Brandley v. State

• Decision Date: 08 May 1985
• Docket Number: No. 68850,68850
• Citation: 691 S.W.2d 699
• Parties: Clarence Lee BRANDLEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 699

691 S.W.2d 699

Clarence Lee BRANDLEY, Appellant, v. The STATE of Texas, Appellee.

No. 68850.

Court of Criminal Appeals of Texas En Banc.

May 8, 1985.

Rehearing Denied June 6, 1985.

George W. Morris, Donald M. Brown, Conroe, Percy Foreman, Mike DeGeurin, Houston, for appellant.

James H. Keeshan, Dist. Atty., Conroe, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

W.C. DAVIS, Judge.

A jury found appellant guilty of capital murder and answered the special issues under Art. 37.071(b), V.A.C.C.P. affirmatively, whereupon the court assessed the mandatory penalty of death. Appellant raises fifteen grounds of error, including a challenge to the sufficiency of the evidence to support the verdict of guilt.

Appellant also challenges the sufficiency of the evidence adduced at a previous trial of the same offense. That trial resulted in a mistrial when the jury could not reach a unanimous decision on guilt or innocence. Appellant contends that the retrial violates his due process and double jeopardy rights under the United States and Texas Constitutions because the evidence at the first trial was insufficient to support a verdict of guilt. In Richardson v. United States, 468 U.S. 317, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984), the defendant raised a double jeopardy claim after his first trial resulted in a mistrial due to the inability of the jurors to agree. The defendant argued that the evidence presented at the first trial was insufficient and that retrial was therefore barred by Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). The Supreme Court disagreed, holding that jeopardy does not terminate when the jury is discharged because it is unable to agree, and that, therefore, the sufficiency of the evidence presented at the first trial need not be reviewed.

Under the authority of Richardson, supra, we will not review the sufficiency of the evidence presented at appellant's first trial.

Appellant also challenges the sufficiency of the evidence presented during the instant trial.

The evidence is circumstantial. The victim was the sixteen-year old manager for the Bellville High School girls' volleyball team. She, the players, and the coach arrived at Conroe High School at 9:10 a.m. on Saturday, August 23, 1980 for a scrimmage; they entered an annex gym to begin warming up before their scheduled match. The victim put down the volleyballs, the scorebook, and her purse, and left the gym. Her body was found in the loft area above the stage in the auditorium at about 11:30 a.m.; she had been raped and strangled.

Gary Acreman, Henry Peace, John Sessum and Sam Martinez were janitors who worked at Conroe High School on August 23, 1980. Sessum did not testify. The other three testified to substantially the same facts. They had arrived at the school close to 7:30 a.m. Their supervisor, appellant, arrived about ten minutes late, around 7:40. Appellant unlocked the doors to the main building and directed all the janitors except Peace to set up chairs in the cafeteria. Appellant told Peace to spray-buff the teacher's lounge, and helped him to carry the buffer up to the lounge. Acreman, Sessum, and Martinez finished setting up the chairs between 9:00 and 9:30. They left the cafeteria and waited for appellant in the hallway between the auditorium and the cafeteria. While there, they saw a girl matching the victim's description come from the gym area, walk up the stairs, and go into the restroom near the auditorium.

Appellant followed behind the girl by a few minutes, carrying rolls of toilet paper in his hands. As appellant started up the stairs toward the restroom, Acreman told him a girl was inside. Appellant said he was not going to go in, and told the three janitors to get Peace and go across the street to the vocational building; he would be there in a little while. Appellant then entered a janitor's closet near the restroom.

The three janitors left. They met Peace as he was coming out of the teacher's lounge, and all four walked across the street to the vocational building. The building was locked; they waited for appellant, who had the keys.

After about forty-five minutes, appellant appeared at one of the doors of the main building with a white towel draped around his neck. He called to Peace to come get the keys from him, saying that he had something to take care of. The janitors then set up the chairs in the vocational building, taking thirty to sixty minutes. Appellant then arrived to check the work. It was a little after 11:00 a.m. Appellant told Acreman and Martinez that they could go home and that they would be paid for a full day's work. Peace was to give appellant a ride home, so he walked back over to the main building with appellant, who checked to make sure the doors were locked.

Peace went with appellant while he checked the teacher's lounge and the cafeteria to be sure they were set up satisfactorily. Hearing some girls calling someone's name, they walked out into the hallway, and appellant asked the girls for whom they were looking. They described the victim, and appellant told Peace that they should look for her.

Peace noticed that an outside door near the auditorium and a door leading into the auditorium were open; appellant suggested they look inside the auditorium. Appellant told Peace to look in a loft above the stage where props were stored, and said he would look around the seats. Peace went up, looked halfheartedly, and came back down. Appellant asked Peace if he had "checked it out real good" and told him to go up and look again. Peace complied and moved a few things around but found nothing. The two then left the auditorium and looked in a few other places.

Appellant suggested they look in the auditorium again and, for the third time, he told Peace to go up to the loft area and look. This time, however, appellant accompanied Peace to the loft to help him look. Appellant told Peace once again to look "real good." When Peace picked up a piece of plywood leaning up against a door to the roof he saw the nude body of the victim on the floor. Peace screamed and called appellant, who told him to stay there and that he would get the police. Appellant left and returned with police officers.

Peace testified that the police searched his car and found a pistol, a paring knife, a zip-cut knife used to cut bandages, and a wooden club that some students had made for him. He testified that he had lied at the first trial when he had stated that he had shown David Harris a picture of his pistol and that in fact he had shown Harris the gun itself. He also testified that he had a card with his picture that indicated that he was a narcotics officer. Peace said that he had had a bunch of cards made up at a flea market and that he used them in a play world which he had set up at home to play with his nieces and nephews.

Additional evidence adduced at trial included testimony that in May of 1980 drama students at Conroe High School had tied a white towel to one of the ropes of a pulley system in the loft of the auditorium. Acreman testified that after the janitors had waited at the vocational building for forty-five minutes, appellant had appeared at the doors of the main building with a white towel draped around his neck. Testimony established that on August 23, 1980 the white towel was not in the loft.

Danny Taylor, a high school student who worked during the summer as a janitor, testified that he, appellant, and a few other people were standing near the teachers' lounge one day early in the summer, when a group of female students walked by them. Taylor said that appellant remarked that "if he got one of them alone, ain't no telling what he might do."

Appellant called several witnesses to show that many others had master keys that would open the auditorium doors and that the doors near the stage leading outside had at times been propped open with a two-by-four. An expert called by appellant testified that he examined the various hairs submitted for comparison, and that he did not find any that matched hair taken from Henry Peace; he did find hairs similar enough to appellant so that appellant could not be excluded. Appellant did not testify.

Hartwell Brown, the assistant principal at Conroe High School, testified that he was in charge of the auditorium, scheduling events and renting it to groups. The day before the murder, the auditorium had been set up for an in-service teachers meeting scheduled for Monday, August 25. After the preparations were finished, Brown personally checked all the doors in the auditorium except the one leading from the roof to the loft. He locked any door that was not locked, including a door leading to the outside which had to be slammed shut in order to lock. All the doors were locked when he left at 2:30 p.m. on Friday, August 22.

Doctor Joseph Jachimczyk, Chief Medical Examiner for Harris county, testified that the victim had been raped and strangled. He tested for and found seminal fluid in and around the vaginal area. There was a depression in her neck area 1- 1/4 inches wide, which Jachimczyk testified was consistent with the use of a strap, belt, or towel of that width to strangle the victim. Appellant's belt was introduced into evidence; it measured 1- 1/4 inches wide. Jachimczyk testified that urine accumulates at the rate of one ounce every fifteen minutes. The victim's bladder was empty, indicating that urine had just been eliminated.

Officer Kremenak, a member of the Conroe Police Department, testified that on August 25 he searched the dumpsters located behind the Conroe High School buildings and found a yellow plastic garbage bag similar to those used in the trash cans in the school. The bag contained the victim's shoes, belt, panties, shirt, jeans, and part of her bra. A string similar to a strand of mop string was found in the blue jeans.

Tony Arnold, a chemist-toxicologist from the ...