Norton v. State

771 S.W.2d 160 (Tex. App. 1989)

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Nature of the Case

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Facts

D shot and killed two men at approximately 6:00 a.m. on November 14, 1986, in his place of business. He then called the police and requested an ambulance. Officer Ricky Smith arrived, and D sent him to a garage area containing a van loaded with thirty-four new truck tires. The officer found the bodies of Bill Bailey and Preston Thomas. They had both been shot in the head at close range with D's .38 caliber revolver and were dead when the officer arrived. An unfired .45 automatic belonging to Thomas was found on the floor near Thomas's outstretched hand. The tires had been stored in a parts room secured by a padlock. The lock had been cut away by an acetylene torch. P posits that D killed Bailey in order to relieve himself of several loan guarantees that he had entered into on Bailey's behalf; D lured the victims to his shop, had them load the tires, and then shot them both at point-blank range. D contends that he caught two men stealing tires in a darkened warehouse, that they attacked him without identifying themselves, and that he shot them in self-defense. At trial over D's objection, Bailey’s widow testified about a phone call received in the middle of the night: “My husband was -- he just had talked to Ray on the phone, and he told him to pick up Preston and go-come help him work at the shop.” The court gave a limiting instruction. The trial court admitted the testimony and gave a jury instruction that the testimony was only to be considered to show the state of mind of the deceased and not for the truth of the matter asserted by the declarant. D was found guilty and appealed.