Opinion filed Jan uary30 , 2 009



### In The 

# Eleven th Court of Appeals

____________ 

### No. 1 1- 07 -0 01 71 -CR

____ ____ __ WILMER

LEE COB B, Ap pellant
V.
STA TE OF TEX AS , A ppellee

On App eal from the 238th Distric t Court
Midland County, Texas
Trial Court Cause No. CR 31750

M E M O R

A N D U M O P I N I O N The jury convicted Wilmer L ee Cobb of the offe nse of c apital murder , and the trial court assessed punishment by

operation of law at c onfinement for life. We aff

irm. Appellant pre sents four issues for review. I n the first issue, he makes a limitations arg ument with respec t to the ro b b er y p ortion of the ca pital murder indictment. He challeng es the fa ctual sufficie ncy

of the e vidence in his second issue. In the third and four th issues, appellant conte nds that his rights to equa l protection and due proce ss were viol at ed by the automatic imposition of a life sentenc e without a punishment hea ring

.2 Limitat ions Appellant ar g ues in his first is s u e that the trial court er red in re jecting his defense of limit ations as to the robbery portion of t he indi ctment. Appellant was indicted on April 5, 2006, for the offe nse of capital murder. The indictment a lleg ed that, on September 4, 1 9 8 7 , ap p el lant intentionally

cause d the death of Ver na Peac e by

s h o o t i n g h er with a fire arm in the c ourse of committing and attempting to commit the offe nse of r obbery

. Although murder and ca pital murder have no limitation period, the offe nse of robber y has a five-year limit ation period. See T EX
. C ODE C R IM
. P R OC
. ANN
. art

. 12 .0 1( 1) (A ), (4 )( A) (V e rn on Sup p. 20 08 ); De mo uc he ttev . S tate , 731 S.W .2d 75, 80 (Tex. Crim. App. 1986). Appellant conte nds that limi tations had run for t h e o ff en s e of robber y and that, ther efor e, appe llant could not be char g ed with c apital murder in which robbe ry was alleg ed as the offe nse during which the murde r occ urre d. We disag ree with appellant’ s contention. Appellant wa s indicted for a nd convicted of

capital murder, not robber

y . The underly ing robbery , for which limit ations had run, and the murder mer g ed into one offe nse: capital murder, for which there is no limit ation period. Se e Grav es v . S tate , 795 S.W .2d 185 (Tex. Crim. App. 1990) (applying long er limitation period for f elony ag g reg ated thef

t offe nse eve n though limitations had run on under ly ing mi s d em eanor theft off enses) . Appellant’s first issue is overrule d. Factual Sufficiency I n the second issue, appellant contends that the evidenc e is f actua lly insufficient to pr ove that he c omm itt e d the of

fe ns e
. To de te rm ine if

the e vid e nc e is f

a c tua lly su ff ic ie nt, we mus t r e vie w a ll of the e vid e nc e in a

ne utr a l li g ht and de te rm ine wh e the r t he e vid e nc e su

pp or tin g the ve rd ic t is so
weak that the v er d i ct is clea rly wrongand manife stly

unjust or whether

the ver dict is ag ainst the g reat weig ht and pre pondera nce of the conf licting e vidence

. W

ats on v . S tate , 204 S.W .3d 404, 414- 15 (T e x. Cr im. Ap p. 20 06 ); Clewi s v. S tate , 922 S.W .2d 126, 129 (Tex. Crim. App. 1996). The

re c or d s ho ws that th e jur

y wa s c ha rg e d o n th e law o f p art ies

. Ev id ence is su ff ic ie nt t o s up po rt

a conviction under

the law of parties wher e the def endant is phy sically

prese nt at the commission of the of fe ns e and e nc oura g e s th e c omm iss ion of the of fe ns e e ith e r b y

wo rd s o r o the r a g re e me nt. Be ie r v . S tate , 687 S.W .2d 2, 3 (Tex. Crim. App. 1985).3

The re cord shows that the victim wa s working at the Town & Country convenie nce store on the nig ht of September 4, 1987, when she w as shot three times dur ing a robber y in which $185.84 was stolen fr om the store’s c ash re g ister. The vic tim, who would have died quickly from the gunshot wounds t h at she suffe red, w as found lying f ace down in a pool of blood. This crime r emained

un so lve d unti l J.D

. Luc kie , an inv e sti g a tor fo r the dis tr ic t a tto rn e y ’s of fi c e , pic ke d the c a se up a s a cold ca se in 2005. Appellant wa s indicted in 2006. Severa l witnesses came forwa rd with inf

ormation relating to a

ppellant’s involvement. J err y Allen Pennin gton testified that he we nt to the store ar ound 11:00 on the night of the offe nse and purcha sed a few items. When he left, he saw appellant sitting in a car at the g as pump. Appellant

and at lea st tw o o the r m e n w e re “ hu dd le d u p” in t he c ar. Pe nn ing ton

sa id t he c ar b e lon g e d to “Reg ina Cobb.” When Penning ton told appellant he had seen him at the store, appe llant 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 wa s sure a bout the time. Sho rt ly a ft e r 1 1:0 0 th a t ni g ht, Ann Mar ie F ro st an d L y ne tte Ra e L ang ham le ft

F ro st’ s h ou se to make a quic k trip to the s tore. As they pulled up to the store, they noticed a ve hicle par

ked on the dark side of

the building but not i n a par king spot. The vehicle’ s lights wer e pointed out, which

seeme d odd. Fr ost describe d the ca r as an older model, larg e blue car with e ither a white or a lig ht blu e top ; L ang ham de sc ri be d the c ar as a big blu e c ar wit h a whi te ro of

. F ro st saw a mal e fi g ur e in the shadows be tween the car and the dumpster. L ang ham saw motion by the dumpster, and then she saw the dr iver g et bac k into the car . L ang ham said that the pa sseng er ha d something in his hand a nd that somebody

could also have been in the ba ck. Fr ost and L ang ham pulled up and pa rked in fr ont of th e s t o re
. L ang ham walke d up to the door, opened it, and st arte d inside when she sa w the victim ly ing on the floor with blood around he r fac e and he ad. L ang ham said the victim’s “ha nd was twitching .” A ft er L ang ham turned a round,

c a me b a c k , an d

s a i d , “ D o n ’ tg o i n s i d e , ” F r o s tg o to u to f t h e c ar an d w e n tt o t h e d o o r
. F ro st observe d the victim ly ing f ace down on the floor; t h e v i ct im was not moving. L ang ham used the sto re ’s pa y ph on e to n oti fy

the a uth or iti e s. Re g ina Rog e rs Cob b, a

pp e lla nt’ s e str ang e d wi fe , te sti fi e d th a t sh e ow ne d a blu e Gr and

Pr ix with a white vinyl top and that, on the nig ht of the off ense, he r boy friend ( Z ane H ug hes) lef t in her

car around 9:00 a

nd did not return until 2:00 or 3:00 in the morning . Acc ording to Reg ina, Hug hes ha d n o mo ne y

or dr ug s w he n h e le ft , b ut whe n h e re tur ne d, Hu g he s h a d b oth

mon e y and dr ug s.4

J ulius Edward Jones and appe llant w ere at the same club later that night when an investig ator from the she riff’ s depar

tment asked Jones if he would come tr y to identify

“some blac k lady .” Jones followed the inve stigator but could not identify th e wo m an, who was in a body bag . When J ones returne d to the club, appe llant immediately asked Jones what the sher iff’s de partment wa nted. J ones replied, “ [T] hey

wanted us to go out and see could we identify some black la dy

that g ot killed out on the hig hway .” Althoug h J ones did not say or know what highwa

y or how the w oman had died, appellant r esponded, “ That’s S u g ar Junior’s sister.” The rec ord shows that the victim’s brother , Mil burn Sand e rs Jr., wa s n ic kn a me d Su g ar Jun ior . App e lla nt l e ft , w e nt t o Sa

nd e rs ’s ho us e , to ld Sanders that he saw police car s and ambulances at the store whe n he passe d by ear lier, and a dvised Sanders that he might nee d to call the sher iff’s of fice “and se e what’s g oing on.” Jame s H . L ist e r I I Ite sti fi e d th at, on Se pte mbe r 5 or

6, 19 87 , a

pp e lla nt b ro ug ht a

pis tol to L ister and pa

wned it. The pistol “wa s either a .38 or a .357” acc ording to L ister. Other testimony showed that the spe nt bullets rec overe d from the victim’s body and fr om the scene wer e .38 ca liber

and we re fi re d f

ro m a .3 8 c a lib e r c la ss o f w e a

po n, wh ic h in c lud e s a

.3 57 Ma g num. The State a lso called thre e witnesses to whom appellant had made admissions. The first of these witnesse s was Ray

mente Hutchison, a g ood friend of appellant’ s son. Hutchison testified that appellant ha d boasted ove r and over ag ain that “he had g otten awa y with a robbe ry

and murde r.” The

se c on d s uc h w itn e ss w a s L on nie F low ers , who te sti fi e d th a t a pp e lla nt a dmi tte d ta

kin g pa rt in t his offe nse afte r Flowe rs confr onted him with information that Flower s had re ceive d from a third pe rson ind ic a tin g tha

t a pp e lla nt a nd Z ane Hu g he s h a d s tolen th is pers on ’s pis tol and kil le d th e vic tim

. Acc ording to Flower s, appellant told him that, when they went out to the store, they did not g o to the sto re wi th t

he int e nt t o k ill anyon e bu t tha t the “ g un we nt of f an d w e jus t ha d to g o a

he a d a nd fi nis h and do what we had to do.” Finally , the State ca lled J .D. Luckie, who pic k e d a p p e ll a nt up in Amarillo after

the indictment

was handed down in this case
. Appellant asked Luckie why he was bring ing him bac k to Midland. Luckie told him that it was for a capital murder. Appellant said, “You me an Ve rna Pea ce mur der.” Duringthe trip, appe llant continued to question the investiga tors about what they

knew a bout the

c a se and tr ie d to convin c e the m tha t he co uld no t be c on vic te d b e c a us e the re we re no fi ng e rp ri nts , photos, or other e vidence of that ty pe. L uckie testified on rebuttal that appellant ha d confe ssed that he wa s involved in the victim’s murder: “He sa id he sat up all nig ht long try ing to f igur e out what5

offe nses he ha d done that the Statute of L imitations hadn’t run on yet, and he said Ver na Peac e wa s the only one he c ould think of.” Appellant testified a

nd denied having any involvement in this offe nse. Appe llant testified th at h e drove past the store be fore midnight and sa w police c ars. Appe llant also testified that Flowe rs lied, that Luckie lied, that L ister lied, that Penning t o n l i ed , t hat J ones lied, and that Hutchison lied. After revie wing all of the e vidence in a neutra l light, we c annot hold that the evidenc e supporting the ver dict is so weak that the ve rdict is clea rly wrongand manife stly

unjust or that the verdic t is ag ainst the g reat weig ht and pre pondera n ce of the c onflicting evidenc e. Appe llant’s second issue is over

ruled. Constit utionalit y of Punishment I n the third issue, appellant asser ts that the lack of a

punishment hearing

and the imposition of an automatic life se ntence pursuant to T EX
. C ODE C R IM
. P R OC
. ANN
. art. 37.071 (Vernon 2006) violated his rig ht to equal protection of t he law. I n the fourth issue, appellant c ontends that he wa s denied due proce ss of law whe n he wa s denied a hear ing on punishment. S imilar arguments have been ma de and r ejec ted by the cour ts of this S tate. Lai rd

v . S tate , 933 S.W .2d 707 , 7 1 4

- 1 5 ( T e x. Ap p. —H ou sto n [14 th D ist .] 19 96 , p e t. r e f’ d) ; Prate r v . S tate , 9 0 3 S. W. 2 d

5 7 , 6 0 ( T e x. App.—For

t Worth 1995, no pet.). We a g ree with the rea soning a nd the authorities cited in Lai rd and Prater . Appellant’s third a nd fourth issues ar e over

ruled. The judg ment of the trial c ourt is affir med.

J I M R. W RI GHT

CH I EF JUSTI CE J anuar y 30, 2009 Do not publish. See T EX
. R. A PP
. P. 47.2(b). Panel consists of: Wright, C.J ., M c C a l l , J. , an d

S t r an g e , J.