Brimage v. State

• Citation: 918 S.W.2d 466
• Decision Date: 21 September 1994
• Docket Number: No. 70105,70105
• Parties: Richard BRIMAGE, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 466

918 S.W.2d 466

Richard BRIMAGE, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 70105.

Court of Criminal Appeals of Texas En Banc.

Sept. 21, 1994.

Opinion after Grant of Rehearing Jan. 10, 1996.

Rehearing Denied Feb. 28, 1996.

W.R. Hitchens, Sam R. Fugate, Kingsville, for appellant.

Matthew W. Paul, Asst. State's Atty., Austin (on rehearing), Grant Jones, Former Dist. Atty. (on original submission), Corpus Christi, Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.

OPINION

CLINTON, Judge.

Richard Brimage, Jr. was convicted of the offense of murder in the course of committing or attempting to commit kidnapping, a capital offense under V.T.C.A. Penal Code, § 19.03(a)(2). The offense occurred in Kleberg County; trial was had on change of venue to Comal County. The jury answered the special issues affirmatively and punishment was assessed at death in accordance with former Article 37.071, V.A.C.C.P. Appeal to this Court is automatic. Id., § h. In twelve points of error, appellant challenges, inter alia, the sufficiency of the evidence to support his conviction and sentence, and the legality of a warrantless search of his home. We will reverse.

I. Facts

Because appellant challenges the sufficiency of the evidence to uphold both his conviction ¹ and sentence, a thorough review of the facts of the case is warranted.

Early on Monday morning, October 5, 1987, appellant placed a phone call to Mary Beth Kunkel, a 19-year-old co-ed at Texas A & I University in Kingsville. Appellant was acquainted with Kunkel through his employment at the nearby Lockheed plant; his supervisor there was Kunkel's boyfriend. Appellant's phone call was answered by Kunkel's mother, to whom he misidentified himself as "George." Appellant asked Kunkel to come to his residence on West Richard Street in Kingsville ² to pick up some drafting tools for her boyfriend. He told her not to tell her mother where she was going. Kunkel left home in her car. She was seen by a friend turning onto West Richard Street shortly before 8 a.m.

Later that day, Kunkel's boyfriend, Michael Beagly, became alarmed when he found her car parked on the Texas A & I campus. The car was parked in a place not frequented by Kunkel and her purse was in the car. Subsequently, a missing persons investigation was begun. By Wednesday, October 7, 1987, the investigation began to focus on appellant. The police knew of his acquaintance with Kunkel; knew that appellant had quit his job without notice; and knew that Kunkel's car had been found on the Texas A & I campus at a location near appellant's residence. Throughout the two days of the investigation neither the police nor appellant's former employers were able to contact him. The police had also been told that the month before appellant had attempted to sexually assault another woman.

Sometime about 11:00 a.m. that Wednesday, police officers acted on their suspicions and went to appellant's home on West Richard. When no one answered their knocks at the front door, the officers explored the outside of the house, peering through the windows and checking for unlocked doors. The officers found all the doors and windows locked, the garage door down and the lights out. The officers left the West Richard residence satisfied that no one was home. It was at this point that Captain George Gomez, Jr., a detective with the Kingsville Police Department, assumed supervision of the investigation.

That afternoon, Gomez contacted Roy C. Turcotte, a local attorney and a relative of appellant. Gomez told Turcotte that he suspected appellant was involved in Kunkel's disappearance and that he wanted to talk to either appellant or his parents. Gomez also asked Turcotte for permission to search the residence on West Richard Street. Turcotte told Gomez that he would find out how to contact appellant's parents. He also expressly told Gomez that he did not have the authority to consent to a search of the Brimage residence.

After his telephone conversation with Turcotte, Gomez was called out to the Rodeway Plaza Inn, a local motel. He was told appellant had stayed in room 119 the night before and had not been seen since. The owner of the motel provided Gomez with appellant's room registration card and his suitcase, which had been removed from his room earlier in the day. ³ Inside appellant's suitcase, Gomez found a number of pornographic magazines, several items of men's clothing, a piece of an ace bandage, a woman's bra, a pair of women's underwear, pieces of what appeared to have been women's pajama bottoms, a jaggedly cut piece of red cloth that appeared to be blouse material, and a pair of large scissors. Gomez testified that both the red cloth and the scissors were "blood stained." Gomez returned to the police station with the suitcase.

Gomez was met at the station by Turcotte and the Honorable Max Bennett of the 319th District Court in Corpus Christi. Bennett is appellant's maternal uncle. Turcotte had called Bennett earlier and told him of police suspicion of appellant. Bennett had then driven to Kingsville, and the two attorneys had broken into appellant's home. At the police station, the two men told Gomez of their break-in and that there was evidence of "violence" or a "violent act" at the residence. Gomez asked Bennett for permission to search the house, and Bennett replied, "Yes, you need to get in there." Without securing a warrant, the police did just that. See Part III, post.

Within an hour, the police entered appellant's house and began an exhaustive search of the premises. They found the master bedroom in a state of disarray. Clothing and other items littered the floor and the bed. A jewelry box had been knocked over. A heavy blanket had been placed over a window otherwise screened by both venetian blinds and drapes. ⁴ Some of the clothing in the room had been cut up, and blood had been splattered in several places. Not long after the search began, the police found Kunkel's body in the trunk of a car in the garage. The body was unclothed from the waist down and bound at the wrists and elbows. The feet were bound to the elbows behind the body, causing an arching exposure of Kunkel's genital area. A ligature was tightly tied around her neck, and a sock had been forced down her throat.

The police remained at the house for several hours gathering evidence. The search was suspended at approximately 2:00 o'clock that morning, and the house was secured. The police returned the following day to collect more evidence--again, without a warrant.

Based in part on the evidence obtained from the search of the West Richard residence, Kingsville police obtained an arrest warrant for appellant. On Thursday morning, October 8, that warrant was executed in Corpus Christi. While in the Corpus Christi jail awaiting transfer back to Kingsville, appellant was interviewed by an investigator from the district attorney's office. Appellant's written confession provides the most coherent picture of the events preceding Kunkel's death:

"My name is Richard Lewis Brimage, Jr. I am 31 years old and I live at 1135 W. Richard, Kingsville, Texas. Last Thursday, October 1, 1987, I started trying to pick up some girls and party with. This went on through the weekend. On Monday, October 5, 1987 early at about 6 am or 7 am I called Mary Beth Kunkel at home. Her mother ansewered (sic) and I asked for Mary Beth. She came to the telephone and I told her I had some engineering tools for a gift for her boyfriend Mike. I knew if I told her they were for Mike she would come over to my house. She agreed to come over. She came over and I took her to the back bedroom where the tools were. As she looked at tools I grabbed her and she said, What Richard, what.

I was standing behind her and grabbed her by the shoulders. She struggled and started screaming and I forced her into the master bedroom. She continued screaming and I kept hitting her and started chocking her. I wanted her sexually real bad and that is why I lured her to my house. We wrestled for a while and when she would not stop screaming, I finally choked her with my hands. I wasn't sure she was dead, so I started to tie her up up (sic) so she would not struggle anymore. I got some nylons and pulled her feet behind her back. I tied her hands to her feet where she was bent out of shape. I remember seeing blood on her face and blood on my pants.

I want to say that during this time another guy was with me. His name is Leo Molina. Leo had been with me for the past three or four days. I woke him up to tell him Mary Beth was coming over. I told him to wait in the back bedroom where all the struggle took place. While she was screaming we decided to inject her with some cocaine to stop her from screaming. We managed to do so. She kept going wild, trying to escape. I kept telling her to stop screaming. Leo, I remember was trying to feel up her shorts and touch her between her legs. After I was certain she was dead, tied up, I took off her shorts, so I could admire her body. Before this I told Leo to take her car from in front of my house and park it at the college campus somewhere. While Leo was gone I picked up Mary Beth and put her in the trunk of my parents' car."

Appellant's confession was admitted as evidence against him during his trial, which, because of the pervasive publicity generated by the case, was transferred from Kleberg County to Comal County.

Molina, who accepted a plea bargain, offered a significantly different, albeit self-serving, account of the events at appellant's residence. He testified that appellant had sent him to a back room of the West Richard residence because someone was coming over to engage in sex with appellant; that he heard appellant conversing with someone at the front door of the residence; that he heard struggling and saw appellant "dragging a female into the back bedroom[;]" that he heard the female scream, "Please don't hit me....