Kerns v. State

• Decision Date: 03 May 1977
• Docket Number: Nos. 52670,s. 52670
• Parties: David Joe KERNS, Appellant, v. The STATE of Texas, Appellee. to 52673.
• Court: Texas Court of Criminal Appeals

Page 91

550 S.W.2d 91

David Joe KERNS, Appellant, v. The STATE of Texas, Appellee.

Nos. 52670 to 52673.

Court of Criminal Appeals of Texas.

May 3, 1977.

Neal B. Wheeler, Dallas (Court-appointed on appeal), for appellant.

Henry Wade, Dist. Atty., John H. Hagler, Robert E. Whaley and John Ovard, Asst. Dist. Attys., Dallas, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION ON APPELLANT'S MOTION FOR REHEARING

ODOM, Judge.

Our opinion on original submission is withdrawn and the following is substituted in lieu thereof.

Appellant was convicted for the murder of four persons. He was assessed punishment at life imprisonment for each offense.

Appellant first asserts that the trial court committed reversible error when it failed to instruct the jury that Joseph Arnwine, a State witness, was an accomplice witness as a matter of law. Article 38.14, V.A.C.C.P., provides:

"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."

The question of whether Arnwine was an accomplice witness was submitted as a fact issue to the jury. We, however, conclude that Arnwine was an accomplice witness as a matter of law and the court erred when it refused to so instruct the jury.

Appellant was convicted for murdering Betty Cannon, James Bradley Cannon, James Walker and Michelle Walmer. Arnwine was indicted for the murder of Betty Cannon. Arnwine, thus, was a co-indictee to the same offense as that committed by appellant and it was error for the court not to instruct the jury that he was an accomplice witness as a matter of law. Creek v. State, Tex.Cr.App., 533 S.W.2d 794; McCloud v. State, Tex.Cr.App., 527 S.W.2d 885; Hendricks v. State, Tex.Cr.App., 508 S.W.2d 633.

Arnwine's testimony and the record also compel us to conclude that he was an accomplice witness as a matter of law with regard to the other three offenses. He implicated himself in all of the offenses appellant was charged with committing. The State could have prosecuted him for all four murders. See, Easter v. State, Tex.Cr.App., 536 S.W.2d 223.

The question before us is whether the court's failure to instruct the jury that Arnwine was an accomplice witness as a matter of law constitutes reversible error. In Gonzales v. State, Tex.Cr.App., 441 S.W.2d 539, at 541-542, we stated:

"It appears from these cases that where the court submits to the jury the fact question of whether a certain State witness is an accomplice witness when the evidence was such as to justify a charge that such witness was an accomplice witness as a matter of law, and proper objection is reserved, the error does not require reversal unless the testimony of the witness is essential to the State's case (a) because, if the witness is in fact an accomplice, there is no evidence to corroborate his testimony, or (b) because, without the testimony of the witness . . . there is insufficient evidence to support a conviction or (c) because it is the sole corroboration of the testimony of another accomplice." (Also see Cranfil v. State, Tex.Cr.App., 525 S.W.2d 518; Bentley v. State, Tex.Cr.App., 520 S.W.2d 390.)

We must ascertain whether there is sufficient evidence to support the convictions after Arnwine's testimony is excluded from consideration.

The offenses occurred in the early morning hours of April 27, 1974. Mitchell Penland testified that he went to appellant's apartment in the early evening of April 26, 1974, and that the appellant and Betty Cannon argued about appellant's relations with another woman. Penland left after this argument started.

He returned the next afternoon and saw a trail of blood leading from the parking lot up the apartment building's stairs to the appellant's residence, and blood smeared on the door of appellant's apartment. Inside he noticed bloodstains on the carpet and the wall. The appellant asked him to help clean up the apartment.

Two hours after Penland arrived at the apartment, the appellant stated: "Mitchell, I killed them. I killed them all," and, "Mitchell, I promise you no one suffered." Appellant also stated that he had shot them in the head with a .38 and that he dumped the bodies in a stream but that he did not have time to weight the bodies down. The appellant asked Penland to return to the stream and help him accomplish this task.

Other evidence established that three of the victims died from .38 caliber gunshot wounds to the head. Betty Cannon was killed by several shots in the left chest area.

Loretta Padgett, a half-sister of Arnwine, testified that she picked up appellant from the Interstate 30 bridge over Lake Ray Hubbard early on the morning of April 27 and drove him, accompanied by Arnwine, back to his apartment. The bodies surfaced near this point a few days later. One of the appellant's crutches was found washed ashore less than one mile north of this point, and the other crutch was found in his apartment.

A friend of Betty Cannon's testified that she phoned him at 2:30 on the morning of April 27 and told him she and appellant were fussing and fighting and asked him to bring a gun to the apartment. (We consider this not for the truth of the matter stated, but for the fact that such statements were made.) When he phoned back ten minutes later there was no answer.

We conclude that the evidence, excluding Arnwine's testimony, is sufficient to support the convictions. The physical evidence demonstrates that four murders occurred. There is evidence proving that some of the victims were killed in appellant's apartment. Appellant was seen, on the day of the offense, at the lake near where the bodies of the victims were discovered. Furthermore, appellant's statements to Penland are highly inculpatory. See, McGilvery v. State, Tex.Cr.App., 533 S.W.2d 24.

The failure of the trial court to instruct the jury that Arnwine was an accomplice witness as a matter of law did not result in reversible error. Gonzales v. State, supra. Appellant's contention on this matter and his assertion that Arnwine's testimony was not corroborated are overruled. We also overrule appellant's contention that the evidence is insufficient to support the findings of the jury.

Appellant complains that the trial court erred in failing to instruct the jury that Mitchell Penland, Loretta Padgett and Earl Watson were accomplice witnesses as a matter of law. He contends that he was entitled to this instruction because these witnesses helped Arnwine conceal the crime.

The record reflects that Penland attempted to wash the bloodstains from the areas around and in the appellant's residence. Padgett helped Arnwine dispose of his bloody clothes and the murder weapon. She also drove Arnwine back to the bridge in order that he might retrieve his truck which had run out of gas. Watson burned Arnwine's bloody clothes and threw the murder weapon into a creek. All of these actions occurred after the victims were killed. None of these witnesses were aware of who was killed or who did the killing.

In Easter v. State, supra, we made the following statements:

"A witness is not deemed an accomplice witness because he or she knew of the crime but failed to disclose it or even concealed it." 536 S.W.2d at 225.

"And it appears to be well settled that one is not an accomplice witness who cannot be prosecuted for the offense with which the accused is charged." 536 S.W.2d at 227.

Penland, Padgett and Watson were not accomplice witnesses. They could not have been prosecuted for the murder of the four victims. Easter v. State, supra.

The tenth ground of error claims that the court allowed improper and prejudicial hearsay testimony to be admitted in evidence. Lee Thompson, a witness for the State, testified that Betty Cannon called him in the early morning hours of April 27, 1974, the date of the offenses. Cannon told him who was at the apartment, that one of appellant's friends had brought some guns to the residence and that she and appellant had been fighting.

Appellant's objection to Thompson's testimony at trial was that the State had failed to lay the proper predicate for introduction of this testimony. He did not object to the testimony on the ground that it was hearsay, as alleged in his brief on appeal. Bouchillon v. State, Tex.Cr.App., 540 S.W.2d 319; Arivette v. State, Tex.Cr.App., 513 S.W.2d 857.

Furthermore, the identities of the persons in the apartment on the day of the offenses, the fact that one of appellant's friends had brought guns to the residence, and the fact that Betty Cannon and appellant had been fighting were all established by other competent and admissible evidence which was not objected to. See, Nicholas v. State, Tex.Cr.App., 502 S.W.2d 169. No injury has been shown. Myre v. State, 545 S.W.2d 820 (1977); Cunningham v. State, Tex.Cr.App., 500 S.W.2d 820.

The eleventh ground of error asserts that the trial court erred in admitting prejudicial hearsay testimony from members of appellant's family. The part of the record objected to, however, contains no testimony from a member of appellant's family.

Appellant appears to be objecting to the following testimony entered by Loretta Padgett:

"He (Arnwine) told me, if anything ever happens to me, don't forget that boy, his name is David Kerns."

We perceive no reversible error in the admission of the testimony.

Appellant next complains that the trial court erred in permitting the State to introduce evidence tending to establish the good reputation of one of the victims, James Cannon. Anita Deason testified that James Cannon paid his mother's rent.

The objection to this testimony was sustained and the jury was instructed to disregard this statement. No further relief was requested. No adverse ruling was obtained and no reversible error is presented. Hunter v. State,...