Livingston v. State, 69477

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Citation739 S.W.2d 311
Docket NumberNo. 69477,69477
PartiesCharlie LIVINGSTON v. The STATE of Texas, Appellee.
Decision Date21 October 1987

Page 311

739 S.W.2d 311
The STATE of Texas, Appellee.
No. 69477.
Court of Criminal Appeals of Texas.
Oct. 21, 1987.

Page 315

Barbara L. Burnett, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., and Kathlyn Giannaula, Glenn Gotschall and Jim Peacock, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.


W.C. DAVIS, Judge.

Appellant was convicted in Harris County of capital murder. See V.T.C.A., Penal Code § 19.03. After the jury affirmatively answered the three special issues in Art. 37.071, V.A.C.C.P., the trial court imposed the death penalty as required by law.

The indictment alleged the murder of Janet Caldwell in the course of committing and attempting to commit the underlying felony of robbery. V.T.C.A., Penal Code, § 19.03(a)(2).

Twenty points of error 1 are advanced by appellant on direct appeal. In one point he claims error in not quashing the indictment. In three points he contends the trial court erred in excluding for cause three prospective jurors in violation of Witherspoon v. Illinois, 391 U.S. 511, 88 S.Ct.

Page 316

1770, 20 L.Ed.2d 776 (1968). In five points of error appellant complains of the trial court overruling his motion to suppress and subsequent introduction into evidence of various physical items. In two points he complains of the admission of a witness's written statement into evidence as impermissible bolstering and hearsay. In another point he claims that a witness's on-the-scene oral identification statement was improperly admitted. In two points of error appellant argues that a witness's in-court identification was impermissibly tainted by an improper line-up procedure, and that the trial court erred by not granting a mistrial when a witness mentioned the suppressed lineup. In one point he contends he was improperly denied a jury instruction on the lesser included offense of murder. In another point he complains of the trial court's failure to grant a mistrial when the prosecutor commented on his failure to testify during final argument. Finally, in four points of error appellant contends that the evidence is insufficient to sustain either the guilty verdict or the affirmative answer given to all three special issues submitted at the punishment phase of trial. Given appellant's claims of insufficiency as to both stages of trial, a recitation of the rather lengthy facts as shown by trial testimony is both necessary and helpful in this case.

Thirty-five witnesses testified for the State during the guilt-innocence phase of trial including eye witnesses to the crime, witnesses who testified as to the subsequent conduct of the killer, and expert testimony regarding the physical and medical evidence introduced by the State. Viewed in the light most favorable to the verdict, the record reflects the following facts.

On August 10, 1983, at approximately 8:00 p.m. the deceased, Janet Caldwell, left her home in her black Chevrolet pickup truck and drove to the Weingarten's supermarket located on West 43rd Street in Houston to purchase groceries. The parking lot serving Weingarten's and other businesses is bounded by West 43rd Street on the south and Oak Forest Drive on the west. On the same evening, Lisa Janda also drove to the Weingarten's store and parked on the west side of the store next to the deceased's truck. Pulling into the lot, Janda noticed the legs and tennis-shoe-encased feet of someone lying underneath the deceased's parked truck. As she exited her own car and walked past the black pickup Janda greeted the unknown person but received no reply. At about the same time Ernest Warren, a casual acquaintance of the deceased, also noticed the deceased's truck in the parking lot but did not see anyone standing around the vehicle. As Warren walked toward the entrance to the store he encountered the deceased, who was exiting the store carrying two grocery bags and a purse. The two exchanged brief pleasantries and went on their respective ways, Warren into the store and the deceased toward the rows of parked vehicles.

LaVerne Morton was leaving the store by the west exit when he heard two screams and a cry for help. Approximately 70 to 100 feet away among the parked vehicles he observed a black male struggling with a white female next to a pickup truck. Morton testified that he saw the woman's head bobbing back and forth like she was holding on to something. After the outcry he heard two gunshots in close succession, then saw the assailant run west across the parking lot. Pausing beside a trash dumpster located next to the Parade Green Thumb Nursery on Oak Forest Drive, the assailant dropped something beside the dumpster, then ran north on Oak Forest Drive. At trial, Morton identified appellant as the assailant based upon appellant's physical description and clothing.

Lynne Coleman testified that she also pulled into the Weingarten's parking lot that evening and parked in a space in front and slightly to the left of the deceased's pickup truck. She testified that the driver's door to the truck was open, and through the window of the pickup she observed the arms of two people struggling. Being wary of the situation, Mrs. Coleman remained in her car throughout the incident and did not see the assailant, although she heard a gunshot during this time.

Page 317

Donald Austin was at Weingarten's with his wife and brother-in-law on the evening in question. As he walked toward the entrance to the store, he heard a scream. He turned, didn't see anything unusual, and turned back to continue. Hearing a second scream, he turned around and ran back toward the sound. After five or six steps he heard a gunshot or shots close together and saw the flash from the muzzle of the gun as it was fired. He observed two people, very close together, then a black man ran around the rear of the pickup, toward Oak Forest Drive. The man, who was wearing dark clothes with some type of lettering on the back of his shirt, tripped but picked himself up. He appeared to drop something at the dumpster, then turned right or north on Oak Forest Drive, and disappeared from view behind the nursery. Austin was the first individual to arrive at the victim's side.

Joe Cunningham had left the Weingarten's store and was at his own car when he heard a scream and observed two people ahead struggling. He saw a black male pull a pistol out and shoot the white woman. According to Cunningham, the assailant had shoved the woman back or pushed away from her. Then he had reached back, pointed the gun with his right hand and shot her. The assailant stumbled and then ran in the opposite direction toward a Gulf Service Station across the street from the parking lot and nursery on Oak Forest Drive, carrying what looked like a gun and a purse. Within 15 minutes police returned to the scene with a suspect. Cunningham went over to see the black male sitting in the back of the police car. Although he could not positively identify the man as the deceased's assailant since the killer had worn a white cloth over his face during the incident, Cunningham told police that the clothes, dark pants and dark shirt with white lettering, looked the same, and that the man in the back of the police car had the same build and features as the killer.

Raul and Flor Monzon were crossing the intersection of Oak Forest and West 43rd Street when Mrs. Monzon heard a woman scream. Mr. Monzon pulled the car into a Gulf Service Station across the street from the parking lot. Through the windows of their car, the Monzons observed a black male running through the parking lot and up to a dumpster across the street from them. Mrs. Monzon observed a covering over the man's face and testified he carried a gun in his right hand and a woman's handbag in his left hand. The man was wearing dark pants and a dark shirt with white lettering. Mr. Monzon remembered the black male crouching behind the dumpster, his eyes moving back and forth, but could not remember specifics as to the man's face or clothing. From the dumpster the man ran north up Oak Forest Drive and into a subdivision. The Monzons then drove over to the scene of the crime. Within 10 or 15 minutes after the man disappeared the police brought back a suspect who Mrs. Monzon identified as the man whose conduct she and her husband had observed. The basis of her on-the-scene identification was the man's physical characteristics as well as the clothing he was wearing. At trial she identified the appellant as the man she saw in the patrol car.

Two high school students, Donald McDaniel and Jerry Thompson, were working at the Oak Forest Gulf Station on the evening of August 10th. They heard screams and a gunshot. They saw a man back up from a pickup truck, turn and run toward the station and hide behind the dumpster across the street. The man was described as a black male, wearing dark clothes with something white over his face. The man was carrying a gun and a purse. As he crouched behind the dumpster, the man pointed a gun at the two young men across the street. Shortly thereafter the man ran from the dumpster, crossed the street and went behind the station. He was next seen running from behind the building down Oak Forest toward Overhill Street in the subdivision. Both boys remembered seeing Raul and Flor Monzon drive up and park in the station. McDaniel later identified the man brought back by the police to the crime scene as the man he had observed.

Page 318

Mr. and Mrs. Bruce Norton were also in the Weingarten's parking lot at about 9:00 p.m. that evening. While walking toward the store Mrs. Norton heard a scream and a gunshot, and observed a black male dressed in dark clothes and tennis shoes walking quickly with a woman's purse under his arm. She yelled to her husband, who turned his car around and chased the man. Mr. Norton saw the man go around the corner of the nursery. Following the man, Mr. Norton walked along the side of...

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