Gentry v. State

• Decision Date: 23 November 1988
• Docket Number: No. 69869,69869
• Citation: 770 S.W.2d 780
• Parties: Kenneth GENTRY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 780

770 S.W.2d 780

Kenneth GENTRY, Appellant, v. The STATE of Texas, Appellee.

No. 69869.

Court of Criminal Appeals of Texas,

En Banc.

Nov. 23, 1988.

Rehearing Denied Dec. 14, 1988.

Certiorari Denied June 5, 1989.

See 109 S.CT 2458.

Thomas W. Whitlock, on appeal only, and Richard S. Podgorski, Denton, for appellant.

Jerry Cobb, Dist. Atty. and Gwinda Burns, Asst. Dist. Atty., Denton, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

DUNCAN, Judge.

The appellant was convicted of capital murder under V.T.C.A.Penal Code, § 19.03(a)(2). The death penalty was imposed after the jury affirmatively answered the special issues submitted under Article 37.071(e), V.A.C.C.P. The appellant urges seven points of error. We affirm.

The appellant, Kenneth Gentry, and the deceased, Jimmy Don Ham, became acquainted when the appellant gave Ham, who was hitchhiking, a ride into the Denton area. At the time, the appellant was wanted by the authorities in connection with several prior offenses, including an escape from a Georgia prison. After a brief visit in Denton, the appellant and Ham left Texas, along with the appellant's girlfriend and sister. They travelled to Georgia, where the two men committed an armed robbery. The foursome then moved on to Florida, then back to Texas, to Oklahoma, and then came back to the Denton area, where Ham's body was later discovered.

According to the testimony adduced at trial, approximately two days prior to the offense, the appellant posed the following hypothetical question to Harold Loftin, his uncle: "If you was [sic] going to dispose of somebody, how would you do it?" Loftin obligingly replied, "I would find the most wooded, most deserted area I could find and that's where I would do it ... because I love the woods." The appellant's sister overheard the conversation between the appellant and his uncle, and testified to the effect that her brother was seeking a new identity at that time. Linda Patterson, appellant's girlfriend, testified that the appellant told her he intended to assume the identity of Jimmy Don Ham and find work in another state.

On the date of the murder, September 10, 1983, the appellant and his travelling companions (sister Violet Ann; girlfriend Linda and Ham) arrived at the trailer home of the appellant's friend, Charles Goodman. Also present were the appellant's two brothers, Calvin and Larry Gentry. According to the testimony, at one point, when Ham left the room for a few moments, the appellant announced: "There goes my new I.D." A short time later, a police car was seen driving down the road adjoining Goodman's property. The appellant's sister, aware that her brother was wanted by the Georgia authorities for his prison escape and for the robbery he committed with Ham, ran to warn the two men. Momentarily, the appellant and Ham left in one vehicle, with appellant's two brothers following in a truck.

According to the testimony admitted before the jury, during the time the offense was to have occurred, Calvin Gentry, appellant's younger brother, testified that he and his brother Larry went to a local pool hall and "shot pool for about two, three hours." While Kenneth's brothers were at the pool hall, the appellant took Ham to a remote part of Lake Dallas, ostensibly to engage in target practicing with a pistol. The evidence indicated that both the appellant and J.D. Ham were intoxicated at the time. Ham finished firing the pistol and handed the gun to the appellant. The appellant took the pistol and made as if he were preparing to shoot toward a drink can he had thrown into the lake. Rather than shooting the target, the appellant abruptly swung around and shot Ham once in the head and once in the chest area. Linda Patterson, appellant's girlfriend, testified as to a conversation she had with the appellant later that evening: "He [appellant] asked me if I knew what brains looked like. And I said 'No.' It hadn't got quite dark yet. He told me to look up, that is what brains look like, like clouds.... He [appellant] said him and J.D. [Ham] were on the riverbank target practicing. J.D. had just got through with his turn, handed the gun to Kenneth, J.D. was doing something to the bullets and Kenneth pretended he was going to shoot whatever they were shooting at. He swung the gun around and shot J.D. twice in the chest. And J.D. fell down and he shot him once through the head."

The appellant and state presented contradictory versions as to whether the wallet was on Ham's person at the time of the murder or whether the appellant removed the wallet from the decedent's back pocket after the killing. The appellant then dumped Ham's body into the shallows of Lake Dallas. It was recovered some four days later, after being spotted floating face down in the lake by a fisherman and his son. The autopsy revealed that the decedent was shot twice: once in the left chest area and once in the skull. According to the evidence, either would would have caused the death of the victim.

Following the murder, the appellant, his sister, and his girlfriend fled to Austin, Minnesota, where they were later arrested and returned to Denton County after waiving extradition. Evidence obtained from the appellant's girlfriend's purse included Ham's wallet and several items of identification bearing the name of J.D. Ham.

In addition to the above testimony, in a videotaped statement, the appellant confessed to the murder of J.D. Ham by shooting him with a pistol. According to the appellant, the victim's wallet was left on the dashboard of the car while the two were target practicing. The jury obviously believed the state's version of the offense and the appellant's confession and concluded that he had murdered the deceased in the course of committing a robbery.

I.

In his first point of error, the appellant asserts that the trial court erred in denying his request for a continuance and an attachment for an absent witness that had been subpoenaed by the state. The record establishes that the state requested and had served on Larry Gentry ¹ a subpoena ordering him to appear in court on January 16, 1984, at 10:00 a.m. "and there to remain from day to day, and from term to term until discharged by said court...." He was served with the subpoena at 2:30 p.m. on December 13, 1983.

The defendant's trial began with the jury selection on February 1, 1984; however Gentry was not called as a witness by the state. Instead, the appellant called Gentry to testify on March 1, 1984. The witness was not present to testify. The appellant then made an oral motion for a continuance and an attachment for the witness. He further requested the trial be indefinitely continued "until such time as the subpoenaed witness can be found." The trial court denied both requests.

There is no doubt that when a subpoena is issued it "inure[s] to the benefit of the opposite party in such case in the event such opposite party desires to use such witness on the trial of the case...." Article 24.03, V.A.C.C.P. Erwin v. State, 729 S.W.2d 709 (Tex.Cr.App.1987). Obviously, the mere act of having a subpoena issued and executed does not inexorably result in the witness appearing as directed. An attachment is the proper remedy when, after being subpoenaed, a witness fails to appear as directed. Id.

During the course of a trial, a continuance may be granted "when it is made to appear to the satisfaction of the court that by some unexpected occurrence since the trial began, which no reasonable diligence could have anticipated, the applicant is so taken by surprise that a fair trial cannot be had." Article 29.13, V.A.C.C.P.

In the present case, we are therefore confronted with the relationship of Article 24.03, supra, with Article 29.13, supra--each authorizing the court to grant specific relief when a witness fails to appear as directed. The appellant's point of error condemns the trial court for failing to issue an attachment and grant a continuance.

Preliminarily it should be noted that, contrary to the state's position, the record is clear that at the time the subpoena was applied for and served on the witness he was a Denton County resident. ² According to the application for subpoena required by Article 24.03, supra, the witness' address was "109 Massey Street, # 25, Denton." The "Officer's Return" in the subpoena reflects that the witness was served on the date and at the time previously noted "in Carroll Courts Bldg. [,] Denton."

The record also reveals that apparently after the subpoena was served the witness left Denton for Georgia. For the purpose of the subpoena, however, the residence of the witness on December 13, 1983, was Denton County.

According to Article 24.01, supra, a subpoena authorizes a designated person to summon one or more persons to appear at a specified term of the court, or on a specified day, to testify. Article 24.06, supra, in relevant part, provides that one "refuses to obey a subpoena: 1. If he is not in attendance in the court on the day set apart for taking up the criminal docket or on any day subsequent thereto and before the final disposition or continuance of the particular case in which he is a witness...." Id. In other words, and read in conjunction with Article 24.01, supra, one disobeys a subpoena if he fails to appear on the date noted in the subpoena or fails to be present any day subsequent thereto.

It would be illogical and unreasonable to require a subpoenaed witness to appear on a certain date, at a certain time and remain there ad infinitum. Accordingly, Article 24.06(1), supra, demands the presence of a subpoenaed witness only so long as the case is not finally disposed of or the case is continued. In the event the case is concluded or continued the witness is no longer subject to the subpoena.

In the present case, the witness was ordered to appear as a witness for the state on January 16, 1984. Although it is not clear from the...