store’s pay phone to notify the authorities.
Regina Rogers Cobb, appellant’s estranged wife, testified that she owned a blue Grand Prix
with a white vinyl top and that, on the night of the offense, her boyfriend (Zane Hughes) left in her
car around 9:00 and did not return until 2:00 or 3:00 in the morning. According to Regina, Hughes
had no money or drugs when he left, but when he returned, Hughes had both money and drugs.
3
Julius Edward Jones and appellant were at the same club later that night when an investigator
from the sheriff’s department asked Jones if he would come try to identify “some black lady.” Jones
followed the investigator but could not identify the woman, who was in a body bag. When Jones
returned to the club, appellant immediately asked Jones what the sheriff’s department wanted. Jones
replied, “[T]hey wanted us to go out and see could we identify some black lady that got killed out
on the highway.” Although Jones did not say or know what highway or how the woman had died,
appellant responded, “That’s Sugar Junior’s sister.” The record shows that the victim’s brother,
Milburn Sanders Jr., was nicknamed Sugar Junior. Appellant left, went to Sanders’s house, told
Sanders that he saw police cars and ambulances at the store when he passed by earlier, and advised
Sanders that he might need to call the sheriff’s office “and see what’s going on.”
James H. Lister III testified that, on September 5 or 6, 1987, appellant brought a pistol to
Lister and pawned it. The pistol “was either a .38 or a .357” according to Lister. Other testimony
showed that the spent bullets recovered from the victim’s body and from the scene were .38 caliber
and were fired from a .38 caliber class of weapon, which includes a .357 Magnum.
The State also called three witnesses to whom appellant had made admissions. The first of
these witnesses was Raymente Hutchison, a good friend of appellant’s son. Hutchison testified that
appellant had boasted over and over again that “he had gotten away with a robbery and murder.” The
second such witness was Lonnie Flowers, who testified that appellant admitted taking part in this
offense after Flowers confronted him with information that Flowers had received from a third person
indicating that appellant and Zane Hughes had stolen this person’s pistol and killed the victim.
According to Flowers, appellant told him that, when they went out to the store, they did not go to the
store with the intent to kill anyone but that the “gun went off and we just had to go ahead and finish
and do what we had to do.”
Finally, the State called J.D. Luckie, who picked appellant up in Amarillo after the indictment
was handed down in this case. Appellant asked Luckie why he was bringing him back to Midland.
Luckie told him that it was for a capital murder. Appellant said, “You mean Verna Peace murder.”
During the trip, appellant continued to question the investigators about what they knew about the
case and tried to convince them that he could not be convicted because there were no fingerprints,
photos, or other evidence of that type. Luckie testified on rebuttal that appellant had confessed that
he was involved in the victim’s murder: “He said he sat up all night long trying to figure out what
4
offenses he had done that the Statute of Limitations hadn’t run on yet, and he said Verna Peace was
the only one he could think of.”
Appellant testified and denied having any involvement in this offense. Appellant testified
that he drove past the store before midnight and saw police cars. Appellant also testified that
Flowers lied, that Luckie lied, that Lister lied, that Pennington lied, that Jones lied, and that
Hutchison lied.
After reviewing all of the evidence in a neutral light, we cannot hold that the evidence
supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or that the
verdict is against the great weight and preponderance of the conflicting evidence. Appellant’s
second issue is overruled.
Constitutionality of Punishment
In the third issue, appellant asserts that the lack of a punishment hearing and the imposition
of an automatic life sentence pursuant to TEX . CODE CRIM . PROC. ANN . art. 37.071 (Vernon 2006)
violated his right to equal protection of the law. In the fourth issue, appellant contends that he was
denied due process of law when he was denied a hearing on punishment. Similar arguments have
been made and rejected by the courts of this State. Laird v. State, 933 S.W.2d 707, 714-15 (Tex.
App.—Houston [14th Dist.] 1996, pet. ref’d); Prater v. State, 903 S.W.2d 57, 60 (Tex.
App.—Fort Worth 1995, no pet.). We agree with the reasoning and the authorities cited in Laird and
Prater. Appellant’s third and fourth issues are overruled.
The judgment of the trial court is affirmed.
JIM R. WRIGHT
CHIEF JUSTICE
January 30, 2009
Do not publish. See TEX . R. APP . P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.
5