Peden v. State

• Decision Date: 21 March 1996
• Docket Number: No. 2-94-160-CR,2-94-160-CR
• Citation: 917 S.W.2d 941
• Parties: Curtis PEDEN, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

Page 941

917 S.W.2d 941

Curtis PEDEN, Appellant, v. The STATE of Texas, State.

No. 2-94-160-CR.

Court of Appeals of Texas,

Fort Worth.

March 21, 1996.

H.F. Rick Hagen, Hal Jackson, Jackson & Hagen, Denton, for appellant.

Bruce Isaacks, Criminal District Attorney; Kathleen Walsh, Assistant Criminal District Attorney, Denton, for appellee.

Before LIVINGSTON, BRIGHAM and HOLMAN, JJ.

OPINION

HOLMAN, Justice.

A jury convicted Curtis Peden of murdering Gaylan Gibson with a deadly weapon, a firearm, and assessed his punishment at life imprisonment in the Institutional Division of the Texas Department of Criminal Justice. He challenges his conviction in eleven points of error. We reverse and remand.

The Physical Evidence

Near midnight on January 8, 1990, while driving through Krum, Texas, near an intersection, Cory Yeager saw a pickup truck in a ditch with the lights on. Stopping, he saw a man "slumped over" inside the truck and some blood. He went to a pay phone, called police, then returned to the truck. Its motor was running, there were holes in the hood and a door, and window glasses were shattered. The man Yeager saw inside the truck was later identified as Gaylan Gibson. He was taken to Denton Regional Hospital and pronounced dead the same night.

Deputy sheriff Roland Ridge, an investigator called to the scene on the night of January 8, 1990, testified that "in the wee hours of the morning," he found three Winchester triple-aught-buck shotgun shell casings on the roadway, "just south of where the pickup was located." The three casings were admitted into evidence.

Dr. Gary L. Sisler, a pathologist and a deputy medical examiner for Tarrant County, testified that he performed an autopsy on the body of Gaylan Gibson on January 9, 1990. He testified that he found a major wound on the body's left shoulder, and that wound extended into the chest cavity, damaging the left lung, the arch of the aorta, the right lung, and ended in the right chest wall. He attributed the cause of the wounds to "a shotgun blast," and testified that the cause of death was loss of blood, secondary to the wounds.

Richard Ernest, senior firearms examiner for the Tarrant County Medical Examiner's crime laboratory, testified that the buckshot pellets and fiber shotgun wadding taken from Gibson's body in the autopsy came from a Winchester 12-gauge triple-aught-buckshot cartridge, fired at a distance of less than ten feet from the victim. He testified that 12-gauge shotgun shells are available in two sizes, one being two and three-fourths inches long, the other being three inches long.

Pawnshop owner Larry McBride testified that Peden came to his shop on December 19, 1989, and bought a "sawed-off," semi-automatic Remington shotgun that would shoot three-inch "magnum" shells containing triple-aught-buckshot. The gun's barrel had been shortened by professional sawing to a length of about twenty inches, and the sale was lawful. McBride testified he had been in business twenty-six years, had sold fifteen or twenty thousand shotguns, and, except for the gun he sold Curtis Peden, had never seen a sawed-off, Remington 1100 semi-automatic shotgun.

The murder weapon was never found, but the court admitted into evidence, for demonstrative purposes and without objection, a Remington 1100 shotgun. Larry McBride testified that, except for a "ventilated rib" and shorter barrel, the shotgun admitted at trial for demonstration was like the one he sold Peden.

Accomplice Testimony

Eventually, Curtis Peden was charged with Gibson's murder. Michael Murrell was an accomplice. Murrell testified that during the evening of January 8, 1990, while at the Waffle House restaurant in Denton, Peden had offered him $100 to drive Peden "down the road" in Murrell's truck so Peden could fire a gun out the window and "scare" a man who owed him some money. Murrell, who testified he already had consumed eighteen to twenty beers, agreed. Peden put a shotgun in Murrell's truck, and Murrell drove them to a location on Highway 380, where they stopped and waited in the darkness near a mobile home park and a place called the "Last Chance Saloon." Murrell testified that they watched until Gaylan Gibson, alone in his truck, drove from those premises onto Highway 380.

Murrell testified he obeyed Peden's instruction to follow Gibson's truck, then drove alongside Gibson while Peden fired the gun three or four times directly into the driver's window of the Gibson truck. When they returned to the restaurant parking lot, Peden paid Murrell with five twenty-dollar bills.

Several days later, Murrell was arrested for driving with a suspended license. He testified that before being released on bond, a Texas Ranger told him he was suspected of having been the driver of the truck that Gibson was shot from. Murrell testified that after he was released on bond, Peden asked him to take the shotgun and sell it so the police would not find it. Murrell testified that he was unable to sell it and returned the gun to Peden, who later claimed to have "gotten rid of it, it was deep enough they'd never find it."

Michael Murrell also testified that, except for a "ventilated rib" and slightly different barrel length, the shotgun admitted at trial for demonstration was the kind of gun Curtis Peden used in the shooting.

Insufficient Corroboration Claim

Peden's first point of error is that there was insufficient evidence to corroborate the testimony of accomplice witness Murrell. Point number two protests the trial court's refusal to instruct jurors that an accused's mere presence with an accomplice is, by itself, insufficient corroboration. Points one and two are closely related, and we consider them together.

Because accomplice witnesses are considered untrustworthy, their testimony is always looked upon with suspicion. Holladay v. State, 709 S.W.2d 194, 196 (Tex.Crim.App.1986). Accordingly, article 38.14 of the Texas Code of Criminal Procedure prohibits conviction only upon the testimony of an accomplice, not corroborated by other evidence tending to connect the accused with the offense. To determine whether there is sufficient corroboration of an accomplice's testimony, the court must view the record as if all accomplice evidence was eliminated and then decide whether other inculpatory facts and circumstances in evidence tend to connect the principal actor to the offense. Munoz v. State, 853 S.W.2d 558, 559 (Tex.Crim.App.1993); Gosch v. State, 829 S.W.2d 775, 777 (Tex.Crim.App.1991), cert. denied, 509 U.S. 922, 113 S.Ct. 3035, 125 L.Ed.2d 722 (1993); Edwards v. State, 427 S.W.2d 629, 632 (Tex.Crim.App.1968).

The State concedes that the only evidence that directly links Peden to the murder is the testimony of his accomplice, Michael Murrell. Therefore our focus is whether the non-accomplice evidence is sufficient to tend to connect Peden with the crime of knowingly and intentionally causing the death of Gaylan Gibson by shooting him on January 8, 1990, with a firearm. There is no precise rule on the amount of evidence necessary to corroborate an accomplice's testimony, so each case must be judged on its own facts. Gill v. State, 873 S.W.2d 45, 48 (Tex.Crim.App.1994).

Non-Accomplice Evidence

Hardy Burke, a Denton attorney and resident of Krum, testified that on the night of January 8, 1990, his son telephoned him for help with a flat tire. On the way to meet his son, he drove his white half-cab 1976 Ford Bronco across Highway 380 and noticed a white Chevrolet pickup truck, parked off the road, with two men inside who "appeared to be watching the highway." He testified that although "something about the way the thing looked bothered me," he drove on. After helping his son, he drove home by the same route, followed by his son, who was driving a dark blue Ford pickup. Back at Highway 380, Burke saw the white Chevrolet truck, still parked where he saw it earlier, not far from the mobile home park. It was then around 11:00 p.m. Concerned, he turned around and drove by the site again, followed by his son's truck. Finally, having driven past the parked white truck a total of four times that night, he made note of its license number and went home.

The next day, after learning a murder had occurred in that vicinity the previous night, Burke gave the white truck's license number to the sheriff's department. The number belonged to Michael Murrell's truck. Burke could not identify the faces of the two men he had seen inside the parked truck, but testified that, in the darkness, they appeared to have long hair. When the prosecutor suggested that if either person in the truck was wearing a toboggan hat and turned-up coat collar, that might give them an appearance of having long hair, Burke agreed such a silhouette "could have" appeared to him to be that of persons with long hair. There was no evidence that either Curtis Peden or Michael Murrell had ever worn long hair, and there was testimony that each of them had always worn their hair short.

Murrell testified that his truck was a white, 1974 Chevrolet and that, on the night of January 8, 1990, he was wearing a big coat. He also testified that Peden was wearing a brown jacket and a toboggan cap while they were in Murrell's truck. Murrell also said that while they were waiting for Gaylan Gibson to leave the area of the mobile home park and saloon,

[t]here was two vehicles came by us.... One was a four-wheel drive, blue or black Ford, and right behind it, no more than five yards, a white International Scout. The reason I noticed these vehicles that clearly, they passed us, stopped at the stop sign, crossed 380 and went out of sight; but before I could get a good drink of beer, they was coming back and came back the same way they went and passed again and turned around and then stopped and did the same thing again and went out of sight and didn't see them again.

Jerry Simmons testified that during 1990, he had a business called the "Trading Post" and...