Earnhart v. State, 57183

• Decision Date: 10 January 1979
• Docket Number: No. 57183,No. 2,57183,2
• Citation: 575 S.W.2d 551
• Parties: James Edwin EARNHART, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 551

575 S.W.2d 551

James Edwin EARNHART, Appellant, v. The STATE of Texas, Appellee.

No. 57183.

Court of Criminal Appeals of Texas, Panel No. 2.

Jan. 10, 1979.

Joe M. Joiner, Sherman, for appellant.

Before ODOM, PHILLIPS and DALLY, JJ.

OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for murder. The punishment was assessed at 20 years' imprisonment.

Appellant was jointly tried with his brother, John Ray Earnhart, for the offense of murder before a jury. In his first ground of error appellant vigorously attacks the sufficiency of the evidence to sustain this verdict. A careful review of the evidence in a light most favorable to the fact finder's verdict reflects the following.

Deputy Sheriff Curtis testified that on November 30, 1974, he received a phone call from the Whitesboro Police Department and after taking certain actions that were subsequently explained by him when recalled, he dispatched officers to the Earnhart residence. When recalled, Deputy Curtis testified that he called the Earnhart residence phone number as listed in the local directory and a person who identified himself as John Ray Earnhart answered the phone and responded to the deputy's question by stating that a man had been killed in his home.

Deputy Sheriff Adams testified that he arrived at the Earnharts' residence at approximately 9:30 p. m. to investigate a shooting complaint and that John Ray Earnhart began "telling us before we could ask him questions" that some man had driven up bleeding, ran into the house, lay down on his bed and died. Deputy Adams testified that he looked into the victim's pickup truck and did not notice any blood. John Ray Earnhart then invited them into the house. Deputy Adams testified that the Earnhart brothers became suspects when they found no blood in the truck and all the blood in the house. After being placed under arrest, John Ray Earnhart went into his back bedroom to obtain a clean shirt and upon picking one up, he stated he did not want to wear it because there was blood on it. Deputy Adams then seized the shirt and preserved it as evidence. The brothers were then placed into the deputies' patrol car and were then warned of their Miranda rights. The deputy testified that they returned the next day to search the house after obtaining a search warrant when an autopsy disclosed that the victim had been shot to death. The appellant was first seen in the southeast bedroom lying on a couch completely covered over. The victim was apparently found also in the bed in the southeast bedroom. John Ray Earnhart apparently had a cut and bloody thumb, but there were no apparent signs of cuts or blood on the appellant. The appellant and his brother both appeared to be drunk. John Earnhart claimed ownership of the shirt seized and which contained blood.

Deputy Sheriff Teague corroborated in large part the testimony of Deputy Adams. However, he testified that the appellant and his brother became suspects when he was informed that no one else had been in the home. Deputy Teague testified that he did not interrogate the appellant. He did state however that John Ray Earnhart was "drunk crazy, wild," but that the appellant was cooperative. He testified that during their earlier patrol round he noticed that Mr. Elkins' pickup truck was at the house around 4 p. m. as were two other pickup trucks which he knew the Earnharts to have driven on occasion. Although John Ray Earnhart said that the victim claimed he was shot while in his pickup, there was no apparent outside damage to the pickup truck. The motors on all the vehicles in front of the house were checked and found to be cold. The deputy further testified that he had information that the victim was at the house on the previous day. John Ray Earnhart claimed he had never seen the victim before, while the appellant said he knew him and gave the officer his name.

Mr. Richards, a mortician who was also the justice of the peace on the date of the offense, testified that he arrived shortly before the police and formed the opinion that the victim had been dead between four and five hours. He could not, however, determine the cause of death.

A Mr. Austin testified that on the night previous to this offense, November 29, 1974 he arrived at the Earnharts' residence at approximately 8:30 p. m. and stayed for about one and a half hours. He testified that John Ray Earnhart began playing with a chain saw in the house and cut his thumb rather badly.

Chief Deputy Sheriff Bowling testified that he went to the Earnharts' residence on December 1, 1974, at approximately 2 p. m. to execute a search warrant. They found and seized a .22 rifle, three fired lead .22 caliber bullets, and a number of cartridge casings. He further testified that his investigation revealed a large puddle of blood under a chair and a trail of blood splatters from that chair through several rooms to a bathroom and returning from the bathroom to the bedroom and bed where the victim was found. A blood sample was taken from the chair and preserved for evidence. Blood was observed on the .22 caliber rifle seized. The house was unsecured when the police officers arrived to execute the search warrant. He testified further on cross-examination that there appeared to be some effort to wipe some of the blood up.

Texas Ranger Gant testified that he accompanied Chief Deputy Bowling during the search on December 1 and that blood samples were taken from the appellant and his brother.

Allen Jones, a firearms examiner with the Dallas County Criminal Investigation Laboratory, testified that the three .22 caliber lead bullets seized at the Earnharts' residence could not be matched with the .22 caliber rifle seized because one "lacked sufficient detail or striations to allow conclusive match" and the other two were "too mutilated." Two .22 caliber cartridge hulls were found to have been fired from the .22 caliber rifle seized "to the exclusion of all other weapons." The .22 caliber rifle seized was found to be in firing condition. The bullet fragments taken from the victim's brain were too mutilated for comparison.

Deputy Sheriff Clark who booked the appellant and his brother into jail on the evening of November 30, 1974, testified that the left thumb of John Ray Earnhart was cut and bleeding.

Dr. DeMayo, Associate Medical Examiner for Dallas County, testified that he conducted an autopsy on the victim and found a bullet hole in the right frontal region of the scalp surrounded by a flask-shaped wound with powder particles in the surrounding soft tissue. He testified that the bullet fragmented on impact with the skull bone and travelled back and down in a left to right direction. Two lacerations and two abrasions were found on other parts of the victim's body, but only the gunshot wound could cause the death in the opinion of the examiner. He testified that the muzzle of the gun...