Goodwin v. State

Decision Date24 October 1990
Docket NumberNo. 69889,69889
CourtTexas Court of Criminal Appeals
PartiesAlvin Urial GOODWIN, Appellant, v. The STATE of Texas, Appellee.
OPINION

CAMPBELL, Judge.

Appeal is taken from a conviction for capital murder. TEX.PENAL CODE ANN. § 19.03(a)(2). After finding the appellant guilty, the jury returned affirmative findings to the special issues under Article 37.071, TEX.CODE CRIM.PROC.ANN. Punishment was assessed at death.

Appellant raises thirteen points of error. He challenges: the trial court's denial of appellant's pre-trial motion to suppress his warrantless arrest and search on December 4, 1986; the trial court's denial of his pre-trial motion to suppress his confessions, arguing that the confessions were "fruit[s] of the poisonous tree" resulting from evidence obtained during his warrantless arrest and search; the trial court's denial of his pre-trial motion to suppress his confessions, arguing that the confessions were made without effective waiver of his right to counsel; the exclusion of three venirepersons who were excused for cause based on their bias against the imposition of the death penalty; the exclusion of one venireperson who was excused for cause based on her inability to read and write; the exclusion of one venireperson who was excused for cause based on grounds that her physical condition made her unfit for jury service; the retroactive granting of the State's challenge for cause of one venireperson after appellant and the State had accepted the venireperson; the admission at trial of autopsy photographs of the victim; the trial court's denial of appellant's specially requested instruction--that his confessions, standing alone, were not sufficient to convict for the alleged offense; the trial court's denial of appellant's specially requested charge on the lesser included offense of murder; and finally, the sufficiency of the evidence to sustain his conviction under TEX.PENAL CODE ANN. § 19.03(a)(2), arguing that the evidence was insufficient to show that the murder was committed during the course of a robbery or kidnapping. We will affirm.

On December 1, 1986, Montgomery County Sheriff's deputies received a report of a theft at the trailer house of James Douglas Tillerson. Further investigation revealed that Tillerson's trailer house had been ransacked and that a VCR, some homemade video cassettes, phonograph records and a bayonet were missing from the house. Tillerson had not reported for work that morning and had not been seen since the previous Sunday.

On January 17, 1987, Tillerson's body was discovered by trailriders approximately two and one-half miles from his trailer at the edge of the woods near Fawnmist Road in Montgomery County. At the scene, Officers Peterson, Self and Oldham inspected the body's clothing and tentatively identified the body as Tillerson. Harris County Assistant Medical Examiner, Dr. Vladimir Parungoa, positively identified the body as Tillerson. Dr. Parungoa's examination disclosed that Tillerson had been dead for approximately one month and had died from a gun-shot wound to the head. A second gun-shot wound had been made by a projectile entering Tillerson's right arm, exiting at the forearm. Parungoa recovered a bullet from the body's clothing and gave it to Montgomery County officers present at the autopsy. Using a metal detector, Officers Self and Oldham later recovered fragments of a projectile in the immediate area where Tillerson's body had been discovered.

On the afternoon of January 17, 1986, Self contacted Susan Rung and Kevin Smith, friends of Tillerson, who resided near Tillerson's trailer house. Rung told Self that Tina Atkins, also a friend of the victim, had told her that a VCR, bayonet and several video tapes from Tillerson's trailer were now at the house where she was living with her father, Billy Dan Atkins Sr. Rung was able to name the titles of the video tapes, which corresponded with the titles of the tapes missing from Tillerson's trailer.

Based on the information provided by Tina Atkins, a search warrant was issued for the residence of Billy Dan Atkins Sr., and executed on January 18, 1987. Several items were seized by detectives including: two video tapes; a box labeled "Budweiser"; several phonograph records; and a bayonet which was found in the trunk of a 1973 Ford Torino parked at the house. Atkins Sr. had found the other items in Atkins Jr.'s Torino. Atkins Jr. had given his father the keys and title, and Atkins Sr. had retrieved the Torino from a wrecker yard where it had been impounded since December 28, 1986. The video tapes, "Budweiser" box, and the bayonet were identified by Tillerson's family as items missing from his trailer since December 1, 1986.

A capital murder warrant for Billy Dan Atkins Jr. was issued on January 19, 1987. Further investigation revealed that Atkins, appellant, Glenn Dierr and Fred Meadows had been arrested for unlawful possession of firearm by felon on December 4, 1986 in The Woodlands, Texas.

Self interviewed Dierr, who stated that he had been walking in the woods near Huntsville, Texas with appellant on December 5, when appellant showed him a fence post. Appellant claimed to have fired several rounds from a .357 Magnum into the fence post, and further stated that he had "blown someone away" with the weapon five weeks earlier and that the body was still in the woods. Dierr directed officers to the area of the fence post. Officers recovered three bullets and some spent hulls from the ground.

Detectives later discovered that the weapons seized from Atkin's car on December 4 were still in the Sheriff's property room. They retrieved a Smith and Wesson .357 Magnum and a Thompson Contender .357 Magnum from the property room. Detectives sent these weapons, the bullet recovered from Tillerson's clothing, the fragments found on the ground near Tillerson's body, and the bullets and hulls found in and around the fence post to Houston firearms expert C.E. Anderson. After ballistics testing, Anderson determined that all of the projectiles and hulls had been fired from the Smith and Wesson .357 Magnum.

On January 20, 1987, Officer Peterson was notified that appellant and Atkins had been arrested and were in custody in Burlington, Iowa. Peterson and Oldham travelled to Burlington and interviewed appellant on January 21. When told by Oldham that they had found the weapon used to kill Tillerson, and that it was the same weapon taken from Atkin's car on December 4, appellant admitted to having shot Tillerson. After obtaining a full videotaped confession, Peterson and Oldham requested a warrant for appellant's arrest, which was issued in Montgomery County and teletyped to Iowa. Appellant waived extradition and was taken to Montgomery County that evening. The next morning appellant was interviewed by officers in Montgomery County and later gave a written confession.

According to appellant, on the night of the murder, between eight and ten p.m., he and Atkins drove by Tillerson's trailer. Atkins and appellant had discussed the possibility of either obtaining a loan from Tillerson or robbing him. When Tillerson answered the door at his trailer home, Atkins and appellant entered and pulled out their weapons. Atkins ordered Tillerson to sit down in a chair and demanded money. Tillerson claimed that he had no money, but Atkins began to ransack the trailer. Unable to find more than some change, Atkins began to collect other items from the trailer. Atkins then ordered Tillerson to get dressed and appellant held a weapon on Tillerson while Atkins loaded the items into his car. Atkins then ordered Tillerson into his car. While Atkins and Tillerson were getting into the car, appellant went through the trailer turning off the lights and locking the door.

Atkins, appellant and Tillerson left in Atkins' car, with Atkins driving, Tillerson in the back seat, and appellant in the front seat, pointing his .357 Magnum at Tillerson. Atkins was unable to find a particular road he was looking for and eventually stopped near a wooded area where he ordered Tillerson to get out of the car and ordered him to walk ahead of Atkins and appellant into the woods. Appellant and Atkins walked behind Tillerson until the woods became too thick to walk further. Atkins raised a handgun, aimed at Tillerson and pulled the trigger two or three times, but the weapon did not discharge. Appellant raised his .357 Magnum, turned his head, and fired at Tillerson. Tillerson fell to the ground screaming. Thinking that he had only grazed the victim, appellant quickly raised his weapon and fired a second shot. Appellant saw blood coming out of Tillerson's head and ran back to Atkins' car.

In his first point of error, appellant alleges the trial court erred when it denied his pre-trial motion to suppress evidence obtained from his warrantless arrest and search on December 4, 1986. Appellant argues that he was arrested without warrant and without probable cause following a stop and search of a vehicle (Atkins' Ford Torino) in which he was a passenger. He claims ownership of luggage which was searched, and wherein a Smith and Wesson .357 Magnum and other items were found and seized. He further argues that the stop of the vehicle was merely a pretext stop to enable law enforcement officers to search the vehicle without warrant and probable cause, all in violation of the Texas and Federal Constitutions 1 and Articles 1.04, 1.06 and 38.23, TEX.CODE CRIM.PROC.ANN.

The facts surrounding the search and seizure of items from Atkins' Torino follow. Officer Daniel Torres of The Woodlands Division, Montgomery County Sheriff's Department was patrolling at 7:30 p.m. when he spotted Atkins' 1...

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