Bailey v. State

532 S.W.2d 316, 1975 Tex. Crim. App. LEXIS 1085

• Court: Court of Criminal Appeals of Texas
• Decided: September 23, 1975
• Docket: 49983
• Status: Published

Opinions

OPINION

BROWN, Commissioner.

The conviction is for murder; the punishment, assessed by the jury, life imprisonment.

At 1:45 P.M. on February 11, 1974, Shirley Seiber, the deceased’s neighbor, arrived home for an appointment with the deceased, Imogene Apple. At that time Mrs. Seiber saw the deceased at her mailbox and they had a brief conversation. Afterwards, Mrs. Seiber went into her house and remained there for fifteen to twenty minutes. Then she went through the back yard of the deceased’s residence and knocked on the sliding glass door that leads into the den. She tried the door and found that it was locked. . At that time, she testified that she heard a “bumping racket.” Mrs. Seiber walked around the outside of the house past the side utility door and came in through the garage door leading into the den.

Upon entering this door, Mrs. Seiber heard more “bumping noises” and then heard a loud groan. She opened the utility door and saw the deceased lying on the floor, groaning.

Mrs. Seiber then closed the door, went back through the garage to the outside and called out to the appellant. She explained that she believed he was at the house because his automobile had been “setting out by the fence in the back” when she arrived. Mrs. Seiber returned to the den through the garage and began to telephone an ambulance. Approximately twenty seconds had elapsed from the time she closed the utility door, went outside and returned to the den. During her trip outside around the garage and into the house, Mrs. Seiber never saw the appellant in the back yard area.

Prior to the completion of Mrs. Seiber’s telephone conversation, Freddy Wilson walked up to the sliding glass doors in the back, where he was unable to enter because the doors were locked. As Mrs. Seiber put the telephone down, the appellant emerged from the utility room where the deceased lay. Appellant had blood on his hands, his collar, and just below his collar. The appellant urged Mrs. Seiber to leave the house to summon an ambulance. While Mrs. Seiber was in the den, she stated that no one could have entered the house either through the glass doors in the den or through the outside utility room door.

Freddy Wilson went to the deceased’s residence to do some plumbing work. Wilson went up to the sliding glass door and knocked. At that time, he saw Mrs. Seiber in the den on the telephone. Mrs. Seiber showed Wilson the utility room where the deceased lay. Wilson testified that the deceased was lying face down with her head up against the door that leads to the outside. There was a considerable amount of blood in the room and obvious injuries to the head of the deceased.

Freddy Wilson first saw the appellant kneeling over the body. He noticed blood under the appellant’s chin and on his trouser leg. Also, Wilson stated that when he left his truck and came up to the house he did not see anyone going toward the house.

An ambulance attendant arrived and found the deceased lying on the floor with her head up against an outside door. The appellant, who was standing nearby, had blood on his shirt, face, chin, hands, and arm.

Officers of the Lewisville Police Department arrived and sealed off the premises. Captain Edge testified that when he arrived the outside door to the utility room was locked from the inside. Also, the other entrances and windows into the house, with the exception of the garage door and the sliding glass door, were locked. There was no evidence of any forcible entry nor did anything appear disturbed except for a small security box containing legal papers, although there were sizeable amounts of money present in the house.

Captain Edge interviewed the appellant on the scene. The appellant stated to him at that time that he had come to the deceased’s house to discuss a land matter with her and that upon arriving he had gone out to a pasture in back of the house. He stated that as he was returning to the house, in close proximity to the barn, he heard someone yell and he ran to the house, entering the residence through the outside utility room door.

Officer Galler spoke with the appellant and appellant told him that “he had been at the barn for about fifteen minutes and had just come back up to the house.” Officer Huddleston was told by the appellant that “he had started down toward the barn area and he heard someone call his name and he went back up to the house.”

In his first ground of error, appellant contends the court erred in admitting evidence intended to demonstrate appellant’s motive. The evidence complained of is that the deceased had made an appointment for the afternoon of the murder for the express purpose of executing a will. The deceased’s will in existence prior to her death provided that twenty-one acres of land worth over $400,000 pass to the appellant. Gerald Stockard, an attorney, testified that appellant was aware of this provision, and that appellant had attempted to persuade the deceased to transfer title to the property to him. Kenneth Howard, a surveyor, testified that appellant approached him two months before the murder about preparing a topographical map of part of the deceased’s property. Wendell Wood, a bank president from Virginia, testified that appellant borrowed twenty thousand dollars from him in order to start a racket club in the Lewisville area. Mrs. W. Greer testified that appellant wanted her to convince the deceased that appellant’s country club project was a good idea. Roman Faltejsek testified that two days before the murder appellant told him he was planning a country club, but that Faltejsek should not tell the deceased. On the day of the murder, appellant met with a bank official in Sherman about a loan for building a country club in Lewisville. On his financial statement, appellant listed twenty-two acres of land valued at $400,000 in the name of Apple/Bailey.

Where a case, such as the one before us, is dependent on circumstantial evidence for its proof, the rules of evidence will not be so stringently applied so as to exclude evidence which sheds light on the occurrence. Knapp v. State, Tex.Cr.App., 504 S.W.2d 421. The deceased’s plan to alter her will was a link in the chain of proof that appellant murdered her to inherit her property. Although standing alone it might not support a verdict, when viewed in light of the surrounding circumstances, the evidence complained of is relevant and, therefore, admissible. Knapp, supra. No error is shown.

In his second ground of error, appellant contends the court improperly admitted an incriminating oral statement in violation of Art. 38.22, V.A.C.C.P.

Police officers arrived at the scene and found three suspects; appellant, a neighbor, and a plumber. After a brief investigation, appellant was permitted to leave. Captain Edge, who was participating in the investigation, left the scene of the offense at about 6:00 P.M., after officers had found a metal pipe with blood and flesh adhering to it, the deceased’s will, and a coat with a pair of blood-stained gloves in one pocket. Edge was recalled by radio to the scene by another officer who told Edge that appellant had returned and wished to talk to Edge.

When Edge arrived, appellant and Officer Perkins were seated at a table. Edge pulled up a chair and sat down facing appellant. Edge said, “I understand you wanted to talk to me.” Bailey replied, “Yes, I did not tell you the whole or the exact truth about everything.” Edge asked, “Like what?” After a pause, appellant replied, “I hid the murder weapon, a jacket, and the gloves.” Edge then placed appellant under arrest and gave him his statutory warnings.

Appellant relies heavily on Ancira v. State, Tex.Cr.App., 516 S.W.2d 924, where we held that an incriminating statement made to a police officer while in the police car was inadmissible, the Miranda warnings not having been given. In Ancira, however, the police officer testified that he wanted to talk to the appellant about selling heroin, and asked the appellant if he “would ride around” for the purpose of interrogating him.

Here the appellant did not speak with police officers at their request, but initiated the conversation which led to the statement complained of. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 964 (1966), defined custodial interrogation as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” The fact that the accused and police officers are together will not render a statement inadmissible if the circumstances do not fall within the definition of custodial interrogation. The fact that appellant had been free to go and had chosen to return in order to speak with Captain Edge removes this case from the proscription of Miranda. Although decided before the applicability of Miranda, we believe that the facts of Taylor v. State, Tex.Cr.App., 420 S.W.2d 601, are salient to the issue at hand. These facts are as follows:

“The shooting occurred at 2:50 p. m., and shortly thereafter the Sheriff arrived at the scene. After a few minutes of investigation the Sheriff left to find appellant. Meanwhile appellant had voluntarily arrived at the Sheriff’s courthouse office, but found no one present. Having heard over the Sheriff’s two-way radio that the Sheriff was on his way to appellant’s residence, and not being able to operate the same, appellant walked to the Tax Collector’s office and asked a woman deputy there to contact the Sheriff and tell him that he (appellant) was not running. Appellant then returned alone to the Sheriff’s office, sat down and began reading a newspaper. When the Sheriff arrived, between 3:15 p. m. and 3:30 p. m., the appellant arose and voluntarily stated, ‘Well, I told them I was going to do it.’ The Sheriff then pointed to the .SO-SO rifle (later shown to be the weapon from which the fatal shots were fired) and appellant stated it belonged to him, but warned the Sheriff to be careful as the rifle was loaded. The record reflects that the Sheriff then told appellant he should not make any further statements as there were certain procedures to be followed before he could say anything. Shortly thereafter the appellant was taken before a magistrate.

“The Sheriff testified he had not arrested appellant prior to the complained of statements. From all the facts and circumstances in evidence, including the fact appellant was still in possession of his loaded rifle, we conclude that appellant was not under arrest when he made the inculpatory remarks described. The trial court did not err in admitting such statements.”

We find that appellant’s statement was voluntarily given to Captain Edge and was, therefore, admissible. No error is shown.

As stated in Ancira v. State, Tex.Cr.App., 516 S.W.2d 924, the factor in determining the voluntariness of a statement which has consistently impressed us is “whether or not the focus of the investigation has finally centered on the defendant.” Ancira, p. 927. In this case, as in Ancira, the interrogating officer testified that the investigation had not yet narrowed to the appellant, but that “anybody could have done it,” and that appellant and two others were suspects at the time the statement was made. This case is distinguishable from Ancira in that the officer’s testimony is supported by other facts.

Ancira spoke with the arresting officer at the officer’s request. Here, as in Brown v. State, Tex.Cr.App., 475 S.W.2d 938, the defendant initiated the conversation which led to the statement. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, defined custodial interrogation as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” The fact that the accused and police officers are together in an office, or a home, or a police car will not render a statement inadmissible if the circumstances do not fall within the definition of custodial interrogation. The fact that appellant had been free to go and had chosen to return in order to speak with Captain Edge removes this case from the proscription of Miranda. Had police officers begun to focus their investigation on the appellant after he had inaugurated the conversation, we would be faced with different problems. Here, however, appellant made the statement after only one question which could hardly be described as directed toward eliciting an incriminating response. We find that appellant’s statement was voluntarily given to Captain Edge and was, therefore, admissible. No error is shown.

In this third ground of error, appellant contends that the trial court erred in admitting photographs of the deceased taken at the time of the autopsy. The four photographs show the face of the deceased, the upper right side of the head, the right hand, and the left hand. Appellant argues that since the doctor who performed the autopsy testified that he had to dissect in order to evaluate a cerebral hemorrhage, the photographs are inadmissible because the jury could not determine if the wounds depicted were the result of the murder or the autopsy. Appellant relies on Terry v. State, Tex.Cr.App., 491 S.W.2d 161, where we held that four photographs of a child’s body taken after an autopsy had been performed were inadmissible for the reason that they depicted “massive mutilation of the subject matter caused by the surgery in performing the autopsy,” and in the absence of explanation, their probative value was outweighed by their inflammatory nature.

Dr. Lynn, the doctor who performed the autopsy, testified that each of the photographs complained of depicted wounds incurred during the murder, probably by a heavy, blunt instrument. There was no testimony to the effect that any of the photographs pictured the deceased subsequent to the autopsy. Terry cannot be construed to prevent the admission of relevant photographs merely because the deceased has been removed to clinical surroundings. Cf. Knoppa v. State, Tex.Cr.App., 505 S.W.2d 802. Only where the results of surgery have obfuscated the results of the crime will otherwise accurate depictions be inadmissible. The photographs here in question illustrated and clarified the doctor’s description of the injuries, and no error is reflected in their admission. Provost v. State, Tex.Cr.App., 514 S.W.2d 269.

In his fourth ground of error, appellant contends that the trial court erred in permitting the prosecutor to argue about evidence which had been excluded.

Dr. Lynn testified that certain wounds on the hands and arms of the deceased were probably caused as she attempted to protect herself. Appellant’s objection to this testimony, as being outside the pale of the doctor’s expertise, was sustained. Appellant argues that the prosecutor, during his argument, referred to this testimony and thereby argued matters outside the record.

The record reveals the following:

“[Prosecutor]: Now then, you heard earlier the testimony regarding Dr. Lynn, what he said. Dr. Lynn got up here before you. They asked him about the hands, about the bruises on the hands. You will recall that he — they asked him, ‘Well, how would that have been made.’ He put his hands up here like this (Attorney indicating). Do you recall how—

“MR. COLVIN: I object to that, Your Honor. That was objected to and the objection was sustained. I ask that the prosecutor be instructed to not refer to matters that are not in evidence.

“THE COURT: Well, the Jury has heard the evidence. They are the ones to determine it.”

It is not clear whether the court sustained or overruled appellant’s objection. An objection must be pressed to an adverse eonclusory ruling, or else it is waived. Nichols v. State, Tex.Cr.App., 504 S.W.2d 462; Verret v. State, Tex.Cr.App., 470 S.W.2d 883. Nothing is before us for review.

In his fifth ground of error, appellant contends the trial court erred in charging the jury as follows:

“Unless you find from the evidence beyond a reasonable doubt that the death of Imogene McNeill Apple was not caused by the independent act of a third party, if there was such a death, or if you have a reasonable doubt thereof, then you will acquit the defendant.”

This paragraph of the charge was included to present the appellant’s defense that an unknown third party committed the offense. Appellant argues that this paragraph is confusing and serves to shift the burden of proof to the defendant.

In considering a charge on appeal, we will not review isolated portions, but will consider the charge as a whole. Peterson v. State, Tex.Cr.App., 508 S.W.2d 844. In one of the final paragraphs of the charge in question, we find this instruction, “The burden of proof in all criminal cases rests upon the state throughout the trial; it never shifts to the defendant.” Viewing the paragraph of which appellant complains in light of the foregoing instruction, it charges the jury that the state must convince them beyond a reasonable doubt that no one but the defendant took part in the murder; that is, the state must exclude all others save the defendant, otherwise an acquittal is required. The phrase “not caused by the independent act of a third party” can only mean “done by the appellant himself.” This is the heart of the instruction under consideration. The charge is favorable to appellant in that the state must dispel all reasonable doubts that a third party committed the offense alone. Appellant’s defense of an unknown third party murdering the deceased was adequately covered, and no error is shown.

In his sixth ground of error, appellant contends the trial court erred in submitting all six counts of the indictment to the jury, in that there was no evidence to support three of the counts. Appellant argues that there is no evidence that appellant caused “deceased to choke and strangle on blood and food particles and bodily fluids” by beating her with a pipe (counts three and four), or that appellant caused her death by beating deceased with his fist (count five).

Where a general verdict is returned, and the evidence is sufficient to support a finding under any of the counts submitted, no error is shown. Hintz v. State, Tex.Cr.App., 396 S.W.2d 411; Cavazos v. State, Tex.Cr.App., 365 S.W.2d 178.

Dr. Lynn testified that “the cause of death in this individual was apparent blunt trauma to the head with pontine venous hemorrhages, and aspiration of gastric contents.” He further testified that the hemorrhage could have been caused “by either a blow by the fist or an instrument such as the pipe now in evidence.” Appellant’s sixth ground of error is overruled.

In his seventh ground of error, appellant contends the court erred in admitting inflammatory and bloody photographs of the deceased after the position of her body at the scene had been altered.

The photographs complained of were taken after the deceased had been rolled over and placed on a backboard and a towel or sheet had been placed over the lower portion of her body. Appellant argues that because the photographs do not depict the deceased as she was found they were offered by the state only to inflame the jury.

Robert Cabbell, a fireman and emergency medical technician with the Lewisville Fire Department, testified that he arrived on the scene and found the deceased lying face down in a pool of blood. Cabbell testified that there was blood “all over the floor and the walls and the cabinets.” He further testified that he rolled her over to determine if she was alive or dead and that he and his assistant placed her on a backboard.

Martin v. State, Tex.Cr.App., 475 S.W.2d 265, does not limit the admission of gruesome photographs to those which depict' a scene as found by that person unfortunate enough to discover it. The rule there announced is that if “a verbal description of the body and the scene would be admissible, a photograph depicting the same is admissible.” It was not error to admit the photographs.

Lastly, appellant contends that the evidence is insufficient to sustain the conviction. The jury was instructed as to the law on circumstantial evidence. In view of the fact that appellant admitted hiding the implements of the crime, his contradictory statements to the police officers, and the circumstances which indicate a motive for the commission of the act, we find that the evidence is sufficient.

The judgment is affirmed.

Opinion approved by the Court.