Callins v. State

• Decision Date: 02 July 1986
• Docket Number: No. 69023,69023
• Citation: 780 S.W.2d 176
• Parties: Bruce Edwin CALLINS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 176

780 S.W.2d 176

Bruce Edwin CALLINS, Appellant, v. The STATE of Texas, Appellee.

No. 69023.

Court of Criminal Appeals of Texas,

En Banc.

July 2, 1986.

On Rehearing Sept. 27, 1989.

Rehearing Denied Nov. 22, 1989.

Lee Ann Dauphinot, Danny D. Burns, Fort Worth, for appellant.

Tim Curry, Dist. Atty., and David H. Montague, Gregg Pipes and C. Chris Marshall, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty., Austin, for State.

Before the court en banc.

OPINION

CAMPBELL, Justice.

Appellant was convicted by a jury, in a single trial, of one capital murder and two aggravated robberies. The jury returned affirmative findings to the special issues under Art. 37.071, V.A.C.C.P., for the capital murder conviction. The trial judge assessed punishment at death. The jury assessed punishment for each of the aggravated robbery convictions at life in prison and a $10,000 fine.

Appellant appealed his capital murder conviction directly to this Court, raising nineteen grounds of error. ¹ We will address two of those grounds. In Ground of Error No. 2, appellant challenges the sufficiency of the evidence to support the deliberateness of his conduct. Art. 37.071(b)(1), V.A.C.C.P. In Ground of Error No. 12 appellant argues that the trial court failed to grant his motion to sever the offenses, thereby forcing appellant to be tried for more than one felony offense. We will overrule Ground of Error No. 2 but reverse on Ground of Error No. 12.

On June 27, 1980, at approximately 4:00 p.m., appellant, armed with a gun, entered a bar in Tarrant County. Three patrons and three employees of the bar were present. Appellant ordered the bartender to put money in a bag. He ordered the other five occupants to empty their pockets onto the bar or a pool table. Appellant threatened to kill anyone who held anything back. Allen Huckleberry, who was sitting at the bar, did not surrender his wallet quickly enough to suit appellant, and appellant shot him in the neck, causing him to bleed to death. Appellant went through the deceased's pockets, gathered the property from the five other victims, including George Torrez and Kathy Harmon, and fled. According to a witness in the bar, before fleeing, appellant told the remaining occupants of the bar to "take care of [the deceased]" and to "give him [appellant] a few minutes, then [they] could call somebody to help the deceased."

On August 19, 1980, appellant was charged, in a single eight count indictment, with capital murder, murder and aggravated robbery of Allen Huckleberry, aggravated robbery of George Torrez, aggravated robbery of Kathy Harmon, and aggravated robbery of the three other persons present in the bar. However, the State waived three of the aggravated robbery counts and proceeded to trial on the five remaining counts (capital murder, murder, and aggravated robbery of Allen Huckleberry, aggravated robbery of George Torrez and aggravated robbery of Kathy Harmon). (R. I-3-4).

On May 12, 1982, the jury was sworn and the trial began. On May 18, 1982, prior to submission of the charge to the jury, appellant made the following objection:

The Defendant further objects to the submission of the Court's Charge in the form submitted for the reason that the Defendant, in making its (sic) decisions originally upon whether or not to move for severance of certain felony charges from other felony charges upon the trial of this cause, the Defendant relied upon the state of the law as it existed at that time and since this trial has begun the landmark decision in the McWilliams case has in effect changed the law.[ ² That is the landmark decision wherein the Texas Court of Criminal Appeals eliminated the doctrine of carving, has now caught the Defendant flatfooted and surprised and off guard and had he known of this decision prior when he relied upon the old state of the law, he would have elected not to be tried in any more felonies alleged in this indictment than the law required him to and would have in fact made a motion to sever prior to trial.[ ³ That the very decision in McWilliams has now taken advantage of the Defendant's reliance on the former state of the law, deprived him of a fair trial. Defendant objects to the Court's Charge in that particular and also moves for a mistrial on that basis. (R. XXXII-669-670).

The trial court replied:

... [W]ith regard to your objections, ... the Court understood you to reurge or to urge a Motion for a Mistrial based on the principles contained in McWilliams versus State. You are entitled to a ruling on that motion and the motion is denied.[ ⁴ (R. XXXII-677).

The jury first returned a verdict finding appellant guilty of the capital murder of Allen Huckleberry and of the aggravated robberies of George Torrez and Kathy Harmon. The jury then assessed punishment at confinement for life in the Texas Department of Corrections and a $10,000 fine for each of the aggravated robberies. The jury also answered the two special issues affirmatively, and the trial court assessed punishment at death. ⁵ In Ground of Error No. 2, appellant argues that there is insufficient evidence in the record to support the jury's finding on the first special issue. Article 37.071(b)(1), supra, requires the jury to find that appellant's conduct, which caused the death of Allen Huckleberry, was committed deliberately and with the reasonable expectation that the death of Allen Huckleberry would result. In particular, appellant argues that his instruction to his victims that they seek medical aid for Allen Huckleberry was inconsistent with a finding that his acts were committed deliberately and with the reasonable expectation that death would result.

The State responds that there was sufficient evidence for the jury to find that appellant's acts were deliberate and done with the reasonable expectation that the death of Allen Huckleberry would result. We agree.

In deciding the question of deliberateness, a jury must find that the State proved the issue beyond a reasonable doubt. Art. 37.071(c), V.A.C.C.P. Therefore, while this Court reviews sufficiency of the evidence in the light most favorable to the jury's verdict, we also must determine whether any rational trier of fact could have found the disputed question to have been proven beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Griffin v. State, 614 S.W.2d 155 (Tex.Cr.App.1981).

Appellant entered a bar with a loaded firearm, began to rob the occupants and announced his intention of shooting anyone who held anything back. Appellant then decided that Allen Huckleberry was moving too slowly and shot him in the neck at close range. There was no evidence that the deceased had provoked the attack in any manner. From these circumstances alone we find that there was sufficient evidence for the jury to find that appellant's acts were deliberate and done with the reasonable expectation that death would result. See Ex parte Alexander, 608 S.W.2d 928, 931 (Tex.Cr.App.1980) (defendant's acts show deliberateness when he obtained and loaded weapon in anticipation of police officer returning to patrol car; defendant's acts show reasonable expectation that death will result when victim is shot in head at close range with .357 magnum revolver). See also Smith v. State, 540 S.W.2d 693 (Tex.Cr.App.1976).

While appellant may have shown some concern for Mr. Huckleberry's life after shooting him, that concern does not necessarily negate other evidence of the deliberateness of his acts prior to shooting him. We find, therefore, that a rational trier of fact could have found that appellant's conduct was deliberate. Ground of Error No. 2 is overruled.

In Ground of Error No. 12, appellant argues that the trial court erred by overruling his timely motion to sever, thereby permitting a single trial on one count of capital murder of Allen Huckleberry and two counts of aggravated robbery of George Torrez and Kathy Harmon. Appellant, invoking V.T.C.A., Penal Code, Chapter 3, § 3.04(a), argues that he had a mandatory right to sever the capital murder charge from the aggravated robbery charges. ⁶

Appellant incorrectly argues that § 3.04(a), supra, grants him a mandatory right to severance. The mandatory right to a severance, under § 3.04, supra, only applies to joinder of property offenses. ⁷ Overton v. State, 552 S.W.2d 849 (Tex.Cr.App.1977); Waythe v. State, 533 S.W.2d 802 (Tex.Cr.App.1976). In the instant case, appellant sought to sever a capital murder count from two aggravated robbery counts. However, capital murder is not a property offense. It is listed as an offense against the person under Title 5 of the Penal Code. V.T.C.A., Penal Code, § 19.03. Appellant's right to sever the capital murder count, therefore, can not be supported by § 3.04(a), supra. ⁸ However, the right to force an election, which follows from implicit statutory restrictions relating to the manner in which nonproperty offenses may be joined in an indictment, is supported by our precedents.

We recently held that the Legislature, by its amendment of Article 21.24, V.A.C.C.P., has implicitly prevented the State from alleging, in a single indictment, two or more nonproperty offenses if those offenses arose out of the same criminal "incident, act or transaction." ⁹ Drake v. State, 686 S.W.2d 935, 944 (Tex.Cr.App.1985). From our reasoning in Drake, supra, we must also conclude that Article 21.24, supra, implicitly prevents the State from alleging both property and nonproperty offenses together in the same indictment. In addition, our common law has long prevented the State from alleging, in a single indictment, more than one nonproperty offense arising out of separate transactions. See Campbell v. State, 163 Tex.Cr.R. 545, 294 S.W.2d 125, 128 (1956) ("An indictment charging separate and distinct offenses in different counts is subject to the objection of misjoinder...."). See also Smith v. State, 101 Tex.Cr.R....