Bell v. State

• Decision Date: 20 November 1996
• Docket Number: No. 71843,71843
• Citation: 938 S.W.2d 35
• Parties: Walter BELL, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 35

938 S.W.2d 35

Walter BELL, Appellant, v. The STATE of Texas, Appellee.

No. 71843.

Court of Criminal Appeals of Texas,

En Banc.

Nov. 20, 1996.

Rehearing Denied Feb. 5, 1997.

Douglas M. Barlow, Beaumont, for appellant.

John R. Dewitt, Assistant District Attorney, Beaumont, Matthew Paul, State's Attorney, Austin, for appellee.

Before the court en banc.

OPINION

PER CURIAM.

In March 1994 a jury convicted appellant of capital murder under Texas Penal Code § 19.03(a)(2). The offense, murder in the course of robbery or attempted robbery, was committed on July 19, 1974. At the punishment phase of the trial, the jury affirmatively answered the special issues submitted under Texas Code of Criminal Procedure Article 37.0711 §§ 3(b)(1) and (2), ¹ and negatively answered the special issue prescribed by Article 37.0711 § 3(e). ² The trial court accordingly sentenced appellant to death. Article 37.0711 § 3(g). Under Article 37.0711 § 3(j), direct appeal to this Court is automatic. Appellant raises twenty-seven points of error. We will affirm.

A brief history of the case is helpful. Appellant was indicted separately in 1974 for the capital murders of Irene and Ferd Chisum, and was first tried, convicted, and sentenced to death for Irene's murder. We affirmed that conviction in Bell v. State, 582 S.W.2d 800 (Tex.Cr.App.1979), cert. denied, 453 U.S. 913, 101 S.Ct. 3145, 69 L.Ed.2d 995 (1981). ³ In 1982, appellant was convicted for the capital murder of Ferd Chisum and received a death sentence which we affirmed in Bell v. State, 724 S.W.2d 780 (Tex.Cr.App.1986), cert. denied, 479 U.S. 1046, 107 S.Ct. 910, 93 L.Ed.2d 860 (1987). On habeas review, this Court in 1991 reversed appellant's conviction and sentence pursuant to Penry v. Lynaugh 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (reversing Penry's sentence because Texas's capital sentencing statute did not provide vehicle for jury to consider mental retardation evidence as mitigating against imposition of death penalty). Ex parte Bell, No. 70,946 (Tex.Cr.App. November 6, 1991) (not designated for publication). ⁴ This is an appeal of appellant's second conviction and death sentence for the capital murder of Ferd Chisum.

Sufficiency of the Evidence at Punishment

Although appellant does not contest the sufficiency of the evidence to establish his guilt, he disputes the sufficiency of the evidence supporting his death sentence. In his eighth point of error, appellant contends that the evidence was insufficient to sustain a finding of future dangerousness under Article 37.0711 § 3(b)(2). ⁵ We disagree.

In reviewing the sufficiency of the evidence at the punishment phase, we view the evidence in the light most favorable to the jury's finding and determine whether any rational trier of fact could have made the finding beyond a reasonable doubt. Moreno v. State, 858 S.W.2d 453, 457 (Tex.Cr.App.), cert. denied, 510 U.S. 966, 114 S.Ct. 445, 126 L.Ed.2d 378 (1993). In our evaluation, we are mindful that the circumstances of the offense and the events surrounding it can be among the most revealing evidence of future dangerousness and alone may be sufficient to support an affirmative answer to that special issue. ⁶ Id. at 457, 459.

Viewed in the light most favorable to the jury's verdict, the evidence at guilt-innocence showed the following: Appellant worked at the Chisums' appliance repair business and had been fired approximately a week before the offense. After he was fired, appellant planned to attack and rob the Chisums at their home. In preparation for his crime, appellant assembled an "equipment kit" consisting of a sharpened knife, handcuffs, an electrical cord with the ends cut off, and some documents, and placed these items inside a bag. Appellant gained entry into the Chisums' home under the pretext of asking Mr. Chisum's help in applying to mechanic's school and used the papers he brought to support his ruse. At the end of the conversation, appellant pulled the knife on Mr. Chisum, handcuffed him, and bound his feet together with the extension cord. Appellant then called Mrs. Chisum into the room and tied her legs and hands with pieces of towel. After forcing Mr. Chisum to hop from the living room into a closet, appellant took Mrs. Chisum into the study. When Mr. Chisum escaped from the closet, appellant chased him down, beat him, and stabbed him in the chest. After returning to the study, appellant untied Mrs. Chisum, forced her to undress, gagged her with a towel, and raped her. Afterwards, he forced her to write out some checks to appellant under an alias. When Mrs. Chisum began making mistakes due to her nervousness, appellant grabbed a pillow and slashed it to show her that he was serious. After Mrs. Chisum signed the last check, appellant choked her to death with a towel and moved her body into a bathtub. He returned to Mr. Chisum, choked him, and dragged him to the bathtub.

Appellant left the Chisums' house with some cash and the victims' watches, among other items. The next day, appellant bought some clothes, got a haircut, attempted to cash one of the checks, played pool, and drank beer. Appellant was arrested later that evening and signed a confession describing the details of the offense that was admitted into evidence at his trial. ⁷

At punishment, the State relied heavily on the facts of the offense to show future dangerousness. In addition, the State introduced evidence of two extraneous acts involving threats of violence. First, according to a prison disciplinary report from 1981, appellant told a prison guard who was strip searching him, "Don't look at me like this you mother fucker, next time you do this I'll cut your throat and any other peckerwood's throat that tries to strip me." Second, according to military records from appellant's service in the navy, he was court-martialed in 1973 for telling a corporal, "Shut your mouth or I'm going to kill your ass."

In our affirmance of appellant's first conviction for Ferd Chisum's capital murder, we also reviewed the sufficiency of the evidence to support the jury's future dangerousness finding. Bell, 724 S.W.2d at 803-804. While we acknowledge that the "law of the case" doctrine does not apply to an evidentiary sufficiency challenge, ⁸ we note that the aggravating evidence in both of appellant's trials was virtually identical. In Bell we looked at the same aggravating facts that were present in the instant case and commented that the facts of the offense alone "indicate[d] a propensity, perhaps even an appetite, for violence." Id. We held, "Considering this evidence alone, without the threats presented by the State in the punishment stage, we find sufficient support for the jury's affirmative finding to Special Issue Two." Id. Because the aggravating facts in both trials were basically identical, we see no reason to come to a different conclusion regarding the sufficiency of the evidence to support the jury's finding of future dangerousness. We cannot say the jury was irrational in believing appellant would commit criminal acts of violence which would constitute a continuing threat to society, and hold that the evidence was sufficient to support the jury's affirmative answer to the future dangerousness special issue. Appellant's eighth point of error is overruled.

In his ninth point of error, appellant argues that the evidence is insufficient to support the jury's negative answer to the mitigation special issue under Article 37.0711 § 2(e). ⁹ In support of his contention, appellant points to his youth at the time of the offense, ¹⁰ his exemplary conduct in prison over the last two decades, ¹¹ and his mental retardation. ¹² Appellant first urges this Court to "engage in a de novo review of both the existence and the respective weight of aggravating and mitigating circumstances." ¹³ In the alternative, appellant continues, this Court should determine whether the jury's verdict was against the great weight and preponderance of the evidence. Cf. Meraz v. State, 785 S.W.2d 146, 155 (Tex.Cr.App.1990) (defendant has burden of proving affirmative defense of insanity and appellate review should inquire whether verdict was against the great weight and preponderance of the evidence).

In McFarland v. State, 928 S.W.2d 482 (Tex.Cr.App.1996), we held that appellate review of the jury's answer to the mitigation special issue is not constitutionally required. Id., at 499. We explained that we cannot review the jury's answer to the mitigation special issue, either in an independent de novo review, ¹⁴ or in a review of factual sufficiency, because it is a subjective determination left exclusively to the jury. Id., at 498. See also Colella v. State, 915 S.W.2d 834, 845 (Tex.Cr.App.1995) (holding that because jury alone faces the task of evaluating mitigating evidence, we cannot review jury finding that, taking into consideration all evidence, there are no sufficient mitigating circumstances to warrant imposition of life imprisonment rather than the penalty of death). Because appellant raises no new arguments, we overrule his ninth point of error.

In points of error ten and eleven, appellant agrees that meaningful appellate review of the sufficiency of mitigating evidence is impossible; however, he insists that because Article 44.251(a) and the federal constitution require such review, the Texas capital sentencing statute is unconstitutional. ¹⁵ First, appellate review of the jury's answer to the mitigation special issue, which is a practical impossibility, is not constitutionally required. McFarland, supra, at 499. See also Burns v. State, 761 S.W.2d 353, 356, n. 4 (Tex.Cr.App.1988) (citing Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 [1984] for the proposition that "it is doubtful [that] Eighth Amendment or Due Process considerations absolutely require this Court to reweigh punishment evidence ..."). Second, even if Article 44.251(a) were problematic, it would not affect the...