Green v. State

Decision Date03 June 1992
Docket NumberNo. 71082,71082
Citation840 S.W.2d 394
PartiesNorman Evans GREEN, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals
OPINION

CLINTON, Judge.

Appeal is taken from a conviction for capital murder. See V.T.C.A., Penal Code, § 19.03(a)(2). After finding appellant guilty, the jury answered the special issues in the affirmative and punishment was assessed at death. Article 37.071, V.A.C.C.P. Direct review by this Court is automatic. Id., § (h). Appellant raises thirteen points of error and challenges the sufficiency of the evidence at both stages of trial. We will affirm appellant's conviction.

Viewed in the light most favorable to the verdict, the evidence at trial established the following facts. On February 13, 1985, Wilson Lucas, a retired educator, was visiting a friend who lived at a set of apartments located directly behind a Dyer Electronics in San Antonio. The apartment complex and Dyer Electronics were separated by a single fence in need of repair. Lucas testified that, at about midday of February 13, he came into contact with appellant and his co-defendant in the parking lot of the apartment complex. His suspicions aroused by their behavior, Lucas stated that he carefully looked both men over, as well as the vehicle they were near, during the several minutes he was in contact with them. Lucas said that the two men were still at the apartment complex when Lucas and his friend left. He also testified that about twenty minutes after he left the complex, he heard over the radio that the adjacent Dyer Electronics store had been robbed and the attendant had been shot. Lucas and his friend then went to Dyer's and subsequently gave a statement to police.

Shortly before Lucas had his encounter with appellant, Gerry Rickhoff, the store manager at Dyer Electronics, and his eighteen-year-old employee, Timothy Adams, the victim in this case, were commencing what appeared to be another ordinary work day. Rickhoff recalled in testimony that business had been slow that morning, but that two black men had come into the store in the early afternoon. Rickhoff told the jury that he noticed that the vehicle in which the men had arrived was old and in poor condition. 1 He stated that the victim engaged the men in conversation, then one separated from the discussion and looked over the store. The men then left without asking about any particular equipment and without purchasing anything. Rickhoff identified appellant as one of those two men. The other was later identified as one Harold Bowens.

As Rickhoff prepared to leave for lunch, he noticed the same vehicle returning to the store and later identified the same two men as he had seen in the store previously to be the car's occupants. Rickhoff exited his car, returned to the store, and told Adams not to let the two "steal anything." Rickhoff then left for lunch. Upon arriving at his apartment shortly after leaving the store, Rickhoff received a phone call that there had been a shooting at the store.

Next door to Dyer Electronics was a Midas Muffler Shop with Steve Robinson on duty as manager. Jeff Cochran and Randy Reece were also working there on February 13, 1985. Reece testified that at approximately 1:30 p.m. on that day, he heard sounds that his co-worker Cochran identified as gunshots coming from the direction of the electronics store. Reece stated that he then went to the front door of Midas and saw two black males, later identified as appellant and Bowens, exit Dyer's and get into the same old, beat-up vehicle identified by Lucas and Rickhoff. Reece, Cochran, and Robinson then all ran over to the Dyer building. They found the victim, Adams, alive, but "covered in blood". Reece testified that as he approached the victim, Adams stated several times that he had been shot and needed an ambulance. Reece stated that he found the victim slumped over the cash register and then he helped him to the floor. Reece also told the jury that he overheard the victim tell Cochran, "They tried to rob me, but they didn't get anything."

Cochran and Robinson testified to essentially the same facts as did Reece. Cochran stated that he, also, saw the two black men leaving Dyer Electronics in appellant's car. He further recalled that appellant was driving. Cochran told the jury that one of the suspects appeared to conceal something as he fled the store.

The Dyer stores' city manager, Leslie Daniels, testified that he called the store that afternoon only to have his call answered by Adams proclaiming to be dying and asking for help. Daniels had an employee contact the owner, Jerry Dyer. When Daniels arrived at the store, the police and ambulance were both at the scene. Daniels spoke to the victim who told him that two black men who had been in the store earlier that day had done this to him and that Rickhoff knew who they were. Daniels later told the police that nothing appeared to be missing from the store.

Dyer testified that when he arrived at the store, the victim told him that "they" had shot him and he was dying. Dyer explained to the jury that the cash register would open only if a secret button was pushed. He also told the police that no money or inventory appeared to be missing.

The Emergency Medical Services supervisor, Bobbie Bozek, testified that the victim told her that he had been shot by a black man for no reason. She found the victim in critical condition resulting from his sustaining three gunshot wounds. Officer Donald Weilbacher testified that Adams told him that two black men had shot him during their attempt to commit robbery.

Detectives Allen Rabe and Robert Duross of the San Antonio Police Department testified that they were called to the scene to gather and preserve evidence. Rabe took fingerprints, found a bullet fragment on the floor, and found a bullet hole in the wall from which he retrieved a slug. Duross gave the bullet fragment and the slug to the Medical Examiner's Office. Duross testified that he went over the entire area "with a fine tooth comb," but found no indication that a shot was fired into the floor (as appellant later claimed happened).

After the police arrived at the scene of the shooting and questioned the witnesses, one officer broadcast a description of the suspects and the car involved. Officer James Holguin, of the San Antonio Police Department, testified that he located a car matching the description at an apartment complex. 2 He testified that when he pulled his vehicle close to the suspect vehicle, 3 the two occupants exited the car and began walking in different directions. As the officer recognized the passenger as co-defendant Bowens, he decided to follow the driver, later identified as appellant. Appellant ran when Holguin identified himself as a police officer. Although Holguin gave chase, he momentarily lost sight of the suspect. When the officer saw appellant again, he had removed and discarded the jacket he had been wearing. Appellant managed to elude capture at that time.

Other officers were on the scene by this time and Officer Harold Schott, also of the San Antonio Police Department, testified that he found a gun in the vicinity of where Holguin had chased the suspect. This location was very near the suspect's vehicle. The weapon was identified as a blue steel .38 caliber revolver with a four inch barrel. The six-shot revolver contained four spent shell casings and two live rounds of .38 caliber special Winchester Plus P ammunition. The bullets had been manually altered, with an "X" cut in the nose of each bullet. Schott testified that this type of alteration facilitates a more rapid expansion of the bullet upon impact, resulting in faster killing power. Schott explained that the fresh scratches on the gun indicated that it had been dropped on the ground fairly recently. Schott told the jury that he then fingerprinted the gun and was able to obtain prints.

Fingerprint expert Officer Ricardo Contreras testified that he positively identified the prints taken from the gun as those of appellant. None of the prints lifted from the weapon belonged to Harold Bowens. While other ridge prints were found, they were insufficient to make an identification. Contreras testified, however, that the presence of the ridges indicated that the gun had not been wiped clean.

Firearms examiner Richard Stengel testified that the .38 caliber gun found by Schott was the weapon used to murder the victim. He testified that the altered Plus P bullets found in the weapon were designed to do more damage and be more lethal than ordinary bullets.

Appellant was subsequently arrested pursuant to a warrant and immediately advised of his constitutional rights. Detective Anton Michalec testified that appellant was then taken to the police station where he was readvised of his rights and questioned. Appellant gave a four-page statement to the detective wherein he basically accused Bowens of planning the entire event and of firing the fatal shot. Appellant explained that when he and Bowens were on their way to pick up some 200 videocassette recorders, Bowens received a .38 caliber gun from a friend which he appeared to place on the floor of the vehicle. Appellant also claimed that Bowens had taken the gun into Dyer's and, when the victim would not cooperate, Bowens fired a shot into the floor of the store.

Dr. Robert Bux performed the autopsy on Adams who had received gunshot wounds to the right elbow, the left anterior chest, and the abdomen below the rib cage. Bux testified that the wound in the victim's arm was consistent with a defensive posture. He also testified that the chest wound traversed downward through the ribs to...

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