Horne v. State, 63221

• Decision Date: 12 November 1980
• Docket Number: No. 63221,63221
• Citation: 607 S.W.2d 556
• Parties: William Evans HORNE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 556

607 S.W.2d 556

William Evans HORNE, Appellant, v. The STATE of Texas, Appellee.

No. 63221.

Court of Criminal Appeals of Texas, En Banc.

Nov. 12, 1980.

J. R. Musslewhite, Houston, on appeal only, for appellant.

John B. Holmes, Jr., Dist. Atty., Calvin A. Hartmann and Dennis Cain, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

CLINTON, Judge.

This is an appeal from conviction for capital murder and, the jury having answered the issues affirmatively, the death penalty.

I.

The essence of the State's evidence comes from two witnesses.

On November 21, 1977, Linda Tomlinson was working at a pharmacy when at about 11:30 a. m. Horne and another man, later identified as Allen Cummings, entered and asked to look at some turquoise jewelry. Horne took a bracelet, put it in his pocket and pulled out a gun. Cummings grabbed Tomlinson and told her to stand still and "nobody would get hurt." Horne then walked around the counter into the back room where the deceased, Don Hatchell, the pharmacist, was working. Tomlinson then heard several shots. Cummings let go of her and ran out the door. She then saw Horne crawl out from behind the counter toward the door. She later found Hatchell lying dead in the back room.

Michael Brock testified that he, Horne, Cummings and Cummings' brother David went to a bar on the morning of November 21, 1977 and discussed acquiring drugs by robbery. Brock then drove the three men to the pharmacy. Allen Cummings and Horne went into the store. Brock stated that he saw the gun in Horne's hand but that Horne stuck it somewhere when he went into the pharmacy. Brock then heard gunshots. Allen Cummings ran out of the pharmacy yelling that Horne had been shot. Horne came out and fell down in front of the store. The Cummings brothers picked him up, put him in the car and took him to the hospital.

Through investigating officers it was established on cross examination that a bracelet such as that described by Tomlinson was not found at or around the crime scene or in the jacket or among personal effects of appellant inventoried by them at the hospital.

Appellant presented Allen Cummings and himself.

Horne testified that the four never discussed robbing the pharmacist. Their sole intent was to "bust some prescriptions," i. e., to write a prescription on a stolen prescription pad by forging a doctor's signature and handwriting. Horne testified that although he took the gun into the pharmacy he did not pull it out of his pocket when he was talking to Tomlinson, nor did he put any jewelry in his pocket. He stated that he approached Hatchell to ask about filling prescriptions. ¹ Hatchell was talking on the phone when Horne went into the back room. Hatchell turned around, saw Horne, pulled out a gun and shot Horne twice. ² Horne stated that he then pulled the gun out of his pocket and shot. Horne said that he did not aim the gun and that he fired the gun to prevent Hatchell from killing him. Hatchell then shot him a third time in the groin. Horne crawled out the door and made his escape.

Allen Cummings also testified that the four men never discussed robbing the place but, instead, talked about passing a forged prescription. Cummings also stated that he never saw Horne pull out a gun, either in front of Mrs. Tomlinson or on his way to the back room. He stated that he never told Tomlinson to stand still. He further denied planning to steal or stealing any jewelry.

Horne argues that the trial court erred in overruling his objection to the charge because it contained no instruction on self-defense. We must agree.

Rodriquez v. State, 544 S.W.2d 382 (Tex.Cr.App.1976), Warren v. State, 565 S.W.2d 931 (Tex.Cr.App.1978) and Randle v. State, 565 S.W.2d 927 (Tex.Cr.App.1978) apply the long-settled rule that was well stated in Gavia v. State, 488 S.W.2d 420, 421 (Tex.Cr.App.1972):

"In determining whether any defensive charge should be given, the credibility of evidence or whether it is controverted or conflicts with other evidence in the case may not be considered. When a defensive theory is raised by evidence from any source and a charge is properly requested, it must be submitted to the jury. It is then the jurors' duty, under the proper instructions, to determine whether the evidence is credible and supports the defense."

The testimony of appellant and Allen Cummings, even though disputed, raises the issue of self-defense, and the injury, harm and damage that the State fails to perceive flow from denial of the right to have his legal defense determined by the jury rather than the trial court. ³ Warren v. State, and Randle v. State, supra, and cases cited therein; Rodriquez v. State, supra; cf. Sutton v. State, 548 S.W.2d 697, 699 (Tex.Cr.App.1977).

Accordingly, we hold that the trial court committed reversible error in refusing the submission of the issue of self-defense to the jury for a fact finding, upon appellant's timely request therefor. Thus, the judgment of conviction must be reversed.

II.

In determining that the Texas capital murder procedure is constitutionally viable on its face, a majority of the Supreme Court of the United States predicated that conclusion upon two factors: first, that the special statutory issues ⁴ submitted to the jury at punishment, give that fact finding body adequate guidance enabling constitutional performance of its sentencing function; and, in the words of the Court, secondly,

By providing prompt judicial review of the jury's decision in a court with state-wide jurisdiction, Texas has provided a means to promote the even-handed, rational, and consistent imposition of death sentences under law. Because this system serves to assure that sentences of death will not be 'wantonly' or 'freakishly' imposed, it does not violate the Constitution. Furman v. Georgia, 408 U.S. at 310, 92 S.Ct. at 2762 (Stewart, J., Concurring). Accordingly, the judgment of the Texas Court of Criminal Appeals is affirmed. ⁵

Jurek v. Texas, 428 U.S. 262, 276-277, 96 S.Ct. 2950, 2958, 49 L.Ed.2d 929 (1976).

Thus, recognizing our responsibility in assuring the evenhanded application of the ultimate punishment, I turn to consideration of the evidence supporting the assessment of the death penalty, and factors extant in mitigation thereof. Id.; see also Vigneault v. State, 600 S.W.2d 318 (Tex.Cr.App.1980); Ferguson v. State, 573 S.W.2d 516 (Tex.Cr.App.1979); Villarreal v. State, 576 S.W.2d 51 (Tex.Cr.App.1978); Bodde v. State, 568 S.W.2d 344 (Tex.Cr.App.1978); Duffy v. State, 567 S.W.2d 197 (Tex.Cr.App.1978).

The State's evidence adduced at the punishment phase of trial consisted of the testimony of a sole witness: Jim Lowe, an eighteen year old "licensed minister out of Lakewood International."

According to Lowe, who testified he worked part-time at Maxey Pharmacy, was a student at Houston Baptist University and was "presently engaged in the ministry," he knew appellant's reputation for being a peaceful and law abiding citizen was bad. This knowledge was gleaned from "a girl named Debbie" who had "gotten" some unidentified drugs from appellant, the witness believed, "about a year ago." The witness claimed that his main contacts in his ministry were "street people" and that he had seen appellant once, but did not remember when or where. After this testimony, the State rested.

Appellant again took the stand in his own behalf. Appellant admitted that he had in the past given or sold marihuana to others, but denied he had done so in the preceding three years; he further denied that he had ever sold heroin, "pills" or any other hard drug.

The record establishes that appellant had never before been convicted of any felony or misdemeanor offense and in fact, had no police record at all. Appellant testified that the instant offense was the only "act of violence (he had) ever committed."

Appellant also detailed his employment record starting when he was sixteen years old. Part of that record consisted of his more than four year tour of duty with the United States Navy in which he was enlisted as an "Airman Apprentice I, Aviation." He served an eight month tour on an aircraft carrier which took him to the coast off Viet Nam. After his apparently honorable discharge from the Navy at the rank of E-3 in 1975, appellant worked with a contractor building houses, then returned to the merchant marines, his occupation prior to entry into the Navy. At the time of commission of the instant offense, appellant had been back in Houston after a voyage, for less than two weeks. He was making approximately $1200.00 per month and had money saved.

The evidence indicates that at the time of the offense, the 23 year old appellant had been "partying" with the Cummings brothers for several days in celebration of his return home. Appellant and Allen Cummings had, on the morning of the offense, ingested the last of the latter's "quaaludes," a powerful hypnotic drug, the effect of which is exacerbated by alcohol. Later, they drank beer and "shots" of "Wild Turkey."

The night before, while appellant and the Cummings brothers were away from their apartment to pick up dates, the apartment was burglarized. Upon their return, and this discovery, David Cummings borrowed the pistol which would fatally wound the deceased the next day. Allen Cummings admitted his theft and possession of a prescription pad from his doctor's office, and conceded that it was his idea to go into the pharmacy and "bust" prescriptions on the day of the offense. Cummings testified that he had never known appellant to carry a firearm, or to own one. Appellant testified that he did not own such a weapon.

According to appellant and Allen Cummings, they set out the morning of the offense with David Cummings, to confront the person suspected of burglarizing the apartment the preceding night. As they got into Michael Brocks' car, David asked whether someone had gotten the pistol...