Brown v. State, 47126

• Decision Date: 27 February 1974
• Docket Number: No. 47126,47126
• Citation: 505 S.W.2d 850
• Parties: Lonnie Ray BROWN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 850

505 S.W.2d 850

Lonnie Ray BROWN, Appellant, v. The STATE of Texas, Appellee.

No. 47126.

Court of Criminal Appeals of Texas.

Feb. 27, 1974.

Selden B. Hale, Amarillo, for appellant.

Tom Hamilton, Dist. Atty., Plainview, Jim D. Vollers, State's Atty., and Buddy Stevens, Asst. State's Atty., Austin, for the State.

OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for murder with malice. The jury assessed punishment at death.

Appellant was convicted of the January 14, 1971, murder of Lillian Kesler. The State relied in part on the testimony of an accomplice witness, Bobby DeShazo. The sufficiency of the evidence is challenged.

On the afternoon of January 13, the appellant, DeShazo and Billy Croft decided to burglarize several farmhouses. During that evening, they entered the home of I. H. Parks near South Plains where they took a twelve-gauge shotgun. On arriving at the Kesler farmhouse near Tulia, they broke down the door and entered, believing no one to be at home. While DeShazo stood watch outside, appellant and Croft entered. They discovered Mrs. Kesler, a seventy-nine year old widow, armed with a .22 caliber pistol. Croft apparently talked her into surrendering the pistol. De Shazo heard a shotgun blast and entered to discover Mrs. Kesler kneeling on the floor with a wound in her stomach. De Shazo then saw appellant take the Parks' shotgun from Croft and shoot Mrs. Kesler in the head, killing her.

Appellant first contends that the imposition of the death penalty constitutes cruel and unusual punishment. The sentence has been commuted to life and the question is now moot. See Whan v. State, Tex.Cr.App., 485 S.W.2d 275, and Stanley v. State, Tex.Cr.App., 490 S.W.2d 828.

Appellant next contends the trial court erred in failing to hold a sanity hearing to determine his competency to stand trial.

Appellant filed a motion on August 3, 1971, requesting a psychiatric examination to determine his competency, as provided by Article 46.02, Vernon's Ann.C.C.P. The trial court appointed psychiatrists to examine appellant, but the record does not show the results of an examination. Appellant did not pursue the matter further.

He relies on the rule announced in Townsend v. State, Tex.Cr.App., 427 S.W.2d 55, that where the evidence raises a doubt about the competency of the accused to stand trial, the trial court should, on its own motion, conduct a separate hearing on his competency.

We cannot say that the trial court abused its discretion by failing to conduct a competency hearing where, as here, appellant merely requested a psychiatric examination, but thereafter failed to raise the issue by motion or request, and where the record is devoid of any act, circumstances or evidence which raises a bona fide doubt as to appellant's competency to stand trial. Perryman v. State, Tex.Cr.App., 506 S.W.2d 753 (1974); Zapata v. State, Tex.Cr.App., 493 S.W.2d 801, cert. den. -- U.S. --, 94 S.Ct. 865, 38 L.Ed.2d 752 (1974); Boss v. State, Tex.Cr.App., 489 S.W.2d 580. See also Vardas v. State, Tex.Cr.App., 488 S.W.2d 467, and Perryman v. State, Tex.Cr.App., 494 S.W.2d 542.

In his next three grounds of error, appellant contends that the trial court erred in failing to submit his special requested charges that Billy Doherty and William T. Wright were accomplices as a matter of law, and that the record is insufficient to support the conviction absent uncorroborated accomplice testimony. The question of whether both Doherty and Wright were accomplices as a matter of fact was submitted to the jury.

Doherty testified that Croft met him at a Lubbock service station where Doherty worked on the evening of January 16, showed him a .22 caliber pistol, left it with him for less than an hour. Croft then gave him the pistol on January 24, just before they robbed a Lubbock 7--11 store. At that time, Croft told him, 'Don't get caught with it, it has a murder rap on it.' Doherty stated that this was the first time Croft had said anything about the pistol or mentioned a murder. Doherty admitted that he knew the pistol had some connection with a murder, but denied any knowledge of Croft's involvement in the murder of Lillian Kesler.

William T. Wright testified that on January 14 appellant and DeShazo contacted him and offered to sell him some 'merchandise.' Wright admitted knowing that the 'merchandise' was stolen and that he had traded a used car for it, but he denied any knowledge of the Kesler murder until after the transaction. He stated that several days later appellant told him they had shot the old woman because 'she caught us.' Over a period of weeks, he learned that appellant, DeShazo and Croft were all involved in the Kesler robbery. Wright also admitted disposing of a sawed-off shotgun they had used in the burglaries. Wright related this information to Texas Ranger Clay Bednar and the Lubbock police, and surrendered the 'merchandise' he had purchased from appellant and DeShazo. He also related to Ranger Bednar that he had offered appellant $100 to help him escape to Canada, but claimed he did so solely to maintain appellant's confidence in him so he could obtain further information. Wright continued to inform Bednar of appellant's whereabouts up to the time of his arrest. Recently in Zitterich v. State, Tex.Cr.App., 502 S.W.2d 144 (1973), the Court restated the rule announced in Allen v. State, Tex.Cr.App., 461 S.W.2d 622, which stated:

'. . . where there is any doubt as to the fact that a given witness is an accomplice witness and such fact issue is submitted to the jury, such procedure is sufficient even though the evidence appears largely to preponderate in favor of the fact that such witness is an accomplice witness as a matter of law.'

An accomplice witness means a person who either as a principal or accessory was connected with the crime by unlawful act or omission on his part, transpiring either before, at the time of, or after the commission of the offense, and whether or not he was present and participated in the crime. Johnson v. State, Tex.Cr.App., 502 S.W.2d 761 (1973). See also Article 38.14, V.A.C.C.P., note 2.

The evidence shows that neither Doherty nor Wright was present and participated in the robbery and murder of Mrs. Kesler. Both testified that they had no knowledge of the murder until after the crime was completed, and both denied that any transactions with appellant, DeShazo or Croft were in any way connected with the Kesler robbery and murder. Such testimony is sufficient to create a doubt whether their acts were connected with the murder and to raise a fact issue as to whether Doherty and Wright were accomplice witnesses. Therefore, the trial court properly refused to charge that they were accomplice witnesses as a matter of law.

The jury having found that witnesses Doherty and Wright were not accomplice witnesses, their testimony need not be corroborated. We hold that their testimony, along with other evidence presented, is sufficient to support the conviction.

Appellant next complains that the district attorney committed improper jury argument in the following remarks made at the guilt stage of the trial:

'MR. HAMILTON (District Attorney): . . . You heard the testimony and I want you to look at the testimony again with me. You can't know all of the background in the case because it is not all in evidence, but I want you to look at that portion--

'MR. KNAPP (Defense Counsel): I move for a mistrial, Your Honor.

'THE COURT: I overrule that motion and instruct the jury not to consider that comment for any purpose in this case.

'MR. HAMILTON: Your Honor, I would like to say this in order to clarify that: Only one person has been tried here and we have two others to try. That is what I meant. . . .'

Appellant relies on Stearn v. State, Tex.Cr.App., 487 S.W.2d 734, in which this Court held that the prosecuting attorney's remark, 'We couldn't bring you all of the circumstances surrounding the arrest,' constituted reversible error. In Stearn, it was written:

'This Court has held that somewhat similar arguments did not constitute reversible error: (1) when objections thereto were sustained and the jury instructed to disregard the same, e.g., Haywood v. State, Tex.Cr.App., 482 S.W.2d 855; Alexander v. State, Tex.Cr.App., 479 S.W.2d 44; Heartfield v. State, Tex.Cr.App., 470 S.W.2d 895. . . .' At page 735.

An instruction by the court to the jury to disregard improper remarks of counsel is ordinarily held to overcome any harm or prejudice caused by the argument unless the remarks are so inflammatory that their prejudicial effects could not reasonably be removed by such an admonition. Hodge v. State, Tex.Cr.App., 488 S.W.2d 779. See also 56 Tex.Jur.2d, Trial, Section 326, page 687. We hold that error, if any, in the prosecutor's remark was not such that could not be removed by the instruction given by the trial court.

Appellant next contends that the trial court erred in refusing to grant his motion for mistrial following an unresponsive reply by State's witness Wright during cross-examination. Wright was being cross-examined by defense counsel concerning prior inconsistent statements made by him to the grand jury investigating the murder when the following occurred:

'MR. KNAPP: Tell them the same story you are telling here today?

'MR. WRIGHT: No, Sir.

'MR. KNAPP: What did you tell them, if you recall?

'MR. WRIGHT: Judge, do I have to answer this question?

'THE COURT: Yes, sir.

'MR. WRIGHT: I can't answer that question.

'MR. HAMILTON: Your Honor, I request that the witness be required to answer it. I'd like to have the jury excused.

'MR. WRIGHT: Your Honor, my life has been threatened three times this week. I was told I'd be shot if I even came here.'

Appellant moved for a mistrial and the jury was retired from the courtroom. The district attorney then stated that the State had learned of the threats against Wright's life and had so advised defense counsel, that defense counsel had...