Sharp v. State

• Decision Date: 09 April 1986
• Docket Number: No. 69301,69301
• Citation: 707 S.W.2d 611
• Parties: Michael Eugene SHARP, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 611

707 S.W.2d 611

Michael Eugene SHARP, Appellant, v. The STATE of Texas, Appellee.

No. 69301.

Court of Criminal Appeals of Texas,

En Banc.

April 9, 1986.

Glen Williamson, Andrews (Court-appointed), for appellant.

Michael L. Fostel, Dist. Atty., and Stephen Taliaferro, County Atty., Kermit, and Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

WHITE, Judge.

This case is on appeal from a conviction for the capital murder of Brenda Kay Broadway, which occurred in Winkler County in June of 1982. The case was tried in Crockett County on a change of venue. Appellant was found guilty, sentenced to death, and thereafter gave notice of appeal. Appellant has submitted his brief to this Court pursuant to the provisions of Arts. 40.09 and 37.071, V.A.C.C.P., and seeks either a reversal of the judgment and dismissal of the charges against him or, in the alternative, a new trial.

The testimony in the trial court revealed the following sequence of events:

On Friday, June 11, 1982, at approximately 12:30 a.m., Brenda Kay Broadway, the victim herein, returned home from work. She and her two children, Christy Michelle Elms, age 8, and Salina Kay Elms, age 14, then left their home to go wash Brenda's car. Soon after they arrived at the car wash, appellant forced Brenda and her two daughters, at knife point, into his truck and began driving south from Kermit on the Monahans highway. After appellant made Brenda and the two girls remove their clothes, he turned off the highway onto a dirt road, tied them with rope, and forced Salina and her mother to perform deviate sexual acts upon each other.

Appellant then began to stab Brenda. At this point, Salina, the only surviving eye-witness, worked her legs free and escaped. Salina stated that she wandered through the woods the majority of the early hours of June 11, 1982, stopping only to rest. Near dawn, Salina came upon a drilling rig, where the men there untied her, gave her a blanket to cover herself, and called police. The police transported Salina to a local hospital. The bodies of Brenda Kay Broadway and Christy Michelle Elms were found in a shallow grave later that morning by a search party, made up of deputy sheriffs from Winkler and Ward Counties.

On Monday morning, June 14, Winkler County Deputy Sheriff Mike Eggleston, based on a composite sketch and a statement taken from Salina, obtained an arrest warrant for appellant. Several officers went to the drilling rig where appellant worked, but appellant was not there. After hearing that appellant was possibly en route to Louisiana, Deputy Eggleston wired several police departments along a probable route. Appellant was arrested pursuant to the arrest warrant in Sweetwater on June 16, 1982.

We will first address the appellant's ground of error twenty alleging insufficiency of the evidence. Appellant contends that because there are discrepancies in the only eyewitness' testimony, and differences in the explanation of certain circumstantial evidence, there is no more than a strong suspicion or mere probability of appellant's participation in the offense charged.

In reviewing a sufficiency of the evidence claim, this Court has held that the standard for review is the same for both direct and circumstantial evidence. Wilson v. State, 654 S.W.2d 465, at 471 (Tex.Cr.App.1983) (opinion on rehearing); Denby v. State, 654 S.W.2d 457, at 464 (Tex.Cr.App.1983) (opinion on rehearing); McGoldrick v. State, 682 S.W.2d 573 (Tex.Cr.App.1985). See also Hankins v. State, 646 S.W.2d 191 (Tex.Cr.App.1981) (opinion on rehearing 1983).

In Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), reh.den. 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126, the United States Supreme Court held that the standard for judging sufficiency questions would be whether, when viewing the evidence in the light most favorable to the prosecution, any rational trier of fact would have found the essential elements of the crime beyond a reasonable doubt. 443 U.S., at 319, 99 S.Ct. at 2789.

In the present case, Salina Kay Elms, the only eyewitness, affirmatively stated appellant was the person who committed the kidnapping and murder of the deceased. Appellant makes issue of slightly different descriptions by Salina of a tatoo she noticed on appellant, and the discrepancy between Salina's and W.C. Stokes' [appellant's supervisor] testimony concerning the existence of white lettering on the doors of appellant's company truck. The jury, being the judges of the facts and credibility of the witnesses, could choose to believe or not believe the witnesses, or any portion of their testimony. Esquivel v. State, 506 S.W.2d 613 (Tex.Cr.App.1974). Further, a witness may be believed even though some of his testimony may be contradicted and part of his testimony recorded, accepted, and the rest rejected. See Jackson v. State, 505 S.W.2d 916 (Tex.Cr.App.1974). Even a total failure, (not the case here), to identify the defendant on one occasion goes only to the weight of that person's testimony, not its admissibility. Wilson v. State, 581 S.W.2d 661, at 665 (Tex.Cr.App.1979) (opinion on rehearing).

Ground of error twenty is overruled.

In his first ground of error, appellant claims the indictment in the instant case, cause no. 2971 (Crockett County cause no. 1420), should have been dismissed under Art. 32A.02, V.A.C.C.P., because the State did not announce ready until December 6, 1982, more than 120 days after commencement of the proceedings on June 16, 1982. See Art. 32A.02, Secs. 1(1) and 2(a). Therefore, according to appellant, under our holding in Pate v. State, 592 S.W.2d 620 (Tex.Cr.App.1980), the State could not have possibly been ready within the 120 day requirement of Art. 32A.02, Sec. 1(1), V.A.C.C.P.

Due to the complexity of this contention, we will set out the procedural history of this case.

The Winkler County grand jury returned an indictment against appellant on June 21, 1982 for the capital murder of Brenda Kay Broadway in cause no. 2919. The State announced ready on August 31, 1982. This case, with another, charging the capital murder of Christy Elms, was transferred to Lubbock County on a change of venue. The date of this transfer does not appear in the record. In a trial in Lubbock which was concluded on November 17, 1982, appellant was convicted of killing Christy Michelle Elms and sentenced to life imprisonment. However, it is not apparent whether the conviction was for capital murder or murder. See Arts. 19.02 and 19.03, V.A.C.C.P.

On November 24, 1982, a Winkler County grand jury re-indicted appellant for the capital murder of Brenda Kay Broadway, cause no. 2971. The State announced ready in cause 2971 on December 6, 1982. At this point in time, there were two indictments pending and two announcements of ready for the same offense, namely, the capital murder of Brenda Kay Broadway.

The State elected to try cause no. 2971 (the Nov. 24, 1982 indictment) and not 2919 (the June 21, 1982 indictment). Both parties stipulated that a trial in one cause would be a bar to a trial in the other. On March 7, 1983, cause no. 2971 was transferred to Crockett County on a change of venue.

It is the State's contention that the time spent in the Lubbock trial for the murder of Christy Michelle Elms is excludable from the time computation in the present case because under Art. 32A.02, Sec. 4(1), V.A.C.C.P. ¹ the Speedy Trial statute is tolled when a defendant is involved in trials on other charges. ² The State also contends that when a subsequent indictment for the same offense is returned by the grand jury, the State's announcement of ready for the first case carries to the subsequent case a previous compliance with any speedy trial time limits. In other words, if the announcement of ready in cause no. 2919, made on August 31, 1982, complied with Art. 32A.02, supra, the State asserts that a subsequent indictment which would not satisfy the time limits of Art. 32A.02, supra, on its own, would be validated for speedy trial purposes by a previous announcement of ready for the same case which complied with Art. 32A.02.

While the time spent in Lubbock would be excludable as another matter involving the appellant, see Art. 32A.02, Sec. 4(1), V.A.C.C.P., it is unclear in this case just exactly how much time was spent in Lubbock. However, we find the State's alternative contention to be meritorious, so the amount of time spent in the Lubbock trial is irrelevant for the disposition of this ground of error.

In Ward v. State, 659 S.W.2d 643 (Tex.Cr.App.1983), this Court held when a defective information (filed within the statutory period) was replaced with a valid information after the time period had run, there was no speedy trial issue. We rejected the requirement of a valid charging instrument to show the State's readiness for trial. Further, we held that Pate, supra, was distinguishable because no charging instrument was ever filed, and a trial cannot be had unless there is some type of pleading, but in Ward, supra, the charging instrument and the State's announcement of ready were within the time limits of Art. 32A.02. A defective charging instrument does not, in and of itself, indicate the State was not prepared for trial on the day it announced "ready." See Ward, supra, at 647.

In the instant case, it is unclear whether the indictment in cause no. 2919 (the first capital murder indictment) was actually defective because that indictment is not in the record. The only facts before us are that a subsequent indictment was returned by the Winkler County grand jury. However, if a defective indictment, filed within the time limits of Art. 32A.02, can be replaced with a valid one filed after the time has run, under Ward, supra, we see no reason why an indictment, either defective or valid, which complied with Art. 32A.02, could not be replaced with a second valid indictment filed after the allotted time. The...