Becknell v. State

• Court: Texas Court of Criminal Appeals
• Writing for the Court: McCORMICK; TEAGUE
• Citation: Becknell v. State, 720 S.W.2d 526 (Tex. Crim. App. 1986)
• Decision Date: 19 November 1986
• Docket Number: No. 3,No. 59827,59827,3
• Parties: James Bernard BECKNELL, Jr., Appellant, v. The STATE of Texas, Appellee

Page 526

720 S.W.2d 526

James Bernard BECKNELL, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 59827.

Court of Criminal Appeals of Texas Panel No. 3.

Nov. 19, 1986.

Joseph L. Perkins, Marshall, for appellant.

A.D. Clark, III, Dist. Atty. and William D. Saban, Asst. Dist. Atty., Tyler, Robert Huttash, State's Atty., Austin, for the State.

Before TOM G. DAVIS, McCORMICK and TEAGUE, JJ.

OPINION

McCORMICK, Judge.

Appellant was convicted of murder and sentenced by a jury to life imprisonment.

Under two grounds of error, appellant argues, first, that the trial court erred in admitting into evidence certain business cards and records of a Houston gun dealer because these items were illegally seized with the ineffective consent of a third party; and last, that the trial judge improperly commented on the weight of the evidence. We disagree with the second ground, find error, if any, in the first ground harmless, and affirm.

On May 12, 1977, Dr. Walter Carl Roddy had posted grades following final examination in his parasitology course in which appellant was enrolled. The record shows that after he conversed with a student, L. Laine, inside his office, he stepped out into the hallway, pivoted back as if to say something more, and was shot six times with a .38 caliber weapon. Laine heard the shots and saw Roddy slump to the floor.

Running out into the hall, she saw appellant headed up the sidewalk outside the building toward his car. A secretary in an office across the hallway, L. Ivy, saw a black male with a goatee walk up to Roddy's doorway and wait to one side of the opening. She looked away, then heard "a loud echoing noise" and turned back around where she heard Roddy "scream and twist out into the hallway." Roddy's assailant backed away from his victim, the man's right arm raised and "sparks flying out in front" of his arm toward the deceased. Ivy then saw the man hurry toward the door to the building and run up the outside steps. Another university professor, Dr. A. Szarka, left his own office after hearing the shots. Upon turning a corner, he came upon a man who he recognized as appellant. Appellant passed by him and hurried out of the building. Szarke testified that he saw the barrel of a gun poking out of appellant's coat. A second secretary, I. Denson, identified appellant as the man running outside the building and stated that she saw a gun barrel "coming out from the back of his rain coat." Appellant does not challenge the sufficiency of the evidence.

In his first ground of error, appellant argues that the Houston gun dealer's business cards and records identifying appellant's purchase of .25 and .38 caliber hand guns and ammunition were inadmissible as the product of an illegal search and seizure of appellant's padlocked bedroom in his parents' house. Specifically, appellant has narrowed his argument on appeal, claiming his father lacked the capacity to consent to the search of appellant's padlocked bedroom.

A third party may properly consent to a search when they have equal control over and equal use of the premises being searched. See Swinney v. State, 529 S.W.2d 70 (Tex.Cr.App.1975); Lowery v. State, 499 S.W.2d 160 (Tex.Cr.App.1973). [following Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969) ]. In the context of the instant case, the third party is a home owner and father of appellant who testified that he was allowed to go into appellant's room "[o]nly when he (appellant) was there." Appellant had the only key to the lock for the last two to three years he resided at the house and would cook and eat his meals separately from the rest of his family. Whether out of respect or because of the padlock, appellant's sister also testified that "no one was allowed" in appellant's room.

Although there are a number of cases from the Court analyzing the right of a parent to consent to a search of a room exclusively used and controlled by adult progeny, Sorensen v. State, 478 S.W.2d 532 (Tex.Cr.App.1972), we may agree that on the narrow facts of the case that the third party here did not exercise equal control over and equal use of the premises being searched. Since appellant's father lacked capacity under these facts to effectively consent, the search of appellant's locked bedroom was improper and seizure of the evidence complained of was tainted so as to be inadmissible. However, the finding of error in the trial court's admission of the items into evidence does not call for automatic reversal, but is instead subject to harmless error analysis. We must still determine whether there is a reasonable possibility that admitting the business cards and records into evidence "might have contributed to the conviction and punishment imposed upon appellant by the jury." Gant v. State, 649 S.W.2d 30 (Tex.Cr.App.1983); Stanley v. State, 606 S.W.2d 918 (Tex.Cr.App.1980; Clemons v. State, 605 S.W.2d 567 (Tex.Cr.App.1980). A judgment will not be reversed for the erroneous admission of evidence that did not injure the defendant. Prior v. State, 647 S.W.2d 956 (Tex.Cr.App.1983). If there is overwhelming evidence of guilt, even constitutional error may be harmless. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Norman v. State, 588 S.W.2d 340 (Tex.Cr.App.1979).

After examining the record, we construe the following factors to be highly material in determining the issue of harmful error in the case:

1. Appellant was positively identified as the individual wearing the raincoat on a day when such apparel would appear odd or suspicious.

2. Appellant was seen walking to and into the building, and walking the halls in the building where the murder took place. He was also seen in the lab where his course grades were posted shortly before Dr. Roddy was shot.

3. The assailant was a man wearing identical or similar clothing matching the description of appellant's appearance as given by several witnesses who knew appellant personally.

4. The assailant walked up to the side of the deceased's office door, waited, and shot the deceased six times with a weapon firing .38 caliber bullets.

5. The assailant, after the shooting, turned and hurried from the building.

6. The assailant passed right by Dr. A. Szarka, went out the exit door and disappeared from view, but not before Szarka identified the man as appellant and saw the barrel of a gun protruding from the hem of the coat appellant was wearing.

7. Appellant was identified as hurrying up the stairs outside the building in the same direction as the fleeing assailant, just seconds after the assailant fled. A gun barrel was sticking out of appellant's coat.

8. Three witnesses testified that appellant had prior disagreements and arguments with Dr. Roddy over course grades. L. Laine, C. Odom and J.K., Payne all testified that they had been in the same room or same area with appellant when the arguments took place. Odom was present on two occasions, May 4 and May 6. She had talked with appellant and found him to be "very unhappy" with his grades because he had a definite impression as to what grade he should receive. On the second occasion, Odom overheard appellant tell Dr. Roddy that missing one particular question was going to "mess up" his entire grade.

L. Laine and five or six other students, including appellant, were going over a test with Dr. Roddy on one occasion. She left the room when appellant began arguing about a missed question. J.K. Payne was also in the room at the time and described appellant as "... obstinate; he apparently didn't want to take no for an answer." Payne also testified that on May 11, the day before the murder, appellant and Dr. Roddy were standing in the hallway looking at appellant's lab report and he overheard Dr. Roddy tell appellant that there were too many discrepancies in his report.

9. Even excluding the testimony of gun dealer Shabot, the other State witnesses as well as appellant's own witnesses paint a clear but ugly picture of premeditated murder. Prior to taking classes at the university, appellant had become withdrawn, literally locking out family and friends. He began the parasitology course with the expectation of making above average grades. Failing the first test, he grew unhappy. As successive grades were received, appellant began arguing with his teacher, the record indicating appellant's belief that it was some failure on Dr. Roddy's part and not his own that led to appellant's receiving certain grades. The day before the killing, Dr. Roddy pointed out discrepancies in appellant's final report. The next morning Payne saw and spoke briefly with appellant in the lab where the final course grades were posted. According to Payne, appellant appeared as he always had, quiet and "composed."

Payne testified that he could only see one of appellant's hands, the other being hidden beneath the coat appellant was wearing.

10. A short time later, appellant left the lab and walked down the hallway toward Dr. Roddy's office. He passed in front of the open doorway to an office where two secretaries were working. Minutes later Dr. Roddy's assailant was seen waiting outside Roddy's office door. When Roddy walked into the hallway, he was shot six times as he fell to the floor. Appellant was seen leaving the building with the barrel of a gun protruding from his coat. He then fled the scene of his crime, not driving to his home, but to another state.

In determining whether there was harmful error in admitting improper evidence as alleged here, the facts and circumstances of the individual case must be considered. Bird v. State, 692 S.W.2d 65 (Tex.Cr.App.1985); Bass v. State, 622 S.W.2d 101 (Tex.Cr.App.1981); Ex parte Flores, 537 S.W.2d 458 (Tex.Cr.App.1976). Here, there was overwhelming evidence of appellant's guilt in the shocking and senseless slaying of a college professor. No less than four different persons saw the assailant, three of whom knew appellant personally. All four witnesses placed a...