Staley v. State

• Decision Date: 27 April 1994
• Docket Number: No. 71274,71274
• Citation: 887 S.W.2d 885
• Parties: Steven Kenneth STALEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 885

887 S.W.2d 885

Steven Kenneth STALEY, Appellant, v. The STATE of Texas, Appellee.

No. 71274.

Court of Criminal Appeals of Texas En Banc.

April 27, 1994.

Rehearing Denied Sept. 21, 1994.

Danny D. Burns, Robert McCrarey, Mary B. Thornton, Fort Worth, for appellant.

Tim Curry, Dist. Atty., and Betty Marshall, Charles M. Mallin, Steven W. Conder, Marc Barta, Terri Moore & Lisa Mullen, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

McCORMICK, Presiding Judge.

Appellant was found guilty for the capital murder of Robert Read in the course of robbery. V.T.C.A., Penal Code, Section 19.03(a)(2). The trial court sentenced appellant to death after the jury affirmatively answered all the submitted special issues. Article 37.071(b), V.A.C.C.P. Appeal to this Court is automatic. Article 37.071(h), V.A.C.C.P. We will affirm.

I.

In his first and second points of error, appellant challenges the sufficiency of the evidence. His first contention is that the evidence is insufficient to prove appellant "intentionally" killed Robert Read. Appellant's second point avers that the evidence is insufficient to prove his act was committed "deliberately." In reviewing a challenge to the sufficiency of the evidence, the standard "is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Upton v. State, 853 S.W.2d 548, 551 (Tex.Cr.App.1993). A review of the facts is necessary.

During a four-state crime spree, Tracey Duke, Brenda Rayburn, and appellant arrived on October 14, 1989 at a Steak and Ale restaurant in Tarrant County just prior to closing. After dinner and dessert, Duke and appellant removed two MAC 11 9-millimeter semiautomatic pistols from Rayburn's purse. Appellant secured the kitchen and rear area of the restaurant, while Duke proceeded to secure the front. Appellant gathered all the employees in the kitchen storeroom. During the confusion an assistant manager slipped out a rear door and called the police.

After securing the restaurant, appellant demanded that the manager present himself. Robert Read stepped forward and slightly nudged two other assistant managers, indicating they should remain where they were. Appellant then commanded Read to open the cash registers and the safe. He also dictated that the employees in the storeroom throw out their wallets, purses and aprons. One employee lifted his head, only to be kicked in the chest by appellant. Appellant threatened the other employees that if any others looked up, he'd kill them--"he'd blow them away!"

The police arrived. Believing that Read had pressed a silent alarm button, appellant threatened that if the police were outside Read was going to be the first to die. Read remained calm. He told appellant there were no panic buttons, but he would be their hostage and go out front with them as long as they did not hurt the other employees. Appellant told Read, "if you fuck up one time, I'll kill you."

Appellant, his two accomplices, and their hostage left the restaurant. Eventually they hijacked a two-door Buick on Alta Mere Road. Duke went around to the driver's side and instructed the owner of the vehicle to get out. Duke and Rayburn got in the automobile. Appellant pushed Read into the back seat of the car and followed him. Police heard several gunshots as the car accelerated.

During the high-speed pursuit of appellant and his accomplices, a brief case containing some of the stolen money and both semiautomatic pistols were discarded at various locations. Ultimately, the car broke down and the three accomplices attempted to flee. All were quickly captured. Appellant's first words to the arresting officers were, "[d]on't kill me." Upon their apprehension, the police discovered Read's body in the back seat of the Buick.

The medical examiner testified that Read had suffered a blow by a blunt object to the forehead. The nature of the wound led the examiner to believe Read's head was stationary when the blow occurred. Read had also been shot in the head, shoulder and side. The medical examiner testified Read was shot in the right temple at a distance of one inch. Within approximately thirty seconds, Read was shot in the shoulder region. Both shots would have been fatal. The third and final bullet which would not have been immediately fatal entered Read's abdomen. The medical examiner testified that when the bullet entered Read's right shoulder his right arm was down at his side. The forensic expert testified that the gunshot to the shoulder was at a distance of approximately nine inches. There was gun powder residue on both hands of Read. The forensic expert testified the powder on Read's hands could be consistent with someone attempting to defend himself.

The evidence presented in the guilt phase of the trial is sufficient for a jury to rationally conclude appellant "intentionally" shot and killed Read. In his brief, appellant contends a struggle ensued in the commandeered car between appellant and Read. When Read grabbed the semiautomatic pistol from appellant, the pistol went off several times. Appellant alludes to several witnesses' testimony concerning movement inside the car as well as evidence that a bullet exited the front windshield of the Buick as evidence further supporting this theory. However, when viewed in the light most favorable to the verdict, we disagree with appellant's contention.

"The specific intent to kill may be inferred from the use of a deadly weapon, unless in the manner of its use it is reasonably apparent that death or seriously bodily injury could not result." Godsey v. State, 719 S.W.2d 578, 580-81 (Tex.Cr.App.1986). The evidence indicates in this instance that Read was shot at a distance of one inch in the region of the right temple as well as at a range of nine inches in the region of the right shoulder. These shots were fired within thirty seconds of each other. The evidence also indicated that appellant repeated on numerous occasions that he intended to kill Read if the police were outside. The evidence was sufficient for a jury to rationally conclude appellant intentionally shot Read as he attempted to fend off his impending execution. Appellant's first point of error is overruled.

We also believe the evidence is sufficient that a jury would rationally conclude appellant acted deliberately. ¹

"The facts at the guilt stage of the trial alone can often be sufficient to support the affirmative finding of the jury to the special issues at the penalty stage of the trial. Williams v. State, 773 S.W.2d 525, 538 (Tex.Crim.App.1988), cert. denied, 493 U.S. 900 [110 S.Ct. 257, 107 L.Ed.2d 207] (1989). 'A jury must find "a moment of deliberation and the determination on the actor to kill" before it is justified in answering "yes" to special issue number one.' Kinnamon v. State, 791 S.W.2d 84, 95-96 (Tex.Crim.App.1990). The determination of deliberateness must be found from the totality of the circumstances." Johnson v. State, 853 S.W.2d 527, 531 (Tex.Cr.App.1992).

As in the first point of error, appellant points to the limited evidence of a struggle to illustrate appellant did not act deliberately.

We believe the evidence of a struggle is not inconsistent with a jury determination that appellant acted deliberately. Read's last efforts may have been an attempt to avoid his impending execution by appellant. A rational jury could believe that appellant shot Read point blank in the right temple. However, even more telling of appellant's intention to kill Read was his threats to kill Read throughout the robbery if the police were outside. The evidence indicated appellant incorrectly believed Read was responsible for summoning the officers. The evidence is sufficient to believe appellant acted deliberately. Appellant's second point of error is overruled.

II.

In his third point of error, appellant argues the trial court erred in not disqualifying veniremember Aston because he was under a legal accusation of theft. Article 35.19, V.A.C.C.P., specifies that no veniremember "shall be impaneled when it appears that he is subject to the second, third or fourth cause of challenge in Article 35.16, though both parties may consent." The third cause of challenge in Article 35.16 is that the veniremember "is under indictment or other legal accusation of theft or any felony." Today, we must decide whether the phrase "other legal accusation of theft" necessarily includes a civil suit.

In exercising statutory construction, this Court has looked to the clear and unambiguous language of the statute. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Cr.App.1991); Moore v. State, 868 S.W.2d 787 (Tex.Cr.App.1993). Appellant contends the term "accusation" does not have a technical legal definition and therefore it should be interpreted consistent with its common definition. In common parlance, the term "accusation" has a broad meaning including oral or written cries of wrongdoing. However, in the law, the term "accusation" is limited to "a formal charge against a person, to the effect that he is guilty of a punishable offense, laid before a court or magistrate having jurisdiction to inquire into the alleged crime." Black's Law Dictionary, 5th Ed.1983; United States v. Patterson, 150 U.S. 65, 68, 14 S.Ct. 20, 21, 37 L.Ed. 999 (1893). We believe it was the clear import of the Legislature that the phrase "other legal accusation" was to correspond with the legal definition of "accusation," specifically a formal criminal charge against an individual. Therefore, a civil pleading alleging conversion does not constitute a cause of challenge under Article 35.19. Accordingly, appellant's third point of error is overruled.

In his sixth point of error, appellant contends ...