*1 Code to make it easier to enforce marital agreements,
property appeals the court of apply bound to the law as it existed at time the signed. divorce decree was (Vernon
See Tex.Fam.Code Ann. 5.46 §
Supp.1989). opinion
Because the ap- court of
peals is conflict former section 5.45 Code, Family grant Laura Sad- application
ler’s of error pursuant writ 133(b) rule Appel- of the Texas Rules of Procedure, hearing
late oral without
argument, majority court reverses judgment appeals court
remands the cause court to that for further
consideration. BOWER, Jr., Leroy Appellant,
Lester Texas, Appellee.
The STATE of
Nos. 69333-69336. Appeals Texas,
Court of Criminal
En Banc.
Jan. 1989.
Rehearing March Denied 1989. 3,1989. July
Certiorari Denied
See 109 3266. S.Ct.
wife, Bobbi, Philip Good had met previous Wednesday someone the who was buying light. interested in 8,1983, On Mr. Tate October went out to his ranch to house he work on a was build- Tate, ing. According to Bobbi was to *3 return to their home town around 4:30 p.m. p.m., when About 7:30 he failed to return, Jr., stepson, Bobby her Bobbi and hangar, went to the ranch. of the Outside they belonging Tate, Philip saw vehicles However, Mays. Good and Ronald hangar lights no was locked and showing through the windows. Bobbi re- key pickup trieved a from her husband’s hangar Upon open- unlocked the door. ing door, they body saw Ronald Martin, Mays lying in Hagler, Dallas, pool E.X. blood. Bobbi and John H. for appellant. Bobby, phone Jr. went to the nearest police. called
Stephen Davidchik, Atty., Dist. and Kel- Good, Philip Good, Marlene the widow lis Sampson, Atty., Sherman, W. Dist. Asst. story. reiterated a similar She testified Huttash, Austin, Robert Atty., State’s 30,1983, September that on someone called the State. spoke Philip their home and for ten or with regarding fifteen minutes an advertisement Philip placed maga- in “Glider Rider” regarding light. zine of an the sale ultra OPINION Philip told the he had sold caller that light magazine, ultra advertised in the but McCORMICK, Presiding Judge. he had could another that he sell. On the Appellant capital was convicted of four following Tuesday, Monday or the man murders joint after a trial. Punishment in again. Wednesday, called On October each case Appel- was at death. assessed Philip Holiday met the man at the Inn in lant points has raised the same twelve of Sherman and him out to the B B took & and, reason, error in each case for that all Ranch in him order to show Bob Tate’s four together. cases will be considered light. Philip ultra When returned at about Testimony p.m., thought 4:00 that he trial showed that one of the told Marlene victims, Tate, Bobby light he had sold ultra Glen owned the B & B Bob Tate’s and the going up plane Ranch pick near man was was located Sherman. light Saturday, Mr. Tate ultra On Mar- owned an aircraft October 8. October hangar spent day which he lene stored in a located on his testified that she Mays’ Philip spent property. light day Another Ronald wife. ultra aircraft helping Jerry owned also an ultra Brady David was stored in Brown build Philip’s p.m., hangar. presented hangar. Philip was At called Evidence 3:30 put going show her and told her he to meet the that Tate had decided to his ultra was light up friend, hangar man the B B Philip for sale his at the & Ranch at Good, victims, p.m. p.m., approximately another one 4:00 At 4:30 Ron- who sold lights Mayes hangar ald attempting buyer go to find left to at the was day for the aircraft. A or two ranch. When not returned 6:30 before the he had offense, p.m., hangar commission of the told to see Tate Marlene went to happening. arrived, what was When she further presence testified that the parked she too saw all vehicles outside. contact wounds indicated that when the hangar door weapon fired, was locked and was gun muzzle of the when hangar windows, she looked into the placed directly against the victim’s she could see that Bob addition, Tate’s ultra head. the gunpowder residue missing. Seeing that no one was left on the victims indicated that in each around, she went home. instance weapon the murder equipped with a silencer. Dr. Petty testified that he investigators When scene, arrived on the fragments removed eleven bullets and they grisly sight. discovered a Immediate- from the ap- victims. All of the bullets ly inside the hangar, they door of the found peared to .22 caliber hollow bul- body Mays. Ronald Underneath a lets. pile carpeting, investigators found the Good, Philip Tate, Bobby Fletcher, bodies Larry a firearms examiner with *4 Jerry Good, Tate, Mack Brown. County the Dallas Institute of Forensic Sci- ences, Brown had each been shot twice in the testified that tests run on both the Mays head. had spent been shot once in the casings and the bullets indicated that head, neck, once in right once in the the shots were fired from either an arm once right chest, in the side rifle, of the Ruger AR-7 .22 caliber a .22 caliber and once back of chest. All of pistol, High semi-automatic or a Stan- the victims still had their wallets and their dard .22 caliber pistol. semi-automatic jewelry. Tate’s ultra Markings had been on the bullets indicated that a hangar day earlier in the was miss- silencer was used. In addition the ammuni- ing. A against table situated one wall of tion was manufactured Julio Fiocchi and hangar large spot (traveled had a of blood on it. speeds was A-sonic below the Tests speed sound) showed that this blood matched a points. and had hollow sample of body blood taken from Tate’s Fletcher testified that A-sonic ammunition during This, autopsy. plus place- had the reducing characteristic of the noise ment of the carpet, bodies underneath the discharge normally upon firing heard investigators led speculate that Tate had of a weapon. Fletcher also testified that been sitting shot while at the table and Julio Fiocchi ammunition unique dragged then had been placed over and years his nine as a firearms examin- er, with the bodies of Brown and Good. Inves- he had never encountered it before. tigators also found spent bullets, eleven .22 caliber Due to the condition of the Fletcher casings shell which had been manufactured positively say could only two of the by Julio Fiocci. arrange- The scattered bullets weapon. were fired from the same casings ment of the on the floor of the One of these bullets was extracted from hangar indicated that the killer body Mays had used an of Mr. and one from the weapon revolver, automatic body rather than a of Mr. Tate. ejects
since an cartridges automatic Much of testimony dupli- Fletcher’s after each shot. Schrecker, cated testimony a Paul Petty performed Dr. autopsies Charles firearms examiner with the FBI. Schreck- According on the Petty, victims. to Dr. casings er testified that all eleven victims, Good, three of the Brown and Tate single weapon, fired from a and the mark- gunshot all sustained ings two wounds to the casings on the were all consistent with Tate, head. the cases of Ruger Good and both a firearm. His examination men had one contact wound. On the other bullets indicated that at least seven of hand, both of Brown’s wounds were con- weapon. bullets were fired the same Mays tact wounds. sustained one agreed contact He with Fletcher that a silencer wound to the head and four other wounds type was used. As far as the of ammuni- upper part used, to the body. Petty of his Dr. tion Schrecker testified that he had
g91 never encountered Fiocchi long .22 caliber Good was not at home. He later called rifle ammunition before this spoke case. back and with Mr. Good in- who formed him that the ultra had been Payne, appellant’s Dennis supervisor at Appellant sold. told Duke had Thompson-Hayward Chemical Company only made calls two and none of the calls Dallas, appellant testified that had worked placed company had been credit cards. company in Colorado until he was Appellant also told Duke that he had never February laid off in May of 1983. Then in appointment made an to see Good had 1983, Payne had hired him for a sales only passed through way Sherman on his position in Although appellant’s Dallas. to Tulsa or Gainesville. When asked his job performance in Colorado had been ex- day murders, whereabouts on the cellent, performance poor. Dallas was appellant told Duke that he could not ac- Dallas, working While appellant had count for his whereabouts on October assigned telephone been credit card. A although he did remember that he sick Thompson-Hay- review the record of the Monday, with a virus on October 10 and phone ward Chemical bills indicated that on stayed Finally home from work. Duke Friday, September 30, a call was made and testified that admitted he owned charged appellant’s company credit card. Magnum rifle, a .300 Reming- Winchester This call was to Philip made resi- Good’s shotgun, Savage ton 1100 Model B side- dence and the conversation lasted ten min- by-side shotgun, Ruger double barrel utes. A direct dial call Philip was made to rifle, .220 277V caliber a 6.5 Japa- caliber *5 again Good’sresidence Monday, on October rifle, nese a Winchester bolt action .22 cali- 3. This was a two minute call. Another rifle, ber a Marlin lever action .4570 caliber placed call appellant’s on credit card to government rifle, Remington a .243 caliber Philip Friday, Good’s residence on October rifle, and a .20—Model 929 Smith and 7. This call lasted three minutes. Magnum Ap- Wesson .44 caliber revolver. Another appellant’s coworkers, one of pellant also told Duke previous- that he had Cordial, Randal prior testified that ly to the owned a .357 caliber revolver. When company meeting 3,1984, sales January on specifically asked about a .22 hand- caliber appellant him told that he building gun, an appellant replied that he did not own light airplane ultra only lacked one.
engine. 13, 1984, January appellant On went to
FBI Special Agent Nile Duke testified the FBI in office Dallas to take liea detec- they that after traced the above-mentioned tor talking agents test. After with the phone calls there, to the Thompson-Hayward appellant decided take the Company, Chemical began he interviewing According agent test. to FBI William employees all the company hopes in Teigen, at that all the authorities finding placed out who had appellant the calls. knew about was that he was em- learning After appellant that Spe- ployed had told Thompson-Hayward, that three Agent Knight cial Jim that he telephone had tele- calls had been made on the com- phoned Good, Philip he scheduled an inter- pany phone Philip bill Good’s residence appellant view with on January 1984 at lights. and that he was interested ultra company During office. Appellant the two hour stayed and FBI talked with the interview, appellant told agents Duke that he had During some four hours. this con- seen Mag- versation, an advertisement in appellant Glider Rider admitted that he had regarding azine light ultra an aircraft that made the calls but that he decided not to Appellant Good had for buy light sale. admitted the ultra from Good and never calling the Good residence any Appel- twice. Accord- had further contact with him. ing appellant, during the first call agents which lant also told the of his interest shortest, spoken he said was the he lights. Appellant ultra related to the only agents with Mrs. Good who told him Mr. spent researching that he had how hours lights hoped things
ultra he someday appellant’s how other Federal Firearms light. build an Appellant permitted ultra went on to Licenses him which to sell fire- agents already arms, tell the he had that obtained ammunition and other destructive de- piece covering, Appellant’s for Firearms-Acquisi- of fabric fiber- vices. own glass Disposition boat seat and some aircraft alu- tion and Record which was also Teigen during minum. testified at trial that after seized the search indicated he that talking appellant bought Ruger ap- pis- he believed that RST-6-automatic .22 pellant tol, more February than obsessed with the serial number 17-28022 on specific questions by aircraft. asked When 1982 and sold it to himself on March agents, appellant Investigation said he had nev- 1982. showed that on Febru- 12, 1982, bought light, er an ary appellant ultra had not also ordered three the day been Sherman on of the mur- boxes of Julio Fiocchi .22 ammunition. ders, Philip Perhaps that he had not met incriminating parts Good most were day light during of the murders and had never met of the ultra found the search. person, him in garage light that he did not know where In the were two ultra tires missing was, light ultra and that he had and rims with the name “Tate” scratched missing light. light never seen the ultra each rim. Another ultra tire and rim were found in house. Six investigation, After further a search pieces light tubing of aluminum ultra were warrant was obtained resi- garage. up top found Wadded dence. during The search was conducted warning a box stickers evening Among January 1984. from had been removed the aluminum the items seized were various manuals and tubing light. addition, of an ultra magazines which were introduced into evi- ultra harness was found the house dence Cuyuna at trial: a manual on the fiberglass and a boat seat was found in the engine, magazine aircraft enti- garage. pair of Authorities also removed a Magazine Glider Rider’s tled nylon bag boots and a from rubber blue subscriber, showed as a appellant’s garage noticing ap- after what Parts, World Guide to Gun the Instruc- *6 peared to these be blood stains on items. Ruger tion Manual Standard Mod- for sledge Also hammer and removed was a Pistols, el .22 Automatic of Fire- II Vol. some ashlike debris taken from the trunk Manual, arm Silencer pages two Xeroxed appellant’s car. Shotgun News depicting from silencers and Weap- The AR-7 Exotic weapons, silencer presented Scientific trial evidence Book, System ons explosives belonging fingerprint manual on showed that a to one High-Low Explo- Boom! Modem victims, Brown, Jerry entitled of the Mack was sives, Semi-Full light another manual entitled found on of ultra pieces one of the Auto, Manual, AR-15 Modification tubing appellant’s garage. anoth- found in In ad- weapons dition, sledge Rhodesian analysis er manual entitled an hammer Guide, Leaders catalogs appellant’s garage showed several con- removed from taining military equipment present on one side of its ads for includ- that material ing guns, clothing publica- polypropylene, and numerous head was the same material including Ae- tions books on how to kill. Au- which was used to make the American rolight present thorities also found a form letter address decals. Metallic smears to “Dear from Enter- the other side of head tested out to be Customer” Catawba its prises, indicating appellant pur- type alloy had of the same of aluminum as was engine, re- company. Cuyuna chased an item from the Au- used to make the engine, thorities also found inside a for crank Cuyuna briefcase duction unit light appellant’s garage which was located inside case and the in ultra carburetor used an Allen used An material taken analysis wrench which could be aircraft. pistol also re- appellant’s mount a Catawba silencer to a and a from the trunk of car among fragment packet of materials included of this same aluminum vealed alloy. A forensic metallurgist put with the broken down and into a thirteen foot carrying person. FBI case and carried one fragment determined that this metal every also testified that Grennan ultra portion was once a unit for a reduction light by her company manufactured bears light engine an appeared ultra and it decals, company three on one two the reduction unit was fragmented by a pieces tubing engine. and one on the smashing action, consistent with a blow However, examining tubing after re- sledge from a hammer. Also found appellant’s garage, moved from she noted from appellant’s debris the trunk of car present. that these stickers decals were not fragments Aerolights of an American every light She also testified that ultra has decal. Tests on the boots from removed warning certain stickers. When shown garage presence showed of human up wadded stickers found on the box right blood on the attempt boot but an garage, Grennan testified that type the blood was inconclusive. Tests warning those were stickers that would nylon bag the blue found in go on the manufactured her garage presence also indicated the of hu- company. Finally, Grennan testified that man blood. appel- the harness and tire rims found testimony presented Other to show lant’s came from an ultra Enterprises primarily Catawba dealt Aerolights. American manufactured parts silencer and that the Catawba silenc- Carr, Marjorie the owner of a fruit stand er easily Ruger could be installed on a Sherman, testified that she had seen RST-6 semi-automatic pistol .22 with appellant in company Philip Good Waters, Allen wrench. Ed attorney for September Sherman in late of 1988. Ac- Enterprises Catawba ninety- testified that Carr, cording appellant Good and had per nine cent of company’s business appellant come into her stand and in- selling silencers appellant and thus if in buying oranges. terested some Carr had one of the company’s form letters ac- spoke appellant related that she knowledging transaction, appellant had some ten or fifteen minutes and she re- probably purchased a silencer from the appellant telling membered her that he had company. moved from Colorado several months earli- living er and was then in Dallas.
Sandy Brygider, Bingham the owner of testimony Further showed that Limited, the sole distributor of Julio Fiocchi gone Arlington Sportsman’s to the ammunition in the United States testified September spent Club on 1983 and had that the .22 sub-sonic Fiocchi ammunition firing fifteen minutes .22 ammunition. was not sold over counter but rather *7 specialty was a primarily item used for During case-in-chief, appel- the defense suppressed weapons. Brygider testified presented lant several witnesses who testi- in previous years, compa- that the three his appellant’s reputation being fied that ny peaceful law-abiding had good. sold Fiocchi ammunition to citizen only ten was presented or Evidence was also to show that fifteen dealers in Texas. He further although bought appellant Ruger had company testified that his records showed pistol in RST-6 semiautomatic .22 he they shipped that three boxes of Fioc- had lost it in the of mountains Colorado long chi point .22 rifle sub-sonic hollow August backpacking while alone in of 1982. appellant ammunition to February Finally, appellant’s wife testified that on 1982 and five more boxes on December offense, morning appellant the left 1982. go their home around 6:30 a.m. to bow Grennan, Lori the customer service coor- hunting. He returned home around 6:30 Aerolights, dinator for American testified p.m. company that her manufactured the ultra
light
by
error,
owned
Bob Tate. She testified
point
In
third
of
possible
argues
that it was
for the aircraft to be
that the
is insufficient
evidence
support
to
his
Appellant
light
conviction.
con-
evidence in the
most favorable to the
verdict,
against
tends
that
the
find the
evidence
him
evidence
be suffi-
cient to sustain the
nothing
Appel-
amounts to
more
convictions.
strong
than a
point
lant’s third
of error
suspicion
is overruled.
crime,
that he
the
committed
or a
probability
mere
that he
so.
did
error,
point
In
appellant
his tenth
of
In both circumstantial and direct evi-
argues that the evidence is insufficient to
dence cases the standard which evidence prove
offense
that the
occurred while the
is
any
reviewed whether
rational trier of
appellant
committing
course of
fact could have found the essential ele-
attempting
robbery.
In
commit
ments
beyond
of the crime
a reasonable
point
error,
argues
eleventh
of
appellant
State,
Houston
doubt.
ever and his deni- Good testimony offense but of Marlene Good agents having possession al to the FBI of light missing showed that the ultra any missing light parts of only of the ultra when looked in of Mrs. Good the window prior a week to arrest are further hangar p.m. substan- the approximately 6:30 that appellant’s guilt. Viewing evening. tiation of the
895
above,
thought
coldly
As noted
he
appellant
planned
in
with which
indicted
case
pursuant
probative
murder
capital
pro-
each
to
executed his crime is
of his
V.T.C.A.,
provisions
Code,
pensity
the
of
Penal
Sec-
to commit future acts of violence.
19.03(a)(2)
State,
State,
person
supra; O’Bryan
Moreno v.
provide
tion
that a
v.
capital
commits the offense
if
of
murder
he
(Tex.Cr.App.1979).
State, (Tex.Cr.App.1982).
S.W.2d 129
We turn
to
first
conten
State,
O’Pry
(Tex.Cr.
S.W.2d
concerning
viewing
tion
of the ultra
App.1982) (Opinion Rehearing).
Appel
lights parts
appellant’s garage
on Janu
points
lant’s tenth and eleventh
of error
13,1984.
ary
hearing
At the
on the motion
are overruled.
suppress,
Ranger
Texas
Weldon Lucas
agents
testified that
two FBI
he and
went
Appellant
complains
also
evening
on the
home
Janu
support
evidence is
insufficient
an af
ary 13 to further
converse with him.
special
firmative answer to
second
is
pulled
house,
When
they
up
Lucas
punishment phase
trial,
sue. At the
of the
lights
noticed that the
the house
produced
State
testimony.
no additional
garage
while the attached
was dark. Lu
presented
The defense
testimony from fam
agents
cas told one of the
to look into the
ily and
appellant
friends of the
to the effect
garage to make
that no one
sure
person
was not violent
but
garage
to knock
while he went
on the front
good
generous person.
was a
agent
door. When the FBI
looked into the
determining
sufficiency
In
of the evi-
garage
window, he
door
saw the aluminum
support
dence to
an affirmative answer to
tubing
lying on the
floor.
issue,
special
may
second
take
into
Appellant
principally
relies
on the case of
during
guilt-
account the facts adduced
State,
Kann v.
(Tex.App.—
Moreno v.
phase
innocence
trial.
S.W.2d
State,
refused)
petition
support
Dallas
(Tex.Cr.App.1986);
who had
2580-2581,
from an
(1979).
unnamed
States, 389 U.S. 88 S.Ct. (1967), L.Ed.2d following “Following curtilage two- the definition of inquiry Oliver, fold has been used to determine set out we hold that the curti- complies lage surrounding whether a search home en- (1) Fourth Amendment: compassed carport. whether an indi- her Woodbury See vidual, conduct, actual, Beto, (5th Cir.1970). exhibits an 426 F.2d subjective expectation (2) privacy; carport adjacent expectation privacy whether that is yard separated back and was from it society prepared recognize one that only gate a fence with a in it. The fence States, as reasonable. yard Oliver United blocked view of the back from the [466] U.S. [170], S.Ct. 1735, 1740, alley. Moreover, appellant owned the (1984); L.Ed.2d 214 Maryland, carport Smith v. land on which the was situated 735, 740-741, 442 U.S. 99 S.Ct. and maintained control over the use
897
...,
carport.
personal belong-
peaceably,
up
steps
the
had
to walk
the
She
ings
Therefore,
in
carport.
any
the
Officer
and knock on the front door of
man’s
appellant’s curtilage
Acord invaded
when
asking
‘castle’ with the honest intent of
peer through
to
carport
occupant
she crossed the
questions of
the
thereof—
appellant’s
small hole in
fence.
questioner
pollster,
whether the
be a
salesman, or
officer of the
law.”
government agents
“Whenever
enter
into
curtilage they necessarily
the
in-
Superior
Lorenzana v.
Court of
And
upon
trude
the individual’s reasonable
Angeles
Los
626,
County,
9 Cal.3d
108
United,
expectation
privacy.
States v.
of
585, 587,
33,
(1973),
Cal.Rptr.
P.2d
511
35
Jackson,
1046,
(5th
588 F.2d
1053
Cir.
“exception”
curtilage
this
to the
doctrine
1979); Williams,
“Absent
from
orders
home,
possession against
subject
son in
is not a
of Fourth Amend-
any possible
States,
Katz United
trespass,
private
protection.
rule
ment
there is no
public
illegal
makes it
389 U.S.
The case of Potter v.
481
into driveway
S.W.2d
drove
to in-
vestigate
101 (Tex.Cr.App.1972)
tip
also involved offi-
a
that the defendant had mari-
looking
garage
cers
plants
into a
door
huana
picture
window.
his
window. Offi-
Potter,
In
suspected
officers
Potter of im- cer’s
plants
observation of
window was
properly registering
Gott,
being
legal.)
cars and
in- held to be
v.
456
State
S.W.2d
(Mo.1970)(Officers
volved
During
with stolen vehicles.
38
sur-
front door to talk
house,
veillance of
through
Potter’s
an officer
saw
residents looked
window and
Potter
up
rolling
ciga-
and
individual
another
drive
a
viewed defendant
a marihuana
registered.
rette.)
Dickerson,
car
improperly
which was
Due
State v.
ly is
[344]
dant’s belief that observation was unlike-
irrelevant
at 346-47
when
[
(N.D.Ill.1981) (defen
illegal activity
]
is
of the State of
employed
“Affiant Weldon
with the Texas
Texas,
Lucas,
and is
is a Peace Office
Department
currently
facing
conducted
front of a window
Ranger, Company
Safety
Public
as a Texas
street).
public
As
investigating
the Second Circuit
murders of
B. Affiant is
Taborda,
Paragraph
the individuals named above in
stated in United States v.
2d 240
has not shown a
privacy that
See also
“The autopsy report advised that casings each These shell subsequently were fur- bodies each of above individuals nished to the Southwestern Institute of Fo- contained at wound Dallas, least one from a rensic Texas, .22 Sciences in for exami- caliber weapon Fletcher, which was Larry a hard nation. contact firearms examin- day On of January, wound. the 20th er employed by the Southwest Institute of Stone, Dr. pathologist Irv Dallas, Texas, the South- Forensic Sciences in has in- west Institute of Forensic Sciences in (11) Dal- formed Affiant eleven .22 las, Texas, Affiant that advised there was caliber casings shell found at the crime likelihood connection with the scene were JULIO FIOCCHI shell casings. wounds Larry found on the bodies of the four Fletcher that in opinion, advised aforementioned after autopsy examining casings previous- individuals the shell splattered that blood squirted ly examining could have spent pro- mentioned and jectiles from the wound at the either time the shot removed from bodies of the weapon named, was fired or when was re- four individuals above that the bul- moved body causing from the and that blood from lets death fired from a *13 splattering this squirting Ruger, or could Charter got- have Arms AR-7 Winchester or ten upon High the shoes clothes Standard individ- brand automatic or semi-au- ual who fired the shots. Dr. Stone tomatic further firearm. Fletcher advised further great advised that a markings spent there was likelihood that the projectiles that blood from one or more of the bodies removed from the of the bodies victims gotten could upon have the shoes or were having cloth- consistent their been ing of the equipped individual who moved the fired weapon bodies from a with a fire- they after were shot. arms silencer. 8, 1983, Tate, Blanton,
“On “Special Agent FBI, October Bobbie wife Jim has Tate, Sr., of Bobby reported Glen Bing- to the advised Affiant that records of Grayson County Sheriffs Office that ham Arms Limited show that on February ultralight 12, 1982, above Leroy Bower, described aircraft was Lester ordered 150 missing hangar from the where the rounds of bodies JULIO FIOCCHI brass cases .22 of the four point, individuals named above caliber lead asonic were hollow ammuni- 10, 1982, found and that the aircraft had tion been that and December Lester Le- hangar 8, day roy earlier on October Bower ordered 250 rounds of said am- 1983, fully Mrs. assembled. Tate advised munition to be at 590 Briarwood delivered Junction, ultralight Lane, Colorado, that missing aircraft Grand which is orange been bright yellow appears Leroy covered a on Lester address which Good, Phillip license, fabric. Marlene wife of Bowers. Jr. federal firearms said Good, Boyce her having advised that husband license was number 58403901B3122269- attempting Bell, Treasury Depart- to sell above 22183. described ul- Don U.S. tralight ment, Alcohol, Bobby aircraft for Glen Tate and Bureau of Tobacco and Fire- arms, according price its value to the being has advised the above listed $3,000.00. asked was federal firearms license issued to Bow- Lane, er at the address 590 Briarwood evening “On the of October a Junction, Grand Colorado. crime scene search conducted at the hangar Good, Phillip aircraft where bodies of the “Marlene the victim wife found, Good, Boyce ultralight four named individuals above were then an aircraft dealer, deputies Grayson ap- numerous of the Affiant that on has informed 30, 1983, County During proximately September she Sheriffs Office. this over- (11) casings part search eleven .22 caliber shell heard her a conversation between unknown were found at the crime scene which caller husband and an wherein preserved by deputies seized and of the her husband caller that the caller told the Grayson County Department. weight if Sheriffs would have no with his trouble purchase the caller should mately Tate’s said ultra- one dozen firearms make and aircraft, caliber, he, Bower, weight and that the caller’s which owned. pounds problem. of 250 would be no special Whitney, agent “John of the “During FBI, Press, the crime scene search of the Paladin weapons contacted hangar publishing where the company bodies of the above men- information in Boul- found, der, Colorado, tioned individuals were there was and informed Affiant that rings found cut metal assembly company used in the of said records reveal that in disassembly ultralight February Bower, of the aircraft. a Lester Briarwood, Junction, Colorado, Grand or- possession “Affiant is in of a manufac- publication dered a entitled ‘The Ex- AR-7 turer’s brochure of ultra aircraft Weapons System’, showing otic to con- how ultralight advertises that an aircraft vert the Charter Arms AR-7 rifle into a type stolen and described in Para- silenced, fully weapon. Whitney automatic graph above, (sic) 2No. can easlily di- has informed January Affiant that on sassembled and hand carried. Hendricks, he interviewed Howard E. “Deputies Grayson County Sher- year a 20 Arlington, member of the Texas 8, 1983, iff’s Office advise that on October Sportsmen’s Club, Whitney who told when the crime scene search was conduct- club, Bower is member of said and that ed, surrounding hangar area firing has seen Bower a .22 caliber muddy. wet and pistol, possibly Ruger, semi-automatic “Affiant has personally examined range. the Club’s is a rim latter fire records of Telephone weapon, according Southwestern Bell to Hendricks. *14 Company showing 30, September that on “Dr. Irv Stone the Southwestern Insti- 1983, a call was made from the Duncanville Dallas, Texas, tute of Forensic in Sciences Texas Library Phillip Boyce Public has informed Affiant that he examined Sherman, Texas, Good’s home in the con- photographs of the on the wounds bodies lasting versation approximately 10 minutes of the above victims and that said wounds 3, 1983, and that on October a call was very power were contact wounds with little Thompson made from Hayward Chemical (sic) strippling, being consistent with Company, City 2627 Weir in the of Dallas weapon. use of a silenced Phillip Boyce Sherman, Good’s home 13, 1984, Friday, January “On Affiant Texas, the conversation lasting approxi- premises went to the described Para- mately 2 During minutes. an interview observed, graph 1 from above outside 13, January 1984, Bower on Bower garage premises, of said aluminum tub- making phone admitted said Phillip calls to ing type used the framework of Good’s home for purpose of the ultra- ultralight an aircraft. above, aircraft described in response to an advertisement in GLIDER RIDER “Affiant has determined from the magazine. Bower further told Affiant Treasury Department records of the U.S. glider he ultralight Alcohol, Bureau, was a enthusiast Tobacco and Firearms and that an employee Thompson he was currently that Bower’s address listed on his Hayward Company. Chemical Federal Firearm Dealer’s License is 3008 Quail Lane, Arlington, Texas.” Mann, employee Thomp-
“Richard an Gates, Hayward son Company, Chemical In the recent case of Illinois v. advised Special Agent Knights 213, 103 2317, 2336, Jim January that on 462 L.Ed. U.S. S.Ct. 76 3,1984, (1983), told Supreme Bower Mann that he had 2d 527 Court aban aircraft, possession ultralight two-pronged Aguilar either an doned the test of parts ultralight aircraft, Spinelli applied a “totality-of-the-cir- 11,1984, fly. January intended to On analysis Bow- cumstances” determination Special Agent Knights approxi- er listed for probable Fourth cause under 902
Amendment. See also
wrongdoing,
Massachusetts v.
the Fourth Amendment re-
Upton,
727,
466
2085,
quires
U.S.
104
no
States,
S.Ct.
80
more. Jones v. United
257, 271,
(1984);
697,
362
4
State,
L.Ed.2d 721
U.S.
L.Ed.2d
Whaley v.
80 S.Ct.
[736],
(1960).
78 ALR2d 233
(Tex.Cr.App.1985);
See
S.W.2d
Hennessy v.
firmed
cause is
practical
State,
Noting
the idea that the basis of
that the
Finally, appellant asks forms, Constitution, uments, personal writ- I, records and that Article Sec. Texas *18 906
mgs
appellant.
argues
the
He
of
the
(Tex.Cr.App.1972). Appel-
seized. points In two error appellant of com-
As noted above in
discussion of
our
the
plains about
jury argu-
two instances of
error,
appellant’s
argu-
fifth
only
of
prosecutor.
ment
the
Appellant did not
regarding
ment
the search
his
to
motion
testify at
phase
either
of his
During
trial.
suppress,
hearing
at the
on the motion to
closing argument
the
punishment
at the
suppress, and at trial was that
there
phase
trial,
prosecution argued
the
probable
insufficient
cause
justify
the
following:
the
Appellant
issuance
warrant.
now
“Looking
type
at
he
guy
what
of
is—
complains of an exploratory search. The
Something else Mr.
said I
Buckner
trial court was never asked to rule on this
thought really hit it on the head. He
contention and we are constrained to hold
said, ‘The only type
people
of
who would
argument
appellant’s
appeal
does
shooting somebody
be
with silencers and
argument
comport
not
with the
he made at
weapons
small caliber
are mafia hitmen.’
trial.
Now, he’s
get
not a mafia hitman —don’t
wrong
me
type
people
that’s the
—but
appellant preserved
Even had
this
do it.
who
ground
review,
argu
for
would find
done,
“This
planned
all
out. Aw-
An
may
ment to without merit.
officer
fully professionally.
you
And it makes
though
seize mere evidence
a crime
even
wonder what kind
character in life this
property
such
particularly
described
lead,
man has
until we have discovered
objects
in the search warrant when the
No,
him.
he’s
I’ll
no mafia hitman. But
reasonably
discovered
seized are
relat
you
thing,
tell
he
one
has one character-
question,
ed to the offense in
the
when
guns
other than
istic
silencers and
officer
at
time of
seizure has a
them,
planning things
just
out that is
like
drawing
reasonable basis for
a connection
single
probably
Not one
worse.
bit
objects
between the observed
and the crime
Look
of remorse for what he did.
which furnished the
basis
the search
you
right
him. Do
him
see
now? Do
warrant, and
discovery
proper
of such
you see him feel bad for
he
what
did?
ty is
good
made
the course of a
faith
Does
feel bad?”
perimeters
search conducted
within
immediately objected
Defense counsel
Hayden,
the search warrant.
Warden
prosecutor’s argument
was a comment
387 U.S.
S.Ct.
L.Ed.2d
(1967).
testify
on the
failure to
and a
remorse.
failure
show
The trial court
above,
lawfully
As held
the officers were
objection,
jury
sustained the
instructed
premises
under the
in con-
warrant
not to consider
remark
and overruled
investigation
nection
mur-
appellant’s motion for mistrial.
search,
During
ders.
their
the officers had
38.08, V.A.C.C.P., prohibits any
Article
items,
incriminating
several
in-
discovered
person
right
comment on the
of an accused
tubing,
cluding
the ultra
testify.
to remain silent or his failure
concerning
wheels and the records
Article
order
constitute
violation of
a .22
ownership
pistol.
caliber
38.08, supra,
language
either
must be
It
was reasonable for
officers to con-
intended,
manifestly
or of such a character
items
clude that
additional
listed
jury
naturally
points of
also
that the
would
and necessar-
these two
error
had a rela-
being
tionship
investigated.
ily
the crime
take it to be a comment on the defen-
State,
State,
(Tex.Cr.
Oubre v.
Cook v.
testify.
dant’s failure to
S.W.2d
State,
Chambers v.
Banks
App.1976);
(Tex.Cr.App.1984);
907
State,
Angel
State,
v.
(Tex.Cr.
McKay
v.
627 S.W.2d
admonishment.
707 S.W.
challenged
State,
App.1982). The
(Tex.Cr.App.1985); Logan
comment must
2d
v.
standpoint
viewed from the
jury
(Tex.Cr.App.1985).
“The
U.S. 651
S.Ct.
Circuit ruled that ‘death
[88
2145,
(1968).
qualification’
20 L.Ed.2d
right
violated McCree’s
un-
We re-
1317]
Amendment,
applied
der the Sixth
as
main
convinced that an extension of the
incorporation through
via
requirement
States
fair
petit ju-
cross-section
Amendment,
Fourteenth
see
unsound,
Duncan v.
ries would be unworkable and
Louisiana,
391 U.S.
148-158
decline
[88
we
McCree’s invitation to
1444, 1446-1452, 20 L.Ed.2d
S.Ct.
adopt
491]
such an extension.” Lockhart v.
(1968),
jury
repre-
to a
selected from a
McCree,
(footnote
applied
broadly
attempt-
as
court
as
State,
(Tex.Cr.App.
den v.
position community large. at See MILLER, CAMPBELL, DUNCAN Missouri, 439 U.S. 363- Duren v. JJ., concur the result. 664, 668-669, 58 L.Ed.2d S.Ct. [99 TEAGUE, J., only dissents to the (1979); Louisiana, Taylor 579] disposition that made 692, 701, 42 L.Ed. U.S. S.Ct. [95 grounds majority opinion of all (1975) (‘[W]e impose require- no 2d 690] ten, except error those numbered petit juries actually chosen ment eleven, and twelve. community mirror the and reflect
must
ulation’);
various
cf. Batson v.
distinctive
groups in
Kentucky,
[476]
pop-
CLINTON, Judge, dissenting.
four,
opinion of
1712, 1716,
Anent
of error
[79], [84], n. 4
S.Ct.
U.S.
[106
(1986)
(expressly
the Court is anticlimatic:
Eisenhauer
n.
probable cause dissenting developed my
For the reasons cause, id., ff, at 166
opinion Brown v. concurring opinion in my
also in ff, such close 657 S.W.2d repugnant
order is a drill to our forebear-
ers. *21 sovereign- yet
To another assault on the
ty of this I dissent. SOSA, Appellant,
Pedro Texas, Appellee.
The STATE of
No. 69454. Texas, Appeals
Court of Criminal
En Banc. 15, 1989.
Feb.
Rehearing Denied March 1989.