Cannon v. State, 69022

• Citation: 691 S.W.2d 664
• Decision Date: 08 May 1985
• Docket Number: No. 69022,69022
• Parties: Joseph John CANNON, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 664

691 S.W.2d 664

Joseph John CANNON, Appellant, v. The STATE of Texas, Appellee.

No. 69022.

Court of Criminal Appeals of Texas,

En Banc.

May 8, 1985.

Rehearing Denied June 26, 1985.

David K. Chapman, court appointed, Fred Rodriguez, court appointed, San Antonio, for appellant.

Sam D. Millsap, Jr., Dist. Atty. and Hipolito Canales, Jr., Edward J. Coffey and Charles Estee, Asst. Dist. Attys., San Antonio, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

ONION, Presiding Judge.

The appellant was convicted of capital murder. In response to the affirmative answers of the jury to the special issues submitted under Article 37.071, V.A.C.C.P., the court assessed the death penalty.

On appeal appellant advances twelve grounds of error. He complains that the trial court erred in failing to suppress his extrajudicial confession and erred in failing to withdraw the confession from the jury's consideration at the conclusion of the guilt stage of the trial. He also challenged the sufficiency of the evidence to sustain the conviction and the affirmative findings to special issues one and two at the penalty stage of the trial. Appellant further contends that a mistrial should have been granted when there was improper jury argument, that the court erred in refusing several special requested jury charges, and in refusing to reconsider the voluntariness of the confession. He further urges that the court erred in refusing to allow him to perfect a "bill of exception" at the hearing on the motion for new trial by introducing the statement of facts from the hearing on the motion for new trial following his first trial.

A brief recitation of the facts is necessary to put the grounds of error in proper perspective.

Shortly before noon on September 30, 1977, the body of Anne Walsh was found by San Antonio Police Officer Shelton Spears, lying in a pool of blood on the floor of her Bexar County home. She had suffered seven gunshot wounds. Three wounds were to the chest, one was to the center of the abdomen, and one to her head. The others were to her arms. The wounds and the paths of the bullets were consistent with someone standing over her and firing.

There was a large trail of smeared blood which indicated that the body had been dragged out from under a pool table where the deceased had crawled in an attempt to escape the shots. The blouse of her dress had been ripped open, her skirt had been pulled up to her waist and her panty hose had been ripped and pulled down to her knees.

Officer Spears found the body when he brought the appellant to the Walsh home. Appellant had been involved in an automobile wreck and had been arrested. Spears found the Ford Maverick vehicle registered to a member of the Walsh family, and suspecting it was stolen, took the appellant to the Walsh home to check out his story that he was in rightful possession of the vehicle.

Appellant was 17 years old and illiterate, though he could write his name. He was a former resident of Houston and had hitchhiked to San Antonio, intending to go to Las Vegas, Nevada. He was arrested in San Antonio on a burglary charge. Appellant was represented on the burglary charge by court-appointed counsel, Dan Carabin, a San Antonio attorney. Carabin was successful in having the court grant appellant probation approximately one week before the alleged murder. Appellant was homeless and had no friends or relatives in San Antonio. Carabin and his sister, Anne Walsh, also an attorney, took an interest in appellant's welfare. He was permitted to live at the Walsh home while he was on probation. The deceased had several teenage children living at home. They attempted to befriend appellant by helping him find a job and inviting him to go along on social events.

Dan Carabin testified that about 9:30 a.m. on September 30, 1977 he received a telephone call from the appellant inquiring how he was to pay him or his sister if he stayed around the house. The inquiry didn't make much sense to Carabin as there was no agreement for him or his sister to be paid. Carabin had clients in his office and told the appellant that he would call him back. When he returned the call about 10:30 a.m., no one answered the phone at his sister's house.

Stephani Walsh, the deceased's daughter, went to her mother's office about 10:30 a.m. on the date in question to exchange automobiles. She and her mother agreed to meet at home for lunch. Stephani took her mother's stationwagon and left her 1974 white Ford Maverick for her mother to drive.

Reserve Deputy Constable Robert Wenzel drove by the Walsh residence on September 30, 1977, and saw appellant in the white Ford Maverick. Wenzel knew that the vehicle belonged to a Walsh family member and that appellant was not a family member. Wenzel drove on but watched the Maverick through his rear window of his automobile. The Maverick suddenly lunged onto the road and proceeded in an erratic manner in the same direction as Wenzel was driving. The Maverick sped past Wenzel and Wenzel gave chase. The Maverick swerved from one side of the road to the other. The chase ended when the Maverick crashed into a chainlink fence beside "Al's Corner," a restaurant/bar.

Kenneth Kizer, a bartender, saw the appellant exit the Maverick after the crash and run across the road into a brush-covered field as he discarded his shirt. Kizer called the San Antonio Police. Twenty minutes later appellant returned and entered the bar and bought a Coke. Appellant remained in the bar with Kizer and Wenzel until the police arrived.

Officer Spears took the appellant into custody, gave him the Miranda warnings, and then took him to the nearby Walsh home to check out his story about lawful possession of the Maverick. The body of Anne Walsh was then discovered. Other officers were called.

Later Spears transported appellant to the homicide division of the San Antonio Police Department. Later in the day after interrogation by Detective Castillon, the appellant gave the officer a written statement which reads in part in its original form:

"I would like to say that I have been staying at 6048 Babcock for about a week now. I'am staying there because I'am on probation for burglary and my attorney arranged for me to stay with his sister Anne C. Walsh. My attorney;s name is Dan Carabin.

"Today about noon Anne returned home in a white car that I have never seen before. She drove into the drive way and went in the house. I was outside triming the bushes out front because she had asked me to do it the day before. I guess I just went crazy because I went inside and got a gun off the bunk bed in the oldest boy's bedroom. The next thing I knew was that Anne was on the floor of the den crying and saying "please don't shoot again" and I don't know why but I kept shooting. While I was shooting her she crawled under the pool table. I then pulled her out from under the pool table and ripped her cloths off. I then pulled my jeans down and got on top of her. I think she was dead at this time because she was bleeding alot and she was not moving or breathing. I then got on top of Anne and tried to have sex with her. By this I mean I tried to screw her but I got peranoid and just could not do it. I then got up and pulled up my jeans and went to the kitchen where I found Anne's purse on the counter. I took three or four dollars and two fifty dollar travelers checks and ran out the side door. I got into the white car Anne was driving and drove off real fast. As I was going out the gate I almost hit a car on abcock Road. At this time a man in a green car started chasing me. He chased me down the street until I ran into fense near the bar at the corner. I got out of the car and jumped a fense and ran into a field were I took my shirt off and threw it. I also burried the traverliers checks under some brush in the field. After that I walked out of the field and back to the car. I don't know why I did this I guess I wanted to get caught. I would like to say that before Anne came home I wentinto the oldest son's bedroom and saw all of these shotguns, rifles and guns on the bunk bed and just went crazy and started throwing them around. I think one of the went through the window. While I was in the bedroom I found a gun in a holster with bullets already in thegun. I left the holster on the bed and put the gun my pants. From there I went out into the yard and cut the bushes. I also would like to say that I found the gun in theholster while I was looking for coins under the matress of the lower bunk. The coins I took are the same coins I had on me when you took them off me.

"I would like to say that before I told you I went into the bedroom and got the gun after Anne got home But the truth is I had already got the gun before Anne came home. I would like to tell you that I did this because I go crazy sometime and just a couple of nights ago I woke up in early hours in themorning I was very sick and something inside kept telling me to kill everyone in thehouse while they slept. Again I went to tell you that I don't know why I did this but I have been sick for a long time and I was hit by a car when I was four years old and from then on I have been in nothing but trouble. I had no gruge or any reason to kill Anne in fact she went out of her way to be nice to me. I do not know to read and Det. Castillon told me that julia smith would read this to me and I have read this and find it to be true and correct to thebest of my knowledge." (All spelling and punctuation as it appears in original.)

Several firearms, including the .22 caliber revolver shown to be the murder weapon, were taken from the deceased's home and were shown to have been found in the Maverick the appellant was driving. A tennis racket and prescription drugs taken from the home were also found in the car. Mexican coins and moon and garnet stones taken from the home were found in appellant's pockets. A spot of...