Barley v. State

906 S.W.2d 27, 1995 Tex. Crim. App. LEXIS 73, 1995 WL 373714
CourtCourt of Criminal Appeals of Texas
DecidedJune 21, 1995
Docket71486
StatusPublished
Cited by486 cases

This text of 906 S.W.2d 27 (Barley v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barley v. State, 906 S.W.2d 27, 1995 Tex. Crim. App. LEXIS 73, 1995 WL 373714 (Tex. 1995).

Opinions

OPINION

MEYERS, Judge.

Appellant, Nathaniel Barley, was convicted of capital murder. TexPenal Code Ann. § 19.03(a)(2). During the punishment phase the jury affirmatively answered the special issues set forth in Texas Code of Criminal Procedure art. 37.071(b). The trial judge sentenced appellant to death as required by Texas Code of Criminal Procedure art. 37.071(e). Direct appeal is automatic. Tex. Code CrimProcAnn. art. 37.071(h). We will affirm.

[30]*30Appellant raises four points of error. Points of error one and four concern identification procedures alleging violations of appellant’s rights to due process and counsel. Appellant’s second point of error alleges error in the admission of a prior statement of a witness. And appellant’s third point of error argues that the evidence is insufficient as a matter of law to support the jury’s affirmative finding of future dangerousness. The sufficiency of the evidence to support guilt is not challenged.

On the morning of May 4, 1991, a Sav-Mart store in Houston was robbed and the owner mortally wounded. On a subsequent tip, the police arrested appellant for the offense. While the gun used and the money stolen in the offense were never recovered, appellant was none-the-less later convicted of capital murder and sentenced to death.

In point of error number three, appellant alleges that the evidence supporting the jury’s affirmative answer to the second special issue on future dangerousness is insufficient as a matter of law. In reviewing the sufficiency of the evidence at the punishment, it is well-settled that we view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could make the finding beyond a reasonable doubt. Barnes v. State, 876 S.W.2d 316, 322 (Tex.Crim.App.), cert. denied, — U.S. -, 116 S.Ct. 174, 130 L.Ed.2d 110 (1994).1

In the instant case, the evidence presented showed that appellant entered the victim’s store with a “small black short-barreled gun” in his hand. He pointed the gun at the victim’s head and said in a loud voice, “Give me the money or I’ll shoot your head off.” When the victim responded in the negative and started to turn, appellant started to shoot. After appellant grabbed a paper sack which contained approximately nine thousand dollars, he ran around the side of the building and jumped into a waiting car.

Each of these actions exhibited foresight and planning on appellant’s part. He not only armed himself, but he told the victim that he had every intention of killing him if he did not cooperate. The subjective existence of this intention is further supported by the fact that appellant shot not once, but four times apparently without a second word of warning. Appellant also had a friend waiting with a car outside.

The medical examiner determined that the victim had been shot a total of four times including a shot to the chest which killed him. A firearms examiner testified that the fatal shot came from a .38 special or .357 Magnum and was fired from a distance of six inches or less.

Also, the State presented to the jury evidence of at least nine prior offenses including:

* burglary of a motor vehicle (Aug. 1982— probated sentence subsequently revoked)
* possession of marijuana (Sept. 1985)
* unauthorized use of a motor vehicle (Dec. 1985)
* delivery of marijuana (May 20, 1986)
* delivery of marijuana (May 22, 1986)
⅜ unlawfully carrying a weapon (knife) (June 1987)
* trespass of a building (Nov. 1988)
* unauthorized use of a motor vehicle (Aug. 1988)
* possession of a controlled substance (cocaine) (April 1989).

[31]*31While these offenses are not overtly violent, they do show an escalating and on-going pattern of disrespect and continued violations of the law. Plus, a reasonable juror could have interpreted some of the offenses like the delivery charges as evidencing an intent to indirectly harm another.

An officer of the Corpus Christi Police Department testified from his own experience as well as from conversations he had with other officers that appellant was not a peaceful and law-abiding citizen. Three Harris County jailers testified as to two different inmate fights in which appellant was involved.

Additionally, appellant’s mother testified that appellant had admitted to having a cocaine problem between 1989 and 1991 and that she had seen him smoking marijuana during that time.

Given the standard on appeal of looking at the evidence in the light most favorable to the verdict, we hold that a reasonable juror could have found that a probability existed that appellant would be a continuing danger. Point of error number three is overruled.

In point of error number one appellant complains that the in-court identification of appellant by three witnesses should have been suppressed in that their ability to make an accurate identification was tainted and violated his due process rights. Appellant argues that this taint was the result of im-permissibly suggestive out-of-court identification procedures which created a substantial likelihood of mistaken identification.

The rather confusing evidence pertaining to this point of error was developed at a hearing on identification and at trial.2 On the morning of Saturday, May 4, 1991, the perpetrator entered a Sav-Mart grocery store behind the victim and a customer, one Timothy Demby. Another customer, Millicent Golden, was already in the store and standing at the courtesy booth approximately 30 feet from the door. Stacy Pierson, Golden’s twelve-year-old son, was sitting outside in a truck facing the front door of the store. Upon hearing the robber’s command to give him money, Demby and Golden each looked at the robber and then ran to the back of the store. Pierson saw the perpetrator as he ran out of the store, stopping briefly in front of the truck in which Pierson was sitting and then running to a waiting vehicle. All three witnesses were able to describe the assailant at the scene.3 Testimony showed that the lights in the store were on and it was a bright, clear morning.

Two days later, Golden and Pierson went to the police station to make statements. According to police testimony, each was shown a photo array (hereinafter “array # 1”) which included a photograph of appellant. Demby was shown this array at a later time. The officer conducting the procedure stated that he showed each witness the array separately and made no suggestion that a suspect was included or otherwise directed the witnesses to a particular choice. Apparently, none of the witnesses were able to make an identification.4

[32]*32Subsequently, the investigating officer went to question appellant in his home and found that appellant appeared “noticeably different” from the photograph which had been included in the first photo array. The officer asked appellant if he could take another photograph to show to the witnesses. Appellant consented. Because of the apparent darkness of the house, appellant’s photograph was taken outside in the yard in the morning sunshine.

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Cite This Page — Counsel Stack

Bluebook (online)
906 S.W.2d 27, 1995 Tex. Crim. App. LEXIS 73, 1995 WL 373714, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barley-v-state-texcrimapp-1995.