Barley v. State

• Court: Texas Court of Criminal Appeals
• Writing for the Court: MEYERS; BAIRD
• Citation: Barley v. State, 906 S.W.2d 27 (Tex. Crim. App. 1995)
• Decision Date: 21 June 1995
• Docket Number: No. 71486,71486
• Parties: Nathaniel BARLEY, Appellant, v. The STATE of Texas, Appellee.

Page 27

906 S.W.2d 27

Nathaniel BARLEY, Appellant, v. The STATE of Texas, Appellee.

No. 71486.

Court of Criminal Appeals of Texas En Banc.

June 21, 1995.

Rehearing Denied Sept. 13, 1995.

George McCall Secrest, Jr. (on appeal) Houston, for appellant.

John B. Holmes, Jr., Dist. Atty. and Scott A. Durfee, Lynne Parsons & Keno Henderson, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for State.

OPINION

MEYERS, Judge.

Appellant, Nathaniel Barley, was convicted of capital murder. TEX.PENAL CODE ANN. § 19.03(a)(2). During the punishment phase the jury affirmatively answered the special issues set forth in Texas Code of Criminal Procedure art. 37.071(b). The trial judge sentenced appellant to death as required by Texas Code of Criminal Procedure art. 37.071(e). Direct appeal is automatic. TEX.CODE CRIM.PROC.ANN. art. 37.071(h). We will affirm.

Appellant raises four points of error. Points of error one and four concern identification procedures alleging violations of appellant's rights to due process and counsel. Appellant's second point of error alleges error in the admission of a prior statement of a witness. And appellant's third point of error argues that the evidence is insufficient as a matter of law to support the jury's affirmative finding of future dangerousness. The sufficiency of the evidence to support guilt is not challenged.

On the morning of May 4, 1991, a Sav-Mart store in Houston was robbed and the owner mortally wounded. On a subsequent tip, the police arrested appellant for the offense. While the gun used and the money stolen in the offense were never recovered, appellant was none-the-less later convicted of capital murder and sentenced to death.

In point of error number three, appellant alleges that the evidence supporting the jury's affirmative answer to the second special issue on future dangerousness is insufficient as a matter of law. In reviewing the sufficiency of the evidence at the punishment, it is well-settled that we view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could make the finding beyond a reasonable doubt. Barnes v. State, 876 S.W.2d 316, 322 (Tex.Crim.App.), cert. denied, --- U.S. ----, 115 S.Ct. 174, 130 L.Ed.2d 110 (1994). ¹

In the instant case, the evidence presented showed that appellant entered the victim's store with a "small black short-barreled gun" in his hand. He pointed the gun at the victim's head and said in a loud voice, "Give me the money or I'll shoot your head off." When the victim responded in the negative and started to turn, appellant started to shoot. After appellant grabbed a paper sack which contained approximately nine thousand dollars, he ran around the side of the building and jumped into a waiting car.

Each of these actions exhibited foresight and planning on appellant's part. He not only armed himself, but he told the victim that he had every intention of killing him if he did not cooperate. The subjective existence of this intention is further supported by the fact that appellant shot not once, but four times apparently without a second word of warning. Appellant also had a friend waiting with a car outside.

The medical examiner determined that the victim had been shot a total of four times including a shot to the chest which killed him. A firearms examiner testified that the fatal shot came from a .38 special or .357 Magnum and was fired from a distance of six inches or less.

Also, the State presented to the jury evidence of at least nine prior offenses including:

* burglary of a motor vehicle (Aug. 1982--probated sentence subsequently revoked)

* possession of marijuana (Sept. 1985)

* unauthorized use of a motor vehicle (Dec. 1985)

* delivery of marijuana (May 20, 1986)

* delivery of marijuana (May 22, 1986)

* unlawfully carrying a weapon (knife) (June 1987)

* trespass of a building (Nov. 1988)

* unauthorized use of a motor vehicle (Aug. 1988)

* possession of a controlled substance (cocaine) (April 1989).

While these offenses are not overtly violent, they do show an escalating and on-going pattern of disrespect and continued violations of the law. Plus, a reasonable juror could have interpreted some of the offenses like the delivery charges as evidencing an intent to indirectly harm another.

An officer of the Corpus Christi Police Department testified from his own experience as well as from conversations he had with other officers that appellant was not a peaceful and law-abiding citizen. Three Harris County jailers testified as to two different inmate fights in which appellant was involved.

Additionally, appellant's mother testified that appellant had admitted to having a cocaine problem between 1989 and 1991 and that she had seen him smoking marijuana during that time.

Given the standard on appeal of looking at the evidence in the light most favorable to the verdict, we hold that a reasonable juror could have found that a probability existed that appellant would be a continuing danger. Point of error number three is overruled.

In point of error number one appellant complains that the in-court identification of appellant by three witnesses should have been suppressed in that their ability to make an accurate identification was tainted and violated his due process rights. Appellant argues that this taint was the result of impermissibly suggestive out-of-court identification procedures which created a substantial likelihood of mistaken identification.

The rather confusing evidence pertaining to this point of error was developed at a hearing on identification and at trial. ² On the morning of Saturday, May 4, 1991, the perpetrator entered a Sav-Mart grocery store behind the victim and a customer, one Timothy Demby. Another customer, Millicent Golden, was already in the store and standing at the courtesy booth approximately 30 feet from the door. Stacy Pierson, Golden's twelve-year-old son, was sitting outside in a truck facing the front door of the store. Upon hearing the robber's command to give him money, Demby and Golden each looked at the robber and then ran to the back of the store. Pierson saw the perpetrator as he ran out of the store, stopping briefly in front of the truck in which Pierson was sitting and then running to a waiting vehicle. All three witnesses were able to describe the assailant at the scene. ³ Testimony showed that the lights in the store were on and it was a bright, clear morning.

Two days later, Golden and Pierson went to the police station to make statements. According to police testimony, each was shown a photo array (hereinafter "array # 1") which included a photograph of appellant. Demby was shown this array at a later time. The officer conducting the procedure stated that he showed each witness the array separately and made no suggestion that a suspect was included or otherwise directed the witnesses to a particular choice. Apparently, none of the witnesses were able to make an identification. ⁴

Subsequently, the investigating officer went to question appellant in his home and found that appellant appeared "noticeably different" from the photograph which had been included in the first photo array. The officer asked appellant if he could take another photograph to show to the witnesses. Appellant consented. Because of the apparent darkness of the house, appellant's photograph was taken outside in the yard in the morning sunshine.

Using the new photograph, the officer compiled a second photo array (hereinafter "array # 2"). Because all of the other photographs were taken indoors against a solid color background, Detective Ott framed each picture in white paper in an attempt to make all of the photographs appear as similar as possible. On May 20 and 21, 1991, using the same procedure as before, the officer showed the array to each of the three witnesses. Each of the witnesses made what Ott described as a "strong tentative" identification of appellant. ⁵

On May 31, 1991, appellant was arrested pursuant to a probable cause warrant pending identification. Appellant was included in a line-up which was viewed in person by Golden and Pierson and later on video by Demby. ⁶ As before, the officer made no suggestion that a suspect was in custody or in any way directed the witnesses to choose a particular person, if any at all. Each witness identified appellant as the perpetrator. After this identification, charges were filed against appellant in this cause.

Appellant moved to suppress the identification arguing that the pre-trial identification procedures had been impermissibly suggestive and, therefore, the identification by the witnesses in court would be tainted. The trial court held a hearing on this motion which commenced on Friday, May 22, 1992. Golden and Pierson were called to testify at the hearing, but arrived after it had commenced and the rule had been invoked. Upon becoming aware of their presence in the courtroom, the prosecuting attorney had them escorted out. Pierson testified later in the hearing and at trial that, prior to being escorted out, he recognized appellant as the person he had seen at the grocery store when appellant turned and stretched. Golden stated that she only saw the back of appellant's head and did not recognize him as the shooter from this angle. Both witnesses testified that another trial was in progress when they entered the courtroom. However, Pierson later acknowledged that one of the officers might have been on the stand at the time of their arrival. Both testified that they did not remember what had been said.

The hearing was continued on June 1, 1992. All three witnesses positively identified appellant as the perpetrator and asserted that their identification was based on what they observed at the scene of the offense. The trial judge denied the motion to suppress, finding that the photo spreads were not impermissibly suggestive: all of the witnesses had an opportunity to view a...