Tippitt v. State

• Decision Date: 15 March 2001
• Parties: (Tex.App.-Fort Worth 2001) PRESTON TIPPITT, A/K/A PRESTON TIPPETT, APPELLANT v. THE STATE OF TEXAS, STATE NO. 2-99-391-CR
• Court: Texas Court of Appeals

Page 316

41 S.W.3d 316 (Tex.App.-Fort Worth 2001)

PRESTON TIPPITT, A/K/A PRESTON TIPPETT, APPELLANT v. THE STATE OF TEXAS, STATE

NO. 2-99-391-CR

Court of Appeals of Texas, Fort Worth.

March 15, 2001

FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY

[Copyrighted Material Omitted]

PANEL F: CAYCE, C.J.; DAY and GARDNER JJ.

OPINION

GARDNER, JUSTICE

I. Introduction

Appellant Preston Tippitt was convicted of capital murder and sentenced to life imprisonment. In one point on appeal, he contends the evidence was legally insufficient to support his conviction as a party to the offense of capital murder. We affirm the judgment in part, as modified, and reverse and remand in part for a new punishment hearing.

II. Factual Background

Cleo Heath, the victim, lived in Fort Worth with his wife Delisa Miller, her sister Labeedah Dawkins, and his three children. He worked at Goodwill and was also a drug dealer, primarily dealing in marijuana. On the evening of May 14, 1997, Heath and two of his friends, James White and Desmond Williams, drove to the south side of Fort Worth in an attempt to buy some heroin. They went to a house on East Harvey Street, looking for Michael Jerome Hayes. Throughout the day of May 14, 1997, Hayes and Lorenzo McKnight had been drinking beer, smoking marijuana, and using heroin. Hayes and McKnight repeatedly ran into Robert Whitaker and Appellant, who were hanging out at a local gas station with Whitaker's girlfriend, Velisia Wafford, and Chris Jackson. In the late afternoon, Whitaker, Appellant, and Wafford piled into Hayes's car with Hayes and McKnight to go to one of Hayes's several houses on East Harvey and pick up Hayes's sister, identified in the record only as "Puddin'."

About the time that Heath, White, and Williams arrived at the house on East Harvey, Hayes pulled up in his car and sat in the car in front of the house. The two groups of people apparently did not know each other well. While Williams remained in the car,¹ Heath approached Hayes's car and after a short discussion, Heath bought some heroin.

At the time of the drug transaction, Heath apparently wore a lot of expensive looking jewelry and flashed a wad of cash. While sitting in the back of Hayes's car with Appellant, McKnight heard Appellant say to Whitaker that it would "be a lick if we could get him," meaning that Appellant wanted to rob Heath. McKnight asked Appellant not to do it right there because he did not want to be present when it happened.

McKnight testified that he believed that Appellant and Whitaker were acting together in wanting to rob Heath. According to McKnight's testimony at trial, Whitaker was known for "jacking" or robbing people. McKnight further stated that Whitaker and Appellant were always together and that the two were known "as a pair."

During the heroin transaction at the door of Hayes's car, Heath stated that he was in the business of selling marijuana and that Hayes and his friends could come to his house to obtain some "killer weed." Heath told Hayes and the other occupants of his car, including Appellant and Whitaker, where he lived, stating that his house was right behind "Bill Sodds," a business that is somewhat of a landmark in the area. Both Appellant and Whitaker told Heath to remember their faces when they came over later. Heath left, and shortly thereafter, Hayes dropped Appellant and Whitaker off at the same gas station where they had been spending time that day.

At the gas station, Appellant, Whitaker, and another individual identified as Keddreco Davis went across the street and got into a red car driven by Chris Jackson. McKnight testified that he then walked across the street and told Jackson not to take Appellant and Whitaker anywhere because they were "probably going to get in some trouble." McKnight said that Jackson failed to heed his advice and "burn[ed] off" with the group in the red car.

Meanwhile, after making the heroin purchase, Heath, White, and Williams went back to Heath's house. Heath told Williams that the guys they had just met might come over to "score some weed." White went home, but Williams stayed at Heath's house. Williams and Heath both used some of the heroin Heath had purchased. Later in the evening, Delisa Miller and Labeedah Dawkins returned home. Dawkins and Heath's three children went to sleep.

Still later that evening, while watching television in the living room with Heath and Miller, Williams responded to a knock on the door of Heath's home. Appellant and Whitaker were at the door. When Heath saw the visitors, he told Williams that they were okay because they were the guys from whom he had just bought the heroin. Williams went back to the living room sofa, while Heath and Whitaker began to transact business in the kitchen.²

Suddenly everything apparently went wrong when Miller heard Heath say, "Oh, no, man," and then she and Williams heard two shots ring out. Williams looked over to see Heath trying to grab a gun. Whitaker shot Heath twice. Wounded, Heath ran toward his children's room, where they were in bed, to try to jump out of the front window, but Whitaker chased Heath down, firing four more shots.

When the shooting began, Appellant and Williams ran for the front door. Miller started to run out the front door also, but she heard the window crash in her children's room and started to run back inside. On his way out of the house after shooting Heath in the children's bedroom, Whitaker stopped to hold his weapon to Miller's head. She recalled pleading for her life and then watching Whitaker and another person jump into a red car.

After fleeing the scene, Williams returned about five minutes later to find Heath barely alive on the floor of his children's bedroom, being held by Miller. According to the medical examiner, Heath died after suffering four gunshot wounds that lacerated his heart and lungs. Williams later identified Appellant from a photo as Whitaker's companion.

Officers and emergency personnel were dispatched to Heath's home at about 11:35 p.m. Officer P.C. Ray, a crime-scene investigator, saw a bullet hole, splattered blood, a bullet embedded in the kitchen floor, and other damage on the kitchen walls. Blood was sprayed on the hallway wall in an arching pattern, as if an artery had been hit. Officer Ray found that a bedroom window facing out to the front of the house was broken through. Blood was spattered in that room, and there was a large pooling stain on the floor at the foot of the bed along with a crumpled box fan. Bullet holes were also found in the bedroom. No shell casings were found at the scene. Officer Ray stated that the evidence he observed in Heath's home was consistent with someone having been shot in the kitchen, running down the hall trailing blood, and then attempting to jump out of the bedroom window, but, instead, falling on top of a box fan.

During the initial investigation, James White gave the police a description of the white car he had seen earlier that day being driven by Hayes. Shortly thereafter, at the gas station on the south side, officers found a car fitting the description, which was occupied by Hayes and McKnight. Hayes voluntarily spoke with the police, Whitaker was ultimately arrested and the murder weapon was located in the grass beneath Whitaker and Wafford's apartment window. After police spoke with Wafford, Appellant was identified as the second suspect.

After Detective John Thornton spoke with a relative of Appellant's, he received a phone call from Appellant. Appellant gave a written statement that was introduced as State's Exhibit Number Three. In this statement, Appellant stated that Jackson was the driver and admitted that he was in Heath's house at the time of the offense, but claimed that he intended only to buy marijuana and that he stayed in the living room and never went into the kitchen. Appellant stated that when he heard gun shots, he ran out the front door and got into the front seat of Jackson's car. He heard Whitaker get into the back seat and say "all we got is a sack of weed," and then the group drove back to their side of town. Appellant also stated that he "didn't know that [Whitaker] had a gun." Appellant was not arrested after giving this statement.

However, according to Detective Thornton, he received additional information indicating that Appellant's involvement was more than he had admitted in the written statement and sought another meeting with Appellant, letting Appellant know that he had more information. Appellant then gave a second written statement suggesting a greater degree of his involvement in the crime than his first statement implied. This second statement was introduced as State's Exhibit Number Five.

In this second statement, Appellant admitted that at the gas station after Heath had bought the heroin at Hayes's car, he heard Whitaker and Wafford discuss "hitting a lick," suggesting they wanted to rob Heath. Appellant also recalled that, before he, Keddreco Davis, and Whitaker got into Jackson's car at the gas station, he heard Whitaker say that they were "fixing to go hit a lick." Appellant also stated that, as he and Whitaker approached Heath's front door, Whitaker stated that "this was the lick right here," suggesting that the robbery was about to occur. Furthermore, in this statement, Appellant stated only that he "didn't see" Whitaker with a gun. Appellant still declared that he remained in the living room during the shooting and that he ran back to Jackson's car when he heard gun shots. Following this statement, Appellant was arrested and charged with capital murder.³

Evidence was also presented regarding gang involvement of Appellant, Whitaker, Williams, and McKnight. During trial as the lunch break began, Appellant flashed a gang sign at Williams following Williams's testimony. The sign was purportedly Appellant's way of telling Williams that Appellant had not killed Heath, Williams's "home boy." Williams explained to the...