Carter v. State

• Decision Date: 17 September 1986
• Docket Number: No. 68982,68982
• Citation: 717 S.W.2d 60
• Parties: Robert Anthony CARTER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 60

717 S.W.2d 60

Robert Anthony CARTER, Appellant, v. The STATE of Texas, Appellee.

No. 68982.

Court of Criminal Appeals of Texas En Banc.

Sept. 17, 1986.

Ronald G. Mock (Court appointed) (Janet Seymour Morrow, Catherine E. Greene, of counsel), Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., and James C. Brough and Brian Rains, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

ONION, Presiding Judge.

This appeal is taken from a conviction for capital murder. V.T.C.A., Penal Code, § 19.03(a)(2). The death penalty, V.T.C.A., Penal Code, § 12.31(a), was assessed by the court after the jury returned affirmative findings to the three special issues submitted pursuant to Article 37.071, V.A.C.C.P.

Appellant raises seven grounds of error, two of which allege there was insufficient evidence to support the "Yes" answers to special issues one and two under Article 37.071, supra. A recitation of the facts is rendered necessary.

The indictment, in pertinent part, alleged the appellant on or about June 24, 1981 "did then and there unlawfully while in the course of committing and attempting to commit the robbery of Sylvia Reyes, hereafter styled the complainant, intentionally, cause the death of the complainant by shooting the complainant with a gun...."

About 4:30 p.m. on June 24, 1981, Officer M. Rodriguez of the Houston Police Department was dispatched to the scene of a reported robbery at a Conoco service station and convenience store at 333 South Wayside in Harris County. Upon arriving at the scene, Officer Rodriguez found Sylvia Reyes, manager of the station, lying directly between the store's counter, face up and unconscious. Reyes had been shot in the chest. An ambulance arrived and Reyes was taken to the hospital where she later died the same day. Dr. Vladimir Parungao, Assistant Medical Examiner of Harris County, performed an autopsy. The cause of death of the 18-year-old ¹ Reyes was a gunshot wound to the chest which entered the thoracic cavity and lacerated the heart, and damaged the left lung and leaf of the diaphragm. A bullet was recovered from a muscle in Reyes' back.

At the scene Officer Rodriguez discovered the cash drawer behind the counter was halfway open. Witnesses gave Rodriguez a brief description of the suspect as being a young black man wearing a white T-shirt and cutoff shorts. Detective J.K. Newman, who also arrived at the scene, observed the cash drawer was open and contained some change but no "cash bills."

David Josa testified that on June 24th he had gotten gas at the Conoco station and was entering the station to pay for the gas when he heard "a bang inside" which he took to be a gunshot. He retreated a few steps. One man came out of the station and turned right and ran. Josa retreated a few steps more when a second man emerged from the store with a "wad of money" in his left hand. He described the second man as a young black man, 18 to 20 years old, 5' 10"" or 6' tall, wearing a T-shirt, cutoffs and athletic type shoes with a cap on his head. He did not see a gun. The man fled across Wayside and behind some plants on Industrial Road. Josa saw the man for only a few seconds. He could not identify appellant in court as being the same man. Josa saw the first man return to the station later and talk to the police.

Arthur Mallard identified himself as the first man out of the station. Mallard testified he stopped every afternoon at the store for cigarettes and beer. Mallard observed two employees in the store and "another guy" to whom he paid no attention until he (Mallard) turned to go to the counter to pay for his beer. At this point he saw the man reaching behind the counter getting money. Mallard described the black man as about 19 or 20 years old, about 5' 11"" or 6' tall, medium built, and wearing a white T-shirt.

Mallard testified that after the man was reaching behind the counter getting money the woman behind the counter jumped off a bar stool and said "No" and tried to close the cash register drawer on his left hand. Mallard could not see the man's right hand. At this point Mallard heard a shot, and he turned and ran out of the store. He ran as far as a nearby golf course, but later returned to the scene and found the woman identified as Reyes lying on the floor. She had been shot in the chest. He was unable to identify appellant in court as the man he had seen.

Mary Estrada, cashier at the Conoco station and store, testified her shift was from 7 a.m. to 4 p.m. on June 24, 1981, and that the deceased, Sylvia Reyes, came to relieve her shortly before 4 p.m. and to work the next shift. Estrada testified she left Reyes at the counter and went to the stock room to do some work before leaving. At the time she estimated there was approximately $200.00 in bills and change in the cash drawer behind the counter. While in the stock room, she heard a loud sound and thought an overhead light had exploded. She called to Reyes several times and received no response. About five minutes later she returned from the stock room but could not see Reyes. Estrada found Reyes behind the counter with a bullet wound. She observed the cash drawer was open and all the bills were gone. Estrada testified they kept no weapon at the station. Estrada testified she had never seen the appellant before.

On June 27, 1981, an extrajudicial confession was obtained. The State offered a portion of the confession which read:

"On Wednesday, June the 24th, I was at the park again and I was with Roosevelt, I don't know his last name, and with Baron Domino.

"Richard Lynn came up in his car, a red cadillac about '77 or '76 model. Some time in the afternoon we got into Richard's car and Roosevelt said he knew where a gas station was that was good to rob. Richard drove to the gas station. I don't know which street it was on. The building was white I think and it was made like a circle. On the way over there Baron gave me a gun. This time it was a .38.

"It was black or dark blue with brown handles. I don't know where he got it. I had on short blue pants, they had lines on them, they were all blue. I had on a white T-shirt with a colored bird that my brother drawed on the back of it. I had on a blue golf hat and I put the gun in the front pocket of my pants. I got out of the car and went into the gas station and the others stayed in the car across the street behind some company. I went in. There was some people in there and I was going to wait until they left but they wouldn't leave. So I went on up to the counter and pulled the gun out and said 'this is a robbery'. There was a lady, she looked young, she was a white lady, she said something like 'uh uh'.

"I reached over in the drawer that had money in it and grabbed the money. I shot the lady in the chest and then I reached in and got the money. I ran out of the station and across the street to the car and got in and took off. I gave the gun back to Disco, that is what I called Baron Domino. He took the bullet out I had shot and put another one in the gun. I don't know what he did with the shell. We went to Roosevelt's in the Coke Street Apartments toward the back of apartments. We counted the money. There was about a $150.00. I got $37.00 and so did Roosevelt. Richard and Disco got about 38. I went on home and gave my mother some of the money. $10.00 of it and then I went back to the park."

Appellant then offered the excluded portions of the confession which added after "I reached over the drawer that had money in it and grabbed the money" the words "Before I did I was trying to uncock the gun and it accidentally went off." Appellant also offered the State-excluded portion of the confession reading, "I would like to say that I didn't mean to kill. I am not a violent person."

Detective Newman was recalled by the State and testified that after appellant had given a statement he brought Baron Green, known as Baron Domino and "Disco," to the police station and that he subsequently recovered a .38 caliber revolver from the apartment of Baron Green's mother. The revolver was admitted without objection.

Officer C.E. Anderson, a firearms examiner for the Houston Police Department, testified that the bullet recovered from Reyes' body was fired from the revolver admitted into evidence. He explained the weapon could be fired by cocking the hammer and then pulling the trigger or simply by pulling the trigger. ²

The defense rested with the State at the guilt stage of the trial.

At the penalty stage of the trial the State called witnesses to testify about the shooting of R.B. Scott during the course of a robbery at Espinola Supply or Beauty Store on June 18, 1981, ³ approximately six days before the instant offense.

Dolores McClinton testified she was in Scott's beauty store about 5 p.m. on June 18 to buy hair rollers and conditioner. Besides Scott, she observed a young black man beside the aisles and noticed a yellow object in his hand. As she left the store she heard a "pop" which she assumed was a firecracker. As she walked to her car, she heard another "pop" and looked back. The young black man ran out of the store and passed her. Scott came out of the store waiving his hand and McClinton could see blood stains on his shirt. McClinton could not identify appellant as the man she saw in the store and who ran therefrom.

Catherine Bush, while in front of a school, heard two noises like firecrackers and then heard someone holler "Stop him, Stop him." Bush then saw someone running from the direction of the beauty store, who then ran past her. She identified appellant as the person who ran passed her on June 18.

Detective L.B. Smith testified that when he arrived at the scene Scott was already dead, having been shot in both the right and left sides of the chest. The autopsy report and stipulation showed the cause of death to be two gunshot wounds to Scott's chest.

Detective Smith...