Crawford v. State

• Decision Date: 16 July 1980
• Docket Number: No. 57602,57602
• Parties: Murriel CRAWFORD, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 925

617 S.W.2d 925

Murriel CRAWFORD, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 57602.

Court of Criminal Appeals of Texas, En Banc.

July 16, 1980.

Rehearing Denied Sept. 17, 1980.

Selden B. Hale and Charles W. Fairweather, Amarillo, and Emmett, Colvin and David L. Botsford, Dallas, for appellant.

Tom Curtis, Dist. Atty., Morris L. Overstreet and John Loudder Davis, Asst. Dist. Attys., Amarillo, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

DOUGLAS, Judge.

Murriel Don Crawford appeals from his conviction upon a plea of guilty to the offense of capital murder. Punishment was assessed at death.

The record reflects that a few minutes after midnight on the morning of October 22, 1975, appellant was awakened in his apartment by co-defendant David Mabra. Approximately forty-five minutes later, Mabra and appellant drove to the farm of Jack Watson, a former employer of Mabra's. There they stole a hunting knife, lariat rope and binoculars from an International Scout parked on the farm property, along with two .12 and .410 gauge shotguns and a .22 caliber rifle. They then went to appellant's apartment with the stolen goods.

A short time later, appellant and Mabra drove in appellant's pickup truck to a 7-11 Store, intending to rob the cashier. They abandoned their plan and proceeded to an Exxon service station with similar intentions. They again became nervous and left the station without robbing the attendant. Finally, appellant and Mabra drove to a Toot 'n Totum food store and parked appellant's truck where it could not be readily seen. Carrying the .410 shotgun which had been stolen from Jack Watson, the pair entered the store and robbed the night cashier, Edith Whitfield, of $32.00. After Mrs. Whitfield handed appellant the contents of the cash register in a paper bag, appellant fired at her, narrowly missing her head. Appellant then fired a second shot at point blank range and struck Mrs. Whitfield in the left eye, causing her instantaneous death.

The two men fled the scene of the murder and returned to appellant's apartment. There they gathered together all the goods which had been stolen from the Watson farm and placed them, along with the murder weapon, in the trunk of Mabra's car. The pair got into the car and headed for Jack Watson's farm but were stopped en route by Amarillo police officer Tom Porter because the muffler made excessive noise. A traffic citation was issued to Mabra and both defendants were interviewed by Officer Porter. Mabra gave the officer permission to search the car, but the officer declined and appellant and Mabra were told they were free to go. They proceeded to the Watson farm where they replaced the stolen items, including the murder weapon, in the Scout from which they had been taken. Appellant and Mabra drove back to Amarillo.

Three weeks after the murder of Edith Whitfield, appellant and Mabra initiated a conversation with Jim White, a neighbor and friend. In the course of this conversation, appellant bragged to White that he and Mabra had robbed the Toot 'n Totum store and that he himself had shot the deceased in the eye and "pushed her brains out the top of her head." Appellant described for White their flight to the Watson farm, their encounter with the Amarillo police and other details of the crime. He related that they returned to the scene of the crime intending to see whether or not the Toot 'n Totum was equipped with cameras which might have recorded the murder and robbery on film. Appellant stated to White that if Officer Porter had opened the trunk of Mabra's car he would have stabbed him. Jim White testified that as appellant described the grisly details of the crime he showed no shame, sorrow or guilt. Appellant's only regret was, as he told White, that he did not stop to eat candy while in the Toot 'n Totum store.

Jim White informed Amarillo police detective Gary Richards of his conversation with appellant and Mabra. Both appellant and Mabra were interviewed by Detective Richards concerning the crime and were released. Following their release, they returned to the Watson farm and stole the .410 and .12 gauge shotguns which they had previously stolen. The guns were sold by appellant to two workers at Maywood, Inc., where he was employed.

Prior to his arrest, appellant admitted to three fellow employees at Maywood that he had murdered the deceased. Karen Richie testified that appellant told her that he had done the shooting. He laughed about the incident. Sandra Carreker testified that appellant stated to her on a coffee break, "Maybe they'll come and get (me) for shooting that old lady." On that occasion, too, he laughed about the murder. Keith Carreker testified that appellant told him that he "shot that old bitch in the face." Carreker stated that when he asked appellant if he was drunk, appellant answered that he was cold sober and that if Carreker said anything to anyone about the murder his partner would "waste him."

Ricky Wayne Holik testified that in January, 1976, he, David Mabra and the appellant attended a concert in Amarillo. After the concert, at appellant's instigation, the three of them went to Maywood, Inc. There they burglarized the building and stole a number of tools. To destroy evidence of the breakin, appellant set fire to the building. On August 25, 1976, appellant and Mabra were arrested for the burglary of the Maywood plant. While in custody, appellant confessed to the burglary and, later, to the murder of Edith Whitfield. His written confession was admitted into evidence at trial.

Thirteen grounds of error are advanced in appellant's brief. First he complains of testimony wherein reference was made to an oral statement of the co-defendant David Mabra.

"Q. (Prosecutor) And did you thereafter have a discussion and an interview with Don Crawford?

"A. (Detective Richards) I did.

"Q. Also with a fellow named David Mabra?

"A. Yes.

" * * *

"Q. In any event, after your did you have occasion to ask the defendant, Don Crawford, inquire whether or not he or Richard or David Mabra had been involved as the robbers and murderers in that Toot 'n Totum murder?

"A. Yes, I did.

"Q. Did they admit it, deny it, or what?

"A. They denied it."

Appellant contends that since David Mabra was not on trial and did not testify any statement made by him was inadmissible against the appellant.

There was no objection to the testimony. Mabra's statement, although hearsay as to the appellant, was not inculpatory. Under such circumstances, any error committed was harmless. Thomas v. State, 533 S.W.2d 796 (Tex.Cr.App.1976).

Appellant contends that the trial court erred in permitting the district attorney to read sections of David Mabra's inadmissible initial confession while cross-examining the appellant. He contends that the prosecutor did not cross-examine appellant from the statement, but that he used cross-examination as a guise under which to introduce large portions of the co-defendant's confession before the jury. He also complains of the following statement made by the district attorney during his cross-examination of appellant:

"You are still sticking to the version you gave after Mabra fingered you, that Mabra took (the gun) in."

Appellant argues that the prosecutor's remarks made reference to the confession of the non-testifying co-defendant in which appellant was blamed for the actual shooting.

In light of the fact the jury returned a directed verdict upon appellant's plea of guilty, it cannot be said that the improperly admitted confession contributed to appellant's conviction. A plea of guilty before a jury admits all of the elements of the offense and is conclusive of a defendant's guilt. See Fierro v. State, 437 S.W.2d 833 (Tex.Cr.App.1969).

Appellant, however, contends that the evidence bore heavily on the jury's determination of the special issues which, under Article 37.071(d)(2), (e), V.A.C.C.P., resulted in the assessment of the death penalty. In his written confession which was introduced into evidence by defense counsel he admitted that he was a party to the robbery and murder of Edith Whitfield. He also testified that he helped prepare for and commit the robbery. He denied, however, carrying the gun or shooting the deceased. The prosecution, in cross-examining the appellant, read certain portions of David Mabra's first confession which named appellant as the one who carried the weapon into the store and shot the deceased. It is appellant's theory that the jury assessed the death penalty on the basis of its belief that appellant was the "trigger man", and that without David Mabra's confession it would have assessed a life sentence.

Appellant testified that he signed the confession in order to clear his conscience and that he felt a great sense of relief after having done so. It was only after reading Mabra's statement that appellant said to Detective Garrett: "My God, he's putting us both in the electric chair," whereupon he immediately gave a written statement admitting his involvement in the crime but placing the blame for the shooting on David Mabra.

Article 38.24, V.A.C.C.P., provides:

"When part of an act, declaration or conversation or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other, as when a letter is read, all letters on the same subject between the same parties may be given. When a detailed act, declaration, conversation or writing is given in evidence, any other act, declaration or writing which is necessary to make it fully understood or to explain the same may also be given in evidence."

In Vanderbilt v. State, 563 S.W.2d 590 (Tex.Cr.App.1978), we observed that Article 38.24 does not restrict the explanatory act, declaration, conversation, or writing to the time when the act, declaration, conversation or writing sought to be explained occurred but extends the rule so as to render such acts or...