May v. State

• Decision Date: 18 February 1987
• Docket Number: No. 69453,69453
• Citation: 738 S.W.2d 261
• Parties: Justin Lee MAY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 261

738 S.W.2d 261

Justin Lee MAY, Appellant, v. The STATE of Texas, Appellee.

No. 69453.

Court of Criminal Appeals of Texas,

En Banc.

Feb. 18, 1987.

Jim D. Wiginton, Alvin, for appellant.

Jim Mapel, Dist. Atty. and Jim Turner, Asst. Dist. Atty., Angleton, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

CAMPBELL, Judge.

Appeal is taken from a conviction for capital murder. V.T.C.A., Penal Code § 19.03(a)(2). After finding the appellant guilty, the jury returned affirmative findings to the special issues under Article 37.071, V.A.C.C.P. Punishment was assessed at death. We will affirm.

The appellant was convicted of intentionally and knowingly causing the death of Jeanetta Murdaugh in the course of committing and attempting to commit the offense of robbery. The appellant raises eleven points of error. He challenges the denial of his motion to dismiss; the trial court's failure to strike the jury panel; the trial court's failure to give him notice of the list of venirepersons prior to trial; the exclusion for cause of two potential jurors; the removal of two other venirepersons upon the State's peremptory strikes; the denial of his motion to take depositions of three State's witnesses; the State's failure to disclose a change in the statement of the accomplice witness; the admission in evidence, at the guilt/innocence stage of the trial, of testimony regarding an extraneous offense and of a letter not produced before trial; and, finally, the sufficiency of the evidence to corroborate the testimony of the accomplice witness.

In his eleventh point of error, the appellant contends that the evidence is insufficient to corroborate the testimony of the accomplice witness, Richard Allen Miles.

Miles was an accomplice witness as a matter of law as charged by the court in its jury instructions at the guilt/innocence stage of the trial. He acknowledged three prior convictions and admitted that he had made an agreement with the State for his testimony: on his plea of guilty to a lesser offense, Miles was to receive a 42 year prison sentence, and the State would not oppose his eligibility for parole.

Miles testified that on June 26, 1978, he and the appellant drove from Houston to Freeport. He carried with him a .32 caliber pistol in the glove compartment of his car. After registering at a motel under an assumed name, Miles left the appellant and went to visit a friend. When he returned, the appellant outlined plans to commit a robbery at the Western Auto store operated by Frank and Jeanetta Murdaugh. The appellant had gone to the store earlier that day and had told the clerk that he was looking for a shotgun for a relative, and that relative would come in later to pick it up. Miles was to enter the store first, posing as the relative, and the appellant was to follow, armed with Miles' pistol. Miles was to select a shotgun and load it for additional security.

The next day, June 27, 1978, Miles drove past the Western Auto store and let the appellant out at the corner. He parked the car and went into the store, with the appellant following just behind him. The appellant's shirttail was out in order to conceal the pistol. Miles went to the gun racks and noticed Jeanetta Murdaugh behind the counter and Frank Murdaugh arranging inventory at a parts shelf. Miles selected a shotgun and Frank Murdaugh handed it to him. He took a shell and began to load the gun. Frank Murdaugh told Miles that loading the weapon was prohibited and reached for the gun. At that point, the appellant fired a shot, and Frank Murdaugh fell to the floor. Miles, startled by the shooting, fired his shotgun into the ceiling, dropped the gun and headed for the front door. Miles saw the appellant shoot again, this time at Jeanetta Murdaugh. As Miles was leaving, he noticed two black men in front of the store. He got into his car and drove into an alley behind the store. The appellant ran out of the store with an armload of guns, dropping one in the alley. He got into the car and returned the .32 revolver to Miles.

Miles testified further that in a conversation at the county jail several months before trial, the appellant informed him that the appellant's mother had disposed of a rifle and Jerry Barmore, a friend of the appellant's, would dispose of the rest of the guns.

Robert Dohle testified that on June 27, 1978, he went to the Western Auto store just prior to 6:00 p.m. As Dohle entered the store, he saw a man crouching outside and looking in the store window. When he saw Dohle, the man stood up, looked directly at Dohle, and walked away. Dohle entered the store and saw only Frank and Jeanetta Murdaugh present.

Upon hearing of the murders, Dohle called the Freeport police and gave a description of the man he had seen, including the detail that the man's shirttail was out. Six years later, Dohle identified photographs of the appellant, in two separate photo lineups, as the man he had seen on June 27, 1978.

Charles Wagner, who in 1978 was chief of detectives for the Freeport Police Department, testified that he investigated the scene of the offense. He saw Frank Murdaugh lying on the floor behind the counter and just outside the store's office; Jeanetta Murdaugh lay just inside the office. There was a hole in the ceiling above the gun rack, and eleven slots on the gun rack were empty. Next to the gun rack was an open box of shotgun shells with one shell missing. Two guns were found lying on the floor, and one gun was found in a pile of brush in the alley behind the store. After some investigation, Wagner determined that eight guns were missing from the store's inventory.

Oren Howard testified that he met the appellant at the Ramsey One Unit of the Texas Department of Corrections. During the course of a conversation with the appellant, Howard informed the appellant that he was from Freeport. The appellant then asked him whether he knew the location of the Western Auto store and told him that he and his "fall buddy was going to hit that Western Auto store and that old man and woman died."

Howard related that he and the appellant engaged in another conversation during which the subject of the Western Auto store robbery was raised. Richard Miles was present during this conversation and told Howard that the appellant would "shoot a man right off of you." Miles then discussed robbing another store in Old Ocean owned by an old man and old woman. This idea did not appeal to the appellant; he reminded Miles that a death sentence was waiting for them in Freeport. The appellant then gave Howard the following account of the Western Auto store robbery.

Told me that they pulled up to the store. He walked in first. Went over to some shelves where they put stuff on shelves. There was an elderly woman over there close to the shelves and an old man behind the counter. And that Miles walked in and was talking to the old man about a shotgun; wanted to look at a shotgun or something. He said the old man handed him a shotgun. Then he wanted some shells. He told him he would take the shotgun and wanted some shells. Said the old man handed him some and he started loading the shotgun in the store and said the old man snapped and grabbed the shotgun and told him he can't do it, and was wrestling over the shotgun and it went off and hit the ceiling. The old woman hollered and started running that way and Justin [the appellant] said he blowed her away from behind. And they was still wrestling over the shotgun; this old man and Miles.

Miles then told Howard that "he [Miles] turned around and looked at Justin and Justin spun around and shot the old man off of him."

Howard stated that the appellant then told Miles, "Let's get it." The appellant took some money from under the counter and some guns. As the appellant and Miles were leaving the scene, a car pulled up and they saw two black men in it. The appellant told Howard that "one of them got out and they both opened up on them and they took off running and driving off." The appellant also told Howard that more than one pistol was used in the robbery, and he had thrown the pistols involved into the Gulf.

Sam Cietto, a representative of the appellant's 1978 employer, testified that on June 26 and 27, 1978, the appellant was absent from work without excuse.

C.E. Anderson, a firearms examiner for the Houston Police Department, stated that five of the six rounds recovered in the Western Auto store could be positively identified as .32 caliber, and that they came from the same weapon.

Oven V. "Jerry" Barmore testified that he knew the appellant. He acknowledged possession of two of the weapons stolen in the Western Auto robbery, although he denied receiving the guns from the appellant.

Dr. Joseph Jachimcyzk, Chief Medical Examiner of Harris County, performed the autopsies on Frank and Jeanetta Murdaugh. He described two bullet wounds sustained by Jeanetta Murdaugh and four bullet wounds sustained by Frank Murdaugh. Two .32 caliber bullets were recovered from each body.

Retha May, the appellant's mother, identified a letter from her son directing her to dispose of a .308 rifle. Chief Wagner confirmed that a .308 rifle stolen from the Western Auto store had not been recovered.

Article 38.14, V.A.C.C.P., provides as follows:

A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.

The trial court charged the jury that Miles was an accomplice and that the appellant could not be convicted without corroboration of Miles' testimony. The appellant contends that there is insufficient evidence to corroborate Miles' testimony to the commission of murder and of robbery or attempted robbery.

Arguing that the evidence is insufficient to corroborate the accomplice testimony regarding the...