May v. State

• Citation: 618 S.W.2d 333
• Decision Date: 20 May 1981
• Docket Number: No. 66248,66248
• Parties: Robert Allan MAY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 333

618 S.W.2d 333

Robert Allan MAY, Appellant, v. The STATE of Texas, Appellee.

No. 66248.

Court of Criminal Appeals of Texas, En Banc.

May 20, 1981.

Rehearing Denied July 15, 1981.

Ken J. McLean, W. B. "Bennie" House, Jr., Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., Susan W. Crump, and Ted Poe, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

DALLY, Judge.

This is an appeal from a conviction for capital murder. The punishment is death.

The appellant asserts twenty-nine grounds of error. Since he complains that the evidence is insufficient to corroborate accomplice witness testimony, a detailed recitation of the facts is necessary.

Appellant was indicted for the murder of his stepfather, Roy Melton Ayotte. It was alleged that the appellant, for remuneration and the promise of remuneration, hired Arthur Smith to kill Ayotte. Ayotte had been shot once; his body was found outside the Acme Refrigeration Company located at 3111 Polk Street in Houston.

Arthur Smith, who admitted he shot the deceased, pled guilty to murder and testified as a State's witness in return for the State's promise not to seek the death penalty against him. The appellant did not testify.

Smith, a part-time employee at a service station owned by Troy Pardue, testified as follows concerning the events preceding the commission of the offense: He became acquainted with appellant in 1976 and in late September or early October, 1977, appellant approached him about killing the deceased and told him that upon the death of the deceased, the Acme Refrigeration Company, a business then owned and operated by the deceased, would pass to appellant's mother who in turn would allow appellant to operate the business. In return for the killing, appellant promised him payments of $1,000 and a 1968 Oldsmobile immediately after the killing and approximately $4,000 and a job within the following three year period. In preparation for the killing, he and appellant discussed various ways to kill the deceased and various alibis he could use. On four different occasions, he and appellant went to the Hot Wells Shooting Range to practice shooting appellant's .30-.30 Winchester rifle; the same rifle he used to shoot the deceased. While at the shooting range on one of these occasions in late October, 1977, he remembered seeing two police officers target practicing and he also remembered that appellant purchased a new box of ammunition for the rifle. In early November, 1977, appellant delivered a .38 caliber pistol to him, assisted him in placing a lawnmower muffler on the barrel, and instructed him to use it to kill the deceased on Saturday, November 12, 1977. He decided, however, to make no attempt to kill the deceased on either that Saturday or the following Saturday, November 19. Then on November 26, he attempted to kill the deceased, but the shot he fired with the pistol missed. The following week appellant delivered his .30-.30 Winchester rifle to him in exchange for the pistol and instructed him to kill the deceased on December 3, 1977. Appellant told him to park on Polk Street across from the Acme Refrigeration Company and shoot the deceased with the rifle before the deceased entered the building.

Smith further testified as follows concerning the events surrounding the commission of the offense: He left work on the morning of December 3, 1977, armed with appellant's rifle. He drove appellant's blue Dodge automobile and parked on Polk Street across from the Acme Refrigeration Company. While waiting for the deceased, he observed William Miller and a man named Wayne driving around in the area and he then recalled that Miller had been present on a number of occasions when he had discussed killing the deceased with appellant. When the deceased arrived around 9:30 a. m., he shot the deceased one time with the rifle. At approximately this same time, he observed Miller and Wayne drive away from the scene. He then left the murder scene, placed the rifle in the trunk of the blue Dodge and returned to work that afternoon. Subsequently, he hid the rifle in the garage attic of Pardue's home. Appellant came by Pardue's service station later that day as did Miller and Wayne. He did not discuss the payment with appellant at that time. He did, however, discuss the killing with Miller and he told Miller that he was waiting for appellant to pay him for the killing. That evening he and Pardue went to Pardue's home and while he was there appellant called him on the phone and later came by to get him. He, appellant, and a woman named Vera then went to get the 1968 Oldsmobile before going over to appellant's home where he then received from appellant $150 in cash, papers to the car, and a promise that an additional $350 would be left for him in an envelope at Pardue's service station. After arguing with appellant about a change in the payment terms, he left to visit his estranged wife, Rhonda Stovall. He told Stovall about the killing of the deceased and appellant's involvement in the killing. He left her some of the $150 he was paid by appellant and he then drove to his sister's home in Louisiana. The following day, however, he returned to Houston for the purposes of collecting the $350 from the appellant and revisiting Stovall. He was unsuccessful in his attempt to collect the money from appellant, but he did revisit Stovall. He then returned to Louisiana where he was subsequently arrested for this murder. At the time of his arrest, he was driving the 1968 Oldsmobile given to him by appellant on the day of the murder.

The trial court properly instructed the jury that Smith was an accomplice witness as a matter of law. A conviction cannot be had upon the testimony of an accomplice witness unless that testimony is 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. Art. 38.14, V.A.C.C.P.

Troy Pardue testified that Smith left work at approximately 9:00 a. m. on December 3, 1977, Smith did not return to work until the afternoon of the same day, and appellant also came by his station the same afternoon. He and Smith left work around 7:00 p. m. and went over to his home. Shortly thereafter, appellant called on the phone and asked to speak with Smith. Approximately thirty minutes after the phone call, he heard a car horn outside and Smith left. He did not, however, observe the occupants of the car.

Rhonda Stovall, Smith's estranged wife, testified that as early as November, 1977, Smith had mentioned killing a man for appellant. She also testified that Smith visited her around 10:00 p. m. on the night of December 3, 1977, and told her about the killing of the deceased and appellant's involvement in the killing. He left her some money which he told her was part of the payment he received from appellant for killing the deceased. The following evening, he again visited her.

Stovall further testified that based on what Smith had told her about the killing, she contacted Houston police officers by phone on two different occasions. In the first phone call, she told police officers that she thought the rifle Smith used could be found in the trunk of a blue car which was parked at Pardue's service station. In the second phone call, she told police officers that she subsequently learned the rifle Smith used in the killing could be found in Pardue's garage attic.

R. L. Deloney, an officer of the Houston Police Department, testified that he received two phone calls after the killing of the deceased and that the caller identified herself as Rhonda Stovall on the second phone call. Based on Stovall's information, police officers recovered a spent .30 caliber cartridge on a desk at Pardue's service station and a .30-.30 Winchester rifle in Pardue's garage attic. These items were admitted in evidence.

G. E. Thysson and J. E. Wiggens, officers of the Houston Police Department, testified that they observed appellant with Smith at the Hot Wells Shooting Range in late October, 1977, and that he was carrying a .30-.30 Winchester rifle; the same type of rifle as the one admitted in evidence. They also observed appellant coming out of the office of the Hot Wells Shooting Range carrying a new box of ammunition.

Larry Hoffmaster, an officer of the Houston Police Department, testified that he and other officers conducted a search of appellant's home and discovered a box of ammunition containing .30 caliber cartridges. The box was minus six cartridges. Dallas Lamar, the secretary/manager of the Hot Wells Shooting Range, testified that the handwritten price marking on the box of ammunition recovered from appellant's home appeared to be the handwritten price marking that she placed on boxes of ammunition from her shooting range. Officer Hoffmaster further testified that he recovered the fatal bullet at the murder scene. Although the bullet was badly damaged, Robert Warkentin, a chemist, testified that it was a .30 caliber bullet.

William Miller was called by the State as a rebuttal witness. Appellant argues that Miller's testimony may not be considered in corroboration of Smith because Miller was an accomplice witness as a matter of law. See Caraway v. State, 550 S.W.2d 699 (Tex.Cr.App.1977); Chapman v. State, 470 S.W.2d 656 (Tex.Cr.App.1971).

Miller testified that appellant told him on at least three occasions prior to December 3, 1977, that he (appellant) wanted a man on Polk Street killed and that he (appellant) had hired Smith to do the killing. He further testified that Smith was present on at least two of these occasions and that Smith had also told him that he (Smith) had been hired by appellant to kill a man on Polk Street. On the evening of December 2, 1977, appellant delivered to him a .38 caliber pistol with a lawnmower muffler attached. The following morning, he and ...