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DAVID FRANKLIN STONE v. STATE TEXAS (04/28/83)

April 28, 1983

DAVID FRANKLIN STONE, APPELLANT
v.
STATE OF TEXAS, APPELLEE



Appeal from the 7th Judicial District Court of Smith County, Texas.

COUNSEL

Weldon Holcomb, Tyler, Tex. for appellant.

Charles F. Montgomery, Jr., Asst. D.A., Jack Skeen, Jr., D.A., Tyler, Tex. for appellee.

Colley, J.

Author: Colley

PAUL S. COLLEY, Associate Justice

Appellant was convicted of murder by a jury on his not guilty plea. The jury assessed punishment at nineth-nine years confinement in the Texas Department of Corrections.

Appellant was first tried and convicted of the same offense by a jury in January 1979.That jury assessed his punishment at forty years confinement in the Texas Department of Corrections. The Court of Criminal Appeals reversed the conviction for error committed by the trial court in admitting into evidence incriminating statements made by appellant as result of a custodial interrogation in violation of appellant's Miranda rights. Stone v. State, 612 S.W.2d 542 (Tex. Cr. App. 1981).

No challenge is made by the appellant as to the sufficiency of the evidence.

In this appeal appellant raises two grounds of error: (1) the error of the trial court "... in failing to instruct the jury on the law of accomplice [testimony] as raised by the evidence in this cause"; and (2) the error of the trial court "... in failing to reduce the sentence received by defendant at second trial to the [judgment] received at first trial which was reversed on constitutional grounds."

Appellant's argument under his first ground is that the State's witnesses, Sandra McIntyre, Denny Carlson and Richard Swann, were accomplice witnesses as a matter of law, or at least the evidence raises a question of fact as to whether each was an accomplice witness and that the question should have been submitted to the jury. In passing on this ground it is necessary to briefly discuss the evidence to determine if it connects any one of such witnesses as a party to the commission of the offense for which the appellant was tried and convicted herein.

The record reflects that Vicky Lynn Gill was brutally murdered on July 7, 1977. During that day she had visited briefly with her father and brother showing to each of them a certificate of title she had received for a motorcycle she had built herself. At approximately 5:00 p.m. on July 7, 1977, the State's witness, Virginia Jeraldine Brown, observed a two-toned Cadillac automobile parked next to a motorcycle, and a young man and woman walking towards the woods near the location where Vicky Gill's body was later found. Brown described the woman as having shoulder-length blond hair and dressed in jeans. She described the man as large and tall. Other testimony in the case established that these descriptions matched the physical characteristics of appellant and the victim. She testified also that she saw the same Cadillac again in the yard of the home of appellant's parents. The evidence reveals that appellant owned such a vehicle. The victim's body was located and recovered by the Smith County Sheriff's Department on July 7, 1977, acting on information given the officers by the appellant and his attorney on the same date.

Sandra McIntyre's (hereafter McIntyre) testimony reveals that she was an acquaintance of appellant, and that her husband Joe was a friend and acquaintance of the appellant and also a fellow member of a motorcycle club called the "Cossacks." McIntyre also knew the murder victim. On July 8, 1977, appellant visited with McIntrye and her husband at their home in Tyler, Texas. McIntrye overheard a conversation between her husband and appellant where, when her husband told appellant, "but you are only eighteen years old and you have beat a girl to death," appellant replied, "I shouldn't have killed her but..." McIntyre also testified that when she asked appellant whether or not he "... thought he would do something like that again," appellant replied, "he didn't know." The record clearly demonstrates that McIntrye was not connected with the commission of the murder in any way, either before, during or after the commission of the offense.

Denny Carlson (hereafter Carlson) was also a member of the Cossacks and he was a friend of appellant as well. On July 8, 1977, Carlson was also visiting at the McIntyre home in Tyler where the McIntyres were barbecuing meats on a grill in the backyard of their home. Carlson testified he observed the appellant burning some papers in the barbecue grill among which, the witness observed, was a certificate of title for a motorcycle, and at trial Carlson testified in part as follows:

Q All right. Is that the same title that you see [sic] David Franklin Stone start to burn out there on that date?

A Yes, Sir.

Q Now, when he was burning these papers, did he make any statement to you as to whether or not, or why he was burning them or anything?

A Not at the ...


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