McKee v. State

785 S.W.2d 921, 1990 Tex. App. LEXIS 795, 1990 WL 39502
CourtCourt of Appeals of Texas
DecidedFebruary 28, 1990
DocketNo. 04-89-00121-CR
StatusPublished
Cited by2 cases

This text of 785 S.W.2d 921 (McKee 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
McKee v. State, 785 S.W.2d 921, 1990 Tex. App. LEXIS 795, 1990 WL 39502 (Tex. Ct. App. 1990).

Opinions

OPINION

BUTTS, Justice.

This is an appeal from a conviction for murder. The jury found appellant guilty and assessed punishment at life imprisonment and a fine of $5,000.00.

Appellant advances two points of error. We overrule both arguments: that the evidence is insufficient to support the conviction and that the trial court erred by not submitting a charge to the jury on the theory of self defense.

At the guilt/innocence phase of trial there was testimony from several law enforcement officers. Bandera County Deputy Sheriff Milton W. Kaiser, Jr. testified that about 7:00 p.m. on August 21,1988, he was actively seeking a reported suspicious vehicle, a 1978 burgundy Chrysler Cordova. He was in his patrol car south of Medina on Hwy. 16, when he saw the wanted automobile on FM Rd. 2107. Kaiser immediately notified fellow Deputy Sheriff Joe Rodriguez II. Kaiser arrived after Rodriguez had stopped the Chrysler and had appellant at the rear of that car.

The lawmen had been looking for two men in the Chrysler since Rodriguez had been advised by a local citizen, Tommy Adams, that two suspicious persons in that car were asking directions to a certain ranch, the Lloyd Ranch. Adams reported the make of the car and that it had Oklahoma license tags. Because Rodriguez smelled alcohol on appellant, who was alone in the vehicle, he asked appellant to step out of the car. He then determined that appellant’s driver’s license from Alabama had been suspended.

When Kaiser arrived, he asked appellant “where his friend was.” He testified that appellant told him Wright had gotten out of the car and run. Kaiser looked into the automobile, where he saw the butt of a gun sticking out from a towel on the passenger side of the front seat. He retrieved the five shot revolver and saw that all five cartridges were spent. It is undisputed that this was appellant’s gun and that appellant killed Gerald Wright.

Kaiser testified that many items were scattered about the automobile. Among those were a wallet and “a bunch of papers” belonging to the deceased, as well as money and items of clothing and shoes scattered about. Also found were a .22 caliber pistol in a box and a pocket notebook with appellant’s name on it. The notebook contained a sketch of a map showing the location of the Lloyd Ranch, the automobile being stopped about twelve to fifteen miles from the ranch. Appellant [923]*923was given his Miranda rights.1

According to Rodriguez, appellant told him that “Wright had jumped out of the vehicle and headed up toward the Lloyd Ranch to pick up the vehicle.” He said that later, however, appellant changed his statement and said appellant had fired the pistol (“fired some rounds”), that there had been a struggle between the two, and that Wright had tried to “rape” appellant. Rodriguez emphasized that appellant told him two different stories. The first was that Wright had gone to pick up a truck on the Lloyd Ranch which appellant was purchasing, and presumably was following on the road behind appellant. The second story was that Wright had tried to rape him and that he shot Wright. Based on the first version, a suspicious vehicle lookout for a tan Ford or pickup was dispatched to other officers.

Appellant subsequently told Rodriguez that Wright was driving the Chrysler when suddenly Wright “grabbed” appellant’s penis. The car had come to a near stop, he said, due to car trouble. Appellant, a 50-year-old man, was wearing only shorts with a .38 caliber gun in his back pocket and was barefooted. He said he left the barely moving car and ran. He said Wright chased him. Wright was barefooted but otherwise fully dressed. Appellant told the officer that Wright caught him, and they struggled. It was shown that Wright weighed only 135 pounds. Appellant then shot Wright five times. He told the officer he “jumped in the car and headed toward Medina.” Appellant told the officer he was going to stop and report the shooting after he got back to Bandera. It was shown that he would first travel through Medina before arriving at Band-era, which was several miles farther. In his first version, appellant told Rodriguez that it was Wright who first got out and ran from the car, and that the shots were fired at Wright as he ran.

James McMillan, an investigator with the Texas Narcotics Task Force, testified that three bullets were recovered from the body at the autopsy. There were five bullet wounds and two exits holes. The bullets and shells were introduced into evidence. McMillan said appellant related to him that it was Wright who jumped out of the car and ran. Appellant said he pursued Wright, and the two men got into a fight. Appellant told McMillan he pulled the pistol from the back pocket of his shorts, and while running away from the deceased, he shot over his shoulder. He then ran to the car and left the scene.

Dr. Tommy Brown from the Bexar County Medical Examiner’s Office testified that one bullet went straight across the midline of Wright’s back. “The gun barrel was placed against the back when it was fired.” He verified this shot in the back was a contact wound. Another bullet traveled up and angled; thus, he said, the deceased could have been on the ground when that bullet entered, or the shooter could have been lying down and shooting up. The same was true of the next bullet which also went upward and back. In none of appellant’s versions was he lying on the ground. It was the bullet which damaged the aorta that probably caused death. Two of the bullet wounds displayed little bleeding, indicating death had already occurred when the last two bullets entered.

Texas Ranger Joe Davis testified that appellant told him he met the deceased in Del Rio after appellant was released from jail. Appellant was arrested at the border check from Mexico because license tags on the 1984 Mercedes automobile he drove did not belong to it. It was shown that appellant drove a “friend’s” car without permission from South Carolina to Mexico after he had removed the original tags and replaced them with ones he stole. Appellant told Davis he met another inmate in jail and that the prisoner offered to sell him a pickup for $500.00. According to appellant, the vehicle was located on the Lloyd Ranch and he agreed to purchase it. Appellant told Davis that he met Wright at a [924]*924motel, and Wright agreed to drive appellant to the ranch to get the pickup. Davis determined that, in fact, the pickup did not exist.

Before Ranger Davis took a written statement from appellant, he and other officers, accompanied by appellant, attempted to locate the body of Wright. He said appellant reported he could not remember where the body was, and he led the officers all around the area. The Ranger said that appellant always led the searchers away from the body, which was not located for several days. It was a father and son who came upon it in an isolated placé at the north fork of the Medina River, face down in water.

Davis read the statement into evidence without objection. It outlined how appellant met the deceased and their coming to Bandera County. It stated they became lost after buying some gas and beer, and they asked Tommy Adams for directions. Wright was driving the Chrysler when they came to a dirt road. The statement continued:

All of a sudden Gerald went bazerk (sic) and started pulling his shoes and socks off. He was pulling things out of his pockets and throwing them in the car. He said he wanted my body or something like that and then grabbed my penis,

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Cite This Page — Counsel Stack

Bluebook (online)
785 S.W.2d 921, 1990 Tex. App. LEXIS 795, 1990 WL 39502, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mckee-v-state-texapp-1990.