# Nelson v. State

> Court of Criminal Appeals of Texas · November 25, 1992 · 848 S.W.2d 126

URL: https://www.frixlaw.com/law-library/cases/9645833

## Case

- **Full name:** Marlin Enos NELSON, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** November 25, 1992
- **Citations:** 848 S.W.2d 126; 1992 Tex. Crim. App. LEXIS 220; 1992 WL 358404
- **Precedential status:** Published
- **Opinion:** Dissent by Clinton
- **Judges:** Benavides, Baird, Clinton, Miller, Overstreet, Maloney
- **Cited by:** 116 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9645833

## How later opinions describe it (automated extraction)

- holding that even if jury believed that defendant killed the complainant because the complainant looked at him with desire, the jury could also believe that defendant killed the complainant in the course of committing robbery
- concluding evidence supported a murder in the course of committing robbery when the defendant was in financial difficulties, which indicated a possible motive for the crime, and likely took valuables to support a drug habit
- holding no preservation of error because trial court did not deny request for additional peremptory challenge and defendant did not identify objectionable juror

## Opinion text

CLINTON, Judge,
dissenting.
In my view the evidence is insufficient to support the jury verdict that appellant committed murder in the course of robbery. The evidence shows without serious dispute that after the assault appellant went through Howard’s property, took some valuables, and then took his car. That appellant in fact ultimately took valuable property belonging to Howard is certainly evidence showing that he formulated an intent to obtain or maintain control over the property at some point in time. There is nothing in the evidence to lead a rational juror to infer, however, that the requisite intent was formulated before or during the homicide, and not afterwards. The record presents no rational basis to prefer either theory. This is no more than to say that as to the element of specific intent, the State *139 has failed to carry its burden of production. Looking at all the evidence in the light most favorable to the verdict, I do not see how a rational trier of fact could decide beyond a reasonable doubt when the intent to take Howard’s property was formed.
Today the majority sanctions jury confabulation; plugging evidentiary gaps with speculation about what might have happened that is at least consistent with what the State has proved. But confabulation is not itself proof. We should reverse the judgment of the trial court in this cause and remand for entry of a judgment of acquittal. Because the Court does not, I respectfully dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9645833. Public record. Not legal advice.