Schoelman v. State

Decision Date18 January 1983
Docket NumberNo. 61788,61788
Citation644 S.W.2d 727
PartiesLouise Cook SCHOELMAN, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

L.J. Krueger, Liberty, for appellant.

James S. McGrath, Dist. Atty., John B. Stevens, Jr., Asst. Dist. Atty., Beaumont, Robert Huttash, State's Atty. and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before ODOM, TOM G. DAVIS and CLINTON, JJ.

OPINION

CLINTON, Judge.

Convicted of murder on a verdict of guilty returned by a jury which also assessed punishment at confinement for fifteen years, appellant presents seven grounds of errors to achieve reversal of the judgment. Since five of the seven complain about failure of the trial court over objection to charge on one or another issue said to have been raised, a statement of the facts of the matter is required.

The setting of the homicide in question is a Sunday evening in November at Sue's Place in Beaumont. The proprietor, Evie Sue Tillery, is the deceased, and the indictment charges that appellant did then and there knowingly and intentionally cause her death by shooting her with a gun. But the scenario played out by three principal actors is more tangled than that simple allegation.

Appellant, nicknamed and commonly referred to throughout trial as "Dusty," was then a fifty four year old widow who resided in Houston. Buford Coe and appellant had known each other for more than twenty years, he being the "best friend" of a former husband. (The prosecution sought to create an impression with the jury that Coe and appellant were more than just friends of long standing, and that turned out to be true.) 1 Sue Tillery was a mutual friend of appellant and Coe.

According to appellant she was in Beaumont at the instance of Coe; he had called her at home Saturday night and asked she meet him Sunday at Sue's Place--and bring a thousand dollars along for him. Appellant replied that she could not cash a check for that amount, but would bring what she could. On the way to Beaumont appellant had car trouble; she stopped at a station in Raywood, and while she had the radiator filled and bought a new cap for it, she called to Beaumont and reported the difficulty she was having. Coe and two other friends departed for Raywood to assist, but when they arrived the station attendant told them what he had done to send appellant on her way to Beaumont. Thus appellant got to Sue's Place late Sunday afternoon ahead of Coe and his companions.

Donna Jean Babb had been working at Sue's Place for just over four weeks. When appellant came in Tillery was at her table near the cash register. Appellant went to her and Tillery introduced her to Babb as "Dusty"--"a very old friend." About an hour later Coe, Douglas Taylor and L.T. Hall and perhaps another man arrived and joined appellant and Tillery. Babb served the beer from time to time. There was friendly conversation; they played the "juke box;" others came and went. Then, after some two hours, came trouble.

As Babb related it, appellant showed a ring on her finger to Coe, remarking that it would have been his birthday present if he had been around to get it. She said she had bought it for $1600 at an auction. Coe removed the ring from her finger and put it on one of his own. Soon they started "arguing" about things, and appellant demanded Coe return the ring. He professed an inability to get it off his finger. Tillery produced a bottle of alcohol, but Coe said, "That won't do. I need soap." He went into the restroom. When he returned he claimed not to have the ring; he said, "I misplaced it somewhere." Tillery went to the restroom but did not find the ring. Appellant became "real mad" at this point.

Babb recalled that Coe went outside the place two or three times and on each occasion appellant followed, again insisting that he return her ring. At some point appellant came back inside, yelled to Tillery that she was going to call the police and went to the phone. She was dialing when Tillery ran up and grabbed the phone out of her hand. Babb came along and "slammed it back on the receiver." 2 Tillery told both appellant and Coe to leave--for them to take their "personal problem down the road." They went to the parking lot. By now nearly every unidentified patron had left.

Instructed by Tillery to do so, Babb went to the front door and looked through a small upper window to watch appellant and Coe, ostensibly to see if they were departing. Instead, she saw appellant put her purse on the trunk of her car, open it and pull out a snubnosed pistol that Babb believed to be a .38 caliber; appellant pointed the pistol at Coe. 3 Babb called to Tillery, "Sue, she pulled a gun on him." Whereupon, according to Babb, telling her to call the police, "Sue went outside and told Buford to come back in and tried to calm 'Dusty' down." 4 When Tillery told Coe to "go in there and sit down," Babb heard appellant declare: "I'll go around any of you mother fuckers to get to his Goddamned ass." 5 She did not see appellant with a gun while Tillery was talking to appellant.

Coe backed inside and soon Tillery, having failed to calm appellant down, returned. Appellant got in her car and started to drive away but stopped and walked to the front door. Tillery "slammed the door in her face" and locked it; Babb went to the back and locked that door. Then Babb called the police. Appellant tried to get in; she went from one door to another and finally kicked on the front door, near its handle. 6

Tillery stated that she was going to open the front door and tell appellant to leave because the police were on the way. Coe left the table and walked with Tillery. Tillery opened the door with her right hand, pulling it to the inside and to her right. Coe was just behind and "maybe a little bit to the right" of her also holding the door with his right hand. Babb estimated appellant was standing about two feet away, with the pistol. From her location back away from the door near a pool table Babb did not hear anyone say anything. 7 Appellant just pulled the trigger; the shot hit Tillery near the middle of her chest, and she kind of turned and crumpled down right inside the door area. Appellant returned to her car, "jumped" in it and "took off."

The State's other witness on its case in chief was a pathologist, who determined the cause of death, viz:

"Gunshot wound to left anterior chest. The entrance wound being in the third thoracic space in the left of the chest, through the heart vessel, and the bullet was located in the right posterior back."

He opined that it was a shot at close range, but was not asked to estimate the distance.

On rebuttal the State called only Douglas Taylor, one of the Coe group. He had worked for Coe and considered him a good, close, personal friend. It was through Coe that Taylor had come to know appellant some two or three years earlier. Explaining that most of the time he was engaged in conversation with one Fred Ellard and helping Hall, who was confined to a wheelchair, go outside from time to time, Taylor did not--or would not--admit to seeing or hearing very much of what Babb had recounted. 8 Just after he had come back in the last time, appellant was locked out and through the glass in the front door Taylor saw that she "appeared to be ... mad." He did observe Tillery going to the front door and Coe accompanying her; he watched Tillery open the door, heard the gunshot and saw her fall backwards and Coe catch her in his arms. Taylor conceded that at the moment the shot was fired he could not actually see Tillery since his view of her was blocked by the bigger Coe, nor could he see appellant. Indeed, he "couldn't even testify that [appellant] is the one that fired the shot." At that instant, moreover, he placed Babb behind the bar--not at the pool table.

Appellant testified that soon after Coe and the others arrived she asked him why he needed the money he had asked for, but Coe replied, "I can't tell you here." He said he would tell her later, and appellant then wanted to leave, but Coe said "Later." Then she related how he noticed the ring, "grabbed" her hand and, remarking that he had always wanted a ring like that, "snatched" it from her finger. She asked for it back; he refused, saying "I'm going to wear it a while." The request and refusal were repeated several times. At one point appellant left the table and went to the restroom. When she returned Coe was not in the place; she went looking for him and found him outside talking with a man in a truck about cattle for his ranch in Waller. After they returned and sat at the table, she noticed Coe was no longer wearing her ring. She then got "upset" and demanded to know what he had done with the ring. (At some undefined point, appellant testified, Hall said he would get the ring back for her.) She related the attempt to call the police that Tillery and Babb thwarted. With that she determined to return to Houston, first denying that Tillery had asked her to leave but later conceding that she had.

As she was driving out, however, she saw Coe and Tillery standing in the doorway.

"I wasn't exactly mad. 9 I just was afraid that he would lose the ring. So, I thought, 'Well, I will ask him one more time for the ring.' "

A .38 special was on the front seat. Appellant knew it was "fully loaded."

"I got out of the car and I took the gun and I thought, 'I will just scare him into giving me my ring back.' "

Coe, said appellant, is "deathly afraid of guns." She went to them. 10

"I looked him straight in the eye, and I said 'I'm going to give you one more chance to give my ring back,' and at that time, I felt something hit the gun, and it went off and she fell." 11

After the gun discharged appellant was "horrified ... shocked ... scared." She got in her car and drove away, but stopped some distance away to "get control of myself" for she was crying and shaking, and "afraid to drive in...

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