Anderson v. State

• Decision Date: 09 October 1985
• Docket Number: No. 69134,69134
• Parties: Larry Norman ANDERSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 868

701 S.W.2d 868

Larry Norman ANDERSON, Appellant, v. The STATE of Texas, Appellee.

No. 69134.

Court of Criminal Appeals of Texas,

En Banc.

Oct. 9, 1985.

Rehearing Denied Dec. 18, 1985.

Joe Cannon, Kristine C. Woldy, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty. and Don Clemmer and George Lambright, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

MILLER, Judge.

This is an appeal taken from a conviction of capital murder, V.T.C.A. Penal Code, § 19.03. The death penalty was imposed after the jury answered affirmatively the special issues submitted under Art. 37.071, V.A.C.C.P. Appellant alleges five grounds of error. We affirm the conviction.

In ground of error number one appellant contends that the evidence is insufficient to support a conviction for capital murder since there is evidence to support a theory other than that of appellant's guilt. In ground of error number three, appellant contends that there is no evidence to show that appellant committed the murder in the course of robbery. In order to address his contentions, a recitation of the facts is necessary. ¹

On December 10, 1981, appellant was released from an Arkansas penitentiary where he had been serving time for robbery and possession of stolen property offenses. He went to Houston, and was hired by his uncle, who allowed him to live in a kitchen that had been converted into a bedroom at his office. A few blocks away from appellant's room, Zelda Lynn Webster, the deceased, was employed as the manager of She Lee's Lounge. A bartender at the lounge stated that appellant was a patron of She Lee's and had twice asked the deceased for a date. Both times the offer was refused.

On March 29, 1982, the deceased was tending bar and had placed her purse at the back of the bar. Just after midnight, appellant was seen in the bar. A short time later, Officer John Kleboski of the Houston Police Department was flagged down by two men on motorcycles and then went to the club. ² He found the deceased's car parked alone in front of the club. The door to the club was open, and he found a flashlight on the floor. He was unable to locate anyone running the bar. He did find three "bikers" and one female inside the bar. After speaking with them, he called the owner of the club and asked her to meet him there. He noticed that the keys had been left in the keyhole of the trunk of the deceased's car.

At first when the owner arrived, she was not disturbed by the deceased's disappearance. The officer left and returned to his regular patrol. Later, however, when the owner found the deceased's shoes behind the bar, she became concerned. She looked into the trunk of the deceased's car and found the bar ledger and a shotgun, which belonged behind the bar, but no sign of the bank bags which were normally kept in the bar. The owner further testified that when the deceased usually left the bar after closing, she was to set the burglar alarm and lock the door. She would place the money taken in that night in a bank bag which she placed in her purse. When the club owner finally realized that things were amiss, she called the police and Officer Kleboski was again dispatched to the scene.

Meanwhile, at approximately 2:20 a.m. on March 30, Trooper Gary Stone of the Department of Public Safety was on routine patrol near the Addicks Dam in west Harris County when he received a report regarding a vehicle driving without its headlights. Knowing that there were only three ways out of the area in which the vehicle had been seen, Stone drove on a route which he believed would bring him in contact with the suspicious vehicle. Stone had an unobstructed view of the roadway for approximately two miles ahead. Suddenly, at a distance of a quarter of a mile, Stone saw a vehicle's headlights being turned on. When the lights came on, Stone observed that the vehicle was already on the roadway and traveling in his direction. He stopped the vehicle.

When he approached the vehicle, Stone observed appellant behind the wheel. Stone saw that appellant's hands and clothes were covered with blood. Appellant explained that he had just been involved in a fight on Longpoint Drive. Stone patted down appellant's clothing for weapons, and placed him in his patrol car. Stone noticed that appellant had an empty knife sheath attached to his belt.

After calling for a back-up, Stone walked to the back of the pickup and saw fresh blood dripping from the tailgate. In the pickup bed, Stone saw a number of bloody paper towels and an overturned garbage can which contained a large amount of blood. Stone again talked to appellant who explained that he had been shooting rabbits but had thrown them away because they were too small.

Looking inside the cab, Stone found two money bags and a ski mask on the floor under some newspaper. Both bags were full of money, and appellant claimed that they belonged to him. Stone also discovered a lock-blade knife in the rear of the truck near the tailgate. The blade was covered with blood. Stone also observed a bloody fingerprint on the tailgate.

At 2:30 a.m., Officers Quinn and Ivy with the Houston Police Department arrived at the scene to assist Stone. Stone read appellant his rights and Quinn gathered evidence, including the bank bags, ski mask, knife, hair from the trash can, and dried blood from appellant's hands. The officers searched for evidence regarding appellant's claim that he had been shooting rabbits, but nothing was discovered. At approximately 4:30 a.m., appellant was taken to the Houston Police Department Central.

After their arrival, Houston Police Department Detectives D.R. James and J.C. Mosier read appellant his rights and asked him if he knew anything about the deceased's disappearance. Appellant stated that he did not want to discuss the matter, but did consent to the taking of various samples and specimens.

The officers were with appellant in the crime laboratory until about 8:00 a.m. After the samples were taken and appellant's clothes were returned to him, and after the paperwork was completed, Quinn took appellant to the Municipal Courts Building, one block away from the police station. At 9:20 a.m., March 29, Judge C. Herdingsfelder advised appellant of his rights. Appellant indicated that he understood the warnings and did not wish to speak with an attorney. Quinn took appellant back to the homicide division.

When they returned to the police station, appellant was taken to a main office in the Homicide Division. Detective James asked appellant if he wanted to say anything about the case, and appellant declined. James immediately ceased questioning appellant, left him with Quinn as guard, and went to another part of the homicide division. During this interim the record is devoid of any mention of interrogation or even conversation between appellant and anyone at the station. A few minutes later, at approximately 9:45 a.m., Quinn called James and told him that appellant stated that he wanted to give an oral statement and requested that James return. James returned and again advised appellant of his rights.

Appellant told the officers that he had been involved in a drug transaction with the deceased, and that she had refused to pay him. Appellant indicated that he and the deceased engaged in sexual intercourse, after which she became hysterical and demanded that he return the money he had taken from her. At that point, he stabbed her to death and took her body to the Addicks Dam area where he left it in a ditch.

The officers testified that prior to giving the statement, appellant was not subjected to threats or coercion, nor was he promised anything in return. He did not ask to speak with an attorney or ask that the interview be terminated. After he finished telling the officers what had happened, Mosier radioed the information to officers still at the crime scene, and gave them the information regarding the location of the body.

At approximately 10:00 a.m. on March 29, the officers found the body. There was a large amount of blood covering the deceased's shirt, and her shoes were missing. There were fifteen stab wounds to her chest, and marks on her wrists indicating that they had been bound.

On March 30, 1982, Houston Police Detectives Paul Motard and Steve Arrington met with appellant's aunt, Marion Martin. She took them to the home of her son, who had left on vacation and given appellant a set of keys so he could feed the dogs and make sure the house was secure. Earlier, she and her husband had found the deceased's purse sitting on top of appellant's jacket in their son's room. A bank bag was found inside the purse, and was identified, along with the other bank bags found in appellant's truck, as belonging to She Lee's Lounge. All three bags were filled with money.

Arrington next went to appellant's uncle's office, where appellant had been living. Outside the building, Arrington found a single plastic trash can. Next to the can, Arrington found a circular mark on the ground indicating that possibly another trash can had been removed from the area. Inside appellant's room, Arrington found what appeared to be blood stains on the floor and three pieces of white shoe-lace material which had been tied to form a small loop. Traces of type A blood were found on the laces.

Don Krueger, a chemist and toxicologist employed by the Houston Police Department, examined the physical evidence removed from appellant and his truck. The blood found on the trash can, pickup-bed, knife, and appellant's hands and clothing was determined to be type A, the same as the deceased's blood type. Appellant has type O blood. Krueger took samples of the blood found in appellant's room, and determined that it was type A.

Appellant testified at trial and stated that as of March 28, 1982, he had known the deceased for approximately one month. On that date, he went to the She Lee's...