Fuller v. State

• Decision Date: 30 April 2008
• Docket Number: No. AP-74980.,AP-74980.
• Citation: 253 S.W.3d 220
• Parties: Barney Ronald FULLER, Jr., Appellant v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

253 S.W.3d 220

Barney Ronald FULLER, Jr., Appellant v. The STATE of Texas.

No. AP-74980.

Court of Criminal Appeals of Texas.

April 30, 2008.

James W. Volberding, Tyler, for Appellant.

Robert McGlohon, Asst. D.A., Tyler, Jeffrey L. Van Horn, State's Attorney, Austin, for the State.

OPINION

PRICE, J., delivered the opinion of the Court in which KELLER, P.J., and WOMACK, JOHNSON, KEASLER, HERVEY, HOLCOMB and COCHRAN, JJ., joined.

In July 2004, the appellant was convicted of the May 14, 2003, capital murder of Nathan and Annette Copeland.¹ The appellant pleaded guilty in front of the jury, and based on the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, sections 2(b) and 2(e), the trial judge sentenced the appellant to death.² Direct appeal to this Court is automatic.³ After reviewing the appellant's forty-four points of error, we find them to be without merit. Consequently, we affirm the trial court's judgment and sentence of death.

STATEMENT OF FACTS

The appellant, Barney Ronald Fuller, Jr., was fond of firing weapons on his property in rural Houston County, despite repeated complaints from his neighbors. Perhaps the most vocal of his neighbors, Nathan and Annette Copeland, had a dispute with the appellant regarding his alleged shooting of the Copeland's electric transformer. The dispute escalated with the appellant ultimately being charged with making terroristic threats against Annette after he told her over the telephone, "Happy New Year, I'm going to kill you."

On May 13, 2003, the appellant received a letter from the court regarding the terroristic threat charges against him. The appellant was furious and began drinking heavily. At around 1:30 a.m. on May 14, 2003, the appellant left his home and traveled the short distance on foot to the Copeland home. The appellant fired approximately sixty rounds from an AR-15 rifle into the Copeland home from outside, changing the magazine on his rifle three times. He then broke down the back door and made his way to the master bedroom where he fired several more shots with a pistol, reloading twice. He shot Nathan four times. The first shot was a fatal head wound from a rifle. The other three wounds, which were also classified as fatal, were from a pistol that was fired at Nathan's back from a distance of only one to three feet. Annette managed to call 9-1-1 from the master bath. The operator heard a man say, "Party's over, bitch," before hearing "a popping sound" and the line went dead. Annette was shot three times in the head with a pistol, once directly through her brain and twice through her facial bones.

Not satisfied with killing Annette and Nathan, the appellant found the room of their fifteen-year-old son, Cody, who heard his father screaming during the shooting. The appellant took aim at Cody and fired at least three times, all the while asking Cody why he was lying about him in court. Although bullets were later pulled from Cody's pillow, he escaped with only two shoulder wounds. The appellant then made his way to the room of eleven-year-old Courtney, but he could not find her in the dark. Before leaving the house, he turned on the kitchen stove.

Once the appellant left the Copeland home, Courtney waited five minutes before checking on Cody and her parents. She saw that her parents "would not make it." Cody attempted to call 9-1-1, but the house land line was dead. Courtney turned off the stove in the kitchen while Cody went to their parents' room to find their mother's mobile phone to call 9-1-1. After speaking with the 9-1-1 operator, Courtney called her grandparents to tell them what had happened, and then she and Cody waited, pretending to be dead just in case the appellant returned.

Their grandparents arrived before any first responders and took the children to meet an ambulance that was en route for Cody. When law enforcement arrived at the Copeland home and began clearing the scene, they heard six rounds fired from the direction of the appellant's home. The appellant contacted 9-1-1 himself and told the operator that he would surrender. A SWAT team was assembled, and the appellant was arrested around midmorning.

GUILTY PLEA IN FRONT OF THE JURY

In his first through third points of error, the appellant argues that the trial court lacked authority to impose the death sentence in the absence of a jury verdict form finding him guilty and therefore violated Texas Code of Criminal Procedure Article 1.13, the Due Process Clause of the Fourteenth Amendment, and the Sixth Amendment right to an impartial jury.

On the morning of trial, the appellant pleaded guilty to capital murder in front of the jury. After admonishing the appellant, the trial court accepted his guilty plea and found him guilty of capital murder. The court then instructed the jury that it would no longer be required to determine the appellant's guilt or innocence but would only be required to determine his punishment. The court conducted a punishment hearing, heard evidence of the offense, and charged the jury to find the appellant guilty and to answer the special issues. The forms given to the jury, however, did not include a verdict form for the jury to physically mark that they found the appellant guilty; the forms included only sentencing forms for the two special issues. The appellant claims that he has been denied a trial by jury because the jury did not sign a verdict form indicating that the appellant is guilty of capital murder. These claims are without merit.

Article 1.13 sets out the requirements for waiver of a jury trial. Specifically, Article 1.13 requires that the defendant execute a written waiver made in person in open court with the consent and approval of the court and the prosecution, if the case is "for any offense other than a capital felony case in which the State notifies the court and the defendant that it will seek the death penalty." Article 1.13(b) states that the defendant may waive the right to jury trial only if the prosecution consents to the waiver in writing and in open court, if the case is "a capital felony case in which the attorney representing the State notifies the court and the defendant that it will not seek the death penalty." Because the State sought the death penalty, Article 1.13 is inapplicable to this case, and the appellant was required to be tried by a jury.

In Williams v. State,⁴ this Court held that Williams' plea of guilty to a capital murder charge in front of the jury was not an illegal waiver of a jury trial but rather a trial by jury that essentially became a trial on punishment only.⁵ This Court also took note of Williams' contention that Article 37.071 applies only to bifurcated trials and that a guilty plea in front of the jury is not a bifurcated trial.⁶ Williams argued that a defendant could not plead guilty in front of the jury in a capital case.⁷ In a footnote, this Court responded that

[t]he plea must be to a jury so as to comply with the limitations of Art[icle] 1.14. Whether such a procedure, where a guilty plea is entered, is to be denominated unitary or bifurcated is moot: Art[icle] 37.071 governs all capital cases and it provides for a trial by jury upon the issues related to punishment.⁸

This Court noted that the procedure employed had the indicia of a bifurcated trial.⁹ Williams pleaded guilty before the jury, and after the State presented evidence, the trial court instructed the jury to find Williams guilty.¹⁰ Once the jury signed the verdict finding Williams guilty, a separate punishment hearing was held after which the court submitted a charge to the jury directing it to answer the three special issues.¹¹

Four years later, citing to Williams, this Court formally declared that "a plea of guilty before a jury in a capital case constitutes trial by jury whether such a proceeding be denominated `bifurcated' or `unitary' in nature."¹² In Holland, after the defendant pleaded guilty in front of the jury, the trial court instructed the jury to find him guilty and directed it to consider the special punishment issues, all in one instrument.¹³ The Court determined that this constituted a trial by jury.¹⁴

Similarly, in the instant case, the appellant pleaded guilty in front of the jury. After hearing evidence of the appellant's guilt for nine days, the trial judge instructed the jury, through both oral and written directives, to find the appellant guilty, but provided the jury with only the "Special Issues Verdict Forms." The question here is whether the jury needed to return a verdict form indicating the appellant's guilt in writing in order to declare that the appellant received a trial by jury.

This Court encountered a similar problem in Brinson v. State.¹⁵ In Brinson, the appellant pleaded guilty to the charge of driving while intoxicated. The jury returned a verdict sentencing the appellant to two years in county jail without a formal declaration of his guilt, and the appellant argued that the verdict was insufficient.¹⁶ Texas Code of Criminal Procedure Article 37.01 defines verdict as "a written declaration by a jury of its decision of the issue submitted to it in the case."¹⁷ This Court held, "In all cases where a defendant enters a plea of guilty before a jury, no issue of the defendant's guilt is submitted to the jury."¹⁸ Pursuant to this logic, this Court declared

[S]ince a verdict is `a written declaration by a jury of its decision of the issue submitted to it in the case,' but the issue of guilt is not submitted to a jury when a defendant has pleaded guilty before it, a jury does not return a verdict of guilt in such a situation.¹⁹

Though not dealing with a capital case, Brinson supports a finding that a verdict on the guilt of a person who pleads guilty is not necessary, even in a capital case.²⁰

The appellant also argues that the trial court's failure to require that the jury sign a verdict form finding him guilty of capital murder...