Kuykendall v. State, 59462

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Writing for the CourtCLINTON
Citation609 S.W.2d 791
PartiesDonny KUYKENDALL, Appellant, v. The STATE of Texas, Appellee
Docket NumberNo. 3,No. 59462,59462,3
Decision Date26 November 1980

Page 791

609 S.W.2d 791
Donny KUYKENDALL, Appellant,
The STATE of Texas, Appellee.
No. 59462.
Court of Criminal Appeals of Texas, Panel No. 3.
Nov. 26, 1980.
Rehearing Denied Jan. 14, 1981.

Phil N. Vanderpool, Pampa, for appellant.

Harold L. Comer, Dist. Atty., Pampa, Robert Huttash, State's Atty., Austin, for the State.


Page 792



This is an appeal from a conviction for the offense of murder in the course of and in furtherance of the commission of a robbery. On his plea of not guilty, the jury returned a verdict of guilt and assessed punishment at confinement for ten years, finding appellant had never before been convicted of a felony but refusing to recommend probation.

Appellant presents three grounds of error. First he contends the trial court erred in failing to include in its charge an appropriate instruction on criminally negligent homicide. Second, he complains because the trial court did not grant his motion for an instructed verdict without differentiating for us a written motion at the close of the case-in-chief for the State and an oral motion after the State closed. Finally, he asserts that certain hearsay testimony was allowed to be submitted to the jury over his objection. Since the first and second grounds are related in that we must review at least portions of the testimony to determine whether the evidence raised the issue of criminally negligent homicide in the circumstances of the case, those two contentions will be examined more or less together. Then, if need be, the hearsay assertion will be addressed.

At the outset, though, we are met by a contention from the State that asserted error as to the failure of the trial court to charge on criminally negligent homicide is not properly before us. Particularly the State relies on the initial panel opinion in Dirck v. State, 579 S.W.2d 198 (Tex.Cr.App.1978) then extant when its brief was written. On rehearing, however, the Court took another look and held the procedure that was followed preserved the objections to the charge of the trial court, id. at 202. Then Briceno v. State, 580 S.W.2d 842, 843 (Tex.Cr.App.1979) built on Dirck and held that substantially what occurred in the case at bar constituted compliance with amended Article 36.14, V.A.C.C.P. and thereby preserved the contention for review. Accordingly, the contention advanced by the State must now be rejected.

September 15, 1976 at a late evening hour in his home in Pampa one Jerry Oliver, a black man it is pertinent to note, was wounded in his left armpit area by a shotgun blast discharged at close range. That was the cause of his death the next day in an Amarillo hospital. Without dispute, the shotgun was held by appellant in his right hand as he kept a screen door open with his left hand and stepped through the front entrance into the home of Oliver. The only eyewitness to what then occurred is appellant, and directed by his attorney to look at the jury and tell what happened appellant related:

"Well, sir, I stepped into the house and I had the gun at the waist level, pointed out and Jerry was a few steps away and all I got out of my mouth was, Jerry, I and he lunged at me and I everything just started happening too fast.

I felt my arm pulled out and the gun came back. There was a report and my hand was the first thing I noticed was my hand hurt and Jerry said, oh Lord. And, he fell down and I walked over to him. I looked down at him.

I was scared and I was shook up and I said, all I wanted was my money."

The gun was a sawed-off shotgun belonging to another from whose room appellant had taken it shortly before going to Oliver's house. According to the owner, the shotgun was defective in that the stock would not snap onto the barrel as it was designed to, and it was hazardous in that because of an unusually vigorous recoil action the thumb of a holder could be cut badly if he did not hold it in a certain manner. Appellant was still in the house when the woman who also lived there turned on a light; he saw the gun "all over the floor," picked up the pieces and departed, his hand having been "ripped open" and bleeding freely. He returned to an automobile occupied by three other persons and, when asked what happened, said, "The crazy nigger grabbed the gun." One of the four occupants, Dwayne Chapman, was dropped off at his home; the remaining three, appellant, Ruben

Page 793

Garza and Cheryl Fisher, fled to Amarillo because appellant "didn't want to get caught right then. I needed time to think." On the way back to Pampa later in the morning, they stopped, wiped off fingerprints from and wrapped the shotgun pieces in a T-shirt from the floorboard of the automobile, bound them with the distinctive belt appellant had been wearing appellant admitted that the woman at Oliver's home might be able to identify it and stashed the bundle in a culvert.

The homicide, according to the theory pursued by the State, was the culmination of a series of happenings that those four young persons and others created from idleness that Thursday afternoon. Cheryl Fisher, herself an accused who had already pled and been found guilty by the trial court, testified at the instance of the State, as did Donnie Barton, a youngster who had started out in the company of Garza and was with him and the others until they finally left for Oliver's house, and Brian Campbell, the owner of the sawed-off shotgun. As indicated, appellant testified in his own behalf; so did Garza and Chapman. From their testimony a synopsis of the meanderings of the principal parties may be drawn.

Appellant and Cheryl were living together at the time; they left their residence and in her automobile went to the Wizard arcade, a "foosball parlor," where they met up with Garza and Barton, the latter having been drinking a good deal of beer. A decision was made to go in her car to obtain a lid of marihuana from Oliver, he being reputed to be a dealer in controlled substances. Garza went to the door of the Oliver home but was told by the woman that Oliver was not there. The company then drove by and stopped at the Peppermint Lounge when Garza saw one known as "Fuzzy." Garza related to Fuzzy the fruitless trip they had just made to Oliver's house, only to be told by Fuzzy that Oliver was at home and had some lids. This word greatly agitated Garza, and back in the car the talk turned to "ripping Jerry off" from his marihuana. There was more drinking, some marihuana smoking off and on, and plans were discussed.

From this point on there is some divergence in the recitals of witnesses, more though in the reasons for things done than in the actual doing. Suffice to say from viewing the evidence most favorably to support the verdict of the jury, appellant drove the Fisher car to Campbell's house and acquired the shotgun, then went to Chapman's residence were Dwayne joined them with a weapon of his own and shells for the shotgun. Donnie Barton heard something said "about going and getting a nigger or something or other," professing not to remember but bits and pieces but finally recalling something said "about going over there probably to rip him off." Cheryl was certain there was talk "about ripping him off for his marihuana," it standing to reason, she thought and said, that if Oliver were selling lids he possessed pounds. When appellant remarked that he did not know Barton too well, Donnie said, "That is fine, you just take me to the house," and he was let off at his own home. The four remaining then went on to Oliver's home.

By nearly every account, when they reached their destination Garza went up to the front door of the house and, alone entered it 1 and had a brief conversation with Oliver. Meanwhile appellant had left the car and was standing in a spot where he could not easily be seen from the front door; as Garza was coming out of the house, he may have called out that Oliver did not have any marihuana, but he did notice Chapman motioning for him to come back to the car. Appellant approached the front door from an angle Chapman said he "slithered along" and startled Garza by momentarily pointing the shotgun waist level at him. Garza, not voicing another sound, turned away from the door and started to the car; before he got there appellant had entered the doorway and the shotgun was discharged.

Page 794

Right after appellant was released from jail he had a conversation with Campbell, from whose place he had obtained the shotgun; Campbell attributed to appellant the statements that when he had come by to get the shotgun appellant had wanted Campbell to go with him to Oliver's "to hold the gun on him" so he could get "some pot," but that he had not meant to shoot Oliver.

Appellant testified that he loaded the shotgun as he approached the house and went in the door with the shotgun pointed as it was because Oliver "pulled a gun on me before" and he "was well known for having guns and knives," and that he was afraid of him at that time. Appellant had his right hand around the stock, was nervous and was "just flipping the hammer and not looking, just working it back and forth" as he went into the house. The reason he left the car and went to see Oliver, appellant asserted, was because Oliver owed him some money and he wanted to collect it and settle the matter then and there. He told the jury on cross examination that during the conversations about ripping off Oliver he "may have said" what Garza testified he did say, viz :

"... that I had the gun there for the purpose of ripping Jerry Oliver's money and ripping Jerry Oliver off and taking his money or dope and ... (I wasn't) ... going to use it but that unless ... (I) ... got in trouble."

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