Bennett v. State

• Decision Date: 21 October 1987
• Docket Number: No. 69645,69645
• Citation: 742 S.W.2d 664
• Parties: Baby Ray BENNETT, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 664

742 S.W.2d 664

Baby Ray BENNETT, Appellant, v. The STATE of Texas, Appellee.

No. 69645.

Court of Criminal Appeals of Texas En Banc.

Oct. 21, 1987.

J. Randall Walker, Jasper, for appellant.

Bill A. Martin, Dist. Atty., and Charles R. Mitchell, Asst. Dist. Atty., Newton, Robert Huttash, State's Atty., Austin, for State.

Before the court en banc.

OPINION

MILLER, Judge.

Appeal is taken from a conviction for capital murder. V.T.C.A., Penal Code, § 19.03. The jury answered the special issues in the affirmative and appellant was sentenced to death. Appellant brings fourteen points of error. We will affirm.

In his sixth point of error, appellant contends that the evidence was insufficient to support the jury's finding that he would pose a continuing threat to society. In order to respond to this assertion, we must examine the facts of this case.

The first witness called during the State's case in chief during the guilt/innocence portion of the trial was Inez Liversat. She testified that she lived in Nederland and knew the victim, Coyte L. Green. On Sunday, April 21, 1985, Liversat went to the victim's house to discuss some building materials. He asked her to get some information and said he would call her later. When he had not called by Wednesday of that week, Liversat called the victim's cousins, who said that they had not heard from him. She drove to the victim's house the next day. He was not at home, but Inez noticed that his television and guns were gone and that there were wet clothes in the washing machine. She ran the clothes through the washer again and dried them, expecting the victim to return at any moment.

After the victim's cousins, Mary and John Miller, called the victim's house and Liversat told them that he was not there, nor was the television or guns, they drove to the victim's house. They went into the garage and found that everything, including the victim's tool box, had been removed. The victim's dog was found dead under the back porch.

In the garage, they found the victim's car. A wheel and tire were in the trunk, along with the victim's lighter and knife. Inside the car, they found a bloody shirt. Afterward, they summoned the police.

John Miller was the second witness called. He testified that his wife was Green's cousin. Green was supposed to bring Miller some lumber, but never did so. Miller became concerned and called Green's residence. He and his wife drove to Green's house after talking to Liversat. They noticed that Green's tractor, truck and trailer were missing.

The next witness called by the State was Joe Allegood, who had known Green for over twenty years. He testified that appellant helped Green at his residence doing odd jobs.

Roy Elmore, a deputy sheriff with the Newton County Sheriff's Department, and Roscoe Davis, a Texas Ranger, were also called by the State. They had been dispatched to Green's residence. Upon arrival, they found that the house had been broken into and Green's dog had been shot. A car found in the garage appeared to have been smeared with blood. Further investigation revealed that a red tool box belonging to Green was missing, along with Green's Dodge pickup truck. The truck was found two miles from Green's house the battery was missing. The officers spoke to Green's relatives and were told that appellant worked for Green occasionally.

The next day, Friday, April 26, 1985, officers went to find appellant and ask him about Green's disappearance. They went to appellant's mother's house, which was about a mile and one half from Green's house. They found appellant working on an older model Ford truck and saw the red toolbox nearby. The officers also saw a new battery under the hood of the truck.

When the officers spoke to appellant, who was working on the truck, they noticed that the vehicle identification numbers appeared to have been tampered with. The officers called in the numbers to the police dispatch and were told that the numbers did not match the vehicle, which had been reported as stolen. Appellant was arrested thereafter for possession of a stolen vehicle. The truck was searched, and the guns believed to have been taken from Green's house were found. Appellant's mother gave the officers consent to search the house, and they found Green's initialed shaving bag, which contained an assortment of coins and money.

After his arrest, appellant gave a statement to the police, which contained, in pertinent part, the following:

"About two weeks ago I started planning to take a pick-up truck from a man I used to work for. I knew him as Mr. Green.

I went to Mr. Green's house before dinner on Tuesday 04-23-1985. He was gone. I walked around and looked everything over. His dog was making a lot of noise. I had my 22 rifle so I shot the dog to hush the noise. I went to the back door and used my knife to open the door. I looked around first. I found a pistol in the bedroom and a 30-30 rifle in the living room. I got them and put them by the door. I found a lot of penneys [sic] on top of the dresser. I put them in a zipper bag and put them with the guns. Then I sat and waited on Green to come in. He came in about 5:30 P.M. When he drove up he came in the back door. When he realized I was in there he turned and tried to run out. I shot him once with the pistol. I hit him in the side of the head. I think it was on the left side. He ran back to the car. I ran up to where he was. I held the gun on him and tied his arms with a piece of rope. I put him in the right front seat of the car. I shut the door and locked it. I snapped the hood and unhooked the battery so he couldn't unlock the doors. He started kicking the windows. I walked out of the garage. I went back to the house to look for the tractor keys. When I got back to the garage it was after dark.

I hooked his Dodge pickup up [sic] to the lowboy and loaded the tractor. I went back to the car and got him out of the front and locked him in the trunk. I closed the trunk lid.

I went and looked in the little tin building to see what was in it. I went and looked in the little red building by the front of the garage. I had the keys to unlock the door.

I went back to the garage and saw that he had got the trunk lid open and got out of the car. He was standing by the car. He fell. He got out of breath. Then I got him up and put him back in there. Then I put the red tool box on the trunk lid and the blue weight for the ford tractor so it would hold the lid down. He raised the lid anyway so I tied the trunk lid shut with a piece of rope. Then I loaded the tool box, cutting torch, chain saw and stuff.

It was about 1:00 A.M. by then. I wiped the blood off the side of the car and the seat. I just started driving and thinking about what to do.

I was going to throw him in the Sabine River, but there was too much traffic so I drove on like I was going to DeRidder [Louisiana]. I turned left at Junction and drove awhile looking for a place to leave Mr. Green. I turned around and came back to Merryville. At the caution light I turned left and stopped at the second bridge.

I got him out of the trunk and had him standing up. I was going to push him over the side but he fell down. When he did this I drug [sic] him down under the bridge. I saw some lights coming so I got back in the car and left.

In a little while I came back and drug [sic] him further under the bridge. Then I left and rode around awhile. I was going to go back under the bridge to see if he was dead but I saw a cop so I kept driving and came back to Texas. It was almost 6:00 A.M. when I got back to Newton. I parked the Cadillac in the garage. I walked back to my house. I changed clothes and walked back to Green's house.

I got in his Dodge truck and drove right back through Newton. I drove up highway 87 to Burkeville and turned left on highway 63 to Jasper. On the other side of Jasper I drove to Ranch Road 255. I saw H.L. Dupont at the store. I told him what I wanted to do. We went west on 255 about a mile where we turned left onto a dirt road. We drove to a trailer house where I unhooked from the trailer. We talked about an hour. I left and came back to Newton in Green's Dodge Pickup. I took the pickup to a place near my house and hid it in the woods. Then I walked home.

Dupont brought the truck to my house the evening of the same day and I took him back home. I came back home in the Ford Pickup that I traded the tractor and stuff for. About 11:00 A.M. Thursday, 04-25, I took a [sic] international brand riding lawn mower to Roger Chambers Tractor shop and sold it to him for $150.00. He wrote me a check. I came on back to Baldwins and cashed the check and bought a steering wheel for my truck."

Robert Woods, another sheriff who investigated the case, testified that after appellant was arrested and warned, and after he gave his statement, appellant drew the officers a map of where Green's body could be found. Woods phoned officers in Beauregard Parish, Louisiana, who later found the body and returned it to Texas.

Eduardo Bellas was later called by the State. Bellas was an assistant medical examiner for Harris County. He testified that he had examined Mr. Green's body on April 27, 1985. Bellas testified that Green was seventy years old when he was killed. Green had suffered three bullet wounds, two of which were shot into Green from the back. Bellas testified that Green had ultimately died from two gunshot wounds to the back of the body. Bellas testified on cross-examination that a person who had sustained the two shots from the back could be expected to live for possibly one hour. He also found an abrasion on Green's head which had been inflicted before death, approximately five hours after the bullet wounds were sustained.

After this evidence was presented, the State rested. Appellant did not produce any evidence and also rested. During the punishment phase of trial, the State showed that appellant had been convicted of theft of an...