Gordon v. State, 04-81-00116-CR

• Decision Date: 01 September 1982
• Docket Number: No. 04-81-00116-CR,04-81-00116-CR
• Citation: 640 S.W.2d 743
• Court: Texas Court of Appeals
• Parties: Jim GORDON, Appellant, v. The STATE of Texas, Appellee.

Page 743

640 S.W.2d 743

Jim GORDON, Appellant, v. The STATE of Texas, Appellee.

No. 04-81-00116-CR.

Court of Appeals of Texas,

San Antonio.

Sept. 1, 1982.

Gerald L. Anderson, Lubbock, for appellant.

John T. Montford, Criminal Dist. Atty., Lubbock, for appellee.

Before ESQUIVEL, CANTU and BASKIN, JJ.

OPINION

CANTU, Justice.

Appeal is taken from a conviction of murder. The punishment as assessed by the jury is 15 years' confinement in the Texas Department of Corrections. Appellant was indicted by a Lubbock County grand jury and the trial was transferred to Kerr County on the granting of appellant's motion for change of venue.

Review is sought on the following three grounds of error:

1. The trial court erred in admitting evidence obtained as the result of two invalid search warrants and two warrantless searches, which evidence was used to corroborate the testimony of accomplice witnesses.

2. The trial court erred in not granting appellant's requested charge on involuntary manslaughter.

3. The trial court erred in not instructing a verdict for appellant, because the evidence was insufficient to corroborate the accomplice testimony used to convict the appellant.

The conviction arises from a senseless and tragic series of events which began on December 24, 1977. The evidence developed during a lengthy trial and viewed in the light most favorable to the jury verdict reflects that in the late hours of Christmas Eve 1977, the body of William Drew Young, III, was discovered in the trunk of a burning car one mile from Farm to Market Road 1585 in Lubbock County. The deceased had been shot in the neck and had expired from the wound. An incredible sequence of investigative accomplishments led Lubbock city policemen, county sheriff's deputies and state officers to focus their attention on a drinking establishment in the City of Lubbock known as the Salt River Saloon.

Several weeks of further investigation resulted in the return of murder indictments against appellant and five others. Three of them, Jean Ann "Tico" Lowrance, her husband, Homer Lowrance and Janice La Dell Payne, testified against appellant pursuant to an agreement with the State, and the State's case rested substantially upon their testimony. The State also relied upon the testimony of fourteen law enforcement officers, chemists, physicians and assorted experts, each supplying incriminating circumstances in the reconstruction of a gigantic evidentiary jigsaw puzzle.

Kenneth Jaycon, Kenneth Herndon and appellant were separately tried. Appellant was convicted upon the theory of criminal responsibility for the conduct of another, as provided in Tex.Penal Code Ann. §§ 7.01 and 7.02 (Vernon 1974).

Sherry Lindell and Pam Eggers, non-accomplice witnesses for the State, did not witness the killing but were present and witnessed events leading up to the actual shooting. The testimony of these witnesses further reveals a series of brutal acts committed by appellant, Herndon and Jaycon, culminating in the attempted destruction of all evidence of the crime by the use of fire including the attempted burning of Young's chemically soaked body as it lay stuffed in the trunk of his own car.

In mid-November 1977, approximately a month before the incident giving rise to the prosecution, appellant entered into an agreement with Tico Lowrance to run the Salt River Saloon on a 60/40 percentage split. Homer Lowrance, Tico's husband, assisted her in the everyday operations and served as an occasional bartender. Payne worked for Tico at the club and had previously been employed by appellant at his club known as the "Saddle Bronc", also located in Lubbock. Young, the deceased, was hired sometime in November as a bartender by Tico to assist her at the Salt River Saloon and worked only a few weeks before absconding with the day's receipts on December 21, 1977. The incident was reported to the Lubbock police and a criminal complaint was filed with the District Attorney. Young was not seen again until the 24th of December.

Lindell and Eggers were both employees of Tico at the Salt River Saloon and had worked with Young either as bartenders, dancers, managers or waitresses. Both were present at the club on the day of the shooting.

On the evening of December 24, 1977, at approximately 5 p.m., Tico and Homer received a call at their home from the club's bartender. Due to the urgency of the call, Tico notified appellant that Young was at the club threatening to return with his "bandito" friends to rob the club and shoot anyone who attempted to stop him.

Sometime after Tico, Homer and Payne arrived at the club, appellant entered, accompanied by Jaycon and Herndon. Herndon had a gun between his belt and waist band. ¹ Appellant joined Tico and Homer at a table for a drink. Jaycon and Herndon sat at a table across the room with Payne and commenced to drink excessively. About half an hour later Eggers arrived at the club and was surprised to see Tico and Homer there, since she (Eggers) was supposed to work the late shift and close the place up at 2 a.m. She left the club on an errand for about thirty minutes, and when she returned she noticed Young sitting in his car parked in the driveway of the club. She walked into the club without acknowledging his presence, and went directly to the table occupied by Tico, Homer and appellant to advise that Young was outside the club. Tico went out and verified that Young was indeed there. Appellant motioned Jaycon and Herndon over to his table and instructed them to go and bring Young inside. Tico followed them outside and saw Jaycon and Herndon dragging Young by his arms around the back of the building. As she ran back inside the club she observed someone opening the emergency side door. Jaycon and Herndon walked in with Young who was still being restrained. Herndon was carrying a pistol in his other hand. Young was bleeding from the top of his head and appeared to be incoherent as he was taken toward appellant. Appellant immediately began swinging at Young with his fist and open hand, striking Young all about the head. As he repeatedly struck at Young, appellant, by now angry and frustrated, screamed out, "Why do you keep fucking with me? Don't you know who I am? What did you do with my goddamned money?" The screaming and beating continued for about ten minutes until Homer suggested that the problem be taken into the club office and away from public view. Jaycon and Herndon then dragged Young into the office and were followed by Tico, Homer, Payne and appellant. All the while, appellant continued to strike and scream at Young until Tico intervened long enough to talk to Young. Very shortly thereafter, appellant began ranting and raving again and commenced striking at Young again. Appellant again screamed, "You tell me where the hell my money is. Don't you know who I am? You can't be fooling--fucking around with me. If you don't, I will take you out in the woods." Appellant then walked over to Herndon and said, "Give me that goddamned gun." Herndon then came up to appellant and suggested that appellant need not get involved and volunteered to do it for him. Herndon began to beat up on Young and, following a scuffle in which Young was struck over the head with the gun, Herndon said to Young, "I will give you to the count of three to answer me. If you don't, I will blow your fucking head off." Herndon then cocked the gun and, pointing the gun at Young, began to count. The gun fired immediately after the count of two, the bullet striking Young in the neck at very close range and striking the cinder block wall behind Young. Following a short period of silence, Herndon pointed the gun at Homer and asked appellant who all the rest of the people in the office were. Appellant vouched for all of them. Herndon suggested everyone should keep quiet about what they had witnessed.

Tico and Payne went back into the club and asked the customers and employees to leave and began closing up the place. Meanwhile, Herndon picked up Young's body and carried it out of the office. Jaycon drove Young's car around and opened up the trunk. Herndon placed Young's body in the trunk and closed the trunk lid. Appellant offered the suggestion that Young's body be thrown over a cliff. Herndon and Jaycon then left together, one of them driving Young's car away.

Appellant returned to the bar area and began drinking as Tico and Payne cleaned up the office by dismantling a blood-soaked couch, cutting off part of the carpeting and scrubbing down the walls. All the blood-soaked items were placed in a plastic trash bag and taken out by Homer to be burned at the suggestion of appellant.

On appellant's instructions, Tico and Payne went to the apartments of Lindell and Eggers to warn them that they should remain silent about what they had seen or heard, or run the risk of incurring the same fate. After cleaning up, Tico, Homer and Payne went to appellant's club, the Saddle Bronc, where they saw appellant drinking.

Herndon and Jaycon also cleaned up at Herndon's place, and at about 11:50 p.m. were headed toward appellant's Saddle Bronc Club. While stopped along the side of Farm to Market Road 1585 to burn the clothing Herndon had been wearing at the time of the killing, they were spotted by Texas Department of Public Safety Trooper Max Gunn. Their car was seen parked next to a small fire by the side of the road. Suddenly it took off in an erratic manner at a high rate of speed.

The car was stopped after a three mile chase and both were arrested, Herndon for driving while intoxicated and Jaycon for public intoxication. Officer Gunn noted that Herndon had fresh cut marks about the bridge of the nose and under the left eye.

Texas Department of Public Safety Officer John Salter, in response to a broadcast by Trooper Gunn, proceeded to the location of the fire previously seen next to Herndon's car and discovered a cardboard box containing partially burned items of...