Cook v. State

• Decision Date: 09 December 1987
• Docket Number: No. 63643,63643
• Parties: Kerry Max COOK, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 928

741 S.W.2d 928

Kerry Max COOK, Appellant, v. The STATE of Texas, Appellee.

No. 63643.

Court of Criminal Appeals of Texas En Banc.

Dec. 9, 1987.

Harry R. Heard, on appeal only, Longview, for appellant.

Hunter B. Brush, Dist. Atty., and Christian Harrison, Asst. Dist. Atty., Tyler, Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for capital murder. After finding appellant guilty, the jury returned affirmative findings to the special issues submitted under Article 37.071(b)(1), (2) and (3), V.A.C.C.P. The trial court assessed the mandatory death penalty.

On appeal appellant raises numerous points of error, some of which involve the sufficiency of the evidence. We turn first to a review of the facts.

In June, 1977, 21-year-old Linda Jo Edwards, the deceased, was working as a secretary in the English Department of Texas Eastern University in Tyler. According to the testimony of her friend Paula Rudolph, Edwards had been living with Rudolph at the Embarcadero Apartments, No. 169, in Tyler for about two weeks. Although the apartment lease was in Rudolph's name, Edwards had been registered with the apartment office as a guest. According to Rudolph no one else had a key to the apartment. At the time, Edwards had a regular boyfriend named Jim Mayfield who was Dean of the Learning Resource Center at Texas Eastern University. Edwards was not known to be dating anyone else, and Mayfield had been to the apartment to visit Edwards only once.

On the afternoon of June 9, 1977, Rudolph got off work at 5:00 p.m. and went to the stables to go horseback riding, arriving at her apartment at approximately 8:30 p.m. While Rudolph was eating and watching television Edwards came in around 9:30 p.m., and the two chatted for a few minutes. Rudolph testified that Edwards was "happy, laughing," and not at all depressed. Rudolph left the apartment at 10:30 p.m. for a date and stayed out for about two hours.

Upon returning to her apartment between 12:30 a.m. and 12:45 a.m., Rudolph found the front door closed but unlocked. As she entered, Rudolph saw the figure of a man in Edwards' bedroom. Rudolph testified that the light in the bedroom was very bright, and that the figure was turning and in motion when she saw it. As the figure whirled it stepped out of Rudolph's line of vision and shut the door. Rudolph described the figure as "about my height, very tanned ... wearing what appeared to me in the light white shorts. There was a definite band of white across the lower torso into the top of the leg." Later, on cross-examination, she testified:

"... for those moments as I was closing the door, you know, after the figure whirled, we stood there face to face. I began moving and he began moving almost at the same time."

Rudolph also testified the man had a broad, flat face, that he was slim-hipped and slim-chested, but had fairly broad shoulders for his size. At trial Rudolph identified appellant as the person she had seen, basing her identification upon seeing him on the night of June 9, 1977. Furthermore, Rudolph testified that she had never seen appellant before that night, and that to her knowledge he had never had anyone's permission to be inside her apartment.

As Rudolph entered her apartment that night, simultaneously seeing the figure in Edwards' bedroom, she called out: "Don't worry, it's only me." Rudolph testified that she said this thinking Edwards' boyfriend Jim Mayfield was in the apartment, and that she had no reason whatsoever to believe it was anyone else. Still, she was not completely satisfied that it was Mayfield since it did not really look like him. Rudolph laid down her purse and lit a cigarette, puzzling over the fact that the figure did not look like Mayfield. However, that was the only explanation she could come up with. As she was thinking, Rudolph heard the sliding patio door open and close. Thereafter Rudolph got ready for bed and went to sleep around 12:50 a.m. The next morning at about 7:00 a.m. Rudolph discovered Edwards' mutilated body and summoned the authorities.

During the course of the same evening on June 9, 1977, appellant and Robert Hoehn spent approximately two hours together in the apartment where appellant was staying with James Taylor in the Embarcadero Apartment complex. Testifying for the State but out of the presence of the jury, Hoehn, a 42-year-old homosexual hairdresser, related how appellant had called him several times asking him to bring over some beer. Hoehn arrived at the apartment between 10:35 p.m. and 10:45 p.m. at which time appellant was watching a movie on television entitled "The Sailor Who Fell From Grace With the Sea." After approximately five minutes, appellant suggested they go outside to the pool, where they stayed some 20 to 25 minutes. They later returned to the apartment to watch the remainder of the film. By this time it was about 11:45 p.m. The two then drove to a nearby Kroger Store to buy cigarettes, after which Hoehn dropped appellant off at his apartment.

The trial court permitted the showing of that portion of the film or movie that was seen by Hoehn in appellant's presence, both when Hoehn arrived and when the two came back to the apartment from the swimming pool.

Hoehn testified that on their way to the pool he and appellant passed by Edwards' bedroom window. Appellant said there was a good-looking girl there and tried to get Hoehn to look, but Hoehn refused. Hoehn stated appellant did not make any remarks about what he had seen in the girl's bedroom, and that appellant did not get close enough to look into the window that night. Upon returning to the apartment the two men drank some beer and resumed watching the movie. At one point Hoehn left the room where the television was located to use appellant's bathroom. When Hoehn returned to watch the movie he saw appellant come from the kitchen with an eight-inch, serrated bread knife, saying "Let's cut it up or cut it out." Hoehn told him to put the knife down and appellant cooperated. Hoehn testified that he took it in a very "jokingly manner."

The film depicted the mutilation of a cat. Although the jury did not see the cat mutilation scene, it did see that part of the film where children poured a drugged mixture of milk down a cat's mouth to anesthetize it, as well as the final portion of the film where boys gather a cleaver, large butcher knives and other sharp instruments, take them in satchels and sacks up a hill with the sailor and anesthetize him with drugged tea. They prepare to mutilate him by putting on surgical gloves and gather closely around him with their knives. Appellant's remarks about "cutting it up" or "cutting it out" evidently mimicked what was being shown in the movie.

Hoehn testified there were portions of the film that were missed because he and appellant were having "sexual relationships." Upon returning from the pool Hoehn performed fellatio on appellant. Hoehn did not remember much about the movie after appellant made his "joke" with the knife he had brought out from the kitchen, because at that point he started to "play with Kerry a little bit...." Hoehn testified that he performed oral sex on appellant's anus "at intervals" while he lay facing the television. Hoehn recalled this was happening toward the end of the movie after the children had drugged the sailor and he was going to sleep. Hoehn stated that by this time his part of the sex act was consummated, and appellant then tried to have anal intercourse with Hoehn, failed, and then masturbated himself to a climax. On cross-examination Hoehn testified that the film ended around 11:45 p.m. and that they left the apartment around 12:00 or 12:05 a.m. for cigarettes. Hoehn returned appellant to the apartments' parking lot around 12:30 a.m. or 12:35 a.m.

Hoehn testified that on the night in question appellant wore a pair of "tennis style-type shorts" and over these a pair of blue pants. Appellant introduced a pair of gym shorts into evidence and asked Hoehn if they were the same color as those appellant wore the night of June 9, 1977. Hoehn replied the ones he saw then had a "blue body and a red stripe around the waist and down the leg." Hoehn also testified on redirect that appellant frequently wore this type of gym short, and that he lounged around in them.

One of the policemen who investigated the murder scene on June 10, 1977, was Lt. Doug Collard of the Tyler Police Department. He viewed the body of the deceased lying on the floor, and testified throughout with the aid of slides made from photographs taken at the scene. The body was nude from the waist down and there were pieces of plaster under and around the body. A pair of shoes, panties and blue jeans lay beside the deceased's feet. The panties had been cut across the crotch and up one side. A stocking was on one leg, while the other was missing and never found. The brassiere and blouse had been cut up the middle and pulled aside, and there were several places in the brassiere and blouse that had been cut through with a sharp instrument. An earring lay next to the deceased's right hand, still attached to the right ear lobe that had been completely torn loose.

The body had been severely mutilated. Lt. Collard described how the right breast had a large stab wound, and that the blood on the body indicated "rub marks" or "smear marks, motion marks." There were multiple wounds in the vaginal area, as well as in the throat area. On the lower right side of the bottom lip, one quarter of the lip was missing, and there was a long laceration from the edge of the mouth into the cheek area. A quantity of hair from the upper right-hand top of the head had been removed. According to Collard, the entire vagina had been cut out, leaving a large cavity that extended deep into the body. The missing part of the lip and the vaginal parts were never found. A small...