Webb v. State

• Court: Texas Court of Criminal Appeals
• Writing for the Court: CLINTON; TEAGUE; MILLER
• Citation: Webb v. State, 760 S.W.2d 263 (Tex. Crim. App. 1988)
• Decision Date: 09 November 1988
• Docket Number: No. 69730,69730
• Parties: Freddie Lee WEBB, Appellant, v. The STATE of Texas, Appellee.

Page 263

760 S.W.2d 263

Freddie Lee WEBB, Appellant, v. The STATE of Texas, Appellee.

No. 69730.

Court of Criminal Appeals of Texas En Banc.

Nov. 9, 1988.

Patrick J. McGuire, Corpus Christi, for appellant.

Grant Jones, Dist. Atty. and Deanie King, Asst. Dist. Atty., Corpus Christi, Robert Huttash, State's Atty., Austin, for the State.

OPINION

CLINTON, Judge.

Appellant was convicted of the offense of capital murder and, in accordance with affirmative answers by the jury to special issues prescribed by Article 37.071(b)(1) and (2), V.A.C.C.P., his sentence was assessed at death. Appeal to this Court is automatic.

In related points of error appellant challenges sufficiency of the evidence to show he perpetrated the killing for which he was convicted. ¹ He contends that the circumstantial evidence does no more than to place him at the scene of the crime, without establishing either that he caused the death of the deceased, or that he in any manner solicited, encouraged, directed, aided or attempted to aid anyone in the killing. Hence, he maintains, the evidence fails to support both the jury's verdict that he intentionally killed the deceased in the course of a kidnapping, and its affirmative answer to special issue one, that he "acted deliberately" to cause the death of the deceased. We reject both contentions.

On the night of Sunday, December 8, 1985, Elizabeth Cantu [hereinafter, "Cantu"], was working her first shift as night supervisor of the Ship Ahoy Restaurant in Corpus Christi. At precisely 10:00 p.m., Cantu locked the door to the restaurant and joined her husband, Leopoldo Cantu [hereinafter, "the deceased"], who was waiting for her in the couple's black 1978 Blazer. From there they proceeded to a gas station, and then to a car wash. Here they were accosted by appellant and another black male, and forced at gunpoint into the back seat of their truck. As he drove the Blazer away from the car wash, appellant informed the couple they were "going to go for a ride, get some money and that [Cantu] was going to give it to him, that [they] were going to go back to the Ship Ahoy and [Cantu] was going to open the safe and give him all the money." He made it clear "they wouldn't hesitate" to use their pistols "if they had to[.]" The deceased told appellant, "You can have whatever you want. It doesn't mean anything to us."

Once at the restaurant appellant instructed his accomplice to remain with the deceased in the Blazer with the doors locked while he accompanied Cantu inside. Appellant escorted Cantu at gunpoint into the restaurant office and forced her to open the safe. ² He then made her lie down behind the desk and, with the cord of an adding machine, proceeded to tie her up. ³ When appellant departed, Cantu managed to free herself and immediately called the police.

Viewed in the light most favorable to the verdict, the evidence shows appellant and his accomplice, still holding the deceased, returned in the Blazer to the car wash to retrieve their own car, and from there proceeded in both vehicles to a location near the intersection of Greenwood and Saratoga, close to the city dump. ⁴ There Sergeant Lozano would soon find the body of the deceased, in a pool of blood on the side of the road, sans vital signs, only two or three feet removed from the still-idling Blazer.

Police recovered six .45 caliber casings in various locations around the scene of the killing. Three .45 caliber slugs were recovered at the scene as well. The deceased sustained five gunshot wounds; only one of these wounds, however, was identified as fatal. ⁵ Examination of the clothes of the deceased revealed at least five and as many as seven other shots penetrated his jacket and shirt without actually striking the body. During the autopsy an additional .45 caliber slug fell out of the shirt of the deceased. This last slug, however, was not associated with the fatal wound. A second slug, either a .357 or a .38 caliber, also identified with one of the nonfatal wounds, was found embedded under the skin of the deceased's back. One of the State's forensic experts, Max Courtney, testified that judging from the lead residue associated with the entry hole of the wound that did prove fatal, the size of that hole, and its similarity to the wound sustained by the slug shown to have been .357 or .38 caliber, he believed the fatal wound had also been caused by a .357 or .38 caliber, rather than a .45 caliber projectile. Courtney indicated some of the deceased's wounds, as well as perforations in the clothing of the deceased associated with nonwounding projectiles, were consistent with the theory that the killer was positioned "above the shoulder of the victim," and that he may have been "shooting down" on the deceased who was on hands and knees. Although he could not determine the order in which all of the wounds were sustained, Courtney did believe the fatal wound was "probably" inflicted last.

Several months after the instant offense was committed appellant was apprehended as he fled the scene of a robbery. During commission of the robbery appellant displayed a chrome plated .357 Magnum revolver which ballistics proved to be the same pistol that had wounded the deceased. ⁶

To show motive on the part of appellant for killing the deceased, particularly in view of the fact that Elizabeth Cantu was not also murdered, the State presented testimony from the former wife of the deceased, Olga Cantu. She testified that she knew appellant because they had gone to high school together. In 1976, while married to the deceased, she worked in a store called the Maverick Mart. The deceased worked next door in an auto parts store, and frequented his wife's workplace. At least "[s]everal times" appellant and the deceased were in the Maverick Mart at the same time, and at least on one occasion Olga called out to appellant, "Hey, Freddie," in her husband's presence. The inference sought by the State, one we believe the jury would have been justified in drawing, is that once the kidnapping and robbery of the Cantus got underway, appellant recognized the deceased, realized the deceased might be able to identify him later, and therefore began to plot his demise.

The jury charge authorized conviction of appellant either as a primary actor in or as a party to the capital murder. ⁷

We hold the evidence, viewed in the light most favorable to the verdict, was ample to support appellant's conviction either as a primary actor or as a party to the intentional killing of the deceased. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). That the killing occurred in the course of kidnapping cannot reasonably be disputed. Clearly it was either appellant or his accomplice that actually caused the death of the deceased; the evidence, though circumstantial, is susceptible to no other rational interpretation. Carlsen v. State, 654 S.W.2d 444 (Tex.Cr.App.1983). Elizabeth Cantu's testimony placed the likely murder weapon in appellant's hand shortly before the shooting. Appellant exhibited the same weapon in the commission of another offense not long after the murder. Moreover, the evidence provides a motive for appellant personally to take an interest in disposing of the deceased, and it tends to show that as between appellant and his accomplice, appellant was giving the orders. On these facts a reasonable jury could readily have found appellant guilty either of intentionally causing the death of the deceased himself, or of soliciting, directing, encouraging or aiding his accomplice to do so.

Furthermore, whether it found appellant guilty as a primary actor or as a party, the jury was justified in its verdict that appellant "acted deliberately." Assuming it found appellant actually caused the death of the deceased, we examine whether the jury could rationally find his state of mind when he effected that result amounted to a "conscious decision involving a thought process which embraces more than mere will to engage in the conduct." Nichols v. State, 754 S.W.2d 185, 201 (Tex.Cr.App.1988). From the forensic testimony the jury could reasonably have believed that, after both appellant and his accomplice inflicted a number of nonmortal wounds upon the person of the deceased in a virtual fusillade on the side of the road, appellant stood before his fallen victim and finished him off with the .357 Magnum. Such a scenario would support a finding appellant "acted deliberately" in that it reflects "a conscious decision--greater than mere will--to cause the death" of the deceased. Id.

Assuming, on the other hand, that the jury believed appellant acted as a party to the conduct of his accomplice, in assessing whether the evidence supports a finding he "acted deliberately," we look to appellant's own conduct by which he "solicited, encouraged, directed, aided or attempted to aid" perpetration of the intentional murder. Meanes v. State, 668 S.W.2d 366 (Tex.Cr.App.1983). ⁸ It would not have been irrational for the jury to believe appellant's accomplice fired the fatal shot in this case. In any event the evidence shows conclusively that two guns were involved, a .45 caliber automatic and the .357 Magnum revolver. The jury could well have believed appellant, using the .45 caliber, participated in the fusillade that brought the deceased down. Though it seems less plausible, the jury might also have believed the accomplice first incapacitated the deceased with the .45 caliber, then killed him with the .357 when the clip ran out in the .45. Even under this theory appellant had to supply his accomplice with the .357 revolver to complete the killing. Either scenario would support a jury finding that appellant's conduct, by which he solicited, encouraged, directed or aided the killing, was "committed deliberately and with the reasonable expectation that ... death ... would result."

We therefore reject appellant's points of error challenging sufficiency of the evidence....