*1 Kerry COOK, Appellant, Max Texas, Appellee. STATE
No. 63643. Texas, Appeals
Court of Criminal
En Banc.
Dec.
OPINION ONION, Prеsiding Judge. from a conviction for appeal
This is finding appellant After capital murder. find- affirmative guilty, jury returned under special issues submitted ings to the 37.071(b)(1),(2) (3), V.A.C.C.P. Article mandatory court assessed the The trial penalty. death numerous appeal raises
On error, points of which involve some turn first sufficiency of the evidence. We of the facts. to a review June, 1977, Ed- 21-year-old Linda Jo deceased, working as a wards, English Department of secretary in the University Tyler. Ac- Texas Eastern her friend Pau- cording to living had Rudolph, Edwards been la Apartments, Rudolph the Embarcadero at Tyler for about two weeks. No. in Ru- apartment lease was Although the registered name, dolph’s Edwards had been guest. Ac- office as a apartment key to else had a cording Rudolph no one time, At the Edwards apartment. Mayfield named Jim regular boyfriend Learning Resource Dean of the who was University. Ed- at Texas Eastern Center dating anyone known to be wards was not apart- else, Mayfield had only once. ment to visit Edwards Ru- of June On the afternoon and went p.m. at 5:00 dolph got off work arriving riding, go horseback the stables 8:30 approximately apartment at at her eating and watch- Rudolph was p.m. While 9:30 came around Edwards ing television min- a few chatted for p.m., and the two that Edwards Rudolph testified utes. all de- not at laughing,” and “happy, Long- Heard, only, appeal Harry R. apartment left the Rudolph pressed. view, appellant. for stayed out a date and p.m. for 10:30 Brush, Atty., and Chris- Dist. B. Hunter two hours. Harrison, Atty., Tyler, Rob- Dist. Asst. tian apartment be- returning to her Upon Austin, for the Huttash, Atty., State’s ert a.m., Rudolph 12:45 12:30 a.m. tween State. body ered Edwards’ mutilated closed unlocked. sum- found the front door but the authorities. entered, figure of moned Rudolph saw the As she Rudolph tes- bedroom. a man Edwards’ During evening the course of the same light in the bedroom was *3 tified 9, 1977, appellant on and June Robert figure the was turn- very bright, and that approximately spent Hoehn two hours to- she saw it. As the ing in motion when and gether apartment appellant in the where Rudolph’s stepped it out figure whirled staying Taylor James in thе Em- Rudolph the door. vision and shut line of Apartment complex. Testifying barcadero my height, figure as the “about described presence the the for the State but out of wearing appeared to what very tanned ... Hoehn, 42-year-old jury, a homosexual light shorts. There was me in the white hairdresser, appellant had related how white across the lower band of definite asking him to him times called several Later, leg.” top of the into the torso Hoehn at bring over some beer. arrived cross-examination, she testified: p.m. and apartment between 10:35 the closing appellant moments as I was time p.m. for those at which “... 10:45 know, figure door, after the entitled you watching a on television the movie I whirled, to face. stood there face Fell From With the we “The Sailor Who Grace minutes, moving moving began and he al- five .began approximately After Sea.” suggested they go time.” outside to the appellant most at the same they stayed some 20 to 25 pool, where man had a Rudolph testified the also apart- They later returned minutes. face, slim-hipped broad, he was flat that of the film. the remainder ment to watch slim-chested, fairly had broad but p.m. The 11:45 By this time it was about Rudolph trial his size. At shoulders for nearby Kroger to a Store two then drove person she appellant as identified dropped which Hoehn buy cigarettes, after upon seeing seen, basing her identification apartment. appellant off at his 9,1977. Further- night of June him on the showing of more, permitted she had never Rudolph testified that The trial court that was night, and that film or movie appellant portion that seen before that presence, any- appellant’s had never had knowledge he seen Hoehn to her apart- and when inside her Hoehn arrived permission to be both when one’s from the apartment came back to ment. two swimming pool. apartment that her Rudolph As entered way to the figure in their seeing the that on simultaneously Hoehn testified night, by Edwards’ bedroom, passed “Don’t pool appellant called out: he and she Edwards’ said there Appellant Rudolph testified only me.” bedroom window. worry, it’s tried to boy- girl there thinking good-looking Edwards’ said this was a that she refused. look, Hoehn apartment, but get in the Hoehn to Mayfield was friend Jim make did not reason whatsoever Hoehn stated she had no and that Still, seen he had she was about what anyone else. remarks it was believe did not May- bedroom, it was and that girl’s completely satisfied not the window into enough like him. to look really get look close field since it did apart- ciga- returning to night. Upon and lit a purse her Rudolph laid down beer figure drank some two men rette, fact that ment the puzzling over the point However, At one movie. watching Mayfield. resumed did not look like television up room where come left the she could Hoehn only explanation was the bathroom. appellant’s use Rudolph heard thinking, was located As she was with. the movie to watch returned close. Hoehn open and When door sliding patio kitchen appellant come he saw for bed got ready Rudolph Thereafter knife, bread serrated eight-inch, with an The next 12:50 a.m. sleep around went it out.” cut up or cut it “Let’s saying Rudolph discov- 7:00 a.m. morning Hoehn him put they told the knife down were the same color as those appellant cooperated. night Hoehn testified that wore the of June 1977. Hoehn very replied “jokingly took it manner.” the ones he saw then had a “blue body stripe and a red around waist and depicted The film the mutilation of a cat. leg.” down the Hoehn also testified on Although jury did not see the cat muti- appellant frequently redirect that wore this scene, part see lation did of the film short, type gym lounged and that he poured drugged where children mixture around them. of milk a cat’s down mouth to anesthetize policemen it, investigated One of the who portion as well as the final film 10, 1977, the murder scene on June Lt. boys gather cleaver, large where butcher *4 Doug Tyler Depart- Collard of the Police sharp instruments, and other knives take body ment. He viewed the of the deceased up thеm satchels and sacks a hill with floor, lying throughout on the and testified and the sailor anesthetize him with photo- the aid of slides with made from drugged They prepare tea. him to mutilate graphs at the scene. body taken The was surgical on by putting gloves gather and nude from the waist and were down there him closely Ap- around with their knives. pieces plaster of under and around the pellant’s “cutting remarks up” about shoes, body. pair panties A and blue “cutting evidently it out” mimicked what jeans lay The beside the deceased’s feet. being was shown in the movie. panties had been cut the across crotch and Hoehn portions testified there were up stocking leg, A one side. was on one film the that were missed because he and missing while the other was and never appellant having were “sexual relation- The found. brassiere and blouse had been ships.” Upon returning pool from the aside, up pulled cut the middle and and performed appellant. Hoehn fellatio on places there were several in the brassiere Hoehn did not much the remember through and blouse that had been cut with appellant “joke” movie after made his with sharp earring lay An a instrument. next to brought the knife he had out from the hand, right the deceased’s still attached to kitchen, point because at that he started to right completely the ear lobe that had been “play Kerry a little bit....” Hoehn torn loose. performed testified that he oral on sex body severely The had mutilated. been appellant’s lay anus “at intervals” while he right the Lt. Collard described how breast facing the television. Hoehn recalled this wound, large had a stab and that the blood happening was toward the end of the movie body on the indicated “rub marks” or drugged after the children had the sailor marks, motion marks.” There “smear going and he sleep. Hoehn stated area, vaginal multiple wounds in the were part this time his of the sex act was the lower as in the throat area. On well consummated, then tried to lip, quarter one right side of the bottom Hoehn, failed, have anal intercourse with long missing, there was a lip the and then himself to a climax. masturbated edge of the mouth into laceration from the On cross-examination Hoehn testified that quantity A of hair the cheek area. p.m. the film ended around 11:45 top upper right-hand of the head the they apartment left around 12:00 or the Collard, According to the removed. been cigarettes. 12:05 a.m. for Hoehn returned out, leaving vagina had cut entire apartments’ parking lot large deep into the cavity that extended around 12:30 a.m. or 12:35 a.m. missing part lip body. ques- night A small vaginal parts Hoehn testified that on were never found. style- pair of “tennis hair was discovered at quantity tion wore a however, scene, never found. pair of blue the rest was type shorts” and over these in the three wounds pair gymof There also stab pants. Appellant introduced a were deceased. Hoehn if back of the shorts into evidence and asked plaster closing Lt. the door Collard deducted that statue behind him as he entered apartment. quantities plaster broken loose had Collard found a “smear pattern” corresponding point There at the been used strike the deceased. where particles plaster in the hair of the left thumb would touched have next door. deceased and to a blood bed indicating the bedspread, on the de- stain Gonzalez, M.D., Dr. pathology V.V. lying on the when ceased had been bed specialist, testified that on June by the Lt. found no struck statue. Collard body examined of the deceased at bedroom, struggle of a nor evidence scene at and later murder 9:30 a.m. any he find defensive marks on the did performed autopsy at a funeral home at that would indicated that she of- deceased 11:30 a.m. His observation revealed the against
fered resistance her attacker. following: physical includ- evidence introduced head, Multiple lacerations to the with one statue, plaster parts ed the various penetrated to deeply “rather laceration clothing, bedspread pil- deceased’s scalp scalp so that has been entire knife, low, carving pair of a French and a exposed gaping There open.” and is *5 scissors. eye an the left massive he- injury to and scalp, morrhaging underneath with the expert qualifying After Collard contusions, injuries multiple and bruises on analysis, in fingerprint the State witness part Dr. the back of the brain. Gonzalez impression” lift placed evidence a “faint the had been theorized that deceased However, print ed from the scissors. this out, gums injuries and the to the knocked comparison too because at was faint plaster in the teeth with embedded bits discovery time of the were the scissors plaster paris statue had indicated that a up pivot covered with almost to the blood knock deceased uncon- been used to the screw, print. and had disturbed the motion plaster testified that this scious. Gonzalez Although fingerprints the lifted from police material of identical to the material was only the apartment, all over the ones statue, was not the and that the blow Ru did not match the deceased’s Paula kill the deceased. enough to pa dolph’s prints found the were three door, patio the tio door. Two were inside part of also Dr. Gonzalez testified insufficiently detailed to make a but were scissors, snipped away by the lip had been on the comparison. The third was found to inflict lacera- which had also been used edge patio the door about carving outside large A knife tions neck. on the This above of the door. deep inches the base cut that probably was used cause finger depicted middle and print artery the entire and an- the internal carotid severed fingers ring of the left part jugular of the and little Gonzalez the vein. other that cut that he found no hand. Collard testified also four stab wounds described between that the dia- back, dissimilar characteristics lacerated two of which appellant when the tenth prints completely from severed print phragm. taken One an- opinion custody. diaphragm, the while he was taken into rib and lacerated Because lung. belonged part door the print patio the other lacerated diaphragm, laceration of the appellant. It was wide person no other than . intes- part of the stomach and print spleen, was opinion that also Collard’s cavity, up in chest tine located the left old. were hours approximately six to twelve had cc. of blood approximately left print could have been This means the through pleural cavity 9,1977, the left 8:00 oozed into p.m. 8:00 on June between these wounds. morning. the next a.m. three testified there Gonzalez print also testified Collard of which pubic region, one closed, being he wounds in
made as the door deep that had or four inches been three appellant would have concluded that Sailor Who Fell From Grace With the lacerated the left side of the urinal bladder Sea” saw, appellant pelvic cavity. pelvic cavity was one of the scenes and which testified, jury, depicted was also viewed filled Dr. Gonzalez with blood. blood, sitting I as- dark-haired woman undressed this amount of can be- “So with mirror, masturbating.] her inflicted when fore bedroom sume that this wound was Appellant pointed had out lady window this was still alive because Dykes, and was identified as the penetrated amount of that has blood deceased’s bedroom window. through the There were also bladder.” perineal region, multiple lacerations Randy Dykes picked up ap- testified he scissors, probably inflicted with such that: day 10:00 a.m. the after pellant separates vagina wall that “[T]he him job. the murder to take to look for a completely that of the rectum is along driving they heard on the While news or mutilated so that there is lacerated concerning the murder and its investi- radio vagina wall communication within the gation. Dykes stated looked pelvic cavity that of the and with shocked” when the “somewhat broadcast that of the rectum.” the first came on. two drove to where filed, job application had been but then re- Multiple “snipping and lacerations” had changed Dykes his mind had parts vaginal moved of the wall of Dykes testified drive him to Jacksonville. canal, at the scene. which were not found driving appellant that before to Jackson- finally three Gonzalez testified that shallow they stopped at ville Embarcadero deep in- wounds and one wound picked up a Apartments where breast, completely right on the tran- flicted *6 bag a little less large grocery that was eighth septing the seventh and rib and Although Dykes halfway rolled over. than stated, the liver. “a penetrating Gonzalez clothes, pack any ap- appellant did not see sharp edged weapon or knife will be indica- stop by he pellant had indicated wanted type of this of wound.” tive pick up some clothes be- apartment the rigor body in a condition of was spend night. going he cause was that indicate the deceased mortis would presence hearing 12 hours A was held outside had been killed between 10 to admissibility of before, jury determine the plus or minus two or three hours. by appellant to cutting made Death was caused an oral statement while Smith Coun- artery jugular and vein. The lacer- Edward Scott Jackson carotid judge ruled that vaginal ty so extensive Jail. The trial ations in the area were had between autop- and conversations bleeding profuse so that the statements and the voluntarily appellant or acid and Jackson sy no evidence of semen showed made, in- therefore Jackson’s rape. Gonzalez and phosphatase to indicate however, not, to “rule admissible. able was dicated he was certainty rape that out definite with Jackson, inmate of 22-year-old a performed —.” Jail, presence in the County testified Smith jail at the appellant met Rodney jury that he successively called The State testified August, 1977. Jackson age 18. in late Randy Dykes, Dykes, age and fifteenth the second and the Taylor that between James Both had visited their Uncle appellant were look- September he and two of one or apartment at his Embarcadero magazine, when ing at a Hustler Appellant had days before the murder. some of remarks about certain weeks. made for about two staying there been depicted there. Jack- women dark-haired Dykes that Both of the testified stated, make a comment “He would son passing night he was related that one or this her hard like to fuck like I would saw a open and with the curtains window posing like her ass kicked—for needs herself.” bitch undressing “playing with girl and appel- recalled point At this Jackson this.” film “The that in the should be noted [It acting testify.” nut jury, by lant was “like a ... He was would ever its ver- dict, up,” give hiked “he little chose to this testimony and that acted a little or crazed, weight. Furthermore, further no judge wild.” Jackson testified: the trial jury instructed the to disregard the testi- “I asked him soon afterwards he if mony witness, of a fourth appel- to which guilty charged what he was with objection. lant made no question he my answered I I question guilty asked to me was deliberations, jury After returned a him, no, said, ‘Edwards, told he I general “guilty verdict of of the offense of said, you, ‘I trust man.’ He have never capital charged murder as in the indict- please anybody
told else this so don’t During punishment phase ment.” repeat it.’ me that he —and He told had brought the trial the State on 13 character (Emphasis supplied.) further —” went appel- acquainted who were witnesses reputation community lant’s in the for be- questioning Further of Jackson elicited a, ing law-abiding peaceable and citizen. following: reputation Each testified that such “A He he killed he said that her and bad. went into details. further Lt. testified Collard “Q Jury, into Go those details on October convicted theft please? years and sentenced to two “A He said he had her in stabbed Department Texas Corrections. places. several Grigson, psychiatrist, Dr. James P. “Q you places Did he he had tell Landrum, psychologist, Jerry Dr. a clinical stabbed her? future dan- both testified on the issue of in particular, “A One he said that he ap- gerousness. They both concluded along cut her hairline between her pellant a threat would continue to be legs shape gouged he V society. her several times. pun- at the Appellant offered no evidence “Q gouged you Did tell where he hearing After phase ishment trial. her? *7 sides, argument jury retired from both vagina, “A In her he said he had cut deliberate, “yes” returning of to answers cut pieces he some hair out. He said special under Article to all three issues (sic) gested her He that— head. court as- 37.071, The trial V.A.C.C.P. stabbing gestures her.” made mandatory penalty. death sessed upon leav- Appellant also told Jackson the trial court Appellant contends that thought by a ing he he had been seen to overruling pretrial his motion erred in lady. young count of require to elect which the State called three wit- In his defense expected prosecute. to the indictment nesses, County all the Smith inmates of six counts of contained The indictment Jail, give testimony about impeaching to alleged It capital murder. Fomby basically testi- Witness Jackson. in the course the deceased while murdered testimony was self-serv- fied that Jackson’s (2) ag- (1) aggravated rape, committing in the ing, he as his “ace saw this abuse, (3) burglary of a gravated charge from sexual hole” order to reduce aggrava- intent commit manslaughter. with to Wit- habitation involuntary murder with (4) burglary of a habitation rape, ted told him that Jackson ness Evans testified abuse, aggravated sexual intent to commit the truth in the going to tell he was intent to (5) Finally, burglary of habitation against Kerry Cook. proceeding (6) of a hab- theft, burglary told commit that Jackson had Sewell stated witness aggravated intent to commit itation with made a deal and they “that had not him deal assault. get a before going he was pretrial allegations any of the five counts of the Several months before trial the jury. indictment submitted to the He con- requiring the to elect was motion State tends there is a fatal variance between overruled. allegata probata conviction 818, State, In 606 S.W.2d Franklin v. any cannot sustained on count. be (opinion original (Tex.Cr.App.1979) State, Bailey In v. 532 S.W.2d 322- submission), this Court wrote: (Tex.Cr.App.1976), this Court wrote: only “Where one transaction is error, ground appel- “In his sixth charged, and different counts are con- lant contends the trial court erred in possible tained in the indictment to meet of the indict- submitting all six counts proof, re- variations of the State is not jury, ment to the there was no quired upon elect counts. Nor such support counts evidence to three may compelled dif- an election be where charging ferent counts the same offense general verdict is returned “Where prevent
are
a variance and
drawn
sup
and the evidence
support
there is evidence to
each count.
sufficient
port
any
the counts
finding under
State,
164 Tex.Cr.R.
Floyd v.
submitted,
Hintz v.
no error is shown.
(1956);
State, 141
v.
S.W.2d
Smith
411;
State, Tex.Cr.App., 396 S.W.2d
Ca
(1941).”
Tex.Cr.R.
without
required
disprove.
was not
State
un-
Appellant
the door was
stresses
State,
Fletcher v.
396
395-396
S.W.2d
support
locked to
his contention.
(Tex.Cr.App.1965).
Code, Arti
former 1925 Penal
Under the
urges that the
failed
Appellant also
State
opening
door was
of a closed
cle
entry was with the intent
prove that the
breaking.
constitute force and
sufficient to
aggravated
felony
offense of
to commit
State, (Tex.Cr.
v.
Smith
S.W.2d
assault.
Code,
Y.T.C.A., Penal
App.1973). Under
per-
question of intent with which
longer
30.02,
breaking
no
force and
are
§
a fact
unlawfully enters a habitation is
son
Instead, only en
the offense.
elements of
from the
jury
to be drawn
question for
Practice Commen
try must
See
be shown.
v.
Steam
surrounding
circumstances.
Code,
V.T.C.A., Penal
30.02.
tary to
§
State,
(Tex.Cr.App.1978);
571 S.W.2d
to show
is also sufficient
The evidence
State,
(Tex.Cr.App.
S.W.2d 91
Robles
apartment. The
appellant entered the
jurors are the exclusive
1984). And the
Rudolph
ap-
facts,
Paula
saw
judges
record reflects that
of the credi-
triers of the
weight to
apartment
12:35-
and the
pellant
bility
in the
witnesses
between
Esquivel v.
expert
given
to the evidence.
12:45 a.m. There
And
(Tex.Cr.App.1974).
found on
S.W.2d
fingerprint was
appellant’s
concerning the
is raised
question
in such a when
it was
patio
door and
the evidence
the evidence
sufficiency of
only
left
could
have
position that he
light
most favorable
must be viewed
as he entered
pulling the door shut
while
State, Combs
jury’s
verdict.
Appellant’s statements to
apartment.
(Tex.Cr.App.1982). The stan-
S.W.2d
apart-
place him inside
also
Jackson
circumstantial
both
for review
dard
ment.
whether, after
cases is
evidence
direct
fa-
light
most
viewing the evidence
alleged
the State
In the indictment
any rational tri-
prosecution
vorable
Ru
Paula
ownership of the habitation
the essential
have found
could
of fact
er
consent to the
that she did not
dolph and
reasonable
beyond a
the crime
elements
upon
encumbent
alleged burglary.
It
*9
State, 654 S.W.2d
v.
Wilson
See
doubt.
lack
ownership and
prove
State to
the
(Opinion on
(Tex.Cr.App.1983)
465, 471
Arai
аlleged in the indictment.
consent as
Rehearing).
for
Motion
State’s
(Tex.Cr.Ápp.
State,
746
za v.
S.W.2d
State,
1977);
638 S.W.2d
dis-
Smith
evidence, including
Lt. Collard’s
The
that
Rudolph testified
Dr. Gonzalez’s
(Tex.Cr.App.1982).
the scene
coveries at
aggra-
habitation,
etc., clearly
an
was
show
autopsy report,
her
apartment was
question
Appellant does
there with
that she lived
assault.
her and
vated
rented to
may
shown
intent
con
Proof of
did not
this.
related she
She
the deceased.
evidence.
or direct
circumstantial
appellant.
burglary by the
sent
to the
changed
focus
Applying the “rational
of fact” test
version of
statute
that
trier
conclude, viewing
the evidence
as to an oral statement to “an oral state
we
verdict,
jury’s
light most favorable
ment of an accused
a result of
made as
support
interrogation.”
the evidence
sufficient to
cf. Mi
custodial
See and
in
capital
Arizona,
436,
for
murder while
the conviction
86 S.Ct.
randa v.
384 U.S.
a
committing
burglary
1602,
course
(1966).
was
15 to
which
between
when
inmates were in which cells
placed
appellant
jail
missing
was
and con were eithеr
or had not been kept
period.
side
for that
fined in the
cell for about two weeks
the transfer
the
Tank.
before
Federal
It
This was the evidence before the trial
was then about two weeks after the trans
judge
hearing
who at such
the
was
sole
appellant
fer that
made his admissions.
weight
judge of the
of
gone
appellant
Jackson recalled that
to credibility
may
of
He
the witnesses.
“hearing”
appellant
which
other
or
in
any
choose to believe
all or
or disbelieve
examining
later said
mates
was an
trial and part
any
testimony. Holloway
of
witness’
appellant
seemed relieved thereafter
State,
608,
(Tex.Cr.App.
v.
691
614
S.W.2d
related
because
State’s main witness
65,
1984);
State,
S.W.2d
Hawkins v.
hair.
the man she had seen had silver
It
State,
(Tex.Cr.App.1983);
v.
Waller
stipulated
examining
trial occurred
308,
(Tex.Cr.App.1983);Myre
v.
S.W.2d
August
on
1977.
couldn’t re
Jackson
State,
(Tex.Cr.App.
S.W.2d
whether
member
the admissions were
1977);
v.
939
State,
(Tex.Cr.App.1974).
(Tex.Cr.App.1978);
lant.”
calls attention
ato
testifying.”
prosecutor responded
in
motion
limine he filed to
the
ular
restrict
talking about
the evidence in the
offering
State
into evidence extrane-
stated,
record. The court
then
“Counsel
ous offenses. The motion was overruled.
record,
stay
please.”
prose
the
within
complains
through
now
the
Appеllant
argument.
his
cutor continued
No further
testimony of Robert Hoehn that certain
requested by the appellant.
relief was
To
part
improper-
acts
homosexual
on his
preserve error for review defendant must
ly
as
He
admitted
extraneous offenses.
pursue
objection
ruling
until an adverse
in
places
attention
22
trial
calls
Hoehn’s
State,
Penry v.
is received.
691 S.W.2d
testimony where
acts
such
were described.
State,
Stevens v.
(Tex.Cr.App.1985);
636
of this
To none
was there
517,
(Tex.Cr.App.1984);
671 S.W.2d
521
addressed,
objection
nothing
is
trial
State,
(Tex.
v.
345,
Lewis
664 S.W.2d
349
State,
preserved for review. Bouchillon v.
State,
Cr.App.1984); Euziere v.
648 S.W.2d
(Tex.Cr.App.1976).
319
540 S.W.2d
v.
700,
Stoner
(Tex.Cr.App.1983);
703
“Reliance on
in
not
a motion
limine will
State,
750,
(Tex.Cr.App.
585
755
S.W.2d
object
preserve error. A defendant must
1979).
presented
No
for review.
error is
proper grounds
the
when the evidence
remaining
instance
In the second
State,
Harrington
v.
is offered
trial.
appellant’s “demon
prosecutor referred to
(Tex.Cr.App.1977); Lopez
made and no further relief was S.Ct. 76 143 L.Ed.2d Nevertheless, State, 396, (Tex.Cr.App. v. argu- 650 S.W.2d 404 contends the 1983). designed prejudice to ment and in- jurors, flame the of the minds and the According Wingo, v. su Barker
instruction not sufficient to cure the pra, length part delay of serves as a Simpson State, He error. cites v. 493 “triggering” to determine mechanism if the (Tex.Cr.App.1973), 793 Boyde S.W.2d and right has been violated. State, 513 (Tex.Cr.App.1974). v. S.W.2d 588 delay “The tolerated can be varies Simpson distinguishable is because the de- with the of each circumstances case. pursued objection fendant his to an adverse example, a months delay may For of nine ruling judge when the trial overruled his ‘wholly under the cir be unreasonable' motion mistrial. In the case instant Barker, 407 at supra, cumstances. U.S. mistrial, 528, no pur- Conversely, delays there was motion for no 92 at S.Ct. 2191. months, years of and McCarty two ruling. suit of an In seven Boyde, adverse 212, (Tex.Cr. State, v. 498 215 S.W.2d prosecutor disregarded persistently the tri- eight App.1973) years and three stay al court’s admonitions to within months, State, 544 v. S.W.2d Swisher attempted rulings record and to circumvent denied, 379, (Tex.Cr.App.1976), 381 cert. presentation in both the of evidence and 1038, 734, 50 L.Ed.2d 429 U.S. 97 S.Ct. argument jury. Boyde is thus dis- (1977), acceptable.” have 749 tinguishable the instant on the case State, 44, (Tex. 46 Flores v. 625 S.W.2d preserved No facts. error was for review. 1981, writ). Antonio, App. no — San Appellant further contends he was de- delay In case of the instant there was speedy nied a under the trial federal less from the date of than eleven months statе constitutions.4 5, 1977, August date of arrest on 514, Wingo, Barker 407 92 v. U.S. 22, delay This does not trial on June 2182, (1972), 33 101 the Unit- S.Ct. L.Ed.2d right speedy per show a denial of the se Supreme Davison, ed States Court established a bal- supra. trial. ascertaining ancing test for whether the delay was exac- Secondly, the reason for denied,
right
speedy
trial has been
based
forty-four motions
by no less than
erbated
least
on at
four criteria:
9, 1978,
January
evi-
by appellant on
filed
ready for
(1)
length
appellant was not
delay;
dencing that
of
prose-
that the
is no evidence
trial. There
(2)
delay;
the reason for
deliberately delayed
court
or trial
cution
(3)
right;
the accused’s assertion
Thirdly,
is
there
bringing the case
trial.
(4)
prejudice
to the accused.
motions for
beyond the two
no evidence
long
It has
been noted
none of these
clerk that
district
speedy trial filed
speedy
to a
qualities,”
right
four criteria
“talismanic
have
asserted his
present
hearings to
evi-
requesting
showing
prejudice
trial
and that
is not sine
has
Finally, appellant
matter.
dence on the
demonstrating
qua non
denial
showing
or harm to
prejudice
made no
State,
right of speedy trial. Davison v.
Although
delay.
him as a result
316,
(Tex.Cr.App.1974).
510 S.W.2d
319
denied,
was within
this
appellant’s bail
Arizona,
414
94
also Moore
See
U.S.
no
evidence
judge’s
discretion
trial
(1973).
These
S.Ct.
L.Ed.2d
abuse
to show an
us
before
together, and
are to
considered
factors
be
16.15,
1.07 and
Articles
See
discretion.
on
hoc
judged
case is to
an ad
each
V.A.C.C.P.
Barker,
530, 533; see also Unit
basis.
error,
in a
contained
Eight
points
Hun
Eight
Thousand
In two
ed States
brief,
complains
Dollars,
supplemental
Fifty
U.S.
dred
(Tex.
V.A.C.C.P.,
32A.02,
S.W.2d
applicable
Wade v.
is not
case.
4. Article
Cr.App.1978).
pending
July
instant
cases
*13
Grigson
permitting
C.P. Dr.
examined the defendant
the trial court’s action in
Drs.
giving
warnings regarding
Grigson,
any
without
his
psychiatrist,
and Dr. Ger-
James
privilege against
Landrum,
Fifth Amendment
self-in-
psychologist,
testify on
ald
to
notify
and did not
the
crimination
defense
dangerousness,
the issue of further
Article
psychiatric
counsel
that
the
examination
37.071(b)(2), V.A.C.C.P.,
penalty
the
at
encompass
would
the issue of the defend-
uрon
stage
Appellant
the trial.
relies
of
dangerousness, nor
ant’s future
was the
Smith,
454,
v.
451
Estelle
U.S.
101 S.Ct.
defendant accorded the assistance of coun-
1866,
(1981), a
the instant
and there
evidence of
It
no
is observed that there wаs
convictions,
prior felony
four
unadju-
other
objection
testimony
trial
to Dr. Landrum’s
involving
dicated extraneous offenses
Here,
etc.,
(8)
urged
appeal.
shooting,
eight
now
on
testimony
basis
from
peace
Grigson’s
reputa-
officers that the defendant’s
testimony,
as
Dr.
facts
being
peaceful
law-abiding
tion
examination, etc.,
surrounding the
are mea
testimony
citizen
“bad” well
as
Landrum,
ger.
psychologist,
Dr.
a clinical
guilt stage
trial which was
he
full time at the
testified that
worked
State,
jury.
before the
See Bravo v.
through
Hospital
Rusk State
from 1969
(Tex.Cr.App.1983; O’Bryan
S.W.2d 152
established,
being
1976. Without dates
Dr.
State,
(Tex.Cr.App.1979).
S.W.2d
ap
Landrum testified he
examined
gave testimony
pellant, and
much the same
Satterwhite,
this Court wrote:
opin
Grigson,
expressed
as Dr.
he
properly
conclude that the
admit-
“We
likely
will be
ion that "it
ted
such
evidence was
minds
society”
continuing threat
and “would
average jury
an
would have found the
probability
acting
high
have a
out
case sufficient on the issue of the
State’s
aggressive and harmful manner.” Dr.
‘probability
defendant would
at the
Landrum testified that
time
commit criminal acts of violence that
multiple drug
continuing
there had
examinations
would constitute a
threat
society’
Grigson’s testimony
Dr.
appellant including
even if
abuse
extensive use
acid,
had not
marihuana,
been admitted.
admission
speed,
downers and
beyond
was harmless error
appellant had
alcohol. He observed that
a reasonable doubt. Sanne v.
deviation, pansexuality,
sexual
mani
which
*17
(Tex.Cr.App.1980).”
S.W.2d 762
in
aggression
fested itself
violence and
against
expressed
humans. The doctor
testimony
In the instant case the tainted
opinion there was no chance of rehabilita
Grigson
from Dr.
was also in evidence
appellant.
for
tion
On cross-examina
source,
Dr.
an untainted
Landrum.
tion it was established that the doctor had
penalty stage
And
also
at the
there was
appellant “throughout
this
testimony
observed the
from 13 witnesses who testified
appellant’s reputation
being
for
appel
time” and his last examination of the
law-abiding
peaсeable and
citizen was bad.
Hospital
lant was
Rusk
about or
at
State
Ranger
appel-
Texas
Prince
known
Bob
had
years”
last
his June
“within the
three
of
years.
lant
three and a half
Pete
about
testimony.
1978 trial
It is
that Dr.
clear
Menefee,
Attorney
the District
for Chero-
prior
Landrum
to the
appellant
examined
kee,
couple
appellant
known
“a
had
offense,
indictment,
alleged
ap
Danny Stallings,
years.”
Sheriff Chero-
etc.,
counsel,
not in
pointment of
and was
his
County,
appellant
kee
had
known
testifying as to
issue of
connection with
life,
appellant
family
and known
all
Smith,
dangerousness.
future
Estelle v.
couple
“personally”
years.”
for
Ar-
“a
supra,
applicable
is not
Landrum’s
Dr.
Jacksonville,
Cook,
Police of
chie
Chief of
testimony.
ad
testimony
properly
was
years.
seven
appellant
had known the
mitted.
Sgt.
of the Jackson Police
Robert Jackson
eight
Department
appellant
had known the
Turning
question
harm
Wigman,
years.
or nine
John
Constable
error,
in
less
we observe
Satterwhite
County,
had
Precinct No.
or Cherokee
State,
(Tex.Cr.App.1986),
Jacksonville, had known for five judgment is affirmed. Plunk, years. H.C. car at salesman Livez- ey Jackson, Company Chevrolet appellant for four years. Bob Bail- known CLINTON, Judge, dissenting. dealer, gasoline wholesale ey, a had known during The offense was early committed over years. three addition morning hours of June and the appellant’s there record evidence gained record reflects that the case instant felony theft in the Second conviction notoriety. commendably, No doubt and Court. District of the law enforcement communi- members true, course, answering It including attorney, ty, the district 37.071, special issues under Article crime, to solve are anxious con- V.A.C.C.P., including of future the issue me, least, they succeeded. vinced But to dangerousness, jury may consider all of aspects some there are troublesome this guilt the admitted evidence at the first or cause.1
stage of the bifurcated trial. Garcia v.
State, August
The record reflects that not until
(Tex.Cr.App.1981),
S.W.2d 46
State,
cited;
prob-
did officers
believe there
Russell
and cases there
Russell
appellant.
able cause to arrest
Just
(Tex.Cr.App.1980);
S.W.2d
(Tex.Cr.App.
before,
day
according
complaint
665 S.W.2d
1983). It
has been said that
circum
information made
Detective Eddie
facts sur
stances
offense and the
Clark, Sgt. Doug
concluded
Collard had
*18
rounding
probative
may
greater
it
furnish
fingerprints he
from outer
that latent
lifted
regarding
evidence than
other evidence
appellant;
patio
door frame were left
(future
special
dangerous
the second
issue
he
though Detective Clark related that
ness)
penalty stage
a
submitted at the
of
10,
Rudolph
Paula
on June
interviewed
State,
Duffy
v.
capital
murder trial.
567
1977,
reported
and summarized what she
(Tex.Cr.App.1978).
See also
S.W.2d
leave,
him
seeing
hearing
a man and
about
State,
(Tex.Cr.
Carter
717 S.W.2d
does he
that she could
indicate
nowhere
State, Fierro v.
App.1986);
S.W.2d
a
identify him. Detective
obtained
Clark
Bush v.
310,
(Tex.Cr.App.1986);
appellant,
to arrest
it was
warrant
and
397,
(Tex.Cr.App.1985).
697 S.W.2d
thirty days
day.
the next
еxecuted
Within
described,
Scott
facts,
Edward
Jackson and
already
show a bru-
granted
Immunity
tank.
murder in
the victim was
the same
was
tal vicious
which
relating
disadvantaged
once
constant
that the State
were at
1. At
outset it must be noted
exhibits,
being
(indicating)"
testimony
of them
introduced 109
some 70
is
that "this
there
every
photographs
pertinent detail of
slide
of
To correct
in the
exhibits.
those deficiencies
scene,
blueprint
crime
of the
the
apartment complex
as well as a
they
up
ordered
the exhibits and
have
record we
diagram
grounds
and a
and
Appended
examined.
is State’s
now been
hereto
169; appel-
plan
apartment
floor
no.
of the
101,
floorplan
apartment Paula
a
of her
Exhibit
reproduced
offered ten exhibits. None was
lant
Rudolph shared with deceased.
Court, so we
record forwarded to this
in the
Usually
re-
take that
An
was
tacker.
detectives
persons.
indictment
several
19,
a victim knows her assailant.
September
1977. Transactional mean
turned
Taylor,
B.
immunity
granted to James
was
prejudicial
in reels
The most
evidence
A
was
appellant.
“reindictment”
uncle
given
men-
reams was
Hoehn. Not
and
Trial com-
presented November
1977.
opinion
in the
of the Court is
tioned
had re-
Appellant
June
1978.
menced
that to obtain
the State
fact
his
cently
twentytwo.
turned
granted
immunity.
Hoehn
may
one
when
The evidence
sufficient
testimony came
incriminating
The most
items,
a ra-
picks
certain
but
and chooses
Jackson,
a clear
from Edward Scott
and
all
is left with
reviewer of
facts
tional
arrangements made to
inference from
trier
questions whether a rational
serious
with Jack-
place appellant
same tank
guilt beyond
find
a reasonable
fact could
taking
initiative
and the latter’s
son
Virginia,
443 U.S.
doubt. Jackson
personal
is
that he had
(1979).
alarm and was went anyone to bed. I did not hear Linda or else Eyewitness Identification speak during the time I arrived home until day The next Rudolph was interviewed sleep. I I hear the went to did television police gave lieutenant and a sworn might Linda’s room have been jointly by statement which was tendered radio. parties on crossexamination and read morning up I A.M. this but woke 6:30 by Rudolph, into evidence herself. Therein ****’’4 *20 up get did not until 7:00 A.M. she recounted the information summarized statement, following activity prosecu above and the account of Faced with that Rudolph direct testi and observations after she returned about tion and fashioned her coffee; “extremely 4. Soon she went patio open un- fence was to the kitchen to make rear —an bedroom, event, kept returning she insisted it be to her she looked out usual" since immediately through patio gate her cat noticed door and noticed wooden clоsed—and also I A. That mean.” mony to those and ob Yes. is what elaborate on moves in such manner to demon servations as Her sworn statement ended with recita- impression figure strate her that is it, tion had read is true that she and Mayfield was Dean erroneous.5 testify correct that she “will to such and Rudolph explained position from her if facts in Court asked do so.” After entry she had foyer to center of bedroom reading jury, she finished it to the the first vision;” “approximately one field of foot question whether her “mind has looking in a into an she moved dark area changed” figure having “silver high intensely bright lighted area from hair,” response she it had. In allowed fixture; wattage in an overhead she bulbs questions, appel- she to further stated that figure. torso of the Then described the black,” “very speckled lant’s hair was “not answering affirmatively whether after silver;” gray” with and “not was a person you who saw in “this [Edwards’] face,” Mayfield’s “probably sharper “broad present in bedroom courtroom]” [is his,” than and that “broad face” she so, being pointed appel- do asked to she it,” shape meant “the “I because: did lant, wearing what he was described figure not I saw and never said dis- following seated. Then the where he was tinctly enough to see features.” occurred: for then returned to Counsel “Q. you your base Do identification partially nonresponsive her answer that person you this Defendant as the who fits,” agreed “he and what she bedroom, your saw in roommate’s [sic] ques- prosecutor To his she meant that. you you do this recall from base on what responded that had talked tions she she seeing night late in the 9th or June figure with description of the about her early morning on June 1977? relatives, police numerous officers I A. Yes. do. He fits. agreed that prosecuting attorneys; she she Honor, Your [DEFENSE COUNSEL]: spoken had defense counsel. not non-responsive I object part August her to an Counsel drew attention and ask the to in- witness Court September 20 examining bail trial her not so anymore. struct to do testified, knowing hearing which she THE COURT: The Court will sustain there as Re- appellant was accused. Jury the objection. The is instructed testimony given by her garding prior then disregard portion the wit- person had white that “this effect was ‘he fits”. The witness ness’ which whatever,” hair, she said that hair silver responsive please will as adding testimony, her “this had been question you.... asked of person thought I person refers back to the Q. Rudolph, non-re- Miss there was a Mayfield. namely, Jim As recognized,” I sponsive you answer to the extent that mind” since changed has to “what [her] he you said ‘he fits.’ Do mean that fits then, Rudolph explanation,, viz: offered description physical character- made thing, I when I “For think one night, you istics recall from the which ..., few hours it was within a you mean? statement that what up very slender apartment usually shoulders is a “From the she is. man, sharped glasses. He face and wears has pushed Looking her cat she door to unclosed hair, gray very I don't know silver hair. thin bloody bedroom and saw her arm. Edwards Shortly * * * eyes. June of his [In the color his Rudolph police called the cat after haircut, style was modern haircut] patio to be The door scratched the door let in. ears. It’s straight,_about around the even was not locked. conservatively, con- it’s semi-mod not short servative, mod.” conservative is she described The fact of the matter hair over his wore his testified Hoehn ears and Grigson per- Mayfield up" "from the shoulders almost When Dr. down to his shoulders. testify response fectly. As she would later long “had black saw him first questions: several hair.” *21 discovering body. Linda’s silhouette, If I were my that mind apply and it doing logically it when I period. was not such without —without It was a sil- writing houette, I state of shock and were it looking I was bright into that it, dictating I think I light. would have shape, It was a shape as is I do not and am worded differently. probably it thing most difficult to de- person’s not certain I that saw the hair. attempted scribe. I have and as I said extremely bright lighting It was in apply shape look- before to that if see fits, ing forget at a silhouette. very anything might It was a reflec- I have known previously tive. It was a really.” reflection or since. shape, The it fits. “thinking
Whether it was a matter of year,” thought it for a she not: “It is outline, shape, the silhouette attempting logical.” to be against light. There were shadows. I specifically wasn’t aware exact testimony Asked if her you now is “that shape shape of his nose or the exact hair,” see didn’t someone with white Ru- eye eye. or I the color of his dolph “my testimony answered that and it’s planes shape, aware of shadows and on a along all person that it refers to the I figure. thought recognize.” I only “perceived She I anything have never said else. He that there was a reflection around his head fits.” silver;” that telling she was not
jury that “because the room lighted is well Rudolph concluded with “I believe that is thought saw someone with sil- [she] [she] saw,” the man I opposed to “what I ver, yet telling now is jury that [she] thought I saw” at the time. someone black hair....” What she [had] While permitting rules witnesses to testi- saying is is I very “that could well have fy on identity matters of are said to be in my original interpretation mistaken liberal, recognized “there are Court has my perception.” better; Her recall is no beyond certain limitations which it is not “being it is a matter of able to stand back State, Emery go.” safe 95 Tex.Cr.R. logical something take a look at rather 336, (1923). However, there S.W. 957 reacting emotionally, than based on com- authority drawing is a dearth clear lines pletely preconceived ideas would enable of limitation. interpretation one to make a better of a evidence, admissibility On Court perception anything or almost for that mat- upheld has of a trial court to admit refusal ter.” Her “identification” on exami- direct proffered testimony that while the witness nation “is attempting the result of to stand recognize did not at time accused and occa back, saw, recall figure that I in question, process sion of reason preconceived recall it without notions that ing believing subsequent infor based on it was someone else.” mation he concluded that it was accused Rudolph agreed may have been thаt she State, Clark v. had seen. 79 Tex.Cr.R. recognized appellant asked whether she State, cf. Polk v. (1916); S.W. 437 and that she had never identified (Tex.Cr.App.1973). S.W.2d testifying in twice under oath and once rejected “misidenti Court has tendered giving statement, a sworn she but denied “specula fication” when it year that “now over a later been has [she State, Turner v. tive.” 600 S.W.2d conjure up something able to been] (other in vicin (Tex.Cr.App.1980) males him;” identify would she had never been ity physically resembled ac of crime scene Subsequently, asked counsel before. automobile); Hall cused and drove similar responding questions, she reiterated: 153 Tex.Cr.R. S.W.2d attempted (1949) (while
“I I try have said I witness testified man victim, objectively logically look at this common khaki clothes beat because forget, keep image figure, knowledge many of that men wear khaki *22 in Proc- clothing that man other informer Arkansas had described a certain clothing participant him in a than accused worked in khaki tor and named as a nearby speculative”). “too shootout with an officer in Texas or Louisi- ana, mug Coleman obtained a shot of (Tex. In Proctor v. S.W.2d by mentioned and set out man informer ob Cr.App.1971), Constable Coleman Instead, find the con- on his own to him. 3:00 men inside a store around served two was federate arrested Arkansas sought a.m., apprehend he them and as to being in- upon returned to Texas Coleman burglar came face him and one to face with later, success; terrogated him without exchange gunfire in an the Constable however, present while he Coleman was volley Although by a of shots. was struck implicating made a confession Proctor years, known Proctor he had Coleman the affair. Coleman also obtained a letter (“It identify to him then. was unable alluding shooting. to the When Proctor register my on didn’t mind that that was arrested and to the venue was returned got Just no I to J.B. Proctor. more than jail times and Coleman went several him.”) Coleman sole wit see became the him in in a once viewed direct confrontation placing accused at ness scene of bur security day maximum Proc- cell. On glary. arraigned an tor was Coleman rode down hearing During suppress on motion to him elevator with and was in the courtroom Proctor, his incourt identification of he was served indictment. when witness testified: officer, Rudolph peace Paula is not a “Q. you I think to me that described it course, her but like Coleman Constable conclusion, you came or became split person second confrontation with convinced, to the identity as of Proctor such that she under circumstances was being the man out chain there when a “outline,” “figure,” only a an saw pieces into or circumstances that fell “shape” every or a Her ac- “silhouette.” place, you finally that were con- able that in her tion and words demonstrate your mind clude that this was Proctor? thought immediately mind she then Yes, A. sir. May- person believed the be Dean James Q. course, you’ve all Of of this that though Obviously day, field. some later described, you jostled memory your how, she this record fails reveal when or you say positively where able assumption given to understand her that was Proctor? At that in about point was incorrect. she is say my A. I I exercised channels Coleman, attitude as the same Constable thought, stronger stronger person they being identify unable to both days that went sure of I was more “saw.” myself it. I had satisfied that it was. early was arrested When course, Q. Of of this investi- without all it. She August Rudolph heard about gation, you might never have satisfied figure description her talked about your way. mind pros- police officers and the with numerous No, I don’t have.” A. think I would ecuting attorneys. As a witness at appel- examining August 19 trial she saw The Court was “unable to conclude at counsel table between lant seated proof that convincing was clear and there accused; she lawyers and knew indepen- the in-court identification was of September hearing at a testified Id., also hospital origin.” at 765. In the dent bail; again motion for description fit gave a that did not Coleman Finally, year after the almost a invеstiga- present. True it is Proctor. that “this Coleman,through men- fact, like Constable had been conducted the Constable tion” Rudolph “satis- she described himself, processes beginning three weeks after tal “fits” Learning [herjself” occurred. fied the offense *23 “figure,” “outline,” “shape” or “silhou- cess into stages, three towit: acquisition, ette.” (storage) retention and retrieval. There are distortions in stage each to such vagaries
“The
an
eyewitness identifica-
“eyewitness
extent
identifications,
known;
tion are well
the annals of crimi-
even those
conditions,
nal
made under optimal
law are rife with instances of mistak-
are highly suspect.”
en
Id.,
identification. Mr. Justice
at 193.6
Frankfurt-
er once said: ‘What is the worth of iden-
Once an initial description, along with
testimony
tification
even when uncontra-
name,
identification of
person by
a known
dicted? The
strangers
identification of
is
is
by
“eyewitness,”
recanted
an
much more
proverbially untrustworthy. The haz- untrustworthy and hazardous is subse-
ards of
testimony
such
by
are established
quent
stranger
identification of a
in terms
a formidable number of instances of
“figure,” “outline,”
“shape” or “silhou-
English and American trials. These in-
ette.”
experiences
Recent
parte
in Ex
stances are recent—not due to the bru- Binder, 660
(Tex.Cr.App.1983)
S.W.2d 103
talities of ancient
procedure.’
criminal
(five eyewitness
identification,
making
The Case of Sacco and Vanzetti 30
some for
trial)
first time at
and State of
(1927).”
(five
Texas v.
eyewitnesses
Geter
identify-
Wade,
United States v.
388 U.S.
him),
ing
dictates an exercise in caution
1926, 1933,
87 S.Ct.
(1967).
omitted). location, Lt. Collard latent and its through front door. Whether each came in testified: or some one is she returned alone with point At the tele-
oрen question. some believe, partially, I two “There are turned on.8 vision in her bedroom was and I believe door, patio three off of *24 door, I be- from the inner one of them left from by As shown exhibit lieve, correctly, either I remember if leading to her entry way hallway is a short bedroom or bathroom.”9 apartment, her “suite” in that side of the on the on the left and bedroom bathroom include scissors used Lt. Collard did not Rudolph’s opposite side. right; is on the mutilate, perhaps he had al- because Rudolph finally returned the front When la- ready them. He lifted a talked about stepped unlocked. She door was closed but scissors; print from it was “too faint tent figure entry foyer, saw the inside into the compari- enough details to make a and not left, her called out bedroom to Edwards’ However, enough for Col- son.” there was right away from the and moved on to her leaving finger lard to determine noise of door. She heard closed bedroom finger No pattern. print had a whirl television. appellant pattern. has a whirl (then Sgt.) and his team dust- Lt. Collard could not have been print on scissors literally every throughout surface ed appellant. he examined by made Since front and the outer side of the residence other fingerprints sets of some 2500 patio likely to hold a latent door and door must have able to persons, Lt. Collard print. bedroom he checked Edward’s left other latents were rule out that five suspect” “any possibly item handled Rudolph. Collard appellant or Edwards or articles, they out- and other moved only thing have agreed that “the we [here door, wardly room to room to the door to 1. print” No. today] is that one —Latent outside area. His team lifted a total of appellant no evidence that Thus there is scissors, prints: thirteen latent one from fingerprint anywhere in the entire left his others from outer side of Edwards’ bath- know from this apartment, and we do not door, from frame of her bed- room door doorway on the record left one who door, door, from inside front room four оthers else- Edwards’ bedroom “coming largest out of the dish- number where, or when. identified, prints all be- washer.” Of long Rudolph except a sin- Edwards — Informer Identification assigned gle appellant set lifted charged with the offense Whenever patio Collard outer metal frame door. con- murder, Jackson was Edward Scott 1. called it Latent No. County jail from November fined in Smith unidentified; al- latents remain Five cause. through of the instant trial though estimated 2500 sets he examined an July he achieved part of In the latter said he unable prints Lt. Collard during all status, trusty and retained print, suffi- match one with known had access trial. He pertinent times before testify by whom it was cient that he would set. to a television found, they were made. As to where testimony from this Putting aside all though just identified Defendant’s others year twentytwo old witness he listed paper 1 as a on which Exhibit No. lying bed- statue while on on head with Although always "bed- struck almost referred to as 8. room," reality Rudolph pillow. at 197-198. spread, called it "den on Vol. 2 S.F. is that head "day sewing asleep. a "couch” or argued room” and the "bed” prosecution she was pillow bedspread mentioned in bed.” The couch; p. Vol. 1 opinion were on see at part print” door,” “lower was on inside A “weakened 9. 106, 109, 110 and Vol. 2 S.F. at S.F. Human blood was door [patio] one “the inner on of the pillow on bed- on and also puts patio evidence edge" door. Other specks plaster, along spread small white doorway to Edwards’ bedroom. No. 6 on Latent Edwards’ was indicating Collard that to Lt. arrangements Yes, have A. sir. placed him, in the same tank with when Q. Which is Linda Jo Edwards? “voluntary” statements and admissions Yes, A. sir.” allegedly by appellant, made to him The State had eight known for months missing jail like, records and the see ante Jackson claimed had said he p. 947, practically everything signifi- knew Edwards before her death. Most cance Jackson claims told him assuredly point investigated would be about the death of Linda Jo Edwards could thoroughly obviously for it bore watching have come reports from his news prosecutorial theory of its Clearly case. Indeed, on local television. Jackson prosecutor elicited from Pau- learned her very source, name from that *25 Rudolph la and other witnesses there is no surely and the color of her hair.10 thought that or, either Jackson assuming are, course, There some matters men- he actually it, said being was by tioned Jackson that he could not have truthful. On redirect examination the gleaned directly from media sources. He prosecutor matter, did not allude to that had related one in an October argument; nor in his final neither did de- by statement taken Detective Clark. On fense counsel. his direct prosecution examination the As to whether Jackson had some under- choose develop not to that matter. It came standing disposition about of the murder cross-examination, out on viz: charge against pending him eighteen trial “Q. Kerry you, Did tell allegedly tell request, months at his own on cross exami- you having hamburger about with this nation there was following exchange: girl? “Q. you Did make a statement on Sir, A. her, he said that when he met the elevator last you week that were either eating place met her at an where getting here, your out of case was she girlfriend works or a of hers works. going dropped to manslaughter be to and hamburger, About the I don’t know. you going were given to be credit for the Q. you talking Are about Linda Ed- Jo you time if served testified in this case.? wards? No, sir, A. way you put not the I it. Yes, A. sir. explain that. ..could Q. you How did know her name? Q. No, just you I want to answer the Through A. the TY. question. Q. you about, What else did he tell did No, A. sir.” he have a date with her? course, Fomby Of William would and did Yes, A. sir. He said that soon after swear for that Jackson said he that he either met her at a bar or took going because, testify to for the State her to a bar. precise in more terms: Q. you Do know which one? “He said that this was—that this was an No,
A. sir. I don’t. ace in the hole on this case and Q. Are talking we still Linda Attorney Jo District they said that Edwards? going to reduce his charge murder from to involuntary manslaughter give and Yes, A. sir. time served.” Q. concеrned, So you you as far as are telling Jury are then Kerry proof pudding,” they say, “The ante, the victim in this case? knew could not then be determined. See n. 10. At page majority opinion faithfully nothing plaster 934 the Jackson: he said about a reports appellant sup- statue. Jackson’s account of what However, posedly killing. told him about the rebuttal, Roark, 11. Woody the State called major there is a omission in the version as told appointed attorney for Jackson. Roark testified apartment complex. The p. May area of the at 947. Jackson was argues because State murder, indicted in Cause No. 7-77-90 large complex at 12:30or 12:35 a.m. had not resolved. but his case Sen- (ac- lusting either after Edwards tence of death and commitment this brothers), cording Dykes going to signed July filed cause was Jackson), (according to he went punish her month, Within less than a from certified straight Apartment way rear of No. copy No. of sentence said Cause 7-77-90 steps, to and up lifted latch walked several August 15, provable facts that on are gate opened patio, moved wooden presence Edward Scott 1978 the Jack- it, door, opened sliding patio entered attorney Woody son Roark differ- and his it, statue, way picked up closed made a trial court ordered judge ent statue, room, her her knocked out with who, Jackson had been Edward Scott ad- scissors, went many times with stabbed her judged guilty “Involuntary Manslaugh- knife, kitchen, went selected french ter, Felony,” punishment A whose back, couch, pulled her ear lobe her off cut years at two confinement in been assessed vein, artery jugular loose and sliced Di- penitentiary, delivered front, body mutilated her turned *26 to confined “a rector of Corrections be for over, back, upper vagina from cut stabbed (2) term not less than nor more two than front, scissors, using and do- back to also (2) years,” “given two and to be credit ing stripping down to what else was for done— days County along way in ten served the Smith shorts somewhere the —in minutes, fifteen at the most. Jail.’’ testifiеd to do such
Dr. Gonzales that damage probably here” “in this area alone Considerations minutes.” 5 S.F. took “five to ten Yol. principal pro- There are three incidents 877. by duced the State to make its case: a figure The and closes bedroom whirls “figure” whirling in Edwards’ bedroom at door, boy- Rudolph it is a and assumes hour; early morning appellant’s leaving an and person Mayfield, in friend Dean partial fingerprints set of his on outer opens and when someone five later minutes frame; purported patio side door his rear, also as- patio door at the she closes with Jackson. The first two conversation leaving. All is well boyfriend sumes the are parts puzzle as of a different that did asleep in minutes. She and she is five easily together one does not fit with the record nothing see and in this not Edwards other. when Edwards was in her room ever shows figure assumed Rudolph glimpsed a sought mesh, make them it State calling on her.12 Mayfield Dean was me, of Hoehn— seems to stuff, prejudicial kinky however, trial, says not his sexual she was Rudolph all At then, “fits” wrong logically appellant had let out in a but that he near- scription bargaining person she in Edward’s of the saw plea had been no Jack- that there See, January p. On ante at 949. bedroom. “since on or October [the] son motion filed a counsel for time I first became aware of Mr. Jackson’s in- alleging, Mayfield, cause,” deposition of Dean take the potential witness in this volvement as alia, Mayfield represented an was inter that engage that "I would and he instructed client who, though requested, an attorney denied him plea bargaining would he in this no nor Mayfield, Mayfield ais ma- However, that interview with Roark did “think" Jackson case.” witness, Mayfield prime “was the attorney terial agent of "with- to an the district talked Ed- suspect regarding Linda Jo the death of acknowledged presence," out [his] and, suspect,” presently, still is wards client in ab- [his] "those discussions with [his] Mayfield, obtaining testimony from attorney without permission [his] sence were prepare adequately a de- counsel is unable record...." fense. deposition judge August court ordered the Rudolph of trial testified at When Paula taken, February taking presided September over the examining again and he trial and at the bail during testify Mayfield stayed 1978. Dean did not hearing with her de- she seems have image estimating in her mind. Someone Lt. Pollard in appel- was when bedroom, But the sure. bare fact prints placed patio lant’s on the door “entry” fingerprints that his are lifted apply should also to the other two latents patio from outer frame of door will found there. That the latents are unidenti- Rudolph serve to corroborate Lt. because only prints fied means that known of the opined they Collard would have been made person persons leaving them during the eight evening time from o’clock in period same of time were not available to eight morning 9 to June o’clock June rationally Pollard. It cannot be concluded 10.13 “figure” that the because his Furthermore, there is an unidentified la- prints were identified and the two other print doorway tent on that to Edwards’ latents were not. bedroom, and another on innerside of un- sum, I agree am unable to locked front door. There are also two un- and, therefore, evidence is sufficient I re- patio identified latents on the frame of Many spectfully door. of the same factors considered dissent. Nevertheless, bedroom, supplemental opened trial. transcript included in a walked back to her saw the purports copy it, gate is what to be a wooden and went out and closed came introductory pages deposition several down to the looking pushed open back in and in for her cat sworn, point Mayfield where bloody the door to Edwards’ room and saw her nothing tell the truth —and circumstance, more. Given that head, (in police response arm and to call went original deposi- we ordered the beaten, report to her that Edwards had been Court, tion forwarded to this and have since sent), dispatcher said an ambulance would be determined that nеither the fact it was taken returned to Edwards room and viewed that any part was made known to nor of it was used scene, apartment backed out of room and jury, before the so there was no occasion for leaning against post when ambulance part to become of the initial record. shortly *27 “came thereafter." Ill S.F. Vol.
13. argument lawyer suggested a defense ambulance, by sight Attracted or sound of that jury shortly the may before 8:00 a.m. appellant could have done what counsel con- through gate, opened have come the back might explain tended. It even observation of and, sliding leaning curiousity, door in out of Randy Dykes looked “somewhat put fingerprints on the frame at time. that about ten upon hearing report a news later in shocked” Rudolph got up The facts are that morning. seven, maker, plugged minutes to in a coffee
APPENDIX *28 III, ARCHIBALD, Appellant, C. John al., ARABIANS, Appellees. et III
ACT
No. A14-86-325-CV. Texas, Appeals
Court Dist.). (14th Houston 18, 1987.
June 12, 1987.
Rehearing
Nov.
Denied
notes
S.Ct.
Messiah v.
L.Ed.2d
counsel” had been
object
violated and he had been was held that failure to
was excused
deprived of the effective assistance of
since
interpreted
“Texas courts” had
Fifth
objection
counsel. The
was overruled.
permit
and Sixth Amendments to
such tes-
timony
Grigson’s
Smith like Dr.
]
[in
Grigson
complete
Dr.
testified he made a
apparent futility
there was an
in objecting
psychiatric
examination
an hour and a
alleged
to an
constitutional violation.
half and found
to have an antiso-
Smith, supra,
Estelle
footnote
disorder,
personality
cial
which is not an
Supreme
adopted
reasoning
Court
sickness,
illness or
was a
the Fifth
the claimed Fifth
Circuit as to
sociopath.
expressed
opin-
severe
He
Amendment violation.
ion
psychiatric
that “from a medical
stand-
point probability” appellant will “continue
Further,
Estelle v.
opinion in
the 1981
way
repre-
behave and act
that does
Smith, supra,
held to be retroac
has been
very
people
sent a
serious threat
Estelle,
(5th
Battie v.
tive.
F.2d 692
society.”
within our
Estelle,