Jordan v. State

• Decision Date: 16 April 1986
• Docket Number: No. 69281,69281
• Citation: 707 S.W.2d 641
• Parties: Clarence Curtis JORDAN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 641

707 S.W.2d 641

Clarence Curtis JORDAN, Appellant, v. The STATE of Texas, Appellee.

No. 69281.

Court of Criminal Appeals of Texas En banc.

April 16, 1986.

Mary Moore, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty. and Eleanor M. McCarthy, Terry Wilson & Keno Henderson, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for capital murder. V.T.C.A. Penal Code, Sec. 19.03(a)(3). After finding appellant guilty the jury returned affirmative findings to the special issues under Art. 37.071(b), V.A.C.C.P. Punishment was assessed at death.

Appellant was convicted under an indictment which charged that appellant "on or about October 14, 1977 did then and there unlawfully while in the course of committing and attempting to commit aggravated robbery, intentionally cause the death of Joe L. Williams, hereafter styled the Complainant, by shooting the Complainant with a gun."

At the outset appellant contends the "evidence is insufficient to sustain an affirmative answer to special issue number two dealing with future dangerousness of appellant." See Art. 37.071, V.A.C.C.P.

In light of our holdings that the circumstances of the capital offense presented at the guilt stage can be considered by the jury, we first review that evidence in evaluating appellant's contention. See Andrade v. State, 700 S.W.2d 585 (Tex.Cr.App.1985); Hawkins v. State, 660 S.W.2d 65 (Tex.Cr App.1983); Mitchell v. State, 650 S.W.2d 801 (Tex.Cr.App.1983), cert. denied 464 U.S. 1073 104 S.Ct. 985, 79 L.Ed.2d 221.

The testimony of George Harden reflected that on October 14, 1977 he was the manager of a Rice Food Market located at 8610 South Park, Houston. Appellant entered his office at the store on that date and after asking for a job application drew a pistol from his shirt and put the gun "between my eyes." In response to appellant's request, Harden gave appellant his car keys but told him that his car was in the shop. Appellant then told Harden to get up, "come to the front and give him the money." An employee, Joe Williams, entered the office and appellant pushed Williams into Harden. Appellant asked Williams to "sit down, get up, sit down, get up." After Williams stated he did not own a car after appellant had demanded his keys, appellant shot Williams in the right part of his chest. Appellant then directed Harden to go to the front and get him the money. En route to the front of the store another employee, Johnny Taylor, was encountered. Appellant put the gun behind his ear and ordered him to go to the front with Harden. Upon approaching the "courtesy booth" where the money was kept, Harden told the employee in the booth, Geraldine James, to give appellant the money. As appellant would receive bundles of bills from the booth he would order Harden to place them in a sack for him. Appellant told Harden that he was going with him, but when appellant took off running, Harden managed to get behind a drink machine. During the time the money was being passed out of the booth to appellant, "he was standing there waving the gun" and telling the people in the store "to all go to the back of the store and not come back."

Ike Warner testified that he and Laura Frank were en route to an Eckerd's Drug Store in his car in the same shopping center in which the Rice Food Market in question was located on October 14, 1977. A man identified as appellant jumped in the car with a gun in his hand and directed Warner to drive away. Appellant directed Warner as to where to go by telling him "to turn here, turn there." Appellant was carrying a money sack. After driving "five or ten minutes" appellant directed Warner to stop, appellant got out and told Warner "to take off and don't look back."

A number of employees identified appellant as the person who was the robber at the store.

Chief Medical Examiner Joseph Jachimczyk testified that Williams, a forty-year-old black male, died as a result of a .38 caliber gunshot wound to the chest.

Appellant did not offer any evidence at the guilt stage of the trial.

At the punishment stage of the trial a manager and an assistant manager of Kroger grocery stores testified that appellant conducted robberies with a gun at their stores on May 10, 1977 and October 11, 1977.

Elzie Thomas, a Rice store manager, related details of a robbery that appellant conducted at his store September 12, 1977. While Thomas did not see a gun he was forced to drive appellant in accordance with appellant's directions until appellant got out of the car.

Christopher Kress, another Rice store manager, testified as to the details of a robbery at his store on February 14, 1978. Appellant showed him his gun was loaded by spinning the chamber and saying, "You know what this gun can do." Appellant took a car belonging to Kress upon leaving the store.

The bailiff at appellant's first trial, ¹ Grady Dukes, testified that as he was taking appellant to the rest room on August 8, 1978, appellant produced a sheath of some kind and threatened Dukes, "I am going to kill you, you M______ F______." During the struggle that ensued, appellant tried to take Duke's gun. The struggle ended when appellant was tackled by the trial judge.

Dr. Richard Carlson, a witness for appellant, testified that in a controlled environment and with treatment of psychotropic drugs appellant would improve and not be dangerous.

Dennis Milam, a psychiatric social worker, testifying on behalf of appellant, stated that he had seen improvement in appellant while he was in jail.

In the instant case appellant entered Harden's office under the guise of wanting a job application and shot Williams without any provocation. After taking money from the store he took an automobile at gunpoint and kidnapped its occupants until he could facilitate his escape. The record is devoid of any evidence which would reflect that appellant was acting under any other person's direction or influence. At the punishment stage of the trial evidence was admitted of four other robberies. In three of the robberies, a gun was exhibited. In addition there was evidence of an attack and threat upon a court bailiff.

We find the evidence sufficient to support the jury's affirmative answer to the question of whether there is a probability that appellant would commit criminal acts of violence in the future which would constitute a continuous threat to society.

In his second ground of error appellant contends that the evidence is insufficient to support a verdict of guilty of capital murder because the evidence presented on one of the elements of robbery was insufficient and not proven beyond a reasonable doubt.

The thrust of appellant's argument is that the State has failed to show that the property taken in the robbery was taken without the owner's effective consent in that ownership of the property was not shown.

V.T.C.A. Penal Code, Sec. 1.07(a)(24) defines owner, " 'owner' means a person who has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor." Sec. 1.07(a)(28), supra, defines possession, " 'Possession' means actual care, custody, control or management."

The indictment did not allege the ownership of the property taken. Appellant did not file a motion to quash seeking such information. Ownership of property need not be alleged in a capital murder indictment which alleges the murder occurred during the course of a robbery. Livingston v. State, 542 S.W.2d 655 (Tex.Cr.App.1976).

The definition of "owner" in the court's charge tracks the definition given in the statute.

Harden, at the outset of the testimony, had identified himself as store manager on the date in question. Appellant calls our attention to the following testimony of Harden under direct examination:

"Q. Were you in charge of the store? Did you have care, and control of that money?

"A. I guess you could say to a certain extent. My job was to see that the money got from the cash register into the booth, and once it got into the booth, the courtesy booth operator was there in charge of it with exception of a case like that."

Appellant specifically directs our attention to Harden's statement, "... once it [the money] got into the booth, the courtesy booth operator was there in charge of it ...".

While Harden's testimony leaves something to be desired from the standpoint of clarity, he qualified the foregoing quoted statement by saying "with [the] exception of a case like that."

Obviously Harden considered that he had control and managerial authority over the store and its money in a "case like that" since he directed the booth operator to turn the money over to appellant. See Cross v. State, 590 S.W.2d 510 (Tex.Cr.App.1979). Proof of ownership may be made by circumstantial evidence, just as any other issue in a criminal case. Taylor v. State, 508 S.W.2d 393 (Tex.Cr.App.1974); Ceasar v. State, 661 S.W.2d 256 (Tex.App. [1st Dist.] 1983).

We conclude that there was sufficient evidence before the jury from which it could conclude beyond a reasonable doubt that Harden was the owner of the money taken.

Appellant next contends "it was error to deny the motion requesting a medical examination of ap...