Earnhart v. State

• Decision Date: 20 June 1979
• Docket Number: No. 3,No. 57245,57245,3
• Citation: 582 S.W.2d 444
• Parties: John Ray EARNHART, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 444

582 S.W.2d 444

John Ray EARNHART, Appellant, v. The STATE of Texas, Appellee.

No. 57245.

Court of Criminal Appeals of Texas, Panel No. 3.

June 20, 1979.

Joe M. Joiner, Sherman, for appellant.

Robert Huttash, State's Atty., Austin, for the State.

Before DALLY, W. C. DAVIS and CLINTON, JJ.

OPINION

DALLY, Judge.

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

Appellant challenges the sufficiency of the evidence to support the conviction; complains of the admission in evidence of statements made by the appellant; complains of the prosecutor's argument to the jury; and contends that the trial court erroneously communicated an additional instruction to the jurors after their deliberation began.

Appellant and his brother, James Edwin Earnhart, were convicted of murdering Spurgeon Elkins at appellant's home in Grayson County, on November 30, 1974. The two men were tried together, but filed separate appeals; the conviction of James Edwin Earnhart was recently reversed in Earnhart v. State, Tex.Cr.App., 575 S.W.2d 551 (1979). A detailed statement of the facts of the offense is included in that opinion, and the reader is referred to that account as a supplement to the facts set out here.

At 9:00 p. m. on November 30, 1974, Grayson County Deputy Sheriff Hal Curtis received a telephone call from the Whitesboro Police Department concerning a call they had received. As a result of the conversation Curtis called the Earnhart residence, and asked who was speaking; the speaker responded, "John Earnhart." Curtis then asked the speaker if he had a problem at the residence, and the speaker answered, "Hell, yes, I do. There has been a man killed in my house."

At 9:30 p. m. Grayson County Deputy Sheriffs Don Teague and Troy Adams arrived at the Earnhart residence simultaneously with police officers from Whitesboro and Collinsville, two highway patrol officers, and ambulance personnel. A Justice of the Peace, M. H. Richards, had arrived shortly before. Adams testified, and was corroborated by Teague, that when they arrived appellant came out of the house to meet them and said:

"Come in here. The son of a bitch drove in here in that pickup there with that camper on it, bleeding like a stuck hog, and he's laid down in my bed and died."

Appellant stated that he did not know the deceased; appellant's brother told the officers that he knew the deceased.

Adams checked the deceased's pickup for evidence of blood, but found none. Teague checked the engine; it was cold. Appellant told Teague that the deceased had driven in two hours previously, which would have been 7:30 p. m. Teague testified that he had driven by the house earlier that day at 4:00 p. m. and had seen the deceased's pickup parked out front. Richards, who was a mortician as well as a Justice of the Peace, testified that when he saw the deceased at 9:00 p. m., the deceased had been dead for four to five hours.

Teague testified that the Earnhart brothers became suspects when they told him that no one else had been at the house. Teague also testified that on other occasions he had seen both brothers at the house, but he believed appellant actually lived at the house. Appellant referred to the house as "my house."

When the officers entered the house they found the deceased lying on a bed in the living room. There was blood on the bed, a large puddle of blood under an easy chair in the living room, and blood in various other parts of the room and in other rooms in the house. Teague testified that one of the deceased's eyes was blue and swollen, and there was a hole in the top of his head. According to Adams the house was in "quite a turmoil," and there were beer cans and a gin bottle littering the floor. Both brothers appeared to be drunk; Teague testified that appellant was "drunk crazy, wild," whereas his brother Jim was cooperative.

Both brothers were arrested and taken to jail. Before leaving, appellant, who was wearing only an undershirt, went to a back bedroom to get a shirt. According to Adams appellant picked up a green shirt as if to put it on, then said, "It's got blood on it. I want to get a clean one." When Adams asked appellant if that was his shirt, appellant replied that it was.

The next day officers thoroughly investigated the scene of the crime. They found a .22 rifle stained with blood in a bedroom, six spent .22 cartridges in the living room, and three lead bullets. One of the bullets was lying on the floor of the living room, and the other two were imbedded in a wall, apparently after having been fired through one of the living room doors.

Allen Jones, a Dallas County firearms examiner, testified that two of the bullets were too mutilated to determine whether they had been fired from the rifle found in the house. The other bullet had "major and minor class characteristics" in common with the rifle, but it lacked sufficiently detailed striations to conclusively determine that it had been fired from the weapon. The gun was in operating condition. Jones testified that two of the cartridges had been discharged by the weapon, but he could not tell whether the other four cartridges had.

Sarah Williams, an employee of the Dallas County Criminal Investigation Laboratory, testified that she compared blood samples taken from the Earnhart brothers, the deceased, and the scene of the offense. According to Williams the brothers' blood samples were identical in type, and the deceased's blood type was different from the brothers. Both types were found in the blood sample taken from the barrel of the rifle. Appellant had cut his left thumb badly while shutting off a chain saw the day before the offense occurred; according to Teague the thumb was still bleeding and appellant was holding it when he and Adams arrived at the scene. Appellant's brother had hurt his ribs, but was not bleeding. A blood sample taken from the puddle of blood beneath the easy chair matched the deceased's blood type, as did a blood sample from the green shirt which appellant tried to pick up.

Dr. Vincent DeMayo, a Dallas County medical examiner, testified that the deceased received a gunshot wound from a .22 caliber weapon in the right frontal region of his scalp, and the wound was the cause of the deceased's death. A .22 caliber bullet, too mutilated to be of use for comparison purposes, was removed from the deceased's head. DeMayo stated that the muzzle of the weapon was in contact with the deceased's head when it was discharged, and that the weapon was held at "a shallow angle, pointing downward and backwards." According to DeMayo the wound would have caused the deceased to be paralyzed on the left side, and it was "highly improbable" that he could have moved after being wounded. The deceased's left knee was scraped, and DeMayo testified that the scrape could have been caused by dragging the knee across a hard surface. The alcohol content in the deceased's blood was .289, which DeMayo stated approached the point of alcoholic unconsciousness.

Blood was found, in addition to the living room, in the hall and the bathroom. Grayson County Chief Deputy Sheriff Shelby Bowling testified on the basis of the splashes or "fingers" formed by the blood as it hit the floor, that the trail of blood began in the easy chair, led from there out of the living room, down the hall to the bathroom, and back to the bed in the living room where the deceased was found.

Appellant contends that the evidence adduced does not support the conviction. Summarizing, the deceased died in appellant's house from a gunshot wound caused by a .22 caliber weapon. A .22 caliber rifle found in the house was shown to have been discharged at least twice at the appellant's house. Appellant made a suspicious exculpatory statement immediately upon the arrival of peace officers. The evidence showed that the statement was false, and the statement was inconsistent with a statement previously made by appellant to another officer over the telephone. The latter statement acknowledged that someone had been killed in appellant's house. Appellant evidenced ownership of a shirt which was stained with blood of the same type as the victim's blood. No one besides the Earnhart brothers and the deceased were at the house at the time of the offense. This evidence weighs more strongly against appellant than it does against his brother. See Earnhart v. State, supra. We find that the evidence, viewed in a light most favorable to the State, is sufficient to support the jury's finding of guilt. Compare Easley v. State, 564 S.W.2d 742 (Tex.Cr.App.1978); Indo v. State, 502 S.W.2d 166 (Tex.Cr.App.1973); Baker v. State, 447 S.W.2d 172 (Tex.Cr.App.1969).

Appellant contends that it was error to admit statements made by appellant and his brother after they had been arrested and before they had been informed of their constitutional rights. Specifically, appellant complains of Adams' testimony that when appellant picked up the green shirt he said, "That's got blood on it, I don't want to wear that . . . I'd like to get a clean shirt," and the appellant's affirmative response when Adams asked him if it was his shirt. Appellant objected to this testimony; the trial court sustained his objection, and instructed the jury to disregard the testimony. Appellant did not request a mistrial. A hearing outside the presence of the jury was held, and it was established that at the time of the statement appellant had not been advised of his rights in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Subsequently, Adams testified before the jury as follows:

"Q. And after he was placed under arrest, what did you then do?

"A. I accompanied him into the back room, or the southwest bedroom of the house. He wanted to get a shirt.

"Q. What did you observe him do?

"A. He picked up a shirt from a box in the southeast bedroom.

"Q. What did he do with this shirt?...