Brasfield v. State

600 S.W.2d 288, 1980 Tex. Crim. App. LEXIS 1266

• Court: Court of Criminal Appeals of Texas
• Decided: June 18, 1980
• Docket: 61871
• Status: Published

Opinions

OPINION

CLINTON, Judge.

This is an appeal from a conviction for the offense of capital murder wherein the punishment was assessed at death. V.T. C.A., Penal Code Sec. 19.03 (1974), and Vernon’s Ann.C.C.P. art. 37.071 (Supp.1980).

The indictment, the operative language of which is set out in the margin,¹ charged that appellant caused the death of Johnny Turner, Jr., in the course of committing the offense of kidnapping. He pleaded not guilty to the charge but the jury found him to be guilty and at the conclusion of the punishment hearing, the jury answered affirmatively the first two issues set out in Art. 37.071(b).

The indictment charged that the offense was committed in Lubbock County; venue was changed to Wichita County where the trial was held.

Since appellant’s first ground of error challenges the sufficiency of the evidence to support the conviction, we summarize the proof adduced by the State, noting that the defendant did not testify in person nor did he offer any witness in his behalf.

Our record shows, without dispute, that about 5 o’clock in the evening on October 26, 1977, Johnny Turner, Jr., a six-year-old black boy, was playing in the yard near his home in an apartment complex in Lubbock while his mother was preparing supper. Shortly thereafter, she went to call the boy to come inside, but he was not to be found in the area.

Teddy Robinson, a thirteen-year-old neighbor of Johnny, saw Johnny in a white pickup truck behind his house with an adult white male whom he identified as appellant.

Cecille Hunter, an adult school bus driver, testified that on the day in question at about 5:30 p. m., she was in a filling station near the home of Johnny. She recognized him as “a Turner boy” because of his resemblance to his father whom she knew. Johnny was then in a white pickup truck with an adult white male whom she identified as appellant. She watched as they drove away from the filling station in the direction of Yellow House Canyon, where Johnny’s body was later found.

W. E. Davis, the operator of the filling station, corroborated Hunter’s testimony as did Ray Dunn, an employee of Davis. Both of these witnesses identified appellant and his white pickup truck as well as the presence therein of a small black boy.

Lubbock lawyer, Warren Goss, without stating the reason or the circumstances, testified that he saw appellant in Lubbock between four and five in the afternoon of October 26, 1977.

Armando Ramirez, an acquaintance of appellant, said that appellant visited him at his place of work near Posey, a small town on U.S. Highway 84 between Lubbock and Slaton. This visit was about three in the afternoon and appellant was quoted as saying that he was going to Lubbock. Ramirez also testified that he and a fellow worker, Jerry Robinson, after getting off work, bought a six-pack of beer and went to a secluded spot on a country road where they drank the beer. This spot was close to Horseshoe Bend Road which leads into Yellow House Canyon. As they were leaving, they saw appellant coming down Horseshoe Bend Road from the direction of the canyon. He was alone in his white pickup truck and was driving at a high rate of speed.

Appellant stopped and the parties talked for a while and then they all went to appellant’s home in Slaton. Robinson, Ramirez’s co-worker, corroborated the testimony given by Ramirez.

Detective Sgt. Doyle Nelson of the Lubbock Police Department, was in charge of the search for the body and he testified in detail as to the lengthy search in the rugged canyon. Finally, in the forenoon of November 3, the body was discovered in the canyon not far from a dirt farm “turnaround” road. The body was partially covered by brush and the underclothing and trousers of the victim had been pulled down over his legs. The body was in an advanced state of decomposition and was infested with maggots.

Doyle testified to finding tire marks in the dirt on the farm road near where the body was found which matched those on appellant’s truck.

Dr. Jose Diaz-Esquivel, a pathologist, testified that Johnny had died of asphyxiation but he could not determine the means used. There was a bruise on the head and face and numerous stab wounds on the body, the latter having been inflicted after death since there was no bleeding from the wounds. The decomposition of the body rendered it impossible for him to determine if the boy had been sexually molested.

Johnny’s mother identified the shoes and several articles of clothing found on the body as items worn by Johnny when last seen at his home. Both of Johnny’s parents testified that they gave no permission to anyone, including appellant, to take the deceased.

As noted earlier, appellant did not testify in his own behalf nor did he offer any witnesses or defense. The Court’s charge, which comes to us without objection, included a charge on circumstantial evidence.

We recognize and apply the rule that every circumstantial evidence case must necessarily be tested by its own facts to determine the sufficiency of the evidence. Earnhart v. State, 575 S.W.2d 551, 554 (Tex.Cr.App.1979); Stogsdill v. State, 552 S.W.2d 481, 486 (Tex.Cr.App.1977); Carlisle v. State, 549 S.W.2d 698, 703 (Tex.Cr.App.1977); Baker v. State, 447 S.W.2d 172, 174 (Tex.Cr.App.1969). Considering the record as a whole and viewing it in the light most favorable to the State, we find the evidence sufficient to support the judgment and overrule the first ground of error. Indo v. State, 502 S.W.2d 166, 169 (Tex.Cr.App.1973).

We find no merit to appellant’s second ground of error wherein he contends that the evidence was insufficient to support an affirmative answer to the first issue of fact submitted under Art. 37.071(b)(1), Vernon’s Ann.C.C.P. Our exhaustive analysis of the evidence introduced upon the trial set out earlier reveals evidence of probative nature more than adequate to support the jury’s finding. Ground two is overruled.

We turn now to a consideration of his third ground error wherein he challenges the sufficiency of the evidence to support the jury’s answer to the second issue under Art. 37.071(b)(2), Vernon’s Ann.C.C.P.²

At the punishment stage of the trial, the State and appellant rested without presentation of any evidence; and, as noted earlier, the evidence at the guilt stage of the trial was entirely circumstantial in nature. There was no evidence, per se, of any extraneous criminal acts; there was no psychiatric evidence offered; there was no evidence of any prior criminal convictions nor was any character evidence introduced.

In Robinson v. State, 548 S.W.2d 63, 64 (Tex.Cr.App.1977), this Court listed several matters which it deemed relevant to the sentence and which the jury should consider in determining whether a defendant would be a continuing threat to society.³ We have held in several cases, e. g., Burns v. State, 556 S.W.2d 270, 280 (Tex.Cr.App.1977), that the jury may consider the evidence adduced at the guilt-innocence stage in answering the question as to probability of future crimes of violence.

But, in Warren v. State, 562 S.W.2d 474, 476-477 (Tex.Cr.App.1978), a reversal was ordered because the second issue was supported only by the evidence at the guilt-innocence phase of the trial and a pen packet showing a prior felony conviction. The majority in Warren concluded that “[w]hile there may be cases where the evidence offered at the guilt stage of the trial may be sufficient to support an affirmative answer to special issue No. 2”, the case then under review was not such a ease. The Court noted that there was no psychiatric evidence, no evidence of prior crimes of violence, and no apparent intention to commit an act of violence when the criminal incident was begun.

Our case is distinguishable on the last point; here we have a crime of violence adequately supported by the circumstantial evidence. Shortly after the commission of the offense, we note that appellant was visiting with Armando Ramirez and Jerry Robinson at their beer-drinking rendezvous a very short distance from where Johnny’s body was secreted. See and compare Earvin v. State, 582 S.W.2d 794, 799 (Tex.Cr.App.1979).

In Vanderbilt v. State, 563 S.W.2d 590, 599, fn. 4 (Tex.Cr.App.1978), the Court gratuitously called attention of the trial court to the holding in Warren, supra. Other cases by this Court have cited Warren but only when preceded by the flag, “ef”. See, e. g., Duffy v. State, 567 S.W.2d 197, 208 (Tex.Cr.App.1978); Bodde v. State, 568 S.W.2d 344, 351 (Tex.Cr.App.1978); Villarreal v. State, 576 S.W.2d 51, 65 (Tex.Cr.App.1978); and McMahon v. State, 582 S.W.2d 786, 792 (Tex.Cr.App.1978).

After careful consideration of the entire record and the several factors which the jury could consider [as set out in Hovila v. State, 562 S.W.2d 243, 249 (Tex.Cr.App.1978)], we are led to the inescapable conclusion that the evidence was insufficient to support an affirmative answer to the second issue. Consequently, we sustain appellant’s third ground of error. Warren v. State, supra. This holding, however, affects only the death penalty. We must, therefore, consider the other complaints brought forward.

In his fourth and fifth grounds of error, appellant contends that the trial court erred in overruling his motion to quash the indictment because it did not state the name of the alleged kidnap victim. He argues that the indictment did not apprise him of the charges which He had to defend against. He also contends that such omissions made it impossible to use such indictment as a bar to future prosecution of the kidnapping case. On the authority of King v. State, 594 S.W.2d 425 (Tex.Cr.App.1980), we must agree.

The indictment in King, supra, alleged that the accused did “while in the course of committing and attempting to commit kidnapping, aggravated rape and robbery,” intentionally caused . . . the death of the named deceased. There as here the appellant contended in a motion to quash the indictment that by failing to allege the name of the complainant or victim of “in-the-course-of offense” the indictment did not give the accused adequate notice of the charge against him. Here appellant also contends the failure rendered the indictment defective as a bar to subsequent prosecution for the same offense. We found in King:

“It is clear that when criminal conduct, constituting an aggravated feature of an offense may be directed at a person other than the ultimate victim of the crime alleged, the specification of that person is a fact to which the accused is entitled should he request it by timely filed written motion to quash.”

And in King we held:

“We hold that appellant’s motion to quash in the instant case entitled him to the allegation of facts sufficient to bar a subsequent prosecution for the same offense and sufficient to give him precise notice of the offense with which he was charged.”

The finding and holding of King make clear that a motion to quash on the grounds stated is not directed to omitted elements of the “in-the-course-of offense” mentioned in the indictment⁴ but, rather, to “a fact which is crucial to the accused’s preparation of his defense to the main charge of capital murder.” The same distinction was made in, e. g., Lindsay v. State, 588 S.W.2d 570, 572 n. 2 (Tex.Cr.App.1979).

So here the indictment is susceptible of an interpretation that the victim of the alleged kidnapping was a person other than the named deceased. We facially test an indictment “by itself, as a pleading,” just as was most recently done in Lindsay v. State, 588 S.W.2d 570, 572 (Tex.Cr.App.1979) and Doty v. State, 585 S.W.2d 726 (Tex.Cr.App.1979), for “[i]t can neither be supported nor defeated as such by what evidence is introduced on the trial,” Ritter v. State, 76 Tex.Cr.R. 594, 176 S.W. 727, 730 (Tex.Cr.App.1915), and this Court will not indulge in any presumption to complete the pleading, Sanchez v. State, 155 Tex.Cr.R. 364, 235 S.W.2d 149, 153 (Tex.Cr.App.1951). The common thread that runs through recent considerations of adequate notice to an accused when raised by motion is that where the underlying statute denouncing the offense prescribes, or permits conviction on, more than one set of circumstances, “the accused is not required to anticipate any and all variant facts the state might hypothetically seek to establish,” Drumm v. State, 560 S.W.2d 944, 947 (Tex.Cr.App.1977), but by his motion or exception may insist on “a specific allegation of what the State will rely upon to convict,” Amaya v. State, 551 S.W.2d 385, 387 (Tex.Cr.App.1977). Also Cruise v. State, 587 S.W.2d 403, 404 (Tex.Cr.App.1979) and Garza v. State, (Tex.Cr.App.1980).⁵ That thread was broken in the case before us.

Accordingly, we are constrained to sustain grounds of error four and five. Yet that ruling raises a question of proper disposition of the cause in its present posture. Since the affirmative answer to the second issue on capital punishment has been set aside for insufficient evidence to support it, the death penalty feature is no longer in the case. On the other hand, under the present indictment the offense is still capital murder, albeit the indictment has been held defective against a motion to quash. Because the defect is readily curable and since nature of the offense is grisly to the extreme, we are permitted the assumption that the case will be retried on an amended indictment. To obviate recurring complaints and channel the flow of a new trial, the remaining grounds of error will be considered.

We turn now to appellant’s sixth ground of error wherein he contends that the trial court erred in permitting Lawyer Goss to testify that he saw appellant in Lubbock during the afternoon of October 26. At the preliminary hearing outside the presence of the jury, it was shown that Goss was appellant’s counsel in an unrelated criminal matter and that appellant came to Goss’ office and made a payment on the fee in such criminal case. Appellant now argues that when Goss testified to seeing appellant in Lubbock — standing alone— amounted to a violation of the attorney-client privilege.

Art. 38.10, Vernon’s Ann.C.C.P., insofar as material to this case, is set out in the margin.⁶

Appellant relies upon language found in Cathey v. State, 467 S.W.2d 472, 473 (Tex.Cr.App.1971), and authorities therein cited. We are of the opinion that such reliance is misplaced. No testimony was introduced before the jury as to any communication between attorney and client, nor was the jury advised that appellant had ever been a client of Goss. Insofar as the jury learned from the testimony given, Goss may have become acquainted with appellant as fellow members of a church, bowling team, or social club.

Nor are we persuaded by appellant’s reliance upon Holden v. State, 44 Tex.Cr.R. 382, 71 S.W. 600, 601 (1903). Goss gave no incriminating evidence against his client; he simply testified to a single circumstance —appellant’s presence in a large city upon a particular day and hour.

In Church v. State, 552 S.W.2d 138, 142 (Tex.Cr.App.1977), appellant’s counsel, who was present at the lineup, testified on the trial. This Court found no error, saying:

“No communication between counsel and appellant was disclosed. Hence the attorney-client privilege was not invaded. Article 38.10, V.A.C.C.P.”

Moreover, the fact that appellant was in Lubbock on the afternoon of October 26 was made known to the jury by many other witnesses. He was identified without objection by Teddy Robinson, Cecille Hunter, W. E. Davis, and Ray Dunn. At most, the testimony of Goss was merely cumulative. It has long been the rule that improper admission of evidence does not constitute reversible error if the same facts were proved by evidence not objected to. Lichtenwalter v. State, 554 S.W.2d 693, 694 (Tex.Cr.App.1977), and cases therein cited. We find no error and ground six is overruled.

In his seventh ground of error, appellant contends that the trial court erred in overruling his motion to allow him additional funds with which to secure the services of an investigator.

Early in the proceedings, appellant had sought funds with which to employ an investigator to assist his court-appointed counsel and the trial court had ordered a payment of the maximum sum provided by Vernon’s Ann.C.C.P. art. 26.05, § 1(d) (Supp. 1980), the sum of $500. During the course of the trial, appellant filed the motion requesting additional funds for use in employing an investigator. The motion was denied.

Appellant does not point to any supporting evidence which would authorize or require the court to furnish additional funds for such purpose, the only record reference in the brief being to the motion itself, the operative language of which is set out in the margin.⁷

Appellant now argues, without additional factual basis in the record, that the refusal to provide the additional funds:

“. . . deprived Appellant of effective representation of counsel, due process of law, equal protection, and the right to a fair trial as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the Constitution of the United States, and Article 1, Section 10, 13, and 19 of the Constitution of the State of Texas.”⁸

We find no merit to the contention now advanced. All of the arguments now thrust upon us were considered and overruled in the dispositive case of Cherry v. State, 488 S.W.2d 744, 753 (Tex.Cr.App.1972), which was followed by Freeman v. State, 556 S.W.2d 287, 303 (Tex.Cr.App.1977).

In his eighth ground of error appellant contends that the trial court erred in refusing to order State’s counsel to divulge the identity of the informant whom he alleges gave information leading to the discovery of the body of the deceased in the secluded canyon area. The brief is deficient in that it does not point to the record where factual support of the contention may be found. Vernon’s Ann.C.C.P. art. 40.09, subdiv. 9 (1980).

After a careful search of our voluminous record, we now understand the reason for such omission. There is no factual basis in the record. Appellant filed a motion seeking the order; but, at the hearing, counsel offered no evidence. Instead, counsel made a statement:

“[W]e have been advised that there has been at some point in time, and this was stated at three different positions in the various reports, copies of which we have been furnished, that there was an informant. From the information that was obtained from this informant it appears to be possible that this person was either a party to this offense or was present at the time of the offense and has information that can be very fundamental in the preparation of the defense of this case and would urge the court to grant our motion so that we might know that information with which to move forward and prepare.”

No reports were identified or tendered in evidence. After a colloquy between counsel and the court, the Court stated into the record:

“Unless there is shown — something is shown to the Court establishing that this party is a material witness or a witness in some matter to the commission of the offense, the Court will overrule your motion.

“Other than general statement of counsel until there is something shown to the Court indicating this, the Court will overrule your motion.”

We find no merit to the contention now advanced and it is overruled. Lopez v. State, 574 S.W.2d 563, 565 (Tex.Cr.App.1978); Bernard v. State, 566 S.W.2d 575, 577 (Tex.Cr.App.1978); Andrew v. State, 558 S.W.2d 876, 877 (Tex.Cr.App.1977); Hardeman v. State, 552 S.W.2d 433, 439 (Tex.Cr.App.1977).

In the ninth and tenth grounds of error, appellant complains of the admission of photographs of the body of Johnny Turner, Jr., showing the body as found in the canyon. One of the pictures showed that the boy’s pants and underclothing had been pulled down below his knees but that he still had his socks and shoes on his feet.

Appellant says that the admission of such photographs “constituted an. improper comment” on his failure to testify. He argues that the very nature of the photograph would “raise questions in the minds of the jurors concerning any possible sexual conduct,” etc. and he would then be “put in an indefensible position regarding the photograph and its obvious reference to an extraneous sexual offense.”

At the outset of our discussion of these grounds, it is well to point to the testimony of Officer Nelson who described the finding of the body, the way it was clothed, who also testified that the pictures correctly portrayed the body at the scene in the same condition as when found. Thus, the photographs were competent. In Harrington v. State, 547 S.W.2d 621, 625-626 (Tex.Cr.App.1977), Judge Dally stated both the rule and the exception with regard to such photographs, using this language:

“If a photograph is competent, material and relevant to the issues on trial, the photograph will not be inadmissible because it is gruesome, unless it is offered solely to inflame the minds of the jury. If a verbal description of the body and the scene would be admissible, a photograph depicting the same is admissible. Only when the probative value of the photograph is very slight and the inflammatory aspects great will it be an abuse of discretion to admit the photographs.” (citations omitted, emphasis supplied)

The admissibility of photographs must rest largely in the discretion of the trial judge. Phillips v. State, 511 S.W.2d 22, 28 (Tex.Cr.App.1974); Harrington v. State, supra. We find no abuse of discretion on the part of the trial judge in admitting the photograph.

Moreover, the photograph showed only that which had been told to the jury by Officer Nelson; and, after an examination of the original of the photograph found in our record, we hold that the inflammatory aspects (if any) of the photograph are not such as to outweigh the probative value to the jury. See Kalinec v. State, 500 S.W.2d 146, 147 (Tex.Cr.App.1973). Appellant’s reliance upon Terry v. State, 491 S.W.2d 161 (Tex.Cr.App.1973), is misplaced. The photograph in this case did not show the results of an autopsy, as in Terry; instead, the photograph which we have reviewed simply showed the body as found.

Appellant also contends that the photographs showed the commission of an extraneous crime, i. e., some type of sexual molestation of the young boy, citing Albrecht v. State, 486 S.W.2d 97, 100 (Tex.Cr.App.1972), and its progeny. We disagree. As explained in King v. State, 553 S.W.2d 105, 106 (Tex.Cr.App.1977). the photographs showed “ ‘the context in which the criminal act occurred — what has been termed the “res gestae”.’ Albrecht v. State . . .”

Moreover, as we have mentioned earlier, the photographs simply showed in visually clearer form the facts stated verbally by Officer Nelson. He described in minute detail the condition of the body and how it was dressed when found. Thus, we invoke the general rule that where testimony admitted over objection is the same or substantially similar to that already received, no error is shown. See Kirvin v. State, 575 S.W.2d 301, 302 (Tex.Cr.App.1978), and cases therein cited.

Finding no merit thereto, grounds of error nine and ten are overruled.

Appellant’s diligent appointed counsel has filed an untimely supplemental brief wherein he urges error in the jury selection process. We will consider such grounds of error in the interest of justice under the provisions of Vernon’s Ann.C.C.P. art. 40.09(13) (1979).

The two grounds are bottomed upon what appellant contends to be improper challenges of jurors in violation of the doctrine laid down in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). In view of our action setting aside the jury’s answer to the second issue under Art. 37.071(b)(2), such points have no merit. Hancock v. State, 462 S.W.2d 36, 39 (Tex.Cr.App.1970). See also, Creel v. State, 493 S.W.2d 814, 821 (Tex.Cr.App.1973).

Because of the insufficiency of the evidence, we have set aside the jury’s answer to the second issue; consequently, we must now enter a judgment setting aside the penalty assessed by the jury as embodied in the judgment. Appellant may not again be tried for this capital murder wherein the State seeks the death penalty. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).

On the other hand, our sustaining grounds of error four and five requires reversal of the judgment of conviction and remand for a new trial. It is so ordered.

DALLY and W. C. DAVIS, J., concur. ROBERTS, J., not participating.

1 . . . PHILIP CAREY BRASFIELD did then and there intentionally and knowingly cause the death of an individual, Johnny Turner, Jr., by asphyxiating the said Johnny Turner, Jr., by manner and means to the Grand Jurors unknown, and the said PHILIP CAREY BRASFIELD did then and there intentionally cause the death of the said Johnny Turner, Jr., in the course of committing the offense of kidnapping . .

2 . Art. 37.071(b)(2) (Supp.1980): . . whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society . . .”

3 . “This Court has stated that in determining the likelihood of whether or not a defendant would be a continuing threat to society, the jury could consider whether the defendant had a significant criminal record. It could consider the range and the severity of his prior criminal conduct. It could further look to the age of the defendant and whether or not at the time of the commission of the offense he was acting under duress or under the domination of another. It could also consider whether the defendant was under an extreme form of mental or emotional pressure, something less, perhaps, than insanity but more than the emotions of the average man, however inflamed, could withstand.” (citations omitted)

4 . Thus, inapposite are cases such as Livingston v. State, 542 S.W.2d 655, 658 (Tex.Cr.App.1976), holding that “an indictment charging one offense during the commission of another crime need not allege the elements of the latter offense.” Accord: Hammett v. State, 578 S.W.2d 699 (Tex.Cr.App.1979) and cases cited at 708.

5 . Since, as pointed out in Garza, supra, a simple and easy manner is statutorily provided for curing a defect of form before announcement of ready, the reluctance of a trial judge to require or the resistance of a prosecuting attorney to make the amendment that is responsive to a motion or exception as to form is most difficult to understand. Alternatively, a statement in the record apprising the accused of the name of the victim of the “in-the-course-of offense” should suffice to show notice was given.

6 . . . an attorney at law shall not disclose a communication made to him by his client during the existence of that relationship, nor disclose any other fact which came to the knowledge of such attorney by reason of such relationship.”

7 . “Defendant would further show the Court that he has utilized the services of the appointed investigator to the full extent of the available statutory monies, and that he has a continuing need for the services of this investigator and must, in fact, have continued investigative services in order to prepare his defense to the charges now pending against him.

“Defendant would show that his attorneys have spent vast amounts of time personally investigating the case, but now have insufficient time to continue in the legal preparation as well as in the investigation of the case. For this reason, Defendant files this Motion requesting additional funds in the minimum amount of $1,000.00 for use in employing investigative services in the preparation of this case.”

8 . Appellant also argues that the $500 limit found in Art. 26.05, § 1(d), is invalid since the ceiling is the result of arbitrary and capricious action on the part of the Legislature. We do not find it necessary or proper to address such contention since there was and is no factual basis for a showing of need for additional funds exceeding the statutory limit.