Angleton v. State

• Decision Date: 30 October 1997
• Docket Number: No. 14-97-00880-CR,14-97-00880-CR
• Citation: 955 S.W.2d 655
• Parties: Robert Nicholas ANGLETON, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 655

955 S.W.2d 655

Robert Nicholas ANGLETON, Appellant, v. The STATE of Texas, Appellee.

No. 14-97-00880-CR.

Court of Appeals of Texas Houston (14th Dist.).

Oct. 30, 1997.

Discretionary Review Granted

Jan. 21, 1998.

Stanley G. Schneider, Houston, for appellant.

Alan Curry, Houston, for appellee.

Before MURPHY, C.J., and HUDSON and FOWLER, JJ.

OPINION

MURPHY, Chief Justice.

Appellant, Robert Nicholas Angleton, was arrested for capital murder and is confined in the Harris County jail without bond. After a proof evident hearing, the trial court denied appellant's application for habeas corpus seeking release on reasonable bail. Appellant perfected this appeal.

In five points of error, appellant complains the trial court abused its discretion in denying him bond pending trial because the State failed to meet its burden of proof that a jury would find him guilty of capital murder and answer the punishment special issues so as to invoke the death penalty. He suggests that we set bond at $100,000. Appellant also argues that, during the writ hearing, the trial court erred in admitting into evidence a tape recording that allegedly contains a conversation between appellant and his brother, Roger Angleton. Contending that the State failed to properly authenticate the recording, appellant argues the tape contains inadmissible hearsay.

Background

On the evening of Wednesday, April 16, 1997, Doris Angleton, the complainant, dropped off her children at a softball game and went home to retrieve a forgotten bat. She never returned to the ball game. Sometime between the hours of 7:15 and 9:15 p.m., Doris was shot to death in her Houston home.

Doris's husband, the appellant, brought their children home after the game and telephoned the police when he noticed something amiss. The investigating officers found the complainant's body in a doorway between the kitchen and rest of the home. There were no signs of forced entry at the scene.

On April 28, 1997, appellant gave a statement to the police about the events of April 16. On April 29, 1997, he gave a statement in which he implicated his brother, Roger Angleton, as possibly being involved in the murder of the complainant. On July 17, 1997, the Houston police learned Roger Angleton had been arrested in Las Vegas, Nevada, on an arrest warrant out of San Diego, California. After obtaining a court order, Houston police officers traveled to Las Vegas and recovered property found in Roger's briefcase. The briefcase contained passports, a forged driver's license, a micro-cassette tape, several typewritten notes, handwritten notes, and some $5,000.00 money wrappers in a white envelope. Roger was also in possession of $64,242.00 in cash at the time of his arrest.

On August 1, 1997, appellant was arrested for capital murder. The complaint charges appellant with employing Roger Nicholas Angleton to cause the death of Doris Angleton "for remuneration and the promise of remuneration, to wit: CASH MONEY."

Appellant filed an application for writ of habeas corpus and a motion that the trial court set bond. After a hearing on August 8, 1997, the trial court denied appellant's motion for bond and application for writ of habeas corpus.

Proof Evident

The judge may deny bail in capital cases where the proof is evident. TEX. CONST. ANN. art. 1, § 11 (Vernon 1984); TEX.CODE CRIM. PROC. art. 16.15 (Vernon 1977). The term "proof is evident" means the evidence is clear and strong, leading a well-guarded and dispassionate judgment to the conclusions that 1) the offense of capital murder has been committed; 2) the accused is the guilty party; and 3) the jury will both convict the accused and will return findings requiring a death sentence. Beck v. State, 648 S.W.2d 7, 9 (Tex.Crim.App.1983); Ex parte Alexander, 608 S.W.2d 928, 930 (Tex.Crim.App.1980); Ex parte Wilson, 527 S.W.2d 310, 311 (Tex.Crim.App.1975); see also Ex parte Graves, 853 S.W.2d 701, 704 (Tex.App.--Houston [1st Dist.] 1993, pet. ref'd).

The burden of proof is on the State to show the proof evident. Beck, 648 S.W.2d at 9; Alexander, 608 S.W.2d at 930. The "substantial showing" burden of the accused's guilt at the bail hearing is far less than the trial burden of "beyond a reasonable doubt." Lee v. State, 683 S.W.2d 8, 9 (Tex.Crim.App.1985).

The State must also establish that the jury will assess appellant the death penalty. The issues the jury considers in assessing the death penalty are:

(1) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and

(2) in cases in which the jury charge at the guilt or innocence stage permitted the jury to find the defendant guilty as a party under Sections 7.01 and 7.02, Penal Code, whether the defendant actually caused the death of the deceased or did not actually cause the death of the deceased but intended to kill the deceased or another or anticipated that a human life would be taken.

TEX.CODE CRIM. PROC. ANN. Art. 37.071(2)(b) (Vernon Supp.1997).

If the jury unanimously answers "yes" to the above issues, it must then unanimously answer "no" to the following issue:

Whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed.

TEX.CODE CRIM. PROC. ANN. Art. 37.071(2)(e) (Vernon Supp.1997).

In this type of appeal, the appellate court is put in a difficult position. On one hand, we must follow the lead of the Court of Criminal Appeals "not to set out the facts in detail or comment on the sufficiency of the evidence prior to trial on the merits." See Alexander, 608 S.W.2d at 929; Ex parte Wilson, 527 S.W.2d at 311. On the other hand, while the decision of the trial judge that the proof is evident is entitled to weight on appeal, the reviewing court must review the evidence and determine whether bail was properly denied. Alexander, 608 S.W.2d at 930; Ex parte Hickox, 90 Tex.Crim. 139, 233 S.W. 1100, 1101 (1921).

The Evidence

The State's case against appellant is primarily built on circumstantial evidence, "direct proof of a secondary fact, which by logical inference demonstrates the ultimate fact to be proved." Taylor v. State, 684 S.W.2d 682, 684 (Tex.Crim.App.1984).

Documents

The State suggests that, as a motive for murder, complainant and appellant were in the process of getting a divorce. To support this allegation, the State introduced complainant's petition for divorce into the record. To prove appellant's involvement in the crime, the State introduced typewritten and handwritten notes found in Roger Angleton's brief case it claims link appellant to the planning and execution of Doris Angleton's murder.

Rule 901(a) of the Rules of Criminal Evidence provides that generally, when authentication or identification is necessary, the requirement "is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." TEX.R.CRIM. EVID. 901(a). The problem of authentication, however, arises whenever the relevancy of any evidence depends upon its identity, source, or connection with a particular person, place, thing, or event. See Kephart v. State, 875 S.W.2d 319, 321 (Tex.Crim.App.1994) (quoting S. Goode, O.G. Wellborn & M.M. Sharlot, TEXAS RULES OF EVIDENCE: CIVIL AND CRIMINAL Sec. 901.1, 2 Texas Practice 192 (2d Ed.1993).); see also TEX.R.CRIM. EVID. 104(b).

The typewritten documents were found in Roger Angleton's possession and contain specific details about the alarm code and gate code to the Angleton house, and outline a plan for a murder. The documents also trace a course of post-crime events and actions that tend to connect appellant with the murder.

Tape Recording

The State also introduced an audio tape into evidence. The State claims the recording is a conversation between appellant and his brother in which the men ostensibly plan complainant's murder. Appellant contends the State has not laid the proper predicate to authenticate the tape. We agree.

The Court of Criminal Appeals has held that direct and circumstantial evidence 1) are to be treated in the same manner for purposes of establishing the proof required for admission of sound recordings, and 2) are of equal probative weight for purposes of determining admissibility of sound recordings. See Cowan v. State, 840 S.W.2d 435, 437 (Tex.Crim.App.1992); Wallace v. State, 782 S.W.2d 854, 857 (Tex.Crim.App.1990).

Rule 901(b) lists several non-exclusive examples of how authentication may be accomplished. Rule 901(b)(1), entitled "Testimony of witness with knowledge," provides for authentication of evidence by "[t]estimony that a matter is what it is claimed to be." This rule requires the sponsoring witness to have knowledge that the evidence is what its proponent says it is. Kephart, 875 S.W.2d at 321.

The State's witness, Sergeant David Ferguson, admitted that the tape presented at the hearing was not the original tape recording found in Roger Angleton's briefcase. Neither was Ferguson able to provide the court with any information as to how the offered tape differed from the original recording other than it had been "enhanced."

Ferguson attempted to authenticate the tape recording by identifying the voices on the tape as those of appellant and his brother, Roger Angleton. Rule 901(b)(5) provides for authentication by testimony in which a witness makes an "[i]dentification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker."

Because the tape contains references to an earlier alarm call at the home, the State claims the tape was made after April...