Mays v. State
| Decision Date | 03 December 1986 |
| Docket Number | No. 69287,69287 |
| Citation | 726 S.W.2d 937 |
| Parties | Noble D. MAYS, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Appeal is taken from a conviction for capital murder. V.T.C.A. Penal Code Sec. 19.03(a)(2). Trial was transferred on a change of venue from the 158th District Court of Denton County, to the 46th District Court of Wilbarger County. 1 After finding appellant guilty, the jury answered yes to the special issues under Art. 37.071(b), V.A.C.C.P. Punishment was assessed at death.
In two grounds of error appellant challenges the sufficiency of the evidence to support the conviction.
James Thomas Moore testified that he and appellant discussed stealing an automobile in order to go to Dallas and get money. Moore told appellant he knew someone who owned a white Lincoln Continental and who frequented Lucy Park in Wichita Falls.
On the date of the murder, Moore and appellant were playing basketball in Lucy Park waiting for the owner of the automobile to arrive. A white Lincoln Continental with four people inside drove through the park. The car returned ten or fifteen minutes later, and a friend of Moore's, named Roy, got out. Moore and appellant went to talk to Roy, and the white Lincoln left. Thirty or forty minutes later, the car returned, with only the driver inside.
Moore testified that the driver of the white Lincoln motioned for him to come over to the car, and asked him if he wanted to sit in the passenger side. After Moore got in, the driver asked Moore if he wanted to go riding around with him. Moore asked him if appellant could go also. After some hesitation, the driver said it was all right. Moore got out of the car and told appellant that the driver looked like a good prospect to steal a car from. Appellant told Moore to ask the driver if he would take them to check on his wife's stalled car. Appellant and Moore returned to the car. Appellant sat in the back seat, behind the driver, and Moore sat in the front seat. While driving around, Moore asked the driver to go check on appellant's wife's car, and the driver agreed.
The two men directed the driver to a remote spot on Anchor Road. According to Moore, appellant took out a knife, placed it to the driver's chest, and told him to pull over to the side of the road. Appellant then told the driver to give his money, jewelry, keys, and wallet to Moore. The victim complied and then got out of the car and started running down the road. Moore caught the victim about thirty-five yards away from the car. Appellant caught up with them, and started hitting the victim. The victim fell in a ditch. Appellant stabbed him twice in the back and once in the chest with a knife. Moore and appellant left. The victim died from his wounds.
Omitting the formal parts, the indictment charged that appellant and Moore did:
"intentionally cause the death of an individual, J____ L____, by stabbing him with a knife and the said Noble D. Mays, Jr. and James Thomas Moore did then and there intentionally cause the death of the said J____ L____, in the course of committing and attempting to commit the offense of robbery, to wit: Noble D. Mays, Jr. and James Thomas Moore did then and there while in the course of committing theft and with intent to obtain property of J____ L____, to wit: lawful United States currency, without the effective consent of the said J____ L____ and with intent to deprive the said J____ L____ of said property, did then and there intentionally and knowingly cause bodily injury to the said J____ L____ by stabbing him with a knife against the peace and dignity of the State."
The record reflects that the trial court instructed the jury as follows:
"If you find from the evidence beyond a reasonable doubt that on or about the 7th day of April, 1979, in Wichita County, Texas, the defendant, Noble D. Mays, Jr., and James Thomas Moore did intentionally cause the death of J____ L____ while in the course of committing or attempting to commit the offense of robbery, to-wit: lawful United States currency, without the effective consent of the said J____ L____ and with intent to deprive the said J____ L____ of said property, did intentionally or knowingly cause bodily injury to the said J____ L____ by stabbing him with a knife, then you will find the Defendant guilty of capital murder."
Appellant contends in ground of error nineteen that because there was no evidence that Moore intentionally caused the death of the victim by stabbing him with a knife--as alleged in the indictment and required by the court's instruction to be proved--then the evidence is insufficient to support the conviction.
Appellant concedes that the trial court did not instruct the jury that appellant's culpability for the murder could be proved through the law of parties. The caption on the charge lists only the name of appellant, and the opening paragraph recites that "The defendant, Noble D. Mays, is charged with the offense of capital murder, alleged to have been committed ..." All other portions of the charge simply refer to the accused as the "defendant," including the court's charge on the necessity to corroborate the testimony of the accomplice witness James Thomas Moore. The State did not rely on any act of Moore's to prove that appellant killed the deceased by stabbing him with a knife. The charge states that James Thomas Moore is an accomplice witness. No element of the murder case against appellant required proof of the same element against Moore. To that extent, the indictment's murder allegations against Moore are surplusage with respect to appellant.
Upchurch v. State, 703 S.W.2d 638, 640 (Tex.Cr.App.1985).
In the instant case, the indictment alleged all the elements of appellant's conduct that constituted murder, i.e., that he intentionally caused the death of an individual by stabbing him with a knife. The surplus matter in the indictment having to do with Moore's stabbing the victim does not describe or explain this conduct of appellant's. As to appellant, therefore, the matter in the indictment regarding Moore's stabbing the victim was surplusage, proof of which was unnecessary to support the conviction. If that matter had been excised from the indictment, the allegations regarding appellant's culpable conduct would have remained unchanged. As in Upchurch, supra, "The conduct comprising the offense would have remained exactly the same regardless of the truth or falsity of the unnecessary matter in the indictment ..." Id. at 641. We hold therefore that the matter in the indictment regarding Moore's stabbing of the victim was surplusage with respect to appellant. Proof of that surplusage was not needed to support the conviction. Ground of error nineteen is overruled.
Appellant contends that the evidence is insufficient to support the conviction because the accomplice's testimony was not corroborated. Although the indictment alleges the taking of "lawful United States currency" only, Moore testified that he and appellant took the deceased's jewelry, money, wallet, and car. Appellant claims that Moore's testimony was the only evidence of the taking of "lawful United States currency", and that Moore's testimony on this point was therefore uncorroborated. Appellant concludes that the evidence is, for this reason, insufficient to support the verdict.
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."
Appellant admitted in his written confession introduced at trial that he killed the deceased. Moreover, two witnesses testified that appellant admitted to them that he had killed the deceased in the course of a robbery. We find that other evidence tending to connect appellant with the offense adequately corroborated the accomplice's testimony. Thompson v. State, 691 S.W.2d 627 (Tex.Cr.App.1984); see also Killough v. State, 718 S.W.2d 708 (Tex.Cr.App.1986) and Brown v. State, 672 S.W.2d 487 (Tex.Cr.App.1984). Ground of error number twenty is overruled.
Appellant argues in his first ground of error that the entire indictment had been dismissed prior to trial. The record reflects that on July 27, 1979, appellant and James Thomas Moore were charged in a two-count indictment with the offenses of capital murder and murder, respectively. 2
Before appellant's trial, Moore entered a plea of guilty to the offense of murder as alleged in Count Two of the indictment. The State then filed a motion to dismiss the first paragraph of the indictment. The caption of this motion reads "THE STATE OF TEXAS VS. JAMES THOMAS MOORE." The motion reads as follows: "Comes Now the State of Texas by and through her Attorney and requests leave of the Court to dismiss the first paragraph of the indictment in this cause." (Emphasis added.) The trial court granted the motion. The State also filed a motion to dismiss the second count of the indictment. The caption of this motion reads "THE STATE OF TEXAS V. NOBLE D. MAYS, JR." The wording of the motion requests "the court to dismiss the second count in the above entitled and numbered criminal action in which defendant is charged with the offense of murder...." The trial court granted the motion.
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