Mays v. The State Of Tex.

• Decision Date: 25 August 2010
• Docket Number: No. AP-75,924.,AP-75
• Citation: 318 S.W.3d 368
• Parties: Randall Wayne MAYS, Appellant,v.The STATE of Texas.
• Court: Texas Court of Criminal Appeals

318 S.W.3d 368

Randall Wayne MAYS, Appellant,v.The STATE of Texas.

No. AP-75,924.

Court of Criminal Appeals of Texas.

April 28, 2010.

Rehearing Denied Aug. 25, 2010.

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John E. Wright, Huntsville, for Appellant.

Wesley H. Hau, Asst. Atty. Gen./Asst. District Atty., Jeffrey L. Van Horn, State's Attorney, Austin, for State.

OPINION

COCHRAN, J., delivered the opinion of the unanimous Court.

In May 2008, a jury convicted Randall Wayne Mays of capital murder for the shooting death of Henderson County Deputy Sheriff Tony Ogburn.¹ Based on the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, Sections 2(b) and 2(e), the trial judge sentenced Mays to death.² After reviewing Mays's twenty-one points of error on direct appeal, we conclude that they are without merit. Accordingly, we affirm the trial court's judgment.

Factual and Procedural Background

Appellant was charged with the capital murder of two sheriff's deputies and the attempted capital murder of a third deputy, all stemming from a stand-off with police at his rural property. This appeal is from appellant's trial for the first deputy's death.

The evidence showed that at about 3:00 p.m. on May 17, 2007, Fran Nicholson called the Henderson County 911 dispatcher and said that appellant, her neighbor, was shooting a handgun at his wife, who was close to the road. Mrs. Nicholson was worried because the school bus was about to drop off her granddaughter near where appellant was shooting. After the first shot, Mrs. Nicholson heard one or two more, and she saw appellant's wife, Candis, walking down the easement. Candis and appellant were screaming at each other.

Deputies Billy Jack Valentine, Duane Sanders, and Eric Ward responded to the “domestic violence-gunshot” dispatch call.³ All three were in uniform, wearing badges, and driving marked patrol cars or trucks. Appellant's two-acre property was surrounded by pipe fencing,⁴ so Deputies Valentine and Sanders hopped over the fence to talk to the couple who were still standing near the road.⁵ Candis, who was described as being “slow,” walked “right up directly in [Deputy Sanders's] face.” She was angry and said he had no business being on their property. “We're just having a spat.” Appellant, however, was calm, polite, and friendly. He explained that Candis had been sexually assaulted and he was mad about it.

Appellant told Deputy Valentine that he did not know who had called the police, but he “guessed” that Candis had. Valentine assured appellant that he was just trying to do his job and figure out what was going on, so he called dispatch to find out who had made the 911 call. When the dispatcher said that the call came from the neighbor, Fran Nicholson, Valentine sent Deputy Sanders over to the Nicholsons' house to find out why she had called. Just as he was leaving, Sanders saw Deputy Tony Ogburn arrive in his patrol car. Deputy Ogburn was wearing his police uniform and hat.

In the meantime, Valentine asked appellant if he had a gun on him and whether he had been shooting. Appellant said that he had been “target practicing,” and that the gun was in his house. Valentine also calmed Candis down, and appellant joked about how he “was wanting to get some loving from her and that's what started this.” Throughout, appellant “was very nice, courteous”; he was “super-calm.” However, Valentine also stated that appellant was well known to the local deputies because “[h]e shoots a lot out there.”

Sanders radioed back that the Nicholsons wanted to press charges against appellant for deadly conduct, so Valentine called dispatch to see if appellant had any felony convictions or arrests. He did; “the most recent [arrest] was a 7/1/99 assault on a public servant.” Valentine said, “That was me, that was on me.” ⁶ He then approached appellant to arrest him and said, “Before you talk to me any more, OK, listen to me. Now don't make this no harder than it's gonna be, OK? You have the right to remain silent-” At that moment, appellant's face changed, and he started backing up.

According to Fran Nicholson, who was watching from her front porch, appellant “broke to run for the house.” Valentine reached out to grab the back of appellant's T-shirt to stop him from getting to the house where appellant had said he had weapons. Appellant's T-shirt ripped, and he pulled a knife and ran in the front door with Valentine close behind. Appellant emerged a few seconds later “with the barrel of the rifle coming out.” It was a 30.06 deer rifle with a scope. Valentine was about two and a half feet away, but appellant did not shoot; instead, he yelled, “Back off, back off!” Appellant disappeared back inside the house as Valentine screamed, “He's got a gun!” to warn the other officers. Valentine ran back around the side of the house, took cover behind a truck, and kept talking to appellant to calm him down, get him to put down the rifle, and come back outside. Valentine testified that appellant pulled a chair up to a window, sat down, and kept talking to him. “We just kept going back and forth, just different things.” Even during the middle of the stand-off, appellant “seemed to be fine mentally.”

Deputy Sanders had returned from the Nicholsons, and he took cover along with Deputies Ward and Ogburn. More officers kept arriving and they, too, took up defensive positions behind cars, trucks, and sheds. Appellant and Valentine intermittently yelled and talked back and forth for more than fifteen minutes. ⁷ Meanwhile, Candis was wandering in the open yard between the deputies and appellant, getting in the line of possible fire, saying that the officers were not going to shoot her husband and he wouldn't shoot them. A deputy finally tackled her and pulled her off behind a shed where he handcuffed her to keep her safe. Other officers, including Deputy Ogburn, took turns talking to appellant.

After about twenty minutes, appellant climbed out of a window without his rifle and started forward toward the officers. As one deputy talked to appellant, keeping him calm, Valentine tried to “slowly ease” between appellant and the open window to ensure that appellant could not run back into the house where the guns were. Appellant saw him, turned, and bolted back toward the window. Valentine ran to intercept him, but he tripped over a garden hose and fell as appellant dived head-first through the window. Valentine got up, but he was then trapped against the side of the house as appellant could shoot through either of two windows beside Valentine, and he was in the direct line of fire from his fellow deputies.

Three minutes later, appellant shot.⁸ Deputy Sanders heard the blast and saw Deputy Ogburn's hat fly in the air and saw part of his head explode. Appellant then yelled, “Where's the other one? I'll take him out, where is he?” Inspector Paul Habelt ran toward Sanders, waving his arms. Appellant shot Habelt in the head, killing him also. The officers then started shooting back. Sanders saw Deputy Kevin Harris run past a nearby shed, “[a]nd as he got to the end, I saw him jump, exchange the gunfire, and I saw his leg explode from impact.” But appellant was also wounded during this exchange. He screamed, “I give up. I've been hit. I give up. I've been hit.” He finally walked out of the house and surrendered. Appellant later told news reporters that he had killed the two deputies because “I felt I was being mistreated.”

During his case-in-chief, appellant called Ron Shields, the instructor for an Intermediate Crisis Intervention class that Deputies Valentine, Sanders, and Ward had attended just ten days before the stand-off. He testified that all three deputies had scored an “excellent” after their training. Shields noted that the course had covered techniques for dealing with mentally ill or distressed people, but he explained, “Whenever weapons [are] involved, this training pretty well goes out the window.” He also said that, once a suspect is separated from his weapon, “you use all means necessary to keep him separated from that weapon” regardless of his mental instability or distress.

Defense counsel called Dr. Gilda Kessner, a psychologist who had never talked with appellant, to testify to her opinion that appellant suffered from a “thought disorder with a paranoid ideation.” Paranoia, she explained, is characterized by “suspiciousness, distrust, fearfulness.” She stated that paranoia is exaggerated in a crisis and “involves a deep mistrust and suspiciousness and expectation that individuals have a malevolent, deceitful motive when they deal with you.” Paranoia does not prevent someone from acting intentionally or knowingly, but such a person is “influenced by the disordered thoughts.”

Dr. Kessner agreed that appellant showed no signs of paranoia until Valentine began to read him his Miranda rights. She did not find any indications that appellant experienced any auditory or visual hallucinations. She said that appellant was not insane and that he could “intentionally or knowingly do anything, shoot in this case. I mean, that's apparent.”

The defense also offered the written transcript of testimony by Dr. Theresa Vail that had been taken outside the presence of the jury. Dr. Vail was appellant's treating psychiatrist in jail. But because she had never discussed the crime with appellant, she had formed no conclusions about whether he might have been experiencing delusions at the time of the murders. She said that appellant was capable of forming the intent to commit his actions and able to understand their consequences. Dr. Vail also noted that, while appellant's belief that he was being poisoned ⁹ was false, the stomach-aches that he described as being the basis for this belief are common in anxious people such as appellant.

After deliberating for one hour, the jury found appellant guilty of capital murder.

During the punishment...