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delivered: December 31, 1993.




For APPELLANTS: John H. Seale, Jasper, TX. Paul N. Buchanan, Beaumont, TX.

For APPELLEE: Hon. Amy Blalock, Asst. District Attorney, Tyler, TX.

Hon. Tom B. Ramey, Jr., Chief Justice, Hon. Bill Bass, Justice, Hon. Charles Holcomb, Justice (Auth.)

Author: Holcomb

This is an appeal from a jury verdict finding Appellants, Thomas E. Ladner, James M. Hyden, and Billy Ray Horton, guilty of murder. The jury assessed Ladner's punishment at 28 years imprisonment, Hyden's punishment at 14 years imprisonment, and Horton's punishment at 10 years imprisonment. Appellants were indicted separately but their cases were consolidated for trial. Thomas E. Ladner's and James M. Hyden's appeals have been consolidated in this opinion as Hyden adopted Appellant Ladner's brief which brings 33 points of error.

Billy Ray Horton's appeal will be addressed by a separate opinion.

Point of error thirty-two alleges that the trial court erred in "rendering a judgment of conviction based upon the verdict of the jury because the verdict is contrary to the law and evidence."

The standard for reviewing sufficiency of the evidence questions such as this is 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 offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Butler v. State, 769 S.W.2d 234, 239 (Tex. Cr. App. 1989); Jackson v. State, 672 S.W.2d 801 (Tex. Cr. App. 1984). We are required to position ourselves as a final due process safeguard, ensuring only the rationality of the fact-finder considering all the evidence the jury was permitted to consider, whether rightly or wrongly. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Cr. App. 1988). With this standard in mind, we have reviewed all the evidence presented in the record, and will set forth that evidence which supports the judgment.

Loyal Garner, Johnny Maxie, and his brother Alton Maxie set out in Garner's pickup truck after lunch on December 25, 1987, from Florian, Louisiana, supposedly to look for a timing chain for Johnny Maxie's vehicle. They were unable to find a chain nearby because the wrecking yards were closed on Christmas Day. They decided to drive to the community of Liberty, located in Newton County, Texas, so that Johnny Maxie could get his car, which was at his wife's house. On the way to Texas, they stopped at a liquor store and purchased rum, whiskey, and beer, a portion of which they consumed. When they reached the outskirts of Hemphill, they were pulled over by Thomas Ladner and James Hyden, allegedly because their vehicle was weaving on the highway. At the time, Ladner was the Chief of Police in Hemphill, and Hyden was a Deputy Sheriff of Sabine County. After they were stopped, Garner was charged with "Driving While Intoxicated," and Johnny and Alton Maxie were charged with "Public Intoxication." They were then placed in the city police car and taken to the Sabine County Jail in Hemphill.

After being "booked," they were all placed in the detoxification tank,*fn1 which is a cell without bunks where intoxicated prisoners are kept until they are sober. After being placed in the tank, Garner and the Maxie brothers started yelling obscenities and pushing on the cell door, allegedly to gain attention so that someone would allow them to make a telephone call to their families. The evidence reflects that pushing on the tank's door caused a red light to come on in the dispatcher's office. They were told by Mary Russell, the dispatcher, they would be allowed to make a phone call after they had been in jail for four (4) hours. However, they continued to push on the door and yell. They were told, presumably by Horton, that if they didn't quit, they would be "stomped," and they in turn responded, "You'd better bring four or five if you're going to do it," or words to that effect. Between 9:30 and 10:00 p.m., Ladner and Hyden returned to the jail and were told what Garner and the Maxie brothers were doing. They went to the tank, and Ladner, upon entering the cell, asked who was pushing on the door and yelling the obscenities. Alton Maxie testified that Garner, who was standing, said that he was, and Ladner struck Garner in the head at least three (3) times with a slap-jack. Ladner and Hyden then grabbed Garner around his neck and carried him out of the tank into the hallway.

Melton Sangwin, Jr., an inmate of the jail, testified that he heard a scream after Garner was taken to the booking room. Angus Bozeman, another inmate located in the cell next to Garner and the Maxie brothers, heard the scuffle and the sound of licks in the cell, and moments later, other licks and sounds of a scuffle but he could not tell whether it was in the hallway or the tank. He heard Ladner tell someone, "Hand me a black-jack." He then heard Ladner say, "Sit down, boy." Thereafter, he heard screams, and later heard someone taking Garner back to the cell.

According to Alton and Johnny Maxie, Garner was conscious when he was taken from the cell to the booking room. Alton and Johnny Maxie testified that Garner was brought back to the cell after ten or fifteen minutes, with Ladner and Hyden holding him by his arms. They set him down on the concrete ledge and told Alton Maxie to come with them. Alton testified that he followed them into the booking room and Hyden asked him if he wanted "some of the same," and at that time, he saw Ladner hitting a nightstick against his own hand. He observed blood on the floor around a chair. He was told by Billy Ray Horton that he could make a telephone call, but to tell whoever he called that they could not get out until morning. Alton then called his mother and told her where they were. He testified that Horton kept his finger on the receiver, which he (Alton) believed was to prevent him from telling his mother what had happened. He was then taken back to the cell by Horton, and Johnny Maxie was taken to make his phone call. Johnny testified that he tried to place a call to Constable Holton Johnson in Newton County, but Johnson was unavailable. He remained in the booking room until Johnson returned the call. Johnny told Constable Johnson that he would be unable to meet with him regarding some "help" he was providing on narcotic trafficking between Texas and Louisiana. Johnny did not mention anything to the constable about what had happened to Garner. Alton and Johnny Maxie both testified that Garner was in a comatose state after he was returned to the cell; his eyes were "fixed" and in an opened, unblinking position, his breathing was irregular, and he was bleeding from a small cut in the back of his head. They testified that Ladner and a trustee came in about thirty (30) minutes later to the tank with jail clothing and asked them to change Garner's clothes because of the blood on his shirt. They refused to do so.

Trent Taylor, a trustee in the jail, testified that he was in an adjoining cell with inmates Keith Miller and Angus Bozeman. He testified about Garner and the Maxie brothers being placed in the tank and related their rattling the door and yelling that they wanted to make a phone call, and about a cursing match that was had between Bozeman and someone in the tank. He related that someone came down and told the inmates in the tank to quit or he would stomp their ass. Someone in the tank said, "You better bring four or five with you." He remembered hearing Ladner tell someone repeatedly to "get up" while a scuffle took place, and also tell someone, "Hand me the black-jack." He didn't know whether this happened in the hallway or in the tank. He testified that he heard four or five solid "licks," and then a sound like metal hitting the floor. Approximately thirty (30) minutes after this, Ladner came and got him out of the cell to do some clean up work. Taylor went to the kitchen to get the mop and Ladner told him to also get some clothes for an inmate. Then they went to the tank and Ladner tried to get him and the Maxie brothers to wake Garner up and change his clothes because of the blood. He testified that the two brothers said they didn't want to wake him up, and that he needed a doctor. Taylor testified that after he cleaned up spots of blood in the hallway, he went to sit in the dispatcher's office. There, he saw a slap-jack with the end opened, which would have allowed the lead to slide out. The next morning, after Garner was taken to the hospital, he cleaned up blood in the tank. The Maxie brothers testified that after Ladner and Taylor left, they went to sleep and were awakened for breakfast the next morning by a deputy, Clyde Kirk. Kirk determined that Garner needed to see a doctor and an ambulance was called. Garner was subsequently taken to the hospital in Hemphill. There, Dr. Grover Winslow tried to stabilize Garner's condition, but ultimately transferred Garner to Tyler, where Dr. R.S. Donaldson treated him for a subdural hematoma and performed an operation to relieve pressure in the brain. Garner was placed on a life-support system and when it was determined that he was "brain dead," the life-support system was removed and Garner expired.

Dr. Donaldson testified that the amount of force needed to cause the injuries he observed would be similar the force necessary for someone to hit a baseball into centerfield.

Dr. Virgil Gonzales, who performed the autopsy, testified that the cause of death was several severe blows to the victim's head, consistent with being struck by a "slap-jack" or "slapstick." Dr. Gonzales stated that it was the same type of injury to the head as you might expect to see in someone who had been in an automobile collision. He further testified that the injury would not have been consistent with someone having tripped and fallen, and then hitting his head as presented by the Appellants' testimony, which had been read into the record from testimony given before the Smith County Grand Jury. He further testified that for a person to have struck the victim as he observed, that person would have intended to cause serious bodily injuries which would clearly be dangerous to Garner's life.

We hold that the evidence is sufficient and a rational jury could have found from the direct and circumstantial evidence, and the inferences therefrom, that Appellants Ladner and Hyden committed the murder of Garner as charged. This point of error is overruled.

In their first point of error, Appellants allege the trial court erred in not granting their motion for an instructed verdict because they were tried twice for exactly the same conduct, and thus, their constitutional rights against double jeopardy were violated. Appellants' arguments have been extensively reviewed by this and other courts.

On January 5, 1988, Appellants were indicted in Sabine County, Texas, for violating the civil rights of Loyal Garner, Jr. Subsequently, on March 3, 1988, an indictment was returned against Appellants in Smith County, Texas, for the offense of murder. After a jury trial in Sabine County, Appellants were acquitted of the charges for civil rights violations against Garner on July 15, 1988. The judge of the 241st District Court of Smith County held a hearing on Appellants' petition for writ of habeas corpus the following day and denied relief.

The denial of relief was appealed to this Court. We reversed the trial court's judgment and ordered the murder indictments dismissed. Ladner v. State, 790 S.W.2d 671 (Tex. App. - Tyler 1988, pet. granted). The Court of Criminal Appeals reversed this Court, holding that we had incorrectly applied the doctrine of collateral estoppel. Ladner v. State, 780 S.W.2d 247 (Tex. Cr. App. 1989). They held that the Sabine County jury could have based its acquittal in the civil rights prosecution on a failure of the State to prove that Appellants "knew [their] conduct was unlawful." Ladner, 780 S.W.2d at 255.

Appellant sought habeas corpus relief through the federal courts; relief was denied. Ladner v. Smith, 941 F.2d 356 (5th Cir. 1991), cert. denied, 112 S.Ct. 1665 (1992). The Court of Criminal Appeals and the Federal Courts all held that, under the analysis of Ashe v. Swenson, relitigation after acquittal is barred if the factual issue was necessarily resolved in the Appellants' favor in the first prosecution. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189 (1970). These courts held that Appellants had not shown that an element of the offense of murder had been necessarily established against the State in the first trial. Ladner v. Smith, 941 F.2d 356; Ladner, 780 S.W.2d at 254-56.

The Fifth Circuit Court made an extensive analysis of this case under the then recent case of Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084 (1990). Appellants also argue that under Grady, their claim of doubly jeopardy should be sustained. However, as we understand United States v. Dixon, U.S. , 113 S.Ct. 2849 (1993), the analysis of a double jeopardy claim is governed by Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180 (1932), and Ashe v. Swenson, since Grady was explicitly overruled. See Dixon, 113 S.Ct. at 2860. Therefore, we will not review those arguments and content ourselves with the prior analysis under Ashe.

We accept our Court of Criminal Appeals' decision that Appellants' protection against being twice put in jeopardy had not been violated. Point of error one is overruled.

In points of error three and four, Appellants complain that the trial court erred in refusing to submit to the jury the fact question of double jeopardy and for excluding the testimony of District Attorney Charles Mitchell, to the effect that the previous prosecution in Sabine County arose from the same criminal episode for which Appellants were being tried in Smith County. In these points of error, they contend the trial court should have allowed evidence before the jury in support of their plea of former jeopardy and then present the plea in the jury charge. In view of the fact the Court of Criminal Appeals had at that time ruled as a matter of law that double jeopardy had not attached, we hold that the trial court was correct in not allowing the testimony of Mitchell or charging the jury in the manner requested. Therefore, these points are overruled.

In point of error number five, Appellants contend the trial court erred in refusing to grant a mistrial because the prosecuting attorney used the word "settled" when questioning the deceased's widow about a civil suit she had filed. The record reflects that the trial court sustained the Appellants' objection to the use of the word "settled," and instructed the jury to disregard what the District Attorney had said. Appellants' request for a mistrial was denied. The court's sustaining the objection and instructing the jury to disregard were sufficient to cure any harm. Hernandez v. State, 805 S.W.2d 409 (Tex. Cr. App. 1990); Stoker v. State, 788 S.W.2d 1 (Tex. Cr. App. 1989). The statement made by the District Attorney, and the context in which it arose, was not so inflammatory that it could not be cured by an instruction by the trial court. The trial court did not err in overruling the Appellants' motion for mistrial. See Thomas v. State, 578 S.W.2d 691, 695 (Tex. Cr. App. 1979). Point of error five is overruled.

In point of error number six, Appellants object to the questioning of Blan Greer, the Sheriff of Sabine County, concerning furnishing medical aid to Loyal Garner. Greer testified that Sabine County policy required jailers and deputy sheriffs who were aware that an inmate had been injured to check on the inmate and notify a medical doctor. Greer testified that any time an inmate refused medical assistance, that refusal was to be documented right away. He further testified that there was no documentation or any other indication that Garner had refused medical treatment. Appellants objected to this testimony as irrelevant.

In order to be admissible, evidence must be relevant to a contested issue. An item of evidence is relevant if it logically increases one's knowledge and enhances the likelihood of ascertaining the truth about a given fact. Brown v. State, 757 S.W.2d 739 (Tex. Cr. App. 1988). The determination of whether the evidence is relevant to an issue in a case lies within the sound discretion of the trial court and should not be disturbed, absent a clear abuse of discretion. Johnson v. State, 698 S.W.2d 154 (Tex. Cr. App. 1985), cert. denied, 479 U.S. 871. It is reviewable by this standard. The State argues that if Appellants fatally assaulted Garner, then violated county policy by not seeking medical attention for him, their failure to seek medical attention supports the State's contention that the Appellants acted intentionally and knowingly. We agree. If evidence tends to demonstrate a fact helpful in the determination of the existence of the required intent, ...

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