Bass v. State

556 (Tex.Cr.App.1972), appeal 207 dis- People Medrano, v. 24 Ill.App.3d 429, 321 for want of substantial ques- missed federal (1974); 97 Kelly, N.E.2d State v. 111 Ariz. tion, 814, 175, 409 93 34 L.Ed.2d 181, (1974); P.2d 720 Ewald, 526 State v. 63 (1972). Appellant 71 that case chal- 165, 213, Wis.2d 216 N.W.2d (1974); 218 1147(9), lenged Art. V.A.P.C. on the Drake, (Iowa 219 1974); State N.W.2d 492 against it discriminated grounds men. W.E.P., 318 re A.2d 286 (D.C.App.1974); any by made an The statute assault adult cf. 288 Wilson So.2d 480 (Fla.App. upon aggravated an adult female an male 1974). Brooks, As was stated in supra: assault, but an assault an by adult woman equality “The of the sexes expresses a upon a man or another woman remained a goal, physical societal not a metamorpho- simple assault. This Court found that be sis. It would anomalous indeed if our purpose prevent of the statute was to seri- aspirations toward the ideal of equality that, injuries and bodily ous of the because under the law caused us to overlook our women, sizes of men and relative statu- human disparate vulnerabilities.” tory rationally classification related to 21.02, V.T.C.A., Code, Art. Penal does not accomplishment of that end. 1, 3a, violate Art. Sec. Tex.Const. Likewise, object rape stat is judgment affirmed. challenged designed here is

ute to accom legitimate state plish a interest. It is a knowledge of common

matter most perpetrated by assaults are men

sexual

against carry women. These assaults danger bodily of serious injury.

them also has an interest in preventing

The State pregnancies. protected Men are

unwanted assaults, otherwise, sexual or by from wom al., Aрpellants, Clifton Glenn BASS et provisions other en several of the Penal See, 5, Y.T.C.A., generally, Title Code. Pe Furthermore, a unique

nal Code. charac Texas, Appellee. of STATE can applied teristics test be justify No. 49937. statutory classification. Hymen and uter Appeals injury rape victims, to female Court Criminal Texas. possi ine bility pregnancy, and the physiological 23, Sept. difficulty forcing of a woman a man to sexual intеrcourse with suggest have her all justification for the sexual distinction em Comment, in Art. 21.02. “An

bodied Over Equal Rights

view of the Amendment

Texas,” 136, 11 Houston L.Rev. 146-150

(1973). also that

We note almost all of our sister question ‍​​​‌‌‌‌​​‌‌‌​​‌​‌‌​‌​​‌​‌​​​‌‌​​‌​‌​‌​​​‌‌​​​‌​​‍which have confronted this

states

recently upholding have reached decisions constitutionality respective rape their equal protection attacks.

statutes Gould, (Colo.1975);

People v. 532 P.2d 953 Mackey, Cal.App.3d

People v. (1975);

Cal.Rptr. Brooks (1975); 330 A.2d 670

Md.App. State

Price, (1974); 215 Kan. 529 P.2d 85 Grimes, Houston, R. for

Walter Bass. White, Houston, D. for Thomas Coleman. Jr., Houston, Szekely, Charles S. Haynes. Vance, Moss, Atty., Dist. Joe S.

Carol S. Jacobs, Brough George Asst. James C. Houstоn, Vollers, Attys., Jim D. Dist. Atty., McAngus, and David S. Asst. State’s Austin, for the Atty., State. State’s OPINION ed., 96; 2nd p. Sec. 24 Tex.Jur.2d, Evidence, p. Sec. ONION, Presiding Judge. appellants were jointly

These tried and Bruton v. States, United supra, Court, of the offense of murder with Supreme convicted the United States overrul malice, February States, which occurred on Delli v. United ing Paoli jury punishment 232, 294, (1957), assessed 77 1 L.Ed.2d 278 held appellants Haynes impris- despite jury Bass and at life to the that instruction to disre in gard implicating onment and assеssed Coleman’s the statements deter twenty (20) guilt or punishment years mining the co-defendant’s inno cence, joint trial of Corrections. admission at a of a Department defend extrajudicial confession implicating ant’s At the outset we are confronted with a the co-defendant violated co-defendant’s ground of common error—that the trial secured right of cross-examination the erred reversibly admitting court in into evi- confrontation clause the Sixth Amend extrajudicial the confessions of the dence Russell, ment. And in Roberts v. 392 U.S. non-testifying appellants, thereby de- other 1921, 293, 20 (1968), 88 S.Ct. L.Ed.2d 1100 them of the priving confrontation Supreme Court held that the Bruton Amendment, guaranteed by the Sixth Unit- only applicable decision was not to the I, ed Constitution. See also Article States proceeding, but that the decision was State 10, Texas Constitution. Reliance is Sec. fully retroactive. States, v. upon had Bruton United 391 U.S. 123, 1620, (1968). 20 88 S.Ct. L.Ed.2d 476 error is one of con While a Bruton joint appellants Prior to the trial dimension, we do know that such stitutional urged ground on the that each severance can, circumstances, some be error under had made written statements and the State error. Harrington harmless constitutional intended to use same. The motions 250, California, 1726, v. 395 U.S. 89 S.Ct. 23 After the separate hearing were denied. (1969); Florida, L.Ed.2d 284 Schnеble 405 confessions, the voluntariness 427, 1056, 31 92 S.Ct. L.Ed.2d 340 again reurged motions were severance States, (1972); Brown United again denied. (1973). 93 S.Ct. 36 L.Ed.2d 208 Smith, parte also Ex supra; Carey See

Subsequently, when the confessions were State, supra. jury, appellants offered before strenuously objected, citing again Bruton to Despite subsequent the court’s instruc- objections the trial court. The were over- charge to jury in its consider tions ruled, the confession of each against the only each сonfession defendant admitted into evidence. same, conclude, light making the Bruton, court in admitting erred general is well established as a It We must now determine the confessions. can only confession be rule such error was harmless or not whether person giving against used the confes appellant. to each inadmissible others un sion and is State, hearsay Schepps Simmons, rule. deceased, der the See Mary wife of thе Hu- Simmons, (Tex.Cr.App.1968); 940 testified she and her 432 S.W.2d bert hus- State, Carey (Tex.Cr.App. 455 S.W.2d 217 Billups band were at a Service Station State, (Tex. 1970); 18, 1972, Evans v. 500 846 February S.W.2d Houston on where her Hearne v. 500 Cr.App.1973); employed. S.W.2d husband was early morn- Smith, (Tex.Cr.App.1973); parte ‍​​​‌‌‌‌​​‌‌‌​​‌​‌‌​‌​​‌​‌​​​‌‌​​‌​‌​‌​​​‌‌​​​‌​​‍hours, Ex 513 shortly midnight, after ing 851 she awak- (Tex.Cr.App.1974); Lewis v. on a cot in a back room when S.W.2d ened two men (Tex.Cr.App.1975); attacking her began husband. She identi- Evidence, Ray, appellants & Texas Law of as the McCormick fied two Bass and Haynes began got up, stopped Coleman, she Haynes. When but decided to let Cole- a chair with a ladder and broke her he stated he lived in the go to beat when man played fell and dead. Bass until she although on her he did not have a driver’s complex get gun to out of a told then appeared drinking to have been license and his, drawer, kept the husband where later, Twenty minutes the of- intoxicants. Haynes brought it to Bass she heard when driving again saw Coleman ficer I want going get “I am him. say, Bass him and arrested him. stopped two anyhow.” She then heard him to kill po- were taken to the appellants All the her had earlier observed fired. She shots station, they gave where confessions. lice knew was un- condition and he husband’s confessions admitted over ob- These clearly the record was not While conscious. jection. aрpears the witness developed, it Simmons before left was shot omitting Bass’ Appellant way witness then made her to station. signature parts, and other formal warnings, yelled help, the station and for the front of reads: nearby Two officers heard her cries

etc. I is Clifton Glenn Bass and “My name fleeing Mary the two men. pursued and years male 20 old and I live colored am a identified the Simmons Tonight at about 6:00 on Guest Street. he was returned to the scene and when my sisters car this is I borrowed and P.M. pistol shown her the to as the identified Comet, may in color. car have blue a from the weapon taken station. It was I am not sure. When I green as been on Bass. found two other that I people the car borrowed Houston Police Officer R. J. Matthias re- RICKY and HAYNLEY were know as question lated that on the occasion in he time and we started me at this to was across thе street from the sta- service we all and went to the club drive around tion when he heard Mrs. holler Simmons and there we drank sev- on Crane Street etc., robbery, there had been a and observed pool place shot some eral beers and running. Bass and another male He imme- we left and I went to Pickfair and then Bass, diately apprehended who stated he my stays I saw and there son who Street “just robbed the station and shot thе had we with another woman. When there . . . .” Matthias re- attendant When around some more we drove left there station, to the he observed a broken turned driving I started to and think and I was chair, stepladder, an overturned a broken nothing had and that I my kids 7-Up bottle with blood on it and two bullet money and I was am not needed some shells. and I was broke. The first working now Hensen, who was with Matthias Officer thought hitting about thing that I was hollered, when the witness Simmons identi- we all drove around look- and place some appellant Haynes being to the fied close place by to hit. We drove for some ing of the station at pursued door the time. He station on Jensen and BILLIPS Drive sight into a wooded area lost and would good place that this be a thought I action, other detailing him. Without all the down street and I let and drove apprehended in the area the car and he let drivе me and RICKY units. police Haynes’ fingerprints other out down the street from the Haynley 7-Up found on the bottle found in the we walked back and to the sta- station station. went into the station We both and tion. a bottle of soft drink bought I and then I Houston Police Officer Wood arrived in the station who receiving a hit the man is the police area after broadcast. there, him manager he and I hit over the head with observed While apartment complex an and this knocked him drive into the bottle to the Coleman lights Haynley with his auto off. He At this same time was in lot floor. parking part place the back room where a wom- I to and tried talk him it, out of but bed and an was on the when I hit the argued he called me afraid and we and (sic) (sic) to hollor mna she started and right. all then I told him We rode her over the Haynley then hit head with more around a little and then Ricky let getting this time I was a tire tool. At out me and Clifton Jensen and we money from the cash drawer Billups walked Station and went gun inside, told that there was Haynley me a Clifton bought and then a bottle got gun I the drawer and out of the coke. Then Clifton hit the attendant manager laying (sic) drawer and the was still with the bottle ane then I saw Clif- Haynley told to on the floor and me not ton hit the man with tire tool and then for some reason I shoot the man but shot on the a woman who wаs bed in the back gun him I shot the any way. two times part of the station started to scream that I pushed as I was not sure had hit him with I her her went to down. I Then the first shot. both men and her (sic) hit and then I didnnot looked HAYNLEY left station and run to and saw Clifton back to the front and the tusselling on Jenson drive and then man were still and then the way up short the street about two the cash drawer blocks started to man and I me. I police caught going gun am now in knew that he was and I and am giving got Homicide office Clifton the gun state- told Clifton out ment R. get to Det D. SPURLOCK and Det I tried to drawer and him Spurlock explained (sic) me rights to me but he would give gun, not me the given a warning by and I was also times the man two and then he shot then me officer that arrested R. J. MATTHI- started and to run place we left the to by Spurlock told Det just AS. I was that we came out of the place after know the man that I is caught given HAYNLEY us. I was and the Police a rеally HAYNES. I can read the legal warning by KELSO officer that arrested english language and I have me, read this CLARK and officer B. J. then before find that it is true statement and and statement was made Det D. R. my rights correct.” explained to me. SPURLOCK I have read the above statement and find Likewise, Haynes’ confession that it is true and correct.” reads: And Coleman’s ex- I “My name is KELSO and HAYNES manner, tracted in a like reads: 22 years am a colored male old I and live Park area of I “My at the town and is Freddie Coleman and I South name Tonight Wipprecht address. my don’t know the live at 4230 with two brothers, me and my about 7:30 P.M. Clifton and Rick- sisters and mother three and together unemployed right and Clifton a ey were borrowed father. I am now be- and we from just car from his sister started to ride I came California two cause or some I around and drink beer. We then used to be a cook at ago. three weeks on on Main place went to a Crane Street and Drive Inn Street. To- Ritzie Bass, pool beer and shot who I have night drank some more some Clifton known came got tight by my and I went to the car and I little since was house with I sleep. up went was woke when Clifton was guy driving to a named Kelso. they on picked car run into a ditch SCHILLER car. After me up street his sisters I do ‘Man, place’, or not know a Curry just Street which one. we hit Clifton Bass the car out get We could not of the ditch to asked me They my gun said me. RICKY went get and Clifton and some but I acted like didn’t I have one in the gone help they jack while I took the going looking after back and house for it. out of the got my the car ditch. Then I them brother told had it. After we hitting to talk about my Clifton started left house we went to Lockwood driving was the car. and Clifton Harrington’s guilt Street dence of and the rela- driving and went the first street He was insignificаnt prejudicial tively impact of store on past liquor Lockwood. This statements, held these co-defendants’ Spec’s Liquor got # 2. Clifton Bass was of Bruton that had any violation occurred and told me to scoot over to the out beyond harmless error reasonable seat. Clifton went down to the drivers doubt. and came Liquor running store back Florida, Likewise in Schneble said take in the car and off. I backed

got 427,92 (1972), L.Ed.2d 340 the ditch. put сar into We a board said: court further got the tires and out. Clifton under said finding of a “The mere violation of the anything get Liquor didn’t from the he trial, Bruton rule the course of the but the wallet. After we store left there however, automatically does not require riding for we went awhile. We went ensuing reversal of the criminal convic- they Dr. on Jensen told me down properly tion. In some cases the admit- going to they were rob Motel. We is so overwhelming, ted evidence stopped Curry Street. Clifton came effect prejudicial and the of the code- running they back and told me were al- insignificant is so fendant’s admission robbing place. thru I didn’t most is beyond that it clear a rea- comparison, know it was a service station. Clifton improper sonable doubt use of went back and I drove a couple blocks was harmless admission error.” down the street and thats when the Offi- got they cers me. I didn’t know had States, In Brown v. United killed a man until the Officers told me. I (1973), 93 S.Ct. L.Ed.2d 208 grade went to the eleventh in school and Harrington court cited Schneble English can read and write the Language approval, and stated: and have read the above statement and it independent “Upon an examination' of true and correct.” is record, agree with the Court of The cause of the death of Hubert Sim- the Appeals thаt Bruton errors were gunshot was shown to be a mons wound to testimony erroneously harmless. The ad- the head. merely mitted was cumulative of other appellants testify did not at the overwhelming largely and uncontrovert- the trial.1 stage of properly jury.” ed evidence before the Harrington California, 250, v. In 395 U.S. State, Carey 217, In 455 v. 221 1726, (1969), 23 89 S.Ct. L.Ed.2d 284 four (Tex.Cr.App.1970), this recognized court jointly tried for the defendants of- rule in Bruton was not absolute. See also Harrington of murder. fense admitted be- Smith, parte (Tex.Cr. Ex 513 S.W.2d 839 crime, ing at the scene of the but he denied App.1974). One of the other complicity. co-defendants State, 221, Carey supra, p. v. at and implicated Harring- had confessed who court noted: the witness stand and was cross- ton took The other two co-defendants appear examined. that a “It would substantial dif- stand, but their not take statements joint did ference ‍​​​‌‌‌‌​​‌‌‌​​‌​‌‌​‌​​‌​‌​​​‌‌​​‌​‌​‌​​​‌‌​​​‌​​‍exists between a triаl jury were introduced corroborated Har- hears a which which co-defendant’s state- at the scene rington’s presence inculpating of the crime. ment defendant who has court, noting overwhelming evi- made similar incriminatory himself ad- Denno, at the Jackson v. testify They did ed to the voluntariness of the confessions at 368, 1774, 84 12 L.Ed.2d 908 S.Ct. hearing, judge strictly the first and limit- 38.22, Ann.C.C.P., Vernon’s and Article penalty at ed their cross-examination hearing subsequently penalty at and stage. testimony stage of the trial. This was limit- 562

missions, type and the Bruton of apprehended case in within a short distance there- which the co-defendant’s statement is from. against used a defendant who has made probable that the impact We conclude In the former situation no admissions. jurors minds of the admission of prejudice or harmful effect Haynes’ Bass’ confessions was not so defendant, any, entirely if is minimal and sо prejudicial require as to reversal as to reversal, particu- to call for a

insufficient them. The State’s case these two larly adequate where there is other evi- appellants would not significant- have been guilt, dence to reflect defendant’s persuasive ly less had these two confessions omitted)” (authorities cited been excluded. We conclude that their ad- mission, error, while was harmless error (Fla.App. In Jones v. 227 So.2d 326 a reasonable beyond doubt. parte Ex 1969), it was held that where the defend Smith, supra; Carey v. supra; clearly which was ant’s admissi Florida, supra; v. Harrington Schneble him, was in such detail that ble as California, supra. of his co-defendant the statements which nothing him added implicated new the ad Now question we reach the Harring harmless error under mission was admission, whether objection, over California, supra. People See also ton appellant Coleman’s statement was reversi Rosochacki, 483, 41 Ill.2d 244 N.E.2d 136 appellants ble error as to Haynes. (1969). We conclude such admission was error as to Haynes. Bass and While that part of Cole Likewise, there holdings have been man’s statement which merely placed Bass error is not joint Bruton harmful trials the scene of the alleged when the confessions of co-defendants es error, portion was not harmful crime corroborate, sentially support interlock and remark, “Man, statement as to Bass’ other. United ex each See States rel. Ortiz just place” presence hit a Fritz, (2d 1973), 476 F.2d 37 Cir. cert. recitation about Coleman’s a subse 1075, 591, 414 denied U.S. 94 S.Ct. 38 offense quent clearly extraneous inad 482; United L.Ed.2d States ex rel. Duff v. hearsay as to Bass Haynes. missible Zelker, (2d 1971), 452 F.2d 1009 Cir. cert. First, was no basis for the there introduc 932, denied extraneous tion оf the offenses as to ‍​​​‌‌‌‌​​‌‌‌​​‌​‌‌​‌​​‌​‌​​​‌‌​​‌​‌​‌​​​‌‌​​​‌​​‍these 134; United States ex L.Ed.2d rel. Catanza and the appellants, introduction of the Mancusi, (2d 404 F.2d 296 1968), Cir. ro non-testifying statement co-defendant denied 397 U.S. 90 S.Ct. cert. Haynes denied to Bass and their constitu 123. also L.Ed.2d See Stewart tional of confrontation and cross-ex (Ark.Supr.1975). We amination. cannot conclude that was harmless error beyond Bruton error ap review instant case of A reasonable doubt. Haynes’ rе pellants Bass’ confessions Next, we must consider whether the in- they substantially are similar in na flects confessions, of Haynes’ troduction Bass’ and ture, corroborate, essentially interlock and objection, over constituted reversible error each other as to the offense support as to Coleman. charged—the murder of Hubert Simmons. merely confessions were cumulative of The from Aside the statements of the overwhelming independent evidence which appellants, independent evidence did Haynes acting that and Bass were showed not connect Coleman with in during robbery the course together Haynes alleged Bass or or with the crime. killed, the deceased was beaten and merely placed which him some five or six It blocks they alleged shortly fled from the scene and were crime that from the scene ' probable The in only impact the offense.2 reference on the minds after killing found prejudicial require itself is as to re- jurors the statements was so confessions, Haynes’ as Cole- Bass’ in versal. of the kill- personal knowledge no

man had wife, testimony of the deceased’s theory of the case ing. It was Coleman’s murder, witness to the eye who was an principal. The court he was not that evidence and the physical individual confes- jury the case to the on the law of submitted sions of Bass of such jurors to ac- and instructed principals as to lead to the strong character conclusion beyond a they unless believed Coleman quit case would not that the State’s have been acted to- doubt Coleman reasonable had this statement ex- persuasive less been principal. Bass and as a gether Therefore, the admission cluded. of this cоnfession, among in Bass’ statement statement, error, while was harmless error “ around, drove others, . . .we all beyond a reasonable doubt. Schneble v. place clearly to hit” was looking for some Florida, Harrington California, supra; was introduced to Coleman and prejudicial supra. having con- the benefit of without Coleman error been No reversible has shown as to and cross-examination of Bass. frontation Haynes. The judgments Bass and as to to conclude that without are unable We affirmed. should be them (against case confession State’s Bass’ Coleman) not per- would have been less Florida, supra; Lewis

suasive. Schneble DOUGLAS, J., joins opinion. in this (Tex.Cr.App.1975). 521 S.W.2d judgment Coleman Since reversed because of the introduc-

must be objection, of Bass’ confession over

tion not consider whether the introduction

need Haynes’ which was a Bruton

error, was also reversible error. Likewise, we need not consider Coleman’s COOPER, Appellant, C. Jack failing that the court erred in

contention limiting instruction as to the use of give a extraneous

evidence of offenses or other Texas, Appellee. The STATE of error. grounds No. 49989. stated, the reasons are judgments For Appeals Court of Criminal of Texas. ‍​​​‌‌‌‌​​‌‌‌​​‌​‌‌​‌​​‌​‌​​​‌‌​​‌​‌​‌​​​‌‌​​​‌​​‍and causes remanded. reversed Sept. MORRISON, Judge (concurring part in dissenting part). in the results as to the I concur However, I dissent respectfully

Coleman. appellants as to the Bass and the results admission of Cole-

Haynes. The referring to extraneous of-

man’s statement But, in over- was error. view of the

fenses evidence

whelming independent pf I cannot conclude Haynes, Smith, registration relationship the State traced the tion or While between - he was arrested to a Robert the car in which Bass. Smith, showing any was no connec- there

Case Details

Case Name: Bass v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Sep 23, 1975

Citation: 527 S.W.2d 556

Docket Number: 49937

Court Abbreviation: Tex. Crim. App.