McKay v. State

707 S.W.2d 23, 1985 Tex. Crim. App. LEXIS 1475
CourtCourt of Criminal Appeals of Texas
DecidedOctober 2, 1985
Docket69049
StatusPublished
Cited by356 cases

This text of 707 S.W.2d 23 (McKay v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McKay v. State, 707 S.W.2d 23, 1985 Tex. Crim. App. LEXIS 1475 (Tex. 1985).

Opinions

OPINION

MILLER, Judge.

This is an appeal taken from a conviction of capital murder. Y.T.C.A. Penal Code, § 19.03(a)(2). The death penalty was imposed after the jury answered affirmatively the special issues submitted under Art. 37.071, V.A.C.C.P. Appellant brings twenty grounds of error before this Court. We affirm the conviction.

Although appellant does not challenge the sufficiency of the evidence to support the conviction, a brief recitation of the facts will be of assistance in our resolution of his grounds of error.

In 1978 appellant met Kevin Long, subsequently a key State’s witness against appellant. They worked and lived together for several years, and in 1981 moved to Dallas where the events leading to appellant’s trial and conviction occurred.

In February, 1982, Long obtained a .32 revolver and a .380 automatic pistol, which he gave to appellant with the understanding that they would “do a robbery.” During the last week of February, 1982, appellant suggested to Long that they rob some pharmacies together. Appellant suggested that they use Long’s truck, since it had no license plate. When Long did not agree to the use of his truck, appellant told him that he would go to a parking lot and find a nice car, hijack the driver, and “not leave any witnesses.”

On Thursday, March 4, 1982, the deceased, Bobby Hill, left his home to take a set of car keys to his girlfriend, who had lost her keys at the Rox-Z Club. Hill drove his father’s 1980 tan over navy blue Chrysler Cordoba to the club.

When deceased was stopped in the parking lot, appellant walked to the car, circled it, knocked on the driver’s window and told the deceased that he needed a ride. After refusing to give appellant a ride, Hill escorted his girlfriend to her car. She then saw appellant approach Hill. Hill looked down in the direction of appellant’s hands and then backed up to his car, got in, and slid over to the passenger’s seat. Appellant got into the driver’s seat and the two of them drove away.

On Friday, March 5, 1982, at about 7:00 a.m., a carpenter discovered Hill’s body in a field in Las Colinas, a subdivision in Irving just outside of Dallas. Hill’s hands had been tied with telephone cord. He had been shot four times in the head.

Also on March 4, at approximately 3:30 p.m., Long was arrested by the police of University Park, a suburb of Dallas, for the delivery of cocaine. Long was incarcerated in the University Park Police Department Jail.

At about 8:00 a.m. March 5, appellant arrived at the University Park Police Department Jail to visit Kevin Long. An officer at the jail asked appellant for identification before permitting him inside. Appellant left to get his driver’s license, which he said was in his car. The officer saw appellant in the parking lot standing next to a tan over blue Chrysler. Appellant said he could not find his license, but was permitted inside to visit Long.

Appellant told Long that he had obtained a car, abducted a man from the Rox-Z Club, tied him with telephone cord, and shot him six times in the back of the head. Appellant stated that he had waited until the blood stopped squirting out of the back of the deceased’s head before leaving.

When appellant left the jail, Long asked to talk to Officer Holman. As a result of the conversation, Holman called several police departments in the area. The Irving Police Department sent investigators to interview Long about appellant’s statements. [28]*28An arrest warrant was then issued for appellant’s arrest.

On March 5, at 11:15 p.m., William Mot-teram, a manager of a Pizza Hut, was robbed at gunpoint by appellant who drove off in a late model “dark with light top” Chrysler Cordoba. The gun recovered from appellant after his arrest was identified by Motteram as one that looked similar to the gun used in the robbery.

On March 6, 1982, at about 2:30 a.m., appellant was arrested as he pulled out of the Rox-Z parking lot driving a tan over blue Chrysler. A search of the car revealed two weapons and three letters belonging to appellant.

On March 7, 1982, appellant was identified at a photographic lineup conducted at the Irving Police Department as the person who left the club with Bobby Hill. Hill’s girlfriend made the identification.

In ground of error number nineteen, appellant contends that the trial court committed reversible error in excusing for cause venireperson Dorothy Jones, in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and consequently denying appellant his right to an impartial jury.

The record of the voir dire examination of prospective juror Jones reflects:

“Q. ... How do you personally feel about the death penalty?
“A. I understand that only God is the giver and taker of life. I do not believe that human beings should take life, and I could not honestly, you know live with myself—
“Q. Okay.
“A. —if I were a part of that type of situation. Those are my convictions. And that’s the truth.
* * * * * *
“Q. ... I gather from what you’re saying that you just simply feel that taking one life does not justify someone else taking a life.
“A. I do not.
“Q. And God is the only person who—
“A. God, to me—
“Q. —is justified in taking somebody’s—
“A. —is the one that is the giver of life—
“Q. All right.
“A. —and He is the one that takes life.
“Q. Right.
“A. Is the way I believe and feel.
“Q. That’s just fine, Mrs. Jones. Like I said, other people have expressed the very same point of view that you have. And I gather that this is a feeling that you have — well, this is obviously a very strong religious feeling that you have.
“A. Uh-huh.
******
“Q. All right. I gather, from what you are saying, that there is no way and there are no facts or circumstances that could ever allow you to actually sit on a jury and make any decision that would result in a verdict that would cause the death of anybody. Is that correct?
“A. Yes.
“Q. All right. Did I confuse you there?
“A. No.
“Q. In other words, there’s just no way you could ever serve on this jury or any other jury and vote in such a way that would result in somebody getting the death penalty?
“A. That’s correct.
******
“Q. And for that reason, you could never serve on a jury and make a decision that would actually result in somebody dying?
“A. Right.
“Q. Just no way?
“A. Right.
******
“Q. ... Now, Mrs.

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Bluebook (online)
707 S.W.2d 23, 1985 Tex. Crim. App. LEXIS 1475, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mckay-v-state-texcrimapp-1985.