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Callaway v. State

Court of Appeals of Texas, Seventh District, Amarillo

March 27, 2018


          On Appeal from the 46th District Court Hardeman County, Texas Trial Court No. 4295, Honorable Dan Mike Bird, Presiding

          Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


          James T. Campbell Justice.

         Over his plea of not guilty, a Hardeman County jury convicted appellant Gary Andrew Callaway of the offense of capital murder, [1] requiring the assessment of a sentence of life imprisonment without the possibility of parole.[2] Appellant appeals, challenging his conviction through seven issues. We will affirm the trial court's judgment.


         The 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.

         The 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, " were there.

         Appellant 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.

         Appellant 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.

         Appellant 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.

         The jury found appellant guilty of the single offense of capital murder as charged in the indictment, and punishment was assessed as noted.


         Through 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.

         Issue 6-Unanimity in Jury Charge

         In his 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).

         The 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.[3] 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 or retaliation.[4]

         In 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.

         The 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.

         Appellant 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.

         Appellant's 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. App. 2009)).

         Both 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. App. 1991)).

         We resolve appellant's sixth issue against him.

         Issue 1-Sufficiency of the Evidence under Section 19.03(a)(7)(A)

         Appellant's 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.

         We 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 ...

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