Stanton v. State

• Court: Texas Court of Appeals
• Writing for the Court: STEWART
• Citation: Stanton v. State, 747 S.W.2d 914 (Tex. App. 1988)
• Decision Date: 11 March 1988
• Docket Number: No. 05-86-01247-CR,05-86-01247-CR
• Petition History: writ ref'd
• Parties: Elbert Harvey STANTON, Appellant, v. The STATE of Texas, Appellee.

Page 914

747 S.W.2d 914

Elbert Harvey STANTON, Appellant, v. The STATE of Texas, Appellee.

No. 05-86-01247-CR.

Court of Appeals of Texas Dallas.

March 11, 1988.

John H. Hagler, Dallas, for appellant.

Anne B. Wetherholt, Dallas, for appellee.

Before WHITHAM, McCLUNG and STEWART, JJ.

STEWART, Justice.

A jury convicted Elbert Harvey Stanton of murder and assessed punishment at life imprisonment. Appellant raises seven points of error, contending that: (1) the evidence is insufficient to support the conviction; (2) an exhibit allegedly referring to extraneous offenses was erroneously admitted; (3) appellant's oral statements made while in police custody were inadmissible; (4) the trial court erred in sustaining the State's challenge of a juror for cause; (5) the jury should have been instructed on confinement as a condition of probation; (6) the jurors' discussion of parole laws constituted reversible error; and (7) the jury's verdict was not unanimous. Finding no merit in appellant's contentions, we affirm the judgment of the trial court.

I. Sufficiency of Evidence

In point of error one, appellant asserts that the evidence is insufficient to support the conviction. Specifically, he contends that the record shows that he shot Kerry Thurman by accident or in self-defense. The standard for appellate review of the sufficiency of the evidence is to view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Garrett v. State, 682 S.W.2d 301, 304 (Tex.Crim.App.1984), cert. denied, 471 U.S. 1009, 105 S.Ct. 1876, 85 L.Ed.2d 168 (1985). We now review the evidence with this standard in mind.

The sixty-nine-year-old appellant and Kerry Thurman, the deceased, lived in the same condominium complex. There had been frequent disagreements between the two men, many involving Thurman's dog. On the morning of his death, Kerry's wife Robin was walking the dog without a leash. Appellant saw her and screamed at her that it was against the law and against condominium rules to have the dog outside without a leash and that he was going to call the police. Appellant walked toward her, yelling about a petition and saying that they had no right to kick him out of the complex.

Although Robin testified she knew nothing about a petition at that time, evidence developed later at trial revealed that sixteen condominium owners had signed a petition and complained to management about appellant. Robin testified that appellant appeared upset about the petition when he accused her that morning of trying to kick him out.

Robin turned to walk away from appellant, but turned back to face him when she did not hear the dog following her. She saw appellant kick the dog. She and the dog ran back to her condominium. She was upset that appellant had yelled at her and kicked the dog. Kerry woke up when she entered the condo and Robin told him about her run-in with appellant. Kerry said he would try to talk to appellant.

Kerry got up and began to dress. He could not find his shoes. Robin looked out the door to see if appellant was still there because they thought he might have gone after all the time that had passed while Kerry was looking for his shoes. Robin saw appellant, sitting in his car. He had moved his car from his assigned parking space to a place facing the Thurmans' front door. He could not leave the parking lot from that direction and appeared to be waiting for something. Kerry finally found his shoes. Approximately five minutes had elapsed from the time Robin returned to the condo.

Kerry left the condo and walked toward appellant's car. Robin testified that he was moving at a quick gait but was not running. Kerry crossed the parking lot and then moved around the front of appellant's car to the driver's side. Robin testified that Kerry may have yelled at appellant, but that she did not hear what he said, if anything. Kerry raised his hands, gesturing for appellant to roll down the window. Kerry made no thrusting motion and there was no force used when he moved his hands toward the window. Robin saw a flash, heard a shot and saw her husband fall. She screamed and ran across the parking lot to him. Kerry was covered with blood and glass. She looked in the car and saw appellant sitting there with a gun in his hand. Robin ran to her mother-in- law's (Kerry's mother) condo and told her "that man" had shot Kerry and told her to call an ambulance. Then she went back out to her husband and held his hand.

Several neighbors came out to the parking lot after hearing the shot and Robin's screams. Appellant opened the car door, stepped over Kerry's body and calmly put the gun back in its zippered case. Appellant, a medical doctor, did not try to aid Kerry who was lying there bleeding. Appellant said he was going to call the police and headed toward his condominium. Kerry's mother encountered appellant on the sidewalk as she was running toward the parking lot. She screamed at him, "you hurt my son," and hit him and threw off his glasses. Appellant merely smiled.

When the police arrived, the paramedics and a crowd of 20 to 25 neighbors were surrounding Kerry's body. Officer Page asked the crowd at large who did it and several persons pointed at appellant. Appellant was very calm and matter-of-fact. He did not appear upset and did not show concern. Appellant told Page the gun was in his apartment and offered to show it to him. Appellant was taken to the jail, where he initiated a conversation with Officer Page. Appellant told the policeman that Kerry had attacked him and smashed out the window on his car.

Officer Burson also spoke to appellant at the police station. He was assigned to perform a handwashing, a test to determine whether a person had fired a gun. Officer Burson explained to appellant what he was going to do. Appellant looked at the bottle of solution sitting on the counter and said, "that has nitric acid in it." Burson asked appellant if he was a chemist and appellant said he was a doctor. Officer Burson put the solution on a swab, preparing to wash appellant's hands. Appellant thrust his right hand at Burson and said, "This is the hand I shot him with. I knew he was dying, but--." Appellant paused, then said, "I'd kill a whole roomful if I had to."

Several neighbors who saw appellant immediately after the shooting testified as to his demeanor. Jack Dilworth saw appellant sitting in his car and heard him say to Robin Thurman, "Yes, I shot him ... He's dead, too. He deserved to die because he threatened me." Appellant was calm and cool and had an air of triumph about him as if he were happy with what he had done. He did not act like a man who had just been threatened and showed no anxiety or fear. Darald Bodine, who considered himself appellant's friend, testified that appellant was acting "in control or a little arrogance [sic]." He showed no remorse or concern for the person he had shot and did not seem afraid or upset. Mark Dilworth also said appellant showed no remorse and did not appear to be a man who had recently been in fear of his life. Appellant appeared very cold. Mark Dilworth heard appellant say Kerry was attacking him, that he had broken the window so appellant shot him. Appellant also said, "He deserved to be shot." Mark Dilworth did not believe Kerry had broken the window because he was such a small person.

Dr. Gilliland, the medical examiner who performed the autopsy on Kerry Thurman, testified that Kerry died from a gunshot wound to the right chest. She found tiny slivers of glass on appellant's clothes corresponding to marks on the skin indicating that the bullet had passed through an intermediate target of glass. An external examination of Kerry's hands revealed no injuries--no bruises, scrapes or cuts. Dr. Gilliland would expect some sign if a person hit a window hard enough to crack it.

Several witnesses testified that Kerry was a small man. He was five feet six inches tall and weighed 122 pounds. He was not very strong. Although appellant was sixty-nine years old, he was very fit. He exercised frequently, swimming laps and jogging. He was much bigger than Kerry.

Appellant testified that Kerry ran toward his car, threatening to kill him. He banged on the top of the car and on the window with enough force to rock the car. Appellant was terrorized. He reached over and got his gun case out of his medical bag. He displayed the gun case to Kerry, but Kerry kept hitting the car. He unzipped the case and removed the gun and showed it to Kerry. Kerry beat harder on the window and it suddenly shattered. Appellant doubled up in the seat and the gun went off. He did not pull the trigger. Appellant testified, "I was terrorized, panicked, in fear of my life, and he said he would kill me and I was dead."

The jury is the exclusive judge of the credibility of the witnesses and of the weight to be given their testimony. TEX.CODE CRIM.PROC.ANN. arts. 36.13, 38.04 (Vernon 1979); Johnson v. State, 571 S.W.2d 170, 173 (Tex.Crim.App.1978). The jury may believe some witnesses and refuse to believe others and it may accept portions of the testimony of a witness and reject other portions. Nixon v. State, 572 S.W.2d 699, 700-01 (Tex.Crim.App.1978). In resolving the conflicting testimony, the jury could have chosen to disbelieve appellant's accident/self-defense claim. The medical examiner testified that the bullet passed through glass before entering Kerry's body. Several witnesses testified that Kerry's body was covered with glass and that there was no glass inside the car. Kerry's hands were not injured, which is inconsistent with a story that he broke glass with his hands. Thus, the jury could have concluded that the glass was intact when appellant fired and that the bullet forced the glass outward rather than Kerry's hands forcing it inward.

The jury could also have believed Robin's testimony...