719 S.W.2d 309 (Tex.Crim.App. 1986), 69-271, Burdine v. State

Docket Nº:69-271.
Citation:719 S.W.2d 309
Party Name:Calvin Jerold BURDINE, Appellant, v. The STATE of Texas, Appellee.
Case Date:October 15, 1986
Court:Court of Appeals of Texas, Court of Criminal Appeals of Texas

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719 S.W.2d 309 (Tex.Crim.App. 1986)

Calvin Jerold BURDINE, Appellant,


The STATE of Texas, Appellee.

No. 69-271.

Court of Criminal Appeals of Texas.

October 15, 1986

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[Copyrighted Material Omitted]

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Joe Cannon, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty. and Roe Morris and Ned Morris, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.



Appeal is taken from a conviction for capital murder. V.T.C.A. Penal Code, § 19.03(a)(2). After finding the appellant guilty, the jury returned affirmative findings to the special issues under Article 37.071, V.A.C.C.P. Punishment was assessed at death. We affirm.

The appellant was convicted of intentionally and knowingly causing the death of W.T. "Dub" Wise in the course of committing and attempting to commit the offense of robbery. The appellant raises seventeen points of error. 1 He challenges the admission into evidence of several photographs of the deceased taken at the murder scene and at the autopsy; the admission into evidence of his oral statement; the sufficiency of the evidence to support the jury's finding of guilt; the sufficiency of the evidence to support the jury's affirmative finding to special issue number two; the imposition of the death penalty in light of insufficient evidence that he killed or attempted to kill or intended that life would be taken; and, finally, the trial court's charge to the jury regarding the appellant's oral statement. Since the appellant argues that the evidence is insufficient to support both findings of guilt and future dangerousness, a detailed review of the facts is necessary.

On April 20, 1983, the body of the victim, Wise, was discovered lying face down in the north bedroom of his trailer. Wise's hands and legs were bound with cord, and his mouth was gagged. There was a stab wound on Wise's back and blood in the shoulder area and hair.

The State established through competent medical testimony that the cause of Wise's death was two stab wounds to the back. Wise's scalp was lacerated; his mouth was gagged with socks and a pillowcase. The force of the stab wounds was sufficient to break Wise's rib. One of the knife wounds appeared to have been caused by the knife offered in evidence by the State.

The police determined that several items were missing from Wise's trailer: a television, stereo, musical instruments, wallet, checkbook, handgun, automatic bank teller card, a set of keys, a citizen's band radio, and items of clothing. The serial number on the handgun was entered into the National Crime Information Center computer. The gun was described as a Smith and Wesson revolver, gold- and nickel-plated with pearl handles.

The appellant gave an extrajudicial confession to the murder. He also testified at trial, where he limited his participation in the killing to that of an accomplice to the aggravated robbery of Wise.

Viewed in the light most favorable to the prosecution, the evidence showed that the appellant and Wise met in November of 1982. The two men had a homosexual relationship which continued for approximately three and a half months while the appellant was living with Wise. Wise, a night supervisor at Statewide Security Service, obtained a job at the security company for the appellant.

Eventually, the appellant and Wise quarreled about the manner in which Wise handled the appellant's earnings. The appellant testified that Wise asked him to move from the trailer after the appellant refused to prostitute himself for Wise. The appellant

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moved out, and approximately two weeks later he resigned his job at the security company. According to the appellant, Wise subsequently "put a contract out on him."

The appellant then met Douglas McCreight, a homosexual male, who did not know Wise. On April 18, 1983, the appellant and McCreight decided to go to Wise's trailer in order to get money from him. The money was to be obtained either voluntarily or through robbery. The appellant warned McCreight not to try anything "funny" with Wise in his bedroom, because Wise kept a gun there.

Soon after they entered the trailer, McCreight asked to use the bathroom. The appellant and Wise remained in the living room. When McCreight returned to the living room, he was wearing a pair of gloves and carrying Wise's gun and a large hunting knife. McCreight then ordered Wise to lie on the floor. McCreight removed Wise's glasses, and the appellant directed McCreight to take the cord from the telephone; the cord was used to bind Wise's wrists. The appellant told McCreight that something was needed to keep Wise quiet, because he would "squeal like a pig in a slaughterhouse."

The appellant retrieved a pair of socks, which McCreight stuffed in Wise's mouth, and a section of sheet, which the appellant used to tie the gag in place. At this point, the appellant and McCreight made Wise move to another part of the trailer, where they would be less likely to be seen by a neighbor. The appellant and McCreight began to stack items in the living room by the front door so that they could take them later.

The appellant and McCreight then decided that "something had to be done" with Wise because he could identify the appellant. McCreight cut the electrical cord of a clock radio and bound Wise's legs with it. The appellant and McCreight then unsuccessfully attempted to smother Wise to death. They placed Wise face down on the bed with his face on a pillow. McCreight held a pillow over Wise's head, and the appellant held Wise's feet. Wise thrashed around on the bed so much that McCreight was unable to smother him, and Wise sat up on the bed, whimpering and crying. After further discussion, the appellant directed McCreight to hit the top of Wise's head with a lead-filled police sap. McCreight struck Wise several times; Wise bled profusely and lay still.

McCreight and the appellant then left the trailer, taking the stolen items with them. They discussed Wise and again decided that something needed to be done so that he could not identify the appellant. After re-entering the bedroom, McCreight made the sign of the cross and then stabbed Wise in the back. The appellant then told McCreight, "What the hell, hand me the knife," and the appellant also stabbed Wise in the back.

The appellant and McCreight left the trailer and drove to Austin. While in Austin, the appellant pawned a television set and obtained money from different automatic teller machines using Wise's bank card. The appellant and McCreight proceeded from Austin to California. After they arrived in Eureka, California, they pawned Wise's gun for thirty dollars. Within thirty minutes of this transaction, both men were arrested at a local gas station.

After hearing from the Eureka, California police department that Wise's gun had been recovered, Detectives G.T. Neely and R.W. Holland, both Houston police officers, traveled to California on April 28. They met McCreight and the appellant at the local courthouse. At the appellant's initial appearance before a magistrate, he was given Miranda 2 warnings.

The officers then conducted separate interviews of McCreight and the appellant. The appellant was again given Miranda warnings by Detective Neely. The appellant then gave the officers an oral statement and consented to the search of the

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pickup truck which he had been driving at the time of his arrest.

In the back of the appellant's truck, the officers found a large hunting knife and some property which had been taken from Wise's trailer, including a suitcase, articles of clothing, some eight-track tapes, and several pieces of jewelry. Pursuant to the appellant's statement, Wise's television and ring were recovered in Austin.

At trial, the appellant testified that only McCreight stabbed Wise. However, the appellant admitted that he had anticipated some violence when he and McCreight went to Wise's trailer. He also admitted that he told McCreight where Wise kept his gun, that he warned McCreight that Wise would "scream like a stuck hog," and that he told McCreight to gag Wise and to take Wise to the back of the trailer if he were going "to do anything." Further, the appellant admitted that he took Wise's property, that he used Wise's automatic bank teller card to obtain money in Austin, and that he pawned the television in Austin.

Two representatives of different banks in Austin testified that Wise's automatic bank teller card was used to obtain money in Austin on April 19, 1983. Tapes of the transactions were shown to the jury.

The manager of an Austin pawn shop identified a pawn ticket given on April 19, 1983 to a white male matching the appellant's description when he pawned a Panasonic television and a gold ring. The pawn ticket was signed "Calvin Jerold Burdine."

Ken Anglin, the owner of a Eureka, California pawn shop identified the appellant as the man who, with a companion, entered his store approximately a month after April 18, 1983. The appellant wanted to sell or pawn a Smith and Wesson chrome-plated revolver with a silver-colored trigger and mother-of-pearl grips. After Anglin bought the gun for thirty dollars, the appellant presented a driver's license with the name Burdine on it. Anglin also noted the license plate number of the car in which the appellant and the other man were traveling. After the appellant and his companion left, Anglin telephoned the Eureka Police Department to check the serial number of the gun. Subsequently, a Eureka police officer took Anglin to a local gas station, where he identified the appellant and his companion as the men who sold him the gun. At trial, Anglin identified a gun offered by the State as the same gun that he bought from the appellant. That gun had the same serial number and matched the description of Wise's gun.


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