Madden v. State, 69625

• Citation: 799 S.W.2d 683
• Decision Date: 12 September 1990
• Docket Number: No. 69625,69625
• Parties: Robert MADDEN, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 683

799 S.W.2d 683

Robert MADDEN, Appellant, v. The STATE of Texas, Appellee.

No. 69625.

Court of Criminal Appeals of Texas,

En Banc.

Sept. 12, 1990.

Rehearing Overruled Nov. 28, 1990.

William F. Carter, Madisonville, for appellant.

Latham Boone, Dist. Atty., and David S. Barron, Asst. Dist. Atty., Anderson, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

MILLER, Judge.

Appellant was convicted by a jury of capital murder. V.T.C.A. Penal Code § 19.03(a)(2). ¹ The trial judge assessed appellant's punishment at death by lethal injection after the jury returned affirmative answers to the special issues submitted pursuant to Art. 37.071(b)(1) and (2), V.A.C.C.P. Appellant raises seven points of error in this direct appeal. Finding no reversible error in these points, we affirm the conviction.

Appellant contends in his first point of error that the trial court erred in overruling his motion for instructed verdict which he made at the conclusion of the State's presentation of evidence in its case-in-chief. In his verbal motion, appellant alleged (1) the evidence was insufficient to support a guilty verdict because it failed to establish guilt beyond a reasonable doubt, and (2) the evidence was insufficient to prove guilt beyond a reasonable doubt as to both counts of the indictment. ² The trial judge overruled the motion.

A challenge to the trial judge's ruling on a motion for an instructed verdict is in actuality a challenge to the sufficiency of the evidence to support the conviction. In reviewing the sufficiency of the evidence, we consider all the evidence, both State and defense, in the light most favorable to the verdict. ³ Moreno v. State, 755 S.W.2d 866 (Tex.Cr.App.1988). If the evidence is sufficient to sustain the conviction, then the trial judge did not err in overruling appellant's motion. Since the State's evidence is entirely circumstantial, we proceed to a very detailed review of all the evidence presented during trial.

On September 15, 1985, Herbert Megason and his son Gary went to their weekend home in Leon County. Herbert owned a tract of land on which he had built a small cabin, and he was working on a fence and a barn at the property. Harold Watkins, Herbert's employer, testified Herbert worked in his grocery store on Saturday, September 14, 1985, and was to return to work early the following Tuesday. After Herbert failed to return to work, Watkins became concerned about Herbert's welfare, so Bob Blanton, a friend of Herbert's, drove out to the property Wednesday evening but found "everything in order". When Herbert again failed to show for work on Thursday, September 19th, Watkins notified Jewel Megason, Herbert's ex- wife; Pam Megason, their daughter; and John Madden ⁴, mayor of Marquez, the town near the Megason campsite ⁵. Watkins also testified he sold to Herbert a .38 Charter Arms Snubnosed pistol, which he kept at the grocery store while working, and a .22 Magnum Winchester rifle. Germane to this latter testimony, one of Herbert's friends, Gary Blalock, who had been to the campsite with Herbert ten or twelve times to hunt and work, testified Herbert usually took a .22 rifle and a .410 shotgun with him to the campsite, but he always took the .38 pistol which he kept in a red toolbox.

Two neighboring property owners testified to seeing Herbert's truck ⁶ in the vicinity of his property on September 15, 1985. Jessie Peyton, whose mobile home is at the first gate ⁷ off the main road leading to the property, stated he was in his kitchen looking through the window when he saw Herbert drive through the gate at approximately 8:30 a.m. or 8:45 a.m. Peyton had "no doubt" it was Herbert because not only did he recognize the truck, but also he saw Herbert "turn[ ] and look[ ] up the hill towards the house as he usually does." Peyton stated Herbert was driving slowly, as usual, since the road is unpaved, but he could not see whether Gary was in the car with Herbert because the camper on the truck blocked the view. Later in the day, at about 1:00 p.m., Peyton stated he heard the gate being opened again, but he did not recall any other vehicles going through the gate that day.

The other neighbor, Paul Schultz, testified his property is one-quarter mile from Peyton's, between Peyton's and the Megasons'. Schultz was sitting in the door of his house when he saw Herbert's truck go by at about 12:30 p.m. or 1:00 p.m. Schultz saw only one person in the truck whom he could not describe although the individual waved to him. Schultz corroborated Peyton's testimony that Herbert generally drove slowly, and he noted that, in this instance, the driver of the truck "was coming out a little faster than the old man usually come (sic) out". Schultz further stated he saw no other vehicles going in or out of the gate that day.

Jewel Megason and other family members went to the campsite on Friday, September 20th. Jewel met Madden and a deputy sheriff at the campsite. Inside the cabin, which was locked, Jewel found several things "unusual" (an overturned ashtray by the bed, a greasy skillet on the stove, opened windows, and the fact that the steps were not against the building). The party then discovered the bodies of Herbert and Gary in a creek a short distance ⁸ from the cabin.

Madden testified that the "creek" was a ditch with water running through it, and Herbert's and Gary's bodies were placed in the creek feet to feet, up against a steel barricade which served as a dam. The bodies were covered with brush which Madden stated was "very definitely" an attempt to hide them. The brush consisted mostly of deadwood which had either fallen onto or been placed over the bodies, and there was also one small log with a fairly large root system over the bodies. Leon County Deputy Sheriff Gary Rosier described the logs covering the bodies as "pretty big", with one being a small tree, possibly twelve feet long. Rosier stated "two or three or four" persons moved this log so as to recover the victims' bodies. He did not notice any drag marks on the ground, which was dusty and sandy. Madden saw distinct tire tracks from the incoming road to the cabin, but the tire tracks and footprints leading toward the creek had been almost "obliterated" by the cattle which roamed the property. Madden therefore could not definitely say whether any of the tire tracks actually led to the creek or how recently any of the tracks had been made.

Prior to his testimony concerning the covering of the bodies, Rosier testified that after learning on September 19, 1985, that Herbert and Gary were missing, he went to the campsite that evening. Rosier stated the area was well-organized and neat, with no vehicles present, and he saw nothing in the gully when he walked by. Rosier of course returned to the property the next day to meet Jewel Megason and the others. In the cabin, he discovered blood splatters under a cot, which tested positive for human blood, on paper sacks, and on the doorjamb. Rosier also found a bullet projectile on the floor underneath the cot, which had a corresponding hole in it, and another bullet projectile embedded in a mattress leaning against the wall of the cabin.

Rosier also investigated, on October 3, 1985, an abandoned car found approximately one mile north of where the Megasons' bodies were found. The car, a green 1980 Honda Civic station wagon, license plate number VAP 772, had a flat tire, and the gas gauge indicated empty. No fingerprints were found on the Honda. James Hoyle, Service Manager for Commercial Printing Co. in Killeen, identified this station wagon as the one driven by appellant when making deliveries for the company. Appellant had worked for the company for approximately three weeks, until September 12, 1985, when he failed to show for work. Hoyle also testified that he discovered on September 12th that the delivery vehicle was missing, and he stated that only he and appellant had driven the car the previous day. Although other employees had access to the keys to the Honda, they all returned to work on September 12th. Appellant's grandfather, C.P. Streit, testified that in early October his daughter, appellant's mother, told him appellant had called her and said he left this car "at the deer lease." Many years ago, appellant and Streit had hunted at a lease which was located in the general vicinity of the Megason property.

Texas Ranger Bob Connell also investigated the scene with Rosier and Sheriff Royce Wilson on September 21, 1985. He was unable to obtain any good fingerprints from the cabin because of the extremely dusty conditions in and around the cabin, but he did question a man named Jerry Baker whom Herbert had had an altercation with in the past. ⁹ Connell also questioned two other men, brothers Paul and Randy Timmerman, who had been at the cabin approximately one year prior to this incident. According to Connell, all three men gave satisfactory explanations regarding their whereabouts on September 15th, and no fingerprints or blood samples were taken from any of the men.

Madden also testified to the condition of the victims' bodies when they were recovered from the creek. Gary's hands had been tied behind his back, and, with a second rope, his right ankle was doubled up behind him and tied to his hands, otherwise described as being "hogtied". His throat had been severed, and he had a large wound to his right shoulder. As to Herbert, Madden stated only that his hands were not tied together but his feet were loosely tied with bailing wire. The zippers were down on both of the men's pants. Sheriff Wilson testified that no personal property, i.e. wallets, car keys, money, watches, or rings, were found on the bodies.

Doctor Eduardo Bellas, Assistant Medical Examiner for Harris County, performed the autopsies on both Gary and Herbert on September 21, 1985. The immediate cause of death for Gary was the cut to his throat which was a deep and...