Walker v. State

• Decision Date: 13 May 1981
• Docket Number: No. 58687,No. 1,58687,1
• Citation: 615 S.W.2d 728
• Parties: William Ray WALKER, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 728

615 S.W.2d 728

William Ray WALKER, Appellant, v. The STATE of Texas, Appellee.

No. 58687.

Court of Criminal Appeals of Texas, Panel No. 1.

May 13, 1981.

Paul Banner and Cornel Walker, Greenville, for appellant.

Jerry Spencer Davis, Dist. Atty., Greenville, Robert Huttash, State's Atty., Austin, for the State.

Before ONION, P. J., and ODOM and W. C. DAVIS, JJ.

OPINION

ONION, Presiding Judge.

This appeal is from a conviction for capital murder, where the court assessed punishment at life imprisonment after the jury answered "no" to the second special issue at the penalty stage of the trial under Article 37.071, V.A.C.C.P. See particularly said Article 37.071(b)(2).

On appeal appellant challenges in two grounds of error that the evidence is insufficient to support the conviction because the same was based upon the uncorroborated testimony of an accomplice witness. See Article 38.14, V.A.C.C.P.

Omitting the formal parts, the indictment charged that the appellant on or about July 8, 1975 "did then and there intentionally and knowingly cause the death of an individual Thomas Ellis White, whose death was caused by a gun shot; and that the said Thomas Ellis White was a peace officer acting in the lawful discharge of an official duty; and that the said William Ray Walker then and there knew the said Thomas Ellis White, was a peace officer ...."

This is a voluminous record concerning the killing of T. E. White, a "nightwatchman" for Wolfe City, sometime between 3:00 and 3:30 a. m. on July 8, 1975. The cause of death was a bullet wound in the head. White's body was found in the front seat of his patrol vehicle parked in front of the Wolfe City National Bank. Much detailed evidence was offered as to those who had conversed with the deceased prior to death and those who viewed his body after his death, both in the patrol car and later. None of such evidence connected or tended to connect the appellant with the crime.

Alton Burns, 22 years old, the State's chief witness, was an accomplice witness as a matter of law as charged by the court in its jury instructions at the guilt stage of the trial. Burns had already entered a plea of guilty to the murder of White, and the punishment had been recommended at 17 years' imprisonment by the prosecution. A pre-sentence investigation had been requested. He stated he understood the court could assess punishment as high as life or 99 years' imprisonment. He acknowledged that he was also currently on probation for burglary out of Hopkins County, that he had been charged with a number of arson charges in Rockwall County, and earlier had been to "State Reform School." He admitted on direct and cross-examination to a number of encounters with law enforcement officers. Burns further admitted he had been released from the Terrell State Hospital after a 45 day commitment about five days before the killing of White.

Burns stated that on the night of July 7, 1975, the appellant Walker had come by his mother's house, and that he followed the appellant's car in a borrowed car into Wolfe City. Appellant parked his car at the intersection of Main and Preston Streets and got in Burns' car. They drove to Commerce and bought beer and drove around and then returned to Wolfe City where they watched television at the home of Burns' sister until she told them to leave. They then drove to a Mobil service station in Wolfe City and talked to some men there. This was about 12:30 a. m. or 1:00 a. m. on July 8, 1975. One of them, Jim Dawson, rode around with them for awhile and then they took him home.

About this time they decided to go looking for guns in pickup trucks to steal as they had done the week before in several surrounding towns. They drove to Celeste and didn't see any pickups, but on the way out of town they spotted a parked pickup truck. Burns related the appellant went to the pickup and returned to his car with a .22 caliber rifle, some .22 caliber shells and some eight track tapes. They started back to Wolfe City and stopped along the way to relieve themselves. They had been drinking beer most of the night. While they were on the roadside, the appellant used the .22 caliber rifle to shoot out a street light. Burns revealed that as appellant Walker was getting back into the car he stated he could shoot "T. E." from about half that distance with "no sweat." Burns knew he had reference to T. E. White, the night watchman in Wolfe City. As they drove towards Wolfe City, Burns recalled they made "plans and whatever." He drove Walker to his car. Burns then proceeded to his mother's house, went to his room as if he was going to bed, and then slipped out the back door. He drove to the house where Walker lived with his mother. They then drove to a spot near the Baptist Church where Walker got out of the car with the rifle. Burns drove through the town and stopped and talked with the deceased, T. E. White, whose car was parked in front of the bank. After five minutes, Burns drove on to his brother's house and got two beers. He drove back down Main Street and saw White lying down in his car with his leg sticking out of his car. He denied he heard a shot or saw the offense committed. Burns drove to an area near the Baptist Church, and the appellant came out from between some trees with a .22 caliber rifle and a pistol. Appellant told Burns, "Well, I did it," and said he was going to keep "T. E.'s pistol." Burns told him they had to get rid of the rifle. They drove to City Lake and Burns threw the rifle into the lake. He drove Walker near his home and Walker walked from there. Burns was arrested on July 11, 1975. That day he led Texas Ranger Lloyd Johnson to the Wolfe City Lake where two .22 caliber rifles were recovered, one being the rifle taken in the burglary of a vehicle near Celeste. Burns related his story to the authorities and the appellant was arrested.

Jimmy Don Mulkey testified he lived at Cockrell and the Farm to Market Road to Wolfe City near Celeste. He testified that he was on vacation in July, 1975 from a Sunday to a Wednesday, and when he returned home on July 9, 1975, he noticed his pickup truck door was ajar. He found his Remington single shot .22 caliber rifle, model 510, missing, as well as some .22 caliber shells. He reported the theft on July 9, 1975. A fingerprint was lifted from one of the truck windows. It was shown to be that of the appellant.

Mulkey was shown State's Exhibit No. 8, one of the rifles recovered from the lake, and identified it as his, although he stated he had no marks on it and noted that it was slightly changed in appearance.

William Ginn, a chemist and firearms examiner at the Garland Department of Public Safety laboratory, testified the bullet fragments taken from the victim's body were consistent with a .22 caliber round. He stated he had test-fired the Mulkey weapon, and although the identifying marks on the fragments of the death bullet and the test bullets appeared similar, there was an insufficient correlation to enable him to say that the Mulkey weapon had fired the fatal bullet. On cross-examination he agreed that any of eight possible models of a .22 caliber rifle could have fired the fatal bullet. There was evidence that over 558,000 rifles of the same model as the Mulkey weapon had been manufactured. No evidence was adduced as to the quantity of manufacture of the other seven .22 caliber rifle models.

Claude Stephens, a fingerprint expert with the Department of Public Safety, testified a print lifted from Mulkey's vehicle was the same as known prints of the appellant. The other prints lifted from the pickup truck were not those of the appellant. He related, depending upon the oil in a person's skin, a fingerprint on glass, and under ideal conditions could be liftable for about two weeks.

The defense offered testimony that he was home by 2:20 a. m. on July 8, 1975, and did not leave thereafter. ¹

Article 38.14, V.A.C.C.P., provides:

"A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense." (Emphasis supplied.)

The language of this statute has remained the same since the first Texas Code of Criminal Procedure.

An accomplice witness is a discredited witness (Cast v. State, 164 Tex.Cr.R. 3, 296 S.W.2d 269 (1956)) because her or his testimony alone cannot furnish the basis for the conviction. O'Neal v. State, 421 S.W.2d 391 (Tex.Cr.App.1967); Boone v. State, 96 Tex.Cr.R. 644, 259 S.W. 581 (1924). No matter how complete a case may be made out by an accomplice witness or witnesses, a conviction is not permitted unless he or they are corroborated. Meyer v. State, 104 Tex.Cr.R. 6, 282 S.W. 233 (1926).

It has frequently been said that the testimony of an accomplice witness is untrustworthy and that it should be received and viewed and acted on with caution. 23 C.J.S., Crim.Law, § 808, p. 72. And in Commonwealth v. Turner, 367 Pa. 403, 80 A.2d 708, it was stated the testimony of an accomplice witness is to be carefully scrutinized not only because of any interest he or she might have but because his testimony is evidence from a corrupt source.

In Edwards v. State, 427 S.W.2d 629 (Tex.Cr.App.1968), this court wrote:

"The test as to the sufficiency of the corroboration is to eliminate from consideration the evidence of the accomplice witness and then to examine the evidence of other witnesses with the view to ascertain if there be inculpatory evidence, that is evidence of incriminating character which tends to connect the defendant with the commission of the offense. If there is such evidence, the corroboration is sufficient; otherwise it is not. Dalrymple v. State, Tex.Cr.App., 366 S.W.2d 576; Bradford v. State, 170 Tex.Cr.R. 530, 342 S.W.2d 319." (Emphasis supplied.) See also Cherb v. State, 472 S.W.2d 273 (Tex.Cr.App.1971); ...