Davis v. State
| Decision Date | 24 September 1974 |
| Docket Number | No. 48775,48775 |
| Citation | 513 S.W.2d 928 |
| Parties | Orville DAVIS, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Vern F. Martin, Midland, Court Appointed, for appellant.
R. H. Moore, IV, Dist. Atty., Guilford L. Jones, Sp. Prosecutor, Big Spring, and Jim D. Vollers, State's Atty., Austin, for the State.
The offense is murder; the punishment, life. This case was transferred from Glasscock County to Midland County on a change of venue.
Ground of error one contends that the evidence is insufficient to corroborate the admitted accomplice witness. A Glasscock County rancher, Currie, was killed by a shotgun blast to the head at the door of his living room. The assailant wore a ski mask and could not be identified. The State's case is based on the testimony of the witness Judy Dunham, who participated in the preparation for the robbery (which culminated in the murder) and who placed the appellant at the scene. She was an accomplice witness, and the jury was so instructed.
Dunham testified that on an occasion prior to December 2 she had been present when Floyd Palmer, Witmer Jean Ballard, Tommy Tisdale, and appellant discussed the plans for robbing the deceased, who allegedly had $150,000.00 in gold coins in his home. On the night of the crime, she and Palmer drove to the Currie ranch in a pickup and the appellant, Ballard and Tisdale followed in a Cadillac. A stop was made near the ranch so that the men could change clothes, and several of them put on dark coveralls. Dunham later dropped the men off in front of the residence.
The State also relied upon the testimony of Melvis Sheppard, and we are met at the outset with the appellant's contention that he too was an accomplice, and therefore could not corroborate Dunham. A careful examination of his testimony is necessary. The homicide occurred on December 2. The principals were Ballard, Palmer, Tisdale and appellant. We quote in part from Sheppard's testimony concerning a conversation between Ballard, appellant and himself which occurred prior to December 2:
'Q Jean Ballard told you something about a rancher. Did he talk to you about he was going to hit the rancher or whatever they call it?
A He just made a statement that he knew, as I said a while ago, that he knew a rancher out here somewhere in this area that had a lot of money.'
Sheppard testified further that on the day after the robbery-murder, appellant came to his house in Odessa and told him that those named above 'went over' and 'that they--that Jean blew this rancher's head off . . .' and that afterward everybody went their separate ways and that he (the appellant) walked away from the scene. On this occasion appellant asked to borrow Sheppard's automobile so that he might go back to the area of the homicide to see if he could find Ballard, because he did not know whether he was dead or not, and that he loaned his automobile upon appellant's promise to change the oil and fill the gas tank.
We construe the above to be appellant's confession to Sheppard.
This was the extent of Sheppard's participation in the crime. By no stretch of the imagination could it be said that this made Sheppard 'answerable to the law as a principal, an accomplice or an accessory to the crime about which he is testifying.' The rule is set forth in Silba v. State, 161 Tex.Cr.R. 135, 275 S.W.2d 108. The same rule is expressed in a similar manner in Flores v. State, Tex.Cr.App., 491 S.W.2d 144, where we said:
'Appellant urges that Garza became an accomplice witness by virtue of having told one Ralph Robledo he didn't see who fired the shot and didn't want to testify.
Grounds of error two and three contend that the court erred in refusing appellant's court appointed counsel's request for additional time to prepare for trial. The record reflects that on August 20, 1971, the trial court appointed the Honorable Vern F. Martin and the Honorable Bobby Bearden to represent the appellant and co-defendant Ballard. On September 20, the court granted a severance and appointed Martin to represent this appellant and Bearden to represent Ballard, and the case against this appellant went to trial.
Our recent opinion in Prince v. State, Tex.Cr.App., 500 S.W.2d 533, is not here controlling, because in that case Attorney Bruder had no time to prepare to defend Prince. Here Martin had one month in which to prepare to defend this appellant. See Hayles v. State, Tex.Cr.App., 507 S.W.2d 213, and Coleman v. State, Tex.Cr.App., 481 S.W.2d 872.
Ground of error four contends that the court erred in discharging court appointed assistant counsel for appellant. The record reflects that at the conclusion of the first day of trial the court appointed the Honorable Jimmy Oglesby to assist Martin in appellant's defense. Martin had requested the court to appoint counsel 'to sit in with him' at the beginning of the trial. The court expressed the view that Martin was thoroughly capable of defending appellant (a view which is supported by this record), but as an accommodation to Martin and contingent upon assurances that such appointment would not delay the trial the court consented to appoint Oglesby. However, when Oglesby the next day raised the question of not having 10 days to prepare for trial, the court relieved him from such appointment.
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