Cockerham v. State

Full title: MARIO LAVELL COCKERHAM, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Ninth District, Beaumont

Date published: Aug 4, 2010

No. 09-09-00180-CR (Tex. App. Aug. 4, 2010)

Opinion

No. 09-09-00180-CR

Submitted on July 7, 2010.

Opinion Delivered August 4, 2010. DO NOT PUBLISH.

On Appeal from the 253rd District Court, Liberty County, Texas, Trial Cause No. CR26494.

Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.

MEMORANDUM OPINION

DAVID GAULTNEY, Justice.

A jury convicted appellant Mario Lavell Cockerham of capital murder of a child, Jenna Ross. See TEX. PEN. CODE ANN. § 19.03(a)(8) (Vernon Supp. 2009). The State did not seek the death penalty. The trial court assessed the mandatory sentence of life without parole. See TEX. PEN. CODE ANN. § 12.31 (Vernon Supp. 2009). Cockerham contends the evidence is legally and factually insufficient to support the finding of guilt. He argues there was no physical evidence connecting him to the crime, and his conviction rests solely on the testimony of eyewitness Alicia Ross. Cockerham also relies on alibi testimony from his wife and argues there was questionable causation evidence regarding the child's death. We conclude the evidence is sufficient to support the conviction. The judgment is affirmed.

BACKGROUND

Officers Boufford and Carr were dispatched to a "possible criminal homicide." Upon arrival at an apartment in Dayton, Boufford found an injured female, identified as Alicia Yvonne Ross. She had "[n]umerous lacerations, deep gaping lacerations" and was "covered from head to toe in blood." Officer Boufford testified that Ross was distraught, but alert. She had fled from her apartment to her next-door neighbor's apartment. After observing her injuries, the officers went to Ross's apartment. There was no sign of forced entry. The officers observed blood in the living room, kitchen area, hallway, master bedroom, and restroom. In the master bedroom, Boufford discovered a six-month-old infant lying face down on the bed. The child was dead. An officer testified "it looked like the baby's face had been pushed down into the clothes that were on the bed." The child appeared to have been suffocated "due to the fact that the mouth or nose was foaming." Ross told Boufford that the person who did this was "[m]y baby daddy." Further investigation revealed that the baby's father was Mario Cockerham. The police obtained a warrant for his arrest. At trial, Ross testified she had a sexual relationship with Cockerham. The two continued this relationship after Cockerham married someone else. Ross became pregnant by Cockerham and had his child, Jenna Yvonne Ross. Ross testified that when she told Cockerham that he could be the baby's father, he became upset; he told her she was trying to ruin his life, and if his wife found out, his wife would leave him. Cockerham urged her to get an abortion, but Ross refused. The identity of Jenna's father was uncertain. There were three possibilities. The three men had somewhat similar physical descriptions, a fact that appellant suggests made each one a potential suspect in the infant's murder. A paternity test identified Cockerham as Jenna's father a few days before Jenna's death. After Jenna was born, Ross exchanged emails with Cockerham and his wife. During the first few months of Jenna's life, Cockerham ignored her. Eventually, Cockerham called the child by a pet name, "[my] little Fat-Fat." Ross explained that Cockerham was frequently in her home and doted on Jenna. In the end, however, Ross concluded Cockerham was not a loving father to Jenna. Ross testified that approximately a week before Jenna's death, Ross awoke to find Cockerham in her home; she had given him a key to her apartment. He had socks over his hands and placed his hands over her mouth. She was afraid. Cockerham did not harm her or Jenna that night. Ross indicated she had sex with him. Between that occurrence and the night of Jenna's death, Cockerham came to Ross's apartment again and told her not to talk to his wife. The day before Jenna's death, Ross took Jenna to see Cockerham's father. She also testified that she emailed Cockerham that night. Ross testified that sometime on the night of March 22, she awoke when someone pulled her out of bed by her hair and on to the floor. Her attacker kicked her and hit her in the head with what she thought was a hammer. Ross testified the attacker pushed her against the wall and stated, "I told you not to talk to my wife." Ross recognized Cockerham's voice. He beat Ross some more. There was no light on in the bedroom, but after Cockerham used the restroom, he left the light on when he came out. The light illuminated the bedroom. Ross described how Cockerham got on the bed and had a pillow over the baby's face. At that point, Ross could see Cockerham's face. She testified:

Mario was on the bed with a pillow over my baby's face and I told him, please don't kill my baby. And then he got off the bed and came around and . . . started stabbing me again and then I remember thinking I can't save her. I couldn't save her. Then — then the next thing I know, I woke up and I laid there and tried to be really quiet to see if he was gone. Then I got up and Jenna was dead and I — all I could think was that I didn't want to look at her.

Ross positively identified Mario Cockerham as the man who inflicted the wounds on her and the man who smothered and killed Jenna. Ross sustained defensive wounds, fractures in her hand, a skull fracture, a broken jaw, and a collapsed lung. No other witness saw Cockerham at the scene. Ross's son was asleep in the next room and did not wake up during the attack. Law enforcement authorities found nothing at the scene linking Cockerham to the crime. Police impounded and searched Cockerham's car, but found no forensic evidence that connected him to the crime. Ranger Huff testified that the distance between Dayton, the scene of the crime, and Cockerham's residence in Houston, is approximately 40 miles. Huff explained it would have been possible to discard any clothing or shoes anywhere along that route. Officers arrested Cockerham the afternoon after the attack. He had no fresh injuries on his body. His clothes showed no sign of blood. Cockerham's wife, Renita Cockerham, testified for the defense and offered an alibi for him. She stated Cockerham went to bed around 9:30 or 10:00 p.m. on March 22; he got up the next morning at 4:45 a.m. to get ready for work and left for work at approximately 5:15 a.m. She indicated he acted normally, he was not secretive, and he had no cuts or blood on him. His clothes were not bloody. Ranger Huff testified Renita told him that "she was not sure [Cockerham] was home all night," and that "he could have left during the night." She acknowledged she called Cockerham's cell phone at 1:20 a.m. on March 23, because, as she explained, she was looking for the phone. Renita also testified to communications between her, Ross, and Cockerham. Ross had contacted Renita after Jenna's birth and asked where Cockerham was and why he had not been to see his baby. In addition to telephone conversations, there were text messages and emails from Ross. Renita testified she was hurt when the paternity test results showed Cockerham was the father.

STANDARD OF REVIEW

In a legal sufficiency review, an appellate court considers all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Under the Jackson standard, the reviewing court gives full deference to the jury's responsibility to fairly resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Hooper, 214 S.W.3d at 13. In a factual sufficiency issue, the reviewing court considers all the evidence in a neutral light and asks whether the evidence introduced to support the verdict, though legally sufficient, is nevertheless so weak, or so against the great weight and preponderance of conflicting evidence, as to render the jury's verdict clearly wrong and manifestly unjust. Gamboa v. State, 296 S.W.3d 574, 579 (Tex. Crim. App. 2009). Even though a factual sufficiency review permits an appellate court, to a very limited degree, to act as a "thirteenth juror," the reviewing court must nonetheless give the jury's verdict a great degree of deference. Steadman v. State, 280 S.W.3d 242, 246 (Tex. Crim. App. 2009).

ANALYSIS

Cockerham argues the evidence does not establish the child's death was caused intentionally and he challenges the identity element of the offense of murder. Dr. Patricia Moore conducted the autopsy of Jenna Ross. Moore concluded the child suffocated as a result of smothering. In reaching her conclusion, she considered the scene photographs, the investigation, statements, and information she received from law enforcement. The findings from the autopsy suggested to Dr. Moore there was "some type of force" to the "upper gums on the right side." She agreed that the condition of the body was consistent with an adult male's holding the child's "face down into bedding [or] clothing until such time as life had left her body[.]" The hemorrhage to the front of the child's head was consistent with someone's pushing her head down on to something. Dr. Moore also indicated she could not tell with certainty what caused the suffocation, and acknowledged that the obstruction of the air passage could have been caused by the child's rolling around in the bed and the sheets. Dr. Moore further acknowledged that the child's death could have been an accident. Although the possibility of accidental death existed, Dr. Moore concluded otherwise. The jury was free to evaluate the testimony and draw inferences and conclusions that the child's death was the result of Cockerham's intentional act. In challenging the identity element, Cockerham points to the fact that the State offered no physical evidence connecting him to the crime, that there were other men in Ross's life who could be considered suspects, and that the State's only evidence was Ross's eyewitness testimony. Ross unequivocally identified Cockerham as her attacker and the murderer of Jenna. Having been in an intimate relationship with Cockerham for several years, Ross knew him well and recognized his voice. He had a key to her apartment and had been there numerous times. A few days prior to Jenna's death, Cockerham received the paternity test results identifying him as the child's father. Though Cockerham had told her not to contact his wife, Ross continued to communicate with both of them through phone calls and emails. Ross testified that a week prior to the attack and the murder, Cockerham entered her apartment during the night and put his hands over her mouth while she was in bed. His hands had socks on them. The day before the murder, Ross took the baby over to Cockerham's father's house to let the grandfather see the child and to inform him of Cockerham's paternity. Cockerham told Ross a few days before Jenna's death that he did not want Ross to communicate with his wife. On March 22, Ross emailed Cockerham and told him she was through, but that she would tell Jenna he was her father. Ross testified that during the attack and murder, Cockerham stated to Ross, "I told you not to talk to my wife[.]" A conviction may be based on the testimony of a single eyewitness. Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971). The lack of such physical evidence as fingerprints, footprints, or DNA, does not render the evidence supporting a defendant's conviction factually insufficient. Harmon v. State, 167 S.W.3d 610, 614 (Tex. App.-Houston [14th Dist.] 2005, pet. ref'd).¹ The jury determines the weight to give testimony; the determination turns on an evaluation of credibility. Cain v. State, 958 S.W.2d 404, 408-10 (Tex. Crim. App. 1997). Here, the eyewitness testimony, the alibi testimony, the lack of physical or forensic evidence, and the testimony regarding cause of death were all factors for the jury to consider in weighing the evidence. Given the eyewitness testimony in this case and the circumstantial evidence, a rational jury could have found Cockerham guilty of capital murder. "A jury's decision is not manifestly unjust merely because the jury resolved conflicting views of evidence in favor of the State." Johnson v. State, 176 S.W.3d 74, 78 (Tex. App.-Houston [1st Dist.] 2004, pet. ref'd). Viewed in a light most favorable to the verdict, the evidence is legally sufficient to support the verdict of capital murder. Weighed in a neutral light, the evidence is not so weak that the verdict is clearly wrong and unjust. Further, there is no objective basis in the record to conclude that the great weight and preponderance of the evidence contradicts the jury's verdict. The evidence is factually sufficient to support Cockerham's conviction for capital murder. We overrule Cockerham's issues and affirm the judgment. AFFIRMED.