Ferguson v. State

• Decision Date: 20 September 1978
• Docket Number: No. 58706,58706
• Citation: 573 S.W.2d 516
• Parties: Bernard FERGUSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 516

573 S.W.2d 516

Bernard FERGUSON, Appellant, v. The STATE of Texas, Appellee.

No. 58706.

Court of Criminal Appeals of Texas, En Banc.

Sept. 20, 1978 Appellant's Motion for Rehearing En Banc Denied Oct. 18, 1978.

Troy C. Hurley, Killeen, Gerald M. Brown, Temple, for appellant.

Arthur C. Eads, Dist. Atty., James T. Russell and Ralph Petty, Jr., Asst. Dist. Attys., Belton, for the State.

Before the court en banc.

OPINION

DALLY, Judge.

This is an appeal from a conviction for capital murder; the punishment is death.

Appellant contends that: (1) the court erred in denying his request for a postponement of the jury selection when a venire member failed to timely appear; (2) a sample of appellant's blood was obtained by an unlawful search and seizure and should not have been admitted in evidence; (3) other items were obtained by an unlawful search and seizure and should not have been admitted in evidence; (4) the court erred in refusing to submit to the jury the appellant's requested charge on accomplice witnesses; (5) the court erred in refusing to submit to the jury the appellant's requested charge on circumstantial evidence; and (6) the court erred in failing to declare a mistrial after the prosecutor made a sidebar remark.

The offense occurred at approximately 11:45 p. m. on January 25, 1977. The deceased, Randy Tingle, was an attendant at a convenience store in Killeen. He died from loss of blood caused by four stab wounds in the back. It was established by expert medical testimony that the size of the wounds was compatible with a knife having been twisted after it was thrust into the body. Approximately $28 was taken from the cash register of the store.

Appellant was arrested at approximately 3:30 a. m. on January 26 as he and one Jody Persons arrived in a car at a residence on Avenue J in Killeen. Blood was found on the jacket and pants which appellant was wearing as well as the cuff of the jacket, which had been torn off and stuffed into appellant's boot. There also was blood on a knife which was found at the residence, on gloves which appellant had been wearing, and on currency found in appellant's billfold. The blood on the knife, jacket and cuff was shown to be of the same type as that of the deceased; tests of the blood on appellant's pants were inconclusive, but it was shown to be of a type similar to that of the deceased. A .357 magnum pistol was found in the car which appellant had been driving.

Jody Persons and Bob McGuinn were accomplice witnesses as a matter of law, and the jury was so charged. McGuinn, who owned the automobile which appellant had been driving, testified as follows concerning the events surrounding the commission of the offense: On the morning of January 25, 1977, he saw appellant at a bowling alley in Killeen. Appellant had a .357 magnum in a brown paper bag and told McGuinn that he planned to "rob a store." Later that day McGuinn was present at a duplex on Avenue J in Killeen with appellant, Persons, Louis Ferguson and Frank Robbins; appellant had the same gun and also had a knife which McGuinn testified was the knife recovered from the apartment the next day. Appellant told the others present of his plan for "robbing a store" that night and asked them to accompany him. Robbins and Louis Ferguson declined to participate, but Persons and McGuinn agreed to go with appellant. During this discussion appellant cocked the pistol and pointed it at McGuinn's head; appellant told the others he would kill them all if they turned on him. Later that evening, appellant left with McGuinn and Persons in McGuinn's car, a 1973 silver Dodge Charger with black stripes. They drove around Killeen for some time looking for a store at which to commit a robbery and finally went to the store at which the deceased worked. McGuinn parked at the fuel pump outside the store and put $5 worth of fuel in the car while appellant and Persons entered the store. McGuinn then parked the car in front of the store. Shortly thereafter, appellant and Persons came out of the store; appellant was carrying a package which contained money, and Persons was carrying a carton of cigarettes. After appellant and Persons got into the car with McGuinn and the three of them departed, appellant took a pair of gloves out of the glove compartment of the car and put one on. McGuinn noticed that appellant had blood on his arm and hand and was carrying a knife. Before they left, McGuinn looked through the store window and saw the deceased using the telephone; something was covering the deceased's face. Persons, McGuinn and appellant returned to the duplex on Avenue J; on the way there, McGuinn noticed that appellant had "more or less a half-smile." Upon arriving at the apartment, appellant took some money from a cigarette carton and gave $2 each to McGuinn, Robbins, and Louis Ferguson. Some time later, McGuinn gave Persons permission to drive his car, and appellant and Persons again left the apartment. McGuinn, Robbins, and Louis Ferguson then went and bought some food, ate it, and went to sleep. They were awakened at approximately 3:30 in the morning, when appellant and Persons returned and were arrested.

Persons testified to substantially the same facts as did McGuinn concerning the conversation during which appellant outlined his plan for committing a robbery and threatened to shoot his companions if they did not cooperate with him. Persons testified that appellant was carrying the pistol and knife when they entered the store and that appellant handed him the pistol after they were in the store. After Persons had placed several items on the store counter as if he wished to purchase them, appellant told Persons to point the gun at the store attendant and tell him he was being held up and to lie down on the floor. Appellant and Persons then went to the counter together, and Persons pointed his gun at the deceased and told him he was being held up and to lie on the floor. After the deceased did so, appellant opened the cash register and removed some money. The appellant then squatted over the deceased, pulled out the knife and raised it over his head, and began stabbing the deceased in the back with all his force. Just before appellant stabbed the deceased the last time, the deceased groaned and said, "that's enough." Persons looked at the deceased and saw that blood was gushing from his mouth onto the floor. Persons and appellant then left, and on the way out of the store appellant took a package of cookies. After appellant, McGuinn and Persons returned to the apartment, appellant and Persons left again in McGuinn's car and went to a house on Patton Street where the girl whom appellant had been dating lived and where appellant had been staying. As they were sitting in the car which was parked on the street, they saw a police patrol vehicle approach. Appellant, who was in the driver's seat, started the car, drove approximately two blocks without any lights, and turned around. Proceeding in the opposite direction they again saw the patrol vehicle approaching them, at which time appellant turned on the car lights. The police vehicle then followed them to the apartment, where subsequently they were arrested.

Robbins, in whose name the apartment was leased, testified that on the day of the offense appellant asked him if he were interested in "robbing some stores" and showed Robbins the pistol. He testified that he was present with appellant, McGuinn, Persons and Louis Ferguson when appellant spoke to them about "robbing a store" and threatened to kill them if they went to the police. He said he knew that appellant, McGuinn and Persons planned to commit a robbery when they left. He attempted to siphon fuel out of his van to put in McGuinn's car. When they returned, he saw blood on appellant's hands and on a knife he was carrying. Appellant gave $2 each to him, McGuinn and Louis Ferguson, and he assumed the money had been taken in a robbery. After appellant and Persons left again, the other three bought food with the money appellant had given them and then went to sleep.

Louis Ferguson, appellant's older brother, testified to substantially the same facts as did Robbins. He also testified that he loaned the knife which was used to kill the deceased to Jody Persons. When appellant and Persons returned at 3:30 a. m. the next day, appellant opened the door of the apartment and threw in the knife, hitting his brother in the mouth.

Lisa Pruitt and Chip Turner, acquaintances of appellant, both testified that they spoke with appellant on the day of the robbery, and he told them he was planning to "rob several stores." He also asked Turner to accompany him and told him how to kill with a knife by twisting it after stabbing.

Sherry Marion testified that she was speaking with the deceased on the telephone shortly before midnight on the night of the offense. Suddenly the deceased stopped talking; shortly thereafter, Marion heard the deceased scream and the sound of cracking metal, and then she heard the cash register open. She heard the deceased scream again, and after a period of silence the deceased came to the phone. He was "crying and choking and coughing real bad" and pleaded with Marion to call the police. She then hung up to do so.

Appellant's first contention concerns venireman Forrest Andrews. Andrews was assigned number 76 on the list of prospective jurors. When he failed to appear for voir dire examination at the proper time, the court instructed the district clerk to attempt to locate him, but she was unable to do so. The clerk then testified that Andrews did not personally contact her regarding his absence, but that she had called his place of employment and had been advised that he had left the state to attend his father-in-law's funeral and would be gone for several days. Appellant objected to continuing with voir dire until Andrews was present; the court overruled the objection and called the next venire...