Keeton v. State

• Decision Date: 15 April 1987
• Docket Number: No. 69639,69639
• Citation: 724 S.W.2d 58
• Parties: Perry KEETON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 58

724 S.W.2d 58

Perry KEETON, Appellant, v. The STATE of Texas, Appellee.

No. 69639.

Court of Criminal Appeals of Texas En Banc.

April 15, 1987.

William L. Smith, Corsicana, for appellant.

Patrick C. Batchelor, Dist. Atty., Corsicana, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON REHEARING ON THE COURT'S OWN MOTION

MILLER, Judge.

Rehearing is granted on our own motion. Langford v. State, 578 S.W.2d 737 (Tex.Cr.App. 1979). Our prior opinion is withdrawn.

Appeal is taken from a conviction for capital murder. V.T.C.A. Penal Code, § 19.03. After finding appellant guilty, the jury returned affirmative findings to the special issues under Art. 38.071(b), V.A.C.C.P. Punishment was assessed at death. Appellant brings six points of error. We will abate the appeal after answering appellant's contentions that may be resolved from the record before us.

In his fourth point of error, appellant contends that there was insufficient evidence presented to support the jury's finding that appellant would commit criminal acts of violence in the future which would constitute a continuing threat to society. In order to address this contention, we must review the facts of the offense and the evidence presented at the punishment stage of trial.

The record shows that on December 21, 1985, appellant, who had just turned 25 years of age, walked into the Thrift Mart Grocery store in Corsicana, Navarro County, wearing a green army jacket. He asked the clerk if the store carried fly spray. After the clerk, Carolyn Dechaume, and the store owner, Geraldine Robinson, directed him to where the spray was displayed, appellant turned as though he were going to get the spray. He then turned back, took one step, and fired a gun at the clerk. She fell to the ground, ¹ then appellant fired at the store owner. Next, appellant went behind the cash register and went through the items on a shelf under the register. He retrieved a second gun and the victims' purses, and left the store.

Shortly thereafter, appellant walked back into the store. He "kind of peeped over the counter and said 'What happened here?' " In order not to excite appellant, Robinson responded, "Oh, nothing." Appellant then turned and ran out of the door.

Vernon Hensley, a Corsicana police officer, was on patrol at the time of the killing. He observed appellant running from the front of the store. When appellant saw the officer, he ran toward Hensley and stated that there were two men inside the store, and that something was wrong. Hensley went to investigate. Robinson said that a black man wearing a green army jacket was involved. Then, appellant ran away from the building.

Warran Loscuito, another Corsicana police officer, apprehended appellant, who was found hiding in a field. Appellant told Loscuito that his car had broken down and he obtained a ride with another male, who drove to the store for some gas. Appellant went inside and the other man came in and shot the two women.

Appellant took the stand in his own defense and stated that he had been riding with a friend, in the friend's car, and they stopped at the store for gas. Appellant went into the store and bought a pack of cigarettes. He conversed with Robinson for a short time and then walked to the back of the store to the soda cooler. Before he could reach the cooler, he heard the first shot and immediately fell to the floor. Approximately one minute later, he heard a second shot. He heard someone call his name, so appellant looked up and saw his friend, Ricky, who had two purses in his hand. They ran to the front of the store and Ricky hit appellant with the gun. The gun fired when appellant was struck. Appellant laid on the ground until Ricky left in his car. Appellant then got up, and saw an officer on patrol outside. Appellant ran out into the street and tried to flag down the officer, who did not see appellant. Appellant then saw Hensley, whom he stopped and told what was going on. Appellant then ran into the field, where he was later arrested. When appellant took the witness stand, the prosecutor asked if a person who would kill someone would have to be cold-blooded. Appellant laughed in response. The jury took approximately two hours to deliberate and found appellant guilty of capital murder.

During the punishment phase of trial, the State established that appellant had been convicted of possession of marihuana and placed on probation. Six months later, appellant's probation was revoked. Appellant had not been cooperative with his probation officer. Appellant put on no evidence on his behalf at the punishment stage of trial.

In his brief, appellant argues that:

"But this court has seemed to be inclined to hold that where an appellant has a clean or substantially clean history (unless is [sic] consists of other acts of violence), then the evidence must be overwhelming before it will sustain the death penalty by holding there is sufficient evidence for the jury to answer 'yes' to the second issue in the punishment stage." ²

Appellant cites Horne v. State, 607 S.W.2d 556 (Tex.Cr.App.1980), in support of his contention.

In response, the State argues that the evidence was sufficient based upon the following facts:

1. The crime showed careful planning in that it was done in the dark, early morning hours when no one else would witness it.

2. Appellant deliberately took a firearm into the store to commit the robbery.

3. Appellant was in no way provoked into shooting the clerk, and gave no warning before he fired the gun, killing her.

4. Appellant told Officer Hensley a different story than that he gave Officer Loscuito, both of which differed from the version of facts he testified to at trial.

5. Appellant was not cooperative with the probation department.

6. Appellant was convicted of possession of marihuana.

7. While on the witness stand, appellant laughed when asked if someone who killed someone would have to be pretty cold-blooded. ³

When deciding whether there was sufficient evidence to support a jury's finding that a defendant will constitute a continuing threat of violence to society, this Court must view the evidence in the light most favorable to the verdict to determine whether a rational trier of fact could have found the elements of Art. 37.071(b)(2), supra, beyond a reasonable doubt. See Santana v. State, 714 S.W.2d 1 (Tex.Cr.App.1986), and Fierro v. State, 706 S.W.2d 310, 313 (Tex.Cr.App.1986). At the penalty stage of trial, the jury may consider all of the evidence adduced at the guilt stage. Santana, supra at 8, and cases cited therein; and Fierro, supra at 319, and cases cited therein.

The jury is permitted to consider many factors when determining whether the defendant will pose a continuing threat of violence to society. Those factors include, but are not limited to:

1. the circumstances of the capital offense, including the defendant's state of mind and whether he or she was working alone or with other parties;

2. the calculated nature of the defendant's acts;

3. the forethought and deliberateness exhibited by the crime's execution;

4. the existence of a prior criminal record, and the severity of the prior crimes;

5. the defendant's age and personal circumstances at the time of the offense;

6. whether the defendant was acting under duress or the domination of another at the time of the commission of the offense;

7. psychiatric evidence; and

8. character evidence.

See Brasfield v. State, 600 S.W.2d 288 (Tex.Cr.App.1980); Milton v. State, 599 S.W.2d 824 (Tex.Cr.App.1980); and Hovila v. State, 562 S.W.2d 243 (Tex.Cr.App.1978).

In order to determine whether the facts present in the instant case were sufficient, we may look to other cases where the State failed to present sufficient evidence. In Roney v. State, 632 S.W.2d 598 (Tex.Cr.App.1982), the defendant was found guilty of capital murder, specifically, murder committed in the course of robbery. The defendant and two other men went into a convenience store and the clerk was shot after money was taken from the register. The defendant had participated in a different robbery minutes before the capital murder occurred. The evidence also showed that the defendant had laughed about the murder. He did, however, surrender himself to the police three days after the offense was committed. There was no psychiatric evidence offered, nor was the defendant shown to have a criminal record.

In finding that the facts of the case did not support an affirmative finding to the second special issue regarding future dangerousness, this Court stated, id. at 603:

"Although this was a senseless murder, that fact is true of every murder in the course of a robbery. The facts of this offense, standing alone, do not carry the marks of a 'calculated and cold-blooded crime,' such as appeared in O'Bryan v. State, 591 S.W.2d 464, 480 [Tex.Cr.App.1979] where the defendant for months planned the candy poisoning of his own child to collect life insurance. To support a 'yes' answer to the second punishment issue, the evidence must show beyond a reasonable doubt that there is a probability appellant would commit criminal acts of violence that would constitute a continuing threat to society. To hold that the facts of this offense, standing alone, would support such a verdict, would mean that virtually every murder in the course of a robbery would warrant the death penalty. Such a construction would destroy the purpose of the punishment stage in capital murder cases, which is to provide a reasonable and controlled decision on whether the death penalty should be imposed, and to guard against its capricious and arbitrary imposition." [citations omitted and emphasis in original].

This Court further held that given that the facts of the offense itself were not inherently sufficient, and that the State had not presented any additional evidence, the State had not shown beyond a reasonable doubt that the defendant would...