Cantrell v. State

• Decision Date: 20 May 1987
• Docket Number: No. 60975,60975
• Parties: Herman Ray CANTRELL, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 84

731 S.W.2d 84

Herman Ray CANTRELL, Appellant, v. The STATE of Texas, Appellee.

No. 60975.

Court of Criminal Appeals of Texas,

En Banc.

May 20, 1987.

Robert T. Baskett (Court appointed), Dallas, for appellant.

Henry Wade, Dist. Atty. & Steve Wilensky & David Schick, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for aggravated robbery. The punishment, enhanced by allegation and proof of a prior felony conviction (murder without malice), was assessed at life imprisonment by the court following the jury verdict of guilty as to the aggravated robbery.

At the outset appellant contends the court erred in admitting before the jury evidence of a subsequent extraneous robbery offense. It is necessary to set forth briefly some of the facts of the case in order to properly dispose of this and other points of error.

Phillip Green, 41, testified that during the summer of 1973 he was introduced to Phyllis Galyean at T.G.I. Friday's, a Dallas restaurant, when he was having dinner with Carol Greene, whom he was dating at the time. Several months later Phyllis Galyean began to telephone him periodically asking "to get together with me." At the time of her third phone call, in October of 1973, she professed her prowess at fellatio. Green related Galyean told him he was really missing something as "she was the best blow job since Linda Lovelace." Green acceded to her desire to visit him, and she came to his apartment. They engaged in oral sex. Galyean visited at Green's apartment on some six or seven times, two of the occasions they engaged in sexual relations, the others were merely social visits when she came with friends. Green admitted that, being a single man, he had some unique type of sculptures, fixtures and furniture in his house. He related that after Galyean's last visit in about June, 1974, he had several telephone conversations with Galyean, and learned in one that she intended to marry a man named Herman.

About eight months later, about 9 a.m. on February 12, 1975, Green was showering when he heard his doorbell ring. Wrapping himself in a towel, he went downstairs and opened the front door. He observed Phyllis Galyean there with a man whom he identified as the appellant Cantrell. Appellant asked Green if Green knew who he was, and when Green replied in the negative, appellant stated they were coming in the apartment. Green attempted to shut the door, but the appellant put his foot in the opening and drew a .38 cal. snub-nosed revolver out of his belt. Galyean and appellant entered the foyer and appellant immediately slapped Green twice on each side of his face. While pointing the weapon, appellant then told Green, "Listen, you son of a bitch ... I am here because of what you did to Phyllis. You attacked Phyllis, and had sex with her, and I need money for psychiatric help." Green protested and said Galyean was a liar. Appellant responded, "I don't want to hear that. Phyllis told me you raped her." Appellant told Green to take off his towel and then pushed him into a chair. He placed the gun in his belt and then drew out a knife and told Green "I came here for money, and I am going to get money. I am going to cut your balls out if I don't get it." Green hedged, and at that point appellant ripped open his shirt revealing body scars apparently from gunshot wounds. Appellant told Green it didn't matter whether he lived or died, that he wanted money. When Green convinced appellant he had no money in the house, appellant demanded a check for $5,000.00 to be made payable to Galyean, and escorted Green to the kitchen where Green made out the check.

Appellant told Green that Galyean would cash the check while he waited outside Green's house, and if the payment on the check was stopped or if anyone came after Galyean or him he would kill Green, and that if the police were called he would return and "blow you apart." Appellant and Galyean left the house.

About 10 minutes later Green received a call from Howard Wilder at the Inwood National Bank asking whether to cash the check, stating the payee claimed it was an insurance settlement. When Green received a description of the woman who was attempting to cash the check and learned she was apparently alone, he told Wilder to cash the check.

Green called his attorney and requested a private investigator handle the case. The next day the investigator arranged a meeting for Green with Dallas police officers. Over a month later Green selected appellant's picture from a photographic spread.

Dallas Police Officer Stanley McNeer later learned appellant had gone to Houston. A warrant was forwarded to the Houston police. Sam Nuchia, Houston police officer, arrested appellant in Houston on June 3, 1975 while appellant was driving a car accompanied by a woman. When appellant exited the vehicle, Nuchia saw a pistol on the floorboard where appellant's feet would have been. The pistol was found to contain .38 cal. hollow point bullets. Appellant made bond on the instant offense in July, 1975. It was forfeited in January, 1976. On March 18, 1976, Dallas Police Officer William Hughes received a tip appellant was staying at a certain apartment in Dallas. He and other officers went to the apartment complex, got a pass key and went to the apartment. Galyean was there, but appellant was not. A trap door was discovered in the closet. Information was then received appellant was in another apartment, but he was not there. A search of an adjacent apartment revealed that a trap door there had been recently opened.

Officer William Smith responded to a call from a resident of the apartment complex about noises under her kitchen. Smith went to the apartment and heard a thumping noise in the bedroom, apparently coming from the crawl space underneath. Upon then hearing noises in the closet, Smith opened the door and saw appellant dropping a pistol into a hat box. The carpet over the trap door in the closet had been pushed back. Appellant was arrested.

Appellant called Phyllis Galyean Cantrell as a witness in his behalf. The 28-year-old witness testified she married appellant on August 29, 1973 and and divorced him on August 29, 1975, but at the time of the trial she considered herself his common-law wife. The witness, hereinafter called Galyean, testified she first met Phil Green at Wellington's, a Dallas nightclub, at the end of 1972, while she was there with Carol Greene. She related that she had dinner with Green and Carole Greene early in 1973 at Friday's; that the two were dating and since Greene was a married woman, Phil Green was given Galyean's phone number so he could contact Greene through Galyean. She said Green called her about 50 times, often asking her to visit, to have a drink and smoke marihuana, that cocaine, Tuinol and other special capsules were mentioned. Galyean stated she clashed with Green though she visited at both his apartment on Miles and later his new erotically furnished apartment on Pagewood where the alleged offense occurred. On those visits she was with Carol Greene or other friends. On the first visit Galyean admitted she smoked marihuana with Green, who later attempted to get her and Carol Greene to stand on a table and take their clothes off in the presence of out-of-state men who were also at the apartment. Green also encouraged a homosexual relationship between Galyean and Greene. After later phone calls, Galyean visited Green again with Greene or other women whom she claimed Green also dated. She visited at his new apartment on Pagewood where he had displayed a phallus symbol, in the shape of an erect male penis, pictures and other erotic art objects. On her last visit she was with Greene and her son, and they didn't smoke marihuana because of the child, but Galyean stated Green gave her some Tuinol pills to relax her and she then had several alcoholic drinks. Galyean became groggy by the time Greene left with her son and she fell asleep in front of the fireplace. She woke up in the middle of the night in Green's bed and he was having sexual intercourse with her. She got up and went home. She said that all of this time Green knew she was married. He called a number of times after the incident.

Galyean related that appellant, her husband, returned to Dallas in October, 1974, and learned she had been to Green's house on a number of occasions; that appellant, who was having a hard time financially, became jealous of Green. On the night of February 11, 1975, Galyean and appellant stayed up all night talking about their problems, and she told him the whole story, including the sexual encounter, the rape. Appellant became emotionally upset, angry and was crying. Early the next morning, she and appellant went to Green's apartment. Green came to the door and looked out. Appellant was not in position to be seen. Green opened the door for Galyean and the appellant stepped into view. Green, clad only in a towel, motioned them to enter. Galyean introduced appellant as her husband. Appellant then accused Green of raping his wife and Green denied it. At this time appellant observed the phallus symbol and asked what it was, and Green replied, "it was none of his damn business." At this time appellant, according to Galyean, slapped Green and stated he wanted the truth. Green, holding his face, sat down in a chair and his towel fell to the floor. Appellant, in an angry voice, demanded the truth, and Green finally admitted he had drugged Galyean and had intercourse with her. Appellant became furious and began to cry. Green then stated he knew what he had done was wrong, that he wanted to make it up to both of them, that he knew they were having a hard time financially and offered to give the appellant some money. Appellant at first declined, but Green offered $5,000.00 and offered to see that Galyean got psychiatric and marriage...