Bridge v. State

• Decision Date: 15 October 1986
• Docket Number: No. 69468,69468
• Citation: 726 S.W.2d 558
• Parties: Warren Eugene BRIDGE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 558

726 S.W.2d 558

Warren Eugene BRIDGE, Appellant, v. The STATE of Texas, Appellee.

No. 69468.

Court of Criminal Appeals of Texas.

Oct. 15, 1986.

Richard Thornton, court appointed on appeal only, Galveston, for appellant.

Michael J. Guarino, Dist. Atty. and Jack C. Brock and Miguel Martinez, Asst. Dist. Attys., Galveston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

ONION, Presiding Judge.

This appeal is taken from a conviction for capital murder. V.T.C.A., Penal Code, § 19.03(a)(2). After finding appellant guilty, the jury returned affirmative findings to the special issues submitted under Article 37.071, V.A.C.C.P. Punishment was assessed at death. V.T.C.A., Penal Code, § 12.31.

Appellant does not challenge the sufficiency of the evidence to sustain the finding of guilt, but does advance a number of grounds of error. Appellant urges the trial court erred in overruling the motion to suppress his confession, erred in ordering a bifurcated voir dire examination of the jury panel in a capital murder case, erred in overruling and denying certain challenges for cause, erred in limiting questions by defense counsel on voir dire examination, erred in refusing to allow the co-defendant Costa to testify, erred in denying his special requested charge on punishment as to Special Issue No. 2, erred in refusing a mistrial motion based on improper jury argument and erred in allowing the testimony of two witnesses not on the original list of witnesses furnished by the State. Appellant also contends the evidence was insufficient to sustain the affirmative finding to Special Issue No. 2 at the penalty stage of the trial. In two grounds of error he further urges he was deprived of the effective assistance of counsel.

The indictment charged appellant with the murder of Walter Rose by shooting him with a handgun during the course of a robbery on or about February 10, 1980.

The record reflects that shortly before 1 a.m. on February 10, 1980 witnesses saw two white males run from the Stop 'N Go convenience store in Galveston where Walter Rose was a 11 p.m. to 7 a.m. duty employee. Witnesses found that Rose had been shot, was bleeding and sweating. One of the witnesses took Rose to the hospital. The police arrived and found the cash register open and a six pack of beer on the counter. It was determined that $24.00 was missing.

The 62-year-old Rose died on February 24, 1980. The medical examiner testified, after an autopsy, the cause of the death was complications from gunshot wounds. Rose had been shot four times. One bullet entered the sternum, knocking bone fragments loose and injuring the heart and lodging in the left lung. Another bullet entered the back, went through the spleen, stomach and liver. There were also separate wounds to the left wrist and left shoulder.

On February 20, 1980, at approximately 4:33 p.m. police officers executed a search warrant for narcotics at apartment 108 of the Surf Motel in Galveston where the 19-year-old appellant resided. While there the officers found a photo album with a newspaper clipping describing a shooting incident at a Stop 'N Go convenience store on February 10, 1980. After appellant was taken to the police station, he was questioned about the robbery-shooting and he confessed and gave a written statement which was introduced into evidence. Appellant stated therein that about 12:10 a.m. on February 10, 1980 he and Robert Costa left the Surf Motel to get some beer from the Stop 'N Go store at 710 Fourth Street. Costa had a .38 cal. revolver with him. Several blocks from the store appellant asked Costa if he was going to help with the rent, and Costa suggested that they "rob this store we are going to," and Costa gave the revolver to the appellant. After entering the store, Costa got a six pack of beer and took it to the counter. Appellant related he stood in front of Rose (whose name he later learned from the newspaper), and when Costa gave Rose three dollars and Rose opened the cash register he (appellant) shot Rose. Costa told appellant to shoot Rose again and he did. Costa took bills out of the register and threw the tray on the floor. Rose, still standing, threw a trash can at appellant, and appellant and Costa left. In their flight Costa ran into a steel pipe across the street and dropped the money. When they returned to the apartment and told Robert Beecher and "Spike" Spear, who also lived at the apartment, what they had done, Spear slapped Costa. Beecher took the weapon from the appellant and left. When Beecher returned 30 minutes later, he did not have the .38 caliber revolver.

Ruth Cecares, who lived at the Surf Motel at the time, testified she was in the apartment where appellant resided on February 12 or 13, and that Lucretia Beecher, appellant's wife or girlfriend, had shown her a newspaper clipping about the robbery-shooting in question that had been placed in a photo album. In her presence appellant, referring to the store employee, stated "The old mother-fucker got smart" and that he had killed or wanted to kill the old man. Cecares did not report the matter to the police.

Edward Adams, a boat captain who had met appellant through Robert Beecher, testified that he visited in the apartment at the Surf Motel in early February, that Beecher showed him the newspaper clipping in question, and told him that Costa and appellant had committed the offense. Spear replied that if the man died he could get capital murder, and the appellant, who was present, said "There was no witnesses" and grinned. He added that he had emptied the gun at the old man. Adams did not report the matter to police as "I didn't want it to catch wind back to my boss that the people I was hanging around with, and everything, and lost my job, and everything."

Robert Beecher, a defense witness, testified that he, appellant, Costa and Spear spent the afternoon and evening of February 9, 1980, at the Surf Motel watching television and drinking beer, tequila and whiskey. About 10 p.m. or so the alcoholic beverages were depleted and Costa volunteered to go buy more beer and asked appellant to accompany him. Beecher testified Costa returned to the apartment in a few minutes and picked up Beecher's pistol on the mantle and left again. Several hours later, when Costa and appellant returned, appellant had the pistol. When they told Spear and Beecher what happened, Spear hit Costa. Beecher took the weapon from the appellant, and buried it on the beach. He later aided the police in its discovery. A .38 caliber casing found at the convenience store was shown to have been fired by the weapon. Two slugs recovered could not be positively identified as having been fired by the weapon because of the condition of the weapon.

Appellant advances the contention the trial court erred in denying the motion to suppress his extrajudicial confession in violation of Article I, §§ 9 and 10 of the Texas Constitution and the Fifth and Fourteenth Amendments to the United States Constitution.

Initially appellant's counsel on appeal complains there is a discrepancy as to the date on which the motion to suppress hearing was held. ¹ The hearing was held on August 22, 1980. The docket sheet entry on July 30 which apparently confused counsel on appeal related to a suppression hearing on evidence other than the confession. Actually the dates are immaterial. Counsel also contends that the findings of facts and conclusions of law by the trial court as required by Article 38.22, § 6, V.A.C.C.P., are not in the record. Counsel is mistaken. Such findings and conclusions finding the confession voluntary and admissible are in Volume I of the record at pp. 94-95.

Appellant argues that (1) appellant was not given his Miranda ² warnings, (2) his request for counsel was not honored and (3) the confession was induced by threats, or promises not to file criminal charges against his wife depending upon the appellant giving a confession.

Jerry Roberts, Galveston Police Department Police Officer assigned to the Narcotics Division, obtained a search warrant on February 20, 1980, to search appellant's apartment at a Galveston motel for methamphetamines. On the same date he and other officers executed the search warrant. Appellant, two other males and three females, including appellant's wife or girlfriend, were at the motel room. Roberts testified that while at the motel room he did not abuse appellant and did not hear appellant request an attorney.

Sgt. Jerry Rice, Galveston Police Officer, got to the motel after the search had commenced. While there Rice did not hear any request by appellant or the other prisoners for an attorney. He did not see anyone abuse or coerce the appellant or others. He did not recall anyone saying anything about calling the welfare department to take the baby who was there with a young girl (apparently Lucretia Beecher, who appellant testified was his wife). He said it was possible because when a person with a child is taken into custody the child welfare is the "only outlet," but he did not recall such conversation nor did he hear anyone tell the appellant that Lucretia Beecher would be charged with a criminal offense and that the baby would be taken away.

Officer Rice and Detective Singleton transported appellant and Robert Costa to the police department. En route Rice gave appellant his Miranda warnings and appellant indicated he understood the warnings. No request for an attorney was made.

Detective Leo Singleton testified substantially as Rice had. He had arrived at the location with Rice. He did not see or hear anyone physically or mentally coerce appellant, and did not hear anyone tell appellant that his wife was going to be charged and the baby taken away. En route to the jail Singleton testified appellant was given his Miranda warnings and had stated he understood them. At no time did appellant ask for an attorney.

Detective Clifford Simmons was...