Stahl v. State

• Decision Date: 15 May 1986
• Docket Number: No. 01-85-0470-CR,01-85-0470-CR
• Citation: 712 S.W.2d 783
• Parties: Gregory Bryan STAHL, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 783

712 S.W.2d 783

Gregory Bryan STAHL, Appellant, v. The STATE of Texas, Appellee.

No. 01-85-0470-CR.

Court of Appeals of Texas Houston (1st Dist.).

May 15, 1986.

Rehearing Denied June 12, 1986.

Allen C. Isbell, Houston, for appellant.

John B. Holmes, Jr., Harris County Dist. Atty., Timothy G. Taft, Lee Coffee, Harris County Asst. Dist. Attys., Houston, for appellee.

Before SAM BASS, HOYT and DUNN, JJ.

OPINION

SAM BASS, Justice.

A jury convicted appellant of murder and assessed punishment at seven years confinement.

We reverse and remand.

Gregory Leonard testified that he lived with appellant for two months prior to the shooting. Approximately one month prior to the homicide, Arthur Newton, the deceased, moved into appellant's apartment. He was to pay one-half of the rent and living expenses, but never did. During the time the deceased lived with appellant and Leonard, he "conned" appellant out of more than $600.00. The first time, the deceased told appellant he could turn a quick profit if he had $350.00 or $400.00 to purchase some gold coins. Appellant gave him the money, but the deceased used the money "for his own purposes." The second time, the deceased persuaded appellant into "hocking" his tools on the promise that he would pay the rent but, again, the deceased kept the money and never paid appellant.

This situation evoked a stormy relationship that broke out into arguments over money. Leonard testified that he heard appellant "threaten to kill" the deceased four or five times unless he was repaid, but admitted that appellant never used the word "kill."

Anthony Demidio testified that appellant made a similar threat on the day preceding the homicide.

Leonard further testified that the only time he saw the deceased show violence towards appellant was when appellant returned to the apartment one night, retrieved a pistol, pointed it at Leonard, and pulled the trigger. The bullet struck on the wall. The deceased, who had been watching television, got up, took the gun away from appellant, and hit him openhandedly.

Leonard also testified that both he and appellant had taken steps to be drug enforcement informants, and that he had related to appellant that the deceased, a heavy drug user, suspected that appellant was a "narc" or informant.

Leonard admitted that a written statement he gave the police in which he claimed he was an eyewitness to the shooting was a lie.

Rudy Validez testified that he was a mutual friend of the deceased and of appellant and was with them just moments prior to the homicide, although he was not an eyewitness to the shooting itself.

Validez and appellant went to a nightclub and returned to appellant's apartment at approximately 2:10 a.m. on August 8, 1984. Appellant had been drinking at the club and was "drunk." The deceased was at the apartment. The deceased and appellant began arguing over rent and about a police officer's card on the door. The argument lasted for about 30 minutes. The deceased accused appellant of being a "narc." Validez stopped the argument, suggesting that the three of them go to his apartment for a beer.

When they arrived at Validez's apartment, appellant resumed the argument, but then left. He returned five minutes later and sat next to the deceased. When appellant leaned over, the deceased grabbed a gun from appellant's pants, slapped appellant with the gun cutting his cheek and earlobe, and separated the clip from the gun. Appellant, temporarily stunned, challenged the deceased to go outside and fight, but the deceased refused. Eventually, Validez told them to leave.

Validez watched them leave. Appellant left with the gun and the deceased with the clip to the gun. Appellant walked towards his apartment; the deceased first walked towards the parking lot with his dog and then to his apartment. When the deceased was walking back to his apartment, Validez heard a single gunshot. Immediately, appellant ran to Validez's apartment and knocked on his door, but Validez did not open the door.

Validez testified that appellant told him the deceased died instantly.

Lieutenant Leo Horn, of the Harris County Sheriff's Department (HCSD), stated that on August 8, 1984, at approximately 3:30 a.m., a pickup truck approached his patrol car at a service station. A man exited, later identified by Horn as appellant, approached Horn, and asked him for help. Appellant was excited, distraught, and nervous. Horn noticed blood on appellant's right cheek. Appellant stated he had been jumped by someone and that he (appellant) was a cripple. Horn asked where the assailant was, and appellant said he was dead. Horn then asked appellant how he knew the man was dead, and appellant replied that he had shot the man and that the man lay on his front porch. Appellant also stated that he was a sharpshooter and did not miss, and pointed to medals in his truck awarded for sharpshooting. Horn admitted that at first he was doubtful of appellant's story, and that by emphasizing his sharpshooting skills, appellant could have been trying to convince Horn to believe him.

Horn retrieved a Rueger semi-automatic pistol from appellant's truck; the pistol had the magazine in it. Horn then followed appellant to his apartment complex where Horn saw the deceased lying on his back on the concrete entrance area of appellant's apartment. At this point, Horn arrested appellant.

Chief R.L. Parsley of the Jersey Village Police Department testified he was a resident at appellant's apartment complex. He had left his business card on appellant's apartment door approximately one week before the incident. Parsley also testified about a conversation he had with appellant after the shooting and prior to appellant's arrest and construed appellant's attitude as being proud of what he had done.

Deputy R.C. Stampp of the HCSD testified that he was called to the crime scene and the deceased's body was lying face up with a gunshot wound to the right side of the head. Stampp noticed a slight trail of blood from the apartment to where the body lay. The deceased's head was approximately 8 feet from the apartment.

Sergeant James M. Watson of the HCSD testified that the clip of the pistol contained seven live shells. One spent cartridge was found just inside the apartment doorway. No tests had been conducted to determine the trajectory distance of a shell from that pistol. Watson attempted to lift fingerprints off of the pistol and its clip, but was unsuccessful.

Aurelio Espinola, Deputy Chief Medical Examiner for Harris County, testified that in his opinion the cause of death was a gunshot wound at the back of the head. The injuries sustained would have been consistent with that produced by a .22 caliber pistol fired within a range of approximately 8 feet. The path of the bullet went from behind the ear towards the front.

Appellant testified that the deceased began living with him before the homicide, and that the deceased was a heavy drug user and owed him money. He knew that the deceased was on probation for robbery. The deceased had struck him once before.

Appellant had argued with the deceased over money and also about accusations by the deceased that appellant was a "narc." These accusations began about one week prior to the shooting. In particular, an argument had resulted from the discovery of Parsley's card on appellant's apartment door.

Appellant confirmed that on the night of the incident, he went to a nightclub with Validez and had been drinking, but denied being drunk. Appellant and Validez had been discussing the deceased's accusations against appellant.

They first returned to Validez's apartment. Appellant then left to check on his apartment and found it wide open, which indicated to him that the deceased had been there. Alarmed because of the deceased's violent nature, appellant retrieved his pistol and placed it behind his pants.

Appellant returned to Validez's apartment and the deceased was there. The deceased began accusing appellant of being a "narc", and they began to argue. The deceased then grabbed appellant's gun and slapped him with it, ripping his face. Appellant was stunned and demanded the deceased fight "man-to-man."

The deceased removed the clip of the gun, handed the pistol back to appellant, and kept the clip. Appellant then went to his apartment, doctored his face, put the pistol on the coffee table, took off his prothesis and pants, and lay on the couch. Appellant wears a prothesis, having lost a leg in an automobile accident.

The deceased returned, seized the pistol, inserted the clip, pointed the pistol at appellant, and demanded he come with him. At this point, appellant testified he was in fear of his life.

Appellant lunged at the deceased, and they hit the ground in the doorway area. Appellant got up and as the deceased began to get up, he appeared to be lunging at appellant and yelled "If I don't kill you, my cousin will." Simultaneously, appellant reached up, pointed the pistol, and shot the deceased. Appellant then put on his prothesis and ran to Validez's place for help. He then drove to a service station where he asked Horn for help. Because Horn did not appear to believe him, he emphasized his sharpshooting skills.

Appellant testified that he was "scared" the entire time. He said he was "upset" at the deceased for slapping him with the pistol, but denied that he shot the deceased in retaliation for that injury. He denied that he intentionally shot the deceased in the head. Appellant confirmed that the deceased was unarmed when he shot him, and denied making statements to the effect that he was proud of the incident.

Detective Anthony Rossie of the HCSD testified that he took appellant's confession the morning after the incident, and that appellant appeared both upset and boastful.

In his first two grounds of error, appellant alleges that the trial court erred in refusing to charge the jury on voluntary manslaughter, and that the State had to...