Fountain v. State

681 S.W.2d 858, 1984 Tex. App. LEXIS 4758
CourtCourt of Appeals of Texas
DecidedNovember 15, 1984
DocketNos. B14-83-446CR, C14-83-447CR
StatusPublished
Cited by2 cases

This text of 681 S.W.2d 858 (Fountain 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
Fountain v. State, 681 S.W.2d 858, 1984 Tex. App. LEXIS 4758 (Tex. Ct. App. 1984).

Opinions

OPINION

ROBERTSON, Justice.

Appellant was indicted for murder and attempted murder. Trial for both offenses was consolidated; the jury rejected his plea of not guilty and assessed punishment of forty years on the murder and fifteen years on the attempted murder. The issues on appeal are identical; the appeals [860]*860have, therefore, been consolidated. Appellant challenges the sufficiency of the evidence, the court’s charge, the admissibility of evidence of extraneous offenses and the admissibility of a note written by the injured person in the attempted murder case. We affirm.

In his first ground of error, appellant challenges the sufficiency of the evidence to sustain the conviction. This is a circumstantial evidence case. IjVe must review the evidence and determine whether, viewed in the light most favorable to the jury’s verdict, any rational trier of fact could have found the essential elements of a crime beyond a reasonable doubt. Hudson v. State, 675 S.W.2d 507 (Tex.Crim.App.1984). The apparent theory upon which this case was tried was that appellant intended to have his step-son killed in order to collect on a life insurance policy. Appellant did not testify and called only one witness in his behalf — an inmate in the Burleson County jail at the same time appellant and his co-defendant Douglas King-ery were confined. His testimony was in rebuttal to that of Jerry Redding, another jail inmate, who testified as a witness for the state concerning certain conversations between appellant and Kingery which he overheard. Except for possible conflicts in this testimony, there is no dispute in the evidence. In order to properly weigh the evidence, it is therefore necessary to detail all the facts and circumstances heard by the jury.

Appellant was the step-father of Russell Wayne Hodde, aged twenty-five and the complainant in the attempted murder case, Arthur Scott Hodde, aged twenty and John Hodde, aged seventeen. While the record is unclear as to the exact dates, the mother of the boys was divorced from her previous husband in 1978 and very soon thereafter she married appellant. In her divorce, Dorothy (the mother) received the home and some “40 or 50 acres” of land and was described as being in “very good financial condition.” Appellant was in the custom carpentry business. Dorothy “invested, underwrote” appellant’s business ventures and became “heavily in debt.” Testimony indicated she had sold all the land except 12 to 15 acres which was mortgaged. The financial condition of appellant and Dorothy was described as “very, very bad, critical”. Approximately three years before this offense, appellant and Dorothy had purchased life insurance on each of the three sons in the amount of $25,000 — each policy containing a double indemnity provision, with Dorothy as primary and appellant as secondary beneficiary. Appellant remarked to Russell on several occasions (the last being within the three week period prior to this offense) that he “better be careful, I’ve got that insurance.” (Appellant contended at trial — through cross-examination — these statements were made in jest. This was a fact for the jury to decide. We point it out only as another circumstance that “any rational trier of fact” could consider).

Approximately three weeks prior to the offense, appellant left Brenham, where he had been carpentering, because of no work. He went to Austin, taking with him two of his step-sons, Russell and Scott, and a friend of Russell’s, John David Howell (the deceased in the murder case). Scott returned to Brenham after about two weeks. To complete the work crew three additional employees were hired in Austin, one of whom was Douglas Kingery. Kingery, an ex-convict and living in a half-way house, was hired “about February 1” prior this offense on February 18. It appears King-ery was required to spend his nights at the halfway house, but appellant “went out” with him a couple of times when no one else was along.

On February 18, 1983 appellant set up plans whereby Kingery, Russell and Howell were to help him “make a drug deal.” Kingery, Russell and Howell were to precede appellant to the “Old River Bridge” on Highway 50 in Burleson County, where they would park and wait for appellant. Appellant was to follow by “about 45 minutes” and he would then make contact with a drug dealer. Appellant would then give them “further instructions about where he [861]*861wanted them to set up to meet the connection when he came to deliver the 10 pounds of marijuana.” When he arrived, they would “take the marijuana,” tie up the dealer, and “Kingery was supposed to be there for our protection.” Kingery would be armed with the 12 gauge shotgun which appellant had shortly before “instructed” Russell and Howell to purchase. They would then either divide the marijuana or sell it and divide the proceeds.

After work, “5:30 or so” Russell and Howell serviced the van, picked up Kingery at the halfway house and headed for the pre-arranged meeting place. When they arrived, they parked the van off the road and down the embankment where they waited for “an hour and a half, two hours” before they heard appellant’s “GMC four wheel drive Jimmy” approaching. They walked up the embankment toward the highway, with Kingery carrying the shotgun. Appellant, alone in the vfehicle, continued driving across the bridge a short distance where he turned around and in “a minute or so” came back. In the words of Russell: “He started to pull over and when he saw the three of us standing there he jerked the vehicle back on the road and took off as fast as the vehicle would allow.” The three of them then went back down to the van “going to get in the van and go see what was wrong or what the problem was.” Just as Russell was about to enter the van “Kingery started shooting.” The first shot hit Russell in the face “taking the gums and 10 or 12 teeth.” He heard two more shots as he “went down.” Fighting to regain consciousness, he saw Kingery “beating John David (Howell) with the shotgun as a club.” Russell “gained enough strength and ran,” using a half t-shirt he had on as a compression bandage to stop the bleeding. He observed Kingery “cross the road twice and go over the bridge looking for me.” Russell testified that he “started to flag down help, but didn’t do so because I was afraid Sandy (appellant) was still in the area and he’d kill me.” As a result, he found a haystack and spent the night in it. The next morning he returned to his van and found Howell, dead, where Kingery was beating on him. He then flagged down a “sergeant” and, being unable to talk, wrote two notes to the sergeant, who “had me follow him to a house close by where the sheriff and an ambulance was called.” The broken shotgun, identified by Russell as the one he and Howell purchased for appellant, was later found in a nearby field.

The jury heard additional evidence concerning the following:

1. This was not the first time appellant had set up the proposed marijuana transaction. In the approximately three weeks to a month they had been in Austin, appellant had gotten Russell and Howell to twice previously go to the same general area in the middle of the night for the ostensible purpose of robbing the dealer of his marijuana.

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Related

Scott v. State
163 So. 3d 389 (Court of Criminal Appeals of Alabama, 2012)
Jackson v. State
705 S.W.2d 227 (Court of Appeals of Texas, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
681 S.W.2d 858, 1984 Tex. App. LEXIS 4758, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fountain-v-state-texapp-1984.