McGee v. State

• Decision Date: 15 February 1989
• Docket Number: No. 69324,69324
• Citation: 774 S.W.2d 229
• Parties: Jewel Richard McGEE, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 229

774 S.W.2d 229

Jewel Richard McGEE, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 69324.

Court of Criminal Appeals of Texas En Banc.

Feb. 15, 1989.

Rehearing Denied May 24, 1989.

Russell J. Wright, Silsbee, Woody Monica, Houston, for appellant.

R.F. "Bo" Horka, Dist. Atty. & Richard B. Dutton, Asst. Dist. Atty., Kountze, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

MILLER, Judge.

Appellant was convicted of capital murder. V.T.C.A. Penal Code, Sec. 19.03. The death penalty was imposed after the jury answered affirmatively the special issues submitted under Art. 37.071, V.A.C.C.P. On June 11, 1986, 711 S.W.2d 257, we held that the trial court erred in failing to order the court reporter to transcribe the notes taken during the voir dire examination of several jurors, and we abated this appeal. We now have the proper record before us and will address appellant's twelve remaining points of error. We will affirm appellant's conviction.

The record reflects that William Pascal Crosby, a 73 year old man, was beaten to death on September 26, 1983, in Kountze, Texas. His body was found the following day hidden in heavy brush behind a home that he operated as rental property. Wilson Roberts, Chief of Police of the Kountze Police Department, testified at trial that the deceased's body apparently had been dragged from the kitchen of the rental home to the brushy area. The alleged murder weapon, a claw-hammer, was also found in this heavily brushed area. Chief Roberts believed that appellant had borrowed this hammer from a Kountze resident, as he had discussed the hammer with the resident's wife but could not recall this person's name.

Chief Roberts further testified that, in his opinion, the deceased had been subdued by a swift and powerful attack in the kitchen of the rental home. He stated that the settled dust on the floor and the undisturbed items in the kitchen indicated that there had not been a struggle prior to the attack on the deceased's head with the hammer. A bucket of bloody water and a mop were found in the middle of the kitchen floor; the panelling in the kitchen was splattered with blood. Chief Roberts testified that it was his opinion that the wounds received during the attack in the kitchen would incapacitate a person.

Sharon Lummus leased a filling station on the corner of Vaughan Street and Highway 69 in Kountze with Crosby. She knew, as did most Kountze residents, that Crosby always carried a large amount of cash in his wallet and conducted his business transactions in cash. Lummus testified that she had known appellant a week to ten days prior to Crosby's murder and that appellant had worked for Crosby for that approximate amount of time. Lummus saw both appellant and Crosby on September 26, 1983. She loaned appellant one dollar that morning so that he could purchase a can of Skoal, and Crosby made his usual evening stop to check on the station. The filling station is located on the same street as Crosby's rental home.

Andrew Sells, a resident of Kountze, testified that he and three friends, Charlie Gaston, Earnestine Warren, and Maurice Wyatt, a relative of appellant, were going to play tennis at the junior high school across the street from Crosby's rental home on September 26, 1983. Sells testified that the four of them entered the parking lot of the school between 6:30 and 6:45 p.m. that night, that they saw appellant behind the rental home at this time, and that Maurice Wyatt called out to appellant, but appellant ignored him, got in Crosby's car and quickly drove away. Sells stated they thought it was unusual that someone other than Crosby was driving his car.

Appellant's girlfriend at the time of his arrest, Carlos Douglas, testified at trial as to appellant's whereabouts on the day of the alleged murder. Appellant picked her up at her home about 7:00 p.m. on September 26, 1983; he was driving Crosby's yellow and black Mustang. Appellant and Douglas went to Wal-Mart, where appellant bought her some rings and gave her $100.00. Appellant also purchased a gym suit, a pair of shoes, a pair of socks, and a gold watch for himself. Douglas testified that appellant turned his back to her each time he removed money from the wallet he was carrying, but that she could see it was an old brown wallet that had "a whole bunch" of money in it. Thirty minutes after returning home, appellant again picked up Douglas at her home for a date; she and appellant went to a local motel. When appellant took Douglas home that evening, he gave her $50.00 for her mother and asked for directions to Woodville.

Ruby Crosby, the wife of the victim, testified that she last saw her husband at his washateria about 4:00 p.m. on September 26, 1983, and phone records indicate she last spoke with him at 5:39 p.m. She verified that her husband carried an old brown wallet and a large amount of cash. Mrs. Crosby also identified Mr. Crosby's handwriting on the envelopes of cash found in the trunk of the Mustang at the time of appellant's arrest. Mrs. Crosby knew of no trouble between appellant and her husband.

James Miller, a highway patrolman with the Texas Department of Public Safety, was assigned to the Woodville area in Tyler County at the time of the alleged offense. Officer Miller testified that he received an all points bulletin from the dispatcher regarding a black and yellow mustang. Officer Miller passed appellant on Highway 190 in the Woodville area on the morning of September 27, 1983. Upon pursuit by Officer Miller, appellant sped up and disappeared down a dirt road. Officer Miller found the deceased's car on this dirt road with the motor running and the driver's door open. Officer Miller testified that appellant ran into the adjacent wooded area.

Rudy Trahan, the Criminal Investigator with the Hardin County District Attorney's Office, assisted Chief Roberts with the investigation in Woodville, Texas. Trahan found the deceased's car abandoned on a dirt road off Highway 190. He found in the car a can of Skoal, hand lotion, and an afro-comb. In the trunk of the car, he recovered a Wal-Mart sack, a pair of tennis shoes and a pair of jeans, both splattered with blood, and envelopes containing $250.00 cash from the U-Wash N Dry, one of Crosby's businesses in Kountze. At the time of his arrest, appellant had $712.00 in cash in the pocket of the sweat pants he was wearing.

Steven Lee, an employee with the Texas Alcoholic Beverage Commission, responded to the bulletin of the capital murder of Crosby. Officer Miller informed him that appellant had abandoned the car and was running through the woods. Lee patrolled the area of Highway 190 and discovered appellant running along the highway. Lee testified that as he pulled to the shoulder of the road, appellant quit running and put his hands up. Appellant was sweaty, dirty, and had debris in his hair. Appellant was arrested in the parking lot of the Hope Well Church and taken to the Tyler County Courthouse by Sheriff Leon Fowler. A billfold was found in one of appellant's socks. Lee testified that appellant identified himself as Robert Jackson at the time of his arrest.

Dr. Howard Wilcox, the pathologist who performed the autopsy of Crosby, testified that the deceased had wounds to his left hand, mouth, face, top of his head, and the temporal area of his head. The blows to the temporal area fractured the deceased's skull and severely tore his ear. In Dr. Wilcox's opinion, these wounds were severe enough to cause death and were consistent with being made by a hammer. Dr. Wilcox also testified that the blows to the top of the deceased's head had been made by striking the deceased with extreme force with a flat object; these wounds shattered the deceased's skull. The autopsy report reflected that two weapons were used in the attack.

The Laboratory Technician with the Jefferson County Regional Crime Lab, Phyllis Bowers, testified that she was an expert in serology and had performed the blood typing tests on the items from the murder scene and the vials of Crosby's blood. Bowers found human blood on both the hammer and the tennis shoes but could not type any of it. The blood on the pair of jeans and on the kitchen wall was Group A human blood. Bowers testified that the victim, Crosby, had Group A blood type, but there was no evidence offered as to appellant's blood type.

Appellant makes two challenges to the sufficiency of the evidence. In his third point of error, appellant contends that the evidence was insufficient to sustain the descriptive averments in the indictment. The indictment alleged in pertinent part that appellant:

while in the course of committing and attempting to commit ROBBERy (sic) upon and of WILLIAM PASCAL CROSBY intentionally cause the death of WILLIAM PASCAL CROSBY, hereafter styled the Complainant, by hitting the victim over the head with a hammer.

Appellant argues that the State relied on proof that the murder weapon was a brick and that if cause of death was by a brick, it would have been at a time after appellant hit the deceased with the hammer and after appellant formed the intent to take the deceased's property. The gist of this argument is that if the alleged murder was committed with a brick, it was not done in the course of a robbery, and therefore the capital murder conviction fails for insufficiency. Appellant also makes this argument in his fifth point of error. We will first address whether there is a variance between the proof at trial and the allegations in the indictment.

At trial the State introduced into evidence a brick taken from the area behind Crosby's rental home. The brick, however was admitted into evidence only for a limited purpose. The State tendered the brick only as an object available at the murder scene for appellant to use and as one similar to the blunt object that Dr. Wilcox testified may have been used to inflict wounds upon the top of Crosby's...