Williams v. State

• Citation: 668 S.W.2d 692
• Decision Date: 22 June 1983
• Docket Number: No. 68971,68971
• Parties: Walter Key WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 692

668 S.W.2d 692

Walter Key WILLIAMS, Appellant, v. The STATE of Texas, Appellee.

No. 68971.

Court of Criminal Appeals of Texas,

En Banc.

June 22, 1983.

Rehearing Denied Sept. 14, 1983.

Allan R. Manka, San Antonio, for appellant.

Bill M. White, Dist. Atty. and Sam L. Ponder, Joseph W. Galenski & Alan E. Battaglia, Asst. Dist. Attys., San Antonio, Robert Huttash, State's Atty., and Alfred Walker, Asst. State's Atty., State's Atty., Austin, for the State.

Before the court en banc.

OPINION

CLINTON, Judge.

Appellant's conviction and sentence of death for capital murder are here subjected to automatic review. Article 37.071(f), V.A.C.C.P. The murder was committed in the course of robbery or attempted robbery. V.A.T.S. Penal Code, § 19.03(a)(2).

In the first ground of error appellant contends that the State failed to adduce sufficient evidence to warrant the jury's affirmative answer to the second punishment issue, posed by Article 37.071(b)(2), supra:

"... whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; ...."

Under Article 37.071(c), supra, before sentence of death may be imposed the State must prove beyond a reasonable doubt each punishment question submitted, including "future dangerousness," as the second special issue often is called. Evidence adduced at the guilt stage, including unadjudicated prior criminal conduct of the accused, may be considered by the jury at the punishment stage, and the circumstances of the offense itself, if severe enough, can sustain a "yes" answer. King v. State, 631 S.W.2d 486 (Tex.Cr.App.1982); Brooks v. State, 599 S.W.2d 312 (Tex.Cr.App.1979).

Appellant's two written statements to police, admitted into evidence, detail his participation in two robbery-murders within a few hours of each other on the night of February 9, 1981 in San Antonio. Driving his father's automobile, the nineteen year old appellant stopped at a local high school and picked up an acquaintance named Ted, whom he had known for two or three weeks. They went drinking beer and visiting friends. Ted and appellant both complained of being "broke," and Ted suggested they go to a convenience store. Appellant agreed. According to appellant, "Ted asked who was going to do it," and appellant gave Ted his parents' pistol and told him, "I wasn't going to kill nobody." While appellant acted as lookout, Ted shot the store attendant twice, reached through the window, and grabbed the money.

Ted and appellant split the proceeds, and appellant drove the getaway car, stopping at a dumpster so that Ted could dispose of checks and gasoline receipts from the store. They went to the home of one named Rick and tried unsuccessfully to wake him up. Appellant removed two shells (apparently the spent casings) from the pistol, threw one of them under Rick's bed, and placed the other on the window ledge behind the curtain. They left Rick's, bought some beer, visited a female friend, and went to appellant's house, where he lived with his parents. Appellant asked if he had received any telephone calls, paused to hide his share of the loot in his bedroom, and drove away with Ted.

The details of the second robbery-murder, for which the conviction and sentence in this case were obtained, are best told in appellant's own words:

"I told Ted that I used to work at a Circle K [convenience store] and then we drove to the Circle K where I used to work at....

We had my mother's gun with us which I had gotten earlier from the house and we had on top of the front seat between the two of us. ¹ When we got to the Circle K, we drove by and then we parked the car around the corner and then we walked to the Circle K.

I got my mother's gun, which is a .38 caliber or a .32 caliber pistol and I put it in my waistband of my trousers. After we got to the store, we went inside together and I went to the back of the store where the coolers are and I got a sandwich, soda water and then I went to where the chips are and got some potato chips.

I then went to the cashier's counter and put everything on top of the counter. Ted was standing on the other side of the counter opposite from where I was.

... I knew the guy that was working there because I met him when I had been working there and his first name was Danny. ² Ted had gotten some stuff also so when Danny turned to take care of Ted first, I pulled out my mother's gun and shot Danny one time. I hit him and he fell down.

Ted and I then walked behind the counter. I tried to open one of the cash registers and Ted was trying to get the other register open. I couldn't get the register open, so then I just ran outside and to the car.

Ted stayed inside the store after I left and I did not see what he did or get after I left. I got to the car, got inside and then I drove up to the store and yelled at Ted for us to go.

Ted wouldn't get out of the store, so I left him there. I then drove home and went to bed.

The reason I left Ted at the store because when I was yelling at him, a car drove by and I got scared, so I left. I did not get anything from the Circle K because I was scared after I shot Danny.

I had been asleep for about 30 to 40 minutes when the police came to my house...." ³

According to medical testimony, Danny, the victim in the second robbery-murder, died of a single gunshot wound to the back. The body also had abrasions about the face.

Appellant relies on similarities between this case and Roney v. State, 632 S.W.2d 598 (Tex.Cr.App.1982) in which the defendant had committed another robbery minutes before the primary robbery-murder, but had no prior convictions involving moral turpitude. This Court noted that the two offenses

"were essentially parts of a one-night crime spree. It does not show a repetition of criminal conduct so much as a single criminal purpose with successive targets." Id., at 603.

No record of prior convictions was introduced in the present case, and, as in Roney, neither was psychiatric or character evidence offered by the State or the accused. ⁴ Of course, psychiatric testimony is not essential to support an affirmative answer to the question of future dangerousness. Mitchell v. State, 650 S.W.2d 801 (Tex.Cr.App.1983).

In Roney no one was shot in the first robbery. However, in the present case appellant's statements show that he and Ted planned the death of both store attendants several hours, not minutes, apart. Although appellant declined to kill the first man himself, he gave the pistol to Ted for that purpose. After participating in that capital murder, appellant selected the second victim, a former coworker, a man he knew would recognize him. The jury was entitled to infer that when appellant drove to the second store he had every intention of killing the attendant in a "calculated and cold-blooded" manner, in order to make sure there were no witnesses. O'Bryan v. State, 591 S.W.2d 464, 480 (Tex.Cr.App.1979). In this case there was no "conflicting evidence about the shooting," such as the struggle for the weapon in Garcia v. State, 626 S.W.2d 46, 51 (Tex.Cr.App.1982), and no assertion by the accused that "I had to kill that son of a gun, 'cause he was going to kill me," as in Roney, supra, at 602.

Furthermore, the evidence permitted the inference that by leaving shells in Rick's room appellant planned to implicate him in the first robbery-murder. Appellant also showed lack of concern for others by using his parents' pistol and automobile in the commission of the offenses, and, at the first hint of trouble, by driving off and abandoning his cohort at the scene of the second murder.

Appellant did not act like the "agitated and somewhat distressed individual" in Roney, who at one point laughed about the offense but at other times "repeatedly claimed he 'had to' kill to defend himself and muttered to himself about the offense." Supra at 603. Appellant drove home and went to bed. Police found him asleep a short time later.

The jury was presented no evidence that appellant was under the influence or domination of any other person, or that he was under mental or emotional pressure which might be regarded as mitigating. The absence of such circumstances is probative evidence of future dangerousness. Russell v. State, 598 S.W.2d 238 (Tex.Cr.App.1980). Contrary to assertions in appellant's brief, he did not surrender himself to police, as did Roney.

As proof of appellant's "remorse" over the death of the man he shot, he points to his second written statement, in which he said, "I pulled out my mother's gun and shot Danny one time, why I do not know.... I then thought about it for awhile and I decided to tell the complete truth.... The reason for this is because I have never killed anybody and it bothered me." The jury was entitled to discount such selfserving remarks, made at a time when appellant no doubt knew the police already had obtained overwhelming evidence of his guilt. ⁵ The jury rightfully could conclude appellant was so "bothered" by the murder that after committing it he went directly to sleep.

Appellant's own accounts of his involvement in two capital murders and the surrounding circumstances provided sufficient evidence to support the jury's finding of his future dangerousness. Appellant's first ground of error is overruled.

In ground of error number five appellant contends the trial court committed reversible error in admitting evidence obtained in violation of his Fourth Amendment rights against unreasonable search and seizure. However, appellant omits any reference to the evidence of which he complains, and thereby fails to comply with Article 40.09(9), V.A.C.C.P., which reads in pertinent part as follows:

"... Each ground of error shall briefly refer to that part of the ruling of the trial court, charge given to the jury, or charge refused, admission or rejection of evidence, or other proceedings which are designated to be complained of in...