Charles Donald Clark v. State ( 1998 )

Charles Donald Clark v. State

  IN THE

TENTH COURT OF APPEALS

No. 10-97-379-CR

     CHARLES DONALD CLARK,

                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                              Appellee

From the 213th District Court

Tarrant County, Texas

Trial Court # 0650047D

O P I N I O N

      This is an appeal by Appellant Clark from his conviction for murder, enhanced by one prior felony conviction, for which he was sentenced to 99 years in the Institutional Division of the Texas Department of Criminal Justice.

      Appellant and Ronnie Martin were at the home of Judy Henderson near Lake Worth on January 29, 1997. Martin's aunt, Marie Bell, had left the house that day to stay at a nearby motel. George Wetzel called the house and asked Martin if anyone there was interested in purchasing drugs. Martin told Wetzel that Appellant was interested. Wetzel asked if Appellant could pay. Appellant opened his wallet and Martin saw what he thought was money and then told Wetzel that Appellant could pay. Wetzel found out later that Appellant had placed "fake" money between bills of real money to appear he had a large amount of cash. After the phone call Appellant asked Martin for a .38-caliber revolver which Martin had been holding for him. Martin gave the gun back to Appellant.

      Wetzel arrived at the Henderson house a short time later with Carol Lilly. Wetzel and Lilly met with Appellant and Martin in Henderson's living room. Wetzel showed the drugs to Appellant. Martin, Lilly and Appellant injected a substance and then Martin went outside to Wetzel's car to get some clothes he was keeping there.

      After the three had tried the drugs Wetzel apparently demanded payment. Instead of paying, Appellant put the gun to Wetzel's head and pulled the trigger. Wetzel died instantly.

      Henderson was talking to Bell on the telephone when the shot rang out. Bell heard Appellant say, "Bitch, sit down." Henderson dropped the telephone. Bell called her back immediately. Henderson answered and told Bell, "Charlie (Appellant) just shot George."

      Martin was outside when the shot occurred. Henderson and Lilly came outside the house hysterical and screaming. Appellant then came outside and he and Martin went back into the house. Martin saw Wetzel had been shot and lying on the floor. He saw Appellant go to Wetzel's body, put the gun in Wetzel's blood, and then place the gun in Wetzel's hand as if Wetzel had shot himself.

      Appellant and Martin left in Wetzel's car. Appellant suggested that Martin say that Wetzel had tried to rob him and that the gun went off as they were fighting.

      When the police arrived at Henderson's house they found Wetzel's body on the floor in the living room. A 38-caliber gun was in his hand and fake and real money was scattered around the body. A white powdery substance was also nearby.

      Officer Phillips noticed a yellow Subaru outside (Appellant's car). She looked through the window of the car and saw baggies of a white-powdery substance. Opening the door, she looked for owner registration papers which she did not find. She informed Detective Reyes, the crime scene officer, about the car.

      Detective Reyes, who had arrived at the crime scene, observed Wetzel's body, the nearby fake and real money, and a white powder. He also looked through the window of the Subaru and saw fake money identical to that he saw near Wetzel's body. The car was impounded and a search warrant obtained for it. Inside police found fake money, medical syringes, a small plastic bag containing a white residue, and a scale. Appellant was arrested and gave a statement claiming the gun went off while he and Wetzel struggled. Ballistic tests confirmed Appellant's 38-caliber gun had fired the bullet that killed Wetzel.

      Appellant was indicted for the murder of Wetzel, with an alleged prior felony conviction for enhancement, tried and convicted by a jury which found the enhancement "true" and sentenced him to 99 years in prison.

      Appellant does not challenge the legal or factual sufficiency of the evidence. He appeals on three points of error.

      Point one: "The trial court erred in overruling Appellant's motion to suppress the evidence seized from the yellow Subaru automobile because the affidavit supporting the search and arrest warrant did not show probable cause sufficient to justify issuance of the warrant in violation of the Fourth, Fifth, Sixth and Fourteenth Amendments to the U.S. Constitution, Article 1, Sections 9, 10 and 19 of the Texas Constitution, and Texas Code of Criminal Procedure Article 38.23."

      A search warrant may be issued by a judge if, given all the circumstances set forth in the affidavit presented to him, there is a fair probability that contraband or evidence of a crime will be found in the place to be searched. Johnson v. State, 803 S.W.2d 272, 288 (Tex. Crim. App. 1990), cert. denied, 111 S. Ct. 2914 (1991).

      In this case the search warrant affidavit stated that a crime had been committed; that Officer Reyes observed fake bills and a white powdery substance around Wetzel's body; that the automobile was parked at the crime scene; that the car belonged to Appellant and that Reyes observed from the outside of the car imitation money matching that found by Wetzel's body.

      The search warrant was supported by probable cause contained in the affidavit. A crime had been committed. The car was parked on the property of the crime scene and was in lawful police custody. A warrantless search of the car would have been justified under these facts. The officers could have performed a legal warrantless search under the automobile exception to the warrant requirement. Amos v. State, 819 S.W.2d 156, 161 (Tex. Crim. App. 1991); State v. Guzman, 959 S.W.2d 631, 633 (Tex. Crim. App. 1998).

      Point one is overruled.

      Point two: "The trial court committed reversible error by permitting the State, over defense objection, to elicit inadmissible hearsay from Police Officer Fred Gilbert regarding statements made by a witness present at the scene of the crime."

      Point three: "The trial court committed reversible error by permitting the State, over defense objection, to elicit inadmissible hearsay from State's witness, Marie Bell, regarding statements made by a witness present at the scene of the crime."

      Point two appears to focus on the testimony John McGee, "that there had been an argument in Judy Henderson's house; and that someone had been shot and was still inside the house." Appellant objected on the ground of hearsay and the trial court overruled the objection.

      Officer McGee testified that Judy Henderson made this statement; that she was hysterical when he spoke with her; that she was crying, yelling, going on a tangent—she seemed very irate or upset that something traumatic had just happened.

      The trial court did not abuse its discretion in admitting the evidence because Henderson's statements were excited utterances and as such were exceptions to the hearsay rule. Tex. Rules of Evid. 803(2), Hearsay Exceptions; Lawton v. State, 913 S.W.2d 542, 553 (Tex. Crim. App. (1995).

      Marie Bell testified that during her phone conversation with Henderson she heard a loud noise that sounded like a gun shot and then Henderson dropped the phone. She also heard Appellant in the background say, "Bitch, sit down." Bell immediately called Henderson back. She testified that Henderson said that "Charlie just shot George and that she had to get help." Bell further testified that Henderson seemed to be in shock and sounded shaky when she made the statements. Objection to this testimony was overruled by the court.

      Again, the trial court did not abuse its discretion in admitting Bell's testimony. Rule 803(2), supra; Lawton, supra.

      Points two and three are also overruled. The judgment is affirmed.

                                                                               FRANK G. McDONALD

                                                                               Chief Justice (Retired)

Before Justice Cummings,

      Justice Vance, and

      Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed September 9, 1998

Do not publish