Hogue v. State, 68852
| Decision Date | 19 March 1986 |
| Docket Number | No. 68852,68852 |
| Parties | Jerry Lee HOGUE, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
This is an appeal from a conviction of capital murder. Punishment was assessed at death.
Briefs have been filed on behalf of appellant by his court-appointed counsel and by his subsequently retained counsel with the permission of the trial court. We will consider the grounds of error raised in both briefs. In addition, appellant has filed a pro se brief which raises additional issues not briefed by counsel. Without discussing individually the issues raised in appellant's pro se brief, we note that we have carefully reviewed his contentions and find them to be without merit.
The evidence introduced at trial showed that appellant and his wife rented a house located at 2412 Southcrest in Arlington on November 9, 1978. Approximately one month later, on December 4, 1978, appellant and his wife vacated the house without turning in their key, leaving a refrigerator, a round wall ornament and some trash. The property was cleaned up and on December 24 the house was leased to Mary Beth Crawford and Jayne Markham. Living at the house with the two women were Markham's eight-year-old son and Steve Renick, a friend of the women.
On a Wednesday, January 10, two days before the commission of this grisly and brutal crime, appellant returned to the house. When Markham answered the door, appellant told her he had lived in the house and had left a wall hanging at the house and asked if he could get it. Markham let appellant in the house and they began conversing. Apparently some sort of amiable relationship between Markham and appellant was struck because appellant stayed at the house for quite a long time that evening. On Thursday, appellant again showed up at the house. Markham had agreed to buy some used furniture from appellant so she went with him to pick up the furniture. When they arrived back at the house, once again appellant stayed for the duration of the evening. Eventually the women went to bed and only appellant and Renick were awake. Appellant asked Renick if he knew where he could get a gun. Renick showed appellant the gun he kept in his footlocker. After cleaning the gun, Renick loaded it and placed it back inside the footlocker.
Appellant was at the house again early the next morning. 1 Renick went to work and Crawford took Markham's son to school. On her way home she stopped at the grocery store. When she returned home, she prepared breakfast for herself, Markham and appellant. Crawford noticed that Markham seemed upset. While the trio were eating breakfast, appellant suddenly blurted out that he was a police officer and that he was arresting them for possession of marihuana. When the women asked for some sort of identification, appellant said that he did not have any with him but that his real purpose was to arrest Steve Renick because he was a heroin dealer. Appellant told the women to cooperate, to stay in his sight all day long and not to talk to each other. He then had them go into Markham's bedroom. Appellant left the bedroom and shortly thereafter the women heard a breaking noise. They followed the noise and found appellant going through Renick's footlocker.
Appellant found Renick's gun inside the footlocker. Appellant pointed the gun at the women and told them he was going to handcuff one of them. He proceeded to handcuff Markham; he put Crawford into a closet. After a period of ten minutes, appellant opened the closet door. He had the gun in his hand and was nude from the waist down. Appellant stepped inside the closet, pointed the gun at Crawford's head and instructed her to remove her clothes. When Crawford replied that she would not and she had venereal disease, appellant backed out of the closet and shut the door.
A short while later appellant removed Crawford from the closet and led her into the dining room. There she saw Markham nude and blindfolded, lying face down on the floor with her hands cuffed behind her. Appellant told Crawford to remove all of her clothes except her underwear and to lie down beside Markham. After a few minutes, appellant forced Crawford to commit oral sodomy upon him. Thereafter, appellant again put the women in the bedroom. Crawford was put back into the closet while appellant raped Markham. Then appellant blindfolded both women and forced both of them to lay on the bed. He then proceeded to go through Markham's purse.
Appellant later permitted both women to get dressed. He instructed the women not to talk to each other and at a point during the day when he caught the women talking he took Crawford into her room and handcuffed her to her bed. At 3:15 p.m., Markham's son returned home from school. Appellant made him go to his mother's room and remain there. Around 6:00 p.m., Renick came home. Appellant, carrying the gun and a pair of handcuffs, met Renick at the front door. Renick was immediately handcuffed and led into Markham's bedroom. Appellant told Renick that he was a narcotics agent and was arresting him. Appellant took Renick's wallet and then moved Renick into Crawford's bedroom where he was handcuffed to the bed. Over the next few hours appellant moved through the house, shuffling his prisoners from room to room. Throughout the evening appellant made numerous threats to kill them all. At one point appellant led Crawford into the living room and had her sit on the couch. Appellant left the room and when he returned he was carrying a butcher knife. He stabbed Crawford in the stomach and then dragged her into a bathroom. A short time later, he had both women go back into the living room. There he told them he was a hit man and had a contract out for each one of them. Appellant then took Crawford into the third bedroom. By this time Crawford was bleeding heavily, was in intense pain, and was passing in and out of consciousness.
Appellant brought Markham into the room where Renick was now confined. By this time Renick's hands had been tied to the headboard and his feet had been bound together. Appellant proceeded to bind Markham by tying her hands behind her back, tying her feet together and then taking a wire and tying her feet to her hands. When Renick and Markham begged appellant to release them so that they could take Crawford to the hospital, appellant said he was a hit man and he was going to kill them all. Appellant left the room. Soon the victims began to smell gasoline. They could hear the appellant in the attached garage coughing and sputtering. After a while appellant came back into the bedroom carrying a Prestone antifreeze can and a rolled up newspaper. Appellant again told Markham and Renick that he was going to kill them all. He then left the room. The victims saw appellant backing down the hallway, pouring a liquid out of the antifreeze can. They soon began to smell gasoline. Suddenly, fire roared through the hallway and flames began shooting into the bedroom where Renick and Markham were tied up.
Renick managed to free himself, break a window and jump outside. He then tried to go back in and rescue Markham who was screaming but the flames were too intense. When the screaming stopped, he ceased his efforts. He then ran to the window of the bedroom in which Markham's son was sleeping. He was able to pull the child out of the window. Crawford, awake at the time of the fire's ignition, managed to jump out of a bedroom window. She ran next door to summon help. On her way to the neighbors, she saw appellant climbing into his car. She ran to the neighbors' house and rang the doorbell. The neighbors found her collapsed on the ground.
Emergency vehicles responded to the fire call at 1:14 a.m. when they reached the scene, the house was fully involved. Markham's body was found by fireman inside the house. Her hands and feet had been tied behind her back, leaving her body in a crouched position. An autopsy showed that her hands and feet were tightly bound with insulated wire.
Police found a Prestone antifreeze container sitting just inside the doorway of the laundry room. It smelled heavily of gasoline. They also found two sections of garden hose on the floor of the garage lying next to a vehicle that had been parked in the garage. These also smelled of gasoline. A fire investigator concluded that more than two gallons of gasoline had been used to start the fire. He determined that the fire had been deliberately set.
Appellant argues that the court erred in submitting the issue of capital murder to the jury because the evidence was insufficient to prove the aggravating element of arson. Appellant contends that rather than proving a murder occurring in the course of committing an arson, the State's evidence showed a murder by arson.
Count two alleged a murder in the course of committing a kidnapping. Count three alleged V.T.C.A., Penal Code, Section 19.02(a)(1) murder by arson. The court charged the jury in accordance with the first count of the indictment. Appellant voiced no objection to this aspect of the...
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