Briddle v. State

• Decision Date: 23 September 1987
• Docket Number: No. 68990,68990
• Citation: 742 S.W.2d 379
• Parties: James M. BRIDDLE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 379

742 S.W.2d 379

James M. BRIDDLE, Appellant, v. The STATE of Texas, Appellee.

No. 68990.

Court of Criminal Appeals of Texas En Banc.

Sept. 23, 1987.

Allen C. Isbell, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., & Winston E. Cochran, Jr. & Joe Bailey, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.

OPINION

ONION, Presiding Judge.

Appellant was convicted of capital murder. After the jury found the appellant guilty and answered affirmatively the two special issues submitted under Article 37.071, V.A.C.C.P., the court imposed the death penalty as required by law. See Article 37.071, supra; V.T.C.A., Penal Code, §§ 12.31 and 19.03.

The indictment charged capital murder in two counts. In count one the indictment charged the capital murder of Bob Skeens while in the course of committing a robbery. The second count of the indictment alleged the capital murder of Robert Banks while in the course of committing a robbery. Only the second count of the indictment was submitted to the jury.

Appellant does not challenge the sufficiency of the evidence to sustain the conviction nor the affirmative answers to the special issues submitted at the penalty stage of the trial.

Nine points of error are advanced by appellant. In two points he contends the trial court erred in excluding for cause two prospective jurors in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). In another point of error he claims the court erred in excluding a prospective juror because of her views on the burden of proof in a criminal case. In appellant's fourth point of error he contends the trial court erred in admitting his oral confession. In his fifth point he contends the prosecutor erred in argument at the penalty stage in attacking his court-appointed counsel. In three other points of error he complains of the admission into evidence of communications between him and his former wife while the marriage relation still existed. In his last point he complains of the admission of an unadjudicated extraneous offense of robbery at the penalty stage of the trial.

In order to place our discussion of appellant's points of error in proper perspective we briefly summarize the facts.

The State's chief witness was Linda Joyce Fletcher, appellant's former wife. The record reflects the couple married in California. On February 14, 1980, the couple began hitchhiking to Florida with a few clothes and $30.00. They were joined in Arizona by Pamela Perillo. On February 22, 1980, after reaching Houston the three were hitchhiking near the Astrodome when they were picked up by the alleged deceased, Robert Banks. Banks was in the process of moving to another house and the three hitchhikers assisted him in moving some of his belongings. Banks treated them to dinner. When Banks paid for the meal, Fletcher and Perillo observed he had several hundred dollars in his wallet, and Perillo told appellant about the money.

Appellant, his wife (Fletcher) and Perillo spent the night at Banks' house and then helped him move other belongings the next day. In the process the appellant discovered Banks had some guns. When Banks took a shower appellant telephoned a friend in California and invited him to come to Texas as he (appellant) "had a pigeon out here with lots of money and guns." Appellant proposed a robbery, but the California friend declined.

Banks then took his three guests to a carnival and rodeo at the Astrodome. There Perillo told appellant she wanted to kill Banks and appellant answered "Okay." He then went off to do some "planning," telling Perillo to relax when she agitated to "do it tonight." After the rodeo Banks and his guests went to dinner and returned to Banks' house where they met Bob Skeens, Banks' friend from Louisiana, who had arrived there in his green Volkswagen.

On Sunday, February 24, Banks and Skeens left the house to get coffee and doughnuts for everyone. While they were gone appellant armed himself with a shotgun and Perillo got a handgun. While awaiting the return of the two men appellant jumped up and down with excitement. When Banks and Skeens returned Perillo hid in the bedroom and appellant got inside a closet. He began to make a tapping sound. When Banks reached to open the closet door the appellant jumped out announcing "This is a robbery."

Skeens got down on the floor and pleaded for mercy. Banks came toward the appellant, who struck him in the face with the butt end of the shotgun. Perillo came out of her hiding place and told Banks to get on the floor, "that it wasn't any joke." Perillo obtained a machete and cut up some rope and then she and the appellant tied Banks and Skeens with rope. After they were bound appellant and Perillo took the wallets from the two. Appellant took $800.00 from Banks' wallet and waved it around saying "he had it." Appellant ransacked the bedroom, taking clothes and a backpack. Perillo found a cassette recorder and camera. Appellant took Skeens into the bedroom and told Skeens that he (appellant) had killed five people and two more didn't matter. Fletcher, appellant's wife, did not see what happened to Skeens, but she did see appellant loop a rope around Banks' neck. Fletcher was then ordered to wait in Skeens' green Volkswagen. About 20 minutes later Perillo came to the car with the shotgun wrapped in a blanket. She also brought out a machete, handgun and other items. Appellant brought out the backpack and a rifle. They drove in the Volkswagen to Dallas, where they abandoned it and took a bus to Colorado.

When Banks failed to appear for work for two days, his supervisor went to Banks' house to investigate. A man with the supervisor looked in a window and saw a body. The police who arrived at the scene found the bodies of Banks and Skeens, each bounded and with a rope around the neck. Dr. Joseph Jachimczyk, the Chief Medical Examiner, testified that each died from asphyxia due to strangulation with a rope.

On March 3, 1980, Perillo gave a statement to Denver, Colorado police and a description of appellant. With her consent they entered a room at a hotel in Denver and found appellant, his wife and two boys. The backpack was found in the room.

A Houston detective went to Denver and interviewed appellant and obtained an oral confession in which he told of his participation in the alleged offense. He admitted putting a rope around Banks' neck and pulling on it with Perillo until Banks was unconscious. He admitted he took the wallets, several hundred dollars, the machete and shotgun. He maintained his wife (Fletcher) was outside the house during the entire incident.

Appellant initially asserts that the court erred in excluding for cause, over objection, prospective juror, Robert E. Goodwin, who asserted his general opposition to the death penalty but was not disqualified under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

Goodwin made clear at the outset of the voir dire examination that he was "against" the death penalty although he did not fault the system for having established such a penalty. It was a deep-seated feeling that he had thought about. When asked by the court if there was any reason that would preclude him from devoting his full attention to the case, Goodwin replied, "Well ... the only thing would be the death penalty I'm against that." When asked by the court if he could consider the infliction of the death penalty in a proper case, he answered that he did not see how his feelings could be altered. When asked about the special issues that could be submitted in a capital murder case, Goodwin told the prosecutor he did not want to directly contribute to "the death" and his conscience would bother him. When asked if he would vote "no" to a special issue because of his feelings against the death penalty, Goodwin stated he didn't know what he would do at that time. Upon further interrogation Goodwin told the prosecutor that he "probably would" vote "no" to a special issue because of his feelings about the death penalty, and later stated that he would do just that because of the capital punishment involved. Goodwin then told the defense counsel he would "probably vote no" to a special issue because he did not want to contribute to the death penalty, but he "did not know when it came right down to it." Subsequently, however, Goodwin told the prosecutor he would vote "no" to a special issue if he "knew it would result in the death penalty, yes." The court sustained the challenge for cause.

In Witherspoon v. Illinois, supra, the United States Supreme Court held that a prospective juror may not be excluded by the trial court for cause unless that person makes it absolutely and unmistakably clear that 1) he would automatically vote against the imposition of capital punishment no matter what the trial might reveal, or 2) that the prospective juror's attitude towards the death penalty would prevent him from making an impartial decision as to the defendant's guilt.

In Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), the question presented was whether Texas contravened the Sixth and Fourteenth Amendments of the United States Constitution as construed and applied in Witherspoon when it excluded members of the venire from jury service because they were unable to state under oath as prescribed by V.T.C.A., Penal Code, § 12.31(b), that the mandatory penalty of death or life imprisonment in a capital murder case would not affect their deliberations on any issue of fact.

The United States Supreme Court reversed the Adams conviction and set aside the death penalty imposed holding that Witherspoon and said § 12.31(b) may not coexist as separate and independent bases for excluding prospective jurors so as to permit exclusion under § 12.31(b) on a ground broader than permitted by Witherspoon. The Court noted, however, that although...