Wilder v. State

• Decision Date: 31 January 1979
• Docket Number: No. 57848,57848
• Citation: 583 S.W.2d 349
• Parties: John Lewis WILDER and Artie Armour, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 349

583 S.W.2d 349

John Lewis WILDER and Artie Armour, Appellant, v. The STATE of Texas, Appellee.

No. 57848.

Court of Criminal Appeals of Texas, En Banc.

Jan. 31, 1979.

Rehearing En Banc Denied April 4, 1979.

Jerry L. Davis, New Boston, on appeal only, for Wilder.

James E. Davis, Texarkana, for Armour.

Lynn Cooksey, Dist. Atty. and Donald W. Dowd, Asst. Dist. Atty., Texarkana, for the State.

Before the court en banc.

OPINION

DOUGLAS, Judge.

Appellants Armour and Wilder were convicted in a joint trial for the offense of capital murder. Each appellant's punishment was assessed by the jury at death.

The State alleged and proved that Wilder robbed and shot the deceased, Duane Jaixen, a 19-year-old night attendant at an Exxon Station in Hooks at about midnight on December 23, 1975. Armour was found to be a party to the offense. See V.T.C.A., Penal Code, Section 7.01.

Pat Grady testified that at about one o'clock a. m. on December 23 he and his brother-in-law, Dwight Carr, stopped at the Exxon Station in Hooks for gasoline. As Carr was pumping gasoline Grady looked inside and saw this boy in a slumped position beside a Christmas tree. Carr came inside and the two saw that the boy was vomiting a little. Carr tried giving mouth to mouth resuscitation.

Dwight Carr testified that, when they arrived at the Exxon Service Station in Hooks, he saw that the young man had been shot and was sitting on the floor in a slumped position. Carr laid him back on the floor and determined that he had a pulse. After trying to seek aid on his C.B. radio, he called the operator for assistance. He then attempted mouth to mouth resuscitation but the young man kept vomiting.

Jake Jaixen testified that he resided in Hooks and that his son, 19-year-old Duane Jaixen (the deceased), worked at the Exxon Station in Hooks as a night attendant and was so employed on the night of the murder.

Terry Watlington, Chief Deputy Sheriff of Bowie County, testified that he went to the Exxon Service Station in Hooks at approximately 1:00 a. m. on the night in question and saw Duane Jaixen lying on the floor of the station with two bullet wounds one in his chest area and one in the stomach area.

Dr. Robert Hart Chappell, whose qualifications as a pathologist were admitted, testified that he performed an autopsy on the body of Duane Jaixen. He found a bullet wound in the chest and another bullet wound in the stomach and that the bullet in the chest area exited the body. The other bullet that entered the stomach region did not exit the body but was found lodged against the backbone.

R. M. Arnold, a Texas Ranger, testified that he investigated the homicide and determined that the bullet was fired from a .38 caliber pistol.

B. C. Sustaire, Chief of Police of Mount Pleasant, testified he, Officer Johnny Thomas and Wilder went to Artie Armour's house and that Wilder got the .38 caliber pistol from Armour, unloaded it and handed it to him (Sustaire). It was later shown that the bullets found in and near the body of Duane Jaixen were fired from this gun. After it was determined that the fatal shot was fired from this gun, a warrant was issued for the arrest of Wilder and Armour. When Armour was arrested, a television set taken during the robbery and homicide was found at Armour's home.

The confession of Armour was introduced. There was no issue made as to its voluntariness before the jury. The court had sufficient evidence to conclude that it was admissible. It reads (omitting the formal parts) as follows:

" 'I understand what Judge Ben Grigson has told me. I understand the warning and I still want to talk to you and tell you the truth. I don't really remember the date we came up here, December 22nd or 23rd. By we, I mean John Wilder, Robert Lovelace and myself. . . .'

" * * *

" '. . . We were on our way back home to Mt. Pleasant. We had come from Mt. Pleasant to Texarkana. John rode by his girlfriend's house.'

" * * *

" 'I don't know her name, I think it is Harris or something. She is kind of skinny. We stayed over at her house for a little while and then rode around. We were in John's mother's car, a black Torino, Ford. '68 or '69, I think was the year. We rode around and went back home. We went back to Mt. Pleasant on Interstate 30. John pulled over to the service station, he was driving. John said he was going to get gas. We drove past the station that had diesel trucks parked in it, we turned around in the truck stop parking lot then we drove over to the next service station right across the street. I don't know what kind of service station. We drove across the street from the truck stop. I don't remember what the name of the truck stop was. We stayed in the street, not the service station lot. We didn't stop at the first service station. John drove on past the second service station. I don't know exactly how many yards. You could see the service station from there. He drove past the station and stopped. John told me to get behind the wheel and he got out of the car walked into the station because it was on up a little bit further. He said he was going to hit it . . that meant to me that he was going to rob it. After John got out I moved the car farther from the station. John stayed a minute maybe two minutes. He came back out with a TV in his hand and money in his pocket. He took the money out of his pocket and showed it to me. He didn't let Robert see it, though. He had his gun inside his coat. He held the gun up against my nose and told me to smell it and I did and it smelled like it had been fired, the gun barrel had been fired. We were talking real low and John said he had to shoot him. He said he was acting allright at first but he was going to try to run and John said he had to shoot him. He said he had to shoot him two times. He threw the hulls out the window on Interstate. A pretty good piece up the road. He threw the hulls out of his gun through the passenger side of the car. When John got in with the TV he told Robert he had got him a TV and Robert asked him if he ripped the man off and John said no he had bought it from him for $.45 and Robert said that he thought that he had ripped the man off. We kept on going home and I started thinking about it and kind of figured he was lying about shooting him. We got off the Interstate on a Farm to Market Road to Naples and came on home. All 3 of us went to my house. We got out and went inside and drank some beer. John got up and went out to the car and got the TV and gave it to me and told me "Here, Merle, he calls me Merle, you can have the TV you have been needing one." We split up the money 70 something dollars. I was supposed to get half of the money. Robert didn't get nothing. I think Robert suspected something because he asked me if John stole that TV and I said probably knowing him. That was the same TV that they found at my house, the same one that John got at the service station and the same TV that the officers took from my house on February 19, 1976. John had a .38 pistol. I didn't have the other pistol with me, it was at my house. We parked on the street by the service station already going up to the Interstate. I forgot what time of night it was. We had gone riding around in Texarkana on Lake Drive we went by Brenda's house, a (Used to be) girlfriend of mine, and her mother said she was asleep. Me, John and Robert went there and then we went riding around in Arkansas. No cops stopped us that night. I know kind of where John's girlfriend lives where we were earlier. Same area as my uncle lives. I think I could take the officers there. I don't remember the time of night we was at the service station. We hadn't talked about doing it before we got to Hooks. We knew we was going to divide the money in half. Before John went in the service station he just said he was going to pull in and get some gas. We turned around then we saw that the boy was in the station by himself. The boy was white and kind of chubby looking to me. We didn't pull through the service station parking lot. We stayed on the street. There were no other cars at the station. I didn't hear any shots. We didn't meet an ambulance coming back on Interstate. I went to High School, 11 1/2 years. I can read and write. The Social Security Card I have is No. 464 17 0292. I am 21 years of age and my date of birth is October 10, 1954. I never got out of the car at the service station. All I did was drive. I never saw John pull his gun. I never saw him take it out. He was carrying his gun inside his pants kind of in front and had his coat around it, with the barrel down in his pants. John told me he had to shoot him twice, once in the chest and once in the stomach. I couldn't see from where we were parked inside the service station. John said he had to shoot him twice because he was trying to run, he said he acted allright at first but then he tried to run away, tried to get out and John had to shoot him. John told me "I had to kill him because he was trying to run from me." I got 70 something dollars and when John got in the car he told me that he robbed that service station and had this TV in his hand. When he got in the car he acted normal, cool. We had been drinking. We bought the stuff to drink in Monticello. John shot him after he got the money. I don't know whey (sic) he had to shoot him in the chest and the stomach because he was trying to run. That is what John said. I had never seen this man in the service station before. John said that he didn't know him one day when we was sitting at the house and I said I was sort of worried about it and John said that "it didn't bother him much, because that guy in Texarkana I didn't know him." I have never pulled a job in Texarkana. John never has pulled a job in Texarkana, not with me anyway. He took the shells out of his gun it holds six.' "

The confession of Wilder (omitting the formal parts) reads as follows " 'We, Robert Lovelace, Artie Burl Armour and myself we...