Cockrum v. State

• Citation: 758 S.W.2d 577
• Decision Date: 14 September 1988
• Docket Number: No. 69766,69766
• Parties: John COCKRUM, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 577

758 S.W.2d 577

John COCKRUM, Appellant, v. The STATE of Texas, Appellee.

No. 69766.

Court of Criminal Appeals of Texas,

En Banc.

Sept. 14, 1988.

Rehearing Denied Oct. 12, 1988.

Rick C. Shumaker, David W. Malaby, Jr., Texarkana, for appellant.

John F. Miller, Jr., Dist. Atty. and James Elliott, Asst. Dist. Atty., Texarkana, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

CAMPBELL, Justice.

Appeal is taken from a conviction for capital murder. V.T.C.A. Penal Code, § 19.03(a)(2). The appellant was convicted of intentionally causing the death of Eva Mae May in the course of committing and attempting to commit the offense of aggravated robbery. After finding the appellant guilty, the jury returned affirmative findings to the special issues under Art. 37.071 V.A.C.C.P. Punishment was assessed at death. We will affirm.

The appellant raises five points of error. He challenges: the sufficiency of evidence corroborating the accomplice witness testimony, the denial of a motion for change of venue, the trial judge's use of a "bifurcated" voir dire procedure, the denial of motions to excuse three separate veniremen, and the sufficiency of evidence to support the jury's affirmative answer on the second special issue.

Because appellant challenges the sufficiency of corroborating evidence, a detailed review of the facts is necessary. The body of Eva May was discovered on the morning of May 29, 1986. The deceased's body was discovered on the floor of her store, located in DeKalb, Bowie County. Mike Crump testified that he stopped at the store to buy a pack of cigarettes. As Crump left his car, he was met by a Mr. Brooks. Brooks was excited and waved to Crump to join him. Brooks lead Crump into the store, where the two men saw the deceased's body on the floor. Crump called the Sheriff's Department, and the first deputy arrived on the scene approximately fifteen minutes later. Deputy Downs was first to arrive, followed a few minutes later by Deputy Huggins. Huggins testified that he and Downs secured the crime scene, erected a police line, took the names of those present, and waited for crime scene investigators to arrive. Thomas Hodge, the sheriff of Bowie County, arrived at the scene in order to lead the investigation. Sheriff Hodge testified that there was wet blood around the deceased. He said that this would indicate that "it had not been very long before the incident had occurred." In addition, he identified crime scene photographs and described some of the investigative procedures used.

Sheriff Hodge also testified in regard to his department's investigations away from the actual scene. He testified that Kenneth Thom approached the department with information implicating appellant and Jerry Morgan, the accomplice witness. Pursuant to this tip, Sheriff Hodge arrested Morgan. Morgan told Sheriff Hodge that appellant had borrowed a spoon from him so as to bury the murder weapon and the deceased's purse. Sheriff Hodge, using a metal detector, found these items buried on appellant's ranch. They were discovered in the general area which Morgan had said appellant had taken the items. Finally, Sheriff Hodge identified a .22 caliber Ruger Black Hawk pistol as the one he discovered at Morgan's ranch.

Kenneth Thom testified that he went to Morgan's ranch around 2:00 A.M., the night of the murder. When Thom arrived, appellant was present and working on a car. He had a .22 revolver tucked into the back of his pants. Morgan, the accomplice, was also present and armed with a .38 caliber pistol. At 4:50 A.M., appellant and Morgan left in Morgan's truck. Before departing, Morgan put his gun in the house. The two returned to the ranch approximately two and one half hours later. As soon as they got out of the truck, appellant went to the bathroom and came out with his shirt off. He sat down, turned the volume up to full on Morgan's police frequency scanner, and sat, "looking down the road." The .22 was still tucked in appellant's pants, and he appeared to be "scared and kind of nervous." Thom left soon after the two returned. That afternoon, Thom heard that Eva May had been killed. Based on what he had seen at the ranch and the fact that the ranch is located 10 minutes from the deceased's store, Thom thought that appellant and Morgan might have been involved in the killing. He reported his suspicions to the Bowie County Sheriff's Department.

Larry Fletcher, a firearm examiner for the Dallas County Institute of Forensic Sciences, testified that the bullet which killed Eva May was a .22 magnum. He also testified that the weapon discovered at Morgan's ranch was a .22 magnum. This gun was in poor condition. It had a broken grip and a large amount of rust on its outside surfaces and inside the barrel. This rust damage, Fletcher said, would be consistent with a gun which had been buried. While the gun was of the general type used in the murder, the rust inside the gun prevented Fletcher from obtaining meaningful results from a ballistics comparison.

Jana McGraw, appellant's girlfriend, was also able to place appellant at Morgan's Ranch on the night before the killing. McGraw identified the gun which Sheriff Hodge recovered as the same gun that appellant had on the day of the murder. She left the ranch at around 12:30 A.M. and did not see appellant again until the next afternoon. That afternoon, she and appellant drove to Morgan's ranch. When they arrived, they noticed two police cars parked in front of the house. Appellant asked McGraw to drive him to Texarkana, Arkansas. As the two pulled out, he said that there were some things in his truck and that his gun was "back there too." On the drive out of state, appellant told McGraw, "to speed up ... that I'd better not get him stopped." At this point, appellant seemed nervous and he asked McGraw if she would "run with him." She asked what he was running from, but appellant did not answer.

In Texarkana, appellant checked into the Super 8 motel, signing a false name. In the room, appellant displayed a large amount of money. ¹ McGraw said this was strange because appellant was unemployed and had not had any money a few days before. Appellant sent McGraw to the store to buy some clothes, shampoo, and other items. Later, McGraw decided to return home to get her clothes for work the next day. When she got home, she was met by an Officer Huff. He asked McGraw of appellant's whereabouts. After being told of her potential criminal culpability, McGraw told Huff where he could find appellant. Appellant was arrested in his motel room.

According to Morgan's testimony, on the night of the murder appellant asked Morgan for a ride to "go snatch a purse." Appellant was carrying the gun that was identified as the gun discovered at the ranch. Morgan drove, and appellant gave directions. According to appellant's directions, Morgan drove to Eva May's store. Appellant told Morgan to stop there and got out of the truck about 200-300 yards from the store. As he stepped out, appellant told Morgan to pick him up in about thirty minutes. Morgan returned about an hour later. Appellant jumped out of some weeds at the side of the road and got in the truck. Morgan asked him if he "done any good." Appellant said that he had and added that he did not know how much money he had gotten. After Morgan and appellant returned to the ranch, Morgan resumed working on cars and appellant went into the house. After the others who were present left, Morgan went into the house. Morgan said that appellant seemed nervous. Morgan told him that "it wasn't no big deal." Appellant replied, "I killed her." Appellant then asked for the spoon and went out the back of the house. Morgan then left the ranch.

Appellant contends that the evidence adduced at trial is insufficient to corroborate the testimony of Jerry Morgan, an accomplice witness. No one may be convicted on the basis of accomplice testimony without other evidence which corroborates the accomplice testimony and tends to connect the defendant with the commission of the charged offense. Art. 38.14 V.A.C.C.P.; e.g. Killough v. State, 718 S.W.2d 708, 710 (Tex.Cr.App.1986). The test for weighing the sufficiency of corroborative evidence is to eliminate from consideration the testimony of the accomplice witness and then examine the testimony of other witnesses to ascertain if there is evidence which tends to connect the accused with the commission of the offense. Reed v. State, 744 S.W.2d 112, 125 (Tex.Cr.App.1988), Cruz v. State, 690 S.W.2d 246 (Tex.Cr.App.1985); Brown v. State, 672 S.W.2d 487 (Tex.Cr.App.1984). The evidence which has been previously set out provides adequate corroboration for Morgan's testimony. We will review these corroborative factors point by point.

First, Sheriff Hodge's testimony establishes that the crime occurred a fairly short time before the body's discovery around 8:00 A.M. Kenneth Thom testified that he saw appellant and Morgan return to the ranch, together, at approximately 7:15 A.M. Evidence that a defendant was in the company of the accomplice at or near the time or place of a crime is proper corroborating evidence. Jackson v. State, 745 S.W.2d 4, 13 (Tex.Cr.App.1988); Mitchell v. State, 650 S.W.2d 801, 808 (Tex.Cr.App.1983), cert. denied, 464 U.S. 1073, 104 S.Ct. 985, 79 L.Ed.2d 221, reh'g denied, 465 U.S. 1074, 104 S.Ct. 1431, 79 L.Ed.2d 755 (1984); Passmore v. State, 617 S.W.2d 682, 684 (Tex.Cr.App.1981); Lyman v. State, 540 S.W.2d 711, 714 (Tex.Cr.App.1976). This evidence places appellant with the accomplice within a ten minute drive of the crime scene, immediately before and after the crime's commission.

Second, the appellant's demeanor after the crime suggests guilty knowledge. Thom testified that when the appellant returned to the ranch with Morgan, he appeared to be nervous. Also, he was listening intently to a police scanner while staring down the road leading to the building from...