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delivered: January 13, 1993.


Appeal from 232nd Judicial District of HARRIS County, Tx.


For Appellant: Ray Bass, Austin, Tx.

For State: John B. Holmes, Jr., D. A. & Cathleen C. Herasimchuk, Asst. D. A., Houston, Tx. Robert Huttash, State's Attorney, Austin, Tx.

EN Banc. Clinton, Judge, McCormick, Presiding Judge dissenting opinion, Campbell, Judge dissenting opinion joined by McCormick, Presiding Judge & White, Judge

Author: Clinton

Appellant was convicted of the offense of capital murder pursuant to V.T.C.A. Penal Code, § 19.03(a)(2). The jury answered the two special issues affirmatively during the punishment phase and appellant was sentenced to death. Article 37.071, § (b), V.A.C.C.P. Appeal is automatic to this Court. Id., § (h). Appellant raises thirteen points of error. Because appellant makes a claim of insufficiency of the evidence to support the conviction, a recitation of the facts is necessary.

On the morning of June 13, 1983, Gregory Scott Traver, a friend and co-worker of Jerry Lynn Dean, waited for Dean to pick him up for work as he did every morning. Dean usually arrived at 6:40 a.m. When he did not show up by 6:50 a.m., Traver walked the short distance to Dean's apartment to meet him. Traver knocked on the door and, receiving no response, he walked into the unlocked apartment. Inside Traver noticed that the motorcycle which Dean was building was no longer in the living room, the television had been moved to the floor and the radio was blaring. Traver found Dean in the spare bedroom. Dean was lying on a mattress. At first glance, Traver thought he had been in a fight; however, upon closer examination, he realized Dean had blood on his head, holes in his chest and "looked like he'd been butchered." Lying next to Dean was the bloody body of a woman, a pickax protruding out of her chest. The woman was later identified as Deborah Thornton. Traver ran out of the apartment and called the police. A pathologist with the Harris County Medical Examiner's Office estimated the time of death at between 4:00 a.m. and 6:30 a.m.

Appellant had become acquainted with Dean through his girlfriend, Karla Faye Tucker.*fn1 Karla met Dean when he was dating her roommate, Shawn Jackson, who subsequently became his wife. Karla's dislike of Dean began when Dean parked his motorcycle in her and Shawn's apartment living room with oil dripping onto the rug. After Dean failed to remove it, Karla punched him. On the day Shawn and Dean were married, Karla and her sister Kari moved into a house with appellant. Ronnie Burrell, Kari's ex-husband also moved into the house at a later date. After Shawn was married, she went to Karla's house to pick up some of her clothes which were in Karla's possession. When Karla discovered that Dean was outside waiting for Shawn, she ran outside and punched him in the eye. Shawn eventually moved in with appellant and Karla after an altercation with Dean in which he "punched her in the nose." Around this time discussions were had about stealing Dean's motorcycle. Thereafter, plans to steal Dean's motorcycle were discussed frequently. During one of these discussions, appellant stated that if Dean was present when the theft was taking place, he would have to be killed. When discussions of killing Dean evolved, Shawn decided she did not want to participate in the theft. Burrell also testified that a number of times appellant discussed going to Dean's house to steal his motorcycle, his car and other items, and killing him.

Shawn testified that upon moving out from the apartment she shared with Dean, she retained a set of keys to the apartment and to the El Camino which belonged to Dean. She also testified that the keys were missing a short time before Dean's death and were never recovered. Karla testified that she found and kept the keys which Shawn misplaced, but never revealed this to Shawn; she did however, relate this information to appellant. Shawn also took Dean's bank card when she moved out of their apartment and she, Karla and Kari each withdrew the money from the account.

On the weekend immediately preceding June 13, 1983, a birthday party was thrown for Kari at appellant's house. By Sunday evening, only a few people remained at the house, including appellant, Karla, Kari, Burrell and a friend of Burrell's named Jimmy Liebrandt. At approximately 6:30 p.m. or 7:00 p.m., appellant left for work and Kari left the house. Karla and Liebrandt remained at the home and continued to ingest marijuana, speed, and dilaudids. Appellant returned from his job as a bartender between 3:30 a.m. and 4:30 a.m. and soon thereafter, ingested some speed with Karla and Liebrandt. Karla testified that subsequent to the shot of speed, Liebrandt began pacing back and forth and stated that if he did not do something soon, he would go crazy. At this point, appellant stated he knew what they could do and began drawing a floor plan to Dean's apartment. Appellant suggested the three of them go to Dean's apartment and case the place, and as appellant, Karla and Liebrandt left the house, appellant grabbed his shotgun.

After arriving at Dean's apartment, appellant, Karla and Liebrandt split up to look around the apartment complex. Appellant met Karla at the front door and told her to open it, so Karla retrieved the keys that belonged to Shawn and opened the door. Upon opening the door, Dean said "What's going on?" and without answering, appellant and Karla walked to the bedroom doorway and saw a silhouette of Dean sitting on a mattress on the floor. Karla walked past appellant and sat on Dean's lap. In a scared voice, Dean said "We could work it out," referring to the bank account which Karla helped deplete. Karla told Dean to shut up and began wrestling with him. Dean grabbed her arms and as she tried to break loose, appellant pushed the two apart, knocking Karla to the ground. As Karla stood up she saw a silhouette of appellant hitting Dean in the head with a ball peen hammer. When Karla turned on the light, appellant ceased hitting Dean who was now face down, and walked out of the room. As Karla stood over Dean, he made a gurgling noise. Karla picked up a pickax laying against the wall and began hitting him. The gurgling did not cease and as appellant walked back into the room, Karla asked appellant to make it stop. Appellant took the pickax from Karla and hit Dean until the noise stopped. As Karla was swinging the pickax on Dean, she saw Liebrandt in the hallway bending over to pick up a box. Karla did not know what appellant was doing as she was pickaxing Dean.

Once Karla finished pickaxing Dean and appellant left the room, she noticed a body shaking under the sheets next to Dean. Karla began pickaxing the body and a woman came up from under the sheets and grabbed the pickax. The woman, Deborah Thornton, began to overpower Karla and at that moment, appellant walked into the room, grabbed the pickax and pushed Karla back. Karla left the room, went into the living room, picked up two boxes containing motorcycle parts and carried them out to appellant's truck, noticing that several boxes had already been loaded into the truck. Karla walked back to the apartment and into the bedroom where she saw Thornton sitting on the edge of the mattress with the pickax stuck in her shoulder. Karla heard Thornton say, "Oh, God! It hurts. If you're going to kill me, please hurry up." Appellant kicked her in the head and as she fell back, he pulled the pickax out of her shoulder and swung it into her chest. Karla left the room. When appellant came into the living room he told Karla to help him carry the motorcycle frame out of the living room and into the truck. The frame was put in the bed of Dean's El Camino and Karla used Shawn's keys to drive the car to appellant's brother's house.

Once Karla arrived at Doug Garrett's house, she told him that she and appellant had killed Dean. Karla asked Doug for help in unloading the motorcycle out of the El Camino and into his garage. Appellant arrived shortly afterwards with Liebrandt and Burrell and after unloading some boxes, appellant, Karla, Liebrandt and Burrell left in appellant's vehicle. Appellant, and his girlfriend, Karla, were arrested on July 20, 1983, for the pickax murders.

In his first point of error, appellant alleges the evidence is insufficient to support a conviction for capital murder as alleged in the indictment. To support this contention, appellant argues that the evidence fails to establish any assaultive conduct directed towards Dean that occurred to facilitate the taking of his property. He also asserts there were no objective manifestations of an intent to obtain property when appellant joined the assault in aid of Karla. Additionally, appellant argues Dean was not the victim of a robbery because the State's evidence demonstrates the assault on Dean was motivated by Karla's anger, not to facilitate the taking of property.

This Court has defined "in the course of committing" an offense listed in § 19.03(a)(2), supra, as conduct occurring in an attempt to commit, during the commission, or in the immediate flight after the attempt or commission of the offense. Riles v. State, 595 S.W.2d 858, 862 (Tex.Cr.App. 1980). Evidence is sufficient to support a capital murder conviction if it shows an intent to obtain or maintain control of property which was formed before or contemporaneously with the murder. See White v. State, 779 S.W.2d 809 (Tex.Cr.App. 1989).

In the case at bar, there is ample evidence that appellant formed the intent to commit the robbery before the commission of the murder. Shawn testified that she is the one who suggested to Karla that Dean's motorcycle be stolen, and Karla corroborated this testimony. Kari testified that she heard her sister Karla talking about stealing Dean's motorcycle and she heard the appellant talk about stealing his car so he could use the parts for his vehicle. Doug likewise testified that he had heard discussions between the appellant and Karla in which they were planning to steal Dean's motorcycle. Burrell also took the stand and testified that he heard Karla state that she was going to "off" Dean because of a contract that he supposedly put out on her. Burrell stated that Karla said Dean did not deserve a motorcycle and that she was going to take it away from him. Burrell stated that he was invited by both appellant and Karla to go over to Dean's apartment with them and that on more than one occasion, appellant discussed the details of killing Dean. Appellant also told Burrell that when he was loading boxes into his pick up truck, he had to stop and help Karla who was being overpowered by Thornton. Karla testified that appellant was instrumental in planning the event. It was his idea to go to Dean's apartment on the night of the murders. He drew the diagram of appellant's apartment. And he is the one who on an earlier occasion suggested that Dean would have to be killed if he was present when they went over to steal the motorcycle. Lastly, Karla stated that both she and appellant loaded the motorcycle into Dean's car after Thornton had been killed.

When reviewing sufficiency of the evidence this Court must decide "whether, after viewing the evidence in the light most favorable to the prosecution any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307 at 319, 99 S. Ct. 2781 at 2789, 61 L. Ed. 2d 560 at 573. The testimony given at trial indicates that appellant formed the intent to kill Dean and take his property well before the actual date that the murders occurred. Testimony from both Shawn and Burrell indicated that appellant had discussed "offing" Dean if he was present when they stole the motorcycle. After the murders, appellant completed the theft by loading the motorcycle into Dean's car. From this testimony, along with the actual taking of the motorcycle, a rational trier of fact could conclude beyond a reasonable doubt that appellant committed the murder while in the course of robbery. Tucker, 771 S.W.2d at 523. Appellant's first point of error is overruled.

Appellant's second point of error alleges the trial court reversibly erred by granting, over timely objection by appellant, the State's challenge for cause to venireman Peter K. Bradley. The State may challenge a venireman for cause if "he has a bias or prejudice against any phase of the law upon which the State is entitled to rely for conviction or punishment." Article 35.16(b)(3), V.A.C.C.P.. During questioning of venireman Bradley, the subject of the second special issue was discussed:*fn2

"Q: Looking at that question, do you think it's possible to conclude in some circumstances that the answer to Question 2 should be yes, based on nothing more than the facts of the case itself?

And by that, I mean this. The law would allow, if a jury so chose, would allow for a jury to conclude that the evidence in the case called for an answer of yes based solely on the defendant's conduct during the crime that he or she was convicted of.

A: No, sir. I do not think you could answer it then from that information.

Q: That no matter -- in other words, you would want more than just the facts of the case?

A: Yes, sir, I believe it would be required.

Q: All right. Now, wanting more than just the facts of the case is perfectly legitimate. The next thing, and I want you to correct me if you feel I'm misstating this, as we go along, with your views. My question is, do you feel that in all situations, no matter what the facts of the case alone is, that you could never answer Question 2 yes based on just the facts of the case?

A: Yes, sir, I agree with that statement. You cannot answer yes to Issue 2 without additional -- without additional information.

Q: Okay. . . . Knowing then that capital murder and the opportunities to be there answering those two questions in and of itself occurs only in the most severe type of cases, would it still be your position that no matter what the evidence, no matter how severe the crime, no matter how bad the defendant's conduct in the crime, that you could never answer Question 2 yes based on just the facts of the case?

A: Yes, sir, it is. Can I ...

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