Crank v. State

• Citation: 761 S.W.2d 328
• Decision Date: 14 September 1988
• Docket Number: No. 69500,69500
• Parties: Denton Alan CRANK, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 328

761 S.W.2d 328

Denton Alan CRANK, Appellant, v. The STATE of Texas, Appellee.

No. 69500.

Court of Criminal Appeals of Texas,

En Banc.

Sept. 14, 1988.

Rehearing Denied Oct. 19, 1988.

Don Ervin, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty. and Eleanor M. McCarthy and Janice M. Krocker, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.

OPINION

CLINTON, Judge.

Appellant was charged in a two count indictment with capital murder, as proscribed by V.T.C.A. Penal Code, § 19.03(a)(2). After the State abandoned the first count, the jury found appellant guilty of capital murder as charged in the indictment. The jury answered the special issues submitted to them in the affirmative, and punishment was assessed at death. Article 37.071(b), V.A.C.C.P. Direct appeal to this Court is automatic. Article 37.071(h), V.A.C.C.P. We will affirm.

Appellant raises thirteen points of error in this Court. He does not contest the sufficiency of the evidence. We shall address appellant's grounds of error seriatim.

Appellant's first point of error contends the trial court committed reversible error in denying his motion for dismissal under the Texas Speedy Trial Act. Our recent decision in Meshell v. State, 739 S.W.2d 246 (Tex.Cr.App.1987), holding Article 32A.02, V.A.C.C.P., unconstitutional, obviates the need for further discussion of this ground, and it is overruled.

Appellant next raises points of error in which he complains of the admission of several extraneous offenses which preceded the actual capital crime alleged in the indictment. A fairly detailed recitation of the facts surrounding these extraneous offenses, as well as those surrounding the capital crime itself, is necessary in order to facilitate a cogent discussion of these points.

Terry Oringderff (Oringderff), the deceased, was employed by Rice Food Markets. At all times pertinent to this cause, he was employed as one of the managers of a Rice Cash Savers Store ¹ (hereinafter Rice) located at 9419 North Freeway (Interstate 45) in north Harris County.

Mary Oringderff (Mary), the deceased's estranged wife, spent the whole day Sunday, January 15, 1984, with the deceased. She was last in his apartment at approximately 7:30 p.m. on Sunday evening, and she indicated that everything was clean and neat and nothing was out of place. The deceased was then wearing a ring bearing a horseshoe studded with diamonds.

At some point between 11:00 p.m. and midnight on that Sunday evening, one of the Oringderff's neighbors noticed that the door to Oringderff's apartment was ajar. The following day, the apartment was found in a state of complete disarray. Cushions had been pulled from the couch, kitchen cabinets and drawers were open, a statue had been overturned, and numerous items were missing.

Oswald Matthews was employed at the Rice store in question, and he arrived for work at approximately 6:50 on the morning of January 16, 1984. Matthews was admitted to the store by Oringderff. Matthews described Oringderff's appearance on that morning as looking "like he had had kind of a rough night," and Matthews noted that Oringderff was not clean shaven. Oringderff was wearing a jacket and Matthews noted a "hump" on his back, and some type of strap around his neck.

Oringderff led Matthews to the meat cooler where the pair encountered a single gunman. The gunman had on a black "Hoss Cartwright type" hat and a dark stocking mask. He was also wearing a green jump suit, Army-type fatigue jacket, gloves and dark orange boots. Matthews thought that the gunman had a beard beneath the stocking mask. The gunman carried a "box-frame 9 millimeter, .38 or .45 caliber automatic" pistol. Matthews was instructed to lie on the floor near the back of the store in an employee lounge area, where he was subsequently frisked and relieved of his billfold by the gunman.

At one point while Matthews was lying on the floor, Oringderff told him to "(d)o as they say. They have kept me all night. They have had me. They found me, kept me at the apartment and brought me down here and ransacked my apartment and they got me wired with explosives." Although Matthews only saw one gunman during the course of the robbery, he testified that Oringderff continuously used the word "they" when referring to the gunman. ²

Within the next ten to fifteen minutes, Jean Blake, a Rice security employee, Gloria Carreon, a meat wrapper, Hugh Troy Billings, the produce manager and Byron Swindle, the assistant manager, arrived for work. Each employee was met by Oringderff as he or she arrived at the front door and escorted back to the employee area, where the gunman told each employee to lay down on the floor and robbed each one of the contents of their wallet or purse. Additionally, two delivery drivers who had arrived at the Rice store at approximately 7:00 a.m. were also escorted back to the employee lounge area, placed on the floor and robbed at gunpoint. At approximately 7:10 a.m., the gunman moved Matthews, Blake, Carreon, Billings, Swindle, and the two delivery drivers from the floor of the lounge area to the produce cooler. The gunman apparently blocked the door to the produce cooler with empty plastic milk crates, effectively locking the group inside.

At approximately 7:50 a.m., Shirley Jane Poteet, the courtesy booth operator, arrived for work. She went to the back door of the Rice store, as usual, and was admitted by Oringderff. After she entered the store, Poteet noticed the gunman standing just to the right of Oringderff. Oringderff told Poteet that he had seven or eight sticks of dynamite strapped to his back, and instructed her to "do as they say." The gunman searched Poteet, took one hundred and twenty-five dollars from her pants pocket, and then told her "you know where to go and what to do." Poteet interpreted this as an instruction to proceed to the courtesy booth and open the safes.

The gunman followed Oringderff and Poteet to the courtesy booth area of the store. The door to the courtesy booth was equipped with a fifteen minute time delay lock and the lock had already been deactivated by the time Poteet arrived at the door of the courtesy booth. Within the courtesy booth there were four safes, two of which were readily visible once one entered the booth area, and two of which were hidden beneath floor mats. A fifth safe was located in an adjacent room, generally known as the computer room, which housed the electronic equipment which operated the store's cash registers. Oringderff had the combination to one of the four safes in the courtesy booth, as well as the combination to the safe located in the adjacent electrical equipment room. This safe had apparently not been used since a robbery at the Rice store in November of the prior year. The one safe within the courtesy booth to which Oringderff had the combination contained one thousand dollars in currency and coins which was used to make change during the evening hours after the days' receipts had been placed in the three remaining safes in the courtesy booth. Of the employees at the store that morning, only Poteet had the combinations to the other three safes in the courtesy booth.

The gunman accompanied Poteet and Oringderff into the courtesy booth, and had them place the contents of each of the four safes into a canvas mail bag. When the mail bag was filled with currency and coins, the gunman directed them to fill a plastic trash can with the remaining money from the safes. As each safe was opened, the gunman said "Oringderff, if there is a gun in there, I'm going to--you're dead." After either Oringderff or Poteet had removed all of the contents from one of the safes, the gunman would look quickly into the safe to ensure that nothing remained inside.

After all four of the safes in the courtesy booth had been emptied, Poteet, Oringderff and the gunman left the courtesy booth and headed for the back door of the Rice store. En route to the back door, the gunman stopped at the produce cooler, removed the plastic milk crates used to block the door closed and motioned Poteet inside. This occurred at approximately 8:10 a.m. When last seen by Poteet, Oringderff was carrying the mail bag filled with currency and walking toward the back door of the store, followed closely by the gunman, who was then dragging the plastic trash can filled with currency and coins. An audit later revealed that the robbery netted either $39,801.12 or $39,801.13. The Rice employees and delivery men were all released from the produce cooler at approximately 9:00 a.m., when a third delivery driver arrived at the store to make a delivery and found no Rice employees available to accept the shipment.

On January 16, 1984, Trent Brandon Hirsch was working as a production supervisor for Turkey Creek Farms on Broze Road and FM 1960, in north Harris County. At approximately 8:30 a.m., Hirsch heard one shot, "real loud, almost like a cannon," followed by five or six more shots approximately three seconds later. Although the area around the nursery was heavily wooded at that time, and it was not unusual to hear gunfire in that area during hunting seasons, Hirsch said that it was unusual to hear gunfire that early in the morning, particularly when it apparently originated from an area that close to the nursery. It was impossible for Hirsch to see the end of Broze road from the area where he was working when he heard the shots due to the trees and underbrush in that area.

Later on the morning of January 16, Harris County Sheriff's Deputy Johnny Freeze found a 1972 Pontiac Grand Prix registered to Terry Oringderff at the end of Broze Road. Next to the car was Oringderff's body. Oringderff had been shot six or seven times. A disposable diaper had been torn in half and taped across Oringderff's face, covering his eyes, nose and mouth. In the immediate vicinity of the body were four empty Remington Peters 9...