PD-1233-19 02/26/2020
“Is the Fifth Court of Appeals right, or are the First and Second Courts of Appeals right? Should murder always be anticipated as a potential result of robbery?”
George and Rodney Range entered the decedent’s hotel room to rob him after two prostitutes George knew said the decedent had a large amount of cash. According to one prostitute, the decedent charged the robbers as they entered and Range put a choke hold on and fought with him. Range eventually restrained the decedent on the bed with zip ties on his hands and feet. The prostitute claimed George stood there and tried to calm her down because she was freaking out. Prior to trial, however, she told police George was the aggressor in the fight and got the decedent under control before Range applied a choke hold. The decedent was left face down on a pillow on the bed, where he was found dead by housekeeping. The medical examiner said he died as a result of homicidal violence including asphyxia and blunt-force injuries.
George was tried for capital murder in the course of committing and attempting to commit robbery. The jury was instructed on liability as a principal and party, and on the lesser-included offenses of murder and manslaughter. He was denied an instruction on robbery. George was convicted of capital murder and sentenced to life without parole.
George appealed on both the sufficiency of the evidence and the denial of a robbery instruction. The court of appeals held that there was sufficient evidence to convict George under any theory of principal or party liability. “Even if appellant did not actually kill decedent, he should have anticipated that Range might react violently when confronted by decedent after barging into the hotel room.” See Tex. Penal Code § 7.02(b). The court also rejected his “lesser” claim because there was no affirmative evidence that (1) there was no murder; (2) the murder was not committed in furtherance of a conspiracy; or (3) the murder should not have been anticipated. “To the contrary, when one decides to steal property from another, he should anticipate he or his co-conspirator might be confronted by that individual and that his co-conspirator might react violently to that confrontation.”
George challenges the denial of the robbery instruction. He attributes it to the above statement, which he says is errant. Viewed properly, the evidence that he just stood there while Range killed the decedent and that the prostitute said the intent was just to get money, combined with the absence of weapons or a stated intent to kill, entitled him to the instruction. George claims he was harmed despite the submission of two lesser-included offenses because neither homicide offense gave the jury a vehicle for not finding causation or anticipation of death. See Saunders v. State, 913 S.W.2d 564, 574 (Tex. Crim. App. 1995) (“Failure to convict of one lesser included offense will not invariably render harmless any error in refusing to submit another lesser included offense that is also raised by the evidence.”).
