Chambers v. State, 47656

• Decision Date: 20 March 1974
• Docket Number: No. 47656,47656
• Citation: 508 S.W.2d 348
• Parties: Donald E. CHAMBERS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 348

508 S.W.2d 348

Donald E. CHAMBERS, Appellant, v. The STATE of Texas, Appellee.

No. 47656.

Court of Criminal Appeals of Texas.

March 20, 1974.

Rehearing Denied April 17, 1974.

Lee A. Chagra, El Paso, for appellant.

Steve W. Simmons, Dist. Atty., and William B. Hardie, Jr., Asst. Dist. Atty., El Paso, Jim D. Vollers, State's Atty., and Buddy Stevens, Asst. State's Atty., Austin, for the State.

OPINION

GREEN, Commissioner.

Appellant was convicted, in a trial before a jury, of murder with malice. Punishment was assessed by the court at life imprisonment.

In appellant's fourth ground of error, he contends that the evidence of the accomplice witness Munnerlyn was not sufficiently corroborated by other evidence tending to connect appellant with the offense.

The record reflects that at about 7:00 or 7:30 A.M., December 24, 1972, Robert Munnerlyn contacted agents of the Federal Bureau of Investigation in El Paso, and told them that he had during the night of December 22 participated in the killing of two men in El Paso County. County officers were called into consultation, and at about noon Munnerlyn guided a group of officers to a site northeast of the City of El Paso, where they found a recently dug shallow grave containing the dead bodies of two men, later identified as the deceased Ray Tarver and his brother Mel Tarver. Each had been killed by buckshot fired from a shotgun. Officers took Munnerlyn to the courthouse, and started taking a statement from him. He indicated a group known as the Bandido Motorcycle Club. At 5:00 P.M., while the statement was being taken, officers were sent to keep a surveillance at an address given by Munnerlyn as appellant's residence, where they were told appellant and the members of the club kept a large number of guns and ammunition. An assistant district attorney was called to the courthouse to assist in the investigation.

While the officers were still talking to Munnerlyn, the officer on surveillance phoned in that it appeared that the group in the residence were loading a panel truck, and were leaving. Officer Timmons, in charge of getting Munnerlyn's statement, and Assistant District Attorney Baker both testified that unless they hurried they might lose the opportunity of confronting appellant and the others in the house implicated by the informant. A search and arrest warrant was prepared with an affidavit by Timmons to which was attached the informer's statement, and this was presented to Justice of the Peace Snooks, who issued the warrant.

As a result of the search under the warrant, appellant and eight other men in the house were arrested and a number of weapons, including a shotgun, an M--1 semi-automatic rifle, ammunition, a bloodsoaked blanket, burned wallets and parts of fired shotgun shells, a shovel and other items were seized.

There was evidence independent of the accomplice witness that the deceased Tarver brothers were engaged in illicit drug business. On the evening of December 22, they returned from Juarez, Mexico to the residence of Frances and Jacqueline Connelly in El Paso where they were staying, with a sack of what the Connellys were told was amphetamine, or 'speed.' Two men, one known to the Connellys as 'Chunky,' later identified by Munnerlyn as a member of the Bandidos, came to the house and left with the 'speed.' Deceased told the Connellys that he had cheated them, having sold them baking powder for $1,000.00 instead of the real drug. These men were seen by non-accomplice witnesses to leave in a beige, or brown, truck with a white or silver colored camper on it.

The informer, munnerlyn, testified that he was a 'prospect' ¹ of the Bandido Motorcycle Club, a national organization with national headquarters in El Paso. He came to El Paso on December 20, and went to the residence of appellant, the national head of the Bandidos. On the night of December 22, appellant received a call from 'Chunky' and, after the conversation, stated that the dope deal was a 'rip-off' and stated that he was 'going to get to the bottom of it.' Munnerlyn was told by appellant to load a shotgun, carbine, and ammunition into a brown or tan Chevrolet truck with a white camper on it. This truck bore a New Mexico license. Appellant and other members of the Bandidos and Munnerlyn got in the truck and another car, and went to 'Chunky's.' There they examined the sack of 'dope,' confirmed that it was actually baking powder and four of the men were sent to get the Tarver brothers.

Munnerlyn told of the two Tarver men being taken to a site in the county, at appellant's order, where he said he was instructed to dig a grave, and where appellant shot and killed both of the Tarvers with the shotgun. The camper was used to take the men to this site. Appellant rode in the cab. After the killing, the grave was covered with dirt. Upon returning to appellant's residence, Munnerlyn was instructed to destroy by burning certain items, including shotgun shells, the wallets of the victims, and a bloody blanket.

In Cherb v. State, Tex.Cr.App., 472 S.W.2d 273, we stated:

'The test of sufficiency of corroboration of the testimony of an accomplice witness is to eliminate the evidence of the accomplice from consideration and then examine evidence of other witnesses to ascertain if there be inculpatory evidence or evidence of incriminating character which tends to connect the accused with the commission of the offense.'

The testimony concerning the sale to 'Chunky' and his companions of the baking powder as amphetamine was corroborated by the Connellys. A brown truck with a white camper with 'Chunky' in it was seen leaving the Connellys' house by a non-accomplice witnesses. One of the officers watching appellant's residence shortly prior to the raid observed a Chevrolet 'cream colored' truck with an 'aluminum colored' camper with a New Meixco license, No. 246 860, parked in the driveway of the residence. Impressions of boot prints taken approximately five feet from the grave matched the soles of boots worn by appellant. A plastic card case identified as being similar to the one carried by deceased was found in appellant's home. Expert testimony was introduced that fired shotgun casings found at appellant's home were expended from the shotgun found there. The partially destroyed wallets and bloody blanket were found in the location where Munnerlyn had told the officers they would be found. Blood taken from the deceased by a toxicologist matched the blood on the above mentioned blanket.

The court submitted a charge on accomplice testimony, and instructed the jury that Munnerlyn was an accomplice as a matter of law. Each case must be considered on its own facts as to whether an accomplice witness has been sufficiently corroborated by facts and circumstances tending to connect the defendant with the offense. O'Donald v. State, Tex.Cr.App., 492 S.W.2d 584. The corroborating testimony need not supply direct evidence, it must only tend to connect the accused with the commission of the offense. Cherb v. State, supra. It is the combined cumulative weight of the evidence which supplies the answer to the test. O'Donald v. State, supra. Minor v. State, 108 Tex.Cr.R. 1, 299 S.W.2d 422; Clary v. State, Tex.Cr.App., 491 S.W.2d 900. We find that the testimony of the accomplice witness was sufficiently corroborated. Appellant's fourth ground of error is overruled.

Appellant, in his first ground of error, states that 'the court erred in allowing the introduction of evidence illegally seized under a search warrant which did not meet the Fourth Amendment requirement that such warrant particularly describe the things to be seized.' Appellant's complaint is addressed to the scope of the search, and not the validity of the warrant.

We have heretofore noted that while Officer Timmons and Assistant District Attorney Baker were taking a written statement from the informer Munnerlyn the officer on surveillance of appellant's home called by telephone and told them that it appeared that the men at the residence were preparing to load the camper-truck and leave. Due to the exigencies of the situation, Timmons an Baker cut short the written statement, Timmons executed an affidavit, to which the abbreviated signed statement of Munnerlyn was attached, seeking a warrant for the search of the premises at 5214 Beautonne, El Paso, for an automatic carbine machine gun. Munnerlyn's statement recited some of the details of the shooting, stating that he was present and stated that afterwards he had seen the shotgun used to kill deceased and the carbine and ammunition returned to the Beautonne address, and to the best of his knowledge they were still there. Attaching the statement to the affidavit and warrant was sufficient to make such statement a part of the warrant. Phenix v. State, Tex.Cr.App., 488 S.W.2d 759. These instruments were presented to Justice of the Peace Snooks, who had previously served as coroner following discovery of the two bodies. He issued a search warrant authorizing the search of the Beautonne residence of appellant for the automatic machine gun and the arrest of appellant.

The warrant was then executed at the Beautonne Street address. It was understood by Officer Timmons, who headed the search party, that a number of armed men who had recently committed a double murder were in the house, and a number of peace officers participated in the raid.

At the motion to suppress evidence conducted prior to trial, Sergeant Timmons outlined the procedure used by the law enforcement officers in searching appellant's residence. One officer acted as an evidence officer in order to list the items found by the officers in searching the premises. The evidence officer then catalogued the items seized and the time of the seizure. Timmons also stated that, while the search warrant specifically mentioned only the M--2 rifle, officers knew of the existence of and the general location of the shotgun, expended...