O'Bryan v. State, 59731

• Citation: 591 S.W.2d 464
• Decision Date: 26 September 1979
• Docket Number: No. 59731,59731
• Parties: Ronald Clark O'BRYAN, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 464

591 S.W.2d 464

Ronald Clark O'BRYAN, Appellant, v. The STATE of Texas, Appellee.

No. 59731.

Court of Criminal Appeals of Texas, En Banc.

Sept. 26, 1979.

Rehearing En Banc Denied Oct. 24, 1979.

Marvin O. Teague and Richard E. Harrison, Houston (Court appointed), for appellant; Will Gray, Houston, of counsel.

Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III, Michael Hinton and Vic Driscoll, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

W. C. DAVIS, Judge.

This is an appeal from a conviction for capital murder, V.T.C.A. Penal Code, Sec. 19.03(a)(3). The jury answered affirmatively the special issues submitted pursuant to Article 37.071, Vernon's Ann.C.C.P. and, accordingly, punishment was assessed at death. Appellant was convicted of the murder of his eight year old son, Timothy, for remuneration or the promise thereof, namely, the proceeds from a life insurance policy on the life of Timothy.

The record reflects that appellant and his family ¹ had leased a townhouse in Deer Park, a suburb of Houston. By trade, appellant was an optician; in the past, he had been involved in the insurance business and had worked for a chemical company. At the time of the offense, appellant was employed by Texas State Optical (TSO) earning a "take-home" salary of approximately $150 per week.

The record reflects that appellant had serious personal financial problems. Prior to moving into the townhouse, appellant sold the family residence and applied the $6,000 in proceeds to the most pressing obligations. ² These financial difficulties cumulated to the point that in October of 1974, appellant's take-home salary was virtually consumed by rent, car payments, and grocery expenses. Still, appellant owed "GAC" about $2,000 on a delinquent loan and another $800 to the "government." He was eight months behind on his $149 per month car payments and had received a letter threatening repossession. Appellant openly discussed his financial burdens, and had attempted to borrow $100 from an associate. The Medical and Dental Service Bureau refused appellant a loan in the amount of $1,750.

Contemporaneous with these financial problems, appellant acquired several life insurance policies covering his children. In January of 1974, appellant joined the "New Outlooks Club" at Pasadena State Bank, which entitled him to a small amount of life insurance by virtue of automatic withdrawals of a few dollars per month. Each member of appellant's family signed the signature card at the bank and therefore each was covered by a $10,000 life insurance policy under the "New Outlooks Club" plan. Appellant's wife protested the action because she felt even the small premium would be an unnecessary strain on the family's already tight budget. She also expressed her feelings that life insurance on the children was an unnecessary expense. In late September or early October, appellant ignored the advice of his life insurance agent and purchased $20,000 life insurance policies on each of his children. These policies were purchased without the knowledge of appellant's wife. By mid-October, both of appellant's children were covered by several life insurance policies, while appellant had very little or no coverage himself.

In August of 1974, appellant requested that the manager of TSO obtain some cyanide to use in cleaning gold glass frames. The request was unusual because cyanide had not been used in the optical business for over twenty years. About three weeks later appellant repeated the request and was referred to persons with more authority than the branch manager.

In early September, appellant telephoned a friend, Bobby Terry, employed by Arco Chemical Company. He and appellant had at one time worked together at Arco Chemical Company. Appellant told Terry that he was taking a chemistry course at San Jacinto College ³ and felt that his instructor was not familiar with the numerous types of cyanide. Appellant and Terry then discussed the varieties of cyanide and the availability of the chemical. Appellant then inquired where cyanide might be purchased and Terry referred him to several area chemical companies, including Curtin Matheson Scientific Co. Finally, under the guise of "curiosity," appellant inquired about fatal human doses of cyanide, along with the procedures used to detect unknown chemicals in the body of a deceased person.

Appellant continued to discuss cyanide among his fellow employees at TSO. These discussions ranged from the use of cyanide in the optical business to the fatal human dosage of the chemical.

Prior to Halloween of 1974, appellant appeared at Curtin Matheson Scientific, a chemical outlet in Houston. Appellant informed salesperson David Lee Jackson that he wanted to purchase a small amount of cyanide. The smallest amount of cyanide available was a five-pound container, which appellant rejected as too large. Appellant and Jackson then discussed other sources for small amounts of cyanide before appellant departed.

Immediately preceding Halloween of 1974, appellant discussed purchasing a home, with his friend, Jimmy Bates. The discussion included prices and availability and ended with a request from appellant that Bates not inform appellant's wife of the discussion. On October 23, 1974, appellant informed the Medical Branch Credit Union that he expected a large sum of money before the end of 1974 and signed an agreement extending arrearages on the note to January 1, 1975. Further, appellant informed a co-worker of his intention to quit his job at TSO on November 15th. Appellant's wife was unaware of these activities and she testified that she had no reason to expect a large sum of money before the end of the year.

About two weeks prior to Halloween, appellant brought home "trick or treat" costumes for his two children. He appeared very excited about taking the children "trick or treating," although he had never been particularly excited about Halloween in the past. Approximately one week before Halloween, appellant and Jimmy Bates agreed that appellant and his family would come to the Bates' home for dinner on Halloween, then the children from both families would "trick or treat" together.

On Halloween, Thursday, October 31, 1974, one of appellant's customers at TSO observed appellant in the parking lot of the shopping center where TSO is located. Appellant was carrying a stapler and a bag with unknown contents. Later, that same day, the customer's glasses were serviced by appellant. A conversation between appellant and the customer included a discussion of lethal amounts of cyanide.

After work, appellant went to the home of Jimmy Bates. As planned, appellant's family had arrived earlier and upon appellant's arrival, both families sat down to dinner. After dinner, appellant and Bates were to take the children "trick or treating" in the neighborhood surrounding the Bates' home. However, the weather turned bad and by the time dinner was over, rain was falling.

The rain caused some modification in the plans for "trick or treating." One of the Bates' children decided not to participate, leaving only three children, including Timothy, the deceased, to go. Because of the rain, "trick or treating" was limited to only two streets (Citation Street and Donerail Street) and several homes were not visited for a variety of other reasons.

The group that set out from the Bates home on Halloween night included Bates and one of his children and appellant, along with both of his children. Earlier, a plan was developed, whereby Bates would remain on the sidewalk while appellant accompanied the children to the doors of the homes to request treats. At 4112 Donerail, the home of Courtney and Carolyn Melvin, appellant accompanied the children to the door while Bates remained on the sidewalk. When no one answered the door at 4112 Donerail, the children ran to the next home. Appellant, however, remained behind in the darkness for about thirty seconds. Bates saw no one answer the door at 4112 Donerail, but observed appellant holding at least two "giant pixy styx" candies ⁴ as he departed this address. Appellant left the porch area "switching" the candy through the air exclaiming that the "rich neighbors" were handing out expensive treats. One giant pixy styx was briefly distributed to each child; appellant then took the candy back and redistributed them when the group returned to the Bates' residence. One giant pixy styx was given to each child present, including the child that had not gone with the group. A fifth giant pixy styx was given to a child who "trick or treated" the Bates' residence when he told appellant that he went to his church.

With the evening's activities completed, appellant took the children home while his wife stopped off at the home of a friend. Appellant readied the children for bed and they then requested some of the Halloween candy. Timothy elected to eat some of his giant pixy styx. After taking one gulp of the candy from the giant pixy styx, Timothy encountered difficulty in getting the candy out. Appellant took the candy and rolled it between his hands to loosen it. Timothy took a second gulp and complained that the candy tasted bad. ⁵ Appellant gave Timothy some Kool-Aid to wash the bad taste out of his mouth. After drinking the Kool-Aid, Timothy got sick, and went into the bathroom, where he started vomiting. Appellant held Timothy up by the waist as Timothy became sicker and then went into convulsions.

An ambulance was summoned by appellant. Timothy was taken by ambulance to a local hospital where he died within an hour. Fluids aspirated from Timothy's stomach at the hospital contained 16 milligrams of cyanide and a blood test showed the level of cyanide in the blood to be .4 milligrams. A fatal human dose of cyanide is a blood level between .2 and .3 milligrams of cyanide.

Twice, while attempting to explain the events to ambulance...