COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-10-00073-CR

MALCOLM JAMAR STRICKLAND 

A/K/A MALCOLM J. STRICKLAND

APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

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MEMORANDUM OPINION1

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I. Introduction

In one issue, Appellant Malcolm Jamar Strickland a/k/a Malcolm J. 

Strickland asserts that the evidence was legally and factually insufficient to 

support his capital murder conviction. We affirm.

 

1See Tex. R. App. P. 47.4.
2

II. Procedural Background

The indictment alleged that Appellant intentionally killed Michael Myers by 

shooting him with a firearm while in the course of committing robbery. See Tex. 

Penal Code Ann. ' 19.03(a)(2) (West Supp. 2011). The State did not seek the 

death penalty. Appellant pleaded not guilty to capital murder, but the jury found 

him guilty of that offense. The trial court sentenced Appellant to life 

imprisonment without parole. See id. ' 12.31 (West 2011).

III. Analysis

In his sole issue, Appellant asserts that the evidence fails to establish that 

he had the requisite intent to murder Myers in the commission of a robbery. 

Appellant contends that he intended to commit theft and that he shot Myers ―not 

with the intent to murder [him], but out of fear because Myers was attacking him 

with weapons.‖

A. Applicable Facts

In the early morning hours of April 21, 2008, fifty-nine-year-old Myers, the 

night clerk at a Tarrant County Best Western motel, was found shot to death 

behind the check-in counter. Hotel surveillance video cameras inside and 

outside the motel captured the assailant’s actions before and after the offense. 

News channels aired portions of the video, and the police received a crime 

stoppers tip the next day. The police arrested Appellant two days after the 

offense.
3

The video footage showed that two individuals (later identified as Appellant 

and Jay Allen) entered the Best Western at approximately 1:39 a.m. They 

approached the check-in counter and then immediately exited the motel. 

Approximately two hours later, Appellant appeared back inside the motel alone 

wearing sunglasses and different clothes, and he roamed the halls for several 

minutes holding a silver handgun by his side. He then entered the front lobby 

from an inside hallway and jumped over the check-in counter into the workspace 

behind it. Less than thirty seconds later, Appellant jumped back into the lobby, 

waited a few seconds, and then jumped back over the counter. Approximately 

two minutes later, Appellant jumped over the counter, into the lobby, and exited

out the front door. The surveillance camera above the check-in counter that 

could have captured Appellant’s actions, was not working at the time.

Appellant gave two statements to investigators. During his interview three 

days after the offense, Appellant claimed that when he entered the lobby alone 

the second time (after selling drugs to a motel guest), he did not see anyone 

behind the counter, saw the open cash register, and decided to ―steal 

something.‖ When he jumped over the counter, he saw a man lying on the 

ground with a gunshot wound to his throat, still alive but ―dying slowly.‖ He 

immediately left the scene and did not call 911 because he did not want to get 

involved.

Approximately one month later, Appellant admitted to lead investigator 

Detective Frank Serra that after he returned to the Best Western alone, jumped
4

the counter, and put the cash register money into his pocket, Myers ―rushed‖ 

toward him with a three-hole punch, ―pushed him,‖ and was about to ―whoop [his] 

ass.‖ Appellant ―froze,‖ closed his eyes, and ―just shot and ran.‖ When asked 

about the other two shots, Appellant stated, ―I think I hit him once, and I guess I 

kept shooting.‖ Appellant also stated that he ―pulled the trigger‖ but that he did 

not remember how many times. Appellant explained that Myers was ―just going 

to beat me up or something and hold me until the police come.‖ Appellant stated, 

―I told [Myers] I didn’t want to shoot him when he pushed me on the ground. I 

know I tried to talk to the dude.‖ Appellant explained that he was ―on too many 

pills‖ and that it ―just happened.‖ When asked about Myers’s missing wallet, 

Appellant denied taking it. When confronted with evidence that he did, however, 

he stated he did not remember taking it.

At trial, Appellant’s longtime friend Antonio Smith testified that Appellant 

came to his apartment (at the Sun Ridge Apartments near the Best Western) the 

morning of the offense. Appellant was panicky and pacing, had small blood 

spots on his shirt, and had a gun in his back pocket. Appellant tossed a wallet on 

the bed containing Myers’s identification, other ―cards,‖ and two dollars. 

Appellant repeatedly stated, ―I just shot somebody,‖ and ―The dude got up and it 

went wrong.‖2

 

2A maintenance man at the Sun Ridge Apartments found the wallet in the 

trash can and turned it in to his manager, who turned it in to the authorities.
5

Shakitha Titus testified that Appellant was a friend and that she picked him 

up at the Sun Ridge Apartments the morning of the offense. Titus drove 

Appellant around that day and at one point asked him what happened at the 

motel. Appellant explained that he had been ―high‖ at the time, not in his right 

mind, and had gotten scared when the man, who was bigger than he was, 

grabbed at him; Appellant thought the man was going to take the gun from him. 

Appellant told Titus, ―It was an accident. It was self-defense,‖ and Titus testified 

that Appellant was very remorseful.

Ashley Williams testified that she saw Appellant the evening after the 

offense when she was standing outside her apartment talking to her friend Briana 

Petite. Appellant walked up, talked to them, and stated he had killed the man in 

the motel. Williams recounted Appellant’s statements that the man had come up 

on him like he was going to punch him in the face and that Appellant had shot 

him in the neck, head, and chest. Appellant also stated he had taken more than 

one Xanax before the offense and had acted in self-defense.

Tim Franklin testified that he had been at Williams’s apartment that 

evening and had overheard Appellant talking on a phone. Franklin heard 

Appellant say that he killed ―the dude,‖ that he did not want to do it, that he 

watched ―the dude die,‖ and that he had to ―get away‖ because he did not want 

anyone to know what he had done.

Kim Simon, the mother of Appellant’s girlfriend Laquita Reaves (with whom 

Appellant had a child), testified that she recognized Appellant from a recording of 
6

the video on the nightly news. She stated that Appellant came to her home 

within a day or two of the offense. When Appellant watched the video footage of 

the offense, he cried and claimed he did not know what happened. Simon 

advised Appellant to turn himself in to authorities but drove him to the Trinity 

River so he could ―throw away a gun.‖ Simon assumed it was the gun he used at 

the Best Western, and she saw Appellant throw the ―wrapped up‖ gun into the 

water. Simon did not initially call the police but eventually showed them the area 

where she believed Appellant had thrown the gun. The gun was never 

recovered.

Tarrant County Deputy Medical Examiner Dr. Lloyd White testified that 

Myers’s autopsy revealed three gunshot wounds—one to the upper left front of 

the neck and two to the right front chest. In Dr. White’s opinion, the cause of 

death was ―penetrating handgun wounds of the chest‖ (each of which would have 

been fatal), and the manner of death was homicide. Dr. White testified that he 

could not determine whether the shooting occurred while Myers was standing, 

kneeling, or sitting. Dr. White testified that the shots were fired from an 

―indeterminant‖ range, meaning ―somewhere between contact and typically 

around 18 inches or two feet or so,‖ specifically, ―beyond a foot or foot and a half, 

particularly for the neck wound.‖3 Appellant’s expert estimated that Appellant 

 

3He explained that if the weapon had been available to test fire, an 

evaluation concerning any powder residue on the clothing could have yielded a 

more precise distance.
7

shot at Myers from a distance of one to three feet. The medical examiner’s 

investigator, Michael Floyd, testified that the blood scene evidence indicated that 

Myers had tried to get to the telephone before he died.

Appellant testified that at the time of the offense he was eighteen years old 

and made money by selling small quantities of cocaine and marijuana to guests 

staying at the Best Western and two other nearby motels. He explained that in 

the hours before the incident, he had been smoking marijuana, drinking beer, 

and had ingested eight to nine Xanax4and that he ―wasn’t sober‖ and ―wasn’t in 

[his] right mind.‖5 He testified that he had obtained the gun only a few hours 

before the offense when a friend asked him to hold his pistol while he made a 

drug sale. When the friend did not return, Appellant left the area with the gun, 

which was already loaded.

Appellant explained that he and Jay Allen initially went into the Best 

Western to get change for a hundred dollar bill and encountered Myers, who 

immediately said he did not have change and closed the open cash drawer. 

 

4

Forensic toxicology consultant Dwayne Fuller testified on Appellant’s 

behalf. He explained that Xanax is an anti-anxiety medication that is sometimes 

used to treat depression and that it can cause loss of memory; the higher the 

dose, the stronger the effects. Fuller testified that the person would have ―trouble 

storing the memories . . . of the events . . . taking place . . . at the time [he or she 

was] under the influence of this drug.‖

5When the prosecutor stated on cross-examination, ―You look mighty agile 

for somebody who’s that drunk,‖ Appellant responded, ―I have a high tolerance 

for the pills. I been popping pills for a long amount of time and they don’t—they 

don’t just do me like they’ll do somebody the first time who pop them.‖
8

Appellant testified that a couple of hours later he went back to the Best Western 

alone. The following dialogue occurred: 

Q. [Defense Counsel]: What was your purpose of going 

[to the Best Western]?

A. [Appellant]: To make a drug sale. Then I – I – I – I –

I was fixing to go down the hallway because I remembered 

that cash register being open. I popped all those pills and I 

was thinking I got to go in there and go in the cash register 

and take all the money out. 

. . . . 

Q. When you went around that corner, did you see Mr. 

Myers there?

A. No, sir.

Q. So when you did not see him, what was your plan?

A. Jump the counter and get that register open.

. . . .

Q. When is the first he confronted you or you 

confronted him?

A. I jumped over the register deal like I thought I was 

going to do. . . . I was going through – I had my hand on it and 

going through it and I was putting [money] in my pocket.

. . . . 

And I put it in my pocket and I heard somebody yell, 

What the hell are you doing? And before I looked back, he hit 

– hit me and he had some – and I don’t know – I – I told them 

it was a three-ring hole punch, but that was just all I seen was 

something black. I don’t know. 

. . . .
9

Q. [What] [w]as he saying to you? 

A. Yeah. First he was like ―What the hell are you 

doing?‖ He probably wasn’t going to kill me, but he said he 

was . . . . 

Q. What exact words?

A. ―What the hell are you doing?‖ And he hit me with 

the thing and he kept asking ―What are you doing?‖ He said, 

―I’m going to kill your ass.‖ And he kept asking ―What are you 

doing? When he – when he caught me, I just froze. And 

when he hit me and stuff, I didn’t know what to do. But he 

kept attacking me so I had to – I had to do that.

Q. When you shot, where was the gun? Where was 

the gun? Do you know?

A. It was on my waist. He didn’t see the gun. 

Otherwise I don’t think he would have done — if I had the gun 

out, if I would have robbed him – I could have robbed him from 

the other side of the [counter].

. . . . 

Q. When you finally got the gun out, what did you do, 

[Appellant]?

A. I got it out, he pushed me. He – I fell back – back 

against the – I didn’t fall back against him, but I felt someone –

when he was coming, I dodged. I – I thought he was going to 

hit me and I dodged. I just shot in his vicinity where he was. 

. . . I thought I shot him once.

[Emphasis added.] 

The trial court’s charge instructed the jury to determine, in turn, whether 

Appellant was guilty of capital murder, felony murder, simple murder, or not 

guilty. See Tex. Penal Code Ann. '' 19.02(b)(1)–(3) (West 2011), 19.03(a)(2). 
10

Appellant’s theory of defense in his testimony and his counsel’s closing argument 

was that he did not possess the requisite intent to murder Myers and that he was, 

at most, guilty of the lesser-included offense of felony murder. The jury found 

Appellant guilty of capital murder. The charge instructed the jury that voluntary 

intoxication does not constitute a defense to the commission of a crime. See id.

' 8.04 (West 2011).

B. Applicable Law

As relevant in this case, a person commits capital murder if he intentionally 

commits murder in the course of committing or attempting to commit robbery.6 

See id. ' 19.03(a)(2). A person commits robbery if, in the course of committing 

theft, he intentionally or knowingly causes bodily injury to another. See id. '

29.02(a) (West 2011). The State must prove a nexus between the murder and 

the theft, i.e., that the murder was committed to facilitate the taking of the 

property. Cooper v. State, 67 S.W.3d 221, 223 (Tex. Crim. App. 2002); Ibanez v. 

State, 749 S.W.2d 804, 807 (Tex. Crim. App. 1986).

―A person acts intentionally . . . with respect . . . to a result of his conduct 

when it is his conscious objective or desire to . . . cause the result.‖ Tex. Penal 

 

6Capital murder requires an intent to kill. See id. ' 19.03(a)(2). In 

comparison, ―felony murder‖ is an unintentional murder committed in the course

of committing a felony. Id. ' 19.02(b)(3); Fuentes v. State, 991 S.W.2d 267, 272 

(Tex. Crim. App., cert. denied, 528 U.S. 1026 (1999). Noncapital murder 

includes intentionally or knowingly causing an individual’s death or intending to 

cause serious bodily injury and committing an act clearly dangerous to human life 

that causes an individual’s death. Tex. Penal Code Ann. ' 19.02(b)(1), (2).
11

Code Ann. ' 6.03 (West 2011). Intent is a fact question for the jury, and it is 

almost always proven by circumstantial evidence. See Hart v. State, 89 S.W.3d 

61, 64 (Tex. Crim. App. 2002); see also Gardner v. State, 306 S.W.3d 274, 285 

(Tex. Crim. App. 2009), cert. denied, 131 S. Ct. 103 (2010). A jury may infer 

intent from any facts that prove its existence, including acts, words, and conduct 

of the accused; method of committing the crime; and the nature of wounds 

inflicted on victims. See Hart, 89 S.W.3d at 64; Conner v. State, 67 S.W.3d 192, 

197 (Tex. Crim. App. 2001); Sholars v. State, 312 S.W.3d 694, 703 (Tex. App.—

Houston [1st Dist.] 2009, pet. ref’d), cert. denied, 131 S. Ct. 156 (2010). A jury 

may infer intent to kill from the use of a deadly weapon in a deadly manner. See

Brown v. State, 122 S.W.3d 794, 800 (Tex. Crim. App. 2003), cert. denied, 541 

U.S. 938 (2004); see also Ex parte Thompson, 179 S.W.3d 549, 556 n.18 (Tex. 

Crim. App. 2005) (―It is both a common-sense inference and an appellate 

presumption that a person intends the natural consequences of his acts, and that 

the act of pointing a loaded gun at someone and shooting it toward that person at 

close range demonstrates an intent to kill.‖ (internal citations omitted)). In the 

case of a capital murder committed in the course of a robbery, there is no 

requirement that the intent to cause death be premeditated or formulated prior to 

the commission of the robbery. See Rousseau v. State, 855 S.W.2d 666, 674

(Tex. Crim. App.), cert. denied, 510 U.S. 919 (1993). Rather, the intent to cause 

death must only have been formulated when the actor commits the murder. See

id.
12

C. Standard of Review

In our due-process review of the sufficiency of the evidence to support a 

conviction, we view all of 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 crime beyond a reasonable doubt.7 Jackson v. Virginia, 443 U.S. 

307, 319, 99 S. Ct. 2781, 2789 (1979); see Adames v. State, 353 S.W.3d 854, 

859 (Tex. Crim. App. 2011), cert. denied, 80 U.S.L.W. 3462 (U.S. Mar. 19, 2012) 

(No. 11-944).____S. Ct. ____ (2012). We defer to the jury’s determinations of 

credibility and may not substitute our judgment for that of the factfinder. See 

Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We ―determine 

whether the necessary inferences are reasonable based upon the combined and 

cumulative force of all the evidence when viewed in the light most favorable to 

the verdict.‖ Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). 

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 v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

D. Analysis

Appellant contends that his intent was to commit theft and that he shot 

Myers ―not with the intent to murder [him], but out of fear because Myers was 

 

7Because the court of criminal appeals has eliminated the factual 

sufficiency standard of review from this state’s criminal jurisprudence, Brooks v. 

State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010), we determine only whether 

the evidence is sufficient to support the jury’s verdict.
13

attacking him with weapons.‖ In support, he points to his own testimony and 

statements and some of the physical evidence.8

Even if Appellant’s main objective was to steal money, such an objective 

does not foreclose a finding that he later formed the intent to kill Myers. See

Robertson v. State, 871 S.W.2d 701, 706–07 (Tex. Crim. App. 1993), cert. 

denied, 513 U.S. 853 (1994) (holding that appellant’s claim that he returned to 

house solely to steal drugs did not constitute evidence that he could not have 

formulated an intent to kill between returning to the house and shooting the 

victim); Rousseau, 855 S.W.2d at 674; see also Threadgill v. State, 146 S.W.3d 

654, 664–65 (Tex. Crim. App. 2004) (noting that, although the defendant’s main 

objective was to steal the car, this did not foreclose a finding that he intentionally 

killed the victim when he shot at him at close range in the back of the car); 

Gonzalez v. State, 296 S.W.3d 620, 626–27 (Tex. App.—El Paso 2009, pet. 

ref’d) (―While the [video]tape may show a possibility at some point during the 

robbery that A.C. did not intend to kill Potts, it does not amount to evidence that 

A.C. did not intend to cause his death at the time of the shooting.‖).

 

8

For instance, Appellant elicited from Detective Serra that the physical 

evidence was consistent with Appellant’s story that Myers was not near the cash 

register when Appellant first jumped over the counter and that Myers came at 

him with a three-hole punch. He also relies on Detective Serra’s ―admissions‖ on 

cross-examination that it was logical to assume that no one was standing behind 

the counter when Appellant jumped over it, that Myers was much larger than 

Appellant, that Appellant shot him because he was ―mad‖ and going to ―whoop‖ 

him, and that Appellant claimed his eyes were closed when he fired.
14

The evidence demonstrated that Appellant entered the motel with a loaded 

gun and that he pulled the trigger three times, fatally shooting Myers twice in the 

chest. Additionally, Appellant admitted to Detective Serra during his second 

interview, ―I think I hit him once, and I guess I kept shooting,‖ and ―I pulled the 

trigger; I don’t remember how many times.‖ Indeed, Appellant made several 

admissions that belie his claims that he did not have the intent to kill Myers, 

including that he ―tried to talk‖ to Myers, that he told Myers he did not want to 

shoot him, and that he ―had to do that‖ because Myers kept attacking him.9 

Appellant also stated that he thought Myers was going to beat him up and call 

the police; there was also evidence that Myers was trying to reach the telephone 

when Appellant shot him, which the jury could have reasonably inferred that 

Appellant’s actions were intentional and not merely done as a reflex or in fear. 

Appellant then fled the scene and did not call 911. The jury could have rationally 

determined beyond a reasonable doubt that Appellant intentionally caused 

Myers’s death. See Ex parte Thompson, 179 S.W.3d at 556; see also Gonzalez, 

296 S.W.3d at 626–27 (―The fact that A.C. shot Potts in the chest with a .22 and 

fled the scene with Appellant reinforces the notion that there was intent to kill.‖); 

 

9

In addition to these incriminating admissions, the jury could have 

considered that Appellant gave several differing explanations for his actions, 

including that he found Myers already shot and dying, that he shot Myers by 

accident, that he shot Myers because he ―got up,‖ that he shot Myers in selfdefense, and that he shot in the vicinity of Myers with his eyes closed. See 

generally Guevara v. State, 235 S.W.3d 45, 50 (Tex. Crim. App. 2004) (holding 

that inconsistent statements and implausible explanations are also probative of 

wrongful conduct and are circumstances of guilt).
15

Motilla v. State, 78 S.W.3d 352, 359 (Tex. Crim. App. 2002) (indicating that 

decision to fire more than once is evidence of intent to kill).10

Appellant refers us to two cases. See Robertson, 871 S.W.2d at 705; 

Ibanez, 749 S.W.2d at 807. In both Robertson and Ibanez, the defendants 

admitted intentionally killing their victims but maintained they were not guilty of 

capital murder because the property they stole was an afterthought. Here, 

Appellant maintains he did not intentionally kill Myers but admits he intended to 

steal money. Indeed, there is evidence that Appellant formed the intent to obtain 

or maintain control of the victim’s property either before or during the commission 

of the murder. See Conner, 67 S.W.3d at 197 (―If there is evidence . . . from 

which the jury could rationally conclude beyond a reasonable doubt that the 

defendant formed the intent to obtain or maintain control of the victim’s property 

either before or during the commission of the murder, then the State has proven 

that the murder occurred in the course of the robbery.‖).

Applying the Jackson criteria to the facts of this case, we hold that a 

rational trier of fact could have found beyond a reasonable doubt that Appellant 

committed capital murder.

 

10See also Goad v. State, 354 S.W.3d 443, 455 (Tex. Crim. App. 2011) (―If 

a record contains only circumstantial evidence of deliberate conduct, such as 

evidence that a victim was shot repeatedly, the State may properly rely on that 

evidence to establish that the defendant’s acts were intentional.‖) (Alcala, J., 

concurring).
16

IV. Conclusion

Having overruled Appellant’s sole issue, we affirm the trial court’s 

judgment.

ANNE GARDNER

JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and GABRIEL, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: March 22, 2012