Dillard v. State

• Decision Date: 30 August 1996
• Docket Number: No. 05-94-01801-CR,05-94-01801-CR
• Citation: 931 S.W.2d 689
• Parties: Charles McGee DILLARD, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 689

931 S.W.2d 689

Charles McGee DILLARD, Appellant, v. The STATE of Texas, Appellee.

No. 05-94-01801-CR.

Court of Appeals of Texas Dallas.

Aug. 30, 1996.

Jeffrey B. Keck, Dallas, for appellant.

Patricia Poppoff Noble, Dallas, for appellee.

Before LAGARDE, WRIGHT and CAMPBELL ¹, JJ.

OPINION

LAGARDE, Justice.

Charles McGee Dillard appeals his conviction by a jury of the offense of capital murder. Punishment was assessed at confinement for life. Dillard raises four points of error, contending that: (1) the evidence is legally and factually insufficient to show that he had the requisite intent to kill the deceased; (2) the evidence is legally and factually insufficient to show that he killed the deceased in the course of robbery; (3) the trial court erred in not declaring a mistrial after testimony was introduced concerning an extraneous offense; and (4) the trial court erred in allowing the introduction of the results of a hand-wiping test performed on the deceased's hands. We overrule appellant's points of error and affirm the trial court's judgment.

FACTS

Appellant was accused of causing the death of Alan Paxton by shooting Paxton with a firearm while in the course of committing robbery. Charles Allen, a security guard, testified that in February 1994 he was working at the Diamond Ridge apartment complex. There were large numbers of gang members in the area as well as a "lot of drugs in the apartment complex." Late on February 16, 1994 or in the early morning hours of February 17, he saw appellant's youngest brother, Simeon, and another brother, Antywon. He had had trouble with the Dillard family since first arriving on the job. He issued Antywon a warning for criminal trespass because Antywon, Simeon, a cousin, and three other people were standing on a corner selling drugs. Allen identified appellant as the cousin, who went by the nickname "Pork Chop."

On February 16, Allen encountered Paxton while Paxton was standing in the parking lot of the complex. Allen told Paxton not to loiter on the property. Allen saw him a second time approximately an hour after the first encounter. As of February 17, Allen had worked in the area for approximately a year. He was well acquainted with the individuals in the area.

Early in the morning of February 17, Paxton's cousin told Allen that Paxton had been shot. Allen drove to an apartment where he found Paxton bleeding from a gunshot wound in the shoulder. Allen called the police and an ambulance.

Before Allen found Paxton, he saw a number of people running into apartment 2073 in the complex. He told the police that he had seen the people running to the apartment. The police accompanied him to the apartment. When they knocked on the door, no one came to the door. Allen had recognized appellant and Antywon as two of the people running into the apartment. Allen admitted that he had a previous conviction for aggravated assault.

On cross-examination, Allen testified that when Allen first saw Paxton, he could have been standing there as long as fifteen minutes. Allen told Paxton that he needed to stay on "the other side there because this side of the corner is hot." When Allen came back approximately an hour later, he saw Paxton there again. This time, he saw what he perceived to be a drug deal. Allen called the police and told them where Paxton stayed, as well as the fact that Allen believed he had seen a drug deal. Allen also testified that he did not see Paxton get shot. On redirect, Allen testified that, when he saw the drug deal, he saw Paxton produce money from his wallet.

Dale Dabbs testified that in February 1994, he was living across the street from the Diamond Ridge apartment complex. Paxton, who was the brother of Dabbs's girlfriend, came over to Dabbs's apartment on February 16, 1994. Paxton was a cocaine user. On February 16, Paxton had just been paid when he came over. Shortly after midnight, Paxton told his sister that he was going to get "something to smoke." Dabbs took this to mean that Paxton was going to buy crack cocaine. Paxton went across the street and approached a man. Dabbs warned Paxton not to buy from the man. The man approached Paxton and Dabbs and asked "You looking for it?" Dabbs took this to be a question about whether Paxton wanted to buy cocaine. Paxton told the man that he wanted one rock, and asked the man to Dabbs noticed that there might have been a struggle. The dealer had been wearing headphones when Dabbs and Paxton first encountered him. When Dabbs found Paxton, the headphones were lying approximately four feet away from Paxton. The radio that went with the headphones was three feet on the other side of Paxton. Paxton's hat was about six feet away. Dabbs helped Paxton up, and Paxton began running on his own. They returned to Dabbs's apartment, where Paxton collapsed. Dabbs flagged down Charles Allen, the security guard, told him what was going on, and asked him to call the police and paramedics. Dabbs testified that in the hours before Paxton crossed the street to buy drugs, he did not know exactly what Paxton had been doing. Dabbs identified appellant as the person he saw running away from Paxton with a gun.

                change a $100 bill.  The man pulled a bag of crack cocaine from his pocket and Paxton picked out the one he wanted, handing the man a $100 bill.  The man pulled his left shoe off, then his right shoe, saying he was "fixing to change this $100 bill."   Dabbs considered this very unfamiliar and unusual.  Dabbs got Paxton's attention and told him that there was something wrong.  Paxton then told the man "That's okay.  I don't want it, just give me my money back."   The man told Paxton to return the cocaine.  Paxton gave the cocaine back, but rather than return Paxton's money, the man turned and ran.  Paxton ran after him.  The two men disappeared around a corner.  Dabbs began running after them, but stopped when someone upstairs in the complex asked what Dabbs was doing to "my cousin."   Dabbs was worried the man had a gun, so he stopped.  Shortly thereafter, Dabbs heard a gunshot and ran to check on Paxton.  He found Paxton lying on a concrete slab.  The man who shot him was running away with the gun in his hand, looking back at Dabbs. 2
                

Dabbs also testified that he spoke with the police and was given the opportunity to look at photographic lineups. He said that the police never highlighted, suggested, or coerced him to pick out a photograph. However, Dabbs did select a photograph for the police. When he first saw a photograph of Antywon Dillard, he told them that Antywon looked like the killer, except that Antywon was shorter. Antywon was brought into the courtroom. The court took note that appellant was two to three inches taller than Antywon. After Paxton was shot he had a few papers in his pocket, but his wallet was missing. He had the wallet when he first went across the street. Dabbs also testified that, at the time of trial, there was a warrant out for his arrest for misdemeanor assault.

On cross-examination, Dabbs testified that a judge had released the arrest warrant on his assault charge. Dabbs also admitted that when he first spoke with police he told them that Paxton was going to the mailbox at the time of the incident. He also admitted that he had told them he was forty feet away from appellant at that time. He did not tell the police about a drug transaction at that time. When asked which version was the truth, Dabbs told them that what he was now testifying to was the truth. He said that at the time he made the statement he mentioned that Paxton's wallet was missing. He examined Defense Exhibit No. 1, his statement to the police, and said that although he did not see anything in the statement to the effect that the wallet was missing, he had, in fact, mentioned it to police. Dabbs testified that when he first went to the police station they gave him a lineup that included a picture of Antywon Dillard. He looked like the man who had done the shooting. However, on March 4 the police had more pictures. This time Dabbs picked appellant's picture immediately. He also admitted he did not actually see who shot Paxton.

On redirect examination, Dabbs explained that he did not tell the police the complete truth about the nature of the transaction because his girlfriend had spoken to police first and she had not wanted members of the family to know that Paxton was involved with drugs. He did tell the police, though, that after Paxton and appellant were together, appellant ran from Paxton and Paxton ran after him. Dabbs also told the police that someone came down the stairs in the apartment complex wanting to know what Dabbs Robert F. Owens, a lieutenant with the Dallas Police Department, testified that on February 17, 1994 he responded to a call concerning a shooting. He was summoned to an apartment in the Rothington Place Townhomes across the street from the Diamond Ridge Apartments. He saw an ambulance at the address he had been given. The attendants were in one of the apartments working on a man lying on the floor. Owens secured the scene, then spoke with Dabbs. He did not believe that Dabbs was under the influence of alcohol or a controlled substance at that time.

was doing to the man's cousin. He also told police that he heard a gunshot and saw appellant run away from Paxton.

Owens described the Diamond Ridge Apartments as a source of a large number of disturbance calls, calls concerning drug sales, and shootings. He said that the policy of giving warnings on criminal trespass is a policy sanctioned by the Dallas Police Department. On cross-examination, Owens testified that there was no time to search for identification on Paxton's person when the paramedics were working on him.

Kenneth LeCesne, a sergeant with the Dallas Police Department, testified that he had worked in the area of the Diamond Ridge apartment complex. Some dealers engage in a practice known as "shortstopping" which he...