Charles Donald Clark v. The State of Texas--Appeal from 213th District Court of Tarrant County

SUPREME COURT CASES

Laws-info.com » Cases » Texas » 10th District Court of Appeals » 1998 » Charles Donald Clark v. The State of Texas--Appeal from 213th District Court of Tarrant County

State: Texas

Court: Texas Northern District Court

Docket No: 10-97-00379-CR

Case Date: 09/09/1998

Plaintiff: Charles Donald Clark

Defendant: The State of Texas--Appeal from 213th District Court of Tarrant County

Preview:Charles Donald Clark v. The State of Texas--Appeal
from 213th District Court of Tarrant County
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
file:///C|/Users/Peter/Desktop/opinions/PDFs1/2532.html[8/20/2013 7:12:18 PM]

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).
file:///C|/Users/Peter/Desktop/opinions/PDFs1/2532.html[8/20/2013 7:12:18 PM]

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
file:///C|/Users/Peter/Desktop/opinions/PDFs1/2532.html[8/20/2013 7:12:18 PM]

Download 2532.pdf