Reed v. State

Decision Date20 January 1988
Docket NumberNo. 64984,64984
Citation744 S.W.2d 112
PartiesTerry D. REED, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

Don R. Wilson, Abilene, for appellant.

Patricia A. Elliott, Dist. Atty., Abilene, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction of murder. V.T.C.A., Penal Code, § 19.02. Trial was by jury, and after finding appellant guilty of murder, the jury assessed punishment at eight years' confinement in the Texas Department of Corrections.

In a single point of error (nee ground) appellant alleges that the trial court erred in rendering a judgment of conviction against appellant, because the non-accomplice evidence was insufficient to corroborate the testimony of the accomplice witness. See Article 38.14, V.A.C.C.P. Since appellant alleges insufficiency of the evidence we will review the facts as set forth in a voluminous record comprising over 2700 pages of testimony and exhibits to determine whether sufficient corroborative evidence was adduced to sustain the conviction.

The two count indictment alleges in relevant part that appellant on or about May 20, 1978, in Taylor County "did then and there unlawfully, intentionally and knowingly cause the death of an individual, Marsha Jeanette Reed, by strangling her with his hands, ..." and "by strangling her by stuffing a washcloth into her mouth." The deceased was appellant's wife.

Out of the jury's presence a hearing was conducted to determine whether the accomplice witness, Howard T. Hill should be allowed to testify at appellant's trial. At this time Hill had not been granted immunity by the State. However, a plea bargain was reached and as a result Hill agreed to testify in exchange for a five year prison sentence. The trial court agreed to follow the plea bargain and found Hill guilty of the offense of murder. The court assessed punishment at five years' imprisonment.

Hill testified at appellant's trial that he came to Texas from Wyoming in March 1978, after "a very bitter divorce." He met appellant while working at the Texas Truck and Frame Company in Abilene. Hill stated that around May 1, 1978, he was in need of money to pay rent and he approached appellant to obtain a $200 loan. Although appellant agreed to make the loan at a later date, he suggested Hill could "earn" the money by staging a "robbery" of appellant's house. Appellant explained that if Hill stole a few items from his house, appellant could collect some insurance money and pay Hill $200. 1 Hill initially declined the offer, but approximately one week later he agreed to participate in the scheme.

Approximately one week before Marsha Reed's death, Hill visited appellant's home and discussed the details of the "burglary." Appellant showed Hill around the house, pointed out where the guns, TV, stereo, and jewelry boxes were located, and told Hill he would leave the back door unlocked. Appellant also agreed to let his dogs run free on the night of the burglary. According to Hill, the burglary was to occur on the first weekend in June. However, on May 19, 1978, appellant approached Hill at work and said the burglary would have to take place that night. Appellant told Hill that he and his wife would go out around 6:00 or 7:00 p.m., and that he wanted Hill to come to the house between 10:00 and 10:30 p.m. The agreed upon signals for Hill to proceed with the "burglary" included a light turned on in the living room and an open gate in the back yard.

On the agreed upon date Hill left work and went to the Green Dragon Club with a co-worker named Phil Mitchell. They arrived at the club around 6:30 p.m., and Hill stayed until approximately 9:45 p.m. At that time Hill told Mitchell he "had some business to take care of" and left. However, Hill's blue Mustang, which he had borrowed from his grandfather in Cisco, would not start and Mitchell had to help "push it off." Hill left the premises accompanied by an unidentified female who needed a ride. This testimony was fully corroborated by Mitchell, who testified that he knew Hill as "J.D. Hunter." 2

After dropping off the female passenger Hill had difficulty locating appellant's house and decided to stop at a convenience store to ask directions. One of the customers, Billy Bilbrey, testified that Hill asked him for directions to the 1800 or 1900 block of Anderson Lane. Bilbrey referred Hill to a friend waiting outside the store, who agreed to lead Hill to Anderson Lane. Hill followed Bilbrey and his friend, James Stabler, and their wives to the intersection of Anderson and Old Anson Road, where Hill had to make a U-turn to return to appellant's house. Stabler estimated that the time was between 9:00 and 10:00 p.m. Stabler's wife, Julie, identified Hill and the blue Mustang. She also reported the incident to the police after hearing about Marsha Reed's murder.

Hill drove past appellant's house and noticed that the back gate was open and that the light was on, according to the plan. Hill noted that it was "right at 10:30 or quarter to 11:00" when he took another drive around the block before parking behind a church at the end of the block. Hill walked down an alley to the back of appellant's house and entered the house through the unlocked back door. Hill took an 8 millimeter rifle, a shotgun, a sword, and a .22 caliber pistol back to his car and placed the items in the trunk. Hill returned to the house and took the jewelry boxes, a knife, a camera, a base station CB, and a mobile unit CB. Hill testified that he left the TVs and stereos, because appellant had indicated that he would help carry them out later.

Hill left appellant's house and returned to the Green Dragon Club. Phil Mitchell was still at the club when Hill returned, and he estimated that Hill had been gone "something over an hour." According to Mitchell, Hill seemed "moody" and "mad." Mitchell recalled that Hill left the club by himself around 11:30 p.m., just as the last call for drinks was made. Hill himself testified that he left the club for the second time "right at twenty after 11:00."

Hill returned to appellant's house around 11:40 p.m. and again parked in the alley way, this time closer to the house beside an abandoned vehicle. He testified that the reason for returning was to pick up "the bigger things," according to appellant's instructions. Hill reentered the empty house and waited for appellant's arrival. According to Hill, appellant and his wife returned "just before midnight." Appellant unlocked the front door and held the door for Marsha. He then told Marsha to get the baby's things ready, and placed the child on the living room couch. Hill stated appellant "appeared angry." While Marsha went to the baby's room, appellant handed Hill a cardboard box containing sexual paraphernalia and magazines, and ordered him to "get this out of the house."

Hill proceeded out the back door and was standing on the patio when he heard Marsha scream. Hill dropped the box and ran back into the house. From the entrance of the hallway Hill heard "scuffling" sounds coming from the baby's room, and when he peered in he saw the following:

"A I seen Terry was pretty much on top of his wife beating on her with his fist.

"Q Describe--show the Jury what you saw.

"A Well, she came in and he was holding her with one hand and hitting her with the other.

"Q Which hand was he hitting her with?

"A The right hand.

"Q All right. What was Marsha's position at that time?

"A She was flat on her back in the baby's room.

"Q Was she on the floor?

"A Yes, she was.

"Q And what was Terry's position?

"A He was kneeling over her.

"Q Was he straddled over her?

"A Yes, he was. It looked like her left arm was pinned by his knee.

"Q All right. And he was striking her with his right fist?

"A Yes.

"Q And where was he striking her?

"A In the face."

Hill noticed that Marsha was grabbing appellant's hair with her right hand, and appellant instructed him to "get her hand." Hill freed Marsha's hand and left the bedroom after appellant ordered him to "get the hell out of here." 3

Hill testified that he went to sit on the couch by the baby and then heard appellant "breathing real hard." Hill walked back to the entrance of the baby's room and saw appellant pulling on a belt placed around Marsha's throat. Hill noticed that she was not fighting at all, and went back to sit on the couch. At this point, appellant called to Hill and told him he would need his help in disposing of the body. Hill initially refused, but agreed to help when appellant threatened to "hang the whole thing on" him. Appellant then instructed Hill to ransack the master bedroom.

According to Hill, appellant "came into the bedroom and he told me we would have to make it look good, as if he had been beat up, like somebody was robbing the house and they walked in and they killed Marsha and beat him." Appellant next ripped the blue pullover shirt he was wearing off his back and threw it into the baby's room. Hill stated that appellant was in the hallway facing the kitchen when he ripped the shirt off. A button that had popped off appellant's shirt was found by Jack Dieken, an Abilene Police Lieutenant, in the hallway near the threshold of the kitchen.

Appellant used a kitchen knife to cut the back screen door just above the latch. Hill testified that neither he nor appellant put his hand through the screen.

Appellant also got Hill to stage a mock fight to make it look like a real struggle had taken place. Hill hit appellant twice, once in the left cheek with his right fist and once in the chin with his left hand. However, appellant stopped him, saying: "Well, forget that, I'll make it look right."

The next thing that Hill heard was the sound of "clothes ripping." He stepped into the baby's room and saw appellant ripping the clothes off Marsha's body. Hill noticed that she had a pink wash cloth...

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