Huffman v. State
Decision Date | 17 April 1985 |
Docket Number | No. 3-82-408-CR,3-82-408-CR |
Citation | 691 S.W.2d 726 |
Parties | Joe Earle HUFFMAN, Appellant, v. The STATE of Texas, Appellee. (T). |
Court | Texas Court of Appeals |
Terral R. Smith, Schaubhut, Smith & O'Meara, Austin, for appellant.
John B. Henderson, Jr., County Atty., Cameron, for appellee.
Before POWERS, EARL W. SMITH and CARROLL, JJ.
A jury found appellant guilty of murder and assessed punishment at imprisonment for 80 years. Tex.Pen.Code Ann. § 19.02 (1974). Finding no reversible error, we affirm the judgment of conviction.
At approximately 9:00 p.m., December 22, 1979, appellant overpowered the jailer and escaped from the Milam County jail, where he was being held pending trial for aggravated robbery. Appellant took with him the jailer's .38 caliber pistol. With this pistol, appellant later shot and killed Odie Sapp, the security guard at the Royal Seating Company plant in Cameron.
In his first ground of error, appellant contends the evidence is insufficient to support the conviction because the testimony established, as a matter of law, that he shot Sapp in self-defense. To establish self-defense as a matter of law, the evidence must be uncontradicted and no fact issue thereon presented for the jury's consideration. Escamilla v. State, 464 S.W.2d 840 (Tex.Cr.App.1971); Parkman v. State, 149 Tex.Cr.R. 101, 191 S.W.2d 743 (1945). We must, therefore, examine the evidence concerning the shooting of Sapp in some detail.
Appellant testified he spent the night following his escape in a gulley. In the morning, he made his way to the Royal Seating plant. The plant was closed, but Sapp permitted appellant to enter the office to escape the cold, wet weather. Inside the office, appellant and Sapp exchanged small talk for several minutes. Appellant then asked for and received Sapp's permission to use the office telephone.
Appellant further testified that when he turned to face Sapp after hanging up the phone, Sapp was holding what appeared to be a pistol inside his jacket pocket. Sapp told appellant to raise his hands. As appellant did so, Sapp fired his pistol. The bullet grazed appellant's leg and caused a butane cigarette lighter in appellant's pants pocket to explode. Thinking he had been shot, appellant pulled the .38 caliber pistol from his waistband and fired at Sapp. When Sapp seemed to fire again, appellant responded with two more shots. Appellant testified that all the shots were fired within a span of five seconds.
After the shooting stopped, appellant took Sapp's pistol and fled in Sapp's car, but was soon forced to abandon the car when it ran out of gas. Ultimately, appellant made his way to Austin, where he was arrested in a motel room later that day.
Dr. Robert Walter performed the autopsy on Sapp's body. Walter testified he found two bullet wounds, one in the shoulder and one in the center chest. The latter bullet had pierced Sapp's heart, killing him instantly. Walter also found powder burns on Sapp's right hand.
Fred Rymer, chief firearms examiner for the Department of Public Safety, examined the two pistols involved in the shooting. Sapp's pistol was a .22 caliber nine-shot revolver. When discovered in Sapp's abandoned car, the pistol's cylinder contained five live rounds, one expended cartridge and three exploded cartridges. The chambers containing the exploded cartridges also contained traces of metal matching the .38 caliber bullets found in the pistol wielded by appellant. This led Rymer to theorize that one of the bullets fired by appellant had struck the cylinder of Sapp's pistol, causing the explosion of the three cartridges. Because the explosion of the cartridges had frozen the cylinder and left the pistol inoperative, Rymer concluded that the one expended cartridge was probably fired before the explosion of the other cartridges. Rymer was unable to determine how recently this shot had been fired.
Ronald Urbanovsky, a Department of Public Safety chemist, conducted an examination of the clothes worn by Sapp and appellant at the time of the shooting. Urbanovsky testified he found two bullet holes, one of entry and one of exit, in the right front pocket of appellant's jeans. This pocket also contained fragments of a plastic butane cigarette lighter. Urbanovsky found no traces of gun powder residue around the bullet holes in appellant's jeans.
Urbanovsky found bullet holes, but no powder residue, in the shoulders of Sapp's jacket and shirt. The right front pocket of Sapp's jacket contained several holes, and powder residue was found both inside and outside the pocket. Sapp's shirt also had a bullet hole, surrounded by powder residue, in the center chest area.
Based on the absence of powder residue, Urbanovsky concluded that the bullet that grazed appellant's leg and the bullet that entered Sapp's shoulder were fired from a distance in excess of four feet. Based on a comparison of the powder residue found around the bullet hole in the chest area of Sapp's shirt and powder residue samples taken from test firings of the pistol with which appellant killed Sapp, Urbanovsky concluded that the fatal shot was fired from a distance of approximately two feet.
Contrary to appellant's contention, the evidence raised a fact issue as to whether appellant acted in self-defense. Even if it is assumed that a bullet fired from Sapp's pistol grazed appellant's leg, the physical evidence does not necessarily support appellant's claim that Sapp fired the first shot. Moreover, Urbanovsky's testimony that the muzzle of appellant's pistol was only two feet from Sapp's chest when the fatal shot was fired, while all the other shots were fired from a distance exceeding four feet, suggests that after Sapp was wounded and his pistol rendered inoperative, appellant approached and fatally shot him at close range. Because a fact issue was raised, the trial court properly submitted the self-defense question to the jury for determination. Appellant's first ground of error is overruled.
In his second ground of error, appellant contends the trial court erred by permitting appellant to be tried with his hands and feet shackled in view of the jury. Appellant argues the record does not reflect adequate justification for this procedure.
Appellant's trial was held in May, 1980. In March, 1980, appellant was tried and convicted for aggravated robbery, the offense for which he was being held at the time he escaped from the Milam County jail, and sentenced to imprisonment for life. On appeal from this conviction, appellant's sole ground of error was that he was impermissibly shackled during the jury trial. This Court overruled the ground of error and affirmed the judgment of conviction in an unpublished opinion. Huffman v. State, No. 3-82-332-CR(T), Tex.App.--Austin, February 23, 1983, pet. ref'd.
Immediately prior to the selection of the jury in the instant cause, appellant's counsel, who also represented appellant before the same judge at the aggravated robbery trial, moved that appellant's handcuffs and leg chains be removed. After it was agreed by the parties that the evidence concerning the need for shackles adduced at the aggravated robbery trial could also be considered in the...
To continue reading
Request your trial-
Sandoval v. State
...ref'd) (prosecutor's questions to detective asking who committed offenses and where last offense occurred were improper); Huffman v. State, 691 S.W.2d 726, 730 (Tex.App.-Austin 1985, no pet.) (trial court erred in permitting prosecutor to ask deputy sheriff if he felt crime had been committ......
-
Deleon v. The State Of Tex.
...during the course of the investigation, he also asked who committed the offenses and where the last offense occurred. See Huffman v. State, 691 S.W.2d 726, 730 (Tex.App.-Austin 1985, no pet.) (finding court erred in permitting prosecutor to ask deputy sheriff if he felt crime had been commi......
-
Fairow v. State
...be excluded. See Boyde v. State, 513 S.W.2d 588 (Tex.Crim.App.1974); Spaulding v. State, 505 S.W.2d 919 (Tex.Crim.App.1974); Huffman v. State, 691 S.W.2d 726, 730 (Tex.App.--Austin 1985, no pet.). All Rule 701 opinions regarding culpable mental state, however, need not be automatically excl......
-
Saxton v. State
...by courts of appeals, see, e.g.:Cruz v. State, 629 S.W.2d 852, 860 (Tex.App.--Corpus Christi 1982), PDR refused; Huffman v. State, 691 S.W.2d 726, 728 (Tex.App.--Austin 1985), no PDR history; Sebree v. State, 695 S.W.2d 303, 305 (Tex.App.--Houston [1st] 1985), no PDR history; Williams v. St......