Tom P. Senff, Nacogdoches, for appellant.
David D. Adams, Dist. Atty., Nacogdoches, for the State.
Before the court en banc.
This is an appeal from a conviction for capital murder; more specifically, appellant was charged with murder in the course of a robbery pursuant to the provisions of V.T.C.A., Penal Code, Section 19.03(a)(2).*fn1 Punishment was assessed at death. See Art. 37.071, V.A.C.C.P.
Appellant's third ground of error is that the evidence is insufficient to support the jury verdict finding appellant guilty of capital murder. We uphold this contention and reverse.
As noted above, appellant was alleged to have committed the offense in the course of committing and attempting to commit robbery. The indictment charged that appellant on or about September 6, 1975, in Nacogdoches County
"... did then and there, knowingly and intentionally, cause the death of Paul Box, hereafter called deceased, by shooting him with a pistol, and that said Kenneth Julian Palafox, was then and there in the course of committing and attempting to commit a robbery ..."
In this case the State relied for conviction on the appellant's confession, as well as circumstantial evidence which tended to support the confession. Omitting the warnings and formal parts, appellant's confession reads as follows:
"My name is Kenneth Palafox and I am 28 years of age; I was born in Brownsville, Texas, and at present I consider the following address my home 1402 East Starr Avenue, Nacogdoches, Texas 75961.
"Michael Molandes and I were together earlier on the evening of September 6, 1975, at my apartment, which is the manager's apartment at Hillcrest Apartments in Nacogdoches, Texas. Michael wanted to go out into the country someplace and shoot some guns, so we got in my car, a 1970 model Cougar, and drove to Melrose. I thought my ex-father-in-law, Paul D. Box, might let us do some shooting on his place, so I turned down the lane which led to his house and parked in front of the house. We both went up on the porch and knocked on the door and Mr. Box came to the door. I asked him if we could go shooting in the pasture this late at night, since it was about 10:00 P.M., and he said no. I think he was a little upset at our coming out that late. We both turned around and started to walk off and Mike Molandes said, "He's got a rifle'. I guess it wasn't self-defense because we could have kept on walking, I guess, But I turned around and started towards Mr. Box. When I was about five or six feet away from Box, I jumped up in the air, turned sideways and kicked the rifle out of his hand. Then I pulled my pistol out and shoved him in the doorway into the house. I then began poking at him and telling him I didn't like for people to point guns at me and also told him some other stuff which I can't remember. I made him go into the bedroom which contained the bed which had not been slept in and the bed was made up. Mike Molandes was following me behind and was carrying a Ruger .22 calibre rifle with a rotary clip in it. I told Mike to watch him while I found something to tie him up with. I found some ties. Mike had the gun on him while I was looking. When I returned with the ties, Mr. Box was lying face-up on his back and I tied his feet with the ties just like I was tying up a Gook. Then I told him to turn over and I tied his hands behind his back. I walked to the other side of the bed. He knew I was going to shoot him. I pointed my Ruger magazine-fed .22 calibre pistol at his head and shot him about six times. Michael Molandes was standing there with me when I did it. We were leaving the house, when Michael Molandes said that we ought to try to make it look like a burglary, so we kind of messed up the house by opening a dresser drawer, rummaging through things and so forth. Michael Molandes went out to the car an got and old Afro-comb which had been in there for a long time and we dropped it by a baby bed and a set of chest of drawers in one of the bedrooms. Mr. Box only had $5.00 in his billfold, and I took it and placed it in the bedroom where it looked like Mr. Box had been sleeping. Then we took a portable color television set, RCA XL 100 21-inch screen, a flashlight, some 30.06 ammunition and a 12 gauge automatic shotgun, a rifle cleaning kit, and high-powered rifle with a scope (a 1903-A3 Springfield 30.06 calibre) and an 8-track stereo with AM and FM radio. We didn't particularly want any of this stuff, but we wanted it to look like a burglary. As we were leaving the house, I looked at the clock and it was five minutes until eleven (10:55 P.M.) We left and drove back to Nacogdoches and went to Patsy Turner's apartment No. 8-A at Hillcrest Apartments at 1013 Douglass Road, Nacogdoches, Texas. Patsy was in bed when we arrived and I opened her apartment door with my master key. We put all the items taken from Mr. Box's house in the apartment of Patsy Turner, including the Ruger rifle and the Ruger pistol. Then we went to an apartment in the Villa apartments where a big blond fellow named Bulldog lives and smoked pot and drank a lot until about 3:30 or 4:00 A.M. There were about 7 or 8 people there, all males, including us. We then went home and I woke up at 11:00 A.M. the next morning."
In addition to the confession, the State presented testimony from several witnesses, including Reba Box, widow of the deceased, who testified that on September 6, 1975, she was away from her home in Melrose, visiting relatives in Houston. She testified that she called her home at 9:00 p. m. and 10:11 p. m. that evening and spoke with her husband. She testified that at that time everything seemed in order. She stated that she learned of her husband's death in the early afternoon of the next day and then returned home immediately. She stated that personal property, including two guns, a television set, and a stereo, was missing from the house. Many items of property were out of place and some drawers were opened. Empty cartridges and the deceased's billfold were found in the bedroom.
Mrs. Box testified that appellant was her ex-son-in-law. In October of 1973, he had married Carol, her daughter. They were divorced prior to October of 1974. She stated that she and the deceased did not approve of the marriage and had discouraged it. She described one incident in which the deceased and appellant had "exchanged words" after her daughter and appellant separated. She also described appellant's attempted suicide during the marriage and his subsequent hospitalizations prior to the divorce.
Dr. Charles Dale, a pathologist, testified that he conducted an autopsy of the deceased. He testified that the cause of death was multiple bullet wounds to the head. He testified that these wounds were caused by at least four separate shots, and stated that he recovered four flattened lead bullets and a few small fragments from the deceased's head. He further testified that the bullets were fired from "pretty close" range.
C. R. Box, brother of the deceased, testified that he discovered the body of the deceased at about 1:00 p. m. on September 7th. He stated that the deceased was lying on his stomach, with his hands and feet tied behind him with neckties. The telephone receiver was off the holder and on the floor.
C. B. Copeland, deputy sheriff, testified that he arrived at the scene of the murder after the body was found. He testified that he found seven .22 caliber hull shells in the room where the body of deceased was found. He also testified that there appeared to have been a struggle in the living room. He further testified that on September 10th most of the missing property was recovered pursuant to a search of an apartment occupied by Patsy Turner.
Patricia (Patsy) Turner testified that on the night of the murder, she was living at the Hillcrest apartments. That night, after she was in bed, appellant and Mike Molandes came into her apartment with a key which appellant had. She stated that she did not get out of bed, but that the two men made two to three trips, carrying some things into the apartment. She testified that appellant told her that he had gotten the things from his mother's attic.
The State introduced much other evidence to show that appellant had been in possession of the items missing from the Box residence. There was extensive testimony from various witnesses regarding whether or not the bullets fired in the home of the deceased were fired from a pistol belonging to appellant, which Turner found in her apartment. Joe Urbanovsky, a chemist for the Department of Public Safety, testified that an afro-comb, found at the scene of the crime, contained human hair of Negro origin. A cigarette butt, also found at the scene of the murder, was found to contain marihuana.
Calvin Story, a firearms examiner with the Department of Public Safety, testified that bullet fragments recovered from the head of the deceased, as well as seven fired cartridge cases, were submitted to him for analysis. He stated that in his opinion the seven cartridge cases were fired from the appellant's pistol, but that he could not state positively that the fragments had also been fired from the same gun. He stated that the fragments could have been fired ...