Opinion
05-22-01085-CR
02-02-2024
TRAVIS CENTELL COOPER, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from the 282nd Judicial District Court Dallas County, Texas Trial Court Cause No. F21-10242
Before Justices Carlyle, Smith, and Kennedy
MEMORANDUM OPINION
CRAIG SMITH JUSTICE
Appellant Travis Centell Cooper was convicted by a jury for the murder of Tarik Davionne Barb. See Tex. Penal Code Ann. § 19.02(b)(1)-(2). The jury assessed appellant's punishment at thirty-seven years' confinement in the Institutional Division of the Texas Department of Criminal Justice, and the trial court sentenced him accordingly. Appellant challenges his conviction in two issues. Because we conclude that the evidence is legally sufficient to support his conviction and that he failed to preserve his complaint regarding his right to common law allocution, we affirm.
Factual and Procedural Background
Tarik Davionne Barb and Jamarcus Brown made money together by flipping iPhones. They would find an individual who wanted to make some extra cash and use their credit to purchase a phone. At the time of the purchase, all that was owed was the sales tax. Barb and Brown would pay the individual in cash and later the individual would be stuck with the bill for the phone. They referred to the individual as a "zero" because they put zero down at the time of purchase. Meanwhile, Barb and Brown would sell the iPhone to someone else and make a profit.
On August 12, 2021, Barb called Brown at around 3 p.m., told him he found a zero that had been approved for five phones, and asked if Brown could come help get the phones from the store. On this day, the zero was appellant.
Barb had found appellant earlier that morning at a bus stop in South Dallas and approached him about the scam. They went to several stores but were unable to get the phones, so Barb called Brown for help. Brown met Barb and appellant in Addison, and they went to the Apple store at the Galleria mall. They were again not able to get the phones, so they left and went to the Apple store at Northpark where they purchased four phones. Brown gave appellant cash for helping get the phones, and they began driving back to Addison. Barb was driving, Brown was in the front passenger seat, and appellant was in the rear passenger seat behind Brown. Appellant insisted that they owed him more, but they refused to pay him. As they were exiting the Dallas North Tollway, appellant pulled out a gun and shot Brown.
Brown jumped from the vehicle and heard more gunshots. Appellant shot Barb multiple times and then fled.
Emily Richmond was on her way home from work when she exited the Tollway at Belt Line Road, going north, and saw a man on the ground. He was partially on the exit ramp and partially on the median that separated the exit ramp from the access road. A vehicle was parked farther along the exit ramp, and the driver's side door was open. Another man was standing outside the door and rummaging around, looking for something. She first assumed that he was trying to find something to render aid to the man in the road, but he walked away from the car and toward the access road near Gloria's restaurant. The man moved very quickly, and she thought he was carrying a very large cigar because it was oblong and dark in color.
At the same time, Edgar Vega-Uriostegui (Vega), and his wife Teresa Hernandez, were driving around Addison looking for a restaurant for dinner. As they were crossing in front of Gloria's, they almost ran over a man running away from the service road along the Tollway. Vega testified that they did not think much of it; they just assumed he was valet parking for one of the restaurants and kept driving. However, after they drove closer to the intersection at Belt Line and the Tollway, they saw a man on the road and two cars stopped at the exit. Vega had prior EMT training, so they stopped so that he could try and render aid. Vega initially helped Brown, who was on the ground. Brown had hurt his leg jumping out of the vehicle and had a gunshot wound to his left clavicle. When Vega learned that someone else was injured in the vehicle, he left Brown and went to render aid to Barb. Vega reached in the vehicle to make sure it was in park. While he was doing so, Barb "pulled himself forward" but was unresponsive when Vega asked him if he was okay. Because Vega could not get a response, or a pulse, from Barb, Vega pulled him out of the vehicle and began CPR. Barb appeared to have a gunshot wound or injury to his upper chest.
Richmond and Hernandez separately called 9-1-1. Police and paramedics arrived, and Brown and Barb were taken to the hospital. Barb was pronounced dead shortly thereafter. He suffered five gunshot wounds, two in his right upper back, two in his right shoulder, and one in his left midback. The bullets pierced his lungs, heart, and liver. A medical examiner testified that Barb's cause of death was gunshot wounds, and the manner of his death was homicide.
Four days later, on August 16, 2021, appellant called the nonemergency line of the Addison Police Department to report the fraud scheme. He told the police officer that the men stole the phones from him when they left the store and commented, "people die this way." Appellant was very concerned about his credit being attacked. The officer told appellant he heard a similar situation happened a day or two before, and appellant responded that was him, he was the one who shot them. The officer continued to talk to appellant about the fraud scheme and gather information about the shooting. Appellant told him the name of the victims and that he used a 9-millimeter gun.
Subsequently, appellant voluntarily went to the police station to meet with a detective. By that time, the police had obtained a warrant for his arrest. He was arrested and interviewed, and he turned over the gun. Appellant believed he was justified in shooting Barb and Brown.
At trial, appellant maintained that he had to shoot Barb and Brown in defense of himself and his property. The State argued that appellant shot them because he was owed another $80, and they refused to pay him. The jury rejected appellant's claims of self-defense and defense of property and found him guilty of murder. Per his election, the jury assessed punishment at thirty-seven years imprisonment. Appellant filed a motion for new trial, which was overruled by operation of law, and this appeal followed.
Sufficiency of the Evidence
Appellant argues in his first issue that the evidence is legally insufficient to support his conviction for murder. Appellant emphasizes the standard of review and contends that the State's evidence did not prove that he murdered Barb "to the high level of certainty required for the jury's verdict to be rational beyond a reasonable doubt." Specifically, appellant asserts that the evidence showed he was in fear when he fled from the car and, therefore, a judgment of acquittal should be entered.
In reviewing the legal sufficiency of the evidence, we consider whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). A criminal conviction may be supported by both direct and circumstantial evidence as well as all reasonable inferences that may be drawn from the evidence. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We review the evidence in the light most favorable to the verdict and defer to the trier of fact to resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic to ultimate facts. Jackson, 443 U.S. at 319; see also Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012); Isassi, 330 S.W.3d at 638. The jury may choose to believe or disbelieve any part of any witness's testimony. Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000). "When the record supports conflicting inferences, we presume that the factfinder resolved the conflicts in favor of the prosecution and therefore defer to that determination." Clayton, 235 S.W.3d at 778.
The sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct jury charge is "one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id.
Here, to prove murder, the State had to show beyond a reasonable doubt that appellant intentionally or knowingly caused the death of Barb by shooting him with a firearm or intended to cause serious bodily injury to Barb and committed an act clearly dangerous to human life-shooting Barb with a firearm-that caused Barb's death. See Tex. Penal Code § 19.02(b)(1)-(2). Appellant admitted that he shot Barb, and it is undisputed that Barb died from the gunshot wounds. However, appellant believed he was justified in shooting Barb.
Where the defendant has claimed he was justified in shooting the victim, our sufficiency review includes a determination of whether any rational juror could have rejected appellant's self-defense claim beyond a reasonable doubt. Braughton v. State, 569 S.W.3d 592, 609 (Tex. Crim. App. 2018) (citing Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991)). The defendant bears the burden to produce evidence of self-defense, while the State bears the burden of persuasion to disprove the defensive issue raised. Id. at 608. Thus, "we look not to whether the State presented evidence which refuted [the defendant's] self-defense testimony" but, instead determine whether, after viewing all the evidence in the light most favorable to the verdict, any rational juror could have found the essential elements of the offense beyond a reasonable doubt and also could have found against the defendant on the issue of self-defense beyond a reasonable doubt. Id. (quoting Saxton, 804 S.W.2d at 914). Self-defense is a fact issue for the jury, and a guilty verdict is an implicit finding rejecting the defendant's theory of self-defense. Saxton, 804 S.W.2d at 913-14.
Although the jury charge also included an instruction on defense of property, appellant's sufficiency argument focuses on his claim of self-defense and does not mention or argue any relevant law or facts as to a person's justification in using deadly force to protect his property. See Tex. Penal Code §§ 9.41, 9.42. Thus, our review is limited to whether a jury could have rationally rejected appellant's claim of self-defense.
A person is justified in using deadly force when a person reasonably believes the force is immediately necessary to protect the person against another's use or attempted use of unlawful deadly force or to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery. Tex. Penal Code § 9.32(a). Deadly force is force "intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury." Id. § 9.01(3). A reasonable belief is one that an ordinary and prudent person would hold in the same circumstances as the actor. Id. § 1.07(a)(42). The actor's belief that deadly force was immediately necessary is presumed to be reasonable if the actor (1) knew or had reason to believe that the person against whom the force was used was committing or attempting to commit certain offenses, such as aggravated kidnapping, robbery, or aggravated robbery; (2) did not provoke the person against whom the force was used; and (3) was not otherwise engaged in criminal activity. See id. § 9.32(b)(1)(C), (b)(2)-(3). The use of force against another is not justified in response to verbal provocation alone. See id. § 9.31(b)(1).
The jury heard evidence from multiple witnesses regarding appellant's claim of self-defense. Appellant testified that, at the time he fired the shots, Brown made a sudden movement, which made appellant think Brown was grabbing for a weapon. Appellant explained that he was not in fear for his life earlier in the day when he went to the various phone stores with Barb and Brown. He was with them to get paid.
Initially, they only gave him $100, instead of $100 for each of the four phones. He pleaded with them, and they gave him $200. He kept begging for them to give him the full amount they agreed upon-$400. They gave him $320, but he was still discontent. They began to record him and told him to "shut the fuck up." When they were recording, they played a rap song about "you too little, you too small, you need to get some muscles, get your weight up." Brown flexed his muscle at appellant, and appellant took it as a threat; he believed the song was directed at him.
Appellant further testified he felt like a prisoner of war in the car with them. He began thinking that, if he was not there to get paid, then why was he there. He thought they probably had a gun or he was about to get his "ass whipped for YouTube views." He was concerned that, when they stopped, he would have to fight two people who were bigger than him. He displayed the gun because he wanted them to know he was protected and because he wanted to get out of the car. It looked like Brown was reaching for something under the seat, so he shot him. Brown jumped out of the car and appellant looked at Barb and did not see his hands, so he shot Barb. He assumed they had a gun because "they was brazen enough to tell me, look here, we ain't paying you your money, and we keeping everything . . . telling me to shut the fuck up . . . saying . . . we gonna take him to his car first and then we'll take you home." Appellant also testified that, at the beginning of the day, Barb told him he had a gun.
On cross-examination, appellant acknowledged that Brown did not reach for anything until after appellant displayed the gun, pointed it at him, and said they needed to talk about the money. Appellant also testified that before Brown "dove down" or reached under the seat, Brown put both his hands up.
When appellant called the police to report the fraud scheme, appellant told the officer that the victims would not pay him the agreed upon amount of money after they purchased the phones. They started recording him, called him a clown, and embarrassed him. When the officer told him, "I'm sorry that happened to you," appellant responded, "Well, it worked out for the best. I did what I had to do to protect the black community." Appellant did not tell the officer that either of the victims had a gun or that he was in fear for his life. Appellant also stated, in reference to Brown surviving, "I tried my best to kill both of them for what they said about the black community." On cross-examination, the officer acknowledged that appellant also told him that appellant did not want to shoot them and that they would not let him out of the car. The officer agreed that holding someone against his or her will was a crime and could be unlawful restraint or kidnapping.
When appellant was later interviewed by the detective, appellant said he was told one of the men had a gun, but he never saw it. He told the detective he was not in fear because he had a gun and God on his side. Appellant also told the detective that, if he was in the front seat, none of this would have happened, meaning that he would not have been able to shoot the two men. He decided that the best position to shoot was before the car stopped. He explained that he made a conscious decision to shoot while they were exiting versus driving down the freeway so that they would not wreck out.
Appellant also told the detective that he wanted to live, he wanted to get out of the car, he did not want to get shot, and he wanted his property. He explained he felt like he was being kidnapped and robbed. Brown said he would give appellant the money but started reaching for something so appellant shot him.
The detective testified that he believed appellant was forthcoming and cooperative, appellant thought he did the right thing, and appellant felt justified in using force to get his cell phones back. The detective also believed that Brown was withholding some information. Brown would not tell the detective the location of his phone, but the detective did not get a search warrant for it.
The police also interviewed Trent Cooper, appellant's brother, and informed him that appellant was being charged with murder and aggravated assault. Cooper did not understand why appellant was being charged when Barb and Brown were scoundrels and appellant was mentally ill; appellant had been diagnosed with schizophrenia. Cooper testified that appellant called him that day and told him he was in the car with a stranger, who wanted appellant to get a cell phone in his name. Cooper warned him it sounded like a scheme and told him he should not do it. Barb was agitated and yelling in the background that it was not a scam. Cooper told appellant to get dropped off somewhere and let Cooper come pick him up, but Barb refused to drop off appellant. Barb said they were almost there and he was not going to stop. After they hung up, Cooper also sent appellant text messages warning him that it was a scam and Barb was going to know all of appellant's identifying information.
After the shooting, Cooper was with appellant when he called the police station to report the fraud and "that he had to shoot them." Appellant did not try to hide that he shot them, he was turning himself in. Cooper believed appellant feared for his life.
Brown testified that neither he nor Barb had a gun and neither of them threatened appellant. He told the jury that the conversation about appellant wanting more money happened as they were leaving Northpark. Appellant dropped it, they drove toward Addison, were making a video in the car with the money and the phones, and appellant just started shooting.
Brown acknowledged he did not know the details about Barb and appellant's conversations regarding the deal before he met up with them. Barb did tell Brown that appellant's family had been calling appellant. Brown denied that there was further conflict regarding the deal, that he told appellant he had a gun and $100,000, that he told appellant, "Fuck the black man," and that they showed "muscle" and were "flexing" on appellant. Brown also testified that appellant never asked to be dropped off and never told them he did not want to be a part of the deal anymore.
Brown admitted that his and Barb's hustle was an illegal scam and that this was not the first time that he had been involved in illegal activity. Brown had a prior conviction for a 2010 burglary of a habitation and assault on a public servant, two prior evading arrests, and was currently pending indictment for the offense of unlawful possession of a firearm. Brown testified that the DA's office had not offered any type of deal in exchange for his testimony in this case.
The evidence also showed that appellant was forty-three at the time of the offense, and that Barb and Brown were in their twenties and were larger than appellant.
Although appellant believed that he was justified in shooting Barb and testified that he felt like a prisoner in the vehicle, appellant also testified that Brown did not reach for anything until after appellant pointed his gun at him. Appellant admitted he never saw a gun or other weapon, and police did not recover a gun from Brown, Barb, or the vehicle. Appellant also made clear in his interview with police that they were disrespecting him moments before he pulled out the gun, demanded more money, and shot them from behind. He repeatedly told the detective that he had he had a gun and God on his side. Additionally, the evidence showed that appellant was rummaging around on the driver's side of the vehicle before he fled from the scene, and he did not call police to report the incident until several days later. Viewing the evidence in the light most favorable to the verdict, and deferring to the jury's credibility determinations, as we must, see Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010), we conclude that a rational jury could have concluded that appellant's belief that deadly force was immediately necessary was unreasonable and, thus, could have rejected appellant's self-defense claim and found that he committed the offense of murder beyond a reasonable doubt. See Braughton, 569 S.W.3d at 609. We overrule appellant's first issue.
Allocution
In his second issue, appellant asserts that the trial court violated his common law right to allocution and, thus, he should receive a new punishment hearing. The common law right of allocution refers to "the opportunity for a defendant to present his personal plea to the Court in mitigation of punishment before sentence is imposed." McClintick v. State, 508 S.W.2d 616, 618 (Tex. Crim. App. 1974) (op. on reh'g) (citing Green v. United States, 365 U.S. 301 (1961)); see also Eisen v. State, 40 S.W.3d 628, 631-36 (Tex. App.-Waco 2001, pet. ref'd) (discussing meaning and history of right to allocution). Appellant acknowledges that the trial court complied with his statutory right of allocution. The State responds that appellant failed to preserve his complaint for appellate review. We agree.
See Tex. Code Crim. Proc. Ann. art. 42.07 (providing that the defendant shall be asked, before the trial court pronounces his sentence, whether there is a reason his sentence cannot be pronounced and providing such reasons are limited to: (1) he has received a pardon; (2) he is incompetent; or (3) the defendant escaped and the person rearrested and brought before the court for sentencing is not the same person that was convicted).
We have repeatedly held that a defendant must have timely objected to the trial court's denial of his right to allocution to preserve his complaint for appeal. Albiar v. State, Nos. 05-22-00558-CR, 05-22-00559-CR, 2023 WL 5814273, at *2 (Tex. App.-Dallas Sept. 8, 2023, no pet.) (mem. op., not designated for publication) (collecting cases); Hicks v. State, Nos. 05-20-00614-CR, 05-20-00615-CR, 2021 WL 3042672, at *1-2 (Tex. App.-Dallas July 19, 2021, no pet.) (mem. op., not designated for publication) (same). Here, after the trial court received the unanimous verdict of the jury, the court asked defense counsel if there was any legal reason why the sentence of thirty-seven years' confinement should not be imposed. Defense counsel responded, "None, Your Honor." Defense counsel did not ask to be heard on any other matter or make any further argument to the court. Therefore, appellant did not preserve his complaint that the trial court violated his common law right to allocution and, thus, we overrule his second issue without reaching the merits. See Tex. R. App. P. 33.1(a) (to present a complaint for appellate review, the record must show that the complaint was timely made to the trial court by request, objection, or motion and that the trial court adversely ruled or refused to rule on the complaint); Hicks, 2021 WL 3042672, at *2.
Conclusion
Having concluded that the evidence was legally sufficient to reject appellant's claim of self-defense and to support his conviction for murder and having concluded appellant did not preserve his complaint that the trial court violated his common law right to allocution, we affirm the judgment of the trial court.
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.