Upton v. State

• Citation: 853 S.W.2d 548
• Decision Date: 07 April 1993
• Docket Number: No. 69717,69717
• Parties: Jackie Wayne UPTON, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 548

853 S.W.2d 548

Jackie Wayne UPTON, Appellant, v. The STATE of Texas, Appellee.

No. 69717.

Court of Criminal Appeals of Texas,

En Banc.

April 7, 1993.

Rehearing Denied May 26, 1993.

Jack O. Herrington, Clarksville, for appellant.

Tom Wells, Dist. Atty., Paris, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

McCORMICK, Presiding Judge.

A jury found appellant guilty of capital murder and answered the special issues under Article 37.071(b), V.A.C.C.P. affirmatively, whereupon the trial court assessed the mandatory penalty of death. Appellant raises eighteen points of error on direct appeal. We will reverse and remand.

Appellant contends in his first point of error the evidence is insufficient for any rational trier of fact to find beyond a reasonable doubt the murder was committed during the course of a robbery. V.T.C.A. Penal Code, Section 19.03(a)(1). The record reflects that Floyd Cummings, the victim, owned and operated a used car dealership in Paris. On June 19, 1985, Mr. Cummings' wife, Mildred Cummings, was in her husband's office on the used car lot. Mrs. Cummings remembered that some time during the day appellant stuck his head in the door and looked around the office. Appellant said nothing to her, and to her knowledge he said nothing to Mr. Cummings who was working just outside the office door. Mrs. Cummings was not personally acquainted with appellant, but knew his name. She had seen appellant on the car lot one other time. Later that evening, Mr. Cummings ¹ told his wife that his satchel, which contained the keys and titles to his cars that were for sale, was missing.

On the afternoon of June 19th, appellant's half-sister, Lois Melvin, with whom appellant lived, noticed a satchel hidden in the bushes near her apartment building. Melvin later discovered the satchel in her children's closet. Appellant shared a bedroom and closet with Melvin's two children. Melvin opened the satchel and found envelopes and other papers with Cummings' name on them. In addition, she found Cummings' checkbook and several sets of car keys. The next morning, June 20th, when Melvin confronted appellant about the satchel, appellant said he was holding its contents as collateral for a drug deal.

Before Cummings went to work on the morning of June 20th, he told his wife he had approximately $1,000 in his wallet. Cummings also was wearing his wedding ring and a Timex watch. That same morning another used car dealer, Hatcher, visited Cummings around 10:15 a.m. in order to deliver the title to a pickup Cummings had purchased a few days before. Hatcher saw a yellow Chevy Chevette on the lot, but a Mercury Cougar was gone. Around 11:15 a.m. Hatcher saw Cummings leave the lot in Cummings' Cadillac. That was the last time Hatcher saw Cummings. When Cummings failed to return home from work at his regular time, Mrs. Cummings became alarmed and drove to the lot. She noticed one of Cummings' cars, the Mercury Cougar, was missing from the lot. Mrs. Cummings never saw the victim again.

Also on the morning of June 20th, Melvin recalled that appellant left the apartment around 11:00 a.m. with the satchel and a knife, with the name "Old Hickory" stamped on its wooden handle, tucked in his boot. When Melvin asked appellant why he needed the knife, he responded it was necessary because "he might have trouble getting his money from a dude." Appellant returned to Melvin's apartment around 12:45 p.m. driving the Mercury Cougar that would turn up missing from Cummings' car lot. Appellant explained to Melvin that he was going to purchase the car. Appellant drove off and returned later that afternoon in the Cougar. He removed the title to the Cougar from the satchel and showed it to Melvin. Melvin also recalled seeing appellant wearing a grayish blue long sleeve shirt that had two spots of blood on its sleeve. When asked about the blood, appellant said it was his own from a scratch he had received earlier in the day. Appellant sold the Cougar on June 22nd.

On the evening of June 20th, Melvin and Janet Lester saw appellant in a local bar in Paris. Melvin verified appellant still was driving the Cougar. Appellant explained he bought the car with profits from a drug deal. Melvin remembered appellant had about $60 to $70 when he was in the bar, but Lester recalled he had a larger amount of money. Appellant also bragged to Lester that he placed a $100 bet on a game of pool. He also was buying drinks for all his friends.

On June 21st, Delbert Smith saw appellant at Lake Gibbons driving the Cougar. Sometime later that evening, appellant commented to Smith and others the "laws" wanted to talk with him. Smith reported the "laws" talked with him the day before about the disappearance of a man who owned a car lot. Appellant asked his friends, "if you killed a guy and they couldn't find the body, could they prove anything." He also commented to Smith and his friends that "if he had to hide a body he would do it around a lake" because "there is plenty of places to hide one, tie weights around the body and throw it in and they would never find it."

The next day, June 22nd, while still at the lake, appellant told Smith he was going to town to swap the Cougar for another car. Appellant returned to the lake later that evening driving a yellow Pontiac. Appellant told Smith he sold the Cougar. Appellant boasted to Smith that he also bought a yellow Chevy Chevette and showed Smith the car title. Smith noted appellant's name failed to appear on either side of the title.

On June 23rd, the police discovered a yellow Chevy Chevette missing from the victim's car lot. On June 24th, the police arrested appellant for the theft of the Chevette pursuant to an arrest warrant. When the police searched the immediate area where appellant was arrested, they also found the yellow Pontiac, a torn title to the Chevette and the victim's empty satchel.

On June 24th, Melvin gave police the blood-stained shirt that appellant wore on the day of the victim's disappearance. Blood tests taken of the stains removed from the shirt revealed human blood which matched the victim's blood type. Appellant's blood was determined to be of a different type than that found on the shirt.

On June 25th, appellant gave incriminating statements to the police that led to the discovery of the victim's wallet, which lay empty, except for a driver's license, on the side of the road. On July 4th, appellant gave other incriminating statements to the police that led to the discovery of Cummings' badly decomposed body. Appellant's version of the events in that statement included his admission that he was present when Cummings was murdered and robbed of his wallet.

However, appellant claimed his participation in the brutal killing was minimal. According to appellant's July 4th statement, a man named "Gator" offered to pay appellant $500 to do a "job." Appellant accepted the offer without knowing what the "job" entailed. According to appellant, "Gator" drove appellant in a red and white pickup truck to the country about four or five miles outside of downtown Paris. Near a bridge, "Gator" stopped the truck and appellant saw the victim tied to a tree. They got out of the truck and went over to the victim. At that point, "Gator" approached the victim with a long-bladed knife. The victim reportedly stated, "don't do this to me, please, don't do this to me." Appellant remembered that "Gator" stabbed the victim only twice in the upper abdomen. After the stabbing, both men moved the body from the tree, tied it, and then hid it beside the road in some weeds. "Gator" and appellant then returned to town. On the way, appellant noticed a brown leather wallet sitting on the dash of "Gator's" truck. "Gator" took the wallet from the dash and removed a Texas driver's license belonging to the victim. "Gator" inspected the license and placed it back in the wallet. As they were driving north on 6th Street, "Gator" threw the wallet out of the truck into the weeds along the road.

On July 5th, appellant directed police to the victim's body, abandoned in some weeds several miles from downtown Paris. The victim's trouser pockets were pulled inside out and a small amount of change was found scattered on the ground near the body. The victim's diamond wedding ring and Timex watch were missing.

An autopsy revealed the victim's hands had been bound with electrical cord. While restrained, the victim was stabbed twenty-four times in his chest, at least one of which caused death. The stab wounds were consistent with the dimensions of the knife bearing the name or logo "Old Hickory." The medical examiner estimated the body had been exposed to the elements approximately two weeks before it was recovered.

Appellant contends the evidence is insufficient to prove he murdered the victim while in the course of committing a robbery. V.T.C.A., Penal Code, Section 19.03(a)(2). When reviewing the sufficiency of the evidence to support a conviction, we view the evidence in the light most favorable to the jury's verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Duhamel v. State, 717 S.W.2d 80 (Tex.Cr.App.1986), cert. denied, 480 U.S. 926, 107 S.Ct. 1387, 94 L.Ed.2d 701 (1987).

Here, the State had to prove appellant intended to take the victim's property before, or as, he murdered the victim. See White v. State, 779 S.W.2d 809, 815 (Tex.Cr.App.1989) , cert. denied, 495 U.S. 962, 110 S.Ct. 2575, 109 L.Ed.2d 757 (1990); Ibanez v. State, 749 S.W.2d 804, 807 (Tex.Cr.App.1986). Here, the overwhelming weight of the evidence indicates appellant killed the victim for his money and other property. Given (1) appellant's statement to police that he was present when the victim was murdered, (2) the victim's wallet, $1,000, diamond wedding...