Russell v. State

• Decision Date: 06 July 1983
• Docket Number: No. 66410,66410
• Citation: 665 S.W.2d 771
• Parties: Clifton Charles RUSSELL, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 771

665 S.W.2d 771

Clifton Charles RUSSELL, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 66410.

Court of Criminal Appeals of Texas,

En Banc.

July 6, 1983.

Rehearing Denied Sept. 28, 1983.

Stan Brown, Abilene, for appellant.

Patricia A. Elliott, Dist. Atty. and R. Jack Grant, Asst. Dist. Atty., Abilene, 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 appeal is taken from a conviction for capital murder. Punishment was assessed at death by the court in accordance with the jury's affirmative answers to the two special issues submitted pursuant to Article 37.071(b)(1) and (2), V.A.C.C.P.

Appellant advances sixteen grounds of error. This is a circumstantial evidence case. Appellant challenges the sufficiency of the evidence at the guilt stage of the trial, to support the verdict, or to show that the murder was committed in the course of committing robbery. He also challenges the sufficiency of the evidence to support the jury's affirmative findings to special issues one and two at the penalty stage of the trial. In other grounds of error appellant contends the court erred in failing to quash the indictment as it did not name the victim of the robbery, that the court erred in admitting a blood sample taken from him by virtue of a search warrant, that the court erred in admitting an extraneous offense and prejudicial opinion testimony, that the court erred in refusing a special requested charge on "deliberate" at the penalty stage of the trial, and also erred in submitting special issues no. 2 as it is unconstitutionally vague.

We shall initially examine the evidence. The deceased, Hubert Otha Tobey, was an employee of the Federal Aviation Administration at the Abilene Municipal Airport. His working hours on Sunday, December 2, 1979 were from 4 p.m. until midnight. Rodney Tobey, deceased's son, testified his father left home about 3:40 p.m. on that date to go to work. He was wearing a brown suede jacket, dark pants and Dan Post boots. The deceased was driving his wife's 1974 Lincoln Continental Mark IV automobile bearing Texas license plates MXM 997. The car had a defective tail light. He was to fill the automobile with gas after work. His wife's white Levi jacket was in the automobile. Rodney Tobey testified his father owned a pocket knife with two sharp blades and carried a wallet and a money clip.

Joe Boyle, air traffic control specialist with the Federal Aviation Administration, relieved the deceased at the airport on December 2, 1979. He arrived at the airport about 20 minutes to midnight, was briefed by the deceased on operational conditions. According to Boyle the deceased left the F.A.A. facility at approximately 11:45 p.m.

The deceased had been issued three Save a $ club gasoline credit cards, nos. 13,181, 13,182 and 13,183, for use at unmanned self-service gas stations. Insertion of a card would activate the gas pump and then information concerning the transaction would be relayed via telephone wires to a computer which would record the details, including the date, time, place, amount of gasoline purchased and the number of the credit card.

Donald Manley, computer programmer for Western Marketing Company, testified from computer printouts concerning the transactions of December 2, 1979. The printouts reflected that at 11:56 p.m. someone using card no. 13,181 issued to H.O. Tobey inserted the card at a pump at the station on South Seventh and Treadway Streets in Abilene. The system was activated, but no gas was pumped. At 11:59 p.m. the same card was used at the same pump to complete a transaction, reflecting that 20 gallons of gas were pumped.

Abilene police officer, Bernard Kastner, testified that while on patrol at 12:50 a.m. on December 3, 1979 he stopped at the Minute Stop Grocery at East Highway 80 and Washington Boulevard. There he observed a silver or grey Lincoln Continental with Texas license no. MXM 997. Standing on the left side of the car was a white male with curly brown hair. Kastner identified appellant as being of the same height and build of the person he observed by the car. He saw a black male, muscular build and acne facial marks, come out of the store and get into the car. The Continental then proceeded west on Highway 80.

James Miller, Abilene police officer, and his partner, David Gage, stopped at the Minute Stop about 12:50 a.m. on December 3. Miller saw Kastner's vehicle and a silver Continental. One man was in the driver's seat of the Continental and a black male came out of the store in a hurry, get in the car, and it proceeded west on Highway 80. Officer Gage described the driver of the Continental as a white male. He saw a black male come out of the store at a fast pace and get into the passenger's side of the car.

Both Gage and Miller noticed one of the tail lights on the Continental was not working. Gage stated a photograph of the Tobey Continental looked like the one he saw at the Minute Stop.

Between 9 and 9:30 a.m. on December 3 John Woods went to 526 Thomas Street in Abilene to pick up his stepdaughter's husband for work. Upon arrival, he saw a padlock on the door, and then observed a lot of blood and brain matter. Woods went to get a friend and to call the police.

Abilene police officer, Jay Barbian, responded to the call and went to 526 Thomas Street. Barbian found the partially nude body of the deceased at the location. Investigation uncovered a large piece of concrete with fresh blood on it. A bloody white Levi jacket was found as well as a brown suede jacket.

Dr. Jarrett Williams, a pathologist, conducted the autopsy on the deceased's body. He related Tobey had received a severe blow to his head, crushing his skull, which could have been from the bloody piece of concrete found at the scene. A large portion of the brain was missing. There were numerous knife wounds, one being to the juglar vein, which could have caused death.

Appellant was identified as one of two men entering the Big Tex Pawn Shop in Midland on December 3, 1979 between 9:30 and 10:30 a.m. John Dungan, the operator, also stated appellant was accompanied by a black male. They attempted to pawn a television set. When Dungan requested identification, the black male went to a silver Lincoln or Mercury, and then appellant presented Dungan with a driver's license with the name Tobey or Tomey on it. The license photo did not resemble appellant and appellant gave Dungan a different birth date than that on the driver's license. Dungan refused to accept the television set. When the two men left, Dungan took the license number of the car which he believed to be MXM 997.

Midland police officer, Ronnie Wilson, testified he saw a Lincoln bearing license plate number MXM 997 at the B & B Trading Post in Midland about 10 a.m. on December 3, 1979. Two men, one white, approximately appellant's size, and a black male, were unloading a television set from the car and taking it into the trading post.

Michael Wicker was hitchhiking from Plains, Texas to Hobbs, New Mexico, on the afternoon of December 3, 1979. About 10 miles out of Hobbs he was picked up by a white male and a black male in a silver Lincoln. He identified appellant as the driver and William Battee, Jr., as the black male passenger. Battee told Wicker they got the car from appellant's "old lady," and when Wicker noticed blood in the car Battee explained appellant had been punched in the nose when he had taken the car keys. After arriving in Hobbs, they went to a Mimi Mall to get something to eat. Appellant, who was apparently drunk, and Battee began "grabbing" women in the mall, causing a disturbance. Wicker paid for their food and left. Appellant and Battee followed. Officers were near the Continental and all three men were arrested.

Hobbs police officer, Richard Baum, testified at approximately 2 p.m. on December 3 he went to the Mimi Mall and saw an illegally parked Lincoln Continental bearing Texas license MXM 997. Upon hearing yelling and cursing, he saw a black male and two white males. The black male was cursing and Baum arrested Battee, who gave his name as Willie Green. The two white males, identified as appellant and Wicker, crossed the street to calm Battee, but denied knowing him. Battee told officer Baum he was hitchhiking and had been picked up by appellant and Wicker. Appellant replied Battee had picked "them" up. Appellant gave his name, but it was different than the name he gave another officer. All three men were arrested with appellant being taken into custody for being intoxicated.

Baum learned the Continental was registered to the deceased. After a phone conversation with Sgt. Casey Bradshaw of the Abilene Police Department, Baum removed Battee's blood splattered tennis shoes. He removed appellant's pants, underwear, shirt and shoes. All items save the shoes had what appeared to be fresh blood on them. There were no marks or lacerations on appellant's body.

Sgt. James Murphy of the Hobbs Police Department locked and sealed the doors of the Lincoln Continental at a Hobbs garage on December 3, 1979. Inside the car he saw blood spots.

On December 3, Sgt. Casey Bradshaw of the Abilene Police Department talked with Officer Baum over the phone and later Bradshaw secured arrest warrants for appellant and Battee. In Hobbs the next day he inspected the Continental and found the deceased's F.A.A. identification card, the deceased's bank club card and a Save a $ credit card number 013181. He removed certain blood stained parts of the right front door and took blood scrapings from other parts of the car. He received items of clothing from the Hobbs police that had been taken from appellant and Battee.

The deceased's Dan Post boots were found in a Midland cemetery.

Sarah Williams, forensic serologist, compared blood samples of the deceased with known blood samples from the appellant and Battee, as...