Lafoon v. State, 51256

• Decision Date: 17 November 1976
• Docket Number: No. 51256,51256
• Citation: 543 S.W.2d 617
• Parties: Leroy LAFOON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 617

543 S.W.2d 617

Leroy LAFOON, Appellant, v. The STATE of Texas, Appellee.

No. 51256.

Court of Criminal Appeals of Texas.

Nov. 17, 1976.

Rehearing Denied Dec. 15, 1976.

Ronald W. Aultman, Jerry J. Loftin and Jack S. Neal, Fort Worth, for appellant.

Jerry W. Woodlock, Dist. Atty. and William B. Sullivant, Asst. Dist. Atty., Gainesville, Jim D. Vollers, State's Atty. and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for the offense of murder with malice. The jury assessed punishment at life. The case was tried in Wichita County after a change of venue from Jack County.

Appellant has set forth eight grounds of error for consideration by this Court. Since the fourth ground challenges the sufficiency of the evidence, we will discuss it first.

This is a circumstantial evidence case, and the record is voluminous. Appellant and three others, Charlotte Hamilton Lafoon, Ralph Brown and Doris Brown, were indicted jointly for the murders of Edith Shores, also known as Edith Rogers and DeAnn Cloninger. A severance was granted and appellant was tried for the murder of Edith Shores.

The evidence before us shows that on the night of April 14, 1971, George Carl Robertson, Edith Shores and DeAnn Cloninger burglarized the house of Ralph and Doris Brown in Fort Worth. Virginia Garrett, a neighbor of the Browns, testified that approximately one week prior to the burglary of the Browns' house she was next door at the Browns' and had observed appellant threaten DeAnn Cloninger with a shotgun. She stated that on the night of April 14, 1971, at approximately 10:00 p.m., as she was getting ready to go to bed, she heard a lot of noise outside. She looked out her window and saw two women and a man. She recognized one of the women because of her platinum colored hair as the same woman who had been waiting in the car for DeAnn the night DeAnn had been over to the Browns' house with her baby the week before. Then, approximately thirty minutes to an hour later, Doris Brown came over and asked her to come over to their house after it had been burglarized. Doris Brown then called appellant who arrived shortly thereafter at the Browns' home with Charlotte Hamilton. ¹ A conversation then took place between the four--Ralph and Doris Brown, appellant and Charlotte Hamilton--concerning the two deceased women as being the burglars and that they should be killed. One of the two men made a statement that he was going to beat the woman to death with the dead dog. The Browns' pet dog had been killed during the burglary. Appellant said, 'Let's all go get 'em.' Doris Brown then called Edith Shores after which appellant was heard to say that he wanted to go find the two women before they had a chance to unload any of the things taken. Appellant said he knew the street on which Edith Shores and DeAnn Cloninger lived, and the four then left in his car. Garrett returned to her house. Approximately two hours later they returned and Doris Brown again came over to Garrett's house and asked her if she had seen anything. She returned to the Browns' home. A discussion then took place between appellant and Doris Brown wherein she told him what had been taken in the burglary, a television set, record player, some shortwave radio equipment, a Hoover rug shampooer and a metal box containing some papers. Two days later, April 16th, at approximately 2:00 p.m., appellant accompanied by Doris Brown and Charlotte Hamilton borrowed Garrett's car to go to appellant's apartment for some clothes and to do their laundry. Allegedly their car was not running and, therefore, they needed her car.

About 4:00 p.m., Doris Brown called Garrett and told her that they had located their stolen things and would be late in returning. When Garrett told her that she needed a car, she (Doris Brown) said for her to use hers. Doris further related that she, Ralph Brown, Charlotte Hamilton and appellant were waiting for someone. About 3:00 a.m. the next morning, Garrett heard a car back up to the Browns' house next door. It was her car and in it were appellant, Doris Brown, Ralph Brown and Charlotte Hamilton. She noticed that the car was very muddy. The four were unloading some boxes out of the car and also a television set. When they finished unloading the car, Charlotte Hamilton and appellant left and Doris Brown came over to Garrett's house and said to her, 'About your car; Leroy has gone to wash it; he wouldn't bring it home like that.' She described Doris Brown's appearance at the time as '. . . muddy and she had blood on her arm and her blouse. Her arm was all swelled up.' She then inquired of Doris Brown, 'What in the world happened?' to which Doris replied, 'Leroy and I got two of them but we've got one more to go.' Two or three days later Doris Brown gave Garrett the tennis shoes and clothes she had been wearing that morning and asked her to get rid of them on her way to California. Doris Brown had also told her that they had found out that there was a third burglar. She said that she had gotten muddy when they (Doris Brown and appellant) had to move a log and she fell. Approximately an hour or so later appellant came to Garrett's house. She described him as being muddy and bloody, with the largest amount of the blood down his back and the most mud on the seat of his pants. Garrett then testified that, while Doris Brown was telling appellant about a little pin cushion that Edith Shores and DeAnn Cloninger had taken, he replied, 'Well, it's one thing; they won't ever rob anyone else.' She further related that she had to use her car at approximately 6:30 a.m. or 7:00 a.m. and it had been washed. However, she discovered blood on the inside of the car and a child's moccasin was under the front seat of the car. Later that morning, Doris Brown brought over a wig and asked her to dye it. Doris told her that the wig belonged to Charlotte Hamilton. The wig was later identified as actually belonging to Edith Shores, the deceased.

Sam Burroughs, an officer of the Lake Worth Police Department, testified as to the items reported to him as stolen by Ralph and Doris Brown. The list included an eighteen-inch black and white Motorola television; one Realistic high and low band radio; an AM-FM radio; one Savage twelve gauge automatic shotgun; one nine millimeter Browning automatic pistol; one Realistic portable record player, on Hoover rug shampooer; one metal file box containing beads, jewelry and numerous pieces of TV testing equipment. A portion of these items were the same items Garrett had observed being returned to the Browns' house the night her car was used by appellant. These same items were identified by Carl George Robertson as the items he and the two deceased women had taken when they burglarized the Brown house. Robertson also identified some of the items as having been in the possession of the two deceased women. These same items were found back in Ralph and Doris Brown's possession when they were arrested on June 2, 1971. Robertson further testified that after the burglary they had gone back to DeAnn Cloninger's house and while they were there a telephone call was received from Doris Brown. He stated that he next saw the two deceased women at approximately 1:30 p.m., April 16th at the Twilight Lounge. DeAnn had her baby, Gina, with her. Gina was dressed in a little red housecoat and moccasins. He identified State's Exhibit No. 4 which had been found in Virginia Garrett's car as resembling the moccasins Gina had on.

Officer A. E. Bruton of the Fort Worth Police Department testified that at 2:47 a.m. on April 17, 1971, he went to 3100 Wingate to investigate a complaint about a baby crying. He arrived at 2:50 a.m. but was unable to locate the source of the crying. At 3:29 he received a second call to return to 3100 Wingate and make further investigation. He then found a baby in the back seat of an automobile parked in the parking lot two spaces away from the Dempsey Dumpster. The little girl, named Gina, was clad in a red housecoat and had on one moccasin which was similar to the one found in Garrett's car.

Edna L. Kennedy then testified that she and her husband lived in the Wingate Apartments on April 17, 1971, and that both she and her husband worked shift work from 3:30 till midnight; that she and her husband worked until 1:00 a.m. on April 17 and went home. At approximately 2:30 a.m., her attention was drawn to a motor running '(b)ecause it ran longer than most people do when they drive up, tell someone goodnight, then they go on.' She pulled the drapes back and observed a man looking at cars in the parking lot and attempting to get into them. Then she saw him open up the left rear door of a car parked in the second space away from the trash dumpster and then walk back to a white car sitting in the parking lot with its engine running. She momentarily quit looking out from behind the drapes. When she looked out again the white car was gone and the door of the car she had seen opened by the man was closed. She further identified the white car she saw as being similar to the car pictured in State's Exhibit 18, Virginia Garrett's car, and identified appellant as looking similar to the man she observed in the parking lot behind her apartment on April 17, 1971.

Troy Thornburg testified that on April 24, 1971, while he and his family were fishing at a stock tank in Jack County, they found a body floating just under the surface. He then notified Sheriff Hubert Jackson. When Sheriff Jackson arrived on the scene, he observed a huge log across the end of the stock tank and between the body that was found on April 24, 1971, and the shore. He testified that the body was badly decomposed and that rocks had been tied to the neck and legs and the hands were tied behind the back. He found evidence of a car having been driven to within approximately one hundred yards east of the stock tank and stopped....