Gilmore v. State

GILMORE, Ray Appellant, Vernon Texas, Appellee.

The STATE of

No. 07-81-0267-CR. Texas, Appeals

Court of

Amarillo.

Aug. 24, 1983.

Discretionary Review Refused

Jan. Sowder, Hurley,

Hurley, Magness & Hurley, Lubbock, appellant. for Daniel W. Montford, Atty., John B. T. Dist. Jim Darnell, Lubbock, Atty., ap- Dist. Asst. pellee. REYNOLDS, C.J.,

Before and COUN- BOYD, TISS and JJ.

BOYD, Justice. Ray brings Vernon Gilmore appeal from his of the of- conviction consequent fense of murder and the court punishment ninety-nine years assessed Department in the confinement Correc- tions. For the reasons hereinafter ex- pressed, judgment we reverse the of con- viction.

Appellant presents eight grounds of er- ground, ror for our review. his first argues refusing that the trial court erred grant his motion for instructed verdict acquittal because he contends the evi- support dence was insufficient con- asserts, ground viction. He in his second error, trial in failing court erred grant motion suppress certain police items taken from a motel room authority without of a search warrant since, contends, the State failed to show by convincing clear and evidence that he had consented to this search. In ground, appellant his third attacks the Arguing lawfulness of his arrest. unlawful, arrest was he attacks the trial permit court’s to decision the introduction of subsequent evidence obtained to the ar- grounds rest on the that the evidence was a illegal fruit of Ap- an arrest and search. ground pellant’s fourth concerns the trial court’s decision to admit into evidence cer- tain newspaper accounts which were found appellant’s in Seattle motel room. He ar- gues impermissi- that the articles contained hearsay that their ble introduction vio- right lated his constitutional of confronta- tion. He further contends that these arti- highly prejudicial cles were his to case and thereby he was a fair denied trial. ground error, In his fifth of he asserts refusing the trial court erred in testimony his to admit evidence and grant motions mistrial after the certain testimony of- After we have resolved elicited of extraneous into record. State error, evidentiary grounds of Bryan appellant’s from Sue and wit- fenses witness sufficiency appellant’s ar- will of Appellant ness Willis Frankenfield. we discuss Finally, ground his of error. we ground of error that the evidence gues sixth ground appellant’s eighth consider of admitting court erred in into evidence will trial objected body to the court’s samples blood taken from the error which certain the law alleged- jury decision to instruct on of of the deceased because there was custody parties. a material in the chain of ly break samples. the blood

of argues, ground in his third of error, permit- court erred in ground error at- that the trial Appellant’s seventh of testimony permit ting introduce the State to tacks the trial court’s decision allegedly fruits of an Joyce testify Tom at the trial. exhibits that were witness illegal trial erred in He contends that State’s He reasons that court arrest. and, there- of arrest was defective permitting Joyce testify because warrant fore, Joyce plead all seized and all statements knew that would evidence court illegal allegedly questions on made as result Fifth Amendment relevant been excluded. would want to ask him. arrest should have action, contends, trial court’s note that all evidence initially We Fi- him right denied confrontation. his as result of an obtained the State error, ground nally, eighth his illegal accused’s arrest inadmissible at appellant alleges that the trial court erred subsequent Wong trial. Sun United parties instructing jury the law 407, 471, States, 83 S.Ct. 371 U.S. there was no evidence to raise the because (1963). exclusionary “The L.Ed.2d 441 parties. issue of any of a consti applies to ‘fruits’ sanction A brief of the facts of this discussion such evidence tutional violation—whether 1980, reveals that on November case tangible, physical actually material be search, discover- body of Richard Grier Luster was illegal in an items observed seized pit in a caliche east of Lubbock. Luster ed words the course or overheard died as result of bullet activity, wounds or or state unlawful confessions chest, range. during fired close head and both at an ments of the accused obtained Luster died illegal The coroner estimated that and detention.” United arrest 463, 470, Crews, Novem- the afternoon of 445 U.S. sometime between States (1980). No- early morning 63 L.Ed.2d 537 and the S.Ct. ber evidentiary conse had been what Appellant, who order determine vember from quences 4th follow company in the of Luster on November must arrest, or first determine whether 5th, Cus- we must United States or arrested lawful. 19, at not the arrest was agents December 1980 a toms on Blaine, Washington. station in border question deciding in As a threshold extradition, Waiving returned detention, appellant’s we of the lawfulness on December 1980 to stand to Texas placed when he was must first determine Luster. On trial for the murder of Richard when person “A is arrested under arrest. 6, 1981, guilty jury a August returned placed under restraint actually has been against appellant, giving rise to verdict per custody by an or taken officer or into portions appeal. pertinent this Additional warrant.” arresting without a son ... in of the evidence will be referred (Vernon 15.22 Tex.Code Crim.Pro.Ann. art. which ground of error to discussion 1977). one necessary It not that be is facts relate. those there to be brought prison order for a occurred, has within requires an arrest. An arrest logical continuity think that We 15.22, per meaning of er- of Article when appellant’s grounds first we address restricted or liberty of movement is the trial court’s decisions son’s ror which attack

143 State, defec- 606 cedes that the arrest warrant was restrained. Brewster v. S.W.2d Here, believe, (Tex.Cr.App.1980). tive, essentially 325 we it was similar since liberty appellant’s constitutionally of was initial- movement defective Green one held ly when he held U.S. restricted was 615 700 S.W.2d defective, Customs Service. if was Since warrant was its lawfulness must be arrest lawful Terry Neeley of the U.S. Officer grounds. on some based other on Customs Service testified he was duty United at the States-Canada border Supreme United Court has The States Blaine, Washington car station in when a is is- that where an arrest warrant stated ap containing and two females showing proba- sued a sufficient without proached way its from Canada. When cause, any subsequent made in ble arrest themselves, identify asked to on this is con- substantial reliance warrant gave Neeley birth Officer certificate Warden, stitutionally Whiteley invalid. which had name of Thomas William U.S. S.Ct. L.Ed.2d Neeley Gilmore on it. Officer then if asked (1971). ques- Whiteley, warrant appellant’s at could look wallet in order upon an tion was based affidavit deficient Neeley proof could see additional same as the manner affidavit receiving After identification. based, instant warrant was appellant, the wallet from took officer is, any proof the affidavit did contain out the driver’s license contained in the corroborating and no tip the informant’s wallet and noticed that the license informant’s-reliability. indicia appellant’s pic name Vernon Gilmore and there warrant but Court held the defective explain ture on it. When asked to prob- proceeded then to determine whether discrepancy between the name on the birth apart cause existed for the arrest able certificate and the name on the driver’s It from the warrant. then concluded that license, appellant Neeley told that the birth probable no such cause existed. certificate his was brother’s and that he holding because brother “loses Whiteley We do not believe stands Appellant his.” Neeley indicated to proposition per that an is se for the arrest his actual was in birth certificate the wallet if defective. unlawful the arrest warrant is removed birth certificate for Nee- Instead, think, teaching we its that an is ley’s inspection. Neeley then appel asked lawful, may indeed arrest be notwithstand companions lant and his explain why warrant, ing indepen arrest if the defective coming were from Canada. police activity prior dent to the arrest was presently answered that he was unem glean establish able to sufficient facts to ployed thinking moving that he probable gathered cause. The information just to Canada and the of them three police independent activity from must pro from Neeley returned lunch there. tend indicate is in the defendant ceeded to enter the identification he had process committing, previously or has received into the crime computer Service’s committed, a crime. We believe this rea report and received of an arrest warrant soning consistent with that of the Court against outstanding appellant for the mur Appeals of Criminal Green v. question point, Neeley der in here. thisAt (Tex.Cr.App.1980) 706-707 directed two officers of the Ser Customs (Tex. Wood appellant weapons vice to search he Therefore, Cr.App.1978). since arrest custody. was then taken into We believe defective, warrant the instant case was appellant’s that at arrest was effectuated only consequent we that can conclude point in time. appellant’s arrest did not violate fourth next rights We must determine what effect the amendment if there sufficient were arrest had on appellant’s police prior warrant detention facts known to the the time by the Customs Service. The State con- of arrest would tend to indicate

144 appellant police that the had Richard told did not murdered know appellant Luster. where was. police 6.The Lubbock were unable to by proba Probable cause is shown appellant’s discover whereabouts un- bilities, certainties, and thus probable Blaine, til the time he was arrested in cause an arrest exist for even when Washington. the evidence from which conclusion required drawn is less than that for convic essence, the Lubbock authorities had Further, cause probable tion. must be appellant’s discovered at the time of arrest personal observations of based posses- had had in his arresting upon reasonably officers or sion, murder, only days prior 10 to the trustworthy supplied information to them very gun kill same which was used to by personal others. These observations or They appel- deceased. further knew that reasonably trustworthy must information lant dropped sight had from and that he sufficient to a man of reasona be convince visiting had his stopped mother and broth- believing caution in that an offense ble had er. been committed the individual to be The United States Customs officials were States, Brinegar arrested. v. United 338 appellant prior able to to his ar- observe 160, 1302, 69 93 L.Ed. 1879 U.S. S.Ct. rest. him as They first encountered (1949). See States v. Avila- also United attempting was to drive across the border (5th Cir.1980). Dominguez, 1266 610 F.2d above, ap- explained from As we Canada. Our examination of the record reveals that pellant gave the officer his first brother’s following had the State relevant facts ap- birth the officer asked certificate when possession in its the time of at the arrest: pellant over birth certifi- to hand his own body 1. The deceased’s found Next, cate. when the officer discovered 7, evening the late of November 1980 identity inspecting appellant’s true his Lubbock, pit a caliche near Texas. license, offered the driver’s An autopsy 2. indicated that the de- explanation carrying that he was his broth- ceased a result of had died as a bullet er’s birth certificate because his brother wound the head and a bullet his loses his. then retrieved own chest, both wound shots hav- birth certificate from his wallet and handed ing range. been at close fired essence, the offi- it over. In U.S. Customs coroner estimated death oc- knew, arrest, prior appel- cers to the curred sometime between the after- lant Canada and just traveled from 5, noon of 1980 November attempting to reenter United early morning November 6. acting him They States. had also observed 3. A bullet from a had been removed manner when suspicious and unusual apartment wall was asked for identification. mother, Lea Gilmore. Mrs. Gil- Oma police more told the Lubbock investi- mini has at least When there been gators had accidental- officers, police mal various contact between ly gun apartment fired in her col probable may emanate from the cause October though knowledge police, lective experts 4. Ballistics determined arresting performs officer the act of who chest bullet fired into deceased’s may be far less informed. United States and the shot into Mrs. Gil- bullet (D.C.Cir.1978), Hawkins, F.2d 751 more’s both fired from the wall were denied, cert. 441 U.S. 99 S.Ct. gun. same 380; Agostino, L.Ed.2d United States v. (5th Cir.1980); questioned 608 F.2d 1035 United States police 5. The Lubbock (6th Cir.1979), Gilmore, Killebrew, Timothy 594 F.2d 1103 Mrs. Gilmore and appellant. denied, cert. S.Ct. the brother of the Both U.S. Timothy 302; 529 F.2d Wolff, Mrs. Gilmore and Gilmore L.Ed.2d Brewer v.

145 (8th Cir.1976). Dorsey State, Appeals directly See also addressed this has never issue, 646 (Tex.App. approval holding S.W.2d 640 Worth with it has cited —Fort 1983); Roper, Appeals United States v. 702 F.2d of the Court of United States 984, (11th Cir.1983); by 989 States v. of an state offi United lawfulness arrest “[t]he Burnette, (9th Cir.1983). by F.2d 1038 cers 698 is determined the law of state Here, place, subject there was minimal contact between where the arrest takes to the officers from the United States Cus federal constitutional standards.” War 707, (Tex.Cr. toms and Service Police Lubbock De rick v. 709 partment: App.1982), the two services connected quoting were United v. Fos- States by way Thus, sler, (5th computer. Cir.1979). of the crime to 597 F.2d 478 While the probable existed, determine whether cause Appeals Court of Criminal did not address precise presented here, we believe look question we to collective i.e. an knowledge Depart by officers, Lubbock Police ap arrest federal Court’s ment proach and the United Customs States Ser is consistent with of the Su preme vice. See in Williams Court’s Watson. And while the (Tex.Cr.App.1981); Supreme holding Colston v. Court’s is not Watson S.W.2d 10 strictly controlling on only us because applied by concerned the law that should be examining After collective federal appli courts and did not discuss knowledge, we conclude that there was suf courts, cability holding of its on state probable ficient cause justify the arrest. reasoning persuasive used therein is and which evidence indicated that applied should be us. law en When possessed weapon only murder arrest, forcement officers need to an make days murder, before the combined with the rely applica should be able to on the showing evidence stopped that he had see bility regulations of the rules "and of their ing his mother Lubbock after November jurisdiction worry own without having day 5th—the very just or prior a few hours applying special peculiar about killed, the time deceased jurisdiction. rules of another that he had traveled to Canada soon there after, and that providing case, trouble In the instant federal statutes do correct Agent Neeley identification to when govern the activities of the United States he crossed back into the United States on agents. agents Customs are Customs au- December 19th was satisfy sufficient to thorized to enforce the various customs probable requirement. § cause and, laws as stated 26 U.S.C. (1) firearms, carry execute serve finally Before we can whether resolve or warrants, search warrants and arrest lawful, not the arrest we must deter- subpoenas and serve and summonses mine there requisites whether were for a authority issued under the of the lawful other arrest than probable cause States, showing. United Since was arrested Blaine, United agents States Customs (2) make arrests without warrant for vio- Washington, we must whether decide Tex- any lations of law of the United as, Washington or United law deter- States relating drugs States to narcotic ... mines the lawfulness of the arrest. of marihuana ... where the violation is presence committed Supreme The United States Court person making the or arrest where has stated that in the absence a federal person grounds such has reasonable granting statute restricting or the authori person believe be ar- ty officers, of federal law enforcement rested commit- has committed or is law of the state where the arrest without a ting such violation. place warrant took its validity. determines § Watson, United U.S. States generally seq. See U.S.C. 1581 et n. However, 96 S.Ct. 826 n. 46 L.Ed.2d 598 there no statute autho- (1976). While our agents Texas Court of Criminal rizes persons the custom to arrest peace Texas

suspected violating of criminal laws. officers to make state warrantless authority make this warrant- they Specifically, If to arrests. the Court has never arrest, author- it must be derived from agents less determined whether U.S. Customs authorized, given jurisdiction are, to them ity peace the Texas are as officers i.e., place, the arrest took Wash- make arrests under Article to warrantless ington. 14.04. attempted

We note that neither side only In the Court the case in which of prove Washington the laws of criminal Appeals presented with the Criminal was during procedure the of the trial. course the problem, the resolved case on court contrary, proof In the of the it absence grounds narrow thus deferred resolu presumed that the is of another state is law presented tion of the issue here. San the same as that of Hall this state. (Tex.Cr.App. chez v. (Tex.Cr.App.1980). 619 S.W.2d 156 1979), cert. den. 444 U.S. S.Ct. shall, therefore, apply Texas law our We 62 L.Ed.2d the defendant was authority determination the the spotted driving high at a his automobile agents question. make the arrest speed by rate of United States Border two gave agents. agents Patrol chase but The defective, the arrest was Since warrant A were unable catch the defendant. few can if only the arrest itself be held lawful later, up agents minutes drove the the complied both with the constitutional and parked defendant’s which was automobile requirements ar- state for a warrantless on the side of the The defendant was road. Lowery v. 499 S.W.2d 160 rest. See checking front of under at the the car the re- The constitutional Noticing ap defendant hood. the above, quirement, explained as we is that peared intoxicated, agents detained the making proba- the officers the arrest have they defendant. When asked defend suspect cause to believe that the ble has permit search ant if he would them to an For the committed offense. reasons automobile, Thereupon, refused. above, expressed we believe Customs Department. agents contacted the Sheriff’s Thus, probable agents had such cause. arrive, waiting for sheriffs to While question which we now consider must is permitted to sit in agents the defendant complied or not the with whether officers keep that he could automobile order making ar- Texas law their warrantless opened, was warm. When car door rest. agent an he believed to smelled odor which provisions of the Texas Code of The marijuana. then arrested the agent be The govern Procedure which warrant- Criminal defendant. are 14.01-14.06. For less arrests Articles trial, subsequent At the the defendant case, purposes of this Article 14.04 is authority to make argued agents’ Article 14.04 the authori- relevant. details suspected was violations arrests limited ty peace officers to make a warrantless below, immigration laws and did not ex- of U.S. arrest. For reasons detailed we suspected of Texas crimi- tend to violations conclude United States Customs reasoned, complied Consequently, with law. since officers the Texas law and nal agent arrest lawful. arrest was because thus made suspected that had violated the defendant Ser While United States Customs law, beyond agent Texas acted his au- Agents peace are not be vice deemed to thority and thus the arrest unlawful. officers, power have given been Appeals held that arrest, Court Criminal felony of search seizure as to deciding arrest lawful. Without whether Texas. fenses under laws of Tex.Code agents (Vernon the United States Border Patrol Supp. art. Crim.Pro.Ann. 2.12 powers ar- 1982). Appeals the same to make warrantless The Court of Criminal has given Texas are peace indicated whether States Cus rests as officers never United authority 14.04, concluded agents have the under Article the Court toms same as justified this warrantless arrest was If probable exigent either cause or shown, under permits private Article 14.01 which escape then circumstance of peace citizens as well as officers to make the warrantless arrest is not authorized such arrests State, when the offense is committed under this article. v. Hardison presence. in their direct (Tex.Cr.App.1980). S.W.2d 355 See also State, (Tex. Grabow v. case, In the instant since the Cus 1983). App. Antonio —San agents alleged toms did not see the murder case, In the already instant we have de- themselves, their arrest could not have length tailed at some the information ob- been authorized Article 14.01. How tained from the initial police Lubbock inves- ever, “peace Article 14.04 authorizes offi tigation as well as the direct observations cers” to make warrantless arrests without agents made Customs being witnesses a to crime certain limit suspicious behavior at the border. We ed authority circumstances. No such think this sufficient requi- to establish the given private Therefore, citizens. unless probable site constitutional cause. agents the Customs be considered as “peace purview officers” within the of the In accordance with the strict Procedure, Code of Criminal would given exceptions construction allowing war- not have been authorized to make the ar arrests, rantless probable addition to rest. cause, the record clearly must show person escape. arrested was about to Article 2.12 peace defines who ais suspicions Inarticulate hunches and are not officer this state. Originally, this article enough justify Honeycutt arrest. v. did not include United States law enforce State, 499 662 (Tex.Cr.App.1973). ment officers within the definition of determination, In making this we must con “peace However, officers.” in 1977 the sider appellant’s suspicious the factors of statute was provide amended to that Cus behavior when requested identification was agents, toms although peace officers of agent’s as well as knowledge State, arrest, shall powers have “the addition, outstanding warrant. In we note search and seizure felony as to offenses was in a motor vehicle on a only under the laws of the State of Texas.” public street, a factor which may be con It is our view that this 1977 amendment in determining exigent sidered circumstanc was intended to and did confer the same State, es. See Hardison v. 597 S.W.2d 355 arrest, authority to search and seize on (Tex.Cr.App.1980). Considering the totali these federal officers as that already con circumstances, ty of the we believe a suffi peace ferred on Texas officers. showing exigent cient circumstances provides Art. peace 14.04 if was made. given officer has been satisfactory proof recognize We that the arrest war representation of a per credible in question proved rant later to be defec felony son that a has been committed and However, nothing tive. in the record indi escape, offender is about to so that agents cates the customs should have had procure warrant, there is no time to then any suspect and, reason to its invalidity he is authorized to make a warrantless notice, they absent such were entitled to essence, arrest. In the officer must have rely upon supposed validity. its See Col legal had the equivalent of constitutional State, ston v. (Tex.Cr.App. S.W.2d 10 probable suspect cause to believe that the 1974); Hooper v. 516 S.W.2d 941 has or is about to commit felony. Earley (Tex.Cr.App.1974). S.W.2d 528 The officer must also have had a reasona Since the require- arrest satisfied the suspect, ble belief that 14.04, was about to ments of art. and since we must escape and that pro there was no time presume Washington law to be the cure a warrant. Earley supra. Texas, same as that of we conclude that (1980). voluntary and The consent must be justified arrest under law of proving the the State has the burden of jurisdiction made. where of the consent. Florida voluntariness ground, appellant second ar his — -, 1319, 75 103 S.Ct. Royer, U.S. gues failing court erred in the trial (1983). The L.Ed.2d 229 voluntariness suppress seized grant motion items by clear and must be shown consent of his motel in a warrantless search Seattle convincing Bumpers v. North evidence. since, says, room the State failed Carolina, 391 U.S. 88 S.Ct. proving its his consent to meet burden of (1968). L.Ed.2d 797 Fourth the search. It is axiomatic government Amendment from forbids question or not of whether cit conducting unreasonable searches of its voluntary is fact that consent is one of However, protection an izens. to claim its court, in may initially by the be decided expecta individual show a reasonable must ruling admissibility ob on the of evidence by privacy has been tion of invaded search, ultimately by and the by tained the government action. United States jury. 414 679 Oliver v. S.W.2d See — Knotts, -, 1081, 103 75 U.S. S.Ct. re (Tex.Cr.App.1967). did not (1983). L.Ed.2d 55 quest of that the issue of the voluntariness and, jury his consent be submitted to the inquiry The into this ex reasonable therefore, pro the inquiry our is limited to pectation normally separate embraces two priety by the admission the court questions. first is whether the individ The evidence from the motel room. ual, conduct, by his has shown that “he preserve [something] private.” to as seeks judge the sole fact The trial is States, 347, 351, 389 Katz v. U.S. United suppress hearing finder on a to at a motion (1967). 507, 511, 19 L.Ed.2d 88 S.Ct. 576 and, such, in a as evidence search obtained The second whether individ question is the any may to believe or disbelieve choose subjective expectation of is privacy ual’s testimony. Taylor v. or all of a witness’ prepared recognize society “one that is to (Tex.Cr.App.1980). 175 ” as ‘reasonable.’ Id. at S.Ct. at 88 de in The trial court has broad discretion evidence admissibility of the termining the reverse appellate and court will not occupied A transiently room a is shown. abuse of discretion unless clear scope motel falls of the Fourth within (Tex.Cr. State, 535 Williams v. S.W.2d against unrea protections Amendment’s App.1976). explained be For the reasons seizure, sonable search and United States low, not court did we conclude trial 72 S.Ct. L.Ed. Jeffers, 342 U.S. by admitting the evi abuse its discretion (1951), appellant’s and conduct shut room. dence from motel taken leaving, etc., ting indicated his room sought keep the articles in his room to that, after his The record indicates indicates, expecta As private. Jeffers Service, appel detention the Customs privacy legitimate and reasonable. tion of is 22, 1980 lant on was interviewed December Therefore, think, police entry into we During the by agents Gately. Rockom amounted a search appellant’s room interview, wor appellant indicated he was purview of the Fourth Amend within safety in the property ried of his about ment. Agent testi motel room. Rockom Seattle appellant government fied told premise any war- that he

The basic that, goods his him and is that such a search is would secure rantless search case However, informed, wrote illegal. upon being one the well so per se agents recognized exceptions to this rule that a down for the convenience of hotel, address, the room to a name of the person consent warrantless Mendenhall, name he had 446 number and the under which search. United States registered Appellant testi- for the room. 64 L.Ed.2d 497 S.Ct. U.S. right that, accounts, violated his contrary, only given fied the trial court to the he had confrontation, by the sixth pick guaranteed his permission friend Amanda Witt items, Constitution. up agreed amendment to the U.S. Gately and that However, evidently this. trial court court, as out pointed trial we accepted testimony above, determining has broad discretion consent,to given police entry his in the admissibility of the evidence subsequent appropria- motel and the room appellate court will not reverse unless property. tion of his As the fact finder clear abuse of discretion is shown. Wil suppress, judge motion trial However, the supra. ad liams v. entitled to believe and disbelieve Rockom hearsay prejudicial mission of inadmissible appellant. purposes appeal, For the of this an would constitute abuse discretion we therefore assume must State, 614 reversible error. Elder v. See agreed entry agents to the his must We motel property. room secure his newspaper if the ac therefore determine counts introduced into evidence constituted

Appellant contends, and we hearsay. agree, giving permission that his to secure property equivalent of a “Hearsay” is evidence of a a full investigatory consent search. statement made out court is of However, testimony Sergeant the of purpose proving fered truth for the of the Plumb, and Schenffele Detective the offi State, of the statement. 631 Girard search, cers who conducted the is sufficient follows, (Tex.Cr.App.1982). S.W.2d It 162 the showing sustain State’s burden of course, hearsay of that the statement is not the scope search did not exceed the of purpose if it is offered for some other than appellant’s testimony, consent. Their evi for S.W.2d its truth. Arnott v. 498 dently accepted court, by the trial was that We conclude purpose the of entry into the was room question the in in newspaper articles this safeguard appellant’s valuables and that case were not admitted for the truth of the activities, entry, their after were limited to matter and thus their asserted admission gathering and packaging appellant’s be hearsay into evidence did not violate the longings. We therefore believe the evi rule. dence appellant’s obtained from mo Seattle newspaper police The articles which the

tel room not in was obtained violation of appellant’s found in room Seattle motel rights the constitutional and tri were from the Lubbock Avalanche-Journal al court its in did abuse discretion re they aspects of the and detailed several ceiving in these items evidence. Sut See investigation. A Luster murder November ton v. 422 (Tex.Cr.App. clipping contained a short refer- 1975). respect in Our conclusion appel- ence fact that warrant to the by reasoning reinforced the of the court in had lant’s arrest been issued the Justice Opperman, South U.S. Dakota being of the and that an award Peace (1976), 96 S.Ct. 49 L.Ed.2d 1000 since leading offered his ar- for information obligations responsibilities of the police rest. also a clipping The found from police analogous in this situation were edition November of the Ava- police inventory those of the in the situa a story lanche-Journal which ran under the opinion. in tions described “Gangland Slaying headline Seen in Death

Appellant argues, ground in his fourth 12 story Here.” This November described error, admitting great discovery that the trial court erred in in detail the of Luster’s newspaper body subsequent police investiga- accounts of murder investi- and the gation appellant’s objec- apparent into evidence over tion into his murder. The article newspaper tion these because accounts al- mentioned the Lubbock belief authorities’ hearsay legedly “may gang- constituted testi- have unsworn murder been a mony by admitting newspaper dispute land-style prompted by and that execution contends that large money.” amount of also

over The arti- $1,500 articles made the sensational tone cle noted that had further been question highly prejudicial articles police found the Lubbock in Luster’s limiting given was not instruction baggage, in his which he left behind cure error in sufficient to admission. Finally, hotel room. the article stated that compelled to this contention are With we police for a were the lookout white agree. woman, BO’s, early man and both their who, believed, may have fled question are Several of the articles “ The Lubbock area Luster’s automobile. ‘Gangland’ Slaying Seen in headlined clippings police also found from the No- Here.” There are numerous refer Death 15 and 16 editions of Ava- vember killing may ences to statements lanche-Journal, detailing aspects all “big money” have involved and that story. The describ- Luster murder stories “strongly gang classic murder resembles past

ed Luster’s involvement with land-style newspaper ar executions.” Davidson, including po- and Samantha dramatic, many speculative ticles contained ap- discovery snapshots lice’s of several conclusionary fact statements of Luster. pellant, Davidson and testified to in the trial. After no witness while, only deliberating jury a short in his Appellant is correct contention that requested only newspaper articles and hearsay they if the articles would be photographs jury be sent into the room and been admitted show the truth of receiving shortly returned a verdict after However, assertations contained therein. requested. exception items Given Appeals as the Court of Criminal stated admitted, the arti under which were (Tex.Cr. Beltran v. 593 S.W.2d 688 cles, reliability compe proof devoid of or App.1980): source, tency prejudicial in vio were so writing may extrajudicial An be admitted right lating appellant’s Amendment Sixth an as circumstantial evidence from which and his Fourteenth to confrontation drawn, may be and not the inference for right cross-examination that Amendment to therein, stated truth the matter with- any probative prejudice outweighed the val hearsay violating the rule. out they their ue otherwise had. We believe in fact that had the articles The require so harmful as to admission to be in motel possession his Seattle room his State, compare v. reversal. See and Porter appellant knew about would indicate that (Tex.Cr.App.1979); 578 S.W.2d 742 Oliver story. in the was interested murder and State, (Tex.Cr.App.1977); 551 S.W.2d 346 v. in the His interest case constituted some (Tex.Cr. State, 355 509 S.W.2d Gamble v. may he have probative been evidence State, 481 S.W.2d App.1974); Barber v. responsible Kuyk for Luster’s death. See State, v. (Tex.Cr.App.1972); Brooks 812 (Tex.Cr. State, S.W.2d 791 endall v. (Tex.Cr.App.1972). 475 S.W.2d Moreover, the trial court ex App.1980). appellant claims ground, er- In his fifth jury only the pressly instructed the to grant trial court in the failure of the ror might they consider the purpose for which the after State motions for mistrial his as evidence of what was found articles was testimony of extraneous allegedly “elicited police in motel room and by the Bryan the Sue offenses from witnesses’ consider the articles should not Willis Frankenfield. and the of the matters asserted there truth ground, In consideration of this the articles were received for a in. Since in the initially that both instances than for the truth of the we note purpose other objections to the judge promptly and in view the sustained matter asserted therein proffered testimony jury the by court and instructed limiting given instruction disregard questioned references. receipt, receipt their did to their we conclude improper Generally, asking in an hearsay a an error constitute violation of not admitting improper testimo- question or rule. ny may by improper references be cured or rendered harmless sufficient to constitute testimony offenses, withdrawal of such and an in- to we do not believe it extraneous disregard except struction to same highly prejudicial to be so trial appears extreme cases where it disregard prompt court’s instruction to clearly evidence is calculated to inflame not or render harmless sufficient cure jury minds of the of such and is character ground fifth Appellant’s the error. er- as suggest impossibility of with- ror is overruled. drawing impression produced on their error, ground sixth Appellant, his State, minds. Davis 645 S.W.2d 818 argues error in the admission evidence into (Tex.Cr.App.1983). Specifically, testimony allegedly of two vials of blood taken from referring or implying of- extraneous body vice, of the deceased. The allegedly by fenses committed defendant reasons, is that it is reasonable inference by be rendered harmless an instruc- by that the blood was drawn one Robert disregard tion to ex- all but the most testify. Wenett who did not Without Wen- treme situations. Aliff contends, testimony, ett’s is noth- there (Tex.Cr.App.1982); Thompson ing to show the blood was in fact drawn body from the of the deceased. We do not Bryan When Sue was called as a agree. witness, presence jury, outside of the by Dr. John P. Ray, assisted Robert hearing court conducted a as Wenett, performed autopsy an on Novem- admissibility testimony concerning her Ray initially ber Dr. testified that appellant’s attempted of a card use credit identity body he did not know the of the belonging one Charles Norris. As a body but he later learned the that of result of hearing, Court instructed the deceased Richard Luster. He identi- the State testimony concerning elicit pictures body upon fied which the the name “Norris.” After return of the performed. body in autopsy was these jury during and examination pictures readily identifiable as the same Bryan that, Ms. testified because body pictures as identified companion acting strangely, were father, Luster, Herbert deceased’s Richard she took their car license She number. by Deputy Sheriffs Bohannon Gas testified, further under questioning by the being as that of Richard Luster. The evi- State, as follows: Ray dence is sufficient Dr. to establish that Q. they say And did they say did —what performed autopsy on Richard Luster’s regard gardenias, with you when body. produce couldn’t them? Well, A. they since couldn’t use their A physician testify can as to using, they card were didn’t— by person results of a test another point, At interrupted this she was by supervision where the test his was under or objection sustained, which was and the State, control. Caballero questioned given. instruction (Tex.Cr.App.1979),appeal after remand 714 (Tex.Cr.App.1980). S.W.2d Dr. Frankenfield, Willis was who a car rental Ray questioned during was cross-examina agency operator, testified that he had rent- autopsy and, tion about the details of the appellant. ed a van to When asked prosecution, “well, during exchange, this he was asked who you did ever find that van,” precisely sir, I drew the blood from the de replied, got “No never that body: one testimony, appellant back.” This ar- ceased’s gues, implied that appellant had stolen Q. you ... Can tell me who drew this Appellant’s attorney duly van. object- body? from the blood victim’s testimony. ed to this Well, blood, A. when we drew the I am arguendo it,

Assuming Bryan going say qualifica- that I drew with this testimony question assistant, autopsy Frankenfield was I tion: have an Robert Wenett, helps Now, (Tex.Cr.App.1981). me. who one of us holding would have been the heart while also 626 S.W.2d 781 See Hinton blood, Moreover, the other drew the or vice-ver- there (Tex.Cr.App.1982). one was sa. the blood sam- suggesting no evidence that tampered misplaced with or after ple was it Q. Okay. sight. Dr. Ray’s Ray left Dr. Given that get A. But not to him in order have to identify readily could the vial down, say I I to come will I drew it. was suggesting any was there no evidence tam- right my hand on the heart. there with sample, pering with the we conclude that Well, Q. important this is kind of an properly admitting the trial acted court point here. samples the blood into evidence. See Jones A. I think in this I had instance 617 S.W.2d 704 syringe. Appellant’s ground sixth of error over- questioned When further about who actual- ruled. ly sample, Ray the blood Dr. withdrew error, ground appel- In his seventh continued: argues erred in lant trial court Well, A. one or the other of us drew it Joyce permitting witness Tom State’s time, together. at the same Joyce testify the court because knew Ray’s testimony Dr. reveals that while he plead the Fifth Amendment on rele- would personally not have withdrawn the questions vant would blood, clearly directly in and participated want to ask him. contends that supervised procedure. over entire Joyce permit trial court’s decision to therefore, There is no question, that Dr. testify, Joyce’s plead despite intention Ray testify can about the withdrawal of Amendment, the Fifth denied his autop- from during blood the deceased right of confrontation. sy- sought Joyce The to call Tom as a State The from the de blood withdrawn Joyce’s testimony witness. concerned his glass placed ceased was vial which appellant, involvement with the deceased apparently labeled Mr. Wenett ini November 4 and Samantha Davidson on later, tially as “unknown” and Wen- when Apparently, Joyce been deceased, identity ett discovered the activities, involved various unlawful in- deliv as “Richard Luster.” Wenett then though he had cluding drug smuggling, Locke, Margaret ered the vial to the toxi Joyce prosecuted for these been activities. technician, cology analysis. for chemical he had en- prosecutor informed the Ray Dr. did not see Wenett deliver the drug operations with gaged ap- several essence, vials to Locke. prose- pellant. that he be Fearful could asserts that it was that Wenett conceivable activities, drug if he cuted admitted these up have with gotten could vials mixed prose- Joyce testify. reluctant However, ignores vials. the fact other prose- Joyce immunity from cutor offered Dr. Ray saw vial when was testify if cution he would about Lub- simply vial of labeled “unknown.” The County activities. The offer of immu- bock trial, fered as evidence at word however, nity, did not extend to his non- clearly legible. out “unknown” crossed but accepted County Joyce activities. Lubbock Thus, position in Ray readily Dr. was a to agreed testify to ap- this offer and about being identify the as the one he had vial pellant’s involvement with the deceased. during autopsy. observed the Appellant filed a motion in limine with portion The failure to this State’s show asking Joyce permit- the court be custody preclude not of the chain of does not essence, where, testify. to In admitting ted into evidence al- the vial that, agree- immunity claimed the though Ray actually Dr. did not under see Wenett Locke, ment, Joyce testify Margaret the he would be free to about take vial to was it, identify County but that readily able to Hackbarth v. his Lubbock activities

15 n bar, Joyce the case at likely any ques- Cr.App.1979). would In refuse to answer concerning County questioned at the trial about his tions his non-Lubbock was never activities, County The de asserting his Fifth Amendment activities. non-Lubbock right against obviously, object did to self-incrimination. counsel not fense argued question Joyce questions needed to answer Joyce’s refusal to con County about certain of his non-Lubbock Joyce since cerning these activities was Joyce’s in and activities order to show bias any them in questions never asked about against mo- animus and his place. Consequently, nothing the first was testifying. lengthy for tive After hear- Appellant’s preserved for review. seventh ing, extensively during Joyce was ground of error is overruled. questioned about his in unlaw- involvement second, Having disposed appellant’s of others, ful with and activities third, fourth, error, grounds and of seventh permit Joyce agreed trial court to to testi- logical continuity permits to rule now us on fy- error, of appellant’s ground first which at- prior Joyce time Immediately to the sufficiency tacks of the evidence to witness, prosecu- was to be called as a support the conviction. For the reasons approached the tor bench and informed below, explained we conclude that evi- judge planning object that he was if the to support dence was sufficient the convic- appellant’s questioned Joyce counsel about tion. any prior of part acts misconduct on the in Although the the in State Joyce prior because these acts of miscon- stant case relies evi circumstantial present- duct were irrelevant to the issues conviction, sustain dence to a review of appel- ed the case at bar and because light the evidence must be made most lant’s Joyce counsel knew that going jury’s Phipps to the favorable verdict. plead the Fifth Amendment on all non- State, (Tex.Cr.App. 944 S.W.2d County Lubbock Appellant’s activities. 1982). jury judge exclusive contention, initially counsel renewed his facts, witnesses, credibility made at hearing, the motion in limine weight testimony. to be afforded the question he needed to Joyce about these Vanderbilt v. S.W.2d activities order to show the motive (Tex.Cr.App.1981),cert. den. 456 U.S. his testimony. The court indicated it (1982). 72 L.Ed.2d 169 S.Ct. question- would decide whether permit ing objected into the to areas at the time Circumstantial evidence suffic brought up during matter was support only es if the infer conviction questioning. arising prove fact in ences therefrom Joyce questioned took the stand question beyond a reasonable doubt. The by prosecutor both totality jury should consider However, interroga- counsel. side neither direct or circumstantial evidence and the Joyce drug ted about various activities. inferences which be drawn reasonable Joyce Consequently, never asserted his therefrom, determining whether was right Fifth against Amendment self-incrim- guilt beyond a rea sufficient establish asked, ination and the court was never doubt. sonable Hankins during questioning, rule on ad- (Tex.Cr.App.1981)(opinion missibility Joyce’s testimony. rehearing). preserve Hankins, explicating

To error for rule in review court, appellate Appeals recently an the denial of a motion Court Criminal has Basham, limine is not sufficient. stated that circumstantial evidence should de 608 S.W.2d 677 A tested an be ultimate standard for ' object proper fendant grounds must on the different from that review of direct evi- when the evidence is offered at trial. dence but that the standard in both kinds 251, (Tex. Romo v. “any of cases should be whether rational purchased a Grier Luster 1. Richard essential trier fact could have found the- 25, on Buick Riviera October green 1976 beyond of the a reasonable elements crime Blanchard, Roy a Lubbock 654 S.W.2d 1980 from doubt.” Carlsen v. 63987, 62561, Luster, 07-82, 63863, slip op. accompanied by (Nos. used car dealer. woman, pick Tex.Cr.App., July opinion up on mo- to returned a blonde Hankins, it rehearing). Prior to tions for on 1980. car November repeatedly stated that a convic- been day, Luster drove to 2. Later that same evidence tion circumstantial based green airport in his Buick the Lubbock on review unless the could not be sustained Riviera, accompanied by Joyce Tom and every reasonable excluded circumstances Davidson, blonde Samantha a woman. except guilt hypothesis de- up appel- picked them The three of State, supra. In fendant. Vanderbilt in to just Lubbock lant who had flown believe, suggested Wilson, we the court from Austin. analysis applying for application of this Plym- a 1977 appellant 3. The borrowed evi- in circumstantial standard for review Gilmore, mother, Lea outh from his Oma light in the of this dence cases and it is evening of November teaching that we review the evidence late it her until the did not return to this case. 5, 1980. He drove evening of November analysis, proof morning of Novem- applying her on the to house work, suspi amounting strong 5th, no than a to her to but to more in order drive ber co-employee guilt not be sufficient to to a cion of would she decided ride with uphold her son permit appellate morning. court to told that Mrs. Gilmore State, supra. her to work didn’t have to drive conviction. Vanderbilt Nevertheless, had a necessary every morning already it not since she independently telephoned to the Mrs. Gil- point directly appellant fact ride. The guilt; enough if the con on November 5th p.m. it is more 5:30 defendant’s at about by the com be to guilt is warranted her that he would unable clusion and told to force all the in he had pick up bined and cumulative her at work because Further, airport. criminating Id. to the circumstances. take Samantha Davidson do not the rules of circumstantial evidence Mrs. Gil- appellant 4. returned The require exclude to a that the circumstances p.m. on Novem- car at about 10:00 more’s certainty every hypothesis that the moral Mrs. testified ber Gilmore may committed an have been offense told her at that time that hypothesis The defensive person. other great in a deal that Luster was believed one, consistent with must a reasonable be (Luster) that he due to a debt trouble circumstances, proved facts pay. Appellant indicated to was unable have premise that offense and the that cer- his that he believed to mother person by another must been committed get Luster persons trying were tain harmony with the evidence. out of be try to reach Luster and that would the scene of Finally, presence mere at Id. feared Claiming him. that he through support a con is not sufficient a crime told safety, own which, com viction, it is circumstance but Gilmore, to her according Mrs. testimo- facts, may other suffice show bined with leave ny, going he was Lubbock. participant. accused Ortiz see she did not Mrs. Gilmore stated that again after his arrest. until mind, principles is neces With these found, body in the late 5. Luster’s instant sary review evidence in the 7,1980, evening in a caliche of November case. Lubbock, pit Texas. near autopsy Mr. Lus- evidence, indicated that which the- 6. The State’s believe, ter died as a result of bullet wound be as jury could can summarized and a bullet wound to to the head follows: said chest, Appellant having both been fired at Motel in Lubbock. shots House at range. close The coroner estimated that Davidson that was with Samantha he death occurred sometime between the af- spotted. the that the car was When time ternoon November 1980 and the car, the appellant he to examine the went early morning of Both November 6. as a he inside as well said that saw blood hit on left shots Luster the side lodged post the the bullet center on body. right dug then the of the car. He side 7. A bullet had been removed from a it, post, bullet out the center discarded apartment by wall in Mrs. the Gilmore’s brought the car to a wash car where police. Lubbock Mrs. Gilmore told attempted he from to wash off the blood police investigators appellant that appellant the car’s interior. The ex- accidentally gun apart- fired in her a plained Deputy Gas that he feared ment on ex- October 1980. Ballistics play that there had been foul car perts that determined the bullet shot into get did want he involved. Mrs. wall Gilmore’s bullet fired investigators 12. The Lubbock obtained into chest Luster’s were both fired from a search warrant for Mrs. Gilmore’s gun. the same Plymouth January on con- They 1980. Joyce appel- 8. Tom When visited the right post firmed that the center on the lant at the Hilton Hotel in Lubbock on side They was busted. removed the 5, 1980, November ap- he observed that right panel department side door and the pellant possession had in his a large cali- a chemists extracted small amount of ber black revolver. dried lining blood from rubber of the Cavosos, 9. Diana a at maid the Hilton Cook, Burgess department window. Hotel, testified that she when was clean- chemist, testified that he found a small ing appellant’s hotel room at the Hilton amount of on portion lead 5, 1980, on November she observed a busted, post finding center which was pistol dark top on the of the dresser with theory consistent the State’s that a green bag. inside bullet had been fired post. into the center Harp, 10. Vicki manager of Mrs. Further, Dr. Cook testified that the blood apartment complex, Gilmore’s testified type scraped of the blood from car 11, 1980, that on ap- November she saw was the same as the posi- deceased’s—O pellant’s brother and another man remov- tive. ing objects Plym- from Mrs. Gilmore’s 13. A woman checked blonde into outh, including a revolver. Carriage House Motel in Lubbock some- Deputy Don Gas related a conversa- p.m. time p.m. between 10:00 and 11:00 tion he had the appellant with on Janu- 5, 1980, on according November to Jean 1, 1981, ary appellant soon after the Walden, employee at the desk at that brought back to According Texas. registered time. The woman under the Deputy testimony, Gas’ Greer”, a very name “R. name which is 5, 1980, told that on Gas November he similar to deceased’s first and middle had borrowed his mother’s ear and had assigned names. The woman was Lubbock, it driven to the Hilton Inn in Roomi 110 in Deputy the motel. Gas testified with where met the deceased. The that one of the items de- found Gas, Deputy according told body a key ceased’s Room 110 of testimony, Gas’ that later the after- Carriage Deputy House Motel. Gas noon of November he loaned his moth- further testified er’s car to went to Room the deceased. Gas testified key 110 after he found and noted indicated that this was appeared the last time that he one saw the deceased. no had ever claimed, Gas, according stayed in the room. The coroner day, later that same he saw the car established deceased had died parked in parking Carriage lot sometime between afternoon of No-

156 charge the and on such issue 5, morning raise issue early the of

vember 1980 and requested, charge then a on properly is November 6. State, given. Day issue must be v. that murder, After Richard Luster’s the 14. (Tex.Cr.App.1976). If the 532 S.W.2d 302 and Davidson left appellant Samantha the upon the trial of evidence introduced during the course of the Lubbock issue, simply an that shows or raises cause way made their to the next six weeks upon of the defendant then the conduct States-Canada border. Dennis United itself, sufficient, in and of to trial is not appellant that he saw the Carter testified conviction, case then the State’s sustain a November 1980 in and Davidson on upon parties depend- law of and is rests the Roundrock, appellant Texas and that the ent, part, the of at least in conduct driving green Buick. Also Luster’s case, parties In such a the law of another. 7th, Willis Frankenfield on November applicable to must be and made submitted appellant companion and a female at saw State, the the facts of case. Eastman v. agency car rental Austin. The (Tex.App. 272 636 S.W.2d pre- he had appellant brought back car —Amarillo ref’d). pet. See also McCuin viously rented from Frankenfield. 1974). must, (Tex.Cr.App. We appel- that either Frankenfield testified therefore, the ad- facts determine whether green drove a Riviera or the woman lant appel- at raised the issue that duced trial appel- after agency his rental to party in acted as a commit- lant have car, he and had returned the rented lant ting the murder. departed the Riviera. the woman appellant again on the Frankenfield saw jury on court instructed 11, 1980, at time the November as parties the law of follows: a van from him. appellant rented an parties All are to offense persons appellant previously explained, 15. As acting together in guilty of who are agent gave wrong initially the border person A an is of offense. commission acted in evasive identification and an to an responsible party as a criminally about his questioned manner when committed if the offense is offense crossing for identity purpose and his conduct, by the conduct his/her own border. criminally is another for which he/she all force of We think cumulative responsible, or both. incriminating for circumstances sufficient responsible for person criminally A is of the facts this jury, as the trier by the conduct of an committed offense did, conclude, case, it as to if, acting promote to intent another with beyond a reasonable doubt of guilty offense, commission or assist the charged. he was the offense with which aids, solicits, directs, encourages, he/she (Tex.Cr.App.1978) Easley v. See person aid other to attempts or denied, 967, 99 439 U.S. t. cer commit the offense. (1978). Appel 58 L.Ed.2d S.Ct. will not presence alone constitute Mere ground error overruled. first is lant’s an party offense. one error, ground of In his last essentially follows The court’s instruction erred in in- the trial court asserts § (“Parties 7.01 statutory definitions of parties structing on the law of jury § Offenses”) (“Criminal Re- 7.02 to raise this there was no evidence because Another”) sponsibility for Conduct and, question like- particular issue since Though indict- the Texas Penal Code. retrial, again necessary it is ly arise will allege appellant acted ment did to discuss contention. others, proper court with parties as cases, charge jury on the law of necessary, felony It is trial presented at applicable long as the evidence which are give instructions State, 592 English raised the issue. legitimate deduction from facts. every (Tex.Cr. (Tex.Cr.App.1980), den. S.W.2d 949 cert. 605 S.W.2d 596 Williams 66 L.Ed.2d the trial 449 U.S. S.Ct. If adduced at App.1980). facts facts parties to the making applied determination the law of of er- eighth ground Appellant’s evidence indi the case. whether there was sufficient together cating had acted ror is overruled. murder, direct

with others to commit expressed, hereinabove For the reason together evidence that acted is not court is reversed judgment of the trial required; circumstantial evidence can be for retrial. and the cause remanded State, sufficient. Morrison v. We can look to the REYNOLDS, Justice, concurring. Chief before, touching upon dur evidence events that, the ra- I in the decision concur ing and after commission of the offense. opinion, the expressed tionale in the court’s (Tex.Cr. Dennis v. S.W.2d 275 judgment of conviction must be reversed App.1983). We conclude that the court’s admission of the because of the erroneous charge parties on the law of authoriz newspaper articles into evidence. How- by the ed evidence. ever, my I from the withhold concurrence portion opinion of the holds that the

The evidence showed that Saman which together knowledge collective of the law enforce- appellant tha Davidson acted with proba- ment officers constituted sufficient many of the activities connected with the view, my ble cause to effect the arrest. airport murder. She drove to the with the pick up appellant. present deceased to the record does not Williams (Tex.Cr.App.1981), may evidence indicated that she have 621 S.W.2d 609 officer, possessing in- checked deceased into a motel at a time situation where an may probable already when the deceased have formation sufficient to constitute been cause, requests dead. Samantha an arrest effected an- Davidson was also seen Rather, company presents of the other the situa- they when officer. officer, shop purchase having drove to a flower tion an gardeni where received satis- day factory proof felony as on or about the of the murder that a has been com- mitted, they when rented a van Austin a few was authorized to arrest days Finally, ap personal later. she was with the without a warrant obser- pellant escape. when were arrested vation that was about Blaine, (Vernon Agents United States Customs art. 14.04 Tex.Code Crim.Pro.Ann. Washington 1977); King on December 1980. We (Tex. .1982). App

believe this evidence sufficient to raise the Cr. appellant may

issue that not have acted together

alone but instead have acted

with Samantha Davidson. portion

In that charge ap-

plied facts, parties the law of to the

charge read: TAYLOR, Appellant, Ronnie Lee you

... if believe from the evidence be- yond a reasonable that on doubt or about November, day the 6th 1980 ... Ver- Texas, Appellee. The STATE of Gilmore, Ray acting non either alone or No. C14-81-597-CR. party with another as a to the offense intentionally did then and ... there Texas, Appeals Court of knowingly cause the death of ... Rich- (14th Dist.). Houston you ard Luster Grier ... will find Aug. 1983. guilty defendant of the offense of mur- Discretionary Review Refused [emphasis der ... added.] Feb. we have Since concluded the evidence raised the issue of criminal re- Davidson,

sponsibility with Samantha it fol- charge

lows that the above stated properly

Case Details

Case Name: Gilmore v. State

Court Name: Court of Appeals of Texas

Date Published: Jan 25, 1984

Citation: 666 S.W.2d 136

Docket Number: 07-81-0267-CR

Court Abbreviation: Tex. App.