Vaughn v. State, 58432

• Decision Date: 30 January 1980
• Docket Number: No. 58432,No. 2,58432,2
• Parties: Donald VAUGHN, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 914

607 S.W.2d 914

Donald VAUGHN, Appellant, v. The STATE of Texas, Appellee.

No. 58432.

Court of Criminal Appeals of Texas, Panel No. 2.

Jan. 30, 1980.

Belvin R. Harris, Gainesville, Minter & Ables, Madill, Okl., for appellant.

Jerry W. Woodlock, Dist. Atty., Gainesville, Robert Huttash, State's Atty., Austin, for the State.

Before ODOM, TOM G. DAVIS and CLINTON, JJ.

OPINION

CLINTON, Judge.

Buster Northern was made infamous and judges became timorous ¹ some thirty years ago by the backlash of Northern v. State, 150 Tex.Cr.R. 511, 203 S.W.2d 206 (1947). ² Now, appealing from a conviction for the offense of murder and a life sentence, in what is surely the most audacious bit of advocacy in recent times, appellant cites and would have us follow Northern. We decline the invitation and today mark the previously unheralded demise of Northern.

This is an appeal from a conviction for the offense of murder wherein the jury assessed appellant's punishment at confinement in the Texas Department of Corrections for life.

Appellant actually presents seven grounds of error for our consideration: that the trial court erred in failing to grant his motion to quash the indictment; that the State failed to present sufficient evidence tending to prove that the State of Texas had jurisdiction over the instant offense; that there was insufficient evidence tending to show that appellant "stomped and kicked" the deceased to death as alleged in the indictment; that the testimony relating to a divorce petition and temporary restraining order between the deceased and appellant was admitted into evidence over his timely objection; that the charge of the court was at a variance with allegations contained in the indictment; that the prosecutor engaged in manifestly improper argument; and that the quantum of evidence adduced below was insufficient to support the jury verdict. For reasons more fully developed below, we overrule these contentions and affirm the judgment of conviction.

Teresa Vaughn, wife of appellant, punched the time clock to leave the Hilltop Cafe where she worked as a waitress at 11:09 p. m. on the evening of August 9, 1976. While she was working, however, one Marilyn Sollers testified that she and appellant parked across IH-35 from the cafe at approximately 10:30 p. m., ostensibly to watch appellant's wife. ³ Appellant and Sollers were, at that time, driving a maroon Ford with a black vinyl top. The situs of these and immediately subsequent events is Cooke County.

When his wife exited from the cafe at or about 11:00 p. m., appellant told Sollers that he wanted to hurry back to Sollers' house, pick up his children and attempt to beat his wife home so that the latter would not know that she had been spied on.

Michael Jay Nail, nine year old son of appellant's wife, recounted that he remembered the night his mother was hurt in the dining room of the family home in Gainesville. He at first testified that he had been in the dining room when his mother was hurt but quickly corrected himself and noted that he had been in bed at that time. The child testified that he, his mother, his two sisters and appellant headed to the hospital at the behest of appellant but that they never made it as the police stopped them in Ardmore, Oklahoma.

The mother of appellant's wife testified that prior to their separation, her daughter and appellant were living together in Gainesville, Cooke County, but that they had in fact been living apart for some time.

State's witness James Mayes testified that he left for work from his home 51/2 miles south of nearby Marietta, Oklahoma, some five or ten minutes after midnight in the early morning hours of August 10, or approximately one hour after Teresa Vaughn punched out of work. Mayes drove north en route to Marietta where he recalled seeing an automobile parked partially on the highway. He proceeded on to Marietta where he hailed Officer Jack Caldwell and informed the latter of what he had seen. The two men observed the vehicle pass by them as they were talking and subsequently followed and eventually detained the vehicle. Mayes noted that after the vehicle slowed to a halt, appellant got out and Caldwell then motioned him to wait between the two vehicles.

Mayes and Caldwell approached appellant's vehicle, an Oldsmobile, and observed the body of Teresa Vaughn slumped over in the right floorboard of the vehicle. Upon seeing the two men observe the body of his wife, appellant fled the scene but not before he told Caldwell that "his wife was in the front seat passed out, that she had-got drunk and fell and hit a chair and hurt herself," and that appellant "was taking her home to put her to bed." Appellant also told Caldwell, in response to the latter's suggestion, that the woman obviously needed medical attention (both Caldwell and Mayes remembered seeing blood on the seat), "that she woke up back down the road, she was okay, and she woke up down the road and talked to him (appellant)."

After appellant disappeared from the scene, Caldwell examined appellant's wife and could not feel any pulse. He then radioed the Ardmore Police Department to request an ambulance and the County Coroner, Dr. O'Conner. The children in the vehicle were taken to a childrens shelter in Ardmore by a park ranger.

Dr. O'Conner testified that he performed an autopsy on Teresa Vaughn and was of the opinion that the cause of her death was "hemorrhage secondary to ruptured organs due to being stomped and kicked." He reported that the victim's hair was bloody, that blood was running out of the left side of her mouth, that her jaw was broken, that one of her fingernails was torn off in what appeared to be a defensive wound, that she had severe bruises and marks about her face, jaw, and corners of her eye, and finally, that there appeared to be a round heel mark on her chest.

Chief Medical Examiner of the State of Oklahoma, Dr. A. Jay Chapman, corroborated Dr. O'Conner's testimony, noting that the injuries he found during the autopsy were consistent with the victim having been stomped and kicked and that a crescentic mark on the skin overlaying the spleen was consistent with a heel mark.

Investigator Wayne Warthen from the District Attorney's Office of the 20th Judicial District of the State of Oklahoma, along with other officers, returned to the victim's house in Gainesville and found a maroon Ford with a black vinyl top parked in front of the residence. Upon entering the house, they discovered the air conditioner running, two overturned chairs in the dining room and what appeared to be, and was later proven to be, spots of human blood on the linoleum in that same area.

Don King, one of the officers who had accompanied Warthen, recounted that the door to the victim's residence was ajar, a noisy air conditioner was running and a large black cat was crouched in the dining area licking what he thought was blood. He noted the presence of scuff marks on the linoleum floor in the dining room area which appeared to be the work of a rubber heel from a shoe or boot and which were adjacent to the overturned dining room chair.

Marylu Sampson, a neighbor of appellant's brother, testified that two days before Teresa Vaughn's death, she overheard appellant tell his sister-in-law that "he was going to kill Teresa when I found her and they laughed at me but I will show them I will kill the bitch when I find her." She further recounted that she had overheard appellant tell his sister-in-law that she might have to raise his baby. The State then rested its case-in-chief.

Appellant called several witnesses who testified generally that the deceased had been unfaithful to appellant and that the drive from Marilyn Sollers' residence to the victim's residence would have taken at least ten minutes.

In rebuttal, the State called attorney Harold Freeman who testified that the deceased had retained him so that she could file for divorce and that he had in fact filed such a petition as well as a temporary restraining order. Finally, the State presented evidence that the route from the Sollers' residence to the victim's residence could be traversed in lunch hour traffic in two and a half minutes and that the route from the cafe where the deceased worked to her house could be traveled in either seven and a half minutes or slightly over eight minutes depending on the route one took during lunch hour traffic.

In ground of error number one, appellant contends that the trial court erred in failing to grant his timely motion to quash the instant indictment in that it fails adequately to allege the manner and means by which the offense was committed. Omitting the formal parts, the indictment alleged that appellant:

"... (d)id then and there intentionally and knowingly cause the death of ... Teresa Vaughn, by kicking the said Teresa Vaughn with his feet and by stomping the said Teresa Vaughn with his feet..."

The thrust of appellant's contention is that this indictment must fall inasmuch as it fails to allege that appellant effected the kicking and stomping with shoes on his feet and that the lack of such an averment somehow prejudiced him, given the fact that there was evidence of such footwear in the record. In support of this contention, appellant relies upon Northern v. State, supra. Northern was tried on an indictment similar to the one at bar in it alleged that the accused killed the deceased by "kicking and stomping" her. In finding that the indictment was fatally defective, a majority of the Court, over the vigorous dissent of the minority, held that the indictment failed to charge the means employed in the commission of the crime. Id. 203 S.W.2d at 207. The Court pointed out in passing and it appears as a matter of dicta, that:

"It would have been an easy matter to have alleged in the indictment that the accused stomped the deceased to death with his feet with shoes on since the grand jury had that information when the indictment...