Butler v. State, 69734

• Citation: 769 S.W.2d 234
• Decision Date: 05 April 1989
• Docket Number: No. 69734,69734
• Parties: Jerome BUTLER, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 234

769 S.W.2d 234

Jerome BUTLER, Appellant, v. The STATE of Texas, Appellee.

No. 69734.

Court of Criminal Appeals of Texas,

En Banc.

April 5, 1989.

Larry P. Urquhart, court appointed on appeal, Brenham, for appellant.

John B. Holmes, Jr., Dist. Atty., Linda A. West, Jim Buchanan and George Lambright, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.

OPINION

MILLER, Judge.

Appellant was convicted of capital murder, V.T.C.A. Penal Code, Section 19.03(a)(2). Death was imposed by the trial court after the jury returned affirmative findings to both special issues submitted pursuant to Art. 37.071(b)(1) and (2) V.A.C.C.P. Direct appeal to this Court was automatic. We will affirm appellant's conviction.

Appellant raises six points of error. In his first point of error, appellant asserts there was insufficient evidence to support the jury's verdict of guilty. Specifically, appellant alleges there was insufficient evidence to demonstrate he committed murder in the course of a robbery, or an attempted robbery, thereby precluding a conviction for capital murder.

The indictment alleged that appellant on or about June 17, 1986, "while in the course of committing and attempting to commit the ROBBERY of NATHAN OAKLEY, hereafter styled the Complainant, intentionally cause[d] the death of the Complainant by shooting the Complainant with a gun." Since appellant asserts insufficiency of the evidence, a detailed recitation of the facts is essential.

The testimony at trial demonstrated that the victim, Nathan Oakley, was sitting in his cab at the Sky Jack Cab Company lot when Louise Walker, the company dispatcher, arrived for work on June 17, 1986, at 3:50 p.m. They exchanged pleasantries and joked about the food Walker had brought to work. A few minutes after 4:00 p.m. Walker put out a call for a fare pick-up at the Circle K store on the corner of Blodgett and Scott streets in Houston. To Walker's surprise, Oakley radioed in stating that he would take that fare. She believed he was either still on the lot or had gone home because he usually ended his shift between 3:30 and 3:45 p.m. each day. After dispatching Oakley to the Circle K, Walker never heard from him again.

The State's only eyewitness to the alleged offense was a courier service employee, Lawrence Johnson. Johnson had just made a pick-up at Oak Farm Dairy and was proceeding north, in his van, on Sampson Street at about 4:15 p.m. on June 17, 1986, when he saw a taxicab directly in front of him veer to the left. The cab cut across the lane of oncoming traffic and came to rest on the curb.

Johnson testified that as he slowly passed the cab he saw a man, who he later identified as appellant, in the back seat with a gun in his right hand. He appeared to be looking over the front seat and moving his left hand around in the front seat. Johnson also noticed that Oakley appeared slumped over in the front seat with his head toward the right front passenger door. Circling the block, he returned in approximately forty-five seconds to see appellant running away from the cab with a gun in his hand.

After watching appellant flee, Johnson proceeded a few blocks to where he saw a group of people sitting on the porch of a house and asked them to call the police and report a shooting. They declined to call but allowed him to use their phone to call the police, however, he never made the call because as he approached the house he saw appellant walking down the street. When he pointed out appellant to the group on the porch, Johnson was informed that appellant may be heading for that house because he was known by the occupants. Johnson backed away from the house, passing within one car length of appellant, and returned to his van.

Johnson then returned to the cab where he opened the cab door and used its radio to call for help. At this time, he observed that the left front pants pocket of the decedent was turned inside out. He spoke with Walker over the cab radio and apprised her of the situation. Walker then called an ambulance. Johnson then flagged down Houston Police Officers Carradero and Bertolini who were driving down Sampson Street on routine patrol. The officers proceeded to call for other units and began to cordon the area.

Sergeants G.L. Dollins and Chris Anderson, H.P.D. Homicide Division, arrived at the crime scene at approximately 4:40 p.m. A search of decedent revealed that his shirt pocket contained a pipe tool, the kind used by pipe smokers, and a lighter. The right front pants pocket had a set of keys and the left front pants pocket was turned inside out. The right rear pants pocket was empty and the left rear pants pocket contained a wallet with no cash or credit cards. Sergeant Dollins testified that decedent was wearing a wrist watch and two rings that he was unable to remove.

During the course of the investigation, H.P.D. was given the name of a possible suspect, appellant Jerome Butler, by the persons sitting on the porch where Johnson stopped to use the phone. Officer Carradero used a computer to match appellant's name to an address, and later that evening, just after 8:00 p.m. on June 17, 1986, he and his partner observed appellant standing outside that address, at 3835 Arbor Street. They approached appellant and upon inquiring they learned that his name was Jerome Butler. When the officers learned the identity of appellant, they placed him under arrest for capital murder.

Sergeant Anderson and H.P.D. crime scene investigator Mark Walicki were called to the scene of appellant's arrest. Upon receiving written consent from Ms. Marshall, owner of 3835 Arbor Street, they conducted an evidentiary search of the premises. The officers recovered two pistols and a box of ammunition from Marshall's bedroom. One of the weapons was positively identified as the alleged murder weapon.

During the course of this search, appellant, who rented a separate room in the house, was transported to the police station. While at the police station, appellant phoned Marshall and after the conversation she went to his room and returned with a plastic cup containing money and asked the officers, "Do you want Jerome's money?" The cup contained a single one hundred dollar bill and an undetermined amount of change that the officers had missed on their initial search of appellant's room. The officers took the money suggesting that they may examine it for fingerprints.

Robbie Chandler Oakley, wife of the decedent, testified that her husband was still home when she left for work, at 7:10 a.m., on the day of his murder. Oakley testified at trial she was in need of money on that day, so she went through the pockets of his shirt and pants. She removed thirty-five dollars from his pants pockets. She testified as follows:

Well, I needed some change, some small change and I went in his pockets and in his left pocket he had four one-hundred dollar bills and some twenties. In his shirt pocket, he had some small bills like ones and a few fives that he made his change from while driving cab [sic]. And then in his left [sic] pocket of his pants he had maybe a hundred dollars or so in twenties, tens and a few fives.

She further testified that the reason he had this much money on him was he had cashed a check on Monday.

Officer M.W. Williams, a crime scene investigator, was asked to perform a trace metal test on appellant's hands at 9:30 p.m. on June 17, 1986. This occurred five and one half hours after the alleged murder. He testified that the test was negative for appellant's left hand, however, the test revealed a pattern on a small portion of his right palm, the tips of his ring and middle fingers, and the base of his index finger. With the preceding litany of facts in mind, we may now apply them to the appropriate standard of review to determine if there was sufficient evidence to sustain appellant's conviction for capital murder.

It is the duty of the State to prove each and every element of the crime beyond a reasonable doubt. Beyond a reasonable doubt is a bulwark of our criminal jurisprudence. As the United States Supreme Court stated, leaving no uncertainty as to the significance of this proposition:

Lest there remain any doubt about the constitutional stature of the reasonable doubt standard, we explicitly hold that the Due Process Clause protects the accused (sic) against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.

In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970).

Historically, the United States Supreme Court has held that criminal convictions could not be sustained under a sufficiency of evidence analysis if there was "no evidence." The concept of a no evidence rule was enunciated in Thompson v. Louisville, 362 U.S. 199, 199, 80 S.Ct. 624, 625, 4 L.Ed.2d 654 (1960):

The ultimate question presented to us is whether the charges against petitioner were so totally devoid of evidentiary support as to render his conviction unconstitutional under the Due Process Clause of the Fourteenth Amendment. Decision of this question turns not on the sufficiency of the evidence, but on whether this conviction rests upon any evidence at all. (emphasis added)

The focal point, at one time, was to determine whether there was any, or in the alternative "no evidence," to support the conviction. The constitutional import was to find a due process violation only where there was no evidence but the jury still rendered a guilty verdict.

With these two ideas, due process and the no evidence standard, juxtaposed, the Supreme Court was set to reconsider the standard of review for determining just what is sufficient evidence to prove all the elements of a crime beyond a reasonable doubt. In establishing this standard of review, the Court in Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560 (1979),...