Buxton v. State

• Decision Date: 25 September 1985
• Docket Number: No. 69168,69168
• Citation: 699 S.W.2d 212
• Parties: Lawrence Lee BUXTON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 212

699 S.W.2d 212

Lawrence Lee BUXTON, Appellant, v. The STATE of Texas, Appellee.

No. 69168.

Court of Criminal Appeals of Texas,

En Banc.

Sept. 25, 1985.

Rehearing Denied Nov. 20, 1985.

Janet Seymour Morrow, court appointed on appeal, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., and Winston E. Cochran, Jr., Don Smyth and Lyn McClellan, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for capital murder. V.T.C.A. Penal Code, Sec. 19.03(a)(2). After finding appellant guilty, the jury returned affirmative findings to the special issues under Art. 37.071(b), V.A.C.C.P. Punishment was assessed at death.

Conviction was under an indictment which charged appellant with causing the death of Joel Slotnik by shooting him with a gun while appellant was in the course of committing or attempting to commit the offense of robbery.

In his second ground of error appellant contends "The evidence was insufficient as a matter of law to support the conviction for capital murder."

The State relied upon circumstantial evidence for conviction. Since there appears to be some question raised as to the standard for review in such cases, we quote from our recent opinion in McGoldrick v. State, 682 S.W.2d 573 (Tex.Cr.App.1985):

"In reviewing the sufficiency of the evidence to sustain the conviction, we observe this Court has held that the standard for such review on appeal is the same for both direct and circumstantial evidence cases. Wilson v. State, 654 S.W.2d 465 (Tex.Cr.App.1983) (opinion on rehearing); Denby v. State, 654 S.W.2d 457 (Tex.Cr.App.1983) (opinion on rehearing); Freeman v. State, 654 S.W.2d 450 (Tex.Cr.App.1983) (opinion on rehearing); Carlsen v. State, 654 S.W.2d 444 (Tex.Cr.App.1983). Further, the relevant standard is the one developed by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), to wit 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' "

The Slotnik and Sternberg families were returning home from Yom Kippur services on the evening of September 19, 1980 when they stopped at a Safeway store on Fry Road. Joel Slotnik, his five-year-old son Aaron, and Mrs. Sternberg entered the store. Upon entering the store Sternberg testified that a man with a stocking mask over his face yelled "Hit the deck." After getting down on the floor, she observed that there were three masked men, two of whom were brandishing guns.

Pursuant to orders of one of the robbers, Patricia Jackson, an assistant store manager, gave one of the robbers currency from a cash register. Jackson observed one of the gunmen pointing a gun toward Slotnik. Slotnik was seated on the floor holding his five-year-old son who was standing. Mrs. Sternberg heard a robber tell Slotnik "You better get that kid down." The gunman then fired his pistol, hitting Slotnik in the neck. Slotnik died on September 23, 1980.

Two robbers exited the store and went to a vehicle described as a dark two-door General Motors automobile. They were followed by the third robber, the person who Mrs. Sternberg testified as being the person who fired the only shot.

Other members of the deceased's family had remained in their parked vehicle in front of the store. The deceased's wife, Linda Slotnik, testified she heard a noise and looked toward the doors of the store. She observed two masked men walk rapidly from the store. They were followed by a third man who pulled off his mask as he left the store. Mrs. Slotnik identified appellant in court as the man who pulled off his mask.

Lee Slotnik, a fourteen-year-old son, also remained in the family vehicle. He testified he heard the sound of a shot coming from inside the store. He also identified appellant as the third robber to leave the store.

John Larry Foster testified he had a conversation with appellant while he was in Houston sometime in late January or the first part of February, 1981. Appellant told him "he went out and pulled a robbery" at a grocery store and "this guy seen him when he was coming out and he hollered for the guy to stop and he didn't so he shot."

Appellant further related to Foster that he used "38 slugs" because they were "hard to be traced." Appellant laughed about the incident.

An autopsy revealed the cause of death to be a gunshot wound to the neck. A bullet was recovered during autopsy. C.E. Anderson, a firearms examiner for the Houston Police Department, testified that he had examined the bullet and "It's a .357 or a .38 caliber." Testimony from other witnesses reflected appellant had a General Motors car at the time in question.

The appellant appears to bottom his contention of insufficiency of the evidence on the following rule stated in Walden v. State, 579 S.W.2d 499 (Tex.Cr.App.1979):

"Where circumstantial evidence relied on by the prosecution is somewhat weak and where the record on appeal affirmatively shows not only that other testimony which would have cast additional light on the facts was available to the prosecution, but also that the prosecution did not introduce such other evidence or satisfactorily account for its failure to do so, the appellate court will treat the case as one showing reasonable doubt of the sufficiency of the evidence to support the conviction. Schershel v. State, Tex.Cr.App., 575 S.W.2d 548; King v. State, Tex.Cr.App., 396 S.W.2d 409; 24 Tex.Jur.2d 427, Evidence, Section 745."

Assuming arguendo, that the foregoing rule still has vitality, we find no merit in appellant's reliance on this rule. We do not find this to be a weak circumstantial case in light of the testimony of the witnesses at the scene nor do we find that appellant has demonstrated that there were other witnesses who could have cast additional light on the facts.

In applying the standard for review set forth in the Carlsen and Wilson line of cases, the exclusion of the reasonable hypotheses test continues to be utilized. As it was noted in rehearing in Denby, "if the evidence supports an inference other than the guilt of the appellant, a finding of guilt beyond a reasonable doubt is not a rational finding." 654 S.W.2d at 464. Bearing in mind the foregoing, we conclude that a rational trier of the facts could have found the essential elements of the instant crime proved beyond a reasonable doubt. We reject appellant's contention that the evidence was insufficient to support the conviction.

Appellant contends "the evidence was insufficient as a matter of law to support a yes answer to punishment question number one concerning the deliberateness of appellant's conduct."

The first question asked the jury at the punishment phase is "whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result." Art. 37.071(b)(1), V.A.C.C.P.

The thrust of appellant's argument is that the jury would had to have believed that the appellant was the triggerman to find deliberateness, that the circumstantial evidence was insufficient in support of that proposition and the law of parties may not be applied to answering the special issues at the punishment stage of a capital trial.

Appellant relies on our case of Green v. State, 682 S.W.2d 271 (Tex.Cr.App.1984) and the United States Supreme Court's opinion in Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982).

The court instructed the jury on the law of parties at the guilt stage of the trial only.

In Green v. State, supra, we stated:

"We addressed the law of parties issue in Meanes v. State, 668 S.W.2d 366 (Tex.Cr.App.1983). In Meanes we emphasized that the Supreme Court's decision in Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982) 'does not prevent, under all circumstances, imposition of the death penalty against one convicted, as a party, of capital murder. Enmund prohibits assessment of the death penalty against any defendant who did not kill, attempt to kill, or intend or contemplate that life would be taken.' Meanes at 375. We discussed the application of the law of parties to Art. 37.071(b)(1) and stressed that the special issues themselves clearly focus the jury's attention on the individual defendant, and indeed must do so in order to give the individualized examination required under Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) and Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). While the law of parties can apply to convict an accused of capital murder, the death penalty may be imposed only by examination of the mitigating and aggravating circumstances concerning the individual defendant. Lockett, supra; Woodson, supra. This examination is performed in Texas through the special issues. Enmund clearly requires that the individual defendant be shown to be culpable due to his own actions, intentions, and expectations and not those of his cohorts. Id. at 102 S.Ct. 3378." (Emphasis in original.)

Unlike Enmund where the defendant was the driver of the vehicle used in the robbery, the appellant was identified by the two witnesses as one of the three masked robbers who was in the store where the robbery and murder occurred and departed the store with a gun in his hand.

Their testimony, coupled with that of another witness, circumstantially identified appellant as the triggerman.

As at the guilt stage, we must review the evidence in the light most favorable to the verdict to determine whether a rational trier of fact could have found that the State sustained the burden of proof beyond a reasonable doubt. We find that a rational trier of fact could have found that the evidence met this test in...