Proctor v. State

871 S.W.2d 225, 1994 WL 16189556, 1994 Tex. App. LEXIS 222
CourtCourt of Appeals of Texas
DecidedFebruary 3, 1994
Docket11-88-149-CR
StatusPublished
Cited by14 cases

This text of 871 S.W.2d 225 (Proctor 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
Proctor v. State, 871 S.W.2d 225, 1994 WL 16189556, 1994 Tex. App. LEXIS 222 (Tex. Ct. App. 1994).

Opinions

OPINION

McCLOUD, Chief Justice.

On Remand

The jury convicted Aaron Dwayne Proctor of aggravated robbery and assessed punishment at confinement for life.1 This court reversed the conviction and dismissed the indictment on the grounds that the conviction was barred by the doctrine of double jeopardy. Proctor v. State, 806 S.W.2d 252 (Tex.App. — Eastland 1990). The Court of Criminal Appeals held that jeopardy had not att[228]*228ached,2 reversed this court’s judgment, and remanded the cause for consideration of appellant’s remaining points of error. Proctor v. State, 841 S.W.2d 1 (Tex.Cr.App.1992). Appellant has not filed a supplemental brief on remand. We have considered the remaining points. We overrule each and affirm the conviction.

There is no challenge to the sufficiency of the evidence. The record reflects that on the morning of January 29, 1982, appellant, appellant’s brother, and Jonathan L. Lemell,3 together with two other young black males, were observed in the parking lot in front of the W.K. Superette, a grocery store owned and operated by Wing K. Lew and his wife. W. Dee Prescott was working at the Fina station and had a “good view” of the front of the Superette. Prescott saw “five teenagers prancing up and down in front of the store ... [pjrancing around like they up to something.” The teenagers went into the store, stayed a short time, and then came out running. They ran down to a candy factory, and two of the teenagers went in. Prescott testified that the three who waited outside were “[IJooking around like they seared to death, scared somebody was after them.” The two came out of the candy factory, and Prescott saw all five get into an old black car and take “off like there was a fire behind them, like going to put out a fire or something.” Soon after, ambulances arrived, and Prescott learned that Mr. Lew had been shot.

John Werner owned the Dixie Hardware Company which was across the street from the Superette. He also saw the five young men in front of the store. About 15 minutes after he saw the men leave the store, he was told that Mr. Lew had been shot. Werner went inside the store and found Mrs. Lew cradling Mr. Lew. Mr. Lew was covered with blood, and “there was a huge puddle of blood on the floor.” Mr. Lew made “one gurgle or groan,” and then there were no other signs of life. Werner called the police and waited for the ambulances to arrive.

Wilbert Jacobs, Jr., went into the Super-ette at about 10:00 a.m. He noticed five “guys” in the parking lot. Jacobs quickly left the Superette when he could not find the brand of cigarettes he wanted. The “guys” were still in the parking lot. Jacobs recognized the “guys” because he had seen them before in the neighborhood. Two of the boys had “travel bags.” Jacobs went down to a liquor store and then passed back by the Superette. This time three of the boys were “giggling and laughing.” Two seemed “more serious.” Jacobs identified appellant and Le-mell as being the two who were “more serious.”

Gloria Windom was working at the Super-ette the morning of January 29. She was filling a cigarette rack when she heard “something ... it sounded like a shot.” When she turned around, Lemell had a pistol pointed in her face. His voice was “[l]oud and mean” when he told her: “Get down! Get down on that floor ... or I will shoot you! ... You better not open up your mouth or I will shoot you, I will kill you.” Windom believed him and did exactly what he said. When she opened the register as Lemell had told her to, “another one came in all over [her] back” reaching over to get the “money and stuff” from the cash register. Lemell told her: “Get up! Get back here!” He pushed her through a doorway “all over” Mr. Lew and into the cooler. Both Mrs. Lew and Windom were in the cooler crying and scared. Mrs. Lew opened the cooler door, and Windom saw “three of them going out [229]*229the front door.” Windom ran to the front door, locked it, and called for an ambulance and the police.

Dr. Aurelio A. Espinóla, Deputy Chief Medical Examiner for Harris County, conducted the autopsy on Mr. Lew. Dr. Espinó-la testified that Mr. Lew died as the result of a single gunshot wound to the right side of his forehead. Based on the gunpowder striplings and soot around the entry wound, Dr. Espinóla concluded that the gun was approximately three inches from Mr. Lew’s head when it was fired.

Early in the afternoon of January 29, appellant and Lemell were arrested at a house near the Superette. Appellant was lying on a bed in the rear bedroom with his back to the bedroom door when he was apprehended. After being admonished, both appellant and Lemell gave statements to the police. In his statement, appellant stated: “I turned back around to. face the Chinaman who was now standing up. I took the gun out of my back pocket and pointed it at him and fired.” Appellant also stated that the five of them divided the money and the food stamps and that they each got “thirty dollars in money and about three dollars worth of food stamps.” Lemell stated that, after “the Chi-naman” was shot, he pulled his gun and “told the [CJhinaman’s wife and the black lady not move.” Lemell further stated that: “We split the money and all five of us got an equal share. I got about $24.”

Appellant filed two motions to sever: one on the basis that Lemell’s confession was incriminating to him and the other that, because Lemell had a prior conviction, the cases should be severed pursuant to TEX. CODE CRIM.PRO.ANN. art. 36.09 (Vernon 1981) and that a joint trial would prejudice him. Both motions were denied. In his first point, appellant argues that the trial court erred because Article 36.09 required the cases to be severed and because of the prejudicial impact of a joint trial. We disagree.

The trial court addressed the motions to sever in pre-trial hearings on April 5, 1988, and May 13,1988. The only evidence offered by appellant was Defendant’s Exhibit No. 1 (a copy of a judgment convicting Lemell of unauthorized use of a motor vehicle and placing him on probation for two years) and Defendant’s Exhibit No. 2 (copies of the motion and petition for the juvenile court to waive its jurisdiction over appellant and a copy of the court’s order waiving its jurisdiction and transferring appellant to the criminal district court). The State offered to stipulate that it would not introduce or attempt to elicit any evidence about Lemell’s previous convictions at the guilt/innocence stage. Appellant did not accept the stipulation. The record does not reflect whether appellant had any prior convictions.

The defendant seeking a severance has the burden of timely filing a motion and offering evidence to support his allegations. Article 36.09; Robinson v. State, 449 S.W.2d 239 (Tex.Cr.App.1969). Appellant did not offer evidence that, while Lemell had an admissible prior conviction, he did not and, therefore, that he was entitled to a mandatory severance. Barrientes v. State, 752 S.W.2d 524 (Tex.Cr.App.1987); Saunders v. State, 572 S.W.2d 944 (Tex.Cr.App.1978); Ransonnette v. State, 522 S.W.2d 509 (Tex.Cr.App.1975); Robinson v. State, supra. There was no evidence offered to support appellant’s argument that a joint trial would be prejudicial. Robinson v. State, supra.

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

Related

Darrel Demont Farrar v. State of Texas
95 S.W.3d 648 (Court of Appeals of Texas, 2002)
Proctor v. State
967 S.W.2d 840 (Court of Criminal Appeals of Texas, 1998)
Wilson v. State
948 S.W.2d 21 (Court of Appeals of Texas, 1997)
Derrick Darnell Posey v. State
Court of Appeals of Texas, 1996
Maglothin v. State
924 S.W.2d 468 (Court of Appeals of Arkansas, 1996)
Finley v. State
917 S.W.2d 122 (Court of Appeals of Texas, 1996)
Lawrence Edward Finley v. State
Court of Appeals of Texas, 1996
Tidrow v. State
916 S.W.2d 623 (Court of Appeals of Texas, 1996)
Anthony Hurst v. State
Court of Appeals of Texas, 1995

Cite This Page — Counsel Stack

Bluebook (online)
871 S.W.2d 225, 1994 WL 16189556, 1994 Tex. App. LEXIS 222, Counsel Stack Legal Research, https://law.counselstack.com/opinion/proctor-v-state-texapp-1994.