Andrews v. State, 69078

• Decision Date: 23 September 1987
• Docket Number: No. 69078,69078
• Citation: 744 S.W.2d 40
• Parties: Maurice ANDREWS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 40

744 S.W.2d 40

Maurice ANDREWS, Appellant, v. The STATE of Texas, Appellee.

No. 69078.

Court of Criminal Appeals of Texas,

En Banc.

Sept. 23, 1987.

Walter M. Sekaly, Harold J. Laine, Jr., Beaumont, for appellant.

James S. McGrath, Dist. Atty., and John R. DeWitt, Asst. Dist. Atty., Beaumont, Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.

OPINION

TEAGUE, Judge.

Maurice Andrews, hereinafter appellant, appeals to this Court his conviction by the jury of the capital murder of Joe Angel Granado, the then owner of Granado's Jewelry Store in Beaumont, which murder occurred during the course of a robbery of Granado. Another person, Arturo Melindez, an employee of the store, was also murdered. The trial judge, after the jury answered in the affirmative the special issues submitted to it pursuant to Article 37.071, V.A.C.C.P., assessed appellant's punishment at death. ¹ We affirm.

Appellant presents to us what we will refer to as eight points of error for review. Three of his points directly or indirectly challenge the sufficiency of the evidence as to guilt; two points of error concern the applicability of the Supreme Court of the United States' decision of Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), to this cause; two points of error challenge the constitutionality of V.T.C.A., Penal Code, § 19.03, when used in conjunction with V.T.C.A., Penal Code, § 7.02; and one point of error challenges the trial judge's decision to sustain the State's challenge for cause as to prospective venireman Frank James Landry.

Before addressing appellant's claim that the evidence is insufficient to support the jury's verdict finding him guilty of the capital murder of Granado, and that the trial judge did not require the jury, as a predicate to the jury returning a verdict of guilty, that it had to first believe beyond a reasonable doubt that appellant killed Granado or that appellant intended that Granado be killed, we find that we must first dispel the notion that appellant has about Enmund v. Florida, supra, namely, that its holding applies to the guilt stage as well as the punishment stage of the trial. It does not. It only applies to the punishment stage of the trial. Therefore, we will first discuss Enmund, supra, as well as the subsequent Supreme Court decision of Tison and Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (April 21, 1987).

In Enmund v. Florida, supra, the Supreme Court addressed the question whether death is a valid penalty under the Eighth and Fourteenth Amendments for one who neither took life, attempted to take life, nor intended to take life, and answered the question in the negative as to that case. It expressly held that the death penalty may not be imposed on one who merely aids and abets a felony in the course of which a murder is committed by another and who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed. Also see Cabana v. Bullock, 474 U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986). However, in Tison and Tison, supra, the Supreme Court retreated from its judicially created Enmund v. Florida, supra, standard for capital liability and announced a new culpable capital liability standard for one who does not actually commit the killing, but who aids and abets others in the commission of a felony in the course of which a person is killed. It expressly held in Tison and Tison, supra, that the validity of the death penalty that is assessed a "non-trigger person" will depend upon a defendant's "major participation in the felony committed, combined with reckless indifference to human life." If such is found to be true, then this is sufficient to satisfy the Enmund culpability capital liability requirement.

Thus, a clear reading of the above decisions of the Supreme Court should make it obvious to anyone that they only concern imposing the death penalty on one who, though not the actual killer, was a major participant in the felony committed. They do not concern whether one, acting as a party to the commission of the felony offense of capital murder, may be found guilty of committing that offense.

In Green v. State, 682 S.W.2d 271, 287 (Tex.Cr.App.1984), this Court expressly held: "While the law of parties can apply to convict an accused of capital murder, the death penalty may be imposed only by examination of the mitigating and aggravating circumstances concerning the individual defendant ... [I]t is error to apply directly the law of parties to any of the punishment issues in a capital murder case--that is, so a capital defendant may be punished for the deliberate conduct of another, the future dangerousness of another or the unreasonable response to provocation by another--without regard to the individual conduct of the defendant whose fate is in question ... We hold that the law of parties may not be applied to the three special issues under Art. 37.071(b). Wilder and Armour v. State, 583 S.W.2d 349 (Tex.Cr.App.1979), is overruled as far as it is inconsistent with this opinion." Also see Selvage v. State, 680 S.W.2d 17 (Tex.Cr.App.1984), which also involved a robbery-murder that occurred inside of a jewelry store; Meanes v. State, 668 S.W.2d 366 (Tex.Cr.App.1983).

Having overruled appellant's erroneous belief that Enmund, supra, is applicable to the guilt stage of the trial, we will next discuss his claim that the circumstantial evidence as to his guilt is insufficient. The learned trial judge in this cause expressly instructed the jury on the law of circumstantial evidence. Cf. Hankins v. State, 646 S.W.2d 191 (Tex.Cr.App.1981), in which a majority of this Court held that an instruction on the law of circumstantial evidence need no longer be given, although it is not error for the trial judge to give such an instruction. The decision of Hankins v. State, supra, was not handed down until long after appellant's trial had occurred. Thus, we cannot unequivocally state that had Hankins, supra, been the law at the time of appellant's trial the trial judge would have still given an instruction on the law of circumstantial evidence.

It is now axiomatic in this State that the standard for reviewing the sufficiency of the evidence on appeal is the same for direct and circumstantial evidence cases. The evidence must be viewed in the light most favorable to the verdict, and the standard is whether any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. If the State's evidence supports an inference other than a finding of the essential elements of the crime, then we are compelled to hold that no trier of fact could rationally find the accused guilty beyond a reasonable doubt, and this is true irrespective of the character of the evidence. See the many, many cases collated under West Criminal Digest Criminal Law Keys 552(3) and 1144.13(2).

The State presented the following evidence. Appellant neither testified nor presented any evidence at the guilt stage of the trial.

1. Luisa Morales, an employee of the Belle and Beau Tailor Shop, which was located next door to Granado's Jewelry Shop, testified that on the day in question, April 8, 1982, between approximately 12:15 and 12:20 p.m., while reading the newspaper, with her husband nearby, she heard two loud noises, "Bang, Bang". She then went to the front door of the business where she observed two black men leaving Granado's Jewelry Store. She described one of the men as being medium in height, "Six foot two inches, six foot one inch", and wearing a dark brown, "chocolate brown jacket," "like a type of shirt". She described the other man as being shorter, "Five--about five-seven" in height, and wearing a red, "cardinal colored", cap. Morales testified that the men left the jewelry store "real fast." Morales then summoned her husband, who went inside of the jewelry store, came out, told her what he had seen, and told her to go and notify the police. Morales told someone else to notify the police. Soon thereafter, the police arrived.

2. Sergeant Harrell Fowler of the Beaumont Police Department testified that while on duty at the police station, which was just down the street from where Granado's Jewelry Store was located, he heard a police radio broadcast that there was "A possible robbery-shooting at 280 Bowie here in Beaumont, Granado's Jewelry Store." Fowler immediately went to that location. After Fowler arrived, he observed the bodies of Granado and Melindez, with gunshot wounds to their heads. Fowler concluded that Melindez was dead but that Granado was still alive. Ambulance attendants were then attempting to save Granado's life. Although Fowler seized certain items at the scene, the only thing of significance to us that he seized is a "black Playboy with a white bunny cap."

3. Dr. Howard Wilcox performed the autopsy on Melindez. In Wilcox's opinion, Melindez died as a result of a gun shot wound to the head. Wilcox recovered from Melindez' head two fragments of a bullet, which were either "a .32 or .38 caliber bullet", which he turned over to a police officer by the name of Pierce.

4. Dr. Stanley M. Le Ber performed the autopsy on Granado. In Le Ber's opinion, Granado died as a result of two gun shot wounds to the head, one to the left side of the forehead and the other to the left side of the back of the head, which wounds were caused by either "a small caliber, .22, the other was a .38 caliber." The recovered bullets were turned over to a Detective Hecht. Le Ber also observed on the bridge of Granado's nose "slight bruising"; a superficial laceration over his forehead; and a bruise over the right ear.

5. Daisy May White, who lived with co-defendant Malcolm Davis and his wife, Brenda, in Port Arthur, testified that sometime around 10:00 a.m., "maybe earlier", which would have been a little over 2 hours before the killings took place, appellant came...