Custard v. State

812 S.W.2d 82, 1991 Tex. App. LEXIS 1548, 1991 WL 107107
CourtCourt of Appeals of Texas
DecidedJune 20, 1991
DocketNo. 01-89-00120-CR
StatusPublished
Cited by5 cases

This text of 812 S.W.2d 82 (Custard v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Custard v. State, 812 S.W.2d 82, 1991 Tex. App. LEXIS 1548, 1991 WL 107107 (Tex. Ct. App. 1991).

Opinion

OPINION

MIRABAL, Justice.

A jury found appellant guilty of murder and made an affirmative finding on use of a deadly weapon. The jury assessed punishment at life imprisonment and a $500 fine. We affirm.

Milton Hoot, 73, was killed on November 23, 1987, in a remote area of San Jacinto County, Texas, by a single shotgun blast to the chest.

Mr. Hoot’s wife testified that a white male, later identified as Marrón Douglas Ritchey, came by the house around 10:20 p.m. the evening of the 23rd. Ritchey had arrived at the house in a red pickup truck. There was someone else in the truck, but Mrs. Hoot could not see well enough to identify the person. Mr. Hoot told her he would be back soon, and left to help Rit-chey with his vehicle. When her husband had not returned by 3:30 a.m., Mrs. Hoot notified the local constable, Ken Ham-monds. Constable Hammonds questioned Ritchey, who admitted going to the Hoots’ house on the night of the 23rd. Ritchey said that he needed help with his truck and got a ride to the Hoot residence from a stranger. Mr. Hoot had helped Ritchey with his vehicle, and Mr. Hoot had gone on his way.

Hoot’s body was discovered on Thanksgiving Day, November 26, near one of his pastures on national forest land. Tire tracks indicated that two vehicles had driven into the area, passing through two fences. The lock on the gate of the first fence had been cut by a bolt cutter. The fence next to the second gate had been lowered and something had scraped the gate post, leaving red paint on it. Ritchey owned a red pickup truck with a scuff mark on the right front bumper at approximately the same height from the ground as the mark on the gate post. Hoot’s truck was found abandoned on a road leading into the forest, and his body was located down another road, some distance away. [84]*84No identifiable fingerprints were recovered from Hoot’s truck, Ritchey’s truck, the lock, or the fence post. No other scientific tests were performed on the physical evidence. The shell that killed Hoot was fired from a shotgun that belonged to Ritchey’s aunt. The shell casing found at the scene was an unusual type of shell, and several more were found at Ritchey’s aunt’s house. Before he was killed, Hoot wrote a backdated check for $400.00 made payable to Ritchey; it was cashed the day after Hoot’s disappearance.

On November 30, 1987, unrelated robbery charges were filed against Ritchey by a Mr. Steelhammer. On the day Hoot was last seen, Ritchey forced Steelhammer, at gun point, to write a $300 check to him. Following his arrest, Ritchey admitted his involvement in Hoot’s death and implicated appellant, as an accomplice in the robbery, and as the actual murderer.

Appellant was questioned by the police and a grand jury during the investigation. He admitted seeing Ritchey on the day of Hoot’s murder, but said he was not with him during the hours of the murder. When he became a suspect, appellant appeared a second time before the grand jury and said that he had been present at the shooting of Hoot, but played no part in the robbery or murder. Appellant said he had not come forward because Ritchey had threatened him and his family. He was also afraid he would be blamed because he was black, and the victim was white. Both men were indicted for murder and aggravated robbery.

Ritchey was sentenced to life confinement for murder, and twenty-five years confinement for aggravated robbery. He agreed to testify at appellant’s trial in exchange for non-prosecution of the unrelated robbery charge. Ritchey testified he and appellant planned the robbery to get money to buy cocaine. He testified that appellant was the one who decided Hoot should be killed, and that appellant pulled the trigger.

Appellant requested a directed verdict after the State rested. The motion was granted as to the aggravated robbery charge, but not as to the murder charge. Appellant rested without putting on evidence. The jury was instructed on the law of parties and on accomplice testimony. After two hours’ deliberation, the jury returned a guilty verdict.

Appellant brings 17 points of error.1 In points of error one through three, appellant contends the evidence is insufficient to support the verdict finding him guilty of murder.

The standard of review for sufficiency of the evidence in criminal cases is whether, when viewing the evidence in the light most favorable to the verdict, 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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The entire body of evidence is reviewed to determine whether the State has proven beyond a reasonable doubt each and every element of the alleged crime and not just a plausible explanation of the crime. Butler v. State, 769 S.W.2d 234, 239 (Tex.Crim.App.1989).

The State’s complete case against appellant was based on the accomplice witness testimony of Ritchey and on appellant’s statements to police and the grand jury. Appellant did not testify during the guilt-innoncence phase. Because an accomplice is one who participated in the crime for which the defendant is being tried, accomplice testimony is deemed to be corrupt and looked upon with suspicion. Virts v. State, 739 S.W.2d 25, 27 (Tex.Crim.App.1987). Article 38.14 of the Code of Criminal Procedure states:

[85]*85A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.

Tex.Code Ceim.P.Ann. art. 38.14 (Vernon 1979).

This rule prevents the State from basing a prosecution solely upon the word of a confederate of the defendant, without some other independent evidence. The test to determine whether accomplice witness testimony has been sufficiently corroborated is to eliminate the accomplice witness testimony from consideration and examine the remaining evidence to ascertain whether it independently tends to connect the appellant to the commission of the offense. Jackson v. State, 745 S.W.2d 4, 11 (Tex.Crim.App.1988) (en banc); Reed v. State, 744 S.W.2d 112, 125 (Tex.Crim.App.1988) (en banc) (overruling cases indicating the standard is that the “accomplice witness testimony is more likely than not”). All the facts and circumstances in evidence may be looked to as furnishing the corroboration necessary, and the corroborative evidence does not have to directly link the appellant to the offense or be sufficient by itself to establish guilt. Id. at 126; Blackmon v. State, 786 S.W.2d 467, 473 (Tex.App.—Houston [1st Dist.] 1990, pet. ref’d). Evidence that is independent of accomplice witness testimony which tends to connect the appellant with the crime is sufficient to corroborate the testimony and sustain a conviction. Paulus v. State, 633 S.W.2d 827, 845 (Tex.Crim.App.1982).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cameron J. Moore v. the State of Texas
Court of Appeals of Texas, 2024
Larry Dale King v. the State of Texas
Court of Appeals of Texas, 2024
Hammett, Jack Joseph v. State
Court of Appeals of Texas, 2005
in Re Alton Charles Aitch
Court of Appeals of Texas, 2003
Jones v. State
902 S.W.2d 102 (Court of Appeals of Texas, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
812 S.W.2d 82, 1991 Tex. App. LEXIS 1548, 1991 WL 107107, Counsel Stack Legal Research, https://law.counselstack.com/opinion/custard-v-state-texapp-1991.