Faulder v. State

• Decision Date: 30 September 1987
• Docket Number: No. 69077,69077
• Parties: Joseph Stanley FAULDER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 327

745 S.W.2d 327

Joseph Stanley FAULDER, Appellant, v. The STATE of Texas, Appellee.

No. 69077.

Court of Criminal Appeals of Texas En Banc.

Sept. 30, 1987.

Vernard G. Solomon, Marshall, for appellant.

Carter Beckworth, Dist. Atty., Odis R. Hill, Sp. Prosecutor, Longview, Phil Burleson, Sp. Prosecutor, Dallas, Robert Huttash, State's Atty., Austin, for State.

Before the court en banc.

OPINION

TEAGUE, Judge.

Joseph Stanley Faulder, appellant, was convicted by a jury of committing the murder of Inez Phillips while in the course of committing or attempting to commit the felony offense of aggravated robbery. After the jury answered the special issues submitted to it by the trial judge in the affirmative, see the provisions of Art. 37.071, V.A.C.C.P., the trial judge assessed appellant's punishment at death.

To better understand appellant's first ground of error, that "The Trial Court erred by denying the Appellant's Special Plea in Bar and Former Jeopardy," we find it necessary to give a brief history of appellant's case.

In Faulder v. State, 611 S.W.2d 630 (Tex.Cr.App.1980), a majority of this Court reversed appellant's conviction and sentence of death after it found that appellant's extrajudicial confession, which was admitted into evidence at his trial over objection, was obtained in violation of his federal Fifth Amendment constitutional rights. Thereafter, the State, through its local district attorney, filed a motion to stay this Court's mandate of reversal in order that it might petition the United States Supreme Court for writ of certiorari. Appellant then filed an application for writ of prohibition to prevent the State from seeking such review. A majority of this Court held in Faulder v. Hill, 612 S.W.2d 512 (Tex.Cr.App.1981), that "Art. 5, Sec. 26, of the Texas Constitution does not prohibit [the State] from seeking review of our decision in this case by application for writ of certioari in the Supreme Court of the United States," (515), and denied appellant's application for writ of prohibition. While that cause was pending on rehearing before this Court, the State's petition for writ of certiorari was denied by the Supreme Court. See Texas v. Faulder, 449 U.S. 874, 101 S.Ct. 215, 66 L.Ed.2d 95 (1980). Thereafter, a majority of this Court overruled appellant's motion for rehearing, with four judges voting to deny the application for prohibition on the ground of mootness.

The State then sought to retry appellant in Gregg County, the county where the offense occurred. However, the trial court judge granted appellant's motion for change of venue and transferred the cause to Angelina County where it was again retried and appellant was again convicted and assessed the death sentence. He now appeals that conviction and sentence to this Court.

This time we will affirm appellant's conviction and sentence of death.

Appellant does not challenge in this appeal the sufficiency of the evidence either as to his guilt or to the punishment that was assessed. ¹ It is therefore unnecessary for us to detail the facts of the case, either on guilt or punishment. Nevertheless, we will set out the following brief summary of the facts of the case that were presented as to appellant's guilt and punishment of death.

The evidence presented at trial either reflects or indicates that James Moulton, who had previously done work at the residence of Inez Phillips, the deceased, who was then an elderly widow who lived in Gladewater, Doyle Hughes, Linda "Stormy" Mc Cann, and appellant initially entered into an apparent conspiracy to gain entry into Phillips' residence with the intent to break into a floor safe that Moulton believed that Phillips kept inside of her residence. Based upon his prior employment, Moulton had concluded that there was money in the safe and convinced his cohorts of this. The parties, however, although they went and "checked" out the residence, did not at that time attempt to burglarize Phillips' residence. Later, however, appellant and Mc Cann entered into a new conspiracy to commit criminal wrongs and thereafter returned to Phillips' residence and gained entry, but soon discovered that there was no money in the safe. Appellant then proceeded to steal anything in the house that might have value, including Phillips' wedding ring. After appellant tied up, beat, and stabbed Phillips, he and Mc Cann then left the residence. The next morning, Phillips' maid, when she went to awaken Phillips, found Phillips' body bound and gagged with tape, with a large butcher knife protruding from her upper chest. The police were notified. The knife wound was shown to have extended nearly to the backbone of Phillips' body. The back of Phillips' skull was shown to have been crushed by a blunt instrument, probably a blackjack. Either injury was shown to have been sufficient to have caused Phillips' death. Appellant's connection to Phillips' death was shown primarily through the testimony of Moulton, Hughes, and Mc Cann. Mc Cann, who was present when appellant beat and stabbed Phillips to death, was, of course, the State's "star" witness.

Appellant presented no witnesses or evidence at either stage of the trial. At the punishment stage of the trial, the State presented evidence from two psychiatrists who testified that appellant was an extreme danger to society, with no regard for human life, and would very likely kill again if given that opportunity.

Appellant, through counsel, presents twenty-six grounds of error in a brief that was filed on February 1, 1984, which has not been amended or supplemented since that date. Appellant asserts that he is entitled to a new trial because (1) his special plea in bar, on the ground that the Double Jeopardy Clauses prohibited the State from retrying him for capital murder, should have been sustained by the trial judge; (2) the trial judge reversibly erred in unnecessarily limiting his voir dire examination; (3) the trial judge reversibly erred in not granting his motion for change of venue from Angelina County; and (4) in twelve grounds of error appellant claims that the trial judge reversibly erred in either not sustaining his challenges for cause as to certain named prospective jurors or in sustaining the State's challenge for cause as to one prospective juror.

Finding that none of appellant's grounds of error rise to the level of reversible error, each is expressly overruled.

Appellant asserts in his first ground of error that "The Trial Court erred by denying his Special Plea in Bar and Former Jeopardy." Appellant argues under his ground of error that the evidence that was adduced at his former trial, see supra, was insufficient to establish his guilt. As previously pointed out, in appellant's former appeal, see supra, he did not challenge the sufficiency of the evidence as to his guilt. Thus, he now makes a collateral attack on the sufficiency of the evidence that was adduced at his former trial. However, this is permissible under this Court's decisions. See Ex parte Rathmell, 717 S.W.2d 33, 34 (Tex.Cr.App.1986); Ex parte Robinson, 641 S.W.2d 552 (Tex.Cr.App.1982). Also see Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977).

Appellant's sole argument under this ground of error is that if this Court excludes his erroneously admitted confession from the facts that were presented at his former trial then the evidence presented at his former trial should be held to be insufficient.

This Court has long adhered to the rule that in judging a challenge to the sufficiency of the evidence all of the evidence, which includes both the admissible and inadmissible evidence, will be considered. See Dunn v. State, 721 S.W.2d 325 (Tex.Cr.App.1986), and the cases cited on page 327, where this Court stated: "We pause to point out that in deciding the sufficiency of the evidence, all the evidence, both proper and improper, must be considered in deciding that issue." Also see Lucas v. State, 721 S.W.2d 315 (Tex.Cr.App.1986), and the discussion found on page 318 thereof; Gregg v. State, 667 S.W.2d 125 (Tex.Cr.App.1984); Schmidt v. State, 659 S.W.2d 420 (Tex.Cr.App.1983); Collins v. State, 602 S.W.2d 537 (Tex.Cr.App.1980). The error that occurred at appellant's former trial was "trial error", and not "insufficiency of the evidence error", in that the trial judge erred, for reasons stated in our prior opinion, see supra, by admitting into evidence over objection appellant's extrajudicial confession. In United States v. Scott, 437 U.S. 82, 90-91, 98 S.Ct. 2187, 2193-2194, 57 L.Ed.2d 65 (1978), the Supreme Court of the United States held that "[t]he successful appeal of a judgment of conviction, on any ground other than the insufficiency of the evidence to support the verdict [citing Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) ], poses no bar to further prosecution on the same charge." Appellant does not maintain in his ground of error in this cause that all the evidence that was presented at his first trial, both proper and improper, was insufficient to support his conviction. Therefore, his first ground of error is overruled.

Appellant asserts in his second ground of error that "The Trial Court erred in unnecessarily limiting [his] Voir Dire examination, thereby denying [him] effective assistance of counsel." We disagree.

As previously pointed out, after this Court reversed appellant's former conviction, the cause was remanded to the trial court for a new trial. Thereafter, pursuant to appellant's motion for change of venue from Gregg County, the cause was transferred to Angelina County. On June 15, 1981, jury selection began for the second trial. On the previous day, June 14, 1981, a Sunday, which was "Flag Day" in this country for that year, the local newspaper, The Lufkin News, published an article about the upcoming trial and placed said article next to a picture of what appears to be a partial flag of the United States with...