Havard v. State
| Decision Date | 14 June 1989 |
| Docket Number | No. 69581,69581 |
| Citation | 800 S.W.2d 195 |
| Parties | Patrick Curtis HAVARD, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Appeal is taken from a conviction for capital murder. V.T.C.A., Penal Code § 19.03(a)(1). After finding the appellant guilty, the jury returned affirmative answers to the special issues under Article 37.071, V.A.C.C.P. Punishment was assessed at death.
The appellant was convicted of knowingly and intentionally causing the death of Kevin Williams, a peace officer who was acting in the lawful discharge of an official duty. Appellant raises thirty-one points of error. We will affirm.
On March 9, 1985, appellant went to the home of his estranged wife, Linda Havard, and her roommate, Lynn Risner. Appellant arrived at their apartment in the Woodcreek complex at approximately 1:15 A.M. According to the testimony of Lynn Risner, appellant and his wife argued, and the argument escalated into a scuffle. When Risner became concerned for Linda Havard's safety, she called the police. Officer Kevin Williams responded to the call for the Huntsville Police Department. Jay Huber and David Hall, security guards for Resources Unlimited, were also dispatched to the scene by their employer because Resources Unlimited had a security contract with the management of the Woodcreek Apartments.
Hall arrived first on the scene, riding a Resources Unlimited motorcycle. About a minute later, Officer Williams arrived in a marked Huntsville Police car, immediately followed by Huber in a Resources Unlimited station wagon. Williams pulled into a parking place as did Huber and Hall.
Hall testified that, as he was propping his helmet on the motorcycle, he heard Lynn Risner yelling for help and saw her running towards them. After Risner came around the corner of a building, Linda Havard approached from an alley running between two buildings. At this point, the testimony begins to conflict.
According to Risner's testimony, she saw appellant step from behind a building, raise a .22 caliber rifle to his shoulder, and point it at the police officer. She said that she shouted "There he is," and pointed in appellant's direction. Officer Williams then turned to appellant and shouted "Freeze; stop; police; drop your weapon." She said that she saw a flash from the muzzle of appellant's rifle and heard a shot. Risner counted six shots, all fired by appellant, but was not able to say precisely where the shots were aimed. On cross-examination, she was able to add few details.
Hall's and Huber's testimony was substantially the same as Risner's. The only direct conflict was that both security guards agreed that Risner did not shout "There he is" and that Officer Williams did order appellant to freeze and drop his weapon, but did not announce that he was a police officer. In addition, Hall said that after the shots were fired, appellant went back around the building beside which he had been standing. Hall drew his pistol and followed appellant. He saw appellant start to get into a pickup truck. Hall shouted for appellant to freeze and drop his weapon, and appellant complied.
Next, Huber arrived at the scene and asked Hall if appellant was the man who had fired the shots. Appellant replied to Huber, "Yeah, I did it." Huber's testimony corroborated that of Hall. Huber's testimony supplied the additional information that he was struck in the shoulder by appellant's fifth shot. All three of these witnesses testified that the area was well-lit and that everyone at the scene was visible.
Medical testimony showed that Williams was killed by a small caliber gunshot wound to the middle of the forehead and also had a through-and-through wound to the shoulder. The fatal bullet was of a similar type as that found in the gun that appellant fired, but the deteriorated condition of the bullet prevented a positive ballistics match.
Appellant's testimony agreed with that of Huber and Hall, with certain additions. Appellant testified to his agitated mental state at the time of the offense; that he believed that he saw a flash from Williams' gun, that he believed was fired at him; and that he did not know that Williams was a police officer. Neutron activation tests and the testimony of Risner, Hall, and Huber indicate that appellant was the only one to fire a gun.
In his twenty second point of error, appellant argues that the trial judge erred in denying his motion for a directed verdict at the end of the State's case in chief. The uncontroverted evidence showed that appellant intentionally or knowingly fired the fatal shot at Officer Williams and that, at the time of the killing, Williams was a peace officer engaged in the exercise of his official duties. The only contested factual issues, in regard to this motion, was whether appellant was aware that Williams was a peace officer. Our examination of the sufficiency of the evidence will, thus, be limited to this element of the offense. 1
The standard for review applicable to a motion for directed verdict is the same as that used in reviewing the sufficiency of the evidence. This Court has recently set out that standard in Butler v. State, 769 S.W.2d 234 (Tex.Cr.App.1989).
[T]he test as delineated in Jackson [v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ] requires us, as the reviewing court, to determine whether "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319, 99 S.Ct. at 2789.
We must take each case and review the entire body of evidence to determine whether the State has proven beyond a reasonable doubt each and every element of the alleged crime and not just a plausible explanation of the crime.
Hall, Huber, and Risner all testified that, although his overhead lights were not flashing, Williams arrived in a conspicuously marked police car and was wearing a Huntsville Police Department uniform and badge. Their testimony, as well as that of other police officers and EMS technicians who arrived on the scene after the shooting, indicated that the parking lot was amply illuminated. State's exhibits 11, 16, 30, 31, 32, 33, and 34, color photographs of the scene taken the night of the shooting, indicate that visibility was good. Although appellant elicited the fact that some of the photographs were taken with the aid of a flash device, other photographs were not so assisted. Finally, appellant was able to see well enough to fire a shot that struck Williams "right between the eyes." Based on this evidence, a rational trier of fact could have easily believed that the State had proven, beyond a reasonable doubt, that appellant was on notice that Williams was a peace officer. Appellant's twenty-second point of error is overruled.
In his first point of error, appellant complains of the trial court's denial of his motion for change of venue. Appellant's motion was timely filed, stated a cognizable reason for change of venue, and was properly accompanied by affidavits in support of his motion. The State controverted appellant's motion in a timely manner, raising a factual issue and the need for a hearing.
At the evidentiary hearing on this motion, appellant called two representatives of the local news media. Kathy Bear, of the Huntsville Item, testified concerning the coverage of this case by her newspaper. She stated that only the initial reports concerned the facts of the crime and appellant's possible involvement. Although she conceded that this story was one of the two most heavily covered in her two years on the paper, she characterized most of the articles and letters published as having to do with Officer Williams, personally, and efforts to raise money to aid the family. She stated that these later, and predominant articles, contained no discussion of appellant. She concluded, as far as media coverage of the event was concerned, that appellant could receive a fair trial in Walker County.
J.D. Dickenson, of a local radio station, testified similarly to Ms. Bear. His testimony agreed with Bear's characterization of the news coverage, and he also believed that appellant could receive a fair trial in the county.
Dean Lewis, a local banker, testified concerning his personal efforts to raise money to aid Officer Williams' family. He concluded that appellant could receive a fair trial and recalled that a significant number of the people who approached a fund-raising booth at a local fair did not know who Officer Williams was.
Other witnesses for appellant testified that it would be difficult, but not impossible, to find 12 unbiased jurors and stated that they would prefer to be tried outside Walker County. Ken Lee, one of appellant's compurgators, stated that he did not believe that appellant could receive a fair trial, but he admitted that he had not formed an opinion as to appellant's guilt.
The State's witnesses all believed that appellant could receive a fair trial. These witnesses included the owner of a local cafe, two county commissioners, the warden for the Walls unit of T.D.C., and two local, civil attorneys.
In reviewing the motions for change of venue, where there is a hearing on the motion and conflicting testimony is adduced, the proper standard of appellate review is whether the trial judge abused his discretion in denying the motion. E.g., Cockrum v. State, 758 S.W.2d 577, 584 (Tex.Cr.App.1988). Here, the vast majority of the testimony indicated that appellant could receive a fair trial. Based on the strength of the evidence indicating that appellan...
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