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Cunningham v. State

Court of Appeals of Texas, First District

November 7, 2019


          On Appeal from the 207th District Court Comal County, Texas [1] Trial Court Case No. CR2016-899.

          Panel consists of Chief Justice Radack and Justices Keyes and Countiss.


          Sherry Radack Chief Justice.

         A jury found Anthony Jamal Cunningham guilty of the capital murder of Christopher Lowe.[2] The trial court sentenced Cunningham to life in prison as statutorily required.[3] In one issue, Cunningham contends that the evidence was insufficient to support the judgment of conviction.

         We affirm.


         On the night of August 24, 2016, Zoie B.; her mother, Denise; and Zoie's friend, Sunee S., went to a few bars in New Braunfels, Texas. After leaving the last bar, the hood of Zoie's truck flew open, and they could not close it. Sunee called her friend, Luis DeLeon, to come help with the hood.

         Cunningham was DeLeon's friend, and he went with DeLeon to help with Zoie's truck. After some effort, they realized that they did not have the proper tools to fix the hood.

         Zoie's truck was drivable, and the group convinced her to take it to a storage facility where DeLeon rented a storage unit and kept his tools. DeLeon had constructed a makeshift apartment in the storage unit and was living there. As they drove to the storage facility, DeLeon and Cunningham rode in DeLeon's car. Zoie, Denise, and Sunee followed in Zoie's truck.

         Meanwhile, Christopher Lowe had jumped the fence to the storage facility and had entered DeLeon's storage unit to retrieve property, including a cell phone, that had been taken from him. Lowe was still in DeLeon's storage unit as DeLeon's car and Zoie's truck neared the storage facility. When they were about half a mile from the storage facility, Sunee answered a call on Zoie's phone. After ending the call, Sunee immediately called DeLeon. When he answered, Sunee screamed into the phone: "Lowe. Lowe. Get Lowe in the storage unit."

         At the entrance to the storage facility, DeLeon got out of his car, retrieved a baseball bat from the trunk, and got back into the car with the bat. DeLeon then quickly drove away from the entrance into the storage complex. Sunee urged Zoie to follow DeLeon, yelling, "Go, go, go. Get 'em. Get 'em. Go, go, go." Zoie followed DeLeon and within a minute arrived at the storage unit.

         When Zoie pulled up, the overhead door to the storage unit was raised. Inside the storage unit, Lowe was on a bed in the corner. DeLeon was repeatedly striking Lowe with the baseball bat while Cunningham repeatedly punched Lowe with his fists.

         Zoie and Sunee got out of the truck, and Sunee ran into the storage unit. She jumped on the bed and started punching Lowe. Zoie saw DeLeon continually strike Lowe in the head with the baseball bat, and Cunningham repeatedly punched Lowe in the head with his fists. Sunee was standing on the bed over Lowe punching him from above wherever she could land a blow. Lowe was screaming for help and kept a defensive posture with his arms up to protect his head and his legs tucked against his body.

         Disturbed by what she was witnessing, Zoie decided to leave with Denise. However, when she reached the front of the storage facility, the gate would not open without a passcode, which she did not know. Zoie then drove back to the storage unit.

         The door to the storage unit was closed, but after about 30 seconds, the door opened. Inside, Zoie saw Lowe standing up from the bed. DeLeon was striking Lowe in his ribs with the bat telling him, "go, go, go," while Cunningham punched Lowe in the side. Zoie and Denise saw that Lowe was bleeding. DeLeon and Cunningham were yelling at Lowe, ordering him to walk out of the storage unit. Lowe was responding that he could not see. Lowe was unsteady on his feet, appeared disorientated, and had difficulty walking. Cunningham and DeLeon began pushing Lowe out of the storage unit. DeLeon left and moved his car closer to the unit while Cunningham pushed Lowe toward the car.

         DeLeon opened the rear passenger door of his car, and Cunningham forced Lowe into the backseat. Lowe tried to get out of the vehicle; half of his body was inside the car and half was outside. Cunningham slammed the car door into Lowe. Cunningham then pushed Lowe all the way into the car and slammed the door shut. At trial, Zoie testified that she knew Lowe was still alive when Cunningham forced him into the car because she could see Lowe moving and heard Lowe making "pain sounds."

         Cunningham got into the car with DeLeon and they left the storage facility with Lowe. Zoie and Denise followed the car out of the storage facility but later returned. Zoie was worried that DeLeon and Cunningham might return and harm Sunee. Zoie found Sunee cleaning the bloodstains from the storage unit.

         A couple of hours after DeLeon and Cunningham left, they returned to the storage unit without Lowe. DeLeon told Sunee and Zoie that Cunningham had stabbed Lowe "in the forehead" and "in the jugular." Zoie saw Cunningham laughing when DeLeon said that Cunningham had stabbed Lowe in the forehead.

         Lowe's body was discovered later that day in a historic New Braunfels's cemetery. The following day, Zoie and Denise went to the police to report what they had witnessed at the storage facility relating to Lowe's death.

         DeLeon, Cunningham, and Sunee were taken into custody. The police noted that DeLeon and Cunningham each had cuts on their hands known as "slip injuries." At trial, slip injuries were described as injuries typically seen when one person stabs another and loses his ...

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