Gibbs v. State

• Decision Date: 19 June 1991
• Docket Number: No. 69638,69638
• Parties: David Earl GIBBS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 821

819 S.W.2d 821

David Earl GIBBS, Appellant, v. The STATE of Texas, Appellee.

No. 69638.

Court of Criminal Appeals of Texas En Banc.

June 19, 1991.

Rehearing Overruled Sept. 18, 1991.

John F. Pettit, Larry Foerster, Conroe, for appellant.

Peter C. Speers, III, Dist. Atty., and Thomas D. Glenn, Asst. Dist. Atty., Conroe, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

WHITE, Judge.

Appellant was convicted of capital murder. See V.T.C.A., Penal Code, § 19.03(a)(2). After the jury made an affirmative finding on both of the special issues submitted under Art. 37.071(b)(1) and (2), V.A.C.C.P., the trial court imposed the penalty of death. This case is before us on direct appeal.

Appellant brought a total of eleven points of error to this Court, including arguments that the evidence was insufficient to support the jury's finding that he was guilty of the capital murder of Marietta Bryant. We will affirm the judgment of the trial court. A review of the facts is necessary.

Marietta Bryant, twenty-nine years of age at the time of her death, lived with Carol Ackland at 803 N. Thompson, Apt. D, in the City of Conroe in Montgomery County. Both women were outpatients of the Texas Department of Mental Health and Mental Retardation. In the past, Ms. Bryant and Ms. Ackland had both been hospitalized with mental health and emotional problems. Ms. Bryant had suffered from a shared schizophrenic condition, and her personal development at age 29 was that of an adolescent. In March of 1985, they were assigned to Chris Ward, a caseworker with MHMR, who helped them find their apartment and their jobs. They were employed by Tri-County MHMR Industries, working on a road crew picking up litter along the highways of Montgomery County. According to Ward, both Bryant and Ackland were making tremendous progress in their development as outpatients. Marietta Bryant showed no symptoms of mental illness. Ward felt they were doing well enough, that he only needed to visit with them twice a month.

On July 12, 1985, Ward became concerned for the well-being of Bryant and Ackland when he was informed that they had not reported for work on July 2, or any day thereafter. On Monday, July 15, Ward went to their apartment and knocked on the door. There was no answer. Ward noticed a strong, foul odor emanating from the apartment and saw many flies buzzing around the door. Ward saw a door tag from a cable installer which noted that he had been by on July 2, but had not been able to gain admittance to the apartment. Ward returned again on July 16 and conditions had not changed at the apartment. He went to the Conroe Police Department and notified the authorities. Ward then contacted Marietta Bryant's brother and sister-in-law to meet him at the apartment.

When Ward and the Bryants arrived, the police were already at the apartment. Officer Reynolds noticed the odor of something dead emanating from the apartment. He called for assistance from Chief Lindon and Deputy Chief Arthur before proceeding. After entering the apartment from a rear, unlocked window, Reynolds was struck both by the terrible strength of the odor and the very cold temperature inside the apartment. He found a body, later identified as Carol Ackland, in the kitchen area of the apartment. He found another body, later identified as Marietta Bryant, in the bathroom. Next to Bryant's body were a large butcher knife and a bottle of Mazola cooking oil. Reynolds saw large pools of blood and cooking oil on the floor around both bodies. Reynolds verified that both women were dead, then secured the crime scene for investigation.

Autopsies were performed on the bodies of Ackland and Bryant on July 17. Both bodies were in an advanced state of decomposition. The Harris County Medical Examiner determined that both women died from having their throats cut by a sharp object, at least two weeks before the autopsy was performed. Neither woman exhibited trauma around the vagina or vulva. At trial, the medical examiner testified that as a byproduct of decomposition, evidence of trauma will disappear. Because maggots attacked these areas of the women's bodies, the medical examiner could not be certain if there had been a trauma. Marietta Bryant had a large gaping neck wound, as well as defensive wounds to her hands, wrists, and arms. Bryant's neck wound was the result of a right to left cut, indicating to the medical examiner that the assailant had been left-handed. The medical examiner believed the fatal wounds to each victim were possibly inflicted by the same knife.

Officer Reynolds supervised the investigation of the crime scene. In the bathroom, Reynolds found a burnt matchstick on Bryant's body and a cigarette butt in the sink. He also found a book of matches from Mac's Lounge. He discovered the thermostat of the apartment had been set at its coldest possible setting. The apartment had been ransacked, but there was no sign of forced entry. Under Reynolds' direction, latent fingerprints were taken throughout the apartment. On July 29th, Marietta Bryant's brother was permitted in the apartment to look after her effects. He discovered that her most prized possession, a radio/cassette player which he and his wife gave her for Christmas in 1984, was missing. He informed the police and gave them the model number from the warranty card.

At the time of the deaths of Bryant and Ackland, appellant worked at their apartment complex and lived there. Appellant came to the attention of Officer Julie Easter on July 2nd after 2:00 a.m., when she answered a disturbance call at his downstairs apartment. Appellant reported a break-in at his apartment and the apartment next door to his. Officer Easter came to the conclusion that appellant had been drinking. Appellant behaved strangely, between nervous and angry, when she questioned him about the break-ins. Because the sole of appellant's sneaker exactly matched the sneaker print on the door, Officer Easter concluded appellant kicked in the door of the apartment next door. When Officer Easter arrived at the scene of the murders on July 16th, she immediately focused on appellant as a suspect, and advised Officer Reynolds about the reasons for her suspicions. The Police Department began to investigate appellant's possible connection to the instant offense.

In the early morning of July 18th, the police went to the Willis Convalescent Center in Conroe where appellant worked as a nursing attendant. The officers asked appellant to accompany them to the police station, and he complied with their request. After some investigation, the police took appellant to the home of Wanda McNeil, where he was presently living. Appellant had moved in with McNeil in early July. Later that day, the officers went to the McNeil residence and asked appellant to come to the station with them to talk. He agreed. Wanda McNeil picked him up later that evening. At no time was appellant placed under arrest. The Conroe police investigators said appellant could have refused their requests for interviews and they would not have detained him. They also said he was free to leave them at any time.

On July 19th, appellant agreed to go with the police to take a polygraph examination, the results of which were never admitted into evidence. Upon their return to Conroe, appellant signed a consent to search his old apartment. Appellant was present while the police conducted their search. They found a pack of Doral filter lights cigarettes, the same brand as the butt left in the bathroom sink at the murder scene. The police also found a pair of boots. Laboratory analysis later detected the presence of human blood on them. Appellant left the police station later that day with Wanda McNeil. Appellant was again interviewed on July 23rd, 25th and 27th. Each time he was not placed under arrest, and left the police station with Wanda McNeil. On each of these occasions, appellant was free to leave and terminate the interview at any time. Appellant was informed of his rights each time. Appellant never requested the assistance of an attorney.

On July 29th, Marietta Bryant's brother informed the police of the missing radio. On the 30th, the police learned appellant had a radio similar to Marietta's. The Conroe Police Department was now being assisted by Investigator Charles Ray of the Montgomery County District Attorney's Office and by Texas Ranger Wesley Stiles. They went to the McNeil residence and, pursuant to a consensual search, recovered a radio identical to the one owned by Marietta Bryant. It had the same model number as that of Ms. Bryant's radio. Wanda McNeil told the officers appellant brought the radio to her house. The police requested appellant to accompany them to the police station. Appellant agreed. At 4:30 p.m. on the 30th, Officer Reynolds arrested appellant for murder pursuant to an arrest warrant and complaint for the murder of Marietta Bryant. At 4:40 p.m., appellant was taken by Reynolds before a magistrate where he received his statutory warnings. Appellant was then returned to the police station where the police apprised him of his rights, and then interrogated him. Late that evening, appellant said he was tired, and the police took him to his cell to go to sleep. At no time on the 30th did appellant ever request a lawyer, or indicate that he wanted to terminate the interviews.

Appellant's fingerprints were checked against the latent prints found in the victims' apartment. Appellant's prints were found on the inside of the front entrance door, on the refrigerator and on a band-aid box recovered from the bathroom. The police interviewed David Peters, an acquaintance of appellant, who had been with him on the evening of July 1st. Appellant and Peters were drinking and shooting pool at Mac's Lounge in Conroe. Appellant was wearing a pair of boots that Peters said were similar to the ones recovered in the search of appellant's...