Mallicote v. State
| Decision Date | 16 March 1977 |
| Docket Number | No. 52627,52627 |
| Citation | 548 S.W.2d 42 |
| Parties | Loysie M. MALLICOTE, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
This is an appeal from a conviction for murder under V.T.C.A., Penal Code, Sec. 19.02 upon a plea of not guilty before a jury. The court assessed punishment at ten years' confinement.
This is a case of circumstantial evidence in which we find a multitude of unexplained contradictions in the testimony of the material witnesses. Said evidence may be summarized as follows:
Officer M. D. Cosby of the Dallas Police Department responded to a shooting call during the early morning of April 12, 1974. Upon his initial examination of the apartment he found the body of Everette Leroy Rankin lying on a sofa in the living room. He observed a chest wound in the deceased's body. He further testified that there appeared to have been a struggle and that appellant was in the room muttering, "I had to do it". In his opinion appellant was intoxicated.
Officer J. M. Hunter also responded to the call. He observed a .20 gauge shotgun lying on the floor approximately three feet from the deceased with a barrel pointed away from the body. The presence of broken glass, bottles and an overturned ashtray on the floor indicated to Hunter that a struggle had taken place. Appellant appeared to Hunter to be intoxicated and incoherent. The medical examiner told Hunter that in his opinion the shotgun had been held from six inches to one foot of deceased's body when fired.
Officer Glenn E. Thompson, an investigator from the Crime Scene Search Section of the Dallas Police Department, testified to recovering the shotgun from the apartment approximately eight to twelve inches from the deceased. It was his opinion that a struggle had taken place.
Dr. Vincent DiMaio of the Dallas County Medical Examiner's Office testified that the muzzle of the shotgun was approximately one or one-half inch from Rankin's chest when he was shot and that the weapon was held at a high angle. When the shotgun was discharged, the muzzle was underneath Rankin's undershirt. At the time of death the deceased's blood alcohol level was .283 which indicated to Dr. DiMaio that the deceased was almost to the point of intoxication at which he would lose consciousness. It was Dr. DiMaio's opinion that Rankin's death was a homicide.
The deceased's brother, Jamie Earl Rankin, testified to the deceased's illness and stated that in his opinion his brother would not commit suicide. His testimony concerning an encounter with appellant two and one-half years prior to the shooting forms the basis of appellant's complaint in her First Ground of Error and will be discussed there.
Veedia Garner, called by appellant, lived in a neighboring apartment and testified that she was called into the hallway on the night of April 13, 1974, at which time appellant asked her to accompany appellant to appellant's apartment. When Garner refused, appellant stated, "I think something has happened", and "Well, I think there's somebody down there dead". Garner heard no gunshot and did not think appellant had been drinking. She testified that the deceased was "sickly" and appellant expressed concern over his condition. She also stated that in the past appellant had requested her to dial the telephone for appellant who was unable to do so because of an infirmity in her arms.
Sue Williams shared a common wall with appellant and deceased's apartment. She heard no shot or disturbance, but called the police at the request of appellant and Garner. Williams testified that appellant did not appear intoxicated. Contrary to Officer Cosby's testimony, she stated that she was with appellant and Garner when the first officer arrived and that the officer...
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