Indo v. State, 46970

• Citation: 502 S.W.2d 166
• Decision Date: 12 December 1973
• Docket Number: No. 46970,46970
• Parties: John Lamar INDO, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 166

502 S.W.2d 166

John Lamar INDO, Appellant, v. The STATE of Texas, Appellee.

No. 46970.

Court of Criminal Appeals of Texas.

Dec. 12, 1973.

Will Gray, Houston, for appellant.

Carol S. Vance, Dist. Atty., James C. Brough and Erwin Ernst, Asst. Dist. Attys., Houston, Jim D. Vollers, State's Atty., and Buddy Stevens, Asst. State's Atty., Austin, for the State.

OPINION

QUENTIN KEITH, Commissioner.

Appellant was charged with the murder of his mother. The State filed notice of intention to seek the death penalty, but the jury, after finding appellant guilty, assessed his punishment at life imprisonment.

Pursuant to a call, police officers of the City of Houston went to the residence of Mr. and Mrs. William Indo, arriving there shortly after two in the morning of November 30, 1969. Upon arrival, they saw appellant in the front yard of the Indo home and he appeared to be quite excited. He was carrying a rifle in his left hand and told the officers that he had shot at a prowler who had run out of the back door of the residence. When questioned by Officer Maddux, appellant said that he lived in the house with his parents who were asleep at the time.

Mr. Maddux went inside the house and noticed, when he opened a bedroom door, that a man and a woman were lying upon a bed with blood all around. An examination revealed that Mr. Indo had died of gunshot wounds to the head and that Mrs. Indo had likewise been shot in the head, receiving wounds from which she died shortly thereafter. Appellant was then disarmed. When the rifle was unloaded, it was found to contain a six live rounds in the clip, which was designed to hold eleven or twelve rounds.

The rifle was a semi-automatic .22 caliber type which would eject a fired hull and inject a live round in the chamber. The homicide detectives testified as to the finding of six expended .22 caliber hulls, one in the foyer inside the front door and a second in the hall which connected appellant's room with that of his parents. The door to appellant's room was closed and the detectives found a bullet hole therein, apparently fired from inside the room; another shot, also fired from the inside, had struck the patio door; a third shot was found embedded in the north end of the hall.

It was stipulated that if A. D. Hagar were present he could testify that on November 29, 1969, he sold a rifle bearing the serial number of that which appellant had in his possession on the night of the murders.

The firearms expert, after firing test rounds from the rifle appellant had in his possession, was unable to testify that the bullets found at the Indo home were all fired from the same rifle, but the expended bullets had class characteristics which indicated that they could have been fired from appellant's rifle.

The assistant medical examiner testified that Mrs. Indo died from two gunshot wounds above the right ear, one of which destroyed the brain substance for more than half the length of the right half of the brain. Her testimony was that Mr. Indo died from two gunshot wounds entering near the left eye and the left bridge of his nose, and the physical appearance of the second would indicated that the weapon was in close or actual contact with the skull when fired.

Stephen Hoyle, a friend of appellant's, was called by the State, and he told of appellant's calling him about 2:00 a.m., telling that someone had broken into his home, had shot his parents, and had almost shot him. Appellant asked Hoyle to come over as soon as possible. However, when Hoyle arrived at the Indo residence, the police were already there and he was unable to see or talk with appellant.

A fireman on duty in a fire station across the street from the Indo residence told of appellant's coming to the station about two o'clock in the morning, telling him that someone had broken into his home and that he believed that his parents had been shot. A report of this information was made immediately to both the Fire and Police Departments of the City.

Appellant, then a 22-year-old philosophy and psychology student at the University of Texas at Austin, home for the Thanksgiving holidays, testified in his own behalf. He told of prior recent burglaries of his home, others in the neighborhood, and that his mother was upset over such occurrences. After accompanying his mother to Huntsville where they visited his maternal grandmother on November 28, there were further discussions of the burglaries with his mother.

The next day appellant went shopping with his mother and she was along when he bought the rifle he had on the night of the tragedy, as well as a box of fifty shells. After taking his mother home, he went into a wooded area and fired the rifle a number of times. After spending an evening watching television, appellant said that he went to his room about ten in the evening while his parents stayed with the television. He had the rifle in his room, the clip loaded, but no live shells in the chamber. He says that he was awakened about two o'clock in the morning by the sound of gunshots; and, on investigation, saw the silhouette of a man moving in the doorway of his parents' bedroom. Grabbing his newly purchased rifle, he said that he fired at the man as the latter ran out the door.

He also testified that he fired through the glass door as he saw a man running across...