Burks v. State

Decision Date09 March 1994
Docket NumberNo. 70971,70971
Citation876 S.W.2d 877
PartiesJohn Albert BURKS, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals
OPINION

WHITE, Judge.

Appellant was convicted of the offense of murder committed in the course of a robbery. See TEX.PENAL CODE ANN. § 19.03(a)(2). In accordance with the jury's affirmative answers to the special issues, his punishment was assessed at death. See TEX.CODE CRIM.PROC.ANN. Art. 37.071(b)(1) and (2). Direct appeal to this Court was automatic. Id., § (h). We will affirm.

In twenty-eight points of error, appellant argues: the evidence was, absent the testimony of the accomplice witness' testimony, insufficient to "tend to connect" appellant to the instant offense; the trial court erred when it overruled his motion to quash the indictment, and his motion to change venue; the trial court erred when it excused from jury service those persons who were over the age of 65, and those persons who were unable to read and write; the trial court erred when it overruled nine of his challenges for cause; the trial court erred in admitting statements made by the victim and another witness which gave a description of the perpetrator, in admitting evidence that appellant asked for bullets 7 to 10 days prior to the instant offense, in admitting evidence of appellant soliciting help in a robbery one month prior to the instant offense, in admitting evidence of a conversation between appellant and his accomplices overheard on the day before the instant offense, and in admitting into evidence statements made by the victim to his wife and daughter; statements made by the State during the examination of the treating doctor were so prejudicial and inflammatory as to render futile an instruction to disregard; the trial court erred in admitting evidence of appellant's arrest as evidence of flight; the trial court erred when it denied appellant the right to admit evidence that another person admitted to the commission of the instant offense; the State's final argument at guilt-innocence was so inflammatory and prejudicial as to render futile an instruction to disregard; the trial court erred at punishment when it admitted evidence of a prior alleged capital murder; the trial court should have given an instruction at punishment on mitigating circumstances; the trial court should have defined the phrase "criminal act of violence" in the charge at punishment; the trial court erred in not instructing the jury at punishment on the evidence of extraneous offenses and how to consider them; and, lastly, the trial court erred when it failed to define the term "continuing threat to society" in the charge at punishment, which precluded the jury from giving consideration to mitigating evidence. As appellant contests the sufficiency of the evidence to convict him in his fourteenth point of error, a detailed discussion of the facts is necessary to fully address appellant's claim of insufficient evidence.

STATEMENT OF FACTS
A. Non-accomplice evidence

According to Victor Macias, at approximately 11:00 a.m. on Friday, January 20, 1989, Macias drove to Jesse's Tortilla Factory located on Webster Street in Waco to cash a check. He observed a short Black man carrying a black object in his hand and "trotting" towards a green late sixties model car parked on the side of the road near Jesse's Tortilla Factory. 1 The man got into the backseat of the green car. When Macias arrived at Jesse's Tortilla Factory, he saw Jesse Contreras, the store owner, running towards the side of the building and he also saw blood on the pavement leading to the front door of the building. No one was inside the store; but there was blood on the floor. Macias went back outside where he saw the green car speeding away. Macias testified that he saw the driver and another man seated in the backseat, but did not see anyone else in the car. 2 When Macias went back inside the building, he saw Contreras calling his daughter on the telephone. Macias stayed until she arrived.

Gloria Contreras Diaz testified that when she arrived at the store, her mother was tending her father who was spitting up blood and appeared to be in pain. Diaz testified that her father told them a Black man with a mask had attempted to steal his money, but he threw a trash can at the perpetrator who then shot him. Contreras died twenty-seven days later as a result of multiple gunshot wounds.

A firearms expert testified that two .25 caliber bullets removed from Contreras' body were fired from the same gun, probably a .25 caliber semi-automatic Raven Arms pistol--a compact pistol easily carried in a pocket without notice or discomfort and sometimes referred to as a "Saturday Night Special." Four other spent bullets found at the crime scene, admitted in evidence, while not identifiable as having been fired from the same gun as the other two, were .25 caliber. Also found at the crime scene were five spent .25 caliber shell casings. The shell casings were manufactured by three different manufacturers which could mean they were obtained from different sources. The number of bullets contained in a .25 caliber semi-automatic Raven Arms pistol is six.

Appellant's half-brother, Louis McConnell, testified that two weeks before the instant offense appellant asked him whether he owned a gun or knew someone who did; Louis responded negatively. Louis McConnell lived with his father, Bishop McConnell, Jr., and his brother, Bishop McConnell III. The following week, Louis came home from work around 5 p.m. and saw a small caliber pistol and a dark navy or black stocking cap on a table. Appellant, Bishop McConnell III, Carlton Johnson and Victor Monroe were at the house. Louis McConnell testified that he saw appellant pick up the gun and walk toward the door. Even though Louis McConnell saw appellant leave with the stocking cap, he did not see appellant leave with the gun. After appellant left, Louis McConnell noticed the gun was no longer in his house. 3

Johnny Cruz, a local grocer, testified that one week before the offense, appellant approached him seeking .25 caliber bullets for an automatic handgun. After the shooting, Cruz saw Mark McConnell driving a late sixties model green Chevrolet Impala.

Appellant's cousin, Ike Weeks, testified that in late December appellant asked him to participate in a robbery, but he refused. The day before the offense, Weeks saw appellant, Mark McConnell and Aaron Bilton standing in an alley. Weeks overheard appellant tell Mark that he would call him the next day at 9:00 a.m. so that Mark could pick him up, and that Mark would receive a $10.00 bag of marihuana and some money. Weeks further testified that sometime in January, but before the offense, appellant asked him whether he had any bullets. 4

Vincent Guillem, a mechanic, testified that he was in his yard between 10:00 a.m. and 10:30 a.m. on the morning of the offense when Mark McConnell drove up in his green Chevrolet. 5 Guillem saw four people in the car--Bishop McConnell III, Mark McConnell, appellant, and another person. Appellant got out of the car and asked Guillem whether he had any .25 caliber bullets. When he said no, appellant walked across the street to his house and returned to Mark's car. Guillem stated that appellant left with Mark McConnell driving the car. Mark McConnell was the only person Guillem said left with appellant. Guillem did not mention the accomplice, Bilton, or Bishop McConnell being with appellant. Sometime later Guillem heard ambulance sirens, and ten to fifteen minutes after the sirens, he saw Mark's car drive by very fast.

Appellant's aunt testified that a few days after the offense she accused appellant of having been seen at Jesse's Tortilla Factory when Contreras was shot. Appellant denied this, claiming that no one had been there when he left, and he threatened her when she said that she would notify the police if she found out that he had shot Contreras. 6

While separately talking to Contreras and Macias, Detective Price of the Waco Police Department obtained a description of the suspect as being a Black male possessing a black ski mask, small build, 5'6"' to 5'7"'. Price ascertained during separate conversations with Macias and Guillem that the vehicle involved was a green four-door mid to late sixties model Chevrolet with a specific license plate number. Four days after the offense Price observed Mark McConnell driving a car matching that description, which Price later identified at trial as the same car depicted in State's exhibits two through five.

In February, 1989, Detective Price notified the police in Harlingen that a warrant had been issued for appellant's arrest in connection with this offense. 7 During the first week of March, 1989, two Harlingen police officers in a patrol car noticed appellant walking on a sidewalk in the west part of town and drove up behind him. When Detective Davilla called appellant's name and identified himself as police, appellant ran. Davilla chased him on foot, but then lost him. Detective Saldivar observed appellant hiding in someone's garage. When appellant saw Saldivar, he began running again. Saldivar chased him on foot to a fenced enclosure where she drew her weapon and told him to stop as he attempted to climb over the fence. Davilla arrived shortly thereafter, and appellant was taken into custody.

B. Accomplice-witness testimony

According to Aaron Bilton, sometime in January, but before the offense, appellant told him that he needed money and on the day before the offense, appellant told him that he was going to "knock off Jesse." Appellant wanted Bilton to go inside Jesse's Tortilla Factory first to see who was there. Appellant had planned the offense...

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