Turner v. State

• Decision Date: 30 January 1991
• Docket Number: No. 69845,69845
• Citation: 805 S.W.2d 423
• Parties: Jessel TURNER aka Jason Turner, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 423

805 S.W.2d 423

Jessel TURNER aka Jason Turner, Appellant, v. The STATE of Texas, Appellee.

No. 69845.

Court of Criminal Appeals of Texas En Banc.

Jan. 30, 1991.

Concurring Opinion on Denial

of Rehearing March 13, 1991.

Michael B. Charlton, Charles F. Baird (on appeal only), Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., & John M. Bradley, Glenn Gotschall & David Brothers, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

CAMPBELL, Judge.

Appeal is taken from a conviction for capital murder. TEX.PENAL CODE § 19.03(a)(2). After finding the appellant guilty, the jury returned affirmative findings to the special issues under Article 37.071 TEX.CRIM.PROC.CODE. Punishment was assessed at death.

Appellant raises ten points of error. He challenges: the sufficiency of the evidence, arguing that the evidence is insufficient to show that the murder was committed intentionally, that the murder was committed deliberately and with the expectation that death would result, and that his conduct was unreasonable in response to the victim's provocation; the trial court's admission of testimony of appellant's reputation from five witnesses; the court's charge defining "intentional" as a culpable mental state; and the voir dire of a venireperson. ¹ We will affirm.

Shortly after midnight on February 10, 1986, appellant approached Archie Holmes, a Yellow Cab driver, at a self-service gas station, and asked him for a ride. Holmes declined to accept appellant, and called the dispatcher for another cab. Appellant remained at the service station, after asking Tracey McGrew, the station attendant, for permission to stay until the cab arrived. A few minutes later, the victim, Charles Hunter, also a Yellow Cab driver, arrived at the station. Holmes spoke briefly with Hunter, and appellant got into the back seat of the cab.

A short time later, Jimmy Darks, another Yellow Cab driver, found Hunter's body lying in the street less than half a mile from the gas station.

Medical and forensic testimony established that Hunter died from a gunshot wound which entered the upper part of the left side of his chest and then passed through his heart. Since he did not find soot or gunpowder stippling on Hunter's body, Dr. Harminder S. Narula, a Harris County assistant medical examiner, concluded that the bullet was fired from "at least 24 inches away." In addition, Reidun Hilleman, a Houston Police Department chemist, testified that another chemist for the department had found no gunpowder or stippling on the victim's shirt, and had concluded that the bullet was fired "at several feet," which was defined as three to five feet from the victim. ²

McGrew, the station attendant, testified that approximately an hour to an hour and one-half after seeing appellant leave with Hunter, appellant returned to the station in a large four-door car. When appellant purchased some gasoline, McGrew noticed a bruise or scrape on his face which was not present earlier.

McGrew gave police a description of appellant and his automobile. Almost immediately thereafter, the officers observed appellant driving past the gas station. When appellant saw the officers, he accelerated through a red traffic light. The officers pursued appellant and signalled for him to pull over, but appellant sped away, eventually stopping and surrendering.

Around 8:00 a.m. on that same day, appellant executed a written statement in the presence of Gary Bratton, a Houston Police Sergeant, which stated nothing about any involvement in Hunter's death. An hour or two later, appellant told Bratton that he wanted to get something off of his chest. Appellant then gave a second statement, admitting his presence in Hunter's cab, but stating that Hunter pulled a pistol on him, and it accidentally fired when he struggled with Hunter for control of the gun. In his second statement, appellant claimed that he borrowed the brown Chevrolet he was driving when arrested from a friend named "Ramon." In a third written statement made around 2:40 p.m., appellant explained that he lied about the manner in which he obtained the Chevrolet.

In a fourth written statement given later that afternoon, appellant admitted following two women from the same gas station and robbing them at gun point on the night of Hunter's death.

The pistol used to kill Hunter was found under the passenger's side of the front seat of the Chevrolet appellant was driving when arrested. Ballistics testimony established that the bullet recovered from the cab driver's body was fired from the weapon found in the Chevrolet. The pistol, identified by firearms examiner C.E. Anderson as a .22 caliber Saturday Night Special, required nineteen pounds of pressure per square inch to fire in the double action mode, and eight pounds of pressure in the single action mode. Anderson testified that eight pounds of pressure was "on the lower end of the heavy" range, and that the pressure normally required to pull a trigger is around five to six pounds. He also testified that nineteen pounds was in the "very heavy" range. Anderson further testified on cross-examination that "anyone pulling the trigger would have problems. It's heavy and hard to pull. It would have to be very intentional and pressure would have to be exerted to pull this trigger."

Hunter's cab was found at the apartment complex where appellant resided. A fingerprint from appellant's left ring finger was recovered from the outside of the front passenger door. The inside of the cab was in disarray.

Early in the afternoon on the day of his arrest, appellant was transferred from the station house to the jail. During the transfer, appellant was questioned by Jack Douglas, a Houston Post reporter. In response to questions, appellant admitted that he was in the cab with Hunter when he was killed, but that he did not kill anyone.

Kimberly Hall testified that appellant followed her and Sharon Marshall from a lounge, and robbed them at gunpoint. Appellant fled in Hall's vehicle after taking jewelry and money.

Beandres Williams and Ruby Johnson testified that approximately two hours before Hunter's death, appellant abducted them from the parking lot of a lounge, robbed them at gunpoint, taking jewelry and Johnson's car. Williams testified that appellant raped her prior to releasing her and Johnson. Johnson's car was also found at the apartment complex where appellant resided.

At the punishment stage of trial, all of the evidence from the guilt/innocence stage was re-offered. An unedited version of appellant's third written statement was introduced into evidence, in which appellant admitted to shooting Adam Garcia. Garcia testified that the day before Hunter's death, appellant approached him at a gas station and demanded the keys to his vehicle. Appellant shot Garcia in the abdomen and fled in Garcia's automobile. The bullet recovered from Garcia was fired from the same pistol used to kill Hunter.

Further in the punishment phase, an unedited version of appellant's fourth written statement was admitted into evidence, in which appellant admitted to the robbing and kidnapping of Kimberly Hall and Sharon Marshall.

G.V. Moore testified that appellant shot an unarmed person in the shoulder some two years prior to the instant offense. Jeanetta Burkes, appellant's former wife testified that appellant had committed the offense of criminal mischief by breaking out a window of her home. The State also offered proof that appellant had prior convictions for criminal mischief and driving while intoxicated. Six Houston Police Officers and appellant's ex-wife all testified that appellant had a bad reputation for being a peaceful and law abiding citizen.

Two Harris County jailers testified on appellant's behalf. Both testified that appellant had a good reputation for being peaceful and law abiding while incarcerated in the Harris County jail.

In his first point of error, appellant asserts that the evidence is insufficient to establish that he caused the victim's death intentionally. Appellant argues that the evidence of the circumstances of Hunter's death demonstrate the reasonable hypothesis that the death was the accidental result of a struggle for appellant's weapon. Appellant contends that even if the jury rejected his version of the events, the state's evidence was insufficient to show that he intentionally killed Hunter. The evidence, when viewed in the light most favorable to the verdict, fails to support appellant's contention.

The standard of review for challenges to sufficiency claims is whether, after viewing the evidence in the light most favorable to the judgment, 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, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979); Carlsen v. State, 654 S.W.2d 444, 448 (Tex.Cr.App.1983) (opinion on reh'g). The identical standard is applied to sufficiency challenges involving circumstantial evidence cases. Id., at 449. In applying this standard, if the reviewing court finds that there is a reasonable hypothesis other than the guilt of the accused, then it cannot be said that the guilt has been shown beyond a reasonable doubt. Butler v. State, 769 S.W.2d 234 (Tex.Cr.App.1989).

The evidence presented at trial was sufficient to establish that appellant intentionally killed Hunter. Appellant's presence at the scene of the killing was undisputed, as acknowledged by appellant in written statements and an oral admission to a reporter. Appellant also disclosed the location of the weapon used to kill Hunter. According to the firearms examiner, this pistol required at least heavy trigger pressure to be fired, and the firing would have had to have been intentional. According to the expert testimony, the absence of stippling and gunpowder on the deceased and his clothing indicated that the...