Randle v. State

• Decision Date: 10 May 1978
• Docket Number: No. 1,No. 54341,54341,1
• Citation: 565 S.W.2d 927
• Parties: Delmond RANDLE, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 927

565 S.W.2d 927

Delmond RANDLE, Appellant, v. The STATE of Texas, Appellee.

No. 54341.

Court of Criminal Appeals of Texas,Panel No. 1.

May 10, 1978.

Russell C. Busby, Amarillo, for appellant.

Tom Curtis, Dist. Atty. and Bruce Sadler, Asst. Dist. Atty., Amarillo, for the State.

Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.

OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for the offense of murder. V.T.C.A., Penal Code, Sec. 19.02. Punishment was assessed by the jury at 15 years imprisonment.

The evidence adduced at trial revealed that on May 14, 1975, the appellant shot and killed Weldon Artis, also known as Donell Collins, in the Blue Moon Recreation Hall in Amarillo. Officer Shelby Vitatoe testified that appellant voluntarily came to the police department on May 14 and, after having been apprised of his rights, gave the following statement:

"My name is Delmond Ray Randle. About 5:20 pm today I was at the Tip Top Cafe and my brother Robert Randle and I were watching Donell Collins and Gary Burks shoot pool. Collins was apparently losing the game and he said to my brother 'hey nigger you gonna bet or not.' My brother said he was and Collins said 'Hey nigger I will make you and your brother both get out of here.' Collins then went over to this dude named Charles who is a white dude also called Superfly and said, 'Hey man give me my gun.' Charles didn't give him a gun that I could see and then Collins said to me, 'Hey man I f...ed your old lady and put scars between her legs and I drove your GTO.' I then told Collins that I would bring my old lady and then he could tell both of us that. I then left and went home and got my 45 cal. automatic and then I got my wife and we both went to the Blue Moon Cafe. This was about 5"20pm. I walked inside and Collins was inside and I told him 'Hey man you come and tell my old lady what you told me earlier.' Collins then said okay. I got loud with him and said 'Come on man I gotta go I got hings (sic) to do.' Then Collins said, 'Hey nigger you better go on before I kill you.' He said that two times and started towards me and I reached in the waistband at my back and took my gun out and cocked it and then Collins took off running. I fired one time at him and it hit him. After he went down I shot him three or four more times."

Dr. Jose A. Diaz-Esquivel, a pathologist, testified that the deceased, Weldon Artis, died from gunshot wounds. There were seven entrance wounds, four to the left side of the back and three in the left arm.

Robert James Randle, the appellant's brother, testified that on May 14 he was at the Tip Top Cafe watching the deceased play pool with Gary Burks. When the appellant walked in, the deceased said, "Here comes another one of them Randles," and then told appellant he was having an affair with the appellant's wife. The appellant and the deceased began "having words" when the deceased pulled a gun he had obtained from Charles Walser. The appellant left the premises. Robert Randle also left and went to a service station for gas. He returned to the Blue Moon Recreation Hall, where the deceased was playing pool. The appellant and his wife arrived at approximately the same time. After they went into the recreation hall, the appellant asked the deceased to prove what he had stated earlier. The deceased then stated "Oh, man, go on and don't make me have to hurt you," and started walking towards the appellant. The appellant then pulled a gun and cocked it. The deceased turned and began to run when the appellant fired two shots at the deceased. The deceased fell and the appellant fired several more shots at him. The appellant then stated, "I hope you die." Robert Randle did not see the deceased with a gun at the recreation hall.

The appellant testified in his own behalf and stated that on May 14, after he left the Tip Top Cafe, he went home and retrieved a .45 automatic in order to protect himself. The appellant then called the police and stated, "I told them there was a dude down here insulting my old lady, and he threatened me with a gun. I told them if you all wasn't going to do anything about it, that I would. I say, if you all wouldn't do anything about it, that you all would have me, and somebody else would have him." The appellant picked up his wife and drove to the recreation hall. After demanding the deceased repeat his earlier statement, the deceased said, "Nigger, you better leave, before I kill you," repeating that statement twice. The deceased then started towards the appellant. The appellant backed away four or five feet and pulled his gun as he was backing away. After cocking the gun, he aimed the gun at the deceased. As appellant aimed, the deceased turned and the appellant fired six shots in rapid succession. The appellant saw the imprint of a gun in the deceased's right front pocket as he approached the appellant. The appellant stated that he believed the deceased could cause him serious bodily injury and that he did not intend to kill the deceased but merely wanted the deceased to apologize for his statements. On cross-examination it was established that the appellant did not see the deceased reach for his pocket after the appellant had pulled a gun, nor did he see the deceased make any aggressive motions.

On rebuttal, Charles Walser testified for the State that he was present at the Tip Top Cafe when the deceased made the derogatory statements to the appellant. Walser had a gun in his possession but never gave it to the deceased while the appellant was present. After the appellant left the cafe, Walser gave the gun to the deceased who pawned the gun at a local liquor store. They then went to the Blue Moon to play pool. When the appellant entered, he demanded the deceased repeat his earlier statements and kept saying, "Come on, cause I got to go." After repeating that three times, the appellant drew his gun, slid the bolt back, and shot the deceased twice. After the deceased fell, the appellant shot him two more times. The appellant then walked over and sat on the edge of the pool table and "took his time shooting him three more times." The appellant then looked at the deceased lying on the floor and stated, "I hope you die, you son-of-a-bitch." Walser testified that the deceased did not have a gun at the time he was killed.

There was testimony that the deceased had been twice convicted for misdemeanor assault and once convicted for carrying a prohibited weapon. Two witnesses testified that the deceased's reputation for being a peaceful and law-abiding citizen was bad.

In his second ground of error, appellant contends that the trial court erred in failing to charge the jury on the law of self-defense. In Gavia v. State, 488 S.W.2d 420, we stated:

"In determining whether any defensive charge should be given, the credibility of evidence or whether it is controverted or conflicts with other evidence in the case may not be considered. When a defensive theory is raised by evidence from any source and a charge is properly requested, it must be submitted to the jury. It is then the jurors' duty, under the proper instructions, to determine whether the evidence is credible and supports the defense."

This portion of the Gavia case was cited with approval in Garcia v. State, 492 S.W.2d 592. The issue presented to this Court is not the truth of the appellant's testimony but rather, if such testimony is believed by the jury, whether a case of self-defense is fairly presented.

In the instant case, the appellant's brother testified that prior to the shooting the deceased had pulled a gun on the appellant at the Tip Top Cafe. The appellant confronted the deceased in the recreation hall in order to demand an explanation of certain statements made concerning appellant's wife. At that time, the deceased threatened appellant, stating, "Nigger, you better leave, before I kill you." The deceased repeated this statement and started towards the appellant. The deceased was a...