Westley v. State

• Decision Date: 15 June 1988
• Docket Number: No. 69497,69497
• Citation: 754 S.W.2d 224
• Parties: Anthony Ray WESTLEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 224

754 S.W.2d 224

Anthony Ray WESTLEY, Appellant, v. The STATE of Texas, Appellee.

No. 69497.

Court of Criminal Appeals of Texas,

En Banc.

June 15, 1988.

Floyd W. Freed, III, on appeal only, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., and Linda A. West, John Kyles and George Lambright, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.

OPINION

WHITE, Judge.

Appellant was convicted of capital murder in Harris County. See V.T.C.A., Penal Code Sec. 19.02(a)(2). After the jury made affirmative findings on the three special issues set out in Art. 37.071(b), V.A.C.C.P., the trial court imposed the penalty of death. This case is before us on direct appeal.

The appellant presents us with four points of error, none of which involve alleged error during voir dire. A review of the facts is necessary.

On Friday, April 13, 1984, Debra Young was working at Eileen's Bait and Tackle on C.E. King Boulevard in northeast Houston. The store was owned and managed by Eileen Hall and her husband, Chester Frank Hall, the deceased. Mrs. Hall had opened the store at 5:30 a.m., but left when her employee, Ms. Young, arrived. Mrs. Hall met her husband for lunch, and then returned home. Mr. Hall was going to drop in at the store after lunch. Early in the afternoon, Mrs. Hall received a frantic call from Ms. Young. Ms. Young was screaming over the line. It was difficult for Mrs. Hall to understand her. Mrs. Hall immediately called "911", and then went to the store.

Ms. Young described at trial what happened in Eileen's Bait and Tackle in the early afternoon of April 13th. Both Young and the deceased were in the store after lunch. The deceased left the store between 1:30 and 2:00 p.m. Three men then entered the store. One of the men walked up to the counter and requested some bait. At trial, Young identified the appellant as this man. She recognized one of the other two as a regular customer of the bait and tackle store. After Young prepared the bait which appellant requested, the appellant grabbed her and produced a gun. Young stated that appellant stuck the gun "in my nose ... I started screaming. He said, 'Shut up, or I will kill you'." The appellant demanded money, and then struck Young in the chest, knocking her back against the wall. He forced Young to open the cash register and ordered her to lay down behind the counter. Appellant grabbed money from the cash register. He then found a pistol case and a money bag behind the counter. Both were empty. He asked Young for the rest of the money. She told the appellant that her boss had taken it with him. The appellant then told Young to turn her face to the wall and he then put his gun to her back. The next sound Young heard was the ringing of a bell on the front door as someone entered.

The appellant rose, turned and shot towards the door. The appellant then ran out from behind the counter. On cross-examination, Young said she heard the appellant fire the first shot. She then heard a rapid succession of gunshots, from both large and small calibre pistols. Young asserted that she had a good familiarity with the use of handguns, and the different sounds of gunfire. She also claimed to be very familiar with the deceased's handgun (she referred to it as a "sugar papa"), and the sound it made when fired. When the exchange of gunfire began, she got up to a crouching position so that she could see over the counter.

When she got up, she saw the deceased running towards the store's office with the appellant close behind him. Though the deceased still carried his handgun, Young did not see him point it again or shoot it at anyone. The appellant caught up to the deceased before he could reach the office, and the two men began to struggle.

Young watched the appellant repeatedly hit the head of the deceased into a concrete fish tank. At about that time, Young testified, she heard four or five more gunshots, none of which sounded like the deceased's handgun. She saw both men jerk. Then the appellant ran out of the store followed by one of his accomplices, who appeared to be wounded. When they were gone, the deceased rose to his feet, took a few steps toward Ms. Young and stopped. Blood began to flow from his mouth and he collapsed. After coming out from behind the counter, she saw where the third robber lay, dying on the floor of the bait and tackle shop. On the next day, April 14, Ms. Young positively identified the appellant at a line-up.

Gordon Adams operated a business next door to the bait and tackle shop. He testified that on April 13, he was working in his shop when several loud noises got his attention. He watched two men run out of the bait store. The man who got in the passenger side was doubled over, and the driver took off before the passenger had gotten his door closed. Though Adams could not identify either man at trial, he was able to positively identify two photographs, State's Exhibits 18 and 19, of the getaway car.

Kenneth May was driving by the store at the time of the shooting. He saw two men run from the bait shop, get into a blue Buick and speed out of the parking lot, nearly colliding with his own car. May pursued the Buick for five or six miles at high rates of speed. He gave up his pursuit when the Buick ran a red light. May could not identify either of the occupants of the car. However, he did identify State's Exhibits 18 and 19 as being photographs of the Buick which he pursued on April 13th.

Ricky Foreman was employed as a security guard at Northeast Memorial Hospital. Foreman testified that the appellant brought a friend into the emergency room at approximately 2:00 p.m. on April 13th. The friend was suffering from a gunshot wound. Foreman positively identified State's Exhibits 18 and 19 as photos of the automobile driven by appellant. Foreman also positively identified appellant as the driver.

Thelma White was employed as a registered nurse and as the director of the emergency room at Northeast. She stated that at approximately 2:00 p.m. a large man carried in a gunshot victim. She paid little attention to the large man in order to care for the gunshot victim. She identified the gunshot victim at trial as John Dale Henry. She could not identify appellant at trial, but did recall that the large man was very abusive.

Officers from the Harris County Sheriff's Office arrived at the bait store shortly after the shooting occurred. Detective Earl Bockel supervised the crime scene investigation, interviewed the available witnesses, and participated in the interrogation of the appellant. There were no latent fingerprints recovered at the bait and tackle store. Debra Young found some lead fragments at the scene, which appeared to be bullet fragments. Two guns were found at the scene. Bockel stated that the guns used by appellant and John Dale Henry were not found. A .25 calibre automatic was found beside the corpse of the third robber, Walter Dunbar. A five shot derringer (the "sugar papa") was found near the victim. A firearms examiner for the Houston Police Department, C.F. Anderson, testified that the bullet recovered from the body of the deceased could not be traced to either Dunbar's automatic or the deceased's derringer.

Lieutenant Joe Seckler was given the job of locating the car which was seen by the witnesses. He found it a few miles from the residence of Walter Dunbar. Detective Watson R. Davis processed the vehicle. Detective Davis found two rolls of pennies, State's Exhibits 21 and 21-A, beneath the armrest of the front seat. After securing the vehicle, Davis turned it over to Deputy Sherri Grounds. Grounds photographed the vehicle and searched for fingerprints. She explained that none of the latent prints could be matched up with the appellant. She identified State's Exhibits 18 and 19 as photographs which she took of the vehicle found by Seckler.

Dr. Vladimar Parungao, the Assistant Medical Examiner of Harris County, performed the autopsy of the deceased, and recovered bullets from the body. Parungao was able to determine that death resulted from one of the gunshot wounds. He described the entrance wound of the fatal shot as being surrounded by soot and powder stippling about 1/4 inch in diameter. In the opinion of Parungao, the tip of the murder weapon had to be within six inches of the deceased's body when the fatal shot was fired. Parungao also described the path of this bullet through the deceased. It entered the victim's back six inches to the left of the midline and sixteen inches from the top of the head. Its' path ran from back to front, to the right and downward.

Firearm's Examiner C.F. Anderson also testified at trial. He could not trace the bullets recovered from the body of the deceased to either of the handguns found at the scene. However, he did identify State's Exhibit No. 17 as a photograph of a long barrel Ruger .22 calibre. Anderson stated that gun could fire both .22 calibre long rifle bullets and .22 calibre shorts. Anderson identified the fatal bullet recovered by Parungao as a .22 calibre long rifle bullet. When Debra Young was testifying, she identified State's Exhibit 17 and described it as follows, "It appeared to be the gun that Westley used on me."

The State admitted more testimony to support its allegation that appellant carried the murder weapon and shot the deceased. Bertha Cousan and Crischilla Cousan lived in the residence where the appellant and his accomplices planned the robbery of the bait and tackle store. Bertha Cousan testified that on April 13, 1984, she overheard the appellant, John Dale Henry, and Walter Dunbar discussing a robbery. Bertha saw the appellant go to his room and come out with a dark, long-barreled pistol, which he stuck down his pants. Bertha testified this pistol looked like the one portrayed in State's Exhibit 17. Bertha also testified that when the appellant returned to the residence, "He said that he had...