Holland v. State

• Decision Date: 13 July 1988
• Docket Number: No. 69647,69647
• Citation: 761 S.W.2d 307
• Parties: David Lee HOLLAND, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 307

761 S.W.2d 307

David Lee HOLLAND, Appellant, v. The STATE of Texas, Appellee.

No. 69647.

Court of Criminal Appeals of Texas.

July 13, 1988.

Rehearing Denied Oct. 19, 1988.

James A. DeLee, Port Arthur, for appellant.

Tom Maness, Dist. Atty., and John R. DeWitt, Asst. Dist. Atty., Beaumont, Robert Huttash, State's Atty., Austin, for the State.

OPINION

W.C. DAVIS, Judge.

Appellant was convicted in Jefferson County for the offense of capital murder. See V.T.C.A., Penal Code 19.03. After the jury affirmatively answered the special issues submitted under Art. 37.071, V.A.C.C.P., the trial court imposed the death penalty as required by law and this direct appeal followed. We will affirm.

The Grand Jury returned two indictments alleging the murders of bank employees Helen Barnard and Dianna Jackson in the course of committing and attempting to commit the underlying felony of robbery. V.T.C.A., Penal Code, 19.03(a)(2). The State elected to proceed in the prosecution for the death of Mrs. Barnard. After a lengthy voir dire, the appellant entered a plea of guilty to the capital charge in front of the jury. A unitary proceeding followed with the submission of testimony and evidence by both sides, after which the jury was instructed to return a verdict of guilty and to answer the special issues submitted.

Appellant advances five points of error. In his first point he claims denial of a bifurcated trial as required by Art. 37.071, supra. Next, he argues that he was denied effective assistance of counsel because of various acts or omissions of his two appointed attorneys during trial. Third, appellant contends it was error to accept his guilty plea without proper admonishments given an alleged "apparent" disagreement between appellant and his trial counsel. In another point appellant complains that the trial court erred in allowing the State's expert witness, Dr. James Grigson, to answer a hypothetical question regarding the probability of future dangerousness. In his final point of error, appellant contends the evidence is insufficient to sustain an affirmative response to special issue number two. The sufficiency of the evidence supporting his plea of guilty is not challenged. However, given appellant's last point of error, we now briefly review the evidence presented to the jury. Viewed in the light most favorable to the verdict, the record reflects the following facts.

On July 11, 1985, appellant was arrested by Jefferson County authorities and charged with felony theft, the result of an alleged check-kiting scheme involving over $100,000 in bad checks with a real loss of over $35,000 to a local bank. He was released on bail.

In a separate transaction nine days before, appellant had purchased a new automobile for his step-daughter with a check drawn on yet another account. The same day appellant was arrested in the theft case, he was also notified by the car dealer that his check had been returned due to insufficient funds.

On July 12th, the record reflects appellant went to two banks and discussed opening various business and personal accounts with bank employees. At First Texas Savings Association in Port Neches, he unsuccessfully attempted to open an account with a bogus $1,500 check. At another institution he talked about opening a new business, spending the time looking around the bank lobby and into the glass-enclosed offices.

Three days later, on July 15th, witnesses testified appellant called the automobile dealership and promised payment on the hot check by 9:30 the next morning.

On the morning of July 16th, appellant left his house and drove into Port Arthur. Before leaving home, he armed himself with two guns, a .45 caliber pistol and a .25 caliber handgun. Both semi-automatic weapons were loaded. Appellant later told Detective Edmond Chesson of the Port Arthur Police Department that he had decided over the previous weekend he would have to get money in some way and was intending to rob "some" business. To this end, he carried the two pistols, the smaller .25 caliber as "backup."

By 9:30 a.m., appellant was "casing" the Jefferson Savings and Loan branch bank building on 39th Street in Port Arthur. According to his admissions to officers, he waited until there were no walk-in customers before entering the bank. At this point, appellant's initial movements are chronicled on tape, courtesy of a delayed time frame videotape camera.

The events depicted on the tape are corroborated by appellant's own statements to police. After entering the bank at 9:43, appellant walked up to the tellers' counter, where he spoke with the two women on duty. Waiting until a drive-through customer had conducted her transaction and driven off, appellant then brandished a gun and ordered the tellers to give him the money from their cash drawers. Feeling that there would be more money in the vault, appellant then escorted the two women into the vault area, disappearing from view of the camera. In the next two and one-half minutes the women opened a smaller safe and gave him a cash drawer containing more money. Appellant told police he vascillated about what to do with the women, but finally "did it," shooting Barnard once through the head and Jackson once through the chest. Death was probably instantaneous in the former case while emergency resuscitation efforts failed in the latter. At 9:53 appellant reappeared on tape and left the building. He returned two and one-half minutes later, walked straight up to the video camera equipment and shut off the machine.

Within thirty minutes of the double killing, appellant called the automobile dealer and told them he was on his way with money. He gave employees $3,600 and later returned with an additional $1,900. Still short of covering the amount of the check, appellant told an employee of the dealership that he would have the rest of the money in a few days.

That afternoon, appellant and his wife ran errands, paid bills, and ate lunch at a local fast-food restaurant. He also drove his wife and children out near the Beaumont Municipal Airport, where, unknown to them, he discarded the empty cashdrawer by tossing it into an irrigation canal.

Upon viewing the bank videotape, bank and police officials tentatively identified appellant as the robber. ¹ Officers went to appellant's home to interview him. Appellant was told he was not under arrest but was asked to put on his shirt and shoes and accompany the officers to the station house. Once there, appellant was given his Miranda ² warnings and questioned. After it became obvious that appellant's story conflicted with that as told by his wife, and after police became aware of blood stains on his shirt and shoes, appellant was arrested on the instant charge.

Equipped with a search warrant, officers returned to appellant's residence, where various weapons and a supply of ammunition were discovered, including .45 and .25 caliber handguns. Robert Fleming, firearms examiner for the Houston Police Department, later testified that two fired bullets discovered in the vault area near the two victims had been fired from the .45 caliber weapon. Trace metal tests conducted on appellant showed the outline of two guns to the right and left sides of the abdomen, of a size consistent with the guns seized at appellant's residence.

A warrant was also executed to draw a specimen of appellant's blood. Found to be type "A", appellant's blood type was found to be different from the type "O" blood stains on his shirt and shoes. Both victims had "O" type blood.

After executing the search warrant for appellant's residence, Port Arthur Police Detective Edmund Chesson received word that appellant wished to speak with him. Appellant told the officer he wanted to first talk with his wife and then tell the police what had happened. After giving details of the robbery-murder, appellant took officers to the location where he had disposed of the empty cash drawer. The instant prosecution followed.

In his first point of error, appellant asserts the trial court erred in denying him the benefit of a bifurcated trial. He reasons that Art. 37.071, supra, mandates a bifurcated proceeding in capital cases, and that the "trial of a capital case must be to a jury," citing as authority Art. 1.13, V.A.C.C.P., Art. 1.14, V.A.C.C.P., and this Court's decisions in Ex Parte Dowden, 580 S.W.2d 364 (Tex.Cr.App.1979) and Ex Parte Sparks, 372 S.W.2d 697 (Tex.Cr.App.1963). Thus, appellant argues, since the trial must be before a jury, under the doctrine of Art. 37.071, supra, there must be "two separate deliberations or at least separation of the guilt stage from punishment." He argues, in addition, that such a customary procedure, where the jury is instructed in one document both to find the defendant guilty and then instructs the jury to answer the special issues under Art. 37.071, supra, is inherently erroneous because such a procedure "is tantamount to saying to the jury, 'return the death penalty.' " We do not agree.

Initially, appellant's point of error is multifarious and presents nothing for review. Art. 40.09, V.A.C.C.P. Morin v. State, 682 S.W.2d 265 (Tex.Cr.App.1983), and cases therein cited. Given the gravity of the sentence, however, we shall deal with each of appellant's claims under his first point of error.

In felony cases, a plea of guilty before the jury "admits the existence of all necessary elements to establish guilt, and in such cases, the introduction of testimony by the State is to enable the jury to intelligently exercise the discretion which the law vests in them touching the penalty to be assessed." Ex Parte Williams, 703 S.W.2d 674 (Tex.Cr.App.1986), citing Williams v. State, 674 S.W.2d 315 (Tex.Cr.App.1984) ; Brinson v. State, 570 S.W.2d 937 (Tex.Cr.App.1978); Brown v. State, 507 S.W.2d 235 (Tex.Cr.App.1974); Renesto v. State, 452 S.W.2d 498 (Tex.Cr.App.1970); Darden v. State, 430 S.W.2d 494, 495 (Tex.Cr.App.1968), and cases there...