Robert Samuel Veal v. the State of Texas ( 2021 )

AFFIRMED and Opinion Filed December 31, 2021
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00223-CR
ROBERT SAMUEL VEAL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 199th Judicial District Court
Collin County, Texas
Trial Court Cause No. 199-80509-2019
MEMORANDUM OPINION
Before Justices Schenck, Smith, and Garcia
Opinion by Justice Schenck
Appellant Robert Samuel Veal appeals his capital murder conviction
following a trial before a jury. In two issues, appellant urges the evidence is
insufficient to support his conviction and the trial court erred in failing to suppress
the seizure and search of his cell phone. We affirm the trial court’s judgment.
Because all issues are settled in law, we issue this memorandum opinion. TEX. R.
APP. P. 47.4.
BACKGROUND
Kelli Underwood was brutally murdered in her home on or about September
17, 2017. Her daughter discovered her body on September 20, 2017, when she went
to check on her. The State’s theory of the case was that Underwood was killed in a
murder-for-hire plot that involved her employer and paramour, Ronnie Welborn, and
his girlfriend, Kadie Robinson, engaging appellant to carry out the plot. The jury
was charged and instructed on the law of capital murder and party liability and found
appellant guilty. This appeal followed.
DISCUSSION
I. Sufficiency of the Evidence
In his first issue, appellant challenges the legal sufficiency of the evidence
supporting his conviction.
A. Standard of Review
We review the sufficiency of the evidence under the standard set out in
Jackson v. Virginia, 443 U.S. 307 (1979), and Matlock v. State, 392 S.W.3d 662,
667 (Tex. Crim. App. 2013). We examine all the evidence in the light most favorable
to the verdict and determine whether any rational trier of fact could have found the
essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at
319; Matlock, 392 S.W.3d at 667. We defer to the trier of fact’s determinations of
credibility and may not substitute our own judgment for that of the fact
finder. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality
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op.); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). Juries are permitted
to draw reasonable inferences from the evidence, but they are not permitted to draw
conclusions based on speculation. Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim.
App. 2007).
B. Capital Murder and Law of Parties
In this case the jury found appellant guilty of capital murder for
remuneration.1 A person commits the offense of capital murder if he commits the
murder for remuneration or the promise of remuneration or employs another to
commit the murder for remuneration or the promise of remuneration. TEX. PENAL
CODE ANN. § 19.03(a)(3), (b). A person is a criminally responsible party for an
offense if the offense is committed by his own conduct, by the conduct of another
for whom he is criminally responsible, or by both. Id. § 7.01. A person is criminally
responsible for an offense committed by the conduct of another if, acting with intent
to promote or assist the commission of the offense, he solicits, encourages, directs,
aids, or attempts to aid the other person to commit the offense. Id. § 7.02(a)(2).
To determine whether an individual is a party to an offense, we look to “events
before, during, and after the commission of the offense.” Wygal v. State, 555 S.W.2d
465, 468–69 (Tex. Crim. App. 1977). We also look to circumstantial evidence to
prove party status. Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994).
1
Remuneration is a reward given or received because of some act. Beets v. State, 767 S.W.2d 711,
734 (Tex. Crim. App. 1987).
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There must be sufficient evidence of an understanding and common design to
commit the offense. Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004).
Each fact need not point directly to the guilt of the defendant, as long as the
cumulative effect of the facts is sufficient to support the conviction under the law of
parties. Id.C. The Evidence
Underwood, Robinson, and Welborn worked for the same company. Welborn
was romantically involved with both women. Approximately nine months before
her death, Underwood learned that Robinson was pregnant with Welborn’s child.
Thereafter, Underwood began working from home because the office environment
was uncomfortable. Welborn often picked up paperwork from Underwood at her
home. Robinson took Welborn’s daughter from another relationship to an
elementary school located near Underwood’s house. From the school’s drop-off
area, Robinson could see Underwood’s house and determine when Welborn was at
her home.
Text messages between Welborn and Robinson revealed Robinson was
jealous over Underwood’s involvement with Welborn. On August 18, 2017,
Robinson gave Welborn an ultimatum. She gave him a month to get rid of
Underwood, or she was going to leave him.
The initial plan to get rid of Underwood was to plant drugs in her truck and
tip off the police so that she would be sent to prison. Welborn approached appellant
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in this regard. Appellant was known to both Welborn and Underwood as he had
worked for Welborn and, beginning in late August 2017 until her death, he was
working for Underwood repairing her pool and installing surveillance cameras on
her property.
On August 22, Welborn sent a text to Robinson stating that appellant took the
money, had the “stuff,” and had to place it in the truck. During that exchange,
Robinson stated, “But I want you to promise me that if this doesn’t work, you’re
going to try the other.”
It appears the plan quickly changed from planting drugs to killing Underwood.
On August 26, appellant sent a message to an individual named Delvin Powell
stating that he had a job for him. In early September, appellant sought out a “quiet”
firearm while Powell sought out a .22-caliber firearm. On September 7, appellant
told Powell that they “[h]ave to get it ASAP because Underwood had just broke[n]
the window of a friend’s truck with a two-month-old baby in it.” This reference was
consistent with an altercation that had recently occurred between Robinson and
Underwood. Powell responded, “Don’t forget to tell him nothing has been like said”
and “he’s got to come off at least two more.” Powell clarified that he meant pay
$2,000 or provide 2 ounces of drugs. Powell asked appellant if he still had speakers
hooked up at Underwood’s home. When appellant responded in the affirmative,
Powell explained that they could turn up the volume on the stereo, Powell could “go
to work” and “come out like nothing happened.”
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On September 10, appellant messaged Powell, “Get pumped.” Powell
responded, “All I ask is that you be 100, and we’ll get her I’m pretty sure. I got the
shells covered. Let me know where you wanna meet so she can drop me off.” That
same day, Powell messaged another person that he was going to be paid $2,500.
On September 11, Welborn took Underwood’s keys and put them in her
mailbox. On September 12, appellant told Robinson that she and Welborn were
“going to owe him big.” That same day, Welborn asked Robinson when “it” was
going to happen, and Robinson responded that it was supposed to happen that night
and that she was going to talk to appellant about it.
On September 15, Robinson texted Welborn that appellant “can easily get it
done if he is sleeping on her couch.” Welborn advised Robinson that appellant was
not going to do it, and Robinson responded that Welborn should tell appellant he
wants the money back and he “better do the other like you said.” That same day,
Underwood texted appellant that she wanted him to finish the backyard and that he
should bring the cameras. Also, that day, Powell messaged his girlfriend that he was
at the “mark’s” house putting an end to this and asked her to pray for him. And
Powell messaged appellant’s wife, “If it needs to be done, I will do it. Not him. I’m
doing this more for you and the kids first. Him second. Me third. Everything I do
is for the sole purpose of everyone[’s] unity and survival. We are working hun. I
swear. Trying to get it done ASAP.”
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From September 15 to 16, appellant searched for information regarding a
Uniden surveillance camera. Paperwork concerning this type of camera was found
on Underwood’s bed after her death.
On September 16, Welborn withdrew $4,000 from his personal bank account.
On that same day, Powell showed up at the house of one of Underwood’s neighbors.
Powell and the neighbor were acquaintances from Powell’s place of employment, a
gas station. Powell was at the neighbor’s house for two hours and acted as if he were
high on drugs. When Powell left the neighbor’s house, he walked across the street
to Underwood’s home. A subsequent forensic study of Powell’s internet usage
placed him in Underwood’s home on that day. Notwithstanding appellant’s waffling
on September 15, on September 16, appellant communicated with Robinson eighty-
one times and continued to communicate with her thereafter.
At 9:00 a.m. on September 17, Underwood’s alarm company sent a
notification that her monitor was no longer working.
On September 20, Underwood’s neighbor saw Powell walk out of
Underwood’s house but did not see Underwood, which was unusual because she
usually walked her guests out. A man and a woman carrying a baby carrier
accompanied Powell.
Underwood’s daughter tried to contact her mother on September 19 and 20
but received no response. On September 20, she went to Underwood’s home to
check on her. When she arrived, she found the front door unlocked and her mother’s
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body on the floor in her craft room. She had been shot and stabbed. Music was
playing on the television. The genre of music playing was not typical of the music
Underwood listened to.
In addition, items had been knocked over and dishes and food were left out in
the kitchen, which was unusual as Underwood kept a tidy home. The drawers in the
bedroom were opened and a glass bowl had been knocked to the floor. The only
item Underwood’s daughter could tell was missing was a monitor for the
surveillance cameras. Underwood’s daughter called 9-1-1 at 6:14 p.m., followed by
a call to Welborn at 6:20 p.m. Welborn then called appellant and Robinson.
A sheriff’s deputy collected various items from Underwood’s house,
including spent .22-caliber cartridge casings, eating utensils, and cigarette butts.
Appellant’s DNA matched the DNA on one of the utensils. Powell’s cell phone was
seized, and one of Underwood’s cell phones was collected at the scene. After the
police finished their investigation of the house, Underwood’s daughter cleaned the
house and found drug paraphernalia and a clear substance behind the dresser. She
disposed of the substance.
D. Analysis
Appellant claims the evidence showed that Underwood’s daughter and her
daughter’s boyfriend had a motive and opportunity to be perpetrators of the crime.
The jury heard about the sometimes-volatile relationship between Underwood and
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her daughter,2 text messages between the two, and the lead investigator’s view that
Underwood’s daughter was not a suspect. The jury weighed this evidence against
the evidence of others’ being involved and found appellant guilty. We must defer
to the jury’s resolution of any evidentiary conflict in this regard. Wise v. State, 364
S.W.3d 900, 903 (Tex. Crim. App. 2012).
Next, appellant urges that Robinson and Welborn were the actual offenders
and that there was no evidence that there was a prior or contemporaneous plan to
commit the murder. We disagree. The evidence established that days after the
ultimatum, Robinson and Welborn discussed appellant over text messages. Shortly
thereafter, appellant messaged Powell telling him that he had a “job” for him, and
then both men sought out guns. Powell sought out the same caliber handgun that
was used to kill Underwood, and appellant separately sought out a “quiet” gun.
Powell also told appellant that he should crank up the music while he got the job
done, and when Underwood’s daughter entered the house, there was a television
paused on techno music, which Underwood did not listen to.
Underwood was believed to have been killed between September 16 and 17.
A truck rented to appellant was seen at Underwood’s house in the days leading up
to her murder. On September 15, Powell messaged his girlfriend that he was at the
2
Underwood’s daughter indicated that she and her mother had petty arguments, her mother was arrested
for assaulting her in June or July before her death, her mother kicked her out of the house and took away
her car. She recalled telling her mother that she and her boyfriend were going to do a drive-by, but she
could not recall when she told her this.
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mark’s house putting an end to this. Powell messaged appellant’s wife about doing
“it.” Powell was seen at Underwood’s house on September 16. Forensic evidence
placed both appellant and Powell in Underwood’s house near the time of her death.
Underwood’s neighbor saw Powell at Underwood’s house walking with a
man and a woman carrying a baby carrier the same day that her body was found.
Underwood’s daughter made the 9-1-1 call at 6:14 p.m. and called Welborn at 6:20
p.m.; Welborn then called appellant and Robinson. Appellant was the only person
connected to Powell. All communications with Powell came through appellant.
We conclude that based on the events before, during, and after the commission
of the offense, the jury could rationally infer that appellant, acting with intent to
promote or assist the commission of the offense, solicited, encouraged, directed,
aided, or attempted to aid others in committing the offense. Accordingly, the
evidence was sufficient to support appellant’s conviction as a party to capital
murder.
We overrule appellant’s first issue.
II. Motion to Suppress
In his second issue, appellant asserts the trial court erred in denying his motion
to suppress the seizure and search of his phone without a warrant in violation of the
Fourth Amendment of the United States Constitution and Article I, Section 9 of the
Texas Constitution. U.S. CONST. amend. IV; TEX. CONST. art. I, § 9. The record
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establishes a warrant issued for the search of appellant’s phone, and only the seizure
of same is at issue here.
A. Standard of Review and Legal Principles
We review a trial court’s ruling on a motion to suppress applying a bifurcated
standard of review, giving almost total deference to a trial court’s determination of
historic facts and mixed questions of law and fact that rely upon the credibility of a
witness, but applying a de novo standard of review to pure questions of law and
mixed questions that do not depend on credibility determinations. Martinez v. State,
348 S.W.3d 919, 922 (Tex. Crim. App. 2011). When, as here, the trial court does
not make explicit findings of fact, we view the evidence in the light most favorable
to the trial court’s ruling and assume the trial court made implicit findings of fact
supported by the record. Lerma v. State, 543 S.W.3d 184, 190 (Tex. Crim. App.
2018). We will sustain the ruling of the trial court if it is correct under any applicable
theory of law. Id.The Fourth Amendment guarantees individuals “the right . . . to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures.” Gutierrez v. State, 221 S.W.3d 680, 684–85 (Tex. Crim. App. 2007); see
U.S. CONST. amend. IV. The Texas Constitution similarly provides: “The people
shall be secure in their persons, houses, papers and possessions, from all
unreasonable seizures or searches . . . .” TEX. CONST. art. I, § 9. Generally, the
seizure of an individual’s personal property is per se unreasonable within the
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meaning of the Fourth Amendment unless the seizure is accomplished pursuant to a
judicial warrant issued upon probable cause and particularly describing the items to
be seized. United States v. Place, 462 U.S. 696, 701 (1983); Kothe v. State, 152
S.W.3d 54, 59 n.10 (Tex. Crim. App. 2004). But there are exceptions to the warrant
requirement. Missouri v. McNeely, 569 U.S. 141, 148 (2013); State v. Villarreal,
475 S.W.3d 784, 796 (Tex. Crim. App. 2014). A well-recognized exception applies
when the exigencies of the situation make the needs of law enforcement so
compelling that a warrantless search or seizure is objectively reasonable under the
Fourth Amendment. Weems v. State, 493 S.W.3d 574, 578 (Tex. Crim. App. 2016).
Once a defendant establishes that a search or seizure was conducted without
a warrant, the burden shifts to the State to prove that the search or seizure was
reasonable. See Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). The
State can meet this burden by showing the existence of exigent circumstances and
that the officer had probable cause for the seizure. Gutierrez v. State, 585 S.W.3d
599, 609 (Tex. App.—Houston [14th Dist.] 2019, no pet.).
The exigent circumstances test is met if the risk of the item’s disappearance
before a warrant may be obtained outweighs the suspect’s interest in possession.
Place, 462 U.S. at 701. For example, an exigency could be shown if a suspect has
control over easily disposable evidence. See McNeely, 569 U.S. at 153. To
determine whether a law enforcement officer faced an emergency that justified
acting without a warrant, we look to the totality of the circumstances. Id. at 149.
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In addition to proving exigent circumstances, the State must also prove that
the officer had probable cause to associate the property with criminal activity. Tex.
v. Brown, 460 U.S. 730, 741–42 (1983). Probable cause is not a high bar. Dist. of
Columbia v. Wesby, 138 S. Ct. 577, 586 (2018). Probable cause obtains if the facts
available to the officer would warrant a person of reasonable caution in the belief
that certain items may be useful as evidence of a crime. See Brown, 460 U.S. at 742.
“Because probable cause deals with probabilities and depends on the totality of the
circumstances, it is a fluid concept that is not readily, or even usefully, reduced to a
neat set of legal rules.” Wesby, 138 S. Ct. at 586 (quotations and citations omitted).
A practical, nontechnical probability that incriminating evidence is involved is all
that is required. Brown, 460 U.S. at 742. The State does not need to show that the
officer’s belief was correct or more likely true than false. Id. Probable cause
requires only a “probability or substantial chance” of criminal activity. Wesby, 138
S. Ct. at 586 (quotation omitted).
B. The Evidence
Appellant established his cell phone was seized without a warrant. Thus, the
burden shifted to the State to establish an exception to the warrant requirement. The
State relied on the exigent circumstances exception.
At the suppression hearing, Texas Ranger Bruce Sherman testified that on
September 28, 2017, he obtained a warrant to obtain a sample of appellant’s DNA.
At that time, Ranger Sherman was investigating the case and had discovered that
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there had been a great deal of electronic communication between Underwood and
appellant in the days leading up to Underwood’s death and that appellant had rented
a black truck that had been seen at Underwood’s home. He did not have a warrant
to seize appellant’s phone at that time.
Ranger Sherman interviewed appellant while he was at his home collecting
appellant’s DNA. The interview lasted for approximately two hours. Two other
officers were present during most of the time as well as appellant’s wife and infant
child. During the interview, Ranger Sherman asked appellant not to be on his phone
and appellant indicated his phone would contain incriminating evidence, specifically
regarding drug activity. Appellant admitted to Ranger Sherman that he had cleared
his phone the day before and that he routinely does so. Ranger Sherman explained
that while deleted content can sometimes be recovered from cell phones, it is not
always possible, and an entire phone can be reset. Ranger Sherman asked appellant
for his phone. Appellant’s wife objected to appellant turning over the phone
claiming the phone contained nude photographs of her. Appellant, meanwhile,
refused to turn over the phone claiming he needed it for work. Ranger Sherman
represented that, if appellant turned over the phone, officers would not look at the
photographs of appellant’s wife and he would do his best to have the phone returned
to appellant the following day. Appellant asked, “[W]hat if I say no?” The response
was, “[W]e will take it by force.” Appellant grabbed his phone and started
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manipulating it. At that point, Ranger Sherman determined that exigent
circumstances existed.
C. Analysis
Appellant does not contest Ranger Sherman’s testimony concerning
numerous text messages between appellant and Underwood, the possibility of
incriminating evidence on the phone, and that appellant routinely deletes content
from his phone. Appellant, relying on King v. Kentucky and Turrubiate v. State,
asserts the exigency exception requires that the record show proof of imminent
destruction based on affirmative conduct and the record does not contain evidence
appellant was actively deleting evidence from his phone. King v. Kentucky, 563 U.S.
452, 460 (2011); Turrubiate v. State, 399 S.W.3d 147, 151 (Tex. Crim. App. 2013).
But King and Turrubiate were warrantless search cases, not warrantless seizure
cases. A seizure does not invade the same sort of privacy interests as a search. See
Cruse v. State, No. 01-13-00077-CR, 2014 WL 3607250, at *2 (Tex. App.—
Houston [1st Dist.] July 22, 2014, pet. ref’d) (mem. op., not designated for
publication). In fact, the prohibition on unreasonable seizures is distinct from the
prohibition on unreasonable searches. United State v. Jacobsen, 466 U.S. 109, 113
(1984). “A ‘seizure’ of property occurs when there is some meaningful interference
with an individual’s possessory interests in that property.” Id. “A ‘search’ occurs
when an expectation of privacy that society is prepared to consider reasonable is
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infringed.” Id. Accordingly, neither King nor Turrubiate is controlling or
instructive here.
Viewing the evidence in the light most favorable to the trial court’s ruling, the
court could have concluded appellant routinely deleted content from his cell phone,
including the day before the phone was seized, and when appellant believed the
officers were going to seize his phone, he began to manipulate it in a manner that
led Ranger Sherman, an experienced law enforcement officer, to believe he intended
to destroy probative evidence. We conclude, under these circumstances, the State
showed exigent circumstances for seizing the phone and established the phone might
contain evidence of a crime. See McNeely, 569 U.S. at 153; Gutierrez, 585 S.W.3d
at 610 (holding exigent circumstances existed to seize cell phone where trial court
could have found Gutierrez was manipulating gallery section of his phone and was
in control over easily disposable evidence). We overrule appellant’s second issue.
CONCLUSION
We affirm the trial court’s judgment.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 47
200223F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ROBERT SAMUEL VEAL, On Appeal from the 199th Judicial
Appellant District Court, Collin County, Texas
Trial Court Cause No. 199-80509-
No. 05-20-00223-CR V. 2019.
Opinion delivered by Justice
THE STATE OF TEXAS, Appellee Schenck. Justices Smith and Garcia
participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered this 31st day of December, 2021.
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