Sherwood v. State

• Decision Date: 08 July 1987
• Docket Number: No. 2-86-013-CR,2-86-013-CR
• Citation: 732 S.W.2d 787
• Parties: Jackie William SHERWOOD, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

Page 787

732 S.W.2d 787

Jackie William SHERWOOD, Appellant, v. The STATE of Texas, State.

No. 2-86-013-CR.

Court of Appeals of Texas Fort Worth.

July 8, 1987.

Woodruff, Fostel, Wren & Simpson and Melton D. Cude, Decatur, for appellant.

Brock R. Smith, Dist. Atty., Decatur, for State.

Before FENDER, C.J., and BURDOCK, HOPKINS (Retired, Sitting by Assignment), JJ.

OPINION

HOPKINS, Justice, (Retired, Sitting by Assignment).

Appellant, Jackie William Sherwood, appeals from a conviction by the jury for murder. See TEX.PENAL CODE ANN. sec. 19.02(a)(1) (Vernon 1974). Punishment, enhanced by one prior felony conviction, was assessed by the jury at fifty years confinement in the Texas Department of Corrections.

The judgment is affirmed.

On April 16, 1985, the body of the decedent, sixty-year-old Homer LaFate Minyard, was discovered in a rural area in Wise County. Appellant and two others, Johnnie Soule and Mima Jean Hodges, were indicted for Minyard's murder. Soule is appellant's mother. Hodges is appellant's aunt, Soule's sister, and the decedent's common-law wife. Appellant was indicted and convicted under the theory that he either acted alone, or as a party with Soule and Hodges. The cases against the three defendants were severed and tried separately.

In three points of error appellant challenges the sufficiency of the evidence, the trial court's action in admitting into evidence certain items not disclosed in pre-trial discovery, and the court's ruling allowing into evidence hearsay statements of co-defendant Hodges.

In his first point of error, appellant contends the trial court erred in failing to instruct the jury to return a verdict of not guilty because there was insufficient evidence adduced as a matter of law to support the offense.

The State's theory of the case was basically that the day before the murder, appellant and his mother, Johnnie Soule, traveled to Wise County from Wyoming. After they drove to Fort Worth to pick up some personal belongings being stored there, they returned to Wise County where they purchased a .20 gauge shotgun with which they shot and killed the decedent on April 16, 1985, dumped his body in a rural area just south of Chico, Texas (Wise County), and towed the decedent's pickup truck back to Wyoming where they ultimately abandoned it.

Appellant's presentation of the case was based upon his claim that when he and his mother drove down from Wyoming, he understood the sole purpose of the trip was to pick up furniture in Fort Worth, and return with it to Wyoming. Appellant sought to make the jury believe that the decedent's wife contacted her sister, appellant's mother, and solicited her help in planning the murder of the decedent. The defense contended that until he was arrested, appellant knew nothing of the real purpose of the trip, and he participated in towing and abandoning the decedent's pickup truck only because his mother told him the vehicle was stolen and they needed to get rid of it.

Neither appellant, his mother (Johnnie Soule), nor the decedent's common law wife (Mima Jean Hodges), testified at trial.

In reviewing the sufficiency of the evidence, ¹ we must view the evidence in the light most favorable to the prosecution and consider whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. State, 672 S.W.2d 801, 803 (Tex.Crim.App.1984); Houston v. State, 663 S.W.2d 455, 456 (Tex.Crim.App.1984) (opinion on reh'g); Wilson v. State, 654 S.W.2d 465, 471-72 (Tex.Crim.App.1983) (opinion on reh'g). "This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). A conviction based upon circumstantial evidence cannot be sustained if the circumstances do not exclude every other reasonable hypothesis except that of the guilt of the appellant. See Johnson v. State, 673 S.W.2d 190, 195 (Tex.Crim.App.1984); Jackson, 672 S.W.2d at 803. Stated conversely, if the evidence supports an inference other than the guilt of the appellant, a finding of guilt beyond a reasonable doubt is not a rational finding. See Johnson, 673 S.W.2d at 195; Wilson, 654 S.W.2d at 472.

Each party to an offense may be charged with a commission of the offense. TEX.PENAL CODE ANN. sec. 7.01(b) (Vernon 1974). A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for whom he is criminally responsible, or by both. TEX.PENAL CODE ANN. sec. 7.01(a) (Vernon 1974). A person is criminally responsible for the conduct of another if, inter alia:

(2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense; ....

TEX.PENAL CODE ANN. sec. 7.02(a)(2) (Vernon 1974). While presence by an individual at the scene of an offense is insufficient evidence to sustain a conviction, it is a circumstance tending to prove guilt, and, taken with other circumstances, may suffice to show that the accused was a participant. Harris v. State, 645 S.W.2d 447, 457-58 (Tex.Crim.App.1983). In making this determination, the jury can examine events before, during and after the commission of the offense, including actions which show an understanding and common design to do a certain act. Burdine v. State, 719 S.W.2d 309, 315 (Tex.Crim.App.1986); Harris, 645 S.W.2d at 457-58.

Texas Ranger Phil Ryan testified that he received a telephone call on the afternoon of April 16, 1985 regarding a body that had been discovered in a rural area of Wise County, Texas. The decedent appeared to have been shot in the face. Ryan's preliminary investigation revealed that the identity of the decedent might be Homer ("Slim") Minyard who lived near Paradise, Texas, and who resided with Mima Jean Hodges. The witness telephoned Hodges who initially denied that she knew Minyard; however, upon further questioning Hodges acknowledged that she and Minyard lived together. Ranger Ryan went to Hodges' residence that evening and interviewed her, returning at daylight on the following day for a closer examination of the premises. This investigation uncovered a trail of blood on the grass outside the house, which someone had attempted to conceal with dirt and debris. In the yard, the officers also found a tooth, a part of a shotgun wadding, and a gray button, which later proved to be the same type as the decedent's.

After the body was found, Ranger Ryan teletyped a description of the decedent's green and white Chevrolet camper throughout the country. Two days later, on April 18, 1985, that vehicle was found in a ravine in Carbon County, Wyoming. The Wyoming deputy sheriff investigating the incident testified it appeared someone had driven the vehicle off the road in this rural area. The vehicle was subsequently towed into town and examined by the investigators; the evidence removed from the vehicle was sent to the Wise County investigators.

Ranger Ryan stated his opinion that the shooting took place at about 2:00 o'clock p.m. on April 16, 1985, and that the decedent was not killed at the location where his body was found, as evidenced by the absence of a great amount of blood at the scene. Ranger Ryan's testimony was that the decedent was killed at his house, dragged to his vehicle, and his body was later dumped in the rural area where it was found. A comparison of tire tracks found at the scene where the body was dumped, with the tires of appellant's truck, revealed the two sets of tracks were "similar." Ranger Ryan acknowledged that there were no witnesses either to the shooting or to the dumping of the body.

The medical examiner testified there was an abundance of blood around the face and the interior part of the decedent's body. The decedent had received a shotgun wound in his right cheek from a distance of six to ten feet, and the cause of death was asphyxiation due to massive aspiration of hemorrhagic material, resulting from a shotgun injury of the right cheek. The witness was unable to determine if the wound had been caused by a .12 gauge, a .20 gauge, or a .410 gauge shotgun. The medical examiner stated the decedent died within approximately five to ten minutes of receiving the wound, and he had a .08% level of alcohol in his blood at the time of his death.

Susan Taylor, a serologist for the police department, testified she received various items from the investigators in the instant case, and examined each for the presence of possible body fluid, such as blood. She stated the decedent had type O blood, which was also found on: the shirt he was wearing; a handi-wipe recovered from his pickup truck; dirt and rocks outside his home; a blouse located in his pickup; and the tailgate, seats, and carpet of his vehicle. Additionally, although State's Exhibit 35, a .20 gauge shotgun, did not have any fingerprints on it, Taylor removed a reddish substance from the gun and determined it was type O blood. The witness indicated that none of the items submitted to her contained any blood that was inconsistent with that of the decedent's blood type.

Lloyd Courtney, a fingerprint expert, testified the fingerprints taken from the hood of the decedent's vehicle are those of appellant, and those taken from the inside window on the passenger's side of the same vehicle belong to Johnnie Soule. None of the latent prints matched those of Mima Jean Hodges. Courtney stated that while there is a possibility of one hundred points of identification in the comparison of fingerprints, an expert needs only seven points to be assured a latent print and a known print are one and the same. The latent prints in the instant case taken from the decedent's vehicle, and the known...