Hughes v. State

• Decision Date: 13 April 1994
• Docket Number: No. 70504,70504
• Citation: 897 S.W.2d 285
• Parties: Billy George HUGHES, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 285

897 S.W.2d 285

Billy George HUGHES, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 70504.

Court of Criminal Appeals of Texas.

April 13, 1994.

Certiorari Denied May 15, 1995.

See 115 S.Ct. 1967.

OPINION

MALONEY, Judge.

Appellant was convicted of capital murder, specifically murder of a peace officer. TEX.PENAL CODE ANN. § 19.03(a)(1). This cause originated in Austin County and was transferred to Matagorda County on change of venue. ¹ At the punishment phase of trial, the jury answered the three issues submitted to it in the affirmative and the trial court assessed the death penalty. TEX.CODE CRIM.PROC.ANN. art. 37.071(b)(1), (2), (3). Appeal to this Court is automatic. TEX.CODE CRIM.PROC.ANN. art. 37.071(h).

Appellant raises fifty-five points of error. ² Because appellant challenges the sufficiency of the evidence to support the jury's affirmative answers to the first two issues submitted to it at punishment, a review of the facts is necessary.

On the evening of April 4, 1976, appellant was pulled over by two Department of Public Safety (DPS) Troopers acting in response to a dispatcher's report which described appellant and his car. ³ The dispatcher's report was made pursuant to a report from a local motel where appellant had attempted to check in using a stolen credit card. ⁴ After appellant had pulled onto the side of the road, Trooper Mark Frederick approached the driver's side of appellant's vehicle. Trooper Jack Reichert, while getting out of the patrol car immediately thereafter and approaching appellant's vehicle behind Frederick, heard a muffled shot and saw Frederick lurch to the side. Reichert shot several times at appellant's car as it sped away. Frederick sustained a fatal wound in the shooting encounter.

A vehicle matching the description of the vehicle involved in the shooting incident and containing numerous bullet holes was reported abandoned several miles from the scene of the offense. Inventory of the car's trunk revealed a loaded, sawed off shotgun and numerous other weapons and ammunition.

The ensuing search for appellant took two and one-half days. Arriving by helicopter at a location where a suspect was reportedly sighted, law enforcement officers observed appellant under a tree. Appellant initially pointed his pistol at the helicopter operator, but later threw down his weapon and surrendered. The weapon discarded by appellant was subsequently identified by ballistics experts as the revolver responsible for the death of Trooper Frederick.

In points of error one and two appellant claims the evidence is insufficient under the eighth and fourteenth amendments to the United States Constitution, and under article one, sections thirteen and nineteen of the Texas Constitution, to support the jury's finding that the conduct causing the death of Trooper Frederick was committed deliberately.

A. Federal constitutional grounds

Appellant argues that Trooper Reichert's testimony and indeed the State's theory of the case is "ridiculous, absurd, and inherently incredible" and therefore a rational jury could not find beyond a reasonable doubt that appellant acted deliberately. Appellant argues that his own version of events is consistent with the evidence and according to his version, he did not fire at the deceased deliberately.

In reviewing sufficiency of the evidence on the first submitted issue, ⁵ we determine whether the evidence, viewed in the light most favorable to the verdict, could lead any rational trier of fact to conclude beyond a reasonable doubt that the answer to special issue number one is "yes". See Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2791-92, 61 L.Ed.2d 560 (1979). In making such determination, "we examine whether the jury could rationally find [appellant's] state of mind when [committing the offense] amounted to a 'conscious decision involving a thought process which embraces more than mere will to engage in the conduct.' " Webb v. State, 760 S.W.2d 263, 267 (Tex.Crim.App.1988), cert. denied, 491 U.S. 910, 109 S.Ct. 3202, 105 L.Ed.2d 709 (1989). The jury can accept or reject any or all of a witness' testimony. Hemphill v. State, 505 S.W.2d 560, 562 (Tex.Crim.App.1974). This court does not resolve issues of factual sufficiency as a super or thirteenth juror, re-weighing the evidence; rather, we act only "as a final due-process safeguard ensuring ... the rationality of the factfinder." Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988).

We conclude a rational trier of fact could have believed the State's evidence and disbelieved appellant's version of events. As we stated in Carter v. State, 717 S.W.2d 60, 68 (Tex.Crim.App.1986), cert. denied, 484 U.S. 970, 108 S.Ct. 467, 98 L.Ed.2d 407 (1987), where the defendant asserted that the offense had been an accident, the jury is the "judge of the credibility of the witnesses and the weight to be given their testimony."

Evidence presented at trial, largely through appellant's own testimony, revealed that appellant had numerous reasons to fear being pulled over by DPS troopers, including violation of the terms of his probation for a federal offense. In addition, appellant was driving a rental car that was to be returned over two months earlier and he had replaced the original license plates with plates he claims he "found". Appellant had been traveling cross-country for several months, living off of stolen and forged checks and stolen credit cards. Appellant had just attempted to check into a motel with a stolen credit card, had been questioned about the card, and had fled the motel. Finally, the trunk of appellant's vehicle contained firearms and ammunition, including a sawed-off shotgun. ⁶ Trooper Reichert testified that appellant sat in his car, staring straight ahead as Frederick approached. Reichert further testified he heard only a single muffled gunshot, immediately after Frederick turned to face appellant and just prior to the deceased falling to the ground. Reichert was positive that the deceased had not fired his gun at any time. The State's firearms expert testified that an unusually hard pull, or a deliberate act was required to fire the type of handgun used by appellant in the offense. Appellant fled the scene and upon capture two and a half days later, appeared ready to fire at the approaching helicopter operator. We conclude the evidence, viewed in the light most favorable to the verdict, supports the jury's affirmative answer to the first submitted issue.

B. State constitutional grounds

Appellant argues that even if the evidence is constitutionally sufficient under Jackson, this Court should adopt, in place of the Jackson standard for constitutional sufficiency, a factual sufficiency "against the overwhelming weight of the evidence" test in capital cases under the Texas Constitution. Under this test, appellant asserts, the jury's affirmative answer to the first submitted issue amounts to "cruel and unusual" punishment in light of the "overwhelming evidence" that Reichert's account was false and appellant's account was true. We need not today decide whether or not this Court should adopt a different standard of sufficiency review under the Texas Constitution because even under a factual sufficiency review, the overwhelming weight of the evidence would not dictate a finding that appellant's account was more believable than the State's, so as to find that appellant did not act deliberately. At best, appellant presented some evidence in contradiction of the State's evidence, but it did not amount to overwhelming evidence that the State's case was incredible and not supportive of the verdict. ⁷ Points of error one and two are overruled.

In points of error three and four appellant challenges the sufficiency of the evidence to support the jury's affirmative answer to submitted issue two, ⁸ under the eighth and fourteenth amendments to the United States Constitution, and under article one, sections thirteen and nineteen, of the Texas Constitution.

A. Federal constitutional grounds

In reviewing the constitutional sufficiency of the evidence to support the jury's affirmative finding on the second special issue we ask whether the evidence, viewed in a light most favorable to the verdict, could lead a rational fact finder to conclude beyond a reasonable doubt that there is a probability that the answer to the second submitted issue is "yes". Cantu v. State, 842 S.W.2d 667, 674 (Tex.Crim.App.1992), cert. denied 509 U.S. 926, 113 S.Ct. 3046, 125 L.Ed.2d 731 (1993). Factors to be considered by the jury in its deliberations on the second issue include:

1. The circumstances of the capital offense;

2. The calculated nature of the defendant's conduct;

3. The deliberateness exhibited in the crime's execution;

4. The existence and severity of the defendant's previous offenses;

5. Whether the defendant was acting under duress or the domination of another at the time of the crime;

6. The defendant's age and personal circumstances;

7. Psychiatric evidence; and

8. Character evidence.

Id. at 675.

The subject offense did not involve facts which, alone, would justify an affirmative answer to the second issue. The instant offense was not committed pursuant to the type of calculated prior planning often present in cases where the offense alone is sufficient to support an affirmative finding on the second issue. Moreno v. State, 858 S.W.2d 453, 459 (Tex.Crim.App.1993) (defendant "carefully plotted for months to abduct and kill someone for money"). Nor did the subject offense involve facts that were so shockingly brutal or heinous in nature as to alone support an affirmative finding on the second issue. See Franklin v. Lynaugh, 487 U.S. 164, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988) (victim repeatedly stabbed, robbed, sexually assaulted and left lying in sun for five days).

The State points to the following evidence, in addition to the facts of the subject offense, which it claims supports the...