Evans v. State

• Decision Date: 26 February 1975
• Docket Number: Nos. 49464,49465,s. 49464
• Citation: 519 S.W.2d 868
• Parties: Michael W. EVANS, Appellant, v. The STATE of Texas, Appellee. Michael W. MEYER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 868

519 S.W.2d 868

Michael W. EVANS, Appellant, v. The STATE of Texas, Appellee.

Michael W. MEYER, Appellant, v. The STATE of Texas, Appellee.

Nos. 49464, 49465.

Court of Criminal Appeals of Texas.

Feb. 26, 1975.

Rehearing Denied April 2, 1975.

Charles D. Butts, San Antonio, for Evans.

Harry A. Nass, Jr., court appointed, San Antonio, for Meyer.

Ted Butler, Dist. Atty., Charles T. Conaway, John L. Quinlan, III, Douglas C. Young and David K. Chapman, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

GREEN, Commissioner.

In a joint trial before a jury on separate indictments, appellants Michael W. Evans and Michael W. Meyer were found guilty of murder with malice. Punishment of each appellant was assessed at 600 years in the Texas Department of Corrections.

Appellants were represented at the trial by different counsel, and separate appellants' briefs have been filed.

In appellant Evans' sixth ground of error, and in appellant Meyer's fourth ground, complaint is made that the court committed reversible error in excluding evidence beneficial to each which would tend to establish bias and motive on the part of State's witness Wayne Knock.

In order to properly consider this contention, a discussion of the evidence is necessary.

Shortly after 2:00 A.M. on January 7, 1972, deceased, Thomas C. Woodlee, was found dead in front of a Stop-N-Go store in San Antonio, of which he was night manager. He had been shot seven times with two different caliber guns, a .22 and a .32.

Clayton Tarvin testified that he and his wife had stopped at the Stop-N-Go about 2:00 o'clock that morning and he had gone in. No one was in the store proper; however, he heard noises coming from the direction of the storeroom. Presently, a man whom he identified as appellant Meyer appeared behind the counter and stated that the noise was caused by his boss, who had come in drunk. Tarvin asked for a package of cigarettes, and while the man he identified as Meyer was waiting on him he saw Woodlee, with whom he was acquainted, come running from the storeroom. Woodlee's face, forehead and shoulders were covered with blood. At the same time Tarvin saw another man, whom he described as 'short, stocky and dark-headed,' and wearing black leather jacket, come from the storeroom. He had only a momentary glance at this man, and could not identify him in court, although he stated that he appeared to be the same man as appellant Evans. Tarvin then left the store in his van and went to call for help.

Tarvin's wife, who remained in the car while her husband went in the store, also identified Meyer as the man who waited upon Tarvin. She did not identify the other man.

Between five and ten minutes later, after notifying an officer of a possible robbery at the Stop-N-Go, Tarvin returned. At 2:11 A.M., Officer Burks, responding to a radio message, arrived and found Woodlee lying dead on the sidewalk in front of the icehouse. Other officers came a few minutes later. Two .22 caliber shell casings were found lying near the body. A number of spent .32 caliber shell casings and one spent slug and a military woolen glove liner and a glove with rabbit fur lining were found in the store. Latent prints were taken from the front door of the store, one of which proved to be Meyer's palm print. ¹

Officer Brown had been in the store a short time before Woodlee was assaulted, and had talked with Woodlee. After Woodlee told him about an 'incident' that had occurred before Brown's arrival, the officer went to look for a 'white over brown' 1965 Pontiac which he had seen leaving the icehouse just before he arrived. He had seen two white males, one dark haired, the other light haired, in the car. Brown did not find the car.

Officers had been searching for the white and brown 1965 Pontiac seen leaving the Stop-N-Go by Officer Brown. On January 17th, Officer Thomas saw appellant Evans park such a car on a parking lot. Thomas testified that Evans and his companion matched the description of the two wanted in connection with Woodlee's murder. ² According to Thomas, Evans agreed to go to the police station, and while there consented to a search of his car. The officers found a black leather jacket, a pair of military type gloves, and a box of .22 caliber ammunition, three-quarters full. In the trunk, a woolen 'military' type of glove liner and a black leather fur lined glove were located.

Clayton Tarvin, the witness who had gone to the store at 2:00 that morning, testified that the black leather jacket appeared to be the same as the one worn by the man who came from the storage room behind the deceased.

Proof was given from expert witnesses that the fibers inside the woolen liner found in the car were identical with those of the liner found at the icehouse and that blood on the gloves from the car was of the same relatively rare type--type B--as deceased's blood.

State's witness Wayne Knock testified that he was acquainted with both appellants, and that Meyer and Evans knew each other and were friends. He said Meyer had told him that he and Evans were going to rent an apartment together and that he had seen them together on prior occasions in Evans' brown and white Pontiac. His was the only evidence that appellants were acquainted with each other at the time of the killing. Knock testified that on January 8th, the day after Woodlee was killed, he went with appellant Meyer to test-fire a .22 caliber Luger-type pistol belonging to Meyer. They went to a place in 'the country,' where, at Meyer's request, Knock fired the pistol eight or nine times into a brush pile, ejecting the shells onto the ground. Knock stated that Meyer, on this trip, asked if he had heard of the shooting at the Stop-N-Go. Meyer also told Knock that he had earlier shot his dog at the same location. The remains of the dead dog were still there.

Knock stated further that in November, 1971, he gave Meyer a set of military gloves, including the woolen inserts and the outer shells. He testified that they were identical to the gloves introduced in evidence. Knock testified that on January 19th he guided two detectives to the place where he had fired the pistol and was present when the officers found eight empty shells and a spent slug.

Officer Castillon testified that he and another detective had gone with Knock to the location that he had directed them, where he had obtained seven .22 caliber shell casings along with another .22 casing and slug found under the dead dog.

Fred Rymers of the Texas Department of Public Safety, after qualifying as an expert on the subject, testified that he had determined after scientific examination that the two .22 shell casings found near Woodlee's body were fired from the same gun that fired the seven shells found at the brush pile by Knock and Officer Castillon. ³ The shell and slug found under the dog were fired from a different gun.

Evidence in the record reflects that Knock also fit Tarvin's description of the man who followed deceased from the storeroom, and that the jacket found in Evans' car fit Knock as well as Evans.

Neither appellant testified at the trial.

It was the State's contention at the trial and on appeal that appellants, in an attempted robbery, were beating Woodlee to force him to open a safe when Tarvin entered the store and that they shot him after Tarvin left to call for help. The State argued that appellants were 'casing' the store in the 1965 Pontiac when that car was seen by Officer Brown.

The court, in submitting the case to the jury, charged on the law of principals and circumstantial evidence.

Each appellant complains that since Knock was a material State's witness, giving damaging testimony against each, the court committed prejudicial error in refusing to permit them to prove that Knock was, at the time of the trial, under felony indictment for sodomy in the same court, to show interest, bias and motive of the witness for testifying as he did.

The record reflects that appellants offered to prove before the jury, and did show on bill of exception out of the presence of the jury, that in 1972 Knock was indicted for sodomy in the same court where appellants' indictments were pending. The clerk of the court testified from the records that on each occasion that appellants' cases had been set for trial Knock's case was set to follow, and that on each instance that the cases against appellants were reset the same procedure was true concerning Knock's case. The instant trial was begun on April 4, 1973, at which time Knock's trial was set for September 4, 1973.

The State's objection, that only final convictions are admissible for impeachment of a witness, was sustained. See Article 38.29, Vernon's Ann. C.C.P. However, the offer of the testimony by appellants was based on their contention that the proof of the pending indictment was offered not for general impeachment, but to show the bias, prejudice, interest and motive of the witness in testifying as he did.

The Court has frequently stated that great latitude should be allowed the accused in showing any fact which would tend to establish ill feeling, bias, motive and animus upon the part of any witness testifying against him. See Seal v. State, 496 S.W.2d 621; Hooper v. State, 494...