Hoover v. State

• Decision Date: 21 April 1965
• Docket Number: No. 37965,37965
• Citation: 390 S.W.2d 758
• Parties: Sam HOOVER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 758

390 S.W.2d 758

Sam HOOVER, Appellant, v. The STATE of Texas, Appellee.

No. 37965.

Court of Criminal Appeals of Texas.

April 21, 1965.

Rehearing Denied June 9, 1965.

Warren Burnett, Odessa, Luther E. Jones, Jr., Corpus Christi, for appellant.

Frank Briscoe, Dist. Atty., Sam Robertson, Carl E. F. Dally and Gus J. Zgourides, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.

BELCHER, Commissioner.

The appellant was convicted of being an accomplice to robbery with firearms; the punishment, sixty years.

The indictment alleged that on or about March 11, 1964, and before the commission of robbery by firearms of Mair Schepps, by John Oscar Young, Samuel Spivey, and Calvin Sellars, the appellant did unlawfully and wilfully advise, command, and encourage them to commit said offense, the appellant not being present at the time of the commission of the robbery by said three named persons. The indictment also alleged the taking of $3,900 in money, a man's diamond ring, and a woman's diamond necklace, from Mair Schepps.

The evidence reveals that after Spivey, Young, and Sellars had been advised by the appellant that Schepps had $300,000 in money in his home, the appellant encouraged them among other things, to 'get you a car and equipment (guns) and get ready to go in,' and he also told them where to look for the money in the house. These three men, wearing masks, two of whom were armed with pistols and one with a sawed-off shotgun, went to the Schepps's home about 7 P.M., March 11, 1964. While they were preparing to enter the house, Mrs. Tuck, a nurse employed by Schepps, left the house to go to a nearby garage apartment and she was knocked unconscious by one of the masked men. Two of the robbers entered the main house and violently assaulted Mr. and Mrs. Schepps and the third robber brought Mrs. Tuck into the house shortly thereafter.

After numerous unsuccessful inquiries about the $300,000 the robbers' acts of violence and torture increased, to compel the Schepps to reveal the location of the money. Mrs. Schepp's jaw was broken, and some of her teeth were knocked out and others loosened; she was burned across the abdomen with a heated butcher knife; she was repeatedly burned on her face and body with cigarettes, and also repeatedly shocked with an electric wire placed to her teeth, breasts and private parts; a fireplace poker and a pistol were inserted into her vagina; and she was shot in the thigh with a .44 magnum pistol as she lay prostrate on the floor. Mr. Schepps was severely and brutally beaten and lay unconscious for short periods of time during the three-hour attack. The injuries of Mrs. Tuck were not so serious, but she required several days of hospitalization. The Schepps's tenmonth old baby was threatened, and a shot was fired into the baby bed where the child lay. Most of the furniture and furnishings in the house, especially those on the second floor, were torn, broken, demolished, and scattered in an intense and violent search for the $300,000 reportedly hidden therein.

Mair Schepps testified that he was in fear of his life and serious bodily injury when the robbers, against his will, took from him $3,900 in money, a man's diamond ring of 4.83 carats, and a 2.70 carat diamond necklace.

A pair of slacks, a black shirt, a hat, a pair of gloves, and rolls of adhesive tape were found in a garbage can near the home of Calvin Sellars. Fibers taken from the articles were shown to be identical with those removed from the carpet in the Schepps home, and an examination of traces of human blood on some of the articles revealed the blood to be the same type as Mr. Schepps's. Also a human hair taken from the shirt was shown to be identical to one removed from Sellars. Furthermore, the officers recognized the trousers found in the can as the same ones Sellars was wearing at the time of a previous arrest.

Upon a search of appellant's house following the arrest of the three robbers, the officers found therein two diamonds, one weighing 4.83 carats and the other 2.70 carats. A jeweler testified that he had at a time before the robbery mounted the two diamonds for the Schepps's and that the two diamonds, which were shown him while testifying, were identical to those mounted by him for the Schepps's. Mr. Schepps also identified the 4.83 carat diamond exhibited to him at the trial as belonging to him or 'that it looks exactly like my diamond' taken from him during the robbery.

When arrested for the Schepps's robbery, Sellars made an oral statement which led to the recovery of part of the jewelry that came from the Schepps's home, and he also implicated Young, Spivey and appellant in the robbery. A .44 Magnum revolver recovered from the person to whom Young had given it for safekeeping was shown to have been the same gun from which the shots were fired in the Schepps's home. The shotgun and masks recovered were also identified as those used during the robbery.

Testifying as a state's witness, Samuel Spivey stated that appellant told him and Young about the $300,000 in money in the Schepps's home; that after he and Young had viewed the Schepps's house, they told appellant that another man was needed for the job and he selected Sellars. Spivey then detailed how the robbery was committed.

On the morning after the Schepps's robbery, Billy Lyons, whose mother operated an apartment house for appellant, saw Young in appellant's office. After Young left, the appellant exhibited to Lyons a man's large diamond ring, saying this 'probably' came from the Schepps robbery. In a division of the loot, Young had received the Schepps diamond ring. After Lyons had given the officers a written statement about what appellant told him and what he saw in appellant's office, the appellant talked with Lyons and his mother. After implied threats against them, the appellant gave them $150 to leave the state. After their departure from the state, Lyons and his mother were located a few days before the instant trial.

The appellant did not testify but called witnesses who testified that they saw and conducted business with the appellant on Saturday preceding the robbery. Hence, during that time, he could not have been planning the robbery with Spivey and Young. Several other witnesses testified that they telephoned the appellant at his home numerous times between 7 P.M. and 11 P.M. on the night of March 11, and never received an answer.

Appellant's wife testified that because of her illness she disconnected the residence telephones about 5 or 5:30 P.M. on March 11 and left them disconnected until the next morning; and that she never heard the appellant, who was at home during this time, talk with anyone by telephone. She identified the two diamonds exhibited to her during the trial as belonging to her and the appellant, or two like them, prior to March 11.

The appellant introduced in evidence the written statement of Samuel Spivey. In it Spivey states that he and two others robbed three persons in a residence on Memorial Drive in Houston, expecting to find $300,000 in money, but after a thorough search and much abuse of these persons, especially of one woman, they were unable to locate the large sum of money; that after leaving the house the three split the money they had taken and he received about $1,100 as his share, and he gave one of the other robbers a ring taken during the robbery.

By specially requested charge the appellant sought to have the jury instructed that if he was present during the robbery of the Schepps's home to return a verdict of not guilty; and that in contemplation of law, he would be deemed...