Foster v. State

• Decision Date: 28 June 1989
• Docket Number: No. 69575,69575
• Citation: 779 S.W.2d 845
• Parties: Richard Donald FOSTER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 845

779 S.W.2d 845

Richard Donald FOSTER, Appellant, v. The STATE of Texas, Appellee.

No. 69575.

Court of Criminal Appeals of Texas,

En Banc.

June 28, 1989.

Rehearing Denied Sept. 20, 1989.

Michael Logan Ware, Bill Lane, Fort Worth, for appellant.

Amy Ayers Adams, Dist. Atty., and Donald Schnebly and Christopher Curtis, Asst. Dist. Attys., Weatherford, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

WHITE, Judge.

Appellant was convicted of capital murder. See V.T.C.A., Penal Code Sec. 19.03(a)(2). After the jury made an affirmative finding on both of the two special issues submitted under Art. 37.071(b)(1) and (2), V.A.C.C.P., the trial court imposed the penalty of death. This case is before us on direct appeal.

Appellant presents us with twenty points of error. A review of the facts is necessary.

Deputy H.L. Rice of the Tarrant County Sheriff's Office began his shift on April 4, 1984 at 11:00 p.m. Rice was assigned to patrol the northwest corner of Tarrant County until his shift ended at 7:00 a.m. on April 5, 1984. At approximately 4:00 a.m., Rice was east of Azle on the Jacksboro Highway, also known as State Highway 199. He observed a "white over red" Chevrolet two-door: with Texas license plate GPW-857 parked on the southern service road, east of the Hob Nob Bar. There were two people in the car, the driver and a female. Rice identified the driver as the appellant, Richard D. Foster, by Foster's Texas driver's license. Rice did not identify the female. Evidence admitted later during the guilt phase of the trial indicated this female was Vicki Elaine Easterwood. Rice spoke with appellant for about three minutes, and then continued his patrol. At trial, Rice testified that appellant's car was parked approximately fifteen miles from Springtown.

At 7:15 a.m. on April 5, Gary Cox woke up, showered and got a cup of coffee. He left his wife and nine day old daughter at home and went to work at his combination feed store, convenience store and gas station. The store was a mile from Cox's home and two miles west of Springtown. At trial, his widow testified that Gary Cox took $300.00 in cash with him to open his store.

At 7:40 or 7:45 a.m. on April 5, Linda Morgan arrived at Gary Cox's store to buy some milk. As she was leaving the parking lot, she passed a General Motors automobile with a "cream colored" vinyl top. The driver of the automobile wore a toboggan type hat and had a beard. At trial, Morgan identified appellant as the driver.

Zack Leatherwood had leased the feed store to Gary Cox on April 1, 1984. The store was located on the same property as Leatherwood's home. On the morning of April 5, Leatherwood walked down to the feed store. As he got close to the rear of the store, Leatherwood heard a gunshot and saw Gary Cox fall "right back out of that store with his neck about half blowed off." The next thing Leatherwood remembered was hearing Ken Davis yell to get out of there. Leatherwood then ran back to his house to get his shotgun. When he returned to the store, Leatherwood checked Cox's vital signs and determined that he was dead. Leatherwood then entered the feed store. He saw the cash drawer was open, change scattered on the counter, and a $5 bill laying on the counter. The cash drawer was empty.

Kenneth Davis had driven to Gary Cox's feed store at around 7:30 a.m. on April 5. When he arrived at the store and got out of his truck, he saw a "real clean" older model General Motors car parked at the feed store. Davis described the car as "persimmon red with a white half-vinyl type." Just as Davis entered the store, he heard a "real loud explosion". In his own words, Davis

was just startled and I yelled, 'Hey,' as loud as I could, and just stood there for a split second. And suddenly across the store, a man with a shotgun pointed at me and says, 'Man, you better get the hell out of here.' And I said, 'I'm leaving,' and I turned around and ran.

When Davis got out of the store, he ran towards Zack Leatherwood's house. Seeing Leatherwood, Davis yelled to warn him of what happened at the store. When Davis got to the Leatherwood's fence gate, he turned to look back at the store. He testified, "I saw this persimmon red car with a white vinyl top leaving the store area going west on Highway 199." At trial he identified State's Exhibit # 13 as a photo of that car. In that photo, the car bears Texas license plate # GPW-857.

At trial Davis physically described the man he saw with the shotgun. He was a white male, approximately 5' 10"', who had a beard. He wore a lumberjack type hat. He held a short-barreled shotgun. Davis was unable to describe the facial characteristics of the man because "he had a shotgun on me" and because part of the man's face was covered.

Donald Teague, the chief deputy of the Parker County Sheriff's Office, responded to a call for investigation of the shooting on April 5, 1984. Teague continued his investigation through April 28, including interviews with Leatherwood and Davis. On April 28 and 29, Teague interviewed Vicki Elaine Easterwood. This interview began at the Graham Police Department and continued at the Young County Jail. Subsequently, at 12:22 p.m. on April 29, Teague met with a Justice of the Peace in Weatherford, Texas and obtained a capital murder arrest warrant for appellant.

Teague searched unsuccessfully for appellant from April 29 until May 10. On the 29th of April he interviewed Kathy Nievar, appellant's former live-in girlfriend. She was unable to help Teague locate appellant. On May 10, Teague went to the Citizen's National Bank on Highway 190 in Breckenridge. He was present when appellant was arrested by members of the Federal Bureau of Investigation. At that time, appellant identified himself as "Stoney Armadillo."

Tommy Martin, an officer with the Graham Police Department, saw appellant in Graham on March 30, 1984, six days before the instant offense. At that time appellant was with Vicki Easterwood in the persimmon red car with a white vinyl top which Ken Davis testified that he saw at the feed store. On the day the capital murder arrest warrant was issued, Martin was looking for the persimmon red car with the white vinyl top in Graham. He stopped the car and discovered it was being driven by Kathy Nievar.

Nievar first met appellant in August of 1982. They soon began living together in Irving, Texas. They broke up in December of 1983. She did not see appellant again until late April of 1984. The last time she saw appellant was on the evening of April 28 at 9:00 p.m. Nievar noticed that appellant was tired and nervous. Appellant had a pistol at the time. Appellant borrowed Nievar's car (a 1978 Buick) and left his own for her to drive. Officer Martin stopped her in it on the 29th, and she drove it to the police station to be left there. Later that night, appellant called her and told her that her Buick would be returned that night. He then hung up. Nievar did not hear from appellant again.

On April 29, 1984, Deputy James Moody of the Parker County Sheriff's Office traveled with Sheriff Billy Cain to the Young County Sheriff's Office in Graham to meet with Vicki Easterwood, and assist in the investigation of the instant case. Earlier that day, Vicki Easterwood discussed with the authorities what she knew of appellant's actions on April 5th after the commission of the instant offense. Vicki Easterwood informed the authorities that appellant got rid of the shotgun after leaving the scene. Sheriff Cain, Deputy Moody, and Easterwood left Graham and drove to Wise County. Their destination was a stock tank which lay south of Farm Road 1810, one and a half miles east of the Wise/Jack County line where they hoped to recover evidence of the instant offense. When they arrived at this location, Vicki Easterwood had a discussion with Moody and Sheriff Cain, and she then made a throwing gesture toward the stock tank. Later that day, Vicki Easterwood was returned to Graham by Moody.

Moody returned to the stock tank in Wise County on May 30, 1984 with Mark Wade, a diver from Weatherford. While searching the tank, Wade found a satchel which contained items of clothing, a .12 gauge shotgun shell and a sawed-off shotgun. At trial these items were admitted into evidence. At trial Dr. Nizam Peerwani testified that the sawed-off shotgun recovered from the stock tank was capable of inflicting the fatal wound to Gary Cox.

Jack Bellinof was working for Gooch Meat Packers on May 10, 1984. He was driving his regular route as a salesman from Olney to Throckmorton on Highway 70. At approximately 9:00 a.m. Bellinof stopped to pick up a rider, who Bellinof later identified as appellant. They made small talk until appellant indicated where he wanted Bellinof to let him out. After he stopped the car, appellant told Bellinof, "This is where you get off."

Appellant then attacked Bellinof with a revolver. The two of them struggled over the gun at first. Appellant then drew a second pistol and succeeded in shooting Bellinof four times: in the right shoulder, in the jaw, in the left hand and in the back of the head. Bellinof managed to open his door and get out of the car. Appellant got in the car and drove off, leaving Bellinof in the road.

On May 10, 1984, Scott Harris was working at his job as a senior vice-president of the Citizen's National Bank in Breckenridge. At 11:45 a.m., the appellant entered the bank carrying two pistols and yelled he was taking control of the bank for his own protection. Appellant threatened to kill anyone who failed to comply with his orders. Appellant took seven hostages: four men, including Harris, and three women. Appellant indicated to his hostages that both Young and Parker County authorities were pursuing him for a murder in Parker County. At trial, on cross-examination, Harris recalled that appellant told him the Parker County authorities were after him for what happened in Parker County. Harris...