McGee v. State

• Decision Date: 31 August 1992
• Docket Number: No. 12-88-00275-CR,12-88-00275-CR
• Citation: 852 S.W.2d 551
• Parties: Michael Ansara McGEE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 551

852 S.W.2d 551

Michael Ansara McGEE, Appellant, v. The STATE of Texas, Appellee.

No. 12-88-00275-CR.

Court of Appeals of Texas,

Tyler.

Aug. 31, 1992.

Opinion Denying Motion for Rehearing

Jan. 28, 1993.

Discretionary Review Refused April 14, 1993.

Randy Gilbert, Tyler, for appellant.

Amy Blalock, Asst. Dist. Atty., Tyler, for appellee.

OPINION ON REMAND

RAMEY, Chief Justice.

PART I

In November of 1990, we delivered an unpublished opinion reversing the conviction in this case and ordering an acquittal. That ruling resulted from our conclusion, following our review of the evidence in the light most favorable to the verdict, that "rational jurors could not have found that the State disproved Appellant's claim of self-defense beyond a reasonable doubt."

The Court of Criminal Appeals by a per curiam opinion vacated our judgment and remanded this cause for reconsideration of the self-defense issue in light of Saxton v. State, 804 S.W.2d 910 (Tex.Cr.App.1991). As we read Saxton, the reversal and remand

of this cause was ordered because we should have analyzed Appellant's sufficiency point of error by determining "whether after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact would have found the essential elements of murder beyond a reasonable doubt and also would have found against Appellant on the self-defense issue beyond a reasonable doubt." Saxton, 804 S.W.2d at 914 (citation omitted).

PART II

Appellant Michael Ansara McGee was convicted of the murder ¹ of Howard Scott by a jury who assessed his punishment at sixty-five years and a $5,000 fine. Appellant presents six points of error. Because Appellant challenges the sufficiency of the evidence, we render a comprehensive statement of the material evidence and testimony.

State's witness, Herrod Williams, was present at the murder scene. He testified that Joe Thomas Tucker and the victim came to Hayter's house; that the victim was carrying a pistol; and that the victim went into the house, came back out and began searching for the keys to Greg Scott's truck. Williams also testified that Appellant armed with a rifle then arrived at the house and shot the victim when the victim "raised his head up." Williams stated that he never saw the victim "raise the gun or point that handgun at [Appellant]" and that he did not see the victim "make any kind of movements ... with the gun...." On cross-examination Williams testified that when the victim first arrived at the Hayter house, he said "where is the M--F-- F--ing with my brother." Williams also stated that after the victim was shot, he heard "two or three" more shots. On redirect examination Williams stated that the victim, at the time he went into the house, appeared to be "upset and mad" but had calmed down when he came outside to look for the keys. He also testified that Tucker did not have a weapon that night. On recross-examination, Williams stated that Tucker was "standing out in ... Barnes [street]."

Another State's witness, Darrell Frater, testified that he saw the shooting. He said the victim came to the Hayter house "hollering who is the M--F-- that's messing with my brother." The victim then went into the house, came out and began looking for "Gregg's [keys]." Frater testified that the victim, with a pistol in his hand, "had his head down looking for [the keys] with several others, including Tucker." Frater also testified that Appellant then "ran out" from behind a tree and shot the victim. Frater stated that, at the time the shot was fired, the victim had his pistol "down to his side." On cross-examination Frater stated that the victim was still "upset and mad when he came ... out of the house." Frater added that Tucker had parked his car and was standing near it when the shooting occurred.

Atrell Hayter, at whose house the shooting took place, testified that the victim armed with a pistol came to his house looking for Appellant. After Hayter told the victim that Appellant was not there, the victim began searching for the lost keys. Hayter stated that Tucker and a person named Pug (Cary Hudson) were assisting in the search. Hayter said that as the victim was searching for the keys, he walked in a "circle" towards Greg Scott's truck, and "that's when he met with [Appellant]." This witness said he saw Appellant "[step] out from behind Gregg's truck" and then "[the victim] raised his left hand to ask [Appellant] some questions and about that time [Appellant] shot." Hayter also stated that the victim did not "raise up his gun." Hayter heard "two or three more shots" fired approximately five minutes after the fatal shot. Hayter also testified that after Appellant shot the victim, he said, "Joe Thomas, you are next." While Hayter's testimony does place Tucker at the scene at the time of the shooting, Hayter stated that Tucker did not have a gun "out there that night."

Bobby Glen Scott, also saw the shooting and testified that the victim was "bending Tyler Police Officer Richard Don Strickland testified that he found a pistol three or four feet to the left of the body of the victim who was lying face down on the ground. Tyler Police Officer James Cooper testified that the pistol was loaded, and that he found a spent 12-gauge shotgun shell at the scene.

                over" looking for the keys when Appellant arrived, and that the victim "raised up" and Appellant shot him.  Scott, however, could not say whether the victim raised his pistol, saying, "[w]ell I really couldn't tell.  It was dark."   Scott did not see Tucker with a weapon.  Scott could not recall Tucker's exact location at the time of the shooting, but stated that Tucker "was out there somewhere."
                

The State also called the victim's mother, Fanny Mae Scott, who testified that the victim was right handed. She identified State's Exhibit 6 as a photograph ² of her deceased son, Howard Scott. The next State witness, Joe Thomas Tucker, stated that he witnessed a fight between Appellant and Greg Scott on the evening of July 22, 1987. He said that Appellant had chased Greg Scott with a knife and that after the chase, Greg and Appellant exchanged blows, and that Greg struck Appellant on the head with a beer bottle. That blow, according to Tucker, cut Appellant's forehead. Tucker testified that at about that point in time, he and Cary Hudson "jumped down and stopped [the fight]." Tucker related that Appellant broke free and ran to a nearby apartment complex and asked a resident there, "Curtis Moore, give me a gun." Tucker said he then told Greg, "Let's go, let's leave [Appellant is] trying to come back with a gun." Tucker said he and Greg then drove to "White City and found [the victim]." Tucker stated that he and Greg then told the victim about the fight between Appellant and Greg (the victim's brother) and that Greg had left his truck parked at the Hayter house.

Tucker testified that Greg wanted to get his parents to pick up his truck, but the victim said, "I'll handle this." Tucker said the three of them then drove in Tucker's car towards the Hayter house. He said that when he arrived at the intersection of South Glenwood and Vine, Greg jumped out of the car. Tucker testified further that, after Greg got out of the car, he and the victim drove to the Kemp Building, which was located only a short distance from the Hayter house. Tucker testified that he then drove to the Hayter house, and that the victim walked up to the Hayter house with a pistol. He stated that he had never threatened Appellant in any way and said they had "always been best of friends. He just turned against me that night." Tucker related that he never knew of any "troubles or problems between [Appellant and the victim]." Tucker said he did not see the actual shooting. On cross-examination, Tucker testified that the victim "didn't have no gun in his hand. He had it in his pocket." Tucker also stated that Appellant, after he shot the victim, fired some seven shots while standing in the street.

Greg Scott, a brother of the victim, testified that on July 22, 1987, at about 8:00 p.m. he drove his truck to Hayter's house at the intersection of Old Noonday Road and Barnes Street where he had "trouble" with Appellant. Scott stated that he left Hayter's house at about 8:45 p.m. and returned about 10:30 or 11:00 p.m. He said at that time, the Appellant approached him with a knife and threatened to "cut [his] heart out." Scott said he backed up and ran, but that Appellant chased him and "snuck ... up and ... put his arms around my neck." Scott said he then broke loose, "and we started fighting and some guys [Joe Thomas Tucker and Cary Hudson] broke us up." Scott stated that he then started walking home and he saw "three guys running along in the pasture." He stated that Tucker and Hudson were "running alongside ... [Appellant] trying to get him to stop." Scott said he then turned around and walked back to Hayter's house, "hoping to find my keys." Scott explained that he had lost his truck keys during the fight.

Scott then stated that Tucker agreed to take him home, but he and Tucker "ended up going back to where my brother was on Groves Street." He stated that Tucker began talking to the victim, telling him about Greg's altercation with Appellant and that Greg's truck was still parked at Hayter's home. When the prosecutor asked Scott how the victim "reacted to that information," Scott replied, "[w]ell Joe Thomas [Tucker] had talked with him first and he had gotten him riled up." Scott also stated that the victim "was a little upset." Scott testified that he tried to talk to the victim and prevent him from going up to Hayter's house to get the truck keys, and stated, "[b]ut Joe Thomas, he kept riling and urging it up and I couldn't talk to my brother, you know, out of going, out of staying with me." Greg stated that he got into Tucker's car with the victim and they started to drive to Hayter's house. Scott said he got out of the car "at...