Brown v. State

• Decision Date: 01 February 1978
• Docket Number: No. 53932,No. 1,53932,1
• Citation: 561 S.W.2d 484
• Parties: James David BROWN, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 484

561 S.W.2d 484

James David BROWN, Appellant,

v. The STATE of Texas, Appellee.

No. 53932.

Court of Criminal Appeals of Texas, Panel No. 1.

Feb. 1, 1978.

Rehearing en banc Denied March 1, 1978.

Cletus C. Schenk, Wichita Falls, for appellant.

Timothy D. Eyssen, Dist. Atty., Wichita Falls, Austin, for the State.

Before TOM G. DAVIS, DALLY and W. C. DAVIS, JJ.

OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for capital murder. The jury returned a "No" answer to the question required by Art. 37.071(b)(2), V.A.C.C.P., concerning the probability that appellant would commit future criminal acts of violence that would constitute a continuing threat to society. Appellant's punishment was automatically assessed at life. Since appellant contends that the evidence is insufficient to support the conviction, a detailed recitation of the facts is necessary.

The record reflects that the appellant, a police officer in Wichita Falls, made arrangements to have his wife killed in return for the payment of $400. Zelma Lee Strader, the manager of a convenience store appellant often frequented, testified that appellant requested that she find a "hit man to get rid of his wife." Strader in turn contacted a man named Harley Zinn Main about the matter. Main then contacted two individuals named Mark Douglas Fields and Gene Edwin Gameson, who eventually committed the murder.

Appellant and his wife Linda had been separated for several months before the murder, and divorce petitions had been filed. The deceased continued to live in their home with their two young daughters, while the appellant moved in with his parents. The deceased's body was discovered by a neighbor on the morning of April 19, 1975. The body was lying just inside the door of her residence. The wooden door was standing open but a glass "storm door" was closed and locked. There was some broken glass on the porch. The deceased had been shot one time in the area of her neck. The deceased was last seen alive by a friend who left the house at approximately 10:40 p. m. on April 18, 1975. At the time of the killing, the two daughters were with appellant in the course of a regular weekly visitation.

At the trial, Strader testified that the appellant first approached her about finding a "hit man" in late February or early March, 1975. Strader talked to several people about the appellant's request. The last person she spoke to was Harley Zinn Main. Both Strader and Main were employed in a Jiffy Store on Iowa Park Road in Wichita Falls. After speaking to Main, Strader related that she reported back to the appellant that the job would cost $400, with $200 due immediately and the remaining $200 when the job was done. Appellant delivered $200 to her and she passed it on to Main. After she had delivered the money, Strader stated that the appellant frequently asked "when the job would be completed." Strader and Main had several discussions about how the killing was to occur. On the morning after the homicide, the appellant arrived at the Jiffy Store in police uniform to have his regular morning cup of coffee. While he was there, appellant told her he hadn't heard about Linda's death on the radio yet. Finally, Strader testified that four to five weeks after the killing appellant delivered another $200 to her and she passed this money along to Fields and Gameson.

Harley Zinn Main testified that he was employed at the Jiffy Store and worked the 11:00 p. m. to 7:00 a. m. shift. Main also attended school at Aero Technical Institute. Main related that Strader told him the appellant "was willing to pay to get shed of her, his old lady." Main said he then approached Fields, who was a friend of his at Aero Tech, and offered him the job. Main called Strader back and asked how much the appellant would be willing to pay. Strader told him that appellant said he would pay "four or five hundred dollars." Later that day, Main and Fields went to the Jiffy Store and picked up $200 from Strader. Main gave the money to Fields. Main stated that Strader told him on at least two occasions that the appellant wanted to know when the job was going to be done. On one occasion, about four days before the killing, appellant came into the store and asked Main "when they are going to take care of the job." Main said he didn't know, and appellant replied, "The sooner the better." Between the 15th and 18th of April, 1975, Fields came to the Jiffy Store and showed Main a new gun he had purchased. Main further testified that on the night of April 18, 1975, shortly after he went to work at 11:00 p. m., he received a phone call from Gameson, who told him, "The job has been done."

Gene Edwin Gameson testified he was approached by Main and Fields about participating in the killing. Gameson said he heard the sum of $400 being discussed as "payment for somebody being shot." Gameson related that "numerous times" before April 18, 1975, he and Fields had "looked at" the house located at 2602 Hairpin Curve where the deceased lived. Gameson and Fields went to the house between 8:00 and 9:00 p. m. on April 18, 1975, and observed that the deceased had company. They returned between 10:30 and 11:00 p. m., when the company had left. They parked the car in an area near the city aqueduct. Gameson stated that both he and Fields had "extensively" used drugs and alcohol before they arrived at that location. According to Gameson, Fields "walked up the aqueduct to Hairpin Drive" and then "went through a back yard" where he lost sight of him. Fields was carrying a .357 magnum Luger pistol when he left the car. In approximately five minutes, Gameson heard a shot and Fields came running back to the car. Fields was "very excited" when he returned to the car. Upon his return to the car, Fields said: "I hit her, she hit the wall and then hit the door. I think she's dead." Gameson then observed Fields extract a single empty shell from the gun. Gameson and Fields received the second $200 from Strader at the Jiffy Store two or three weeks after the shooting. Gameson stated that Fields paid him $50 for his part in the killing.

The State also offered the testimony of Carla Gibbins, who was identified as appellant's one-time girl friend. Gibbins testified that appellant often visited the store where she worked while he was on duty. Appellant told her that "a friend of his knew a friend or knew someone who could 'blow her (the deceased) away,' that was the terminology he used." Gibbins gave the following testimony concerning how appellant told her this would be done:

"He said that there would be you know, I thought maybe he meant, you know, someone would just walk up to her in the street, you know, and kill her or something, but he said no, that they would walk up on the front porch, ring the door bell and then when she came to the door that they would blow her away."

In response to her questions about whether his plan would endanger his two daughters, appellant told Gibbins that "it would happen on a Friday night when he had the children with him." Gibbins related that between one and two weeks before the killing, the appellant showed her a "roll of money" and told her it was his "down payment." Gibbins was unable to tell how much money was contained in the "roll." Gibbins' testimony concerning appellant's comments on his chance of being caught reflects the following:

"Q. During the times that he would discuss with you how this incident would occur concerning his wife, did you ever talk to him about the possible suspects of the case?

"A. I told him that if something like this happened that he ought to realize he would be the first one that the police would come in and question.

"Q. What did he say in response to that, anything?

"A. He just kind of laughed and said, 'Well, they can't prove it.' "

Finally, Gibbins testified that on the morning of April 18, 1975, the day of the shooting, appellant came to the Radio Shack where she worked and made two telephone calls. The second phone call was to a man who was working on her car, but during the first call he "talked rather softly over the phone, kind of held his hand over the receiver so no one could hear him." Gibbins asked appellant whom he had called, and he replied that he had called Aero Tech.

Appellant's challenge to the sufficiency of the evidence is bottomed on the contention that there was inadequate corroboration of the accomplice witnesses' testimony. Article 38.14, V.A.C.C.P., provides:

"A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense."

In Edwards v. State, 427 S.W.2d 629, 632, we said:

"The test as to the sufficiency of the corroboration is to eliminate from consideration the evidence of the accomplice witness and then to examine the evidence of other witnesses with the view to ascertain if there be inculpatory evidence, that is evidence of incriminating character which tends to connect the defendant with the commission of the offense. If there is such evidence, the corroboration is sufficient; otherwise, it is not."

See also Caraway v. State, Tex.Cr.App., 550 S.W.2d 699; Loa v. State, Tex.Cr.App., 545 S.W.2d 837; Etheredge v. State, Tex.Cr.App., 542 S.W.2d 148; Williams v. State, Tex.Cr.App., 542 S.W.2d 131; James v. State, Tex.Cr.App., 538 S.W.2d 414; Deas v. State, Tex.Cr.App., 531 S.W.2d 810; Moore v. State, Tex.Cr.App., 521 S.W.2d 263; Bentley v. State, Tex.Cr.App., 520 S.W.2d 390; Forbes v. State, Tex.Cr.App., 513 S.W.2d 72; Cherb v. State, Tex.Cr.App., 472 S.W.2d 273.

It is also well established that the corroborative testimony need not directly link the accused to the crime or be sufficient in itself to establish guilt. Lyman v. State, Tex.Cr.App., 540 S.W.2d 711; Bentley v. State,supra; Black v. State, Tex.Cr.App., 513 S.W.2d 569; Cherb v....