Beathard v. State

• Decision Date: 08 March 1989
• Docket Number: No. 69474,69474
• Citation: 767 S.W.2d 423
• Parties: James Lee BEATHARD, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 423

767 S.W.2d 423

James Lee BEATHARD, Appellant, v. The STATE of Texas, Appellee.

No. 69474.

Court of Criminal Appeals of Texas En Banc.

March 8, 1989.

Rehearing Denied May 10, 1989.

Jimmy James, Houston, for appellant.

Joe L. Price, Dist.Atty: Groveton, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

CAMPBELL, Judge.

Appeal is taken from a conviction for capital murder. V.T.C.A., Penal Code § 19.03(a)(2). After finding the appellant guilty, the jury returned affirmative findings to the special issues under Article 37.071, V.A.C.C.P. Punishment was assessed at death.

The appellant was convicted of intentionally causing the death of Marcus Hathorn in the course of committing and attempting to commit the offense of burglary. Appellant raises five points of error. He argues that the evidence was insufficient to prove that the murders occurred during the course of a burglary; that there was insufficient corroboration to support the accomplice testimony of Gene Hathorn; that the indictment was insufficient because it failed to allege the elements of burglary within the capital murder charge; that the judge's failure to instruct the jury at the punishment phase concerning appellant's right not to testify requires a new trial; and that the judge erred in denying appellant's motion for new trial because of newly discovered evidence after Hathorn recanted his prior testimony. We will affirm the conviction.

Appellant and Gene Hathorn, Jr., appellant's accomplice, became acquainted while working at the State Hospital at Rusk. Both living in Rusk, the two men continued their friendship after appellant left his job at the hospital. Recurrent topics of conversation were Hathorn's desire to commit "the perfect murder" and his wish to kill his father, stepmother, and half-brother, a wish motivated by animosity and the prospect of an inheritance. Hathorn, whose parent's lived in a trailer located in an isolated and wooded area, planned to shoot everyone in the trailer using a number of different weapons, take several items that would be missed, and plant Negroid hairs and the butts of cigarettes that had been smoked by blacks. He hoped to make the killings look like a burglary committed by a group of "drug-crazed niggers." In addition to his plan for the scene of the crime, Hathorn wanted to have an accomplice. The accomplice was to provide an alibi as well as to help with the shootings. Hathorn proposed his plan to a few different people, but appellant was the only interested party. Appellant requested $12,500 from the proceeds of the estate for his participation in the murders.

On October 9, 1984, appellant and Hathorn left Rusk and went to Nacogdoches, ostensibly for appellant to check some books out of the library at Stephen F. Austin University, where appellant had formerly been a student. The two went to Nacogdoches by way of Gallatin, in Cherokee County. Appellant had relatives who owned property near Gallatin. There, appellant and Hathorn conducted some target practice with Hathorn's shotgun. When finished, they went on to Nacogdoches. While in Nacogdoches, the two went to several highly visible places in addition to the library. When finished, they drove on to Hathorn's parents' home in Trinity County, near Nogalus Prairie.

Hathorn testified that when he and appellant arrived at his parent's home, they got out of the car. Hathorn gave appellant a .380 pistol, a Ruger Mini-14 rifle, and cellophane packets containing the hair and cigarettes butts that they were going to leave at the scene. Hathorn kept the shotgun. Thus armed, the men cut through the woods until they got to the driveway leading to the Hathorn's trailer. They followed the driveway until they reached the clearing around the trailer. At this point, they followed the tree line around the clearing to the trailer. Hathorn went behind the trailer, and appellant went to the back door. Once positioned, Hathorn fired a shot through a large back window. When the shot was fired, Mr. Hathorn was sitting with his back to the window with his head visible above the top of the sill. Upon hearing the shot, appellant was to enter the back door with the remaining two weapons in order finish any job that the shotgun blast failed to do, plant the evidence, and remove agreed upon items of property. Hathorn said that he heard shots fired from inside the trailer. A few minutes later, appellant came out the front door of the trailer carrying a video cassette recorder, a video disk player, and a number of the Hathorn family's guns. They both loaded the items into the car. Hathorn drove a van belonging to the victims, and appellant drove the car in which they had arrived. Hathorn drove to Nigton, a "predominantly black" area. There, he left the van on a residential street and joined appellant in the car they had brought. Next, they drove to Nacogdoches, stopping twice to drop the items removed from the trailer, the pistol, and the rifle off of two different bridges into two different rivers. Arriving in Nacogdoches, they returned to the library to check out an additional book. Completing this, they returned home.

Crime scene investigators and a forensic pathologist testified about the physical evidence discovered. The evidence and testimony of these witnesses corroborated, as far as possible, Hathorn's version of the facts. The forensic pathologist testified that all three victims had wounds from a shotgun blast or blasts. In addition, Mr. and Mrs. Hathorn had fragments of glass and other debris in their wounds which would be consistent with a shotgun being fired through a window. He went on to say that, based on his examinations, the shotgun wounds of the victims were the first gunshot wounds to be inflicted. Assuming that the shotgun wounds occurred simultaneously, the additional gunshots to Mr. and Mrs. Hathorn, whose bodies were found in the living room, were inflicted next, and the additional wounds to Marcus, the Hathorn's son, whose body was discovered in a bathroom, were inflicted last. Investigators at the crime scene stated that the pattern of buckshot which hit the ceiling and opposite wall of the trailer would be consistent with that which would have been made if Hathorn's shotgun had been fired from the position from which Hathorn testified that he had fired. The locations of shell casings found inside the trailer and the projected trajectory of the shots fired would be consistent with an individual entering through and firing from the trailer's back door. Ballistics tests matched the bullets recovered from the bodies to Hathorn's pistol ¹ and rifle.

Appellant testified and denied his complicity in the murders. He admitted that he accompanied Hathorn to Gallatin and to Nacogdoches; however, he said that he agreed to leave Nacogdoches with Hathorn because he was offered an opportunity to make $2,000 by participating in a drug transaction. Appellant's account of the trip to the Hathorn residence coincided with that of Hathorn until the two arrived at their destination. Appellant said that the two drove all of the way up the driveway and to the trailer. He said that Hathorn instructed him to stay outside while he went into the trailer to conduct his transaction. Hathorn went to the door, knocked, and entered the trailer for a short while. After leaving the trailer, Hathorn went to the car and retrieved the shotgun. Hathorn, who was now wearing rubber gloves, then went to appellant, who was standing away from the mobile home near a camper trailer parked in the yard, and told him, "I don't want to have to do it this way." Hathorn then rapidly turned and fired the shotgun through the back window "as if he were shooting skeet" and shouted "Mommy and Daddy get down somebody's shooting at us." ² He then said to appellant "If I go down you go down. Shoot anything that moves." And, then handed appellant the shotgun. Hathorn then ran off, but appellant did not see where Hathorn ran because he laid down on the ground. At this point, appellant said that he did not see Hathorn in possession of any other weapons and, at that point, had not seen any weapon, other than the shotgun, during the evening. "A few seconds later," appellant heard three or four shots fired rapidly, a pause, and a similar group of shots. Unsure of what was happening, appellant said that he crept into the edge of the woods and hid. After a while, appellant worked his way back to the camper and shouted for Hathorn. Hathorn shouted back for appellant to get back in the car. From the point appellant returned to the car, the two men's stories again coincide. ³

In his second point of error, appellant argues that the evidence was insufficient to prove that he killed Marcus Lee Hathorn while in the course of committing burglary upon the habitation of Gene Hathorn [Sr.]. This point of error focuses on the burglary component of V.T.C.A. Penal Code, § 19.03(a)(2), rather than whether appellant committed a murder under V.T.C.A. Penal Code, § 19.02(a)(1). Appellant argues that entry into the Hathorn's residence was with the intent to kill the occupant's rather than to commit a theft or robbery, and that the taking of property was merely a ruse intended to mislead law enforcement officials. ⁴ In other words, if appellant is guilty, it is of committing a burglary during the course of murder, rather than a "murder in the course of committing or attempting to commit ... burglary...." V.T.C.A. Penal Code, § 19.03(a)(2). The State responds that burglary may be committed by an entry to commit a felony or theft. V.T.C.A. Penal Code, § 30.02(a)(3), and that the evidence was sufficient to prove both types of burglary. In addition, although the primary motive was to kill the occupants, it is permissible to rely on a secondary motive for entering the habitation. Hathorn's testimony indicated that the actors had an intent to kill, a felony, and to take property...