Black v. State

• Decision Date: 29 May 1991
• Docket Number: No. 69648,69648
• Citation: 816 S.W.2d 350
• Parties: Robert V. BLACK, Jr., aka Bob Black, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 350

816 S.W.2d 350

Robert V. BLACK, Jr., aka Bob Black, Appellant, v. The STATE of Texas, Appellee.

No. 69648.

Court of Criminal Appeals of Texas, En Banc.

May 29, 1991.

James M. Leitner, Houston, for appellant.

Bill Turner, Dist. Atty., Bryan and Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

MILLER, Judge.

Appellant was convicted by a jury of the offense of capital murder. See V.T.C.A.Penal Code sec. 19.03(a)(3). The jury returned affirmative findings to the two special issues submitted under Art. 37.071(b), and the trial judge assessed punishment at death.

I.

Appellant does not challenge the sufficiency of the evidence to support his conviction, but, in his seventh point of error, he challenges the sufficiency of the evidence to support the jury's finding on the second punishment issue. Art. 37.071(b)(2), V.A.C.C.P. ¹ Appellant contends the evidence is insufficient to support the jury's affirmative answer to this issue. When deciding whether the evidence is sufficient to support the jury's finding, we must view the evidence in the light most favorable to the verdict to determine whether a rational trier of fact could have found the elements of Art. 37.071(b)(2) beyond a reasonable doubt. See Keeton v. State, 724 S.W.2d 58 (Tex.Cr.App.1987), and cases cited therein. The jury is entitled to consider all evidence admitted at both phases of trial when deliberating on the special issues, Huffman v. State, 746 S.W.2d 212, 223 (Tex.Cr.App.1988), and we therefore review that evidence adduced at guilt/innocence and punishment.

Appellant was charged with employing someone to murder his wife. Testimony at trial revealed Sandra Black, appellant's wife, was killed by two gunshot wounds to her head on February 21, 1985. John Wayne Hearn, the man allegedly employed by appellant to commit the murder of Sandra, testified at trial and presented the most damaging evidence against appellant. Hearn first came in contact with appellant in October of 1984 when appellant answered an advertisement that Hearn had placed in Soldier of Fortune magazine. At this time, Hearn was living in Gainesville, Florida, and had an operation known as the World Security Group. Appellant, a former Marine who fought in Vietnam, was unemployed at the time and answered Hearn's ad for Vietnam Veterans and persons with military experience for high risk assignment jobs.

Appellant and Hearn, also a former Marine, had several phone conversations before meeting on January 9, 1985, in Brazos County. Hearn was interested in purchasing appellant's gun collection because his security group was gathering weapons to send to the Contras in Nicaragua. During this meeting, appellant told Hearn he would have all the money he (appellant) needed if he did not have a wife and that he and a friend had planned to kill his wife. ² Appellant eventually refused to sell his collection for the agreed price and later sent Hearn a cashier's check for one thousand dollars for his expenses.

Approximately three weeks later, appellant called Hearn and explained that his friend who was going to assist in the murder of his wife had backed out. Appellant asked Hearn if he would drive the second vehicle for him in his murder plan. Hearn eventually agreed to assist appellant and returned to Bryan on February 20, 1985. Appellant agreed to pay Hearn ten thousand dollars for his part in the commission of his wife's murder and one thousand dollars for his expenses.

On February 21, 1985, Hearn met appellant in a Safeway parking lot in Bryan. Hearn left his rental car in the lot and went with appellant to his home. Neither appellant's wife Sandra nor his only child Gary were home at the time. Appellant gave Hearn pieces of Sandra's jewelry as collateral for the $10,000.00 payment and Sandra's pistol which Hearn was to use to murder her. Appellant and Hearn then ransacked the house to give the appearance of a burglary, ³ and appellant left in his El Camino and ran errands with his son to give him an alibi. Hearn waited in the dining room for Sandra to arrive home. While Sandra was moving between the dining room and the kitchen, Hearn shot her two times in the head, killing her. ⁴ He then drove away from the house using Sandra's van, went back to the Safeway where he left the van, got in his rental car and drove back to Houston where he caught the next plane back home.

Besides the actual facts of the offense set out infra, there was testimony during the first phase of trial that appellant discussed killing his wife with David Huber in the fall of 1984 so that he could be with his girlfriend, his first cousin Teresa Hetherington. Appellant suggested Huber could get Sandra in a choke hold to knock her out, pin her underneath her motorcycle in the shed, and then set the shed on fire while appellant and his son jumped on the trampoline. Appellant talked at least twice about burning his wife to death according to Huber. Appellant also suggested Huber could steal a truck and run over Sandra while she was out riding her motorcycle; or he could hit Sandra in the head with a baseball bat and dump her body and motor bike over a bridge; or he could fake a robbery or rape of Sandra and shoot her with one of appellant's guns. Huber did not believe appellant was serious about killing his wife because he thought appellant fantasized; but then appellant offered him payments for killing Sandra. As a result, Huber's friendship with appellant "cooled" in late December of 1984.

Gordon Matheson worked with appellant in the fall of 1984. He stated appellant hated his wife, was "obsessed" with his girlfriend Teresa, and often discussed his personal problems with him. Appellant asked Matheson to assist him in killing Sandra by driving a car which appellant could jump into after crashing Sandra's van with her in it. If Sandra did not die in the crash, appellant told Matheson he would "beat her in the head with a club." Appellant offered Matheson one-half of a one hundred thousand dollar life insurance policy he had on Sandra for his participation in this killing.

Don Ballard sold appellant a one hundred thousand dollar insurance policy on his wife in late January 1985. Sandra paid for this new policy. Appellant's prior coverage on his wife had only been fifty thousand dollars. There was testimony the new policy became effective February 13, 1985, just eight days before Sandra's murder. Ballard stated appellant asked him on the way to Sandra's funeral whether the insurance would pay off, but that it is "not totally unusual" for someone to be concerned about insurance at that time.

At the punishment phase of trial, Mark Huber, David's brother, testified appellant discussed killing his wife with him as far back as 1982 or 1983. Appellant offered Huber five thousand dollars to kill Sandra and actually paid him five hundred dollars as a "downpayment." Appellant discussed how he wanted Sandra killed and suggested either shooting her or running her over with a truck. Huber never intended to participate in Sandra's murder, and two weeks later appellant rescinded this offer. David Huber was recalled as a witness by the State during punishment and he testified appellant told him he could clear his brother's debt by killing Sandra himself. David Huber also stated appellant discussed killing his girlfriend's husband by dumping him in an abandoned well and covering it with cement. There were two other witnesses who stated appellant had commented he wanted to kill his wife or his girlfriend's husband.

The victim's mother, Marjorie Eimann, testified at punishment appellant had physically thrown Sandra through a screen door during an argument approximately ten years ago. Apparently around that same time, appellant chased Sandra's mother from their home. The final witnesses for the State during punishment were from the Brazos County Jail where appellant was being held awaiting trial. A deputy sheriff testified he found maps of the jail and the surrounding grounds and wire in appellant's cell during a shakedown, implicating a possible escape attempt. Additionally, a fellow inmate testified appellant had talked about escaping.

The defense called numerous witnesses during the punishment phase in an effort to present mitigating evidence. Several of the witnesses had worked with appellant when he was an electrician and testified he had been a good worker. There was extensive testimony on appellant's involvement with the Boy Scouts not only while he was growing up but also with his son. Besides being an Eagle Scout, appellant earned numerous honors in scouting and had served as a Scout Master. Further testimony revealed appellant attended Texas A & M university for approximately two years, but quit school and joined the Marines. While in the Marines, appellant was awarded the Blues Award, meaning he was the distinguished Marine in his platoon. Appellant also served his country in Vietnam, but when he returned home to Bryan he was unemployed for three or four years during which time Sandra predominantly supported him. Other witnesses testified appellant, who was approximately 39 years old at the time of his trial, had not been a mean or vicious child, and he was helpful and understanding with one of his son's friends who suffers from a physical and emotional handicap. No psychiatric evidence was offered nor was appellant shown to have a prior criminal record. A Baptist minister testified he had been counseling appellant since Sandra's murder on a weekly basis until November of 1985 when he began monthly sessions. On the basis of this evidence, the jury answered affirmatively "there is a probability that [appellant] would commit criminal acts of violence that would constitute a continuing threat to society[.]" Art. 37.071(b)(2).

The issue of sufficiency of the evidence at punishment has been presented to this Court and discussed innumerable times, so we feel another...