Allridge v. State

• Citation: 762 S.W.2d 146
• Decision Date: 11 May 1988
• Docket Number: No. 69592,69592
• Parties: Ronald Keith ALLRIDGE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 146

762 S.W.2d 146

Ronald Keith ALLRIDGE, Appellant, v. The STATE of Texas, Appellee.

No. 69592.

Court of Criminal Appeals of Texas,

En Banc.

May 11, 1988.

Rehearing Denied Sept. 21, 1988.

J. Don Carter (court appointed), Bruce A. Ashworth (court appointed), Fort Worth, for appellant.

Tim Curry, Dist. Atty. and C. Chris Marshall, David Chapman, Sharen Wilson and Greg Pipes, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

ONION, Presiding Judge.

This appeal is taken from a conviction for capital murder under V.T.C.A., Penal Code § 19.03(a)(2). The death penalty was assessed by the court after the jury returned affirmative findings to both special issues submitted pursuant to Article 37.071(b)(1) and (2), V.A.C.C.P.

On appeal appellant raises twenty-two points of error. Although appellant does not challenge the sufficiency of the evidence to support the conviction, we will briefly discuss the pertinent facts of this cause.

The record reflects that on March 25, 1985, Cary Jacobs, Lisa Jenkins, and Carla McMillen Otto (the deceased) went to a Whataburger Restaurant on Sycamore School Road in Fort Worth around 12:30 a.m. to eat hamburgers. Jacobs testified that halfway through their meal he heard a loud blast and turned to see three black males walking into the restaurant. One of the men carried a shotgun and two carried handguns. The man carrying a shotgun threw a black bag at the deceased and said: "Fill it up, bitch." Jacobs recalled that the bag fell to the ground and that before the deceased could say anything the man shot her. Jacobs identified the appellant as being the same man who shot Otto. Jacobs had also identified the appellant at a police lineup on March 26, 1985. ¹

Appellant next ordered Jacobs to "pick up the bag." After handing appellant the bag and his wallet, Jacobs backed up against a wall with his hands raised. Jacobs then observed the men leaving the restaurant through one of the glass doors which had been shattered by the first shotgun blast.

Melvin Adams, a Whataburger employee who worked the night shift on March 25, 1985, testified that he was waiting on two customers when he heard a gunshot and then noticed an armed man jump over the counter to grab money from an open cash register. Adams recalled that the "light skinned" black male knocked another register to the floor as he jumped over the counter. The man then jumped back over the counter and fled the restaurant.

While the cash register was being emptied, Adams also heard the appellant saying: " 'Put everything you have in the bag' or something like that." ² Adams explained that he and the appellant had been co-workers at Domino's Pizza and that he (Adams) recognized appellant's voice immediately. Adams later told the police that he had also recognized the appellant as he ran out of the restaurant. The appellant was identified by Adams in open court.

Adams also testified that he heard a total of two shots and that the second shot followed the first by approximately one minute.

Dr. Marc Andrew Krouse, a physician employed as deputy chief medical examiner of Tarrant County, conducted an autopsy on the deceased on March 25, 1985. Krouse observed that Otto had suffered a large wound to the center of the chest described as a "shotgun injury." Krouse noted that the exact size of the injury was one and three-eighth inches in diameter and that there were certain characteristics indicating that the gun was fired from close range. The doctor estimated that the deceased was shot from a range of about 4 1/2 to 14 or 15 feet, because "the characteristics of the wound are such that the shot had not begun to separate significantly from a large column." Dr. Krouse also described the "wound track" as passing from left to right through the right lung, as well as lacerating the right atrium of the heart. The shot also passed into the right posterior chest and came to rest along the right side of the armpit. The cause of death was "hemorrhagic shock," which caused the victim to bleed to death.

Appellant was arrested at his apartment a few hours after the commission of the offense. Paul Kratz, a detective at the time of the offense, testified that appellant was arrested in the presence of his common-law wife, Kathy Jarmon, who signed a consent to search form. ³ Pursuant to her consent to search, Kratz had the apartment and two vehicles parked near the residence searched. Officer Brad Patterson testified that the search of appellant's apartment produced a loaded .22 caliber pistol which was shown to have been fired once, nineteen .22 caliber bullets, and a black nylon bag. All of the items were found between the mattress and box springs of appellant's bed. A .25 caliber semiautomatic handgun was found in a separate bedroom.

Patterson also testified that he searched two vehicles parked outside of appellant's apartment, a 1972 Chevrolet and a 1981 Datsun. The search of the Chevrolet produced a shotgun containing two live shells in the magazine, and a spent shell located in the chamber. The State rested at the conclusion of Patterson's testimony.

Sharon Burns, a "graveyard" manager at Whataburger, testified for the defense. Burns stated that on the night of the offense she observed a black male knock over a cash register as he jumped over the counter for the second time. The register landed in the customer area of the restaurant. Burns also noted that she heard "two or three" popping sounds, although she did not see any of the other accomplices.

Teresa Barton, a customer at the Whataburger, testified as a defense witness that she and a friend (Lenore) were standing at the counter waiting for change when the armed men entered the restaurant. Barton noticed a man with "a long rifle, a long gun," wearing a bright orange or red ski mask. The witness also recalled hearing two shots fired within seconds of each other. On cross-examination it was established that Barton and several friends had been drinking that night, and that she and Lenore went to get something to eat because they were drunk.

Jack Benton, a forensic chemist and firearms examiner called by the defense, identified a .25 automatic caliber cartridge case found at the scene. Benton also tested the "trigger pull" of the shotgun to determine the force required to make the weapon discharge. He determined that the force necessary to pull the trigger of this particular shotgun was 2.5 pounds. Benton found 2.5 pounds of required pressure to be "extremely low," but would not categorize the trigger to be a hair-trigger. Instead, Benson stated: "In my opinion, a hair-trigger is any trigger that applies the force of two pounds or less." On cross-examination it was revealed that Benson had tried to make the shotgun go off accidentally and failed.

The State called Frank Shiller, director of the Fort Worth Police Department Crime Laboratory, as a rebuttal witness. Shiller had also tested the "trigger pull" of the shotgun used during the robbery, and determined the trigger pull to be four pounds. Shiller also conducted test firings of the shotgun to be compared with the clothing worn by the deceased at the time of the shooting. Shiller's conclusion was that "the firing distance from the muzzle of the gun to the target, being the shirt, was less than five feet, but more than contact or near contact."

In his first point of error appellant contends that the trial court erred in overruling his "Exception No. 1" to the indictment. ⁴ Specifically, he argues that the indictment was defective since "the State must not only allege an intentional murder under V.T.C.A., Penal Code, § 19.02(a)(1), but must further allege that the murder was intentionally committed in the course of committing or attempting to commit one of the enumerated underlying felonies in the section [V.T.C.A., Penal Code, § 19.03(a)(2) ]." The indictment, in relevant part, alleged that:

"RONALD KEITH ALLRIDGE ... on or about the 25TH day of MARCH, 1985 did then and there intentionally cause the death of an individual, Carla McMillen Otto, by shooting her with a deadly weapon, to-wit: a firearm, and the said RONALD KEITH ALLRIDGE was then and there in the course of committing and attempting to commit the offense of robbery and aggravated robbery of Carla McMillen Otto; ..."

Appellant's second point of error advances the same argument as it applies to the court's jury charge, alleging that the court erred in refusing his requested instruction on "dual intent" in the capital murder portion of the charge applying the law to the facts. Appellant cites Lamb v. State, 680 S.W.2d 11 (Tex.Cr.App.1984), cert. den. 470 U.S. 1009, 105 S.Ct. 1372, 84 L.Ed.2d 391 (1985), and Livingston v. State, 542 S.W.2d 655 (Tex.Cr.App.1976), for the proposition that "it is not sufficient merely that a murder be intentional, it must be further shown that such intentional murder, if any, was done intentionally in the course of committing or attempting to commit the underlying felony." The record reflects that appellant requested an instruction applying the law to the facts in which the jury would have been required to find that appellant intentionally caused the death of the deceased and that the murder was intentionally committed in the course of a robbery or aggravated robbery. The requested instruction was overruled.

This Court recently addressed the issue of "double intent" and whether a capital murder indictment must allege both an intentional murder and an intentional robbery. Demouchette v. State, 731 S.W.2d 75, 79 (Tex.Cr.App.1986). As in the instant case, Demouchette argued that when §§ 19.02(a)(1) and 19.03(a)(2) are combined, "a person commits capital murder who intentionally causes the death of an individual while intentionally doing so in the course of committing or attempting to commit robbery." Demouchette, supra, at 79-80. We held that the capital murder statut...