Barnard v. State

• Decision Date: 08 April 1987
• Docket Number: No. 68861,68861
• Citation: 730 S.W.2d 703
• Parties: Harold Amos BARNARD, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 703

730 S.W.2d 703

Harold Amos BARNARD, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 68861.

Court of Criminal Appeals of Texas En Banc.

April 8, 1987.

Allen C. Isbell, Houston, for appellant.

Michael J. Guarino, Dist. Atty. and James F. Hury, Jr., Former Dist. Atty. and Jack C. Brock and Miguel Martinez, Asst. Dist. Attys., Galveston, Robert Huttash, State's Atty., Austin, for State.

OPINION

McCORMICK, Judge.

This is an appeal from a conviction of capital murder. After a jury answered the three special issues affirmatively, punishment was assessed at death.

On the evening of June 6, 1980, sixteen year old Tuan Nguyen was working the cash register in the 7-11 store managed by his family in Galveston. According to eyewitnesses, at approximately 11:00 p.m., appellant and a female companion walked into the store. Appellant asked Nguyen's father, Nguyen Dinh Nguyen, who was also working behind the counter, for a package of Kool cigarettes. Nguyen Dinh Nguyen turned away to get the cigarettes. When he turned around, he saw that appellant had pulled a sawed-off .22 rifle and was pointing it at him. Appellant ordered Nguyen Dinh Nguyen and Tuan Nguyen to put all the money they had into a bag. As the boy was putting money into a sack, appellant's companion told the boy, "Do as he says. He is serious. All of it." As the boy turned around to hand appellant the money sack, appellant raised his gun, aimed it and fatally shot the boy. Witnesses testified that appellant was grinning throughout the whole robbery. After the shooting, appellant pointed his gun at Florentino Gonzales, who had come into the store to buy a soda. Gonzales ducked down and heard appellant's companion tell appellant to "get him." Gonzales testified that he ran to the door, managed to get outside and hid behind a car. He saw appellant and his companion walk out of the store and to a car parked on the side street. Gonzales saw appellant get into the car and watched the car head towards Seawall Boulevard and turn right.

A passerby, Daniel Rouse, testified that as he was driving by the store, he heard what he thought was the sound of a bottle breaking. He looked towards the store and saw two people running out the front door of the store. He also saw an individual wearing a store jacket come out of the store and heard him yelling. Rouse testified that he made a U-turn and parked. He saw two individuals getting into a dark green Monte Carlo with a light colored top, license number VHG 10. He watched the car drive off and turn west on Seawall Boulevard.

Terry Wood, an employee of the Kroger grocery store at the corner of 45th and Seawall in Galveston, testified that she arrived at work at approximately 3:45 p.m. on the day of the offense. She parked her 1973 Ford LTD, license number VHG 10, in the store parking lot. She discovered later that night that her rear license plate had been stolen.

After receiving a description of the car seen leaving the scene of the robbery and murder, law enforcement officers stopped a car matching the description on northbound Interstate 45. Murray Howard, Jr. was driving the car. Beside him was his wife, Regina Faye Howard, and on the passenger side of the front seat was appellant. An individual named James Charles O'Brien was sitting alone in the back seat. Appellant and his companions were taken into custody. A search of appellant revealed a large fold-out buck knife. A search of the Grand Prix revealed a loaded .12 gauge shotgun lying diagonally underneath the dashboard and a sawed off .22 caliber rifle lying underneath the front passenger seat. This rifle had a .22 caliber bullet jammed inside its chamber. In addition Alabama license plates were found on the back floorboard of the vehicle. A check of these license plates showed that the car had been stolen in Alabama.

Appellant testified during the guilt-innocence phase of the trial that he had met Murray and Regina Howard and James O'Brien at a club in Houston the night of June 5, 1980. The trio told him that they had just arrived in Houston from Alabama and were short of money. The group spent the evening together drinking. That night Murray Howard showed appellant the sawed-off .22 caliber rifle and told appellant he had used it in the past in several robberies. Appellant met the trio again at the club the next night at approximately 8:30 p.m. According to appellant he had been drinking heavily all day and had smoked one joint of marihuana. After the appellant bought them all a drink, the trio asked him if he would help them commit a robbery. Appellant said that he would and the group left the club. They drove to appellant's house where he dropped off his car and picked up his shotgun. They then drove to Galveston in the Howard's Grand Prix. When they reached Galveston, they stopped at a convenience store where Murray Howard filled the car with gas and appellant bought a bottle of wine and some sunglasses. Appellant proceeded to drink the bottle of wine. They then drove to the Kroger grocery store where they stole a license plate from a car and put it on the Grand Prix. They then drove to the 7-11 store. Murray Howard parked the car around the corner from the store and told appellant and Regina to go in and rob the store. Someone handed appellant the sawed-off .22 caliber rifle and he stuck it into the waistband of his pants. Appellant testified that he and Regina walked into the store. He went and got a can of Coke out of a cooler and then walked to the counter and asked Mr. Nguyen for a package of cigarettes. Appellant then pulled out the gun and told Mr. Nguyen to give him the money out of the register. At that moment Tuan Nguyen turned around and looked at appellant. Appellant told the boy to give him all of money in his register. According to appellant, the boy began laughing. Appellant testified that suddenly he saw the boy whirling around with his hands raised. Appellant testified that at that point he aimed his gun at the boy's arm and fired. He further testified that he did not intend to kill the boy but only to wound him in the arm.

In his first point of error, appellant contends that his indictment is defective. The indictment in pertinent part reads as follows:

"did then and there intentionally and knowingly cause the death of an individual, Tuan Nguyen, by shooting with a rifle; and the said Harold Amos Barnard, Jr. did then and there intentionally cause the death of the said Tuan Nguyen in the course of committing the offense of Robbery, to-wit: the said Harold Amos Barnard, Jr. did then and there while in the course of committing theft and with intent to appropriate and maintain control of property of Nguyen Nguyen, to-wit: money, without the effective consent of the said Nguyen Nguyen and with intent to deprive the said Nguyen Nguyen of said property did then and there intentionally and knowingly cause bodily injury to Tuan Nguyen by shooting him with said rifle,"

Appellant contends the indictment is faulty because the State is "bootstrapping" itself to a capital murder by using the shooting of Tuan Nguyen with a rifle as the aggravating circumstance that converted a theft into a robbery and then using the same shooting of Tuan Nguyen with a rifle coupled with the robbery to elevate the offense to capital murder. He argues that it is impermissible to use the same aggravating factor for the robbery as is used to show the offense of murder. He relies on a felony murder case, Garrett v. State, 573 S.W.2d 543 (Tex.Cr.App.1978), for the proposition that when the State decided to allege the elements of robbery, which it was not required to do, it became necessary to allege an act other than the actual homicide as the element which made the underlying crime a robbery rather than a theft.

The motion to quash filed by appellant did not allege this particular deficiency, thus we must restrict our inquiry to determine if fundamental error is present.

Garrett was a felony murder case in which the Court was concerned with the statutory restriction of the felony murder doctrine which prohibits basing a felony murder prosecution on voluntary manslaughter. In Garrett, we held the felony murder rule does not apply where the precedent felony is an assault inherent in the homicide. This limitation on the felony murder rule is called the merger doctrine. The Court noted in Garrett that the purpose of the merger doctrine is to prevent the defendant's conviction for murder in the absence of an appropriate culpable state. The Court held that where aggravated assault is the underlying felony in felony murder prosecution the statutory purpose of the merger doctrine would be thwarted.

V.T.C.A., Penal Code, Section 19.03(a)(2) provides that a person commits capital murder if he commits a murder in the course of committing a robbery. V.T.C.A., Penal Code, Section 19.02(a)(1) provides that murder occurs when a person intentionally or knowingly causes the death of another individual. Unlike the felony murder provision, V.T.C.A., Penal Code, Section 19.02(a)(3), there is no transferred intent from a lesser offense to a greater offense under our capital murder statute. Rather under the capital murder statute, the commission of robbery is simply one of the circumstances which our legislature deemed to make the murder more deserving of the death penalty.

"The aggravating factors listed in § 19.03(a) were designed only to restrict the jury's discretion to impose capital punishment to 'a small group of narrowly defined and particularly brutal offenses,' so that it would be imposed only for the same types of the most serious crimes, in compliance with the requirements for a constitutional death penalty scheme set out in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Jurek v. State, 522 S.W.2d 934, 939 (Tex.Cr.App.1975), aff'd, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). The Legislature accordingly has found it...