Barney v. State

• Decision Date: 02 October 1985
• Docket Number: No. 69095,69095
• Citation: 698 S.W.2d 114
• Parties: Jeffery Allen BARNEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 114

698 S.W.2d 114

Jeffery Allen BARNEY, Appellant, v. The STATE of Texas, Appellee.

No. 69095.

Court of Criminal Appeals of Texas En Banc.

Oct. 2, 1985.

Ronald Mock, Mary Moore, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty. and William J. Delmore, III, Donald A. Smyth and Charley Davidson, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

MILLER, Judge.

This is an appeal from a conviction for capital murder. Appellant was convicted of intentionally causing the death of another while in the course of committing or attempting to commit the offense of aggravated rape. V.T.C.A. Penal Code, § 19.03(a)(2). The sufficiency of the evidence to sustain the conviction is not challenged. The jury returned affirmative answers to two special issues submitted in accordance with Art. 37.071(b), V.A.C.C.P. The trial court sentenced appellant to death. Article 37.071(e), V.A.C.C.P. We affirm.

In his sixth ground of error, appellant contends the evidence is insufficient to support the jury's affirmative answer to the second punishment issue requiring the State to prove beyond a reasonable doubt that there is a probability appellant would commit criminal acts of violence that would constitute a continuing threat to society. A recital of the guilt and punishment evidence thus becomes necessary.

The deceased was the wife of John T. Longsworth, a minister in Pasadena, Texas. Appellant was Longsworth's former employee. The record reflects Longsworth had taken a charitable interest in appellant prior to the instant offense and had previously helped appellant obtain parole from the penitentiary, find employment, and gain admittance into a halfway house.

The partially nude body of the deceased was found in the bedroom of her home during the morning of November 25, 1981. The house revealed no signs of forced entry. A microphone cord was wrapped tightly around the victim's neck. Four broken ribs on the victim's left side were consistent with her assailant leaning or kneeling on her chest. The cause of death was asphyxiation by ligature strangulation. There was also evidence of manual strangulation. Medical testimony established it would take over three minutes for an individual to die from this type of strangulation. Medical evidence indicated the deceased was raped vaginally while she was alive and sodomized anally after she was dead or in shock. The record reflects Longsworth was attending an out-of-state minister's convention at the time of the instant offense.

On November 28, 1981, appellant was arrested while driving the deceased's automobile in Dayton, Ohio. Appellant was in possession of one of Longsworth's credit cards. Credit card receipts bearing the forged signature of Longsworth were recovered from the car.

Appellant subsequently gave a written statement to Pasadena police officers in which appellant stated he went to the deceased's residence, choked her after she angered him by a remark, and partially removed her clothing. He also admitted taking some cash, a credit card, and the deceased's automobile.

At the punishment phase of trial, the State introduced evidence that appellant had twice been convicted for auto theft, once in Ohio and once in Texas. Additionally, the State called appellant's former cellmate who had spoken with appellant while in the county jail. The former cellmate testified appellant told him "he raped and strangled a preacher's wife and he stole her car and went to Ohio" and he would do it over again and he "hated the fucking bitch." The State also produced a prisoner who shared the courthouse holdover cell with appellant during his capital murder trial. This witness testified that appellant stated "[I]f I had to do it again, I would kill the bitch again."

The record further reflects that while in the courthouse holdover cell during the guilt stage of his trial, appellant was seen in possession of a homemade knife or shank. A fellow prisoner wrote a note to the bailiff warning him of the weapon and the knife was subsequently recovered from the cell's toilet. Two prisoners testified to seeing appellant with the shank and another testified he saw appellant place the shank inside the toilet. One prisoner testified that appellant stated if he got a chance he would escape and he would harm the bailiff if he had to. The prisoner also testified appellant discussed the location of the courthouse elevators and stairway, as well as whether the bailiff was armed.

In answering the special issues under Art. 37.071, V.A.C.C.P., the jury may consider all of the evidence adduced at the guilt stage of trial. Smith v. State, 683 S.W.2d 393 (Tex.Cr.App.1984); Roney v. State, 632 S.W.2d 598 (Tex.Cr.App.1982); Garcia v. State, 626 S.W.2d 46 (Tex.Cr.App.1982); Duffy v. State, 567 S.W.2d 197 (Tex.Cr.App.), cert. denied, 439 U.S. 991, 99 S.Ct. 593, 58 L.Ed.2d 666 (1978). Indeed, we have recognized that the circumstances of the offense and the facts surrounding it may furnish greater probative evidence than any other evidence regarding the second special issue submitted at the penalty stage of a capital murder trial. Russell v. State, 665 S.W.2d 771 (Tex.Cr.App.1983), cert. denied, 465 U.S. 1073, 104 S.Ct. 1428, 79 L.Ed.2d 752 (1984); Garcia, supra; Duffy, supra.

At the punishment phase of trial, the State initially reoffered all evidence presented at the guilt phase. ¹ This evidence showed that while Longsworth, a man who had taken a charitable interest in appellant, was out of town, appellant gained entry into his house and strangled the deceased with his hands and a microphone cord, slowly causing her death. Appellant raped the victim and sodomized her dead or dying body. Appellant then stole the deceased's car and Longsworth's credit card and fled to Ohio. Forging Longsworth's signature, appellant repeatedly used the stolen card.

This deliberate and brutal murder coupled with appellant's subsequent callous conduct evidences a total lack of regard for the sanctity of life, ownership of property, and respect for the personal dignity of individuals who had gone out of their way to help appellant. See, Cannon v. State, 691 S.W.2d 664 (Tex.Cr.App.1985). Appellant's deviate sexual intercourse with the victim's dead or dying body evinces a dangerous aberration of character. We have held that the circumstances of the capital offense itself, if severe enough, can be sufficient to sustain an affirmative finding to the special issue. O'Bryan v. State, 591 S.W.2d 464 (Tex.Cr.App.1979), cert. denied, 446 U.S. 988, 100 S.Ct. 2975, 64 L.Ed.2d 846 (1980). We need not rely upon the instant offense alone, however, for the record reflects more.

Appellant's violent tendencies were not diminished by his arrest and capital prosecution. Appellant expressed a total lack of remorse for the instant offense and asserted a willingness to repeat the crime, even during the pendency of his trial. Furthermore, the most compelling evidence of future dangerousness derives from appellant's conduct during the guilt stage of his capital murder trial in possessing a homemade weapon, plotting an escape from custody, and contemplating the harm of the courthouse bailiff. Evidence of this planned escape was admissible at the punishment phase of appellant's capital murder trial as bearing on appellant's future dangerousness. See Art. 37.071(a), V.A.C.C.P.; Rumbaugh v. State, 589 S.W.2d 414 (Tex.Cr.App.1979). Cf. Turner v. State, 685 S.W.2d 38 (Tex.Cr.App.1985).

Reverend Longsworth, appellant's mother, sister-in-law, and friends testified on his behalf at the punishment hearing. The record reflects little mitigating evidence for the conduct of the 23 year old appellant, other than his youth and evidence indicating he may have been intoxicated at the time of the offense. An accused's youth alone will not prevent the imposition of the death penalty. Cannon, supra; Ferguson v. State, 573 S.W.2d 516 (Tex.Cr.App.1978), cert. denied, 442 U.S. 934, 99 S.Ct. 2870, 61 L.Ed.2d 304 (1979). Although there was evidence indicating appellant may have been intoxicated at the time of the offense, the jury could conclude this was not sufficient to mitigate his actions. See Duffy, supra at 208.

We find the evidence is sufficient to support the jury's affirmative finding that there is a probability that appellant would commit criminal acts of violence that would constitute a continuing threat to society. Appellant's sixth ground of error is overruled.

In his seventh ground of error, appellant contends his confession was involuntary and the trial court erred in admitting it into evidence. Appellant alleges his confession was involuntary because he was afforded little or no sleep between his arrest in Dayton, Ohio and the time of the confession given at least twenty-four hours later in Pasadena, Texas. Additionally, appellant asserts that he was threatened with additional charges, that he requested an attorney but was denied one, and that he was warned by the magistrate regarding only an auto-theft case (the theft of the deceased's vehicle). Appellant contends the confession was not a result of his own free will given these factors and the emotionally coercive practice of police interrogation, citing Jurek v. Estelle, 623 F.2d 929 (5th Cir.1980), cert. denied, 450 U.S. 1001, 101 S.Ct. 1709, 68 L.Ed.2d 203 (1981).

Appellant filed a motion to suppress his confession and the trial court held a hearing in compliance with Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), and Art. 38.22, V.A.C.C.P. The record reflects that appellant was arrested in Dayton, Ohio on November 28, 1981, while driving the deceased's car. Detective William Lanier of the Pasadena Police Department testified that he arrived in Dayton, Ohio around midnight on December 1, 1981. The next day, Lanier and another detective transported appellant from the city jail to the airport, arriving at...