Lamb v. State

• Citation: 680 S.W.2d 11
• Decision Date: 13 June 1984
• Docket Number: No. 69187,69187
• Parties: John Michael LAMB, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 11

680 S.W.2d 11

John Michael LAMB, Appellant, v. The STATE of Texas, Appellee.

No. 69187.

Court of Criminal Appeals of Texas,

En Banc.

June 13, 1984.

Rehearing Denied Oct. 17, 1984.

Joe Weis, Greenville, for appellant.

F. Duncan Thomas, Dist. Atty. and Steven Watkins, Asst. Dist. Atty., Greenville, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

CAMPBELL, Judge.

This is an appeal from a conviction for capital murder. The jury answered in the affirmative the special issues submitted at the punishment stage of the trial pursuant to Article 37.071, V.A.C.C.P., and the trial court assessed appellant's punishment at death. Appellant raises five grounds of error. We find no merit in any of appellant's claims and therefore affirm.

In his first ground of error appellant alleges that the trial court erred in failing to grant his motion for new trial. Appellant in his motion for new trial claims that the State failed to disclose allegedly exculpatory material to him prior to trial. The motion for new trial was overruled by operation of law. This being the case there was no evidence to support appellant's claims. Motions for new trial are not self-proving. Vaughn v. State, 456 S.W.2d 141 (Tex.Cr.App.1970). They must be supported by affidavits and the affidavits must be offered into evidence. Walker v. State, 440 S.W.2d 653 (Tex.Cr.App.1969). Since appellant failed to properly present his motion, we find no error in the trial court's failure to grant it.

However, since appellant's motion implicates federal constitutional issues, we have reviewed the allegations in the motion and the supporting affidavit in the interest of justice. Appellant claims that the State knew that appellant had lied in his confession when he stated that he had, earlier in the evening, stolen the gun used to kill the deceased, from the deceased. Appellant claims that the State knew that appellant had actually stolen the alleged murder weapon in a prior burglary. Appellant further claims that the State relied upon that part of the confession in arguments before the jury.

Initially we note that appellant's own affidavit indicates that the State did in fact provide him with a copy of the offense report indicating that he had stolen a weapon in a burglary the day before the instant offense occurred. In his sworn affidavit in support of the motion for new trial, appellant's counsel states that the supporting documents were delivered to him "at some time either immediately before or immediately after jury selection began in this case." Jury selection in this case took two weeks to complete. Thus appellant had in his possession the alleged exculpatory material for a full two weeks before any testimony was heard.

We also note that the State did not offer that part of appellant's confession pertaining to the murder weapon; the appellant did. ¹ The appellant having offered the offending statement, he cannot now on appeal complain that the State relied upon such evidence. Finally, as the State points out in it's brief, the fact that appellant stole a weapon similar to the weapon used in the instant offense in a prior burglary does not necessarily preclude the conclusion that he also stole another weapon from the deceased. Since the murder weapon was never recovered, there is no way to verify whether appellant did in fact steal a weapon from the deceased. Ground of error number one is overruled.

In his second ground of error appellant challenges the voluntariness of his confession. The entire confession of the appellant is set out as follows:

"Friday November 5, 1982 I got out of Jail in Searcy Arkansas about 10:30 a.m. I started hitchhiking toward Texas. I caught a ride into a town about 45 miles from Dallas on Interstate Highway 30 between Arkansas and Dallas, Texas. I walked across the Parking Lot of a motel I believe it was a Ramada Inn. I saw this guy in front of a motel room I talked to him a little bit then he went to eat. I stayed around the motel area for awhile. When this guy came back to his room after he had eaten and invited me in the room. We talked for about thirty minutes he was sitting on the bed and I was sitting on a chair nearby. This guy put his hand on my leg and I said take your hand off I don't go for that shit. I got up at this time and he said for me to leave. I had earlier gotten a gun from a bag in the room while this guy was in the bathroom. When I got up I took a step or two toward the door pulled the gun from my pocket and shot the guy three times I shot three times because the gun was an automatic after I shot the guy was on his knees on the bed and I heard him fall to the floor. I got the guys billfold off the nightstand and took a shaving kit. I got the keys to the guys car and drove his car toward Dallas. The car was a tan Nova with Virginia License Plates. The Drivers license and credit card in the billfold had the name of Jerry Chafin. The gun that I shot the guy with was a small automatic Pistol. I threw the gun out of the car somewhere between this town and Dallas. I slept a couple hours in the car in Dallas then drove to Houston. I drove to a Holiday Inn in Houston and checked into the Motel Saturday November 6, 1982. I used Jerry Chafin credit card and Drivers License to check into the Holiday Inn. I threw a Television and some other stuff that was in the car into a Garbage bin at the Holiday Inn. I stayed in Houston until Monday then started East toward Louisiana. Tuesday I stopped at a Shamrock station in Lafyette Louisiana. I got some gas and two cases of Budweiser Beer Longnecks. I attempted to use Jerry Chafin credit card and a girl called in to check on the credit card. I took off without the card. I drove East on Interstate 10. Thursday Morning I stopped at store and gas pumps in Greenville Florida. I shot the attendant and took two cases of Budweiser Beer and some money. A few minutes later I was stopped by the Police and arrested. When I was arrested I was driving the car that I got in Texas and had the billfold in my pocket with Jerry Chafin Drivers License of Jerry Chafin."

He claims that the trial court erred in admitting his confession after its involuntary character was established. The trial judge held a Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), hearing outside the presence of the jury and filed findings of fact and conclusions of law.

Appellant was arrested in Florida. The arresting officer in Florida testified as well as the investigating officers from Texas. The appellant also testified. Appellant claimed that implied promises of leniency were made by the officers. The officers denied any such promises.

The judge at the Jackson v. Denno, supra, hearing is the sole judge of the weight and credibility of the witnesses. He may believe or disbelieve all or any part of any witness' testimony. Hawkins v. State, 660 S.W.2d 65 at 72 (Tex.Cr.App.1983). The trial judge specifically found that no implied promises were made to appellant. The officers specifically denied making any such promises. The trial judge chose to believe the police officers. We have reviewed the testimony of the officers and the appellant and we find that the trial judge had ample testimony upon which to base his factual findings. Ground of error number two is without merit and is overruled.

Appellant next challenges the sufficiency of the indictment. Appellant claims that the trial court erred in failing to grant his pretrial motion to quash. The motion to quash challenged the indictment as being duplicitous and vague. Appellant also alleged that V.T.C.A. Penal Code, Secs. 19.02(a)(3) and 19.03(a)(3) are unconstitutional insofar as both statutes prohibit the same conduct but provide distinctly different punishments. This ground of error is multifarious and presents nothing for review. However, in the interest of justice, we will nonetheless examine appellant's claims.

In the first part of ground of error number three, appellant contends that the indictment alleged murder, felony murder and capital murder in one paragraph and was therefore duplicitous. The indictment in pertinent part reads:

"[D]id then and there intentionally cause the death of an individual, Jerry Harrison Chafin, by shooting him with a gun, and the said John Michael Lamb did then and there intentionally cause the death of the said Jerry Harrison Chafin in the course of committing and attempting to commit the robbery of Jerry Harrison Chafin;"

Initially we would note that appellant was charged with intentionally killing an individual and therefore V.T.C.A. Penal Code Sec. 19.02(a)(3), felony murder, is not charged. We have reviewed indictments very similar if not exactly like this indictment and have found them to be sufficient. Livingston v. State, 542 S.W.2d 655 (Tex.Cr.App.1976). We find the indictment here to be indistinguishable from the indictment we upheld in Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App.1975).

Appellant further alleges that the capital murder statute pertaining to murder during the commission of a felony, V.T.C.A. Penal Code Sec. 19.03(a)(2), and the felony murder statute, Sec. 19.02(a)(3), supra, are unconstitutional in that both statutes penalize the same conduct but provide for different penalties. This argument is without merit, for it ignores the very element which distinguishes the two crimes. Capital murder prohibits the intentional taking of a life during the commission...