Mitchell v. State

• Decision Date: 27 April 1983
• Docket Number: No. 68915,68915
• Parties: Andrew Lee MITCHELL, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 801

650 S.W.2d 801

Andrew Lee MITCHELL, Appellant, v. The STATE of Texas, Appellee.

No. 68915.

Court of Criminal Appeals of Texas,

En Banc.

April 27, 1983.

Rehearing Denied June 15, 1983.

Curtis L. Owen, Tyler, for appellant.

Hunter B. Brush, Dist. Atty. and Ruth J. Blake, Asst. Dist. Atty. Tyler, Robert Huttash, State's Atty. and Alfred Walker, Asst., State's Atty., Austin, for the State.

Before the court en banc.

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for capital murder. V.T.C.A., Penal Code, § 19.03. After the jury affirmatively answered the special issues submitted pursuant to Article 37.071(b)(1) and (b)(2), V.A.C.C.P., the court assessed punishment at death. V.T.C.A., Penal Code, § 12.31.

At the outset the appellant contends that the evidence is insufficient to corroborate the two accomplice witnesses, his son, Anthony DeWayne Mitchell, and Edward Earl Owens, as required by Article 38.14, V.A.C.C.P., and thus the conviction cannot stand.

Omitting the formal parts, the indictment alleged that on or about December 26, 1979, in Smith County, the appellant "did then and there intentionally and knowingly cause the death of Keith Wills by shooting him with a pistol; and the said Andrew Lee Mitchell did then and there intentionally cause the death of the said Keith Wills in the course of committing the felony offense of robbery upon the said Keith Wills ...."

The record shows that Keith Wills, a young man, ¹ was operating a fireworks stand outside of Troup on December 26, 1979. The money raised was to be used for a orphanage in India. He relieved Alva Cunningham, a minister at the Faith Temple Church, at the stand about 5 p.m. Wills was left with $150.00 and some change in a cigar box to conduct business. He apparently planned to operate the stand all night. He was placed at the stand about 8 p.m. by other than the accomplice witnesses.

About 8 a.m., December 27, 1979, 15-year-old Steven Oaks went to the fireworks stand. He saw a man lying on the floor of the stand who had been shot. A television set was on. Oaks returned home and told his father, who said it was a prank. Later, when he saw a crowd around the stand, he stopped and talked to the deputy sheriff.

Potsy Sanders and her son went to the fireworks stand about 9 a.m. on December 27, 1979, and found a man dead on the floor. He had been shot. They reported it to the police.

The body was identified as that of Keith Wills. Dr. V.V. Gonzales performed an autopsy at 2:30 p.m. on December 27, 1979. He found a wound behind the ear in the upper part of the neck. Tracing the course of the bullet, he stated he found a .32 caliber bullet inside the brain. Another wound was above the nose and between the eyes. There was a penetrating wound into the cranial cavity. A fragmented bullet was removed. The doctor could not identify the caliber of this fragment. There were powder burns around both wounds indicating shots at close range. The cause of death was pistol gunshot wounds to the brain, either of which would have been fatal.

Twenty-four-year-old Edward Earl Owens lived at appellant's house in Tyler with appellant, his wife, and appellant's 18-year-old son, Anthony DeWayne Mitchell. Owens and the son testified for the State. Owens had been granted immunity and the younger Mitchell had been promised 10 years' punishment, probated. From their testimony, it was clear that they were accomplice witnesses as a matter of law.

With the exception of a few minor details, their testimony was generally the same. These accomplice witnesses revealed that in the company of the appellant they left appellant's Tyler residence in the early evening hours of December 26, 1979. Appellant was driving his wife's red Firebird automobile. They had with them "a Five Shot Charter arm pistol, a 38 Special," a .30-30 Winchester rifle, and a .12 gauge riot shotgun.

First they went to Kenneth Crawford's mobile home near Arp. While there appellant asked Crawford if he knew someone appellant could rob as he (appellant) "had to have some money." ² When the three left Crawford, they drove to a supermarket in Arp. They abandoned robbery plans there because of the number of people in the store. They did follow two people leaving the store in a car, but abandoned that when it became apparent they were being observed from the other car.

Appellant, his son and Owens then drove to Troup and proceeded to a store there. They abandoned robbery plans there when it appeared possible someone was in the back watching events in the store.

The three drove to the Kity Korner store in Troup. Appellant and Owens entered the store. The store's operator and appellant engaged in conversation about trading firearms. No trade took place. The three then drove to the fireworks stand near Troup where the deceased worked. Appellant purchased some fireworks and asked how late the stand would be open in case he had to return any of the fireworks. He was told the stand would be open all night.

According to Owens they then drove to Whitehouse where they encountered Carl Prentiss, who led them to Sam Martin's house. Owens wanted to see if Martin was still interested in his car, which he wanted to sell. According to Owens, after talking to Martin, they returned to the fireworks stand near Troup. ³ The express purpose of all three men was to rob the stand's operator. The accomplice witnesses related appellant stated the operator had to be killed to keep him from identifying them.

Appellant and his son approached the stand and asked the operator for bottle rockets. Owens stayed near the car, apparently as a lookout. Appellant was armed with the .38 cal. pistol covered by a towel or cloth. As the operator, later identified as Wills, turned to get the requested fireworks, appellant shot the operator in the neck at close range and jumped over the counter. His son followed. The pistol misfired, which was a common problem with the weapon. Appellant finally shot the deceased a second time. They took a cigar box with bills and change, the deceased's wallet and car keys. When Owens asked if the "guy" was dead, the appellant replied that he should be as he had been shot between the eyes. They then drove along the Mixon Road. Appellant took the $100.00 that was in the cigar box and the change was placed in the car's console. They stopped and Owens buried the two .38 cal. bullet hulls and appellant's son disposed of the cigar box and keys, etc. They discussed committing a robbery at a Bullard fireworks stand, but upon arrival they found the stand closed. They returned to appellant's house in Tyler where appellant washed his clothes to remove blood and the two accomplice witnesses cleaned the interior of the car.

Owens and appellant's son went to the Savoy Club in Tyler and later went to the room appellant had at the nearby Alfreda Motel. Appellant had purchased heroin with some of the money taken in the robbery. He, Owens, and several others were "shooting" the heroin. It appears appellant also bought a gun for $40.00 for his son from a Don Walker, who was at the motel room.

Jack Harless testified he was operating the Kity Korner store in Troup on December 26, 1979. Between 7:30 or 8:30 p.m. two men entered the store, one large and one a smaller man. His description fit the appellant and Owens. The big man discussed a trade of firearms with Harless and showed him a .30-.30 cal. Winchester rifle. No trade was consummated. The big man asked if Harless could repair a pistol which often misfired, and Harless requested to see the weapon. The big man left to get the pistol, but returned to say he had forgotten he had left it at home. As the two men were leaving the store, David Sutton entered and spoke to the larger man.

Sutton identified appellant as being in the Kity Korner store on the evening of December 26. On cross-examination he admitted he could not recall the exact date he had seen appellant in Troup, but it was during the holiday season.

Jeff Hammonds, 13 years old, testified he and his older brother, James, had gone to Troup about 7:45 p.m. on December 26, 1979. Jeff noticed a red Firebird because it was loud and because of his interest in sports cars. On the way home the brothers stopped at the fireworks stand outside of Troup and saw the red Firebird there with three people in it.

Jeff described the men and identified a photograph of the appellant and a photograph of his son as two of the men he saw at the fireworks stand.

James identified a photograph of appellant's son and generally corroborated his brother's testimony. The Hammonds brothers established that Wills was alive around 8 p.m. on the night in question.

Carl Prentiss testified that he saw Owens in Whitehouse on December 26, 1979 with two other men, whom he could not identify. He led them to Sam Martin's residence at Owens' request.

Sam Martin testified that on that day Owens came to see him between 7:30 to 8:30 p.m. and discussed selling a car. He observed Owens was in a red car, but he could not identify appellant as being in the car.

Hiawatha Lyles, Jr., testified around Christmas time 1979 he was in a room at the Alfreda Motel with the appellant, the two accomplice witnesses and other persons. He revealed heroin was available in the room and that appellant's son looked at a gun being sold by Don Walker.

Ray High testified that on January 8, 1979, he happened to be at appellant's house in Tyler and observed on a night stand in appellant's bedroom a blue steel gun which he believed to be "a .38." About January 8, 1979, appellant and Owens went with him to Jacksonville. Upon their return trip to Tyler he stopped the truck to relieve himself, and while doing so, he heard and saw appellant fire a shot from a gun and heard Owens and appellant discussing the fact the hull of the bullet had stuck in the gun's chamber.

Walter Woodhull, Smith County deputy sheriff, related he obtained a statement from Owens on ...