Marshall v. State
| Decision Date | 20 December 2006 |
| Docket Number | No. AP-75048.,AP-75048. |
| Citation | 210 S.W.3d 618 |
| Parties | Gerald Edward MARSHALL, Appellant, v. The STATE of Texas. |
| Court | Texas Court of Criminal Appeals |
Wayne T. Hill, Houston, for Appellant.
Eric Kugler, Asst. D.A., Houston, Matthew Paul, State's Atty., Austin, for State.
Appellant and several other people were involved in a robbery during which the victim was shot once in the face and killed. A jury convicted appellant of capital murder as a result of this event. The trial court sentenced appellant to death pursuant to the jury's answers to the special issues submitted at the punishment phase of trial. Finding the thirteen points of error raised by appellant's counsel to be without merit, we affirm the trial court's judgment.1
It is necessary to set out in some detail the evidence presented in this case because appellant claims in point of error three that the evidence is factually insufficient to support a finding that he shot the victim. The jury charge authorized the jury to convict appellant of capital murder only if it found that appellant himself shot the victim (there was no parties instruction in the charge).
The record reflects that around 4:00 a.m. on May 11, 2003, appellant, Ronald Worthy and Kenny Calliham were involved in a robbery at a Whataburger restaurant during which a mentally retarded Whataburger employee was shot at close range through the left eye and killed. The Whataburger drive-through window was open, but the doors to the Whataburger were locked. The police were unable to enter the Whataburger through these doors when they responded to a robbery in progress call.
The evidence shows that appellant, Worthy and Calliham pulled up to the Whataburger drive-through window in a car driven by Calliham. The car belonged to the boyfriend of appellant's sister (Julia). One of the car's occupants entered the Whataburger through the drive-through window armed with a pistol. A Whataburger employee (Marsh) saw this armed assailant exit the back seat of the car and come through the drive-through window. Marsh hid behind some boxes in a storeroom where he could "see and hear."
Marsh testified that the victim ran out the back door and slammed it against the assailant who was chasing the victim. Marsh heard the assailant hit the door several times while the victim attempted to keep it shut from the outside. Marsh also heard the assailant tell the victim to open the door. Marsh heard the back door open. Marsh testified that the assailant and the victim went out the back door which then shut and locked.
Marsh did not hear anything for "about two minutes" at which time he "heard a noise inside the building again." Marsh then heard the same assailant inside the Whataburger close to the back door tell the victim three times that he would kill him if the victim did not produce the key to the safe.2 Marsh heard the victim tell the assailant twice that he did not have the key to the safe. Marsh testified that the assailant shot the victim just after the assailant threatened him the third time. Marsh could only see the back part of the victim and "[v]ery little of the [assailant]."
Marsh also testified that he never heard or saw a second assailant inside the Whataburger and that "the person who shot [the victim] was the same person [he] saw come through the window." Marsh testified:
* * *
Q. Is there any doubt in your mind that the person who shot [the victim] was the same person who you saw come through the [drive-through] window?
A. That's the same person I saw coming through the [drive-through] window and shot [the victim].
Another Whataburger employee (Ketchum) hid in a freezer when he saw the assailant enter the Whataburger through the drive-through window. Ketchum testified that the assailant was wearing a baseball cap and had a red bandana "cowboy style" over his mouth. Ketchum also testified that the assailant had a silver gun. Marsh testified that he thought the assailant was wearing a black bandana and no hat. Marsh testified that the assailant had a shiny gun. Appellant's girlfriend (Woods) testified that she saw appellant with a silver gun about three hours after the victim's murder. Appellant admitted in a statement to the police that Woods saw him with a silver gun about five hours before the victim's murder. The police recovered a fired bullet and a shell casing from the crime scene. The murder weapon was never recovered.
The police believed that the robbery was an "inside job" also involving the Whataburger night-manager (Love), who knew appellant from having worked with him at another fast-food restaurant. Evidence was presented that Love was supposed to be at the Whataburger during the robbery and give the robbers about $7,000 without anyone getting hurt. Love, however, left the Whataburger before the offense was committed. When questioned by the police on the afternoon of May 11th, Love denied any involvement in the offense. Love's cell phone records showed numerous calls to Julia's apartment before the victim's murder. Appellant told Woods shortly before the offense that he planned to rob some Whataburgers, and Woods saw appellant with a napkin that had Love's first name and phone number written on it.
The day after the offense, the police received a Crimestoppers tip that two persons nicknamed "Bo" and "Tank" were involved in the offense and that "Bo" was the shooter. The police investigation revealed that appellant went by the nickname of "Tank." The police initially believed that a person whose last name was Robinson was the "Bo" mentioned in the Crimestoppers tip. The police showed Marsh a photospread containing appellant's picture and a photospread containing Robinson's picture. Marsh did not pick anyone out of the photospread containing appellant's picture. Marsh immediately picked Robinson out of the photospread containing his picture.
The police, however, eventually eliminated Robinson as a suspect. One of the homicide investigators (Moreno) believed that there was a "strong resemblance" between Robinson and Worthy who also went by the nickname of "Bo." The police arrested appellant, Worthy, Calliham and Love who were all charged with capital murder. The police recovered the car that was used in the offense at the home of appellant's aunt.
At trial, Marsh identified appellant as the one he saw come through the Whataburger drive-through window. Marsh testified that he meant to pick appellant's picture (not Robinson's) when the police showed him the two photospreads. The record reflects that Marsh never identified appellant before trial as the person he saw come through the Whataburger drive-through window.3
Calliham testified that Worthy was in the front passenger seat and appellant was in the back seat when he drove the car up to the Whataburger drive-through window. Calliham claimed at trial that he was unaware of any planned robbery until appellant went inside the Whataburger through the drive-through window with a silver pistol in his hand. Calliham testified that he did not see where Worthy went but it seemed like Worthy was chasing him as he drove off into a parking lot. Calliham also testified that he could see Worthy behind the car when he heard a single gunshot.
Calliham also testified that he made a deal with the State to plead no contest to an aggravated robbery charge with no adjudication and receive ten years "probation" in exchange for his testimony. On cross-examination, Calliham testified that he previously told the police that appellant had a black pistol and that he did not know where Worthy went when appellant went inside the Whataburger through the drive-through window. Calliham also testified on cross-examination that he previously told the police that, after he heard a gunshot, he saw both appellant and Worthy with pistols running back to the car from the area of the drive-through.
A county jail inmate (Green) testified that in August 2003 appellant told him that he was the one who shot the victim. Green was facing 25 years to life on pending charges. He made a deal with the State for a year in the county jail on these charges in exchange for his testimony.
The State also presented evidence that appellant initially told the police that he was not involved in the offense. Appellant later admitted to the police (homicide investigator Scales) that he, Calliham and Worthy were involved in the offense. Appellant claimed, however, that his involvement in the offense was minimal, limited to watching the back door with a brown gun with no bullets in it, while only Worthy went inside the Whataburger through the drive-through window and killed the victim.4
Appellant also told Scales that he was in the back seat of the car when it pulled up to the Whataburger drive-through window. Scales testified at trial:
Q. About a line or so below there you say, Who was in the driver's seat? And [appellant] said [Worthy].
A. Correct.
Q. At all other times did he not just tell you that [Calliham] was driving?
A. He did refer that [sic], yes.
Q. So, with that—if you know, was that simply a mistake on his part or he didn't understand the question or something wrong? Beca...
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