Brasfield v. State, No. 61871

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Writing for the CourtCLINTON; DALLY and W. C. DAVIS; ROBERTS; DOUGLAS; ODOM; DOUGLAS; CLINTON
Citation600 S.W.2d 288
PartiesPhilip Carey BRASFIELD, Appellant, v. The STATE of Texas, Appellee.
Decision Date13 February 1980
Docket NumberNo. 61871

Page 288

600 S.W.2d 288
Philip Carey BRASFIELD, Appellant,
v.
The STATE of Texas, Appellee.
No. 61871.
Court of Criminal Appeals of Texas, En Banc.
Feb. 13, 1980.
On Rehearing June 18, 1980.

Page 291

Dennis W. McGill, Mark C. Hall, Lubbock, for appellant.

John T. Montford, Dist. Atty., and J. David Nelson, Asst. Dist. Atty., Lubbock, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

CLINTON, Judge.

This is an appeal from a conviction for the offense of capital murder wherein the punishment was assessed at death. V.T.C.A., Penal Code Sec. 19.03 (1974), and Vernon's Ann.C.C.P. art. 37.071 (Supp.1980).

The indictment, the operative language of which is set out in the margin, 1 charged that appellant caused the death of Johnny Turner, Jr., in the course of committing the offense of kidnapping. He pleaded not guilty to the charge but the jury found him to be guilty and at the conclusion of the punishment hearing, the jury answered affirmatively the first two issues set out in Art. 37.071(b).

The indictment charged that the offense was committed in Lubbock County; venue was changed to Wichita County where the trial was held.

Since appellant's first ground of error challenges the sufficiency of the evidence to support the conviction, we summarize the

Page 292

proof adduced by the State, noting that the defendant did not testify in person nor did he offer any witness in his behalf.

Our record shows, without dispute, that about 5 o'clock in the evening on October 26, 1977, Johnny Turner, Jr., a six-year-old black boy, was playing in the yard near his home in an apartment complex in Lubbock while his mother was preparing supper. Shortly thereafter, she went to call the boy to come inside, but he was not to be found in the area.

Teddy Robinson, a thirteen-year-old neighbor of Johnny, saw Johnny in a white pickup truck behind his house with an adult white male whom he identified as appellant.

Cecille Hunter, an adult school bus driver, testified that on the day in question at about 5:30 p. m., she was in a filling station near the home of Johnny. She recognized him as "a Turner boy" because of his resemblance to his father whom she knew. Johnny was then in a white pickup truck with an adult white male whom she identified as appellant. She watched as they drove away from the filling station in the direction of Yellow House Canyon, where Johnny's body was later found.

W. E. Davis, the operator of the filling station, corroborated Hunter's testimony as did Ray Dunn, an employee of Davis. Both of these witnesses identified appellant and his white pickup truck as well as the presence therein of a small black boy.

Lubbock lawyer, Warren Goss, without stating the reason or the circumstances, testified that he saw appellant in Lubbock between four and five in the afternoon of October 26, 1977.

Armando Ramirez, an acquaintance of appellant, said that appellant visited him at his place of work near Posey, a small town on U.S. Highway 84 between Lubbock and Slaton. This visit was about three in the afternoon and appellant was quoted as saying that he was going to Lubbock. Ramirez also testified that he and a fellow worker, Jerry Robinson, after getting off work, bought a six-pack of beer and went to a secluded spot on a country road where they drank the beer. This spot was close to Horseshoe Bend Road which leads into Yellow House Canyon. As they were leaving, they saw appellant coming down Horseshoe Bend Road from the direction of the canyon. He was alone in his white pickup truck and was driving at a high rate of speed.

Appellant stopped and the parties talked for a while and then they all went to appellant's home in Slaton. Robinson, Ramirez's co-worker, corroborated the testimony given by Ramirez.

Detective Sgt. Doyle Nelson of the Lubbock Police Department, was in charge of the search for the body and he testified in detail as to the lengthy search in the rugged canyon. Finally, in the forenoon of November 3, the body was discovered in the canyon not far from a dirt farm "turnaround" road. The body was partially covered by brush and the underclothing and trousers of the victim had been pulled down over his legs. The body was in an advanced state of decomposition and was infested with maggots.

Doyle testified to finding tire marks in the dirt on the farm road near where the body was found which matched those on appellant's truck.

Dr. Jose Diaz-Esquivel, a pathologist, testified that Johnny had died of asphyxiation but he could not determine the means used. There was a bruise on the head and face and numerous stab wounds on the body, the latter having been inflicted after death since there was no bleeding from the wounds. The decomposition of the body rendered it impossible for him to determine if the boy had been sexually molested.

Johnny's mother identified the shoes and several articles of clothing found on the body as items worn by Johnny when last seen at his home. Both of Johnny's parents testified that they gave no permission to anyone, including appellant, to take the deceased.

As noted earlier, appellant did not testify in his own behalf nor did he offer any witnesses or defense. The Court's charge,

Page 293

which comes to us without objection, included a charge on circumstantial evidence.

We recognize and apply the rule that every circumstantial evidence case must necessarily be tested by its own facts to determine the sufficiency of the evidence. Earnhart v. State, 575 S.W.2d 551, 554 (Tex.Cr.App.1979); Stogsdill v. State, 552 S.W.2d 481, 486 (Tex.Cr.App.1977); Carlisle v. State, 549 S.W.2d 698, 703 (Tex.Cr.App.1977); Baker v. State, 447 S.W.2d 172, 174 (Tex.Cr.App.1969). Considering the record as a whole and viewing it in the light most favorable to the State, we find the evidence sufficient to support the judgment and overrule the first ground of error. Indo v. State, 502 S.W.2d 166, 169 (Tex.Cr.App.1973).

We find no merit to appellant's second ground of error wherein he contends that the evidence was insufficient to support an affirmative answer to the first issue of fact submitted under Art. 37.071(b)(1), Vernon's Ann.C.C.P. Our exhaustive analysis of the evidence introduced upon the trial set out earlier reveals evidence of probative nature more than adequate to support the jury's finding. Ground two is overruled.

We turn now to a consideration of his third ground error wherein he challenges the sufficiency of the evidence to support the jury's answer to the second issue under Art. 37.071(b)(2), Vernon's Ann.C.C.P. 2

At the punishment stage of the trial, the State and appellant rested without presentation of any evidence; and, as noted earlier, the evidence at the guilt stage of the trial was entirely circumstantial in nature. There was no evidence, per se, of any extraneous criminal acts; there was no psychiatric evidence offered; there was no evidence of any prior criminal convictions nor was any character evidence introduced.

In Robinson v. State, 548 S.W.2d 63, 64 (Tex.Cr.App.1977), this Court listed several matters which it deemed relevant to the sentence and which the jury should consider in determining whether a defendant would be a continuing threat to society. 3 We have held in several cases, e. g., Burns v. State, 556 S.W.2d 270, 280 (Tex.Cr.App.1977), that the jury may consider the evidence adduced at the guilt-innocence stage in answering the question as to probability of future crimes of violence.

But, in Warren v. State, 562 S.W.2d 474, 476-477 (Tex.Cr.App.1978), a reversal was ordered because the second issue was supported only by the evidence at the guilt-innocence phase of the trial and a pen packet showing a prior felony conviction. The majority in Warren concluded that "(w)hile there may be cases where the evidence offered at the guilt stage of the trial may be sufficient to support an affirmative answer to special issue No. 2", the case then under review was not such a case. The Court noted that there was no psychiatric evidence, no evidence of prior crimes of violence, and no apparent intention to commit an act of violence when the criminal incident was begun.

Our case is distinguishable on the last point; here we have a crime of violence adequately supported by the circumstantial evidence. Shortly after the commission of the offense, we note that appellant was visiting with Armando Ramirez and Jerry Robinson at their beer-drinking rendezvous a very short distance from where Johnny's

Page 294

body was secreted. See and compare Earvin v. State, 582 S.W.2d 794, 799 (Tex.Cr.App.1979).

In Vanderbilt v. State, 563 S.W.2d 590, 599, fn. 4 (Tex.Cr.App.1978), the Court gratuitously called attention of the trial court to the holding in Warren, supra. Other cases by this Court have cited Warren but only when preceded by the flag, "cf". See, e. g., Duffy v. State, 567 S.W.2d 197, 208 (Tex.Cr.App.1978); Bodde v. State, 568 S.W.2d 344, 351 (Tex.Cr.App.1978); Villarreal v. State, 576 S.W.2d 51, 65 (Tex.Cr.App.1978); and McMahon v. State, 582 S.W.2d 786, 792 (Tex.Cr.App.1978).

After careful consideration of the entire record and the several factors which the jury could consider (as set out in Hovila v. State, 562 S.W.2d 243, 249 (Tex.Cr.App.1978)), we are led to the inescapable conclusion that the evidence was insufficient to support an affirmative answer to the second issue. Consequently, we sustain appellant's third ground of error. Warren v. State, supra. This holding, however, affects only the death penalty. We must, therefore, consider the other complaints brought forward.

In his fourth and fifth grounds of error, appellant contends that the trial court erred in overruling his motion to quash the indictment because it did not state the name of the alleged kidnap victim. He argues that the indictment did not apprise him of the charges which he had to defend against. He also contends that such omissions made it...

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168 practice notes
  • DeVaughn v. State, No. 1062-84
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • April 13, 1988
    ...the requested information. Janecka v. State, 739 S.W.2d 813, 819 (Tex.Cr.App.1987) Page 68 , overruling in part Brasfield v. State, 600 S.W.2d 288 (Tex.Cr.App.1980) (Opinion on State's Motion for Rehearing). See also Brasfield v. State, supra at 303 (Clinton, J., dissenting on State's Motio......
  • Livingston v. State, No. 69477
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • October 21, 1987
    ...of the Texas Constitution mandates that the notice petitioned for must come from the face of the charging instrument. Brasfield v. State, 600 S.W.2d 288 (Tex.Cr.App.1980); Moore v. State, 532 S.W.2d 333 (Tex.Cr.App.1976), Voelkel v. State, 501 S.W.2d 313 (Tex.Cr.App.1973). The adequacy of t......
  • Martinez-Macias v. Collins, No. EP-88-CA-473-B
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • November 6, 1991
    ...the only way to establish an abuse of that discretion was to show harm resulting from the refusal to appoint. Id.; Brasfield v. State, 600 S.W.2d 288, 296 (Tex.Crim. App.1980) (en banc); Freeman v. State, 556 S.W.2d 287, 302-303 (Tex.Crim.App. Had Mr. Weiser made a request of $12,000 to obt......
  • Holland v. State, No. 69647
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • July 13, 1988
    ...697 S.W.2d 397 (Tex.Cr.App.1985); see also Keeton v. State, supra; Wallace v. State, 618 S.W.2d 67 (Tex.Cr.App.1981); Brasfield v. State, 600 S.W.2d 288 (Tex.Cr.App.1980); Warren v. State, 562 S.W.2d 474 The evidence at the unitary proceeding, as earlier described, showed deliberate murder ......
  • Request a trial to view additional results
168 cases
  • DeVaughn v. State, No. 1062-84
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • April 13, 1988
    ...the requested information. Janecka v. State, 739 S.W.2d 813, 819 (Tex.Cr.App.1987) Page 68 , overruling in part Brasfield v. State, 600 S.W.2d 288 (Tex.Cr.App.1980) (Opinion on State's Motion for Rehearing). See also Brasfield v. State, supra at 303 (Clinton, J., dissenting on State's Motio......
  • Livingston v. State, No. 69477
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • October 21, 1987
    ...of the Texas Constitution mandates that the notice petitioned for must come from the face of the charging instrument. Brasfield v. State, 600 S.W.2d 288 (Tex.Cr.App.1980); Moore v. State, 532 S.W.2d 333 (Tex.Cr.App.1976), Voelkel v. State, 501 S.W.2d 313 (Tex.Cr.App.1973). The adequacy of t......
  • Martinez-Macias v. Collins, No. EP-88-CA-473-B
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • November 6, 1991
    ...the only way to establish an abuse of that discretion was to show harm resulting from the refusal to appoint. Id.; Brasfield v. State, 600 S.W.2d 288, 296 (Tex.Crim. App.1980) (en banc); Freeman v. State, 556 S.W.2d 287, 302-303 (Tex.Crim.App. Had Mr. Weiser made a request of $12,000 to obt......
  • Holland v. State, No. 69647
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • July 13, 1988
    ...697 S.W.2d 397 (Tex.Cr.App.1985); see also Keeton v. State, supra; Wallace v. State, 618 S.W.2d 67 (Tex.Cr.App.1981); Brasfield v. State, 600 S.W.2d 288 (Tex.Cr.App.1980); Warren v. State, 562 S.W.2d 474 The evidence at the unitary proceeding, as earlier described, showed deliberate murder ......
  • Request a trial to view additional results

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