Brooks v. State
| Decision Date | 21 March 1979 |
| Docket Number | No. 60521,60521 |
| Parties | Charlie BROOKS, Jr., Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Appeal is taken from a conviction for the offense of capital murder. V.T.C.A. Penal Code, Sec. 19.03(a)(2). The jury returned an affirmative finding to each special issue submitted under Article 37.071(d), V.A.C.C.P., and accordingly punishment was assessed at death.
The record reflects that on the morning of December 14, 1976, Marlene Smith, an admitted prostitute, thief, and heroin addict, traded sexual services for the use of a car from a used car dealer. She then picked up Woody Loudres and the appellant at a liquor store on Rosedale Avenue. Smith testified that she and Loudres lived together in Room 15 of the New Lincoln Motel in Tarrant County. The record reveals Smith had been acquainted with the appellant for two weeks and that appellant had on occasion stayed with them at the motel.
Smith, Loudres and the appellant drove back to the motel, where Smith and Loudres took heroin. The three then drove to the home of appellant's mother, where they drank. The trio then left, heading for the south side of Forth Worth so that Smith could go shoplifting. In response to a question as to whether appellant and Loudres were going shoplifting with her, Smith testified without objection "they were with me" and appellant had his "booster coat on." As they were driving on East Lancaster Street, the car vapor-locked and they pushed it into a service station. They were unable to get the car started and, according to Smith, the appellant left the other two and walked to a nearby used car lot to "get a car to test drive" so that the three would have transportation to the south side.
An employee of the used car lot talked to the appellant when he walked onto the lot and asked to test drive a car. Appellant was wearing a tan topcoat at the time. Company policy required that customers who walked onto the lot and asked to test drive a car had to be accompanied by an employee. David Gregory, the deceased, was told to accompany the appellant around the block. The record reflects that Gregory was a paint and body repair man who sometimes assisted as a mechanic and also answered wrecker calls.
The deceased and the appellant drove to a location where Smith and Loudres were waiting in the vapor-locked car. Loudres got into the car with Gregory and the appellant. They drove off with Gregory, leaving Smith with the broken-down car.
A car identified as the one taken on a test drive from the used car lot was driven into the New Lincoln Motel at about 6:00 p. m. The appellant and Loudres were in the car at the time. The appellant released a man from the trunk of the car and took him at gunpoint into Room 17 of the motel.
Loudres came to the office of the motel and told the manager's wife, Emma Speers, that they had a man tied up and "we are going to have to kill him." The appellant also came to the window of the motel office, pointed a large revolver at Speers' head, and told her, The appellant then walked away from the motel, returned a few minutes later, and walked toward Room 17. Shots were heard soon thereafter. During this time a woman who was delivering cleaning to the motel talked to Speers. When she left the motel she noted the license number on the car in which the appellant and Loudres had arrived. After leaving the premises she notified the police. After hearing the shots, Speers also notified the police and her husband, the manager of the motel. Loudres and the appellant were seen leaving the motel by the back entrance.
Fort Worth police officers arrived at 6:24 p. m. They were advised that shots had been fired. The officers began checking the rooms for signs of foul play. They began their checking at Room 13. Room 15 was unlocked and empty. Rooms 16 and 17 were locked. When Room 17 was unlocked by the manager, Gregory's body was found bound and gagged with adhesive tape and shot in the head.
Phil Watson testified that at about 11:00 p. m. that night he met Loudres and the appellant at the Flamingo Club in south Fort Worth. Loudres asked Watson to drive them back to the New Lincoln Motel. When they arrived, the manager told Loudres to leave. When they were passed by two police cars, appellant stated that "there had been a killing." Watson, Loudres and the appellant were arrested later at Watson's home.
Appellant contends that the trial court erred in admitting into evidence certain items seized by the police as a result of an illegal search of Room 15 of the New Lincoln Motel.
The record reflects that after finding the deceased's body in Room 17 of the motel the police returned to Room 15 and recovered State's Exhibit No. 16, two spools of a Curity adhesive tape dispenser, and State's Exhibit No. 23, three hypodermic syringes. State's Exhibit No. 16 was admitted without objection and State's Exhibit No. 23 was admitted over objection that it constituted evidence of an extraneous offense.
It is clearly established that the error, if any, in the admission of evidence allegedly obtained as the result of an illegal search and seizure is waived when proper objection is not made at the time the evidence is introduced. Sullivan v. State, 564 S.W.2d 698 (Tex.Cr.App.1978); Ashford v. State, 502 S.W.2d 27 (Tex.Cr.App.1973); Mortier v. State, 498 S.W.2d 944 (Tex.Cr.App.1973); Northcutt v. State, 478 S.W.2d 935 (Tex.Cr.App.1972); Ansley v. State, 468 S.W.2d 862 (Tex.Cr.App.1971). As to Exhibit No. 16, no objection was voiced in the trial court. The objection to Exhibit No. 23 at trial does not comport with appellant's complaint on appeal. Nothing is presented for review.
The appellant next contends that the trial court erred in restricting his voir dire examination of venireman Reed and therefore denied him his right to properly exercise his peremptory challenges.
The record reflects the following during the voir dire of Reed by the prosecutor:
During the voir dire examination of Reed by appellant's counsel, the record also reflects the following:
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