Bailey v. State

• Decision Date: 23 September 1975
• Docket Number: No. 49983,49983
• Citation: 532 S.W.2d 316
• Parties: James McNeill BAILEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 316

532 S.W.2d 316

James McNeill BAILEY, Appellant, v. The STATE of Texas, Appellee.

No. 49983.

Court of Criminal Appeals of Texas.

Sept. 23, 1975.

Rehearing Denied Feb. 4, 1976.

Second Rehearing Denied Feb. 25, 1976.

Emmett Colvin and Joe Max Hendley, Dallas, for appellant.

John Lawhon, Dist. Atty., Alan L. Levy, Asst. Dist. Atty., Denton, Jim D. Vollers, State's Atty., David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

BROWN, Commissioner.

The conviction is for murder; the punishment, assessed by the jury, life imprisonment.

At 1:45 P.M. on February 11, 1974, Shirley Seiber, the deceased's neighbor, arrived home for an appointment with the deceased, Imogene Apple. At that time Mrs. Seiber saw the deceased at her mailbox and they had a brief conversation. Afterwards, Mrs. Seiber went into her house and remained there for fifteen to twenty minutes. Then she went through the back yard of the deceased's residence and knocked on the sliding glass door that leads into the den. She tried the door and found that it was locked. At that time, she testified that she heard a 'bumping racket.' Mrs. Seiber walked around the outside of the house past the side utility door and came in through the garage door leading into the den.

Upon entering this door, Mrs. Seiber heard more 'bumping noises' and then heard a loud groan. She opened the utility door and saw the deceased lying on the floor, groaning.

Mrs. Seiber then closed the door, went back through the garage to the outside and called out to the appellant. She explained that she believed he was at the house because his automobile had been 'setting out by the fence in the back' when she arrived. Mrs. Seiber returned to the den through the garage and began to telephone an ambulance. Approximately twenty seconds had elapsed from the time she closed the utility door, went outside and returned to the den. During her trip outside around the garage and into the house, Mrs. Seiber never saw the appellant in the back yard area.

Prior to the completion of Mrs. Seiber's telephone conversation, Freddy Wilson walked up to the sliding glass doors in the back, where he was unable to enter because the doors were locked. As Mrs. Seiber put the telephone down, the appellant emerged from the utility room where the deceased lay. Appellant had blood on his hands, his collar, and just below his collar. The appellant urged Mrs. Seiber to leave the house to summon an ambulance. While Mrs. Seiber was in the den, she stated that no one could have entered the house either through the glass doors in the den or through the outside utility room door.

Freddy Wilson went to the deceased's residence to do some plumbing work. Wilson went up to the sliding glass door and knocked. At that time, he saw Mrs. Seiber in the den on the telephone. Mrs. Seiber showed Wilson the utility room where the deceased lay. Wilson testified that the deceased was lying face down with her head up against the door that leads to the outside. There was a considerable amount of blood in the room and obvious injuries to the head of the deceased.

Freddy Wilson first saw the appellant kneeling over the body. He noticed blood under the appellant's chin and on his trouser leg. Also, Wilson stated that when he left his truck and came up to the house he did not see anyone going toward the house.

An ambulance attendant arrived and found the deceased lying on the floor with her head up against an outside door. The appellant, who was standing nearby, had blood on his shirt, face, chin, hands, and arm.

Officers of the Lewisville Police Department arrived and sealed off the premises. Captain Edge testified that when he arrived the outside door to the utility room was locked from the inside. Also, the other entrances and windows into the house, with the exception of the garage door and the sliding glass door, were locked. There was no evidence of any forcible entry nor did anything appear disturbed except for a small security box containing legal papers, although there were sizeable amounts of money present in the house.

Captain Edge interviewed the appellant on the scene. The appellant stated to him at that time that he had come to the deceased's house to discuss a land matter with her and that upon arriving he had gone out to a pasture in back of the house. He stated that as he was returning to the house, in close proximity to the barn, he heard someone yell and he ran to the house, entering the residence through the outside utility room door.

Officer Galler spoke with the appellant and appellant told him that 'he had been at the barn for about fifteen minutes and had just come back up to the house.' Officer Huddleston was told by the appellant that 'he had started down toward the barn area and he heard someone call his name and he went back up to the house.'

In his first ground of error, appellant contends the court erred in admitting evidence intended to demonstrate appellant's motive. The evidence complained of is that the deceased had made an appointment for the afternoon of the murder for the express purpose of executing a will. The deceased's will in existence prior to her death provided that twenty-one acres of land worth over $400,000 pass to the appellant. Gerald Stockard, an attorney, testified that appellant was aware of this provision, and that appellant had attempted to persuade the deceased to transfer title to the property to him. Kenneth Howard, a surveyor, testified that appellant approached him two months before the murder about preparing a topographical map of part of the deceased's property. Wendell Wood, a bank president from Virginia, testified that appellant borrowed twenty thousand dollars from him in order to start a racket club in the Lewisville area. Mrs. W. Greer testified that appellant wanted her to convince the deceased that appellant's country club project was a good idea. Roman Faltejsek testified that two days before the murder appellant told him he was planning a country club, but that Faltejsek should not tell the deceased. On the day of the murder, appellant met with a bank official in Sherman about a loan for building a country club in Lewisville. On his financial statement, appellant listed twenty-two acres of land valued at $400,000 in the name of Apple/Bailey.

Where a case, such as the one before us, is dependent on circumstantial evidence for its proof, the rules of evidence will not be so stringently applied so as to exclude evidence which sheds light on the occurrence. Knapp v. State, Tex.Cr.App., 504 S.W.2d 421. The deceased's plan to alter her will was a link in the chain of proof that appellant murdered her to inherit her property. Although standing alone it might not support a verdict, when viewed in light of the surrounding circumstances the evidence complained of is relevant and, therefore, admissible. Knapp, supra. No error is shown.

In his second ground of error, appellant contends the court improperly admitted an incriminating oral statement in violation of Art. 38.22, V.A.C.C.P.

Police officers arrived at the scene and found three suspects; appellant, a neighbor, and a plumber. After a brief investigation, appellant was permitted to leave. Captain Edge, who was participating in the investigation, left the scene of the offense at about 6:00 P.M., after officers had found a metal pipe with blood and flesh adhering to it, the deceased's will, and a coat with a pair of blood-stained gloves in one pocket. Edge was recalled by radio to the scene by another officer who told Edge that appellant had returned and wished to talk to Edge.

When Edge arrived, appellant and Officer Perkins were seated at a table. Edge pulled up a chair and sat down facing appellant. Edge said, 'I understand you wanted to talk to me.' Bailey replied, 'Yes, I did not tell you the whole or the exact truth about everything.' Edge asked, 'Like what?' After a pause, appellant replied, 'I hid the murder weapon, a jacket, and the gloves.' Edge then placed appellant under arrest and gave him his statutory warnings.

Appellant relies heavily on Ancira v. State, Tex.Cr.App., 516 S.W.2d 924, where we held that an incriminating statement made to a police officer while in the police car was inadmissible, the Miranda warnings not having been given. In Ancira, however, the police officer testified that he wanted to talk to the appellant about selling heroin, and asked the appellant if he 'would ride around' for the purpose of interrogating him.

Here the appellant did not speak with police officers at their request, but initiated the conversation which led to the statement complained of. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 964 (1966), defined custodial interrogation as 'questioning initiated by law enforcement officers after a person has been taken into custody of otherwise deprived of his freedom of action in any significant way.' The fact that the accused and police officers are together will not render a statement inadmissible if the circumstances do not fall within the definition of custodial interrogation. The fact that appellant had been free to go and had chosen to return in order to speak with Captain Edge removes this case from the proscription of Miranda. Although decided before the applicability of Miranda, we believe that the facts of Taylor v. State, Tex.Cr.App., 420 S.W.2d 601, are salient to the issue at hand. These facts are as follows:

'The shooting occurred at 2:50 p.m., and shortly thereafter the Sheriff arrived at the scene. After a few minutes of investigation the Sheriff left to find appellant. Meanwhile appellant had voluntarily arrived at the Sheriff's courthouse office, but found no one present. Having heard over the Sheriff's two-way radio that the Sheriff was on his way to appellant's residence, and not being able to operate the same, appellant walked to the Tax Collector's office and asked a woman deputy there to contact the...