Porter v. State
| Decision Date | 09 June 1982 |
| Docket Number | No. 61226,No. 3,61226,3 |
| Citation | 634 S.W.2d 846 |
| Parties | Cherrie Ann PORTER, Appellant, v. The STATE of Texas, Appellee |
| Court | Texas Court of Criminal Appeals |
Michael L. Brandes, Austin, for appellant.
Ronald Earle, Dist. Atty., Bill White, Asst. Dist. Atty. and Robert Huttash, State's Atty., Austin, for the State.
Before ODOM, TOM G. DAVIS and DALLY, JJ.
Appeal is taken from a conviction for murder. V.T.C.A., Penal Code, Sec. 19.02(a)(3). After finding appellant guilty, the jury assessed punishment at 7 years.
In her fifth ground of error, appellant challenges the sufficiency of the evidence to support her conviction. The court charged the jury on the law of parties and circumstantial evidence.
The indictment under which appellant was convicted alleges in pertinent part that on September 14, 1977, she:
"did then and there intentionally and knowingly attempt to commit and did commit a felony, to-wit: burglary of a habitation and in the course of and in furtherance of and in immediate flight from the said felony did then and there intentionally and knowingly attempt to commit and did commit an act which was clearly dangerous to human life, to-wit: strike Ivan Maxwell Stout on the head with a rifle which said act caused the death of Ivan Maxwell Stout."
Peggy Studer testified that she is a resident of Westlake Hills. On September 14, 1977, about 3:40 p.m., Studer was at her residence when a pickup truck pulled into the driveway. An individual left the pickup truck and asked Studer whether he could mow her lawn. Studer later identified this individual as Kenneth Felder. She related that a woman was in the truck with Felder. Studer told Felder that she did not want him to mow her lawn.
William Turman testified that he lives in Westlake Hills. On the afternoon of September 14, 1977, Turman called the police about 4:00 or 4:30 p.m. He related that he called the police because he heard a disturbance in the neighborhood. The disturbance consisted of a man and woman screaming.
Officer Larry Akin, of the Westlake Hills Police Department, responded to Turman's call. He related that he was unable to find the source of the disturbance.
Cornelia Stout testified that on September 14, 1977, she and her husband, Ivan Stout, were residents of Westlake Hills. Stout related that she arrived home about 3:30 p.m. and observed a pickup truck in the driveway of her home. Stout left her automobile and approached the pickup truck. She saw a woman sitting in the truck and a man standing at the front of the truck. Stout later identified the man as Kenneth Felder and the woman in the truck as appellant.
Stout asked the individuals what they were doing at her home. At this point, appellant began screaming "that she had worked for me (Stout) Goddammit." Appellant then told Stout that her name was Cherrie Smith. Stout looked in the bed of the pickup truck and saw a lamp which belonged to her. She then saw that a glass panel in her kitchen door had been broken. At this point, Stout entered her home in an attempt to use the telephone. Felder followed her into the home and ripped the telephone off the wall. He then began kicking and beating Stout and wrapped the telephone cord around her throat. Felder took Stout's purse and beat her with it. In response to questions from Felder, Stout showed him a .22 caliber rifle which was in the bedroom. She related that the rifle was not loaded. Felder then pushed Stout outside the home into the carport. She related that at this time, appellant was outside of the truck and standing in the driveway.
Stout testified that at this time, she saw her husband drive up to the house and she called out "Honey, they are killers." She related that appellant was standing behind her and she "blacked out." Stout stated that she had lost consciousness several times inside the house while she was being beaten and kicked by Felder. When Stout regained consciousness, the pickup truck was gone. She testified that she did not see anyone attack or injure her husband. Finally, at no point in her testimony, did Stout indicate that appellant came inside the residence.
Herman Haenel testified that he lived next door to the Stouts in Westlake Hills. Haenel went to the Stout's residence about 7:00 p.m. on September 14, and found Cornelia Stout lying in the front yard. He related that she had been beaten about the head and appeared to be in "pretty bad shape." Haenel then found Ivan Stout lying on the ground between the house and the driveway. He related that Stout had been badly beaten and did not appear to be breathing. Deputy John Crowe, of the Travis County Sheriff's Office, investigated the instant offense. He testified that he went to the Stout's residence and took numerous photographs. Those photographs reveal that Ivan Stout had been beaten badly about the head and face. An autopsy report revealed that Stout died as a result of "blunt force trauma to the head."
Arvy Crayton testified that he is the owner of a restaurant in Austin. On September 14, sometime between 1:30 and 2:30 p.m., appellant and Felder entered the restaurant. Crayton related that they were in a pickup truck.
Sammie Blakemore testified that she met Felder and appellant at Crayton's restaurant. She related that Felder offered to give her a ride home from the restaurant. Blakemore accepted Felder's offer and the three individuals arrived at Blakemore's home about 2:00 p.m.
William Martin testified that he is a mail carrier who delivers Blakemore's mail. He stated that he saw a pickup truck at her home sometime between 1:30 and 2:00 p.m. on September 14.
Beverly Felder testified that she was married, but separated from, Kenneth Felder. About 7:00 p.m. on September 14, she related that Felder came to her home and began beating on the door. She stated that she then heard the door "crash open" and she ran into her bedroom and retrieved a handgun. When Felder entered her bedroom, she shot him in "self-defense." Felder died as a result of the gunshot wounds.
Officer Lloyd Polk, of the Austin Police Department, investigated the shooting of Felder. During the course of his investigation, he found Ivan Stout's wallet in Felder's back pocket. Polk stated that a pickup truck was parked near the scene of the shooting. A .22 caliber rifle with a broken stock was found inside the cab of the pickup truck.
Joe Urbanovsky testified that he is a chemist with the Texas Department of Public Safety. Urbanovsky received various items of evidence in connection with the murder of Stout. He related that he found a hair sample on the butt of the .22 rifle found in Felder's truck. The hair sample from the rifle was compared with a hair sample taken from Ivan Stout. The characteristics of the two samples were found to be "very similar." Deputy Crispin Villarreal, of the Travis County Sheriff's Office, arrested appellant for burglary on September 21. At the time of her arrest, appellant was given her warnings. Following her arrest, appellant was interrogated by Deputy Richard Gruetzner, of the Travis County Sheriff's Office. At that time, appellant gave a statement concerning her whereabouts on September 14. The statement indicates that appellant was present with Felder on the date in question. However, the statement makes no mention of the offense at the Stout's residence.
Appellant presented evidence from Shawn McQuillan, an identification officer with the Travis County Sheriff's Office. McQuillan related that he went to the Stout residence on the night of September 14 in order to "dust for prints." He stated that his efforts were unsuccessful in that he was unable to lift an identifiable latent fingerprint. McQuillan testified that he was looking for fingerprints of the individual or individuals who may have been involved in the burglary and murder of Stout.
Appellant further presented testimony from Officer John Williams, of the Austin Police Department. Williams testified that he is a fingerprint examiner and that he dusted Felder's pickup truck for fingerprints. Williams dusted both the cab area and objects found in the bed of the pickup truck. He stated that he found appellant's fingerprints on the rearview mirror and right-hand vent glass. Appellant's fingerprints were not found on the items in the bed of the pickup truck.
Appellant was indicted for murder under the provisions of Sec. 19.02(a)(3), supra. That statute is the felony murder rule and provides as follows:
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