Lincecum v. State

• Decision Date: 16 September 1987
• Docket Number: No. 69651,69651
• Citation: 736 S.W.2d 673
• Parties: Kavin Wayne LINCECUM, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 673

736 S.W.2d 673

Kavin Wayne LINCECUM, Appellant, v. The STATE of Texas, Appellee.

No. 69651.

Court of Criminal Appeals of Texas En banc.

Sept. 16, 1987.

Robert J. Kuhn, Austin, for appellant.

Charles J. Sebesta, Jr., Dist. Atty., Caldwell, Larry P. Urquhart, Special Prosecutor, Brenham, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

MILLER, Judge.

Appellant was convicted for the commission of capital murder. V.T.C.A.Penal Code, § 19.03. The jury answered the special issues in the affirmative and appellant was sentenced to death. On appeal appellant brings five points of error. We will affirm.

In order to dispose of several of appellant's points of error, a recitation of the facts disclosed at trial is necessary. ¹ The indictment filed against appellant alleged that on August 11, 1985, while in the course of intentionally committing and attempting to commit the offense of kidnapping, robbery or aggravated sexual assault against Kathy Ann Coppedge, appellant intentionally caused her death by strangling her with panty hose, twine, a vinyl strap, and other means unknown to the grand jury.

Phillip Coppedge testified that he was married to Kathy Ann Coppedge and they had one son, Casey, who was born in 1976. The family moved to Brenham in November, 1984. ² Kathy and Casey began attending the Brenham Presbyterian Church. Phillip did not attend regularly.

On August 10, 1985, Phillip, Kathy and Casey drove to Austin to shop for clothes. Kathy purchased a turquoise dress, and bought a pair of black Nike tennis shoes for Casey. They returned to Brenham on the same day and bought Casey two new shirts at a Beall's Department store. Kathy had taken $200.00 for her purchases and had spent only $60.00 for the dress. She would have been carrying the remainder of the cash when she attended church on Sunday.

On Sunday morning, August 11, 1985, Phillip left home at 6:30 a.m. to feed and ride his horse at a stable one mile from Brenham. When he returned home, Kathy and Casey were leaving for church in the blue Buick. Kathy was wearing her new dress, a watch that Phillip and Casey had given her for Mother's Day, earrings, a necklace, a wedding band with a large diamond in it, a diamond and ruby ring, a "pinkie ring" made from a set of diamond earrings, and a gold wedding band which had belonged to Kathy's mother. Casey was wearing his new Nike tennis shoes and one of the new shirts purchased the day before. While Kathy and Casey attended church, Phillip went to the Hughes Tool Company office in Brenham to clean it up. He returned just before noon to wait for Kathy and Casey to get back from church. When they failed to return on time, Phillip drove around the town in an attempt to locate them. He phoned the pastor of the Presbyterian Church, the two local hospitals and the police department. Finally, in a late afternoon conversation with the pastor's wife, he learned that a church member had reported activity which led Phillip to believe that Kathy and Casey had been kidnapped. Phillip phoned the Brenham Police Department to report that he feared his wife and child had been abducted. Later that evening, the church pastor and two police officers came to his home to tell him that Kathy and Casey were dead.

Tom Currie was the pastor of the Brenham Presbyterian Church. He testified that Kathy joined the church in December, 1984, and Casey was admitted as a member on Easter Sunday, 1985. On the day of the murder, Currie presided over the church service. Kathy and Casey were present, sat on the back row of the church, and were among the first persons to leave at the end of the service. After church, Currie spoke briefly to them as they walked out of the church.

A short time later, another church member, Edith Fahrenkamp, approached Currie and reported seeing a car containing a white woman and one or two black men leave at a high speed from the parking lot across the street from the church. ³ She thought she heard the woman call out for help. Currie asked another church member to call the police. An officer came by the church and was given the information provided by Fahrenkamp, which included a partial license plate number of the car.

Edith Fahrenkamp testified that she and her husband attended church on August 11, 1985. They sat on the next to last row at the back of the church and were among the first to leave at the end of the service. She did not know Kathy or Casey. After leaving the church, she and her husband walked to the parking lot across the street from the church. As she and her husband were about to get into their car, a car "just whizzed right behind" them out of the parking lot. At the same time, she heard "a call for help" and looked up to see the car driving down the street. The car was blue. Fahrenkamp observed "a black driving it and this white face with a black hand pulling the face down toward something black on the passenger side." ⁴ She tried to see the license plate and believed part of it read "227." ⁵ Fahrenkamp walked back to the church and gave Currie the information.

Ora Edwards also attended church services on August 11, 1985. She testified that she sat on a pew near the rear of the church. After the service ended, she left the church building and walked to her car, parked across the street. As she was entering her car, another car drove past her very quickly. Looking up, she observed a black man was driving the car and two other persons were seated on the front seat. She heard someone from the car scream "Help me." She entered her car and left.

Valeria Oevermann testified that in the late afternoon of August 11, 1985, she drove with her husband to the home of her parents situated west of the town of Burton, which is located 13 miles west of Brenham on Highway 290. She drove from Brenham to Burton on Highway 290 and then turned off the old 290 Highway on the west side of Burton. She then turned off the old highway onto a dirt road which led to her parents' house. She stated that the old 290 Highway runs parallel to the present Highway 290, which is much lower in elevation than the older highway. Someone driving on the present Highway 290 could not see a parked car on the north side of the old 290 Highway.

Oevermann testified that as she drove to her parents' house, at about 4:00 p.m., she noticed a car parked beside the old highway. Later, when she was driving down the same road in the opposite direction to go home at about 7:00 p.m., the same car was still parked in the same location. She noticed that the license plate bore the letter "Z." After returning home to Brenham she watched the news and saw a bulletin regarding a kidnapping. She listened to a local radio station and heard the same report. She then called the police and reported the location where she had seen the car, which was similar to the one mentioned in the bulletin.

Jay Petrash, a patrolman in the Brenham Police Department, testified that he and other officers drove to the location where Oevermann had reported seeing the car. They found the Coppedge vehicle parked in a ditch on the side of the old 290 Highway. The windows were rolled up, the car was locked, and the trunk was closed and locked. The officers searched the car, and found bodies of the victims in the trunk.

Petrash testified that Casey and Kathy were bound behind their backs with a vinyl cord. A length of twine with a loop tied in one end was found lying loose in the trunk underneath the bodies. Kathy's dress and bra were ripped. Her panties were found beneath her legs. The shoes of the victims were missing. No purse, cash, or jewelry were found in or near the car. Petrash testified that August 11, 1985 had been a very hot day and that the temperature had reached above 100 degrees Farenheit.

Other officers testified that appellant was arrested with two other men in Hallettsville on December 3, 1985, for an unrelated offense which had occurred on the same day as the murders in Fayette County. One of the men with whom appellant was arrested went with officers to his residence in a rural area in Lee county. Appellant's brown Chevrolet vehicle was parked beside the house. A search revealed a lock blade knife in the glove compartment and a photograph of appellant and Rita Mathis, his girlfriend.

After searching appellant's car, the officers drove to Rita Mathis' house. Officers spoke with Rita and her father, and requested the items that appellant had given Rita. She then removed Kathy Coppedge's watch from her wrist and two of Kathy's rings. She produced from her purse the other two rings taken from Kathy at the time of the murder.

Rita was taken to the Fayette County Sheriff's office where appellant was being held. After obtaining a statement from Rita regarding her acquisition of the jewelry, appellant was questioned about the murders. He initially denied any knowledge regarding the Coppedge murders, but when showed the jewelry recovered from Rita, he agreed to give a statement.

The statement was introduced by the State at trial, with certain portions deleted, ⁶ and read as follows:

"Both prior to and during the making of this statement, I voluntarily, intelligently and knowingly waive all of the above described rights, and I freely and voluntarily make this statement without any threats or promises having been made to me by anyone.

During this past summer on a Sunday morning, I left my home at route 1, Box 67, Ledbetter at about 4:30 a.m., and walked to Brenham. When I got to Brenham, I went to the H.E.B. Store and walked around the store and ate some grapes and small fruit.

I went out and walked around some more and finally got to the Catholic church and was talking to a lady in the front of the church. The priest came out of a house by the church and asked me what I was doing. I told him I was looking for directions to a muffler shop. He told me where he thought it was.

When I left there I walked...