Crocker v. State

Citation573 S.W.2d 190
Decision Date10 May 1978
Docket NumberNo. 2,No. 54261,54261,2
PartiesKerry Andrus CROCKER, Appellant, v. The STATE of Texas, Appellee
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas

Percy Foreman and Dick DeGuerin, Houston, Frank Maloney, Kenneth E. Houp, Jr. and David H. Reynolds, Austin, for appellant.

Carol S. Vance, Dist. Atty., Robert A. Scults and Mike Hinton, Asst. Dist. Attys., Houston, for the State.

Before ONION, P. J., and DOUGLAS and ODOM, JJ.

OPINION

DOUGLAS, Judge.

On May 2, 1974, appellant was charged by indictment with five offenses under the former penal code. The State alleged that on or about August 28, 1972, appellant assaulted with the intent to murder Michael Kirk Crocker, that he deprived Michael Kirk Crocker of one of his testicles, that he disfigured Michael Kirk Crocker, that he assaulted with the intent to maim Michael Kirk Crocker, and that he intentionally caused injury to a minor, Michael Kirk Crocker. The trial commenced on April 2, 1975, and concluded on April 17. At the close of the testimony, the State elected to proceed on the castration and disfiguring counts only. These counts were submitted to the jury in the alternative in the court's charge. The jury found appellant guilty of castration under Article 1168, V.A.P.C. (1925). 1 After appellant elected to be punished under the pertinent provisions of the current penal code, the jury assessed his punishment at ten years' confinement in prison and a five thousand dollar fine, and he appeals. We affirm.

The facts are as follows. Appellant is a registered petroleum engineer. On November 18, 1971, the State of Texas granted him a license authorizing him to possess one one-curie source of cesium 137, a radioactive substance. A source of cesium 137 emits gamma ray radiation even though the element is encased in a steel capsule. The license was amended on March 17, 1972, to permit appellant to possess one two-curie source of the substance and was again amended on August 2, 1972, to allow him to possess two two-curie sources. His stated purpose in obtaining these radioactive sources was to use them for logging oil wells. According to James Gorrell, the licensing supervisor for the Radioactive Material Branch of the State Department of Health, appellant could possibly have obtained multiple radioactive sources in excess of the number authorized by the license by reusing it.

Ed Bailey was a nuclear engineer and the Chief of the Compliance and Instruction Program, Radiation Control Branch, State Department of Health. He conducted a series of inspections which showed that appellant possessed radioactive materials during 1972. Bailey, who saw the materials which were seized from appellant when his license was revoked, testified that those radioactive sources were very similar to the State's first exhibit. Bailey identified the State's second and twenty-third exhibits as instruments which are utilized for handling such radioactive sources. Appellant owned similar instruments.

Sidney Morrison operated an oil well logging and perforating service company until just prior to the time of the trial. The company's activities included conducting radioactive logs on oil and gas well completions. In 1971, while Morrison was licensed to possess radioactive substances, he and appellant had several conversations pertaining to the use of such substances. Appellant asked Morrison about the dangers associated with exposure to radiation, what constituted safe durations of exposure, what constituted a safe distance from the radioactive source, how the effects of radiation sickness are manifested, and related questions. Appellant was an independent petroleum engineer at that time and, according to Morrison, did not need extensive knowledge of radioactive materials because independent consultants ordinarily employ well logging companies to perform the services that require the use of such materials. Appellant had employed Morrison's company in this capacity on several occasions.

Appellant went to Morrison's office in the latter part of 1971 and made copies of Morrison's license without his knowledge or permission. Appellant never told Morrison that he had obtained a license authorizing him to possess radioactive sources.

The complaining witness, Kirk Crocker, is appellant's son. Kirk was eleven years old on August 28, 1972, the date of the offense alleged in the indictment. He was fourteen years old when the case was tried.

Appellant was divorced from Kirk's mother, Barbara Buckley Smith, in May of 1970. They were remarried in July of the same year but divorced again in February of 1971. Appellant was given certain visitation rights with respect to Kirk and Kirk's younger brother, Patrick. The brothers usually visited appellant at his apartment during the first and third weekends of each month and during a thirty-day period in the summer.

While Kirk and Patrick were visiting appellant in April of 1972, appellant told Kirk to listen to the television with the earphones only. Appellant then left Kirk alone in the apartment. When Kirk put on the instrument he noticed that cotton had been placed in it and, after pulling out the cotton, he found a small metal cylinder hidden inside each earpiece. Becoming frightened, he contacted his mother. She told him to watch the television without the earphones. When appellant returned and saw that Kirk was not using the earphones, he became angry. Kirk testified that the metal cylinders were very similar to those constituting the State's first exhibit.

Kirk and Patrick visited appellant one weekend in the early part of July of the same year. Before Kirk went to bed on Friday evening appellant gave him a glass of orange juice. After drinking the juice, Kirk observed a partially dissolved pill in the bottom of the glass. He became tired and drowsy and went to sleep earlier than usual.

Kirk slept on the couch in the den. During the night he awoke and saw appellant squatting beside him. Appellant told Kirk that he thought Kirk was having a nightmare. Appellant left and Kirk went back to sleep. Later the same night Kirk again awoke and saw appellant "crouching down in front of the couch fooling with something on the ground." Kirk questioned appellant about his activities and appellant stated only that Kirk "must have had another nightmare." Becoming suspicious, Kirk searched the couch and the area surrounding it after appellant returned to his room and discovered a sock under the cushion upon which he had been sleeping. The sock was thin and contained the impressions of two cylinders that were similar in shape to those he had found in the earphones.

Kirk also observed an instrument on an end table which he identified at trial as being similar to the State's second and twenty-third exhibits (which were instruments used for handling radioactive sources). This instrument was removed after Kirk again went back to sleep. When he awoke the next morning he inquired about the nature of the instrument. Appellant told him that it was used to clean guns.

That morning, Kirk became nauseous and started vomiting. He had not been ill the night before.

A similar incident occurred while Kirk and Patrick were visiting appellant on a later weekend in the same month. On Friday evening, appellant gave Kirk a glass of orange juice, and again Kirk noticed a partially dissolved pill in the glass. Kirk became tired and wanted to go to bed early. Appellant told Kirk to sleep in his bed because he (appellant) had guests in the den at that time. Before Kirk went to sleep appellant replaced the two pillows he ordinarily used with another pillow.

When Kirk awoke the next morning he heard a "rattling" sound which originated inside the pillow. He unzipped it and found a medicine bottle containing three metal cylinders; two were like those he had seen earlier and one was somewhat smaller. When he arose he discovered that he was alone in the apartment. Appellant and Patrick had slept in the bedroom of an adjacent apartment. Later that day Kirk again became ill and started vomiting.

At about the time this incident occurred Kirk's thighs "broke out" with raw and painful marks which had the appearance of bruises. He was treated for this condition by a doctor named Speers.

By August, a serious lesion had formed on each thigh. According to Kirk, these lesions "were raw, kind of like a big cut, and they were oozing and stuff." Another problem developed in his right thumb which became red and painful. It was with his right hand that Kirk had picked up the medicine bottle containing the metal cylinders.

Appellant picked up Kirk and Patrick in August for their summer visitation with him. But after several days passed he took the brothers back home because their mother was moving into a new house. Shortly thereafter, Mrs. Smith took Kirk to see Dr. Speers again because the boy's thigh condition was worsening. Appellant came to the doctor's office while Kirk was there and took him away. Mrs. Smith protested and the police were called but they permitted appellant to take Kirk with him. Although Dr. Speers had prescribed medication for Kirk's legs, appellant did not take it with him when he left the office.

Kirk stayed with appellant for a few days. One morning Kirk came out of the bathroom and saw appellant "fooling with the couch." Appellant told Kirk that he was leaving and that Kirk should lie on the couch while he was gone. Appellant further instructed Kirk not to answer the door or the telephone. When appellant left, Kirk looked under the sofa cushion and found the same sock containing two cylinders that he had seen before. He became frightened and decided to lie on the floor. Appellant became angry when he returned and found Kirk on the floor instead of on the couch. Appellant told Kirk to go into the bathroom and bathe because he was going to take him home. When Kirk came out of the bathroom he saw appellant walking out...

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242 cases
  • Smith v. State
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • September 19, 1984
    ...two reasons do not comport with appellant's objection at trial, they fail to preserve anything for appellate review. Crocker v. State, 573 S.W.2d 190 (Tex.Cr.App.1978); Watkins v. State, 572 S.W.2d 339 (Tex.Cr.App.1978). Appellant does argue that the prosecutor's inquiry of Dickerson was a ......
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    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • November 6, 1991
    ...burden of proof of criminal cases "is that the State establish all elements of the offense beyond a reasonable doubt." Crocker v. State, 573 S.W.2d 190 (Tex.Cr.App.1978) (Opinion on Rehearing). See Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); In re Winship, 397 U.......
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    • December 22, 1982
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11 books & journal articles
  • Trial Issues
    • United States
    • James Publishing Practical Law Books Archive Texas Criminal Lawyer's Handbook. Volume 2 - 2021 Contents
    • August 16, 2021
    ...a series of acts, the prosecution is not required to elect and rely upon only one of the acts to obtain a conviction. Crocker v. State, 573 S.W.2d 190 (Tex. Crim. App. 1978) (where the defendant caused injury to his victim by exposing him to a radioactive substance on a number of occasions ......
  • Trial Issues
    • United States
    • James Publishing Practical Law Books Archive Texas Criminal Lawyer's Handbook. Volume 2 - 2015 Contents
    • August 17, 2015
    ...a series of acts, the prosecution is not required to elect and rely upon only one of the acts to obtain a conviction. Crocker v. State, 573 S.W.2d 190 (Tex. Crim. App. 1978) (where the defendant caused injury to his victim by exposing him to a radioactive substance on a number of occasions ......
  • Trial Issues
    • United States
    • James Publishing Practical Law Books Archive Texas Criminal Lawyer's Handbook. Volume 2 - 2017 Contents
    • August 17, 2017
    ...a series of acts, the prosecution is not required to elect and rely upon only one of the acts to obtain a conviction. Crocker v. State, 573 S.W.2d 190 (Tex. Crim. App. 1978) (where the defendant caused injury to his victim by exposing him to a radioactive substance on a number of occasions ......
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    • United States
    • James Publishing Practical Law Books Archive Texas Criminal Lawyer's Handbook. Volume 2 - 2016 Contents
    • August 17, 2016
    ...a series of acts, the prosecution is not required to elect and rely upon only one of the acts to obtain a conviction. Crocker v. State, 573 S.W.2d 190 (Tex. Crim. App. 1978) (where the defendant caused injury to his victim by exposing him to a radioactive substance on a number of occasions ......
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