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Suspect surrenders in
sandwich shop slaying
By Susan Parrott - Associated
Press Writer
Laredo Morning Times
Wednesday, July 10, 2002
BALCH SPRINGS, Texas — The
second suspect in the shooting deaths of two Subway sandwich shop
workers turned himself in to authorities Tuesday morning after his
mother helped him negotiate with police.
Kirk Darnell Edwards, 32, surrendered the day
after his cousin Terry Darnell Edwards, a 28-year-old former
employee at the shop, was arrested after allegedly disposing of a
gun in a trash bin near the restaurant.
Arrest warrants for the men alleged two counts
of capital murder.
Two men entered the sandwich shop Monday as it
was opening, shot and killed the manager, Tommy Walker, 34, and an
employee, Mickell Goodwin, a 26-year-old mother of two.
Both Dallas residents were shot in the upper
torso, and the men fled with about $3,000, Balch Springs Police
Chief Ed Morris said. He said police found three spent cartridges.
Kirk Edwards turned himself in to the Dallas
Police Department about 11 a.m. Tuesday.
“I believe that his mother was very
instrumental in having him turn himself in,” Morris said.
Terry Edwards, an ex-convict, was fired from
the Subway about a month ago. He was arrested after he was seen
dumping a gun into a trash bin next to a cafeteria across the
street from the sandwich shop in suburban Balch Springs. Lancaster
is 25 miles east of Balch Springs, a southeast Dallas suburb.
Police said they found a .380-caliber hand gun
in the trash bin.
Morris said he didn’t know why Terry Edwards
was fired but said the motive for the killings appeared to be
robbery.
“We believe there is no other indication except
for pure robbery,” he said.
Terry Edwards was jailed on two probable cause
capital murder arrest warrants. His bond was set at $1 million on
each count. He was transported Tuesday to the Dallas County jail,
where Kirk Edwards also was to be taken after interviews by Balch
Springs investigators.
The Texas Department of Criminal Justice said
Terry Edwards was sentenced in November 1997 to concurrent five-year
terms for theft in 1992 and for possession of cocaine in 1997 with
intent to deliver. He was released from prison on Oct. 1, 1999 and
was to remain on parole until Aug. 14.
Walker, who was 6-foot, 350 pounds, was an
ordained minister who had planned to leave the Subway job and open
his own tattoo parlor soon, family members said.
“He was a big teddy bear,” said Walker’s wife,
Beth. “He was famous for making people laugh. His kids and
grandkids were his life. He got himself ordained so he could
preside at his own kids’ weddings.”
In the Court of Criminal
Appeals of Texas
No. AP-74,844
Terry Darnell Edwards, Appellant
v.
The State of Texas
On Direct Appeal From Dallas County
Cochran, J.,
delivered the opinion of the Court, in which
Keller, P.J.,
and Price, Womack,
Johnson, Keasler, Hervey, and
Holcomb, JJ.,
joined. Meyers,
J., not participating.
O P I N I O N
In November 2003,
a jury convicted appellant of capital murder.[1]
Pursuant to the jury=s answers to the special issues set forth in
Texas Code of Criminal Procedure Article 37.071, sections 2(b) and
2(e), the trial judge sentenced appellant to death.[2]
Direct appeal to this Court is automatic.[3]
Appellant raises thirteen points of error including challenges to
the sufficiency of the evidence at the punishment stage of trial.
We affirm.
SUFFICIENCY OF
FUTURE DANGEROUSNESS EVIDENCE
Appellant claims
in his fourth point of error that the evidence presented at trial
was legally insufficient to support the jury=s finding that he
would be a continuing threat to society.[4]
In reviewing the sufficiency of the evidence at punishment, this
Court looks at the evidence in the light most favorable to the
verdict to determine whether any rational trier of fact could have
believed beyond a reasonable doubt that there is a probability
that appellant would commit criminal acts of violence that would
constitute a continuing threat to society.[5]
Essentially,
appellant argues that, while he may be a threat to free society,
he is not a danger to prison society where he will be confined for
a minimum of forty years. However, in deciding whether a
defendant poses a continuing threat to Asociety, this Court has
repeatedly held that a jury considers free society as well as
prison society.[6]
Viewed in
the light most favorable to the verdict, the evidence of the
instant offense presented at trial showed the following:
On the morning of
July 8, 2002, appellant and another man robbed and killed two
clerks at a Dallas Subway sandwich shop. Both victims were shot
in the head from only inches away. Appellant later gave a
statement in which he admitted being inside the sandwich shop but
claimed that the other man, AT-Bone, did the shooting. Appellant
acknowledged having the money stolen from the store and the gun
used to kill the victims, but claimed that AT-Bone gave him the
gun when they left the store. Appellant had worked at that
particular Subway some months earlier, but he had been fired when
it appeared that he had been stealing money from the register.
Appellant had previously been fired from another Subway shop for
misappropriating store funds under his control.
The State also
presented evidence that appellant had been charged with felony
theft and placed on deferred adjudication community supervision on
March 25, 1992. On November 7, 1997, appellant was adjudicated
guilty and sentenced to five years in prison. On that same day,
he was also convicted of possession with intent to deliver cocaine
and sentenced to five years and a $500 fine.
Michael Weast
testified that he was in a Subway shop in Fort Worth at about 9:00
p.m. on April 26, 2002. As he was preparing to leave, two men
came in and began acting suspiciously. One of the men pulled a
gun and ordered the people behind the counter to lie down while
the other man apparently took the video surveillance tape. As
they drove off from the Subway, the robbers almost ran down a
uniformed deputy sheriff who drew his gun and yelled at them to
stop. Weast identified appellant as the perpetrator without the
gun.
A rational jury
could have concluded that appellant was engaging in an increasing
pattern of violence and, thus, would continue to be a threat to
society.[7]
Accordingly, we hold the evidence legally sufficient to support
the jury's affirmative answer to the future dangerousness issue.[8]
Point of error four is overruled.
In his fifth point of
error, appellant argues that the evidence is factually
insufficient to sustain the jury's affirmative answer to the
future dangerousness punishment question.[9]
In McGinn v. State,[10]
we determined such a review is not constitutionally required and
refused to extend the Clewis[11]
factual sufficiency review to the future dangerousness issue.[12]
Appellant has not persuaded us to revisit this holding. Point of
error five is overruled.
VOIR DIRE ISSUES
In his first
point of error, appellant asserts that the trial court violated
his rights to due process and the effective assistance of counsel
by Adenying [his] motion to quash the panel of three prospective
jurors which included venire member James Redden because the trial
court instructed the jury panel that >mitigation= was a >justifying=
or >extenuating= circumstance for the offense.@ Appellant asserts
that the definition the trial court gave the panel was improper
under the law and restricted the jurors= consideration of
mitigating evidence. He claims that he was harmed by this
improper definition because he had to use a valuable peremptory
challenge on one member of the panel, Redden, which he would have
used on a different venire person had the court not erred.
Appellant
correctly states that a defendant may suffer harm when, due to
trial court error, he is forced to use a peremptory strike to
remove a venireperson and thereafter suffers a detriment from the
loss of the strike.[13]
However, because the record reflects that appellant received an
extra peremptory challenge in addition to the fifteen he was
granted by statute, appellant cannot demonstrate here that he
suffered a detriment from the loss of the strike he used on Redden.[14]
Appellant's first point of error is overruled.
Appellant
complains in points of error two and three that the trial court
erred in granting the State's challenges for cause to venire
members Cecelia Hurley and Byron Tatum. During questioning, Ms.
Hurley indicated that she had a bias in favor of police testimony.
The State challenged her for cause based on this bias.[15]
Mr. Tatum, on the other hand, indicated that he harbored a bias
against the range of punishment for the lesser included offense of
murder. Specifically, he did not believe he could give five years
for an intentional murder.[16]
Mr. Tatum also indicated that the beyond a reasonable doubt
standard was too low and he would have to be nearly one hundred
percent certain before he could convict someone of such a serious
crime.[17] The State
challenged Mr. Tatum on both of these bases.
Error asserted on these
bases is not of constitutional dimension.[18]
Thus, a reversal is warranted only if the record shows that the
error deprived the defendant of a lawfully constituted jury.[19]
Even if we assume that non-constitutional error occurred,
appellant has failed to show that he was deprived of a lawfully
constituted jury.[20]
Points of error two and three are overruled.
CHARGE ISSUE
In his sixth point of
error, appellant claims that the trial court erred Aby refusing to
instruct the jury that, when answering the future dangerousness
special issue, the jury could consider that appellant would not be
eligible for parole for at least forty years if a life sentence
were assessed. The record reflects that the trial court provided
the parole instruction required by Article 37.071 ' 2(e)(2)(B).
Among other things, this instruction informed the jury that a
defendant sentenced to life imprisonment would not be eligible for
parole for 40 years and that parole eligibility did not mean that
parole would be granted. The trial court=s refusal to provide any
additional parole‑eligibility instruction did not violate due
process and was not error.[21]
Point of error six is overruled.
CONSTITUTIONALITY AND
RELATED ISSUES
In his seventh point of
error, appellant claims that the Texas death penalty scheme
violates due process because the mitigation question submitted to
the jury pursuant to Article 37.071, section 2(e), does not
require the State to prove the absence of sufficient mitigating
circumstances beyond a reasonable doubt. Appellant relies upon
the United States Supreme Court=s opinions in Apprendi v. New
Jersey,[22] Ring v.
Arizona,[23] and
Blakely v. Washington,[24]
to support his argument. We have previously rejected such claims
and appellant has given us no reason to revisit the issue here.[25]
Appellant's seventh point of error is overruled.
In his eighth through
eleventh points of error, appellant further challenges the
constitutionality of the Texas capital sentencing scheme.
Specifically, in his eighth point, appellant claims that the
A12-10 Rule of Article 37.071 violated appellant's right to due
process and the prohibition against cruel and unusual punishment.
In his ninth point, appellant claims that the court=s failure to
define the terms Aprobability, Acriminal acts of violence,
Acontinuing threat to society, Apersonal moral culpability, and
Amoral blameworthiness violated his right to due process, his
right to an impartial jury, and the prohibition against cruel and
unusual punishment because the terms are vague and indefinite.
And in his tenth and eleventh points of error, appellant claims
that the Texas death penalty scheme denied appellant due process
of law and due course of law, and it imposed cruel and unusual
punishment upon him in violation of the United States and Texas
Constitutions Abecause of the impossibility of simultaneously
restricting the jury's discretion to impose the death penalty
while also allowing the jury unlimited discretion to consider all
evidence militating against imposition of the death penalty.
This Court has previously
considered and rejected all of these claims, and appellant has
given us no reason to revisit the issues here.[26]
Points of error eight through eleven are overruled.
Appellant asserts in his
twelfth and thirteenth points of error that the cumulative effect
of the above-enumerated constitutional violations denied him due
process and due course of law. Because appellant has not shown
any error, there can be no cumulative effect.[27]
Points of error twelve and thirteen are overruled.
We affirm the judgment of
the trial court.
Delivered: March 1, 2006
Do Not Publish
*****
[1] Tex. Penal Code '
19.03(a).
[2] Tex. Code Crim.
Proc. art. 37.071, ' 2(g).
[3] Art. 37.071, '
2(h).
[4] See art. 37.071, '
2(b)(1).
[5] Ross v. State, 133
S.W.3d 618, 621 (Tex. Crim. App. 2004) (applying Jackson v.
Virginia, 443 U.S. 307 (1979), standard to review evidence on
Afuture dangerousness@ punishment issue); see also Allridge v.
State, 850 S.W.2d 471, 487 (Tex. Crim. App. 1991).
[6] Morris v. State,
940 S.W.2d 610, 613 (Tex. Crim. App. 1996).
[7] In arguing that the
evidence is insufficient to support a rational jury=s finding that
appellant probably Awould commit criminal acts of violence that
would constitute a continuing threat to society, appellant relies
primarily upon defense expert testimony that he had not posed any
special threat during his previous prison stay. The defense
experts testified that, while appellant probably would pose a
future danger to others in the Afree world, they saw nothing in
his history of prior incarceration that would lead them to believe
that he would be especially violent in prison. This argument
ignores, however, the fact that, in the time between his first
prison stay and the time that the jury was required to make its
finding, appellant had committed an aggravated robbery and a very
violent capital murder.
[8] Ross, 133 S.W.3d at
621; Allridge, 850 S.W.2d at 487.
[9] See art. 37.071, '
2(b)(1).
[10] 961 S.W.2d 161 (Tex.
Crim. App. 1998).
[11] 922 S.W.2d 126 (Tex.
Crim. App. 1996).
[12] McGinn, 961 S.W.2d
at 166-69; see also Manns v. State, 122 S.W.3d 171, 194 (Tex. Crim.
App. 2003); Chamberlain v. State, 998 S.W.2d 230, 234 (Tex. Crim.
App. 1994).
[13] See, e.g., Sells
v. State, 121 S.W.3d 748, 758 (Tex. Crim. App. 2003).
[14] Id.; see also
Feldman v. State, 71 S.W.3d 738, 743-45 (Tex. Crim. App. 2002) (when
record showed that defendant Areceived an extra peremptory
challenge in addition to the fifteen he was granted by statute, [defendant]
can only demonstrate harm by showing that at least two of the
complained-of challenges were erroneously denied@) (emphasis in
original).
[15] Art. 35.16(a)(9)
and (b)(3).
[16] Art.
35.16(b)(3).
[17] Id.
[18] Jones v. State,
982 S.W.2d 386, 391 (Tex. Crim. App. 1998).
[19] Id. at 394.
[20] Id.; see also
Murphy v. State, 112 S.W.3d 592, 598 (Tex. Crim. App. 2003), cert.
denied, 541 U.S. 940 (2004); Feldman, 71 S.W.3d at 749.
[21] See Newbury v.
State, 135 S.W.3d 22, 45 (Tex. Crim. App.), cert. denied, 543 U.S.
990 (2004).
[22] 530 U.S. 466
(2000).
[23] 536 U.S. 584
(2002).
[24] 542 U.S. 296
(2004).
[25] See Perry v.
State, 158 S.W.3d 438, 446-47 (Tex. Crim. App. 2004), cert. denied,
126 S.Ct. 416 (2005).
[26] See, e.g.,
Escamilla v. State, 143 S.W.3d 814, 828 (Tex. Crim. App. 2004),
cert. denied, 125 S.Ct. 1697 (2005).
[27] Escamilla, 143
S.W.3d at 829; Chamberlain v. State, 998 S.W.2d 230, 238 (Tex.
Crim. App. 1999). |
