Gardner v. State

• Decision Date: 25 March 1987
• Docket Number: No. 69235,69235
• Citation: 730 S.W.2d 675
• Parties: Billy Conn GARDNER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 675

730 S.W.2d 675

Billy Conn GARDNER, Appellant, v. The STATE of Texas, Appellee.

No. 69235.

Court of Criminal Appeals of Texas En Banc.

March 25, 1987.

Bruce Anton, Dallas, for appellant.

Henry Wade, Dist. Atty. and Jeffrey B. Keck, Asst. Dist. Atty., Dallas, Robert Huttash, State's Atty., Austin, for State.

Before the court en banc.

OPINION

CLINTON, Judge.

Appellant was indicted and convicted of the offense of capital murder, V.T.C.A. Penal Code, § 19.03(a)(2). ¹ The jury made affirmative findings to the special issues in Art. 37.071(b)(1) and (2), V.A.C.C.P., and punishment was assessed and pronounced accordingly, at death. His cause is now before us on direct appeal pursuant to Art. 4.04, § 2, V.A.C.C.P.

Sufficiency of the Evidence

Initially Appellant challenges the sufficiency of the evidence to establish his guilt in this offense. Specifically he asserts that the evidence fails to corroborate the testimony of the accomplice witness, Melvin Sanders, as required by Art. 38.14, V.A.C.C.P. ² Appellant does not elaborate on this point.

Generally the evidence shows that on the afternoon of May 16, 1983, appellant entered a backroom of the cafeteria at Lake Highlands High School in Richardson and, in the course of robbing the manager, Thelma Catherine Row, as she counted the day's receipts, shot her. The bullet punctured Row's liver, and eleven days later she died.

Melvin Sanders testified that he was married to Paula Sanders, who in May of 1983 was an employee of the cafeteria at Lake Highlands High School. Through conversations with his wife Sanders learned that the cafeteria brought in receipts of as much as several thousand dollars a day. Feeling that he himself was too well known at the cafeteria from picking up his wife from work, Sanders approached appellant several times about the possibility of "robbing the place." Sanders testified:

"I told [appellant] that they counted the money in the back right by the back door and that all that would be involved is going in, more or less showing them that you had a gun and was serious, and that that would be basically it. I was sure they would just hand over the money."

Eventually it was agreed that appellant would actually commit the robbery and Sanders would drive the getaway car. They originally planned to commit the offense on the afternoon of Friday, May 13, but when they could not obtain dilaudid, a heroin substitute, which both men apparently felt it was necessary to inject in order to pluck up their courage, the scheme was postponed until the following Monday. On Monday Sanders drove appellant to the school. After some brief reconnoitering, Sanders parked in an alley close by, and appellant got out. In "eight or ten minutes" he returned and told Sanders, "She didn't want to up the money. I shot that old woman." They fled in the car.

The trial court instructed the jury that Sanders was an accomplice as a matter of law and that it could not convict appellant upon Sanders' testimony unless it found "other testimony in the case, outside of the evidence of the said Melvin Sanders tending to connect [appellant] with the offense committed[.]"

In determining the sufficiency of the evidence to corroborate the testimony of an accomplice, we eliminate from consideration the accomplice's testimony and examine the remaining evidence to ascertain whether it independently tends to connect the accused to the commission of the offense. Killough v. State, 718 S.W.2d 708 (Tex.Cr.App.1986). Putting aside entirely the testimony of the accomplice Sanders we find the following evidence.

On the day of the offense Paula Sanders, wife of the accomplice, was in training to become the assistant manager of the cafeteria. Pursuant to her training, she was sitting in Row's office learning how to take care of the day's receipts. She testified that as the money was counted it was placed in "some bags that zipped like bank bags." The double doors leading out to the loading dock continually slammed shut as the garbage was carried out. Sanders sat with her back to these doors.

From behind her Sanders suddenly saw a man's arm and a gloved hand holding a revolver. The man wore a "lightish-blue, grayish-blue work shirt." A grocery sack was dropped on the desk and the man demanded, "Put the money in, fill it up, hurry up," or words to that effect. He also ordered them not to look at him. Row began to fill the sack with money. Before she could finish the man reached for the sack, and apparently when Row did not immediately relinquish it, he shot her at close range. Then he fled.

Another cafeteria employee testified that she observed the man from behind during the course of the offense, and that he wore "faded-out blue jeans and a blue work shirt." She also saw a stocking pulled down over the back of his head.

Lester Mathews, a custodian at the high school, testified that at two o'clock on the afternoon of the offense he observed a man he identified as appellant standing beside the loading dock outside the double doors through which the killer would soon enter and then flee. Appellant was wearing "jeans, a light blue shirt, and white painter's cap," and was smoking a cigarette. Beneath the painter's cap Mathews could see a stocking.

Lavone Newsome testified that he had known appellant for about fifteen years, and that at the time of the offense appellant was living with a woman named Odessa Wingfield. Sometime after 3:00 p.m. on the afternoon of the offense Newsome went to Wingfield's apartment and found appellant and Melvin Sanders on the floor of the bedroom, counting money. The money was in the form of "bills and change." Also present were some bags used for carrying money, upon which Newsome could see the word "Richardson". Appellant and Sanders "were pretty excited."

Approximately two months after the offense appellant arranged through an intermediary to sell two pistols, one of which was a Charter Arms .357 revolver. The buyer immediately contacted police. The .357 revolver was shown positively to be the murder weapon.

The corroborative evidence need not directly link the accused to the offense or be sufficient in itself to establish guilt. Killough v. State, supra. "It is sufficient if the combined cumulative weight of the incriminating evidence furnished by the non-accomplice witnesses tends to connect the accused with the commission of the offense. Granger v. State, 683 S.W.2d 387 (Tex.Cr.App.1984)." Romero v. State, 716 S.W.2d 519, 523 (Tex.Cr.App.1986). Here, appellant was seen outside the cafeteria moments before the offense was committed wearing clothing similar to that of the robber, and with a stocking tucked under his cap. This evidence does directly link him to the commission of the offense. The money bags and his participation in the counting of "bills and change" later on the afternoon of the offense tend indirectly to connect him, as does, albeit somewhat more tenuously, his attempted sale of the murder weapon two months later. Indeed, we cannot say that a rational jury could not have convicted appellant on the basis of this circumstantial evidence, even absent Sanders' testimony. ³ We hold that the accomplice witness was sufficiently corroborated in this cause, and thus the evidence was sufficient to establish appellant's guilt.

Appellant also argues, again with little embellishment, that the evidence at the punishment stage of trial was insufficient to sustain the jury's affirmative finding on special issue (b)(2) under Art. 37.071, supra, which requires a determination "whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society[.]"

The State introduced three penitentiary packets reflecting that from early 1961 until the time of trial appellant had been convicted of eleven felony offenses, including seven convictions for burglary and one for aggravated assault of a police officer. Not surprisingly, five Dallas police officers testified that they had known for fifteen to twenty years of appellant's reputation for being "a peaceful (sic) and law-abiding citizen," and that it was bad. Implicit throughout the testimony at both stages of trial was the fact that appellant had been addicted to narcotics his entire adult life.

Additional evidence was presented that two months after the offense in this cause was committed appellant entered a convenience store in Dallas and robbed the clerk at gunpoint, threatening to kill him and exclaiming, "Hurry up. I need a fix bad."

Finally evidence was introduced that in the early morning hours of October 2, 1966, appellant and an accomplice commandeered a grocery store with shotguns and terrorized a number of the stockers for several hours until the store manager arrived to open the safe. During this ordeal appellant asked one of the stockers if any female employees would be arriving to work before the manager--the implication being that appellant wished to indulge in some form of sexual assault to pass the time. In the course of relieving himself against a stack of cold drink cartons, appellant urinated "all over the side of [the] neck and the back of [the] head" of this same stocker, a seventeen year old boy at the time.

Given appellant's long history of drug-induced recidivism and his proven propensity for the use of deadly weapons in the commission of offenses against the person in support of his apparently unshakeable habit, the jury was justified in concluding appellant would in all probability constitute a continuing threat to society. Although defensive testimony was adduced in an effort to mitigate the impact of the foregoing evidence, ⁴ viewing all of the evidence in the light most favorable to the verdict, Fierro v. State, 706 S.W.2d 310 (Tex.Cr.App.1986), we conclude it was sufficient to sustain the affirmative finding under Art. 37.071(b)(2).

Voir Dire

In appellant's fifth ground of error he asserts that the...