Lane v. State

• Decision Date: 06 November 1996
• Docket Number: No. 71835,71835
• Citation: Lane v. State, 933 S.W.2d 504 (Tex. Crim. App. 1996)
• Parties: Doil Edward LANE, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 504

933 S.W.2d 504

65 USLW 2367

Doil Edward LANE, Appellant, v. STATE of Texas, Appellee.

No. 71835.

Court of Criminal Appeals of Texas En Banc.

Nov. 6, 1996.

Verna Victoria Langham, New Braunfels, for appellant.

Michael S. Wenk, Asst. Dist. Atty., San Marcos, Matthew Paul, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

KELLER, Judge.

In a trial beginning in January of 1994, appellant was convicted of the capital murder of eight-year-old Bertha Martinez committed on March 20, 1980, in Hays County. ¹ The jury answered the punishment issues in the State's favor, and appellant was sentenced to death. Direct appeal to this Court is automatic under Article 37.0711(j). ² Appellant raises thirteen points of error on appeal. We will affirm.

1. Sufficiency of the evidence

a. Underlying offense

The capital murder count in the jury charge contained the underlying offenses of kidnapping and aggravated sexual assault. In various oral confessions, appellant admitted to kidnapping, sexually assaulting, and murdering the victim. In point of error ten, appellant contends that the evidence is insufficient to support his conviction because there is insufficient proof of corpus delicti for kidnapping and there is no "direct" evidence that appellant committed an aggravated sexual assault.

Evidence is sufficient when, viewed in the light most favorable to the verdict, a rational jury could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In a capital murder prosecution, the evidence need only be sufficient to establish one of the underlying felonies in the indictment. Matamoros v. State, 901 S.W.2d 470, 474 (Tex.Crim.App.1995). Pinkerton v. State, 660 S.W.2d 58, 62 (Tex.Crim.App.1983).

Appellant concedes that the State proved the corpus delicti of aggravated sexual assault; therefore, we need not address whether the corpus delicti for kidnapping was proven so long as the evidence of aggravated sexual assault is otherwise sufficient. Once corpus delicti requirements are satisfied, a confession to the crime is, by itself, sufficient evidence to support a conviction. Fisher v. State, 851 S.W.2d 298, 304 (Tex.Crim.App.1993). Appellant confessed to raping and murdering Bertha Martinez. This confession constitutes sufficient evidence to support the capital murder conviction. See also Muniz v. State, 851 S.W.2d 238, 243-249 (Tex.Crim.App.), cert. denied, 510 U.S. 837, 114 S.Ct. 116, 126 L.Ed.2d 82 (1993). Point of error ten is overruled.

b. Future dangerousness

In point of error eleven, appellant contends that the evidence is insufficient to support the jury's finding of future dangerousness ³ in the punishment phase of the trial. As in questions of guilt, we examine the evidence in the light most favorable to the jury's determination, and we inquire whether any rational jury could have made that determination beyond a reasonable doubt. Matamoros, 901 S.W.2d at 474.

The State offered evidence of appellant's future dangerousness through both character testimony and specific instances of conduct. Appellant's sex offender probation officer testified that appellant repeatedly engaged in inappropriate acts of sexual conduct, including the hoarding of female underwear. In the probation officer's opinion, appellant would continue to commit criminal acts of violence in the future including inappropriate sexual behavior in prison. A jail sergeant testified that appellant collected, in his prison cell, pictures of little girls cut out of newspapers and magazines. The jail sergeant also believed that appellant would be a future danger to society. The opinion of law enforcement officers, derived from their observations of a defendant, about that defendant's character and the likelihood of future violence, is some evidence of future dangerousness. Chambers v. State, 866 S.W.2d 9, 17 (Tex.Crim.App.1993), cert. denied, 511 U.S. 1100, 114 S.Ct. 1871, 128 L.Ed.2d 491 (1994).

Further, a neighbor testified that she saw a hangman's noose on a tree near appellant's house. When she took the noose down, appellant began cursing and screaming and told her that she did not know what she had done to herself. On a subsequent day, appellant and a blond-haired boy exited a car and walked toward the neighbor's children. When they saw the neighbor on her porch, they became startled, ran back to their car, and drove away. As he was driving away, appellant beat the steering wheel, cursing and screaming. The jury could have interpreted appellant's actions as an attempt to take the children for the commission of offenses similar to the one on trial. These events involving the neighbor, while perhaps not alone enough to support a finding of future dangerousness, constitute some evidence in that regard. See Banda v. State, 890 S.W.2d 42, 51 (Tex.Crim.App.1994), cert. denied, --- U.S. ----, 115 S.Ct. 2253, 132 L.Ed.2d 260 (1995) (defendant, convicted of capital murder in the course of aggravated sexual assault and burglary, threw woman up against a wall and tried to kiss her after she rebuffed his sexual advances).

Richard Coons, a psychiatrist, testified that appellant possessed multiple sexual disorders, including pervasive/chronic pedophilia. Coons characterized appellant's sexual drive towards children as "severe" and "including violence." The psychiatrist also diagnosed appellant as having antisocial personality disorder. Coons further characterized appellant as "compulsive, driven, sexually obsessed" and "violent." Appellant exhibited "abnormal sexual behavior and a clear willingness to utilize aggression and violence to accomplish those means." Coons was unable to detect evidence of a conscience within appellant, and the psychiatrist specifically predicted that appellant would engage in violent sexual behavior against males in prison. Psychiatric testimony that a person constitutes a continuing threat to society is, generally, especially persuasive evidence of future dangerousness. Fisher v. State, 851 S.W.2d 298, 304 (Tex.Crim.App.1993).

Perhaps the most significant evidence of future dangerousness is the evidence that appellant participated in another capital murder. In oral confessions, appellant admitted to participating in the 1990 kidnapping, rape, and murder of nine-year-old Nancy Shoemaker in Wichita, Kansas. We have recognized that participation in an offense similar to the one on trial constitutes evidence of future dangerousness. Coleman v. State, 881 S.W.2d 344, 347 (Tex.Crim.App.1994), cert. denied, 513 U.S. 1096, 115 S.Ct. 763, 130 L.Ed.2d 660 (1995). See also Barrientes v. State, 752 S.W.2d 524, 526-527 (Tex.Crim.App.1987), cert. denied, 487 U.S. 1241, 108 S.Ct. 2915, 101 L.Ed.2d 947 (1988). The evidence in the present case is sufficient to show that appellant constitutes a future danger to society. Point of error eleven is overruled.

c. Mitigating circumstances

In point of error twelve, appellant argues that the evidence is insufficient to support the jury's "no" answer to the statutory "Penry " special issue, ⁴ or alternatively, that the inability to conduct meaningful review of the issue renders the capital sentencing scheme unconstitutional under the Eighth Amendment. We have already rejected this type of claim. The "Penry" issue is not subject to appellate review, and the failure to offer meaningful review of the issue does not violate the Eighth Amendment. McFarland v. State, 928 S.W.2d 482, 485-87 (Tex.Crim.App.1996). See also Id. (Keller, J. concurring).

2. Incomplete record?

In point of error thirteen, appellant contends that the record is incomplete through no fault of his own. He claims that volume eight of the statement of facts is missing and that the entire defense exhibit volume is missing. He argues that defense exhibit four is especially important to advancing points of error on appeal. After examining the statement of facts we have located volume eight. The only defense exhibit that was admitted into evidence was defense exhibit four. Pursuant to the State's motion to supplement, the record now includes the original defense exhibit four. Point of error thirteen is overruled.

3. Confessions

a. Voluntariness

In points of error one through six, appellant challenges the voluntariness of his confessions to the murders of Bertha Martinez ("Bertha") and Nancy Shoemaker ("Nancy"). He alleges that the police obtained the confessions in violation of Article 38.21, the Fifth and Fourteenth Amendments to the United States Constitution, and Article I § 10 of the Texas Constitution. He argues that the police took advantage of his mental retardation by using clever psychological techniques, making his confession the product of suggestion. To evaluate this claim, we first review the events leading to and surrounding the confessions.

On April 25, 1991, the police in Wichita, Kansas interviewed appellant in connection with Nancy's murder. The interview lasted one hour and was terminated when appellant requested a lawyer. During the interview, appellant offered an alibi involving Joyce Wacker. The police later learned from Joyce Wacker that the alibi was false. On April 26, appellant contacted the Wichita police and asked that they contact people who would verify that his bus was not running when Nancy disappeared. This communication was apparently an attempt to fabricate another alibi.

During the ensuing investigation, appellant made repeated phone calls to the Exploited and Missing Children's Unit of the Wichita police department. Detective Snyder eventually explained to appellant that he needed to make an appointment if he wanted to talk.

On July 9, appellant was under surveillance by the police. That day, appellant flagged down officers riding in their car, asked for a ride home, and offered the officers cantaloupe to eat. On July 13, appellant told the officers that he could verify that Dwayne...