Hathorn v. State

• Decision Date: 28 October 1992
• Docket Number: No. 69503,69503
• Citation: 848 S.W.2d 101
• Parties: Gene Wilford HATHORN, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 101

848 S.W.2d 101

Gene Wilford HATHORN, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 69503.

Court of Criminal Appeals of Texas En Banc.

Oct. 28, 1992.

Rehearing Denied Jan. 27, 1993.

John D. MacDonald, II, New Caney, for appellant.

Joe L. Price, Dist. Atty., and Robert H. Trapp, Asst. Dist. Atty., Groveton, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

WHITE, Judge.

On June 27, 1985 a Trinity County jury convicted appellant, Gene Wilford Hathorn, Jr., of the capital murder of his father, Gene Hathorn, Sr. ¹ After the jury returned affirmative findings to the two special issues submitted under Tex.Code Crim.Proc.Ann., Art. 37.071(b)(1) and (2), he was sentenced to death. This case is before us on direct appeal. ²

Appellant, through his counsel appointed by the trial court, raises twenty-two points of error for this Court to review. Additionally, he raises four pro se points of error in his own brief to this Court. Finding no merit in these contentions, we affirm the judgment of the trial court.

Appellant challenges the sufficiency of the evidence supporting his conviction in points of error three through five. In point of error number three, he alleges that the evidence was insufficient to support the allegation that he employed another for remuneration or the promise of remuneration to commit murder, or that the murder was carried out pursuant to that employment. In point of error four, he alleges that the evidence was insufficient to support the allegation that he committed murder for remuneration or for the promise of remuneration. And, in point of error five, he alleges that the evidence was insufficient to support the allegation that appellant committed murder in the course of committing the offense of burglary of a habitation.

The evidence at trial showed that on October 9, 1984 appellant and his accomplice, James Lee Beathard (Beathard), ³ carried out the execution of appellant's father, stepmother, and stepbrother. That day, he and Beathard drove to Beathard's step-father's land in Gallatin to target practice. After shooting off several rounds from their guns, they drove to Nacogdoches. They made several stops along the way engaging in conversations with people to increase their visibility. One place they stopped was Stephen F. Austin University. While there, Beathard checked out several books at the university library. The two stopped for gas, had dinner and then drove to the victim's residence in Nogalus Prairie. When they neared the victim's residence, they hid the car in the nearby woods. They then continued walking through the woods toward the victim's property.

Beathard and appellant walked behind the trailer and peeked through the back window. They saw Hathorn, Sr., and his wife Linda Sue, sitting on the couch, watching television. They also saw the couple's fourteen year-old son Marcus sitting nearby. Appellant shot and killed his father through the trailer's back window. Immediately thereafter, Beathard gained entry to the mobile home through the unlocked back door. Once inside, he shot and killed appellant's step-mother and half-brother. A total of eleven shots were fired with three different weapons: a shot-gun, .223 caliber rifle and .380 caliber pistol.

Beathard and appellant planned to make the crime scene look like a group of "drug-crazed niggers" had committed the murders during a burglary. For that reason, after the killings, and according to plan, they planted false evidence in the trailer home. The false evidence included cigarette butts which had been smoked by black people as well as hair that appellant had taken from black people at the Rusk State Hospital, where he had been employed.

After planting the evidence, they also took an armload of guns, a video cassette recorder and video disk player from the mobile home. Appellant took his father's van and abandoned the vehicle in Nigton, a predominately black neighborhood. The weapons used in the crime, along with the stolen property, were thrown into rivers. And, on the way home, appellant and Beathard revisited the library to check out another book.

Appellant knew he would be a prime suspect so, in order to allay suspicion, he contacted the local authorities the next day and pretended to have discovered the murdered bodies. When questioned about his whereabouts, he told authorities that he had been at the library and at the shopping mall on the date in question.

Three individuals testified that appellant attempted to hire them to help commit the murders during the period just before they were actually committed. They testified that appellant described a plan to commit the murders in a manner identical to that subsequently used. And, the jury was read a transcript of appellant's own judicial confession to the commission of this offense, which was given during the trial of his co-defendant. Appellant's testimony at that trial was given against his attorney's advice and after being admonished before the trial judge and the District Attorney.

Other evidence in the record indicated that appellant had purchased the same type of guns as the three used in the murders less than a year prior to the offense. A few days after the murders, appellant made inquiries regarding whether his guns could be traced. He lied to investigators about the type of vehicle he was driving the night of the murders. He asked an investigator whether any hair or cigarette butts had been found at the murder scene; the same evidence had been discovered but was later ascertained to be false evidence intentionally planted by the perpetrators. He directed the Trinity County Sheriff to rivers where the Sheriff located one of the murder weapons and articles which had been stolen from the Hathorn, Sr. residence. He indicated to the Sheriff that he had personally put the items in the rivers. And finally, there was a positive ballistic's match between the .380 caliber shell casings found at the scene of the murders and .380 caliber shell casings known to have been fired from appellant's own pistol prior to the murders.

In point of error five, appellant asserts that the evidence is insufficient to support the allegation that he committed the murder in the course of committing the offense of burglary of a habitation. See Tex.Penal Code Ann., § 30.02(a)(1). In support of that assertion, appellant argues that the State failed to prove that he "entered the habitation without the effective consent of the owner." He claims that he had an open invitation to enter his father's house and that he was in a position, as the son of the deceased, to act on his father's behalf and give consent to Beathard to enter the trailer on the night of the murders.

Additionally, appellant argues that the State failed to prove burglary since the State offered no proof that he "entered the premises with intent to commit theft." In support of that argument he refers us to his testimony in the record where he claimed that the removal of items of personal property from the residence was for the purpose of concealing the offense.

However, this sufficiency challenge goes to the charge that appellant committed murder in the course of committing burglary. Burglary is defined in relevant part in the Penal Code as follows:

(a) A person commits an offense if, without the effective consent of the owner, he:

(1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony or theft; .... (emphasis added).

Tex.Penal Code Ann., § 30.02(a)(1).

We believe that there is sufficient evidence for a rational trier of fact to conclude beyond a reasonable doubt that appellant was guilty of committing murder in the course of committing burglary.

Although the deceased was not available to testify at trial, proof of lack of consent may be established through circumstantial evidence. See Taylor v. State, 508 S.W.2d 393, 397 (Tex.Crim.App.1974) (holding that proof of lack of consent to the entry and taking of personal property for burglary prosecutions with intent to commit theft or theft may be made by circumstantial evidence); see also Fearance v. State, 771 S.W.2d 486, 511 (Tex.Crim.App.1988); Prescott v. State, 610 S.W.2d 760, 763 (Tex.Crim.App.1981). And, circumstantial evidence of lack of consent was plentiful.

The jury heard evidence that appellant lived at his father's residence from the age of thirteen until he moved to Rusk in 1979. After the move to Rusk, he visited his family's home and spent each Thanksgiving and Christmas there. His relationship with his parents deteriorated about a year prior to the murders, and as a result, he stayed away from his father's home during that time. He visited his family three weeks before the murders because he wanted to borrow money and discuss his marital problems. Appellant stated that his father treated him "cold" so he did not ask for money.

On the day of the murders, appellant telephoned his father's house to verify that his family would be home that night. Then, later that evening he proceeded to sneak up to the back door of the house to, in appellant's own words, "see if it was unlocked." Appellant "discussed his strategy" with Beathard. ⁴ And then, appellant aimed a gun at his father through a back window of the house and shot him.

Appellant admitted that after he shot his father through the back window of the house, his father "tensed up." Additionally, appellant stated that at that time, his step-mother stood up and began screaming. Immediately afterward, Beathard rushed into the house and killed appellant's step-mother and half brother. The two proceeded to steal various items from the home.

Viewing the evidence in a light most favorable to the verdict, there is ample evidence in the record to support a finding by the jury beyond a reasonable doubt that the entry into the victim's habitation was without effective consent....