LUFKIN, TX (KTRE) - The question of murder or self-defense is still in the air for a New Waverly man. The retrial for the former prison guard began Tuesday morning in Judge Paul E. White's 159th Judicial District Court at the Angelina County Courthouse.
It's been nearly three years since Timothy Malone, 37, was accused of killing 47-year-old Terry Adams and shooting Joel Thomas Gresham, 45, during a May 2010 graduation party at a Hudson home. He has pleaded not guilty to the charge.
During a November 2010 trial, the jury was unable to reach a verdict on a count of murder for Malone. They found him guilty of a separate count of aggravated assault on Gresham.
According to KTRE reports, the jury deliberated during the November trial for 10-and-a-half hours on the verdict before Malone was sentenced to five years in prison for shooting and injuring Gresham. He also had to a pay a $5,000 fine. He got credit for the six months he had already spent in jail since his May 2010 arrest, and was listed as eligible for parole after he served two-and-a-half years in prison.
During opening statements, prosecuting attorney Art Bauereiss told a panel of jurors "the bottom line in this case, is that the defendant in this case, Timothy Malone, shot two unarmed men with a semi-automatic pistol."
Bauereiss said Malone shot Adams several times before turning the .45 caliber pistol onto Gresham and then fled into the night.
On the evening of May 15, 2010, Crystal Rita was having a graduation party at the home she shared with her husband Gresham. Rita had invited Malone to the party because she had worked with him in a Huntsville prison unit. Malone drove to the party on his motorcycle that has two saddlebags that can be locked with a separate key from the ignition key. He had put his pistol in one of the bags.
Bauereiss said Malone parked his motorcycle on an asphalt pad outside of the home where it was clearly visible from inside the home. He then gave his motorcycle keys to Gresham because he was afraid he might have too much to drink.
As the party wore on, Malone decided to retrieve some Benadryl from his saddlebag and then retrieved the pistol. He put the pistol inside the bedroom he would be sleeping in for the evening.
"Nobody at the party that night knew he had a gun. Nobody at that party that night were engaged in any kind of ruckus," said Bauereiss. "Nobody at that party touches the motorcycle. That doesn't happen."
Bauereiss said Malone retired for the evening, but two other guests decided to joke around with him and rev up their truck engines. He said Malone assumed that somebody was stealing his motorcycle so he grabbed his pistol.
Once Gresham and Adams realized that Malone had a pistol, Bauereiss said Gresham decided to give Malone back his motorcycle keys and tell him to hit the road. He says the three men did get into an argument about the weapon.
Bauereiss said Malone shot Adams repeatedly, then turned to Gresham, and shot him in the leg. He then reloaded his gun, hopped onto the back of his motorcycle and left the party. Bauereiss says officers from the Hudson Police Department were already on their way to the home for a disturbance call when they found Malone wrecked in a ditch.
They were able to retrieve the pistol from Malone's saddlebag. Bauereiss said DNA evidence proves that Malone's pistol was the weapon that killed Adams.
The prosecutor said Adams was pronounced dead at the hospital that evening. He said Gresham would not be giving testimony in the retrial because he died of a heart attack last year.
Defense attorney Bryan Cantrell started his opening statements saying that the guests at the party deliberately "jacked" with his client. He says they did it on purpose to mess with him. He says Adams and Gresham were threatening, cussing, and pushing Malone once they discovered he had a gun.
"At the end of this you get to decide the reason of a person who feels that their life has been threatened. What would you do? We can talk about jokes. We can talk about guys jacking with his motorcycle. Heck yeah, he was drunk," Cantrell said.
"But at the end of the day, you get to decide as a jury if it matters how much alcohol he had been drinking," Cantrell said. "The evidence is real clear he never pointed (the gun) at anyone. The weapon stayed right by his side. He never threatened anyone, he just wanted to make sure no one was jacking with his motorcycle."
The state called their first witness Dr. Tommy Brown, a retired forensic pathologist that has performed thousands of autopsies over the course of several years. Brown said the amount of blood found inside Adams body on May 16, 2010 signifies that he bled out internally during the time of his death. He said three of the gunshot wounds could have caused his death.
Cantrell asked Brown if eight bullets struck Adams body. Brown said six bullets struck Adams body, and there were two exit wounds.
During the previous trial, Brown said eight gunshot wounds found on Adams body caused his death. He ruled it a homicide, claiming the victim came to his death at the hands of another.
The state called Kim Cummins, a registered nurse who has worked in the Woodland Heights Medical Center's Emergency Room for 13 years.
She says around 3 a.m. on May 16, 2010, an officer from the Angelina County Sheriff's Department brought Malone to the ER because he was complaining his blood sugar levels were high. Malone suffers from diabetes.
Cummins says she performed a test on Malone and determined hs blood sugar levels were over 500, which is a dangerous level. She decided to keep him in the ER until his levels were brought back to normal.
"He was alert and oriented. He followed commands, but his speech was slurred. He did admit that he had been drinking," said Cummins.
Cummins says when a diabetic's blood sugar levels are over 500 they test for Diabetic Ketoacidosis, which is when a patient has too much acid in the blood stream. She says that test came back negative, but his blood alcohol content was listed as .184, which is double the legal limit of .08.
She says it is hospital protocol to ask patients where their pain levels stands on a scale of zero to ten. She says Malone said his pain level was at zero.
The state called Crystal Rita who was with Gresham for seven years before he died. She says she had worked with Malone for about a year at the prison unit in Huntsville as a correctional officer. While she was working, she was taking classes at Stephen F. Austin University to get a degree in criminal justice. She says she graduated on May 15, 2010 and decided to celebrate "four long years of school" with family and friends.
She said Gresham and Adams were best friends and did everything together. Rita said she had made it clear to he guests, including Malone, that if they planned on getting drunk she had room for them to stay the night. She said she did not want anyone drinking and driving home.
She says Malone was very drunk the night of the party and got agitated when the other guests played a prank on him. She testified Gresham and Adams never threatened Malone and never used foul language. She says after Malone shot Gresham and Adams, he came into the master bedroom where she had been napping before the incident. He then pointed the gun at her. She asked him what he was doing, and then Malone left the house.
Rita began to describe finding Adams body, breaking into tears as she recalled finding him inside her daughter's bedroom, lying on the floor gasping for air. She said she tried to perform CPR, which she had learned in one of her college classes, and shortly after that an ambulance arrived at the home.
"I told him he was going to be okay. I tried to comfort him," Rita said.
She said Adams was able to flip himself onto his stomach and that is when she stopped breathing. She said she helped EMS perform CPR to try and revive him.