Russell v. State

• Decision Date: 12 March 1980
• Docket Number: No. 60412,60412
• Citation: 598 S.W.2d 238
• Parties: James RUSSELL, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 238

598 S.W.2d 238

James RUSSELL, Appellant, v. The STATE of Texas, Appellee.

No. 60412.

Court of Criminal Appeals of Texas, En Banc.

March 12, 1980.

Rehearing Denied April 23, 1980.

C. C. Divine, Houston, for appellant.

William A. Meitzen, Dist. Atty., Fred M. Felcman and Thomas R. Culver, III, Asst. Dist. Attys., Richmond, Robert Huttash, State's Atty., Austin, for the State.

OPINION

W. C. DAVIS, Judge.

This is an appeal from a conviction for capital murder. The jury answered affirmatively the special issues submitted under Article 37.071, Vernon's Ann.C.C.P. Accordingly, the punishment was assessed at death.

In view of the various grounds of error raised by appellant, a detailed recitation of the evidence is necessary. The record reflects that appellant kidnapped, sexually abused and murdered the complaining witness against him in a pending robbery case.

Diana Stearns, wife of the deceased, Thomas Stearns, testified that on March 19, 1974, her husband left for work at around 8:45 a. m. The deceased was employed at a Radio Shack. He never arrived at work that day, nor did his wife ever see him again. Two days later, his car was found abandoned, with the tape deck missing.

Lloyd Harris ¹ testified that he was jointly indicted with appellant for the capital murder of Thomas Stearns. He agreed to testify against appellant in exchange for a reduction of the charge. Harris testified that he and "Sugar Man," as appellant was known, and Delores Ann Smallwood all spent the night together in a motel on the night of March 18, 1974. They got up around 7:30 a. m., dressed, and left the motel in appellant's brother's car, which was a beige and brown 1972 Monte Carlo. Appellant was driving. The three headed south and turned into an apartment complex, where appellant parked the car and got out. Harris and Smallwood stayed in the car. At this time, appellant had on him a small black pistol, which had been purchased by appellant and Harris.

After a period of time, appellant reappeared from the apartment complex, walking with a "dude," whom Harris identified as the deceased. Harris observed appellant get into the deceased's car on the driver's side. He then observed appellant say something to the deceased, at which time the deceased got down on the floor of the car. The two cars then drove off, with appellant driving the deceased's car and Harris following in the Monte Carlo, pursuant to appellant's instructions.

Appellant stopped one time and told Harris that the pistol had jammed. After it was fixed, they continued. After reaching a somewhat rural area, the two cars stopped. Appellant got out of the deceased's car and forced the deceased to do the same. He then forced the deceased into the trunk of the Monte Carlo. Harris testified that appellant then took something which looked like a radio out of the deceased's car, and then got a rag, and started wiping off the steering wheel, door handle, and wherever he had touched the deceased's car.

Appellant then drove the Monte Carlo, with the deceased in the trunk. They stopped once at a service station. Harris testified that the deceased was making some noise in the trunk, and that appellant went around and said to the deceased "shut that damned noise up before I come back there and do something to your ass."

Appellant then drove out to a rural area in Fort Bend County and stopped the car. He got out, taking his pistol with him, and unlocked the trunk. Harris testified that appellant was talking to the deceased about having smoked some cigarettes in the trunk. Harris testified that he asked appellant what was going on, to which appellant replied, "This is the son of a bitch that is going to testify against me on that robbery case." Harris testified that he had previously thought that he and appellant had been going to "score some heroin." He stated that he called to appellant several times concerning what appellant was going to do, and that he tried to persuade appellant to leave the deceased alone. Harris stated that appellant told him that he had to "take care of this business here;" appellant kept telling Harris to mind his own business.

Appellant, with the pistol, then took the deceased off into the woods. Harris testified that he heard the deceased say one time, "Don't. Don't kill me." Later, he heard two shots. After a few minutes, appellant came out of the woods and approached the car, where Harris and Smallwood were sitting. As appellant approached the car, he threw up both arms, with one fist clenched and the pistol in the other, and said, "Goddamn it, I am free at last. All of my troubles are over."

According to Harris, appellant got into the car and began laughing. Harris stated that no one spoke, but that appellant kept on laughing and turned the music up loud, and then said, "Man, I really misused that motherfucker. I made a bitch out of him before I killed his ass." Appellant then took Harris and Smallwood to their respective homes. Harris stated that later, the pistol was thrown into Oyster Creek.

Delores Ann Smallwood, 21 years old at the time of trial, testified that she had been in the car with Harris and appellant. She testified to essentially the same facts as Harris, and stated that when appellant had taken the deceased off into the woods, she had remained in the car, very frightened. After she heard the shots and appellant returned to the car, Smallwood testified that appellant exclaimed, "Man, I made that motherfucker suck my dick and I pissed in his mouth."

Various police officers testified that on April 10, 1974, the decomposing body of the deceased was found, with some of his personal effects strewn around the body. The deceased's trousers were down around his knees and his underwear was down below his buttocks, Two bullet hulls and one slug were found at the site of the body.

Dr. Joseph Jachimczyk, Chief Medical Examiner of Harris County, testified that an autopsy was performed on the body of the deceased. Four bullet holes were found in the deceased's skull, an entrance and exit wound on each side of the head. Jachimczyk testified that the cause of death was these two gunshot wounds to the head.

Over the objection of appellant and after admonishments from the trial court to the jury that the following evidence was admitted only to show motive, Ken Sparks, Assistant District Attorney of Harris County, testified that in late 1973, he handled a robbery by assault case involving appellant. Sparks testified that Thomas Stearns, the deceased, had allegedly been robbed by appellant.

On February 20, 1974, appellant had appeared in court with his attorney, Gerald Goynes. At this time, the State and the defense entered into plea negotiations concerning the robbery. Papers were executed pursuant to an agreement reached, and a stipulation of evidence and waiver of a jury trial were signed by Goynes. Sparks testified that he observed appellant going through the motions of signing these documents, but that he did not actually see appellant sign his name. However, State's Exhibit # 10, the stipulation and waiver, which bore appellant's signature, were introduced into evidence. Gerald Goynes, appellant's former attorney, testified over appellant's objection, that he (Goynes) did not forge appellant's name to the sworn documents. The case was then reset for a plea of guilty on March 20th.

On March 20th, the day after the disappearance of the complaining witness, but before his body was found, appellant appeared in court with counsel and changed his plea to the robbery to "not guilty" and demanded a jury trial.

Police Officer Ernest Taylor testified that in January of 1977, the Monte Carlo which had belonged to appellant's brother was located in San Antonio. On the inside lid of the trunk, next to the inside locking mechanism, he found a black smudge mark, which was later found to be soot. Taylor testified that he duplicated the mark by striking a match and holding it against the inside lid of the trunk. Taylor also took samples from the car of the black weatherstripping inside the trunk, which looked like it could have had fingernail scratch marks in it.

There was also testimony that a small black pistol was recovered from Oyster Creek. Officer G. E. Martinez, a firearms examiner, testified that he performed tests on this gun. As a result of his tests, he concluded that the two bullet hulls found at the scene of the murder had been fired from the gun recovered in the creek.

Appellant presented a defense of alibi. Several of his family members testified that on the date of the offense, he was at home. Appellant also testified in his own behalf and denied the commission of the offense.

In rebuttal, the State offered the testimony of Fred Hewitt, an acquaintance of appellant. Hewitt testified that in late March of 1974, he was riding with appellant in the Monte Carlo, going to get some "coke." Hewitt testified that appellant had said that "a dude could recognize him (appellant) and send him to the penitentiary," and that he (appellant) had killed the man who had worked in a radio shop. According to Hewitt, appellant had also stated that he had "killed the white son of a bitch and made him suck his dick." Hewitt also stated that at a later date, he had been incarcerated in the Harris County Jail with Harris and appellant, and that appellant expressed concerns that Harris had "give him up" or implicated him to the authorities.

In his fifteenth ground of error, appellant contends that the trial court erred in refusing to grant his motion for an instructed verdict, as the circumstantial evidence was insufficient to support a conviction. Specifically, he contends that the State failed to prove the corpus delicti of the crime, in that the evidence is insufficient to show that the death of the deceased was caused by the criminal act of another. See Shannon v. State, 567 S.W.2d 510 (Tex.Cr.App.1978); Easley v. State, 564 S.W.2d 742 (Tex.Cr.A...