Autry v. State

Decision Date20 January 1982
Docket NumberNo. 68899,68899
Citation626 S.W.2d 758
PartiesJames David AUTRY, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals
OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for capital murder. After finding appellant guilty, the jury answered "yes" to the first two special issues under Art. 37.071(b), V.A.C.C.P. Punishment was assessed at death.

In his second ground of error, appellant challenges the sufficiency of the evidence to support his conviction. The court charged the jury on the law of circumstantial evidence. The indictment in the instant cause alleges in pertinent part that on or about April 20, 1980, appellant:

"did then and there while in the course of committing and attempting to commit robbery upon and of Shirley Drouet intentionally cause the death of Shirley Drouet, hereinafter styled the complainant by shooting her with a gun."

Officer James Hartley, of the Port Arthur Police Department, testified that at 9:00 p. m. on April 20, 1980, he responded to a dispatch concerning a shooting at a convenience store in Port Arthur. Hartley proceeded to the Sak-N-Pak located at Lewis Drive and 9th Avenue. Upon arriving at the scene, the officer found a man lying on the ground in front of the store. Hartley related that this individual was bleeding from the head as an apparent result of a gunshot wound. Upon entering the store, Hartley observed a second individual lying on the floor behind the counter. The second individual, later identified as Joseph Broussard, was dead. Hartley testified that he then observed a woman "in a sitting position" next to a display case in the store. The woman was gagging and bleeding from a gunshot wound to the head. The woman, who had been a clerk in the store, was identified as Shirley Drouet.

Ethel Gobert testified that on the night of April 20, 1980, she was in an automobile near the Sak-N-Pak. Gobert related that she heard three gunshots which came from the direction of the store. She then observed an individual running from the store who was "right across the sidewalk" from her. She related that the area was well lit and that she was able to get a good look at the individual's face for a few seconds. After observing the individual, Gobert and her companion returned to the Sak-N-Pak and observed the three gunshot victims. Gobert identified appellant as the individual she had seen running from the Sak-N-Pak at the time she heard the gunshots. Finally, Gobert stated that at the time she observed appellant running from the store, she did not see a weapon in his hand.

Mark Sandifer testified that at 1:00 p. m. on April 20, 1980, he loaned one of his automobiles to his brother, John Alton Sandifer. Approximately eight hours later, Sandifer saw the automobile he had loaned to his brother in the parking lot of the Sak-N-Pak. Sandifer drove into the parking lot and saw appellant standing outside the store. Appellant told Sandifer that his brother was inside the store. Sandifer's brother then came out of the store and drove away in the automobile which he had borrowed earlier that day. Appellant then entered the automobile which was driven by Mark Sandifer.

Sandifer related that he followed his brother for a short distance and appellant then asked him to stop the car. Appellant then jumped out of the car and pulled a handgun out of his shirt. Sandifer described the handgun as a "chrome-plated stainless steel gun." After appellant left the car, Sandifer saw him running back toward the Sak-N-Pak. Sandifer then continued to follow his brother to a trailer in which his brother and appellant lived. Sandifer testified that when appellant entered his automobile in the parking lot of the Sak-N-Pak, he did not see a gunshot victim lying in the parking lot.

Later that evening, Sandifer returned to his brother's trailer with his father, John Sandifer. While his father waited outside, Sandifer entered the trailer which was occupied by appellant and his brother. Sandifer testified that appellant pulled two handguns out of his pockets. Sandifer testified that appellant then refused to release the guns because "he told me that because he knew that I knew-he knew that I knew that he killed some people." One of the weapons which appellant pulled out of his pocket was similar in appearance to the weapon which he had produced at the time he left Sandifer's automobile and headed back toward the Sak-N-Pak. Sandifer then obtained the two weapons from appellant and returned them to his father who was waiting outside the trailer. Sandifer, his father and his brother then took the two handguns to the police.

John Sandifer testified that he is the father of John Alton Sandifer and Mark Sandifer. The witness related that he waited outside his son's trailer while his other son, Mark Sandifer, went inside. He stated that both of his sons then came out of the trailer with two handguns. He testified that one of the handguns is a .32 caliber Smith and Wesson pistol which belongs to his wife. He related that the second handgun is a .38 caliber Smith and Wesson which belongs to him. Sandifer did not know that these weapons had been taken from his home.

Officer David Davis, of the Port Arthur Police Department, testified that he conducted an investigation at the scene of the offense. Davis related that the cash register in the store had been turned to the "off" position. The officer found two copper bullet jackets in the store. An inspection of Broussard's wallet revealed that the wallet still contained currency and that the victim's car keys were in his pocket. Likewise, Davis inspected Drouet's purse and found that it contained currency.

Dr. Standley LeBer testified that he performed an autopsy on Drouet's body. LeBer related that he found a single gunshot wound to the center of Drouet's forehead. From the "stippling" on the victim's face, it appeared as though the weapon was three to five feet from her head at the time it was fired. LeBer related that Drouet had died as a result of massive brain destruction from the gunshot wound. During the autopsy, LeBer removed a bullet from Drouet's head. He gave this bullet to the authorities.

Officer Steve Conroy, of the Port Arthur Police Department, testified that he was present when LeBer performed the autopsy upon Drouet. The officer related that LeBer gave him the bullet which was removed from Drouet's head. Conroy then placed this bullet in the evidence locker of the Port Arthur Police Department.

Officer Gary Martin, of the Port Arthur Police Department, testified that he transported several items of evidence connected with the instant offense to the Texas Department of Public Safety Laboratory in Houston. Among the items of evidence turned over to the laboratory were the copper bullet jackets recovered at the store, the two weapons turned over to the authorities by Sandifer and the bullet which had been removed from Drouet's head.

John Beene testified that he is a chemist and firearms examiner for the Texas Department of Public Safety Laboratory in Houston. On April 28, 1980, Beene received various items of evidence from Officer Martin. Beene related that he compared the bullet removed from Drouet's head with the handguns which had been turned over to the authorities by Sandifer. Beene testified that in his opinion, the bullet which had killed Drouet had been fired from the .38 caliber Smith and Wesson handgun which appellant gave to Mark Sandifer.

Officer Martin testified that he and fellow officers arrested appellant at 1:45 a.m. on April 21, 1980. At the time of his arrest, appellant was informed that he was being arrested for the two murders which had been committed at the Sak-N-Pak. 1

Officer John Anderson, of the Port Arthur Police Department, testified that at 1:00 p. m. on April 21, 1980, he was in the booking room of the police station. Anderson related that he had not been involved in the investigation of the instant offense. The officer saw appellant enter the booking room and heard him ask to use the telephone in order to call his mother. Anderson testified that he did not intentionally "listen in" on the telephone call, however, in describing the statements he heard appellant make, Anderson testified as follows:

"Q. What did you hear the defendant say?

"A. Whoever he was talking to on the other end he told them that he was in Port Arthur Jail. And that he was charged with two counts of murder.

"Q. What happened then?

"A. Okay. There was kind of a pause. And I assume whoever was on the other end was saying something.

"And he said that he had gone into this store and he was going to rob it but it just gone bad.

"Q. What did he say then?

"A. He said that he started shooting but once he started he just couldn't stop.

"Q. Okay. Did he say anything else?

"A. If I remember right towards the end of the conversation he stated that whoever was on the other end should not worry because he was going to get out of it.

Officer Paul Noyola, of the Port Arthur Police Department, testified that he was involved in the investigation of the instant offense. Noyola related that he had found no other "double killings" at a convenience store in Port Arthur on or about April 20, 1980.

Appellant now urges that the circumstantial evidence is insufficient to support his conviction. He maintains that the circumstances proven do not exclude every reasonable hypothesis because "it is entirely reasonable and probably (sic) that John Alton Sandifer shot and killed Shirley Drouet and subsequently ran from the store and made his flight."

A conviction based on circumstantial evidence cannot be sustained if the circumstances do not exclude every...

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