Johnson v. State

• Decision Date: 16 December 1992
• Docket Number: No. 70713,70713
• Parties: Gary JOHNSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 527

853 S.W.2d 527

Gary JOHNSON, Appellant, v. The STATE of Texas, Appellee.

No. 70713.

Court of Criminal Appeals of Texas En Banc.

Dec. 16, 1992.

Rehearing Denied March 17, 1993.

Roy E. Greenwood, court appointed on appeal, Austin and Hal Ridley, on appeal only, Huntsville, for appellant.

Frank Blazek, Dist. Atty., Timothy J. Ferreri, Asst. Dist. Atty., Huntsville, and Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

BENAVIDES, Judge.

Appellant was convicted of Capital Murder for intentionally killing James Hazelton and Peter Sparagana during the same criminal transaction. Tex.Penal Code Ann. § 19.03(a)(6)(A) (West 1990). After the jury returned an affirmative answer to both special issues submitted under Tex.Crim.Proc.Code Ann. Art. 37.071(b) (West 1988), the judge assessed a sentence of death. The judgement of the trial court is affirmed. ¹

I.

On the evening of April 30th, 1986, Bill and Shannon Ferguson were in their pasture waiting on a mare to foal. Sometime before 10:00 p.m. they observed a truck heading in an eastward direction pull over near a gate of the adjacent Triple Creek Ranch. They noticed someone get out of the truck, heard a chain rattle on the gate, and observed someone from the truck go through the gate and onto the ranch. The truck's headlights had been turned off, but Mrs. Ferguson noticed that when the driver of the truck applied the brakes, an unusual brake light pattern appeared. Concerned there was a burglary in progress, Mrs. Ferguson ran to her house to call the ranch managers, the Hazeltons. Other evidence showed that the original chain had been cut and a new lock had been placed on the gate.

Fifteen minutes later, the Fergusons observed Jim Hazelton's truck appear at the same gate on Highway 30. Unable to enter that gate, Hazelton backed up and entered the Ranch from another location. Eventually, the Fergusons heard Hazelton's truck stop. Upon hearing a gunshot, Mrs. Ferguson rushed to her house to phone Mrs. Hazelton and the police.

While Mrs. Ferguson was calling the police, Mr. Ferguson remained in the pasture watching to see if anyone exited the gate. Several minutes after the first gunshot, Mr. Ferguson heard several shots fired in rapid succession. After a brief silence, Mr. Ferguson heard someone plead for his life. The pleas were silenced by two more shots.

When the police arrived, they discovered the bodies of Jim Hazelton and Peter Sparagana, Hazelton's brother-in-law, dead from bullet wounds fired at close range.

At trial the State presented damaging evidence from three of appellant's brothers--Tracey, Randy, and Ricky. Tracey Johnson testified that appellant came to Missouri during the fall of 1986, returned Tracey's .44 caliber pistol and asked him to destroy it because the pistol had been involved in a double murder in which appellant and their brother Terry had participated.

During that same visit to Missouri, Ricky Johnson testified that appellant was in possession of the .44 caliber pistol; that appellant admitted killing one man with the gun; and that appellant and Terry had also killed a second man. A state firearms examiner later identified a bullet fragment retrieved from Hazelton's body as being fired from the same .44 caliber pistol appellant returned to Tracey.

Randy Johnson also testified that appellant told him of the events that transpired at the Triple Creek Ranch. Appellant told Randy that he and Terry were out at the Triple Creek to steal something when two men "got the drop on them." While Terry distracted them, appellant was able to shoot one of the men. Appellant and Terry caught the other man, brought him back to the barn, made him kneel, and tied his hands behind his back. While the second man plead for mercy, appellant shoved the gun in his mouth. The medical examiner later testified that the second man died from a contact bullet wound to the mouth.

Appellant explained the reason for killing the two men to his brother Randy: "Dead men don't talk."

II.

In the first point of error, appellant contends that he was entitled to an accomplice-witness instruction under Tex.Code Crim.Proc.Ann. Art. 38.14 (West 1979):

A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.

Appellant requested the instruction because of the testimony of Terry Johnson, appellant's brother, who was indicted for the same offense. As part of a plea agreement with the state, Terry Johnson had agreed to testify against his brother. The state, however, decided their evidence was complete without Terry's testimony and chose not to call Terry to the witness stand. During defense's case-in-chief, appellant attempted to inculpate Terry by calling him to testify. On direct examination by defense counsel Terry testified as to his participation in the robbery and inculpated appellant in the killing of Hazelton and Sparagana.

Appellant recognizes prior case law which indicated that when an accomplice is called by the defense to testify on behalf of the defense, no accomplice-witness instruction is required. But appellant argues the rationale for such a rule was based on the old "voucher" rule which is no longer in effect, and thus appellant was entitled to the instruction. See Russeau v. State, 785 S.W.2d 387 (Tex.Crim.App.1990). However, in Selman v. State, this Court reaffirmed the "established principal in this State that testimony elicited from a witness called by the accused and offered by the accused is not accomplice-witness testimony which must be corroborated as contemplated under Article 38.14." 807 S.W.2d 310, 311 (Tex.Crim.App.1991); see also Brown v. State, 576 S.W.2d 36, 42 (Tex.Crim.App.1979); Cranfil v. State, 525 S.W.2d 518, 520 (Tex.Crim.App.1975); Aston v. State, 656 S.W.2d 453, 456 (Tex.Crim.App.1983) (trial court erred in giving accomplice-witness instruction where witness was called by defense). The very language of the rule illustrates its inapplicability to appellant's cause. The statute begins, "A conviction cannot be had upon the testimony of an accomplice ..." supra. But the State did not rely on the accomplice's testimony but closed its case-in-chief without calling him. It did not seek a conviction based upon the testimony of Terry Johnson. The statute provides for situations where a conviction is based in some part on the testimony of an accomplice. In this case, the witness was called by the defense, and his testimony as to the events of the crime was elicited by the defense. While the State did cross-examine the witness concerning his testimony, the witness had already testified as to the events of the crime. See Selman, supra (Miller, J. concurring opinion). As we opined in Selman, "accomplice-witness testimony must be corroborated and the jury so instructed only when the State calls the witness and seeks to rely on such witness's testimony." 807 S.W.2d at 311. This is not the type of evidence which must be corroborated under the statute. No accomplice-witness instruction was required.

Point of error three is related to point of error one. Appellant complains that because the trial court failed to give an accomplice-witness instruction during the guilt-innocence phase, the evidence is insufficient to support the jury's affirmative finding to special issue number one during the punishment phase. Appellant contends, among other things, that if the testimony of Terry Johnson was excluded the remaining evidence is circumstantial as to the issue of deliberateness and the jury was left in the position of guessing how the actual deaths occurred. But since all of his arguments are predicated on the contention that the trial court improperly failed to instruct the jury on the accomplice-witness rule during the guilt-innocence phase, we reject appellant's arguments.

We find there is sufficient evidence to find appellant acted deliberately. The facts at the guilt stage of the trial alone can often be sufficient to support the affirmative finding of the jury to the special issues at the penalty stage of the trial. Williams v. State, 773 S.W.2d 525, 538 (Tex.Crim.App.1988), cert. denied, 493 U.S. 900, 110 S.Ct. 257, 107 L.Ed.2d 207 (1989). "A jury must find 'a moment of deliberation and the determination on the part of the actor to kill' before it is justified in answering 'yes' to special issue number one." Kinnamon v. State, 791 S.W.2d 84, 95-96 (Tex.Crim.App.1990). The determination of deliberateness must be found from the totality of the circumstances. Williams, 773 S.W.2d at 539; Cannon v. State, 691 S.W.2d 664, 677 (Tex.Crim.App.1985), cert. denied, 474 U.S. 1110, 106 S.Ct. 897, 88 L.Ed.2d 931 (1986). In determining the sufficiency of the evidence, the evidence must be viewed in the light most favorable to the verdict. Dunn v. State, 819 S.W.2d 510, 513 (Tex.Crim.App.1991); Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

Hazelton died as a result of gunshot wounds to the head, a contact type gunshot wound to the face into the neck, and a graze wound to the right shoulder. The medical and firearms examiner identified the fragments retrieved from the neck of Hazelton as being fired from the .44 caliber pistol retrieved from appellant's brother Tracey. There were also .38 caliber fragments retrieved from the gunshot wound to the head. The medical examiner's testimony and the evidence of the position of the body was consistent with someone being shot at point blank range in the face, and then when Hazelton was lying on the ground he was again shot in the head by someone standing over the body. The contact wound to the face could illustrate deliberateness.

But in addition to the wounds, Terry Johnson testified during defense's direct that he told appellant someone...