Jackson v. State, 48900

• Decision Date: 20 November 1974
• Docket Number: No. 48900,48900
• Citation: 516 S.W.2d 167
• Parties: John Craner JACKSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 167

516 S.W.2d 167

John Craner JACKSON, Appellant, v. The STATE of Texas, Appellee.

No. 48900.

Court of Criminal Appeals of Texas.

Nov. 20, 1974.

Rehearing Denied Dec. 18, 1974.

James P. Finstrom and Kerry P. Fitzgerald, Dallas (both Court-appointed), for appellant.

Henry Wade, Dist. Atty., W. T. Westmoreland, Jr., Asst. Dist. Atty., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This appeal arises out of a conviction for the offense of murder with malice. After returning a verdict of guilty, the jury assessed appellant's punishment at confinement in the Texas Department of Corrections for life.

Some of the more salient facts must be detailed before considering appellant's grounds of error in view of the extremely complex nature of the case. Jan Hein and Patsy Shelton, two employees of Memorex Corporation, opened said corporation's office in Farmers Branch in Dallas County about 8:30 a.m. on August 23, 1971. Upon entering the office, they discovered what were later shown to be bloodstains on the walls, carpet and furniture. At approximately 9:45 a.m. Police Officer Martin Brown of Farmers Branch began an investigation which culminated about 7:30 p.m. that same day with the discovery of the body of Billie C. Barnes. Barnes' body was discovered locked in the truck of his car which had been left in the parking area at Love Field Airport. Investigators from the Dallas County Sheriff's Office later located a fingerprint inside the door handle positioned immediately to the left of the driver's seat. This fingerprint was identified by James Cron, a fingerprint expert employed at the Dallas County Sheriff's Office, as being made by appellant's left thumb. Appellant was arrested some seven months later in California and returned to Dallas for trial.

At trial the witness Robert Overton, a Memorex employee then in the process of moving to California to begin new employment, testified that he was present at the Memorex office with appellant (then known to him as Larry Patterson) on the night of August 22, 1971. While they were both present, the deceased (Barnes) arrived and entered Overton's office. After a brief discussion, Overton left his office and walked some thirty-five or forty feet down a hallway when he heard a dull, metallic sound and then heard the deceased say, 'Bob, you can't do that to me.' Overton returned to his office and saw Barnes lying on the floor bleeding profusely from his head. After helping appellant load the body into Barnes' automobile, Overton assisted appellant in an effort to clean up the bloodstains. During this time appellant remarked that, 'He (Barnes) must be Sicilian. He had a hard head.' Overton then accompanied appellant to the airport where, after they had abandoned the deceased's automobile, he boarded a flight to San Francisco. Appellant remained in Dallas until the following day.

Through the testimony of Overton and of another witness, Mark Enright, the State proved that appellant was hired to kill Barnes by a Eugene Oliver. Oliver was the president of Memorex Corporation, which was then engaged in attempting to market a computerized device designed to improve a person's golf game. This product was to be promoted by a prominent professional golfer who had allowed his name to be used to promote the enterprise. For a number of reasons not here important, Memorex was in dire financial straits. During this time Barnes had threatened to persuade the professional golfer to remove his name from the sales promotion. Barnes, a former stockholder and executive of Memorex, was still covered by a Memorex 'key man' life insurance policy in the amount of $200,000. In addition, there was considerable personal animosity between Oliver and Barnes which had resulted in threats by Barnes against Oliver, his family and his home.

This situation provoked Oliver, who also was indicted for this murder but tried separately, to inquire of Enright if he knew someone who would kill Barnes for him. Subsequently, Enright introduced appellant to Oliver. Enright testified that he did not believe Oliver was capable of committing such a crime and that he introduced appellant to him in order to gain time to dissuade him. The trial court submitted to the jury the fact issue of whether Enright was an accomplice witness, but declined to charge that he was an accomplice witness as a matter of law.

Overton returned to Dallas from San Francisco shortly after the murder but was not prosecuted for his role in the crime (luring Barnes to the Memorex offices and participating in the coverup) in return for his cooperation with the police and prosecutors. The trial court charged that he was an accomplice witness as a matter of law.

At the conclusion of the State's case, appellant took the witness stand in his own behalf and admitted killing Barnes, but he claimed that he did so in self-defense. Appellant testified that he had gone to the Memorex office to persuade Barnes to refrain from blackmailing Oliver. According to appellant, Barnes became violent and attacked him, whereupon he struck Barnes on the head first with a three-hole paper punch and then with a plastic satchel containing a length of pipe. Appellant had brought the satchel or plastic bag containing the pipe with him due to a 'premonition that there might be trouble.' Appellant testified that all blows struck by him were in self-defense.

Appellant's first ground of error contends that there was insufficient evidence to corroborate the accomplice witness testimony. In determining the sufficiency of the corroboration, it is necessary to eliminate the evidence of the accomplice witness and examine the remaining evidence to ascertain if there be inculpatory evidence or evidence of incriminating character which tends to connect the appellant with the commission of the offense. See, e.g.: Rodriquez v. State, 508 S.W.2d 80 (Tex.Cr.App.1974); Cherb v. State, 472 S.W.2d 273 (Tex.Cr.App.1971); Rogers v. State, 461 S.W.2d 399 (Tex.Cr.App.1970). See also: Article 38.14, Vernon's Ann.C.C.P. However,

'The law forbidding a conviction upon the uncorroborated testimony of an accomplice does not demand that there be direct evidence pointing to the accused as the offender, but merely requires that there be 'other evidence tending to connect the defendant with offense committed." Minor v. State, 108 Tex.Cr.R. 1, 299 S.W. 422 (1927). Quoted with approval in Edwards v. State, 427 S.W.2d 629 (Tex.Cr.App.1968), and Miller v. State, 507 S.W.2d 203 (Tex.Cr.App.1974). In addition to holding that cricumstantial evidence is sufficient to corroborate an accomplice witness, we have also held, 'It is the combined cumulative weight of the evidence which supplies the answer to the test.' Chambers v. State, 508 S.W.2d 348 (Tex.Cr.App.1974).

Looking then to the corroborating evidence, we find appellant's fingerprint on the inside door handle next to the driver's seat of the deceased's car (the trunk of which contained his body). There is also evidence tending to prove flight by appellant after commission of the offense. ¹ Appellant left Dallas the day following the night Barnes was murdered. He then remained in California for seven months where, although he used his own name, he made no attempt to contact his family or relatives, failed to obtain a new license plate for his automobile or to use gasoline credit cards which could reveal his whereabouts. In Edwards v. State, 427 S.W.2d 629 (Tex.Cr.App.1968), we held that such an 'immediate journey . . . may reasonably be considered as flight,' Edwards at p. 633.

Finally, there is appellant's judicial confession as to the killing, although he testified it was not murder because he had acted in self-defense. It is well established that appellant's admission or confession, under most circumstances, will be sufficient to corroborate the accomplice witness. We reject any contention that the appellant's testimony must be excluded in ascertaining the sufficiency of the evidence to corroborate the accomplice witness because he testified he acted in self-defense. We conclude the evidence was clearly sufficient to corroborate the accomplice witness without any consideration of the witness Enright's testimony.

Next, appellant complains that the trial court erred in submitting to the jury the fact issue of whether the witness Mark Enright was an accomplice witness because, according to appellant, he was an accomplice witness as a matter of law. Although Enright introduced appellant and Eugene Oliver, after Oliver inquired about someone to kill Barnes, Enright also testified that he made such introduction in an effort to gain time to convince Oliver not to go through with the crime. His testimony was that he did not willingly participate in the crime. In Allen v. State, 461 S.W.2d 622 (Tex.Cr.App.1970), we held:

'. . . where there is any doubt as to the fact that a given witness is an accomplice witness and such fact issue is submitted to the jury, such procedure is sufficient even though the evidence appears largely to preponderate in favor of the fact that such witness is an accomplice as a matter of law.' Allen at p. 625. Accord: Dears v. State, 506 S.W.2d 606 (Tex.Cr.App.1974); Zitterich v. State, 502 S.W.2d 144 (Tex.Cr.App.1973); Van Buskirk v. State, 492 S.W.2d 279 (Tex.Cr.App.1973); Lopez v. State, 92 Tex.Cr.R. 97, 242 S.W.2d 212 (1922).

Under the holdings of these cases, we cannot say that the trial court erred in refusing to charge that Enright was an accomplice witness as a matter of law.

Ground of error number three also pertains to the court's charge. Appellant contends that he was entitled to a charge on the lesser included offense of aggravated assault. This court has held that in cases where death was caused by a weapon that was not deadly per se or deadly in the manner of its use and where the evidence raises a lack of intent to kill the appellant is then entitled to a...