Erwin v. State, 69465

• Decision Date: 01 April 1987
• Docket Number: No. 69465,69465
• Citation: 729 S.W.2d 709
• Parties: Bonnie Burnette ERWIN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 709

729 S.W.2d 709

Bonnie Burnette ERWIN, Appellant, v. The STATE of Texas, Appellee.

No. 69465.

Court of Criminal Appeals of Texas En Banc.

April 1, 1987.

Louis B. Gohmert, Jr., Tyler, for appellant.

Jack Skeen, Jr., Dist. Atty., and Ann M. Monaco, Asst. Dist. Atty., Tyler, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

MILLER, Judge.

Appellant was convicted of capital murder. V.T.C.A.Penal Code, § 19.03. The death penalty was imposed after the jury answered affirmatively the special issues submitted under Art. 37.071, V.A.C.C.P. Appellant brings sixteen points of error. We will reverse.

In his second and third points of error, appellant contends that the trial court erred by failing to grant a directed verdict because there was insufficient evidence to corroborate accomplice witness Leonard Hawkins' testimony. In order to address these grounds, a recitation of the relevant facts is necessary.

Hawkins testified that two days before Thanksgiving, 1982, Patrick Brooks, the deceased, broke into appellant's brother's home and stole approximately $3,500.00 in cash and some "pills." He took the stolen property to Leonard Hawkins' house and gave part of it to Stevie McGee. Later that evening, Hawkins went with appellant and the deceased to appellant's house where appellant struck the deceased a number of times with his pistol.

Appellant then hog-tied the deceased with a telephone cord and tape. Hawkins got into the car, backed it into the driveway, and under appellant's direction, helped load the deceased into the trunk. They pulled the car into the next door garage and left it there for a number of hours.

While the car was in the garage, appellant and Hawkins went and got McGee, who had supposedly been with the deceased when the money and drugs were stolen. McGee stated that he had received part of the stolen property from the deceased. The deceased was brought back from the trunk, placed on the kitchen floor, and appellant doused him with gasoline. Appellant then dropped lighted matches on top of the deceased. The matches did not ignite the gasoline since the deceased's clothes were wet at the time. They left the deceased in the kitchen and went into another room to watch television. Later, Don Erwin, appellant's brother, arrived at the house. On several occasions, appellant went back to the kitchen to kick the deceased and demand that the stolen items be returned.

Ultimately, the deceased was untied and his injuries were cleaned and bandaged. The money and the pills were recovered. Don Erwin, the deceased, and a few other people drove to Tyler. Thirty minutes later, Hawkins and appellant drove back to Tyler and ate. Hawkins went alone to Don Erwin's house where the deceased was lying on the bed. There were bars on the windows and a dead bolt lock on the door. Don Erwin left with Hawkins and the deceased.

They drove to Don Erwin's mother's home which was unoccupied. Hawkins and the deceased, who was unrestrained, stayed there for two and one-half hours until 4:00 or 5:00 a.m. The location was two blocks from the deceased's house. Finally, appellant drove up and the others followed him to his house in Tyler.

There, appellant got into the back seat of the two-door Regal behind the deceased and Hawkins drove them to some land appellant had leased to grow watermelons. Appellant got out of the car and went into a mobile home located on the lot. He returned shortly thereafter with a burlap rope and got in the seat behind the deceased. Appellant then placed the rope around the deceased's neck and choked him for ten to fifteen minutes. Afterward, appellant dragged the deceased between two mounds of dirt. The deceased was still breathing at the time. Appellant then got a "sharpshooter" shovel and beat the deceased in the head eight or ten times.

With these facts in mind, we may address appellant's contentions. Evidence which corroborates the testimony of accomplice witness Hawkins need not directly link the accused to the crime or be sufficient in itself to establish guilt. Killough v. State, 718 S.W.2d 708 (Tex.Cr.App.1986) at 710, citing Thompson v. State, 691 S.W.2d 627, 631 (Tex.Cr.App.1984) and Brown v. State, 672 S.W.2d 487 (Tex.Cr.App.1984). In determining the sufficiency of corroboration evidence, we must eliminate from consideration the testimony of accomplice witness Hawkins and then examine the testimony of other witnesses to ascertain whether there is evidence which tends to connect the defendant with commission of the offense. Killough, supra, citing Cruz v. State, 690 S.W.2d 246, 250 (Tex.Cr.App.1985).

In the case before us, the State introduced the testimony of Frankie Mae Reese, who testified regarding some of the activities which took place in Dallas. She stated that she was at appellant's house around Thanksgiving of 1982. Appellant was upset with the deceased for stealing drugs and money from appellant. Appellant asked her to go into another room, and she complied. She heard talking and fighting in the next room. She heard appellant tell someone, who she assumed was the deceased, "Don't move." Earlier that night, she had heard Hawkins say that appellant was "going to whoop" the deceased. Reese also stated that appellant told another woman in the house to go in the bedroom and clean up what Reese later found out was the deceased's blood.

Later that night, Reese was sleeping and was awakened by appellant, who told her to go into the kitchen. When she got there she saw the deceased, lying on the floor. His head and mouth were bleeding and his hands and feet were tied behind his back. Appellant directed Reese's attention to a pistol and told her to shoot the deceased if he tried to get away. Reese stated that she did not assist the deceased for fear of what appellant would do to her. She added that it would not have helped to untie him because they were both locked inside the house.

Sometime later, appellant returned, gave the other woman in the house some money and told her to go buy some gasoline. When she returned with the gasoline, appellant went into the kitchen. Later, Hawkins and appellant put the deceased in a car trunk. They later brought the deceased back into the house. The deceased was untied, and limped when he walked. Appellant pointed a pistol at the deceased and they left.

Stevie Lee McGee was the next witness called by the State. He stated that he sold drugs for appellant's brother. Near Thanksgiving of 1982, McGee went to a house that belonged to appellant's brother. McGee testified that he was with the deceased when the deceased stole money and drugs belonging to appellant. Sometime later, McGee went to appellant's house. McGee was asked about the burglary. He saw the deceased who was hog-tied. McGee contacted a friend who brought the stolen property to appellant's house. Appellant threatened to kill the deceased. McGee saw appellant pour the gasoline on the deceased and drop lighted matches on him. McGee never saw the deceased again.

The next witness called by the State was Leonard Johnson. He had been hired by appellant to put in a swimming pool in Tyler. He stated that appellant told him to dig a hole in the watermelon patch, for sewage disposal, and Johnson complied. After the hole was dug, Johnson returned the next day, and found that it had been filled in. The deceased's body was later found in the hole.

Next, the State called Joe Dillman, a detective for the Tyler Police Department. He testified that the deceased's body as well as a wallet and syringe were found on the tract of land leased by appellant.

We find that in the instant case there is sufficient evidence tending to connect appellant to the kidnapping and murder. Appellant tied the deceased up, beat him, poured gasoline on him, and threatened to kill him. After appellant and the deceased left for Tyler, no one ever saw the deceased alive again. His body was found on appellant's land, buried in a hole that was dug out on appellant's orders one day before it was filled (with the deceased's body). Although this evidence would not be sufficient to find appellant guilty of the offense, it is sufficient to corroborate accomplice Hawkins' testimony. See Brown v. State, 672 S.W.2d 487 (Tex.Cr.App.1984), and Mitchell v. State, 650 S.W.2d 801 (Tex.Cr.App.1983), cert. denied, 465 U.S. 1074, 104 S.Ct. 1431, 79 L.Ed.2d 755 (1984). Cf. Cruz, supra. Appellant's second and third points of error are overruled.

In his fourth point of error, appellant contends that the trial court erred in refusing to issue a writ of attachment for Cathy Callier, a witness who had been subpoenaed by the State. The State's subpoena had been executed and return of service made on February 14, 1985. On March 20, 1985, during the trial of this case, appellant filed a subpoena for Callier. This subpoena was not served. On the same day that appellant filed his subpoena, counsel for appellant telephoned Callier and told her she must appear in court the next day because she had been subpoenaed. When Callier did not appear the next day appellant informed the court that the State had subpoenaed the witness and requested a writ of attachment. The trial court stated, erroneously, that there was no return of service on Callier and that the court would not delay the trial any further. ¹ (The record shows, however, that there was a proper return of service on Callier filed by the District Clerk over one month earlier.) The trial judge then denied the request for a writ of attachment. The defense rested.

Appellant then made a bill of exceptions, summarizing for the court what Callier would have testified to if her presence had been compelled. Callier was expected to testify that Leonard Hawkins, called earlier as a witness for the State, admitted to killing the victim himself. The trial court added to the bill of exceptions that there was no reasonable expectation of locating and procuring the...