Court of Appeals of Texas, Seventh District, Amarillo
Appeal from the 46th District Court Hardeman County, Texas
Trial Court No. 4295, Honorable Dan Mike Bird, Presiding
QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
T. Campbell Justice.
his plea of not guilty, a Hardeman County jury convicted
appellant Gary Andrew Callaway of the offense of capital
murder,  requiring the assessment of a sentence of
life imprisonment without the possibility of
parole. Appellant appeals, challenging his
conviction through seven issues. We will affirm the trial
indictment alleged appellant murdered two people, Terrance
Besaw and Lisa Waddle. At his trial, the State presented
evidence to show that on an afternoon in April 2015 appellant
shot Besaw three times and Waddle six times, causing their
deaths. Appellant did not testify at trial, but the admitted
evidence included the audio of his recorded interview by
Texas Rangers, in which appellant told the officers he shot
both victims. No eyewitness to the murders testified. Much of
the evidence pertinent to the appeal came from
appellant's recorded interview and from testimony of
statements he made to others.
killings occurred at a farm house in Hardeman County,
belonging to the family of Patrick Morris. Appellant said
several people, including Besaw and "some woman, "
said he engaged in some target shooting outside and then came
inside to go to the bathroom. He had a gun in his hand. He
said he walked into the house and "smelled some
anhydrous ammonia cooking . . . ." Besaw came into the
room, said something to him and retreated into the hallway.
Appellant followed him. He turned the corner to the bedroom
and saw Besaw with a "barrel pointed at [him]" and
"that was it." He stated, "I reacted . . . I
shot him." Appellant said he shot Besaw three times.
said he walked outside and Waddle, who he did not know, was
sitting inside a pickup truck. Waddle began running toward
the roadway and appellant shot her as she ran. He said he
shot her "[t]wice, she was still running. On the third
one she dropped." Appellant walked over to her and saw
she was still breathing. He stood five or ten feet away and
shot her three more times.
was arrested at a motel in Wichita Falls a week after the
murders. No murder weapon ever was found. Appellant said he
threw the pistol, and the weapon he said Besaw pointed at
him, in a river.
jury found appellant guilty of the single offense of capital
murder as charged in the indictment, and punishment was
assessed as noted.
his seven issues, appellant asserts complaints about the jury
charge, the sufficiency of the evidence to support his
conviction, and the admission of his confession and various
photographs, and challenges two of the trial court's
rulings. We will begin with appellant's sixth issue.
6-Unanimity in Jury Charge
sixth issue, appellant complains that the court's charge
to the jury denied him the right to a unanimous verdict.
Texas law requires that a jury reach a unanimous verdict
about the specific crime the defendant committed. Tex. Const.
art. V, § 13; Cosio v. State, 353 S.W.3d 766,
771 (Tex. Crim. App. 2011) (citation omitted).
indictment charging appellant with capital murder contained
two paragraphs. The first paragraph alleged appellant caused
the death of Besaw by shooting him with a firearm and killed
Waddle by shooting her with a firearm during the same
criminal transaction. The second paragraph alleged appellant
caused the death of Waddle by shooting her in the course of
committing or attempting to commit the offense of obstruction
considering potential jury-charge error, we first determine
whether the charge contained error by allowing the
possibility of a non-unanimous verdict. Cosio, 353
S.W.3d at 771.
trial court instructed the jury in the disjunctive, allowing
it to find appellant guilty of capital murder under either of
the two theories set out in the indictment: appellant
murdered Besaw and Waddle during the same criminal
transaction or appellant murdered Waddle in the course of
committing or attempting to commit the offense of obstruction
or retaliation. Because appellant asserted he killed Besaw in
self-defense, the application paragraph for the theory
requiring the jury to find he murdered Besaw also contained a
self-defense instruction. And, the charge included an
instruction that the "verdict must be unanimous."
The verdict form simply asked for a general verdict of guilty
of capital murder, guilty of murder, or not guilty.
contends an analysis like that set out in Vernon v.
State, 841 S.W.2d 407 (Tex. Crim. App. 1992), should
govern our review of his jury-unanimity issue.
Vernon was a prosecution for sexual assault of a
minor, and the complaint on appeal involved the admission of
evidence that the defendant had assaulted the victim on a
number of occasions. In the course of its discussion of the
extraneous-offense evidence, the court made clear that each
of the assaults constituted a separate offense. Id.
at 410. Appellant would have us treat the indictment's
two paragraphs as alleging separate offenses, requiring the
jury unanimously to agree on one paragraph's allegations
to convict him of capital murder.
contention disregards the manner in which jury unanimity is
treated in capital murder prosecutions. The capital murder
statute requires the State to allege a "predicate
murder" as defined under Penal Code section 19.02(b)(1)
and any one of nine additional aggravating circumstances.
Saenz v. State, 451 S.W.3d 388, 390 (Tex. Crim. App.
2014). The indictment "may contain as many separate
paragraphs charging the same offense as is necessary to meet
the contingencies of the evidence." Graham v.
State, 19 S.W.3d 851, 853 (Tex. Crim. App. 2000) (citing
Hathorn v. State, 848 S.W.2d 101, 113 (Tex. Crim.
App. 1992)). The aggravating circumstances set out in section
19.03(a) describe alternate methods of committing capital
murder. Davis v. State, 313 S.W.3d 317, 342 (Tex.
Crim. App. 2010). "When an indictment alleges differing
methods of committing capital murder in the conjunctive, the
jury may properly be charged in the disjunctive."
Saenz, 451 S.W.3d at 390 (citations omitted). The
charge "may disjunctively allege 'all alternate
theories of capital murder contained within § 19.03,
whether they are found in the same or different subsections,
so long as the same victim is alleged for the predicate
murder.'" Davis, 313 S.W.3d at 342 (citing
Gamboa v. State, 296 S.W.3d 574, 584 (Tex. Crim.
the paragraphs in appellant's indictment required proof
that he murdered Waddle. Her murder is thus the
"predicate murder" under § 19.02(b)(1). The
paragraphs then alleged aggravating circumstances under
§ 19.03(a)(2) and § 19.03(a)(7). Because those
allegations merely stated alternative theories of committing
the single offense of capital murder, the unanimity
requirement was not violated by allowing the jury to convict
without a unanimous verdict on one of the alternatives.
Martinez v. State, 129 S.W.3d 101, 103 (Tex. Crim.
App. 2004); see Gamboa, 296 S.W.3d at 582-83 (citing
Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim.
resolve appellant's sixth issue against him.
1-Sufficiency of the Evidence under Section 19.03(a)(7)(A)
first and second issues challenge the sufficiency of the
evidence to support a finding of guilt under either of the
indictment's two theories. By his first issue, appellant
contends the evidence was insufficient to prove he was guilty
of capital murder under section 19.03(a)(7)(A) because there
was evidence he killed Besaw in self-defense.
review the sufficiency of the evidence under the standard set
forth in Jackson v. Virginia.443 U.S. 307, 319, 99
S.Ct. 2781, 61 L.Ed.2d 560 (1979); Brooks v. State,323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010) (plurality
op.). Under that standard, a reviewing court must consider
all the evidence in the light most favorable to the verdict
and determine whether a rational trier of fact could have
found the essential elements of the ...