Demouchette v. State

• Decision Date: 24 September 1986
• Docket Number: No. 69143,69143
• Citation: 731 S.W.2d 75
• Parties: James DEMOUCHETTE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 75

731 S.W.2d 75

James DEMOUCHETTE, Appellant, v. The STATE of Texas, Appellee.

No. 69143.

Court of Criminal Appeals of Texas,

En Banc.

Sept. 24, 1986.

Certiorari Denied June 8, 1987. See 107 S.Ct. 3197.

Kristine C. Woldy, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty. & J. Harvey Hudson & Ira Jones, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for capital murder. V.T.C.A. Penal Code, Sec. 19.03(a)(2). After finding appellant guilty, the jury returned affirmative findings to the special issues under Art. 37.071(b), V.A.C.C.P. Punishment was assessed at death.

Omitting the formal parts, the indictment charged that appellant did, "while in the course of committing and attempting to commit robbery, intentionally cause the death of Scott K. Sorrell, hereafter styled the complainant, by shooting the complainant with a gun."

Appellant challenges the sufficiency of the evidence to prove that he committed the aggravating offense of robbery, either acting alone or as a party.

The evidence showed that appellant's sister had worked at a Pizza Hut at 5426 Antoine in Houston. Sometime in early October of 1976 she had ceased working there. At about 11:45 p.m. on the evening of October 17, the manager of the Pizza Hut, Geoffrey Hambrick, was preparing to close for the night when a person named Harper entered and ordered a pizza. Hambrick took the order and Harper sat down in the booth closest to the entrance. Shortly before midnight Chris Demouchette, appellant's brother, entered the Pizza Hut and asked Harper "Is the manager here?" Hambrick came to the counter. Demouchette ordered a beer and sat at a table nearby.

A few minutes later appellant walked in and stood silently at the counter near the cash register. Harper noticed that appellant did not order anything, but that appellant remained standing near the counter by the door. It also became apparent to Harper that appellant knew Chris Demouchette, who was still seated at a table drinking beer. Harper found the circumstances "strange" and felt an urge to leave. When Hambrick brought out his pizza, Harper paid and left the restaurant a few minutes after midnight.

At about this time Scott Sorrell and Chuck White entered. Sorrell was an assistant manager for Pizza Hut. Hambrick had agreed to show him how to keep books that evening. After Sorrell and White arrived, Hambrick locked all the exterior doors.

Sorrell recognized one of the Demouchettes, and invited the two brothers to join the other three men for a beer. Appellant sat at a booth with White. Chris Demouchette sat at a table with Sorrell and Hambrick. After about five minutes of conversation, Hambrick heard White say, "I'd think twice before I pulled that trigger." Hambrick turned and saw appellant holding a large caliber revolver in White's face. Hambrick saw appellant fire one shot directly into White's head. Appellant aimed the weapon at Hambrick. Hambrick saw White slump face down on the table and heard a second shot. The bullet struck Hambrick in the right side of his head near the ear. The impact knocked Hambrick back against the edge of a booth, from which he recoiled forward onto the table. Still conscious, Hambrick lay motionless. He then heard a third shot and a sound he took to be Sorrell falling backwards.

Hambrick testified that he "heard them run in the back room of the Pizza Hut, and it sounded like they were tearing the place apart. You could hear things falling off the walls and things being thrown around and you could tell they were ransacking the place." During this period, Hambrick also heard a gurgling sound coming from Sorrell. Hambrick then heard the two men return to the dining room, and heard appellant say, "Get the keys." At about that point, there was another shot and the gurgling noise from Sorrell stopped. (A doctor testified that a bullet severed Sorrell's jugular vein and carotid artery, and that Sorrell bled to death.)

Hambrick felt one man grab him beneath his arms and raise him up slightly while the second man searched his pockets until he found Hambrick's keys. Hambrick heard the keys jangling at the front door, and then heard appellant say, "Out the backdoor, Chris." Hambrick heard the two run to the back, heard the deadbolt click, and nothing more.

Hambrick remained motionless for several minutes. He then got to his feet, locked the back door, and called the police. Two Houston police officers arrived at the scene while Hambrick was still talking to the dispatcher.

The investigation showed that the cash register drawer was open and empty. A small amount of money was scattered on the floor. In the restaurant office, things had been pulled from the shelves, drawers had been opened, and papers were strewn about the room. It was discovered that stereo equipment had been taken from the office.

Hambrick testified that as the manager of the Pizza Hut and the only employee on duty at the time of the offense, he had care, custody and control of the cash in the register and the stereo equipment in the office.

Appellant contends, essentially, that because the State failed to prove a completed theft the evidence is insufficient to show that appellant committed murder in the course of committing robbery. Appellant argues as follows:

"The sum total of all the state's evidence shows, at best, that Appellant was a party to the 'theft' of some keys. It was never asked whether or not the keys were recovered. An equally believable scenario, however, based on the state's witnesses, was that with all the doors locked from the inside, the keys had to be obtained, not to appropriate them, but to use them temporarily to escape the premises. There is a distinct possibility that Mr. Hambrick, while not being aware that he was unconscious for a time, was in fact unconscious and that someone else came in and took the stereo that was discovered missing. The state's evidence with regard to the money in the cash register was so self-contradictory as to mean nothing. The only sure thing was that by the time police arrived, the cash drawer was empty.

"The state failed to show that Appellant unlawfully appropriated any property or that he aided or assisted anyone else in doing so, except perhaps with regard to the keys discussed above."

At the outset it should be noted that proof of a "completed theft" is not required. The trial court charged the jury that, " 'In the course of' means conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of the offense alleged." In applying the law to the facts, the court charged the jury "Now therefore, if you find from the evidence beyond a reasonable doubt that ... [appellant] ... did then and there unlawfully while in the course of committing or attempting to commit the robbery of Geoffrey Hambrick, intentionally caused the death of Scott K. Sorrell ... by shooting the Complainant with a gun, then you will find the [appellant] guilty of capital murder." [our emphasis.]

Appellant and his brother entered the restaurant, separately, shortly before closing time. Chris Demouchette asked Harper "Is the manager here?" After brief conversation with the others, appellant shot White, Hambrick, and Sorrell. Hambrick then heard both men ransack the office. Stereo equipment was taken, and the cash drawer was left empty. The evidence was sufficient to prove beyond a reasonable doubt that appellant caused the death of Sorrell in the course of attempting to commit robbery of Hambrick. The ninth ground of error is overruled.

In his tenth ground of error, appellant contends the trial court erred in refusing to give either one of two special requested instructions. The trial court instructed the jury, in pertinent part, as follows "A person commits a robbery if, in the course of committing theft, as defined hereinafter, and with intent to obtain or maintain control of the property, he intentionally causes bodily injury to an individual or intentionally threatens or places an individual in fear of imminent bodily injury or death.

"...

"Before you would be warranted in convicting the Defendant of capital murder, you must find from the evidence beyond a reasonable doubt not only that on the occasion in question the Defendant, James Demouchette, acting alone or together with Chris Demouchette, as a party, was engaged in the commission or attempted commission of the felony offense of robbery, if any, of Geoffrey Hambrick, as defined in this charge, but also that during the commission of the robbery or attempted commission thereof, if any, the Defendant, James Demouchette, shot Scott K. Sorrell with a gun with the intention of thereby causing his death. Unless you find from the evidence beyond a reasonable doubt that the Defendant, James Demouchette, on said occasion, specifically intended to kill the said Scott K. Sorrell when he shot his [sic] with a gun, if he did shoot him, you cannot convict him of the offense of capital murder."

In place of the latter paragraph, appellant requested the trial court to give either one of the following special charges:

"Before you would be warranted in convicting the Defendant of capital murder you must find from the evidence beyond a reasonable doubt not only that on the occasion in question the Defendant did intentionally murder Scott K. Sorrell as defined in this charge, but also during the commission of the murder, if any, the Defendant committed the offense of robbery of Geoffrey Hambrick, fled the robbery of Geoffrey Hambrick or attempted to rob Geoffrey Hambrick.

"Unless you find from the evidence beyond a reasonable doubt that the Defendant on said occasion specifically intended to rob the said Geoffrey Hambrick when he shot Scott K. Sorrell, if he did shoot Scott K. Sorrell, you cannot convict him of the offense of...