Lucas v. State

• Decision Date: 22 March 1989
• Docket Number: No. 69325,69325
• Parties: Henry Lee LUCAS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 35

791 S.W.2d 35

Henry Lee LUCAS, Appellant, v. The STATE of Texas, Appellee.

No. 69325.

Court of Criminal Appeals of Texas,

En Banc.

March 22, 1989.

Rehearing Denied June 27, 1990.

Arvel (Rod) Ponton, III, El Paso, for appellant.

Ken Anderson, Dist. Atty., Georgetown, Walter C. Prentice, of counsel, Austin, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

W.C. DAVIS, Judge.

Appeal is taken from a conviction for capital murder. V.T.C.A. Penal Code, § 19.03(a)(2). After a change in venue from Williamson to Tom Green County, appellant was tried and convicted for the murder-rape of an unidentified woman whose nude body was discovered next to a culvert near Interstate 35 north of Georgetown. The jury returned affirmative answers to the first two special issues under Art. 37.071(b), V.A.C.C.P., and punishment was assessed at death. This direct appeal followed.

On appeal, appellant raises eighteen points of error, fourteen of which encompass claims regarding the admissibility of six aural and visual statements made by appellant to law enforcement officials between June of 1983 and February of 1984. In four other points, appellant challenges the admission of prior convictions for impeachment purposes against a defense alibi witness, the admission of extraneous offenses against appellant, the refusal of the trial court to instruct the jury on the voluntariness of appellant's confessions and the trial court's refusal to submit appellant's requested charge on Art. 37.071(b)(3), V.A.C.C.P. Appellant does not challenge the sufficiency of evidence to support the jury's verdict or answers to the special issues submitted at the penalty phase of trial. However, a recitation of pertinent facts will be helpful to disposition of the case.

The record reflects that on October 31, 1979, a motorist was driving in a northerly direction on the west service road of Interstate 35 north of Georgetown and south of the Walburg exit when he discovered the nude body of a young woman lying at the foot of a culvert located between the access road and the highway. He immediately drove to a gas station and telephoned the Williamson County Sheriff's Department. Shortly thereafter, various state and county law enforcement officials arrived at the scene and began the investigation.

Both physical and identification evidence was scarce. The body of the victim was unclothed except for a pair of orange socks. The only other physical evidence discovered in the area was a homemade sanitary napkin, two matchbook covers and an abalone shell ring on the victim's right hand. Lab tests were conducted on the above-mentioned articles as well as on fingernail clippings, pubic hair samples and particle samples from the woman's eye, with little result. Testing of the sanitary napkin revealed human blood of an unknown type. One of the matchbook covers from a motel in Oklahoma, contained unidentified writing. The fingernail clippings were found to include certain red and blue fibers but no trace of human skin. Tests run on the hair and particle samples were inconclusive. The abalone ring was misplaced somewhere between the time it was delivered to the Department of Public Safety Laboratory in Austin and the time of trial. Finally, unsuccessful attempts were made through fingerprint and physical description analysis to identify the victim and her assailant.

Travis County Medical Examiner Roberto Bayardo performed the post-mortem examination on the body. The forensic pathologist testified the cause of death was "asphyxia due to manual strangulation", marked by "purple cyanotic lividity of the head, neck and upper cheek" caused by ecchymosis, or the rupturing of the capillary vessels or petechiae. Death occurred ultimately from the carotid arteries being cut off, causing asphyxiation. Based upon the contents of the victim's stomach, Dr. Bayardo said the woman was killed between one and three hours after eating. Judged by the level of rigor mortis in the body, Bayardo thought the woman to have been dead between six and thirty-six hours before the autopsy was performed, and approximately twelve hours before the body was discovered. Forensic investigation did not yield an identification of the victim. In fact, the identity of the woman was still unknown at the time of trial.

On June 11, 1983, appellant was arrested in Montague County on the charge of unlawful possession of a firearm by a felon. See V.T.C.A. Penal Code, § 46.05. ¹ While in the Montague County Jail, appellant sent word through a jailor that he wished to speak with W.F. Conway, sheriff of Montague County. Conway and Texas Ranger Phil Ryan met and talked with appellant, and received a handwritten statement appellant had previously made in which he confessed to multiple murders, including that of a Ringo, Texas, woman. After discussing the murder, appellant agreed to have a statement taken regarding that killing. During this conversation appellant also admitted murdering his common-law wife, Becky Powell. Although the instant offense was not discussed at this time, Sheriff Conway was aware of similar unsolved crimes in the Williamson County area and contacted Sheriff Jim Boutwell in Georgetown.

On June 22, 1983, Boutwell spoke with appellant for the first time. After being warned of his rights, ² appellant agreed to talk with the sheriff. With appellant's knowledge the conversation was recorded. Prior to finishing the tape-recorded conversation, Boutwell wrote out a statement regarding the instant murder which appellant signed. The statement referred to appellant having picked up a female hitchhiker in Oklahoma, having sex with her at some unidentified off-the-road area before strangling her, having sex with the corpse at a later point in time, then dragging the body out of the car and dropping it into a culvert "somewhere on I-35, southbound toward San Antonio...."

Boutwell testified he took the next statement from appellant on July 31, 1983, when he returned to Montague County with a bench warrant for appellant from Williamson County. On that date, appellant gave the sheriff a drawing he had made of the victim and related more details of the crime. Appellant was again warned of his Miranda rights and agreed to the tape-recorded interview, saying he was not interested in talking to a lawyer but did wish to talk more with the sheriff. Boutwell drove appellant to the Williamson County Jail the following day.

On August 2, 1983, two video-taped interviews with appellant were made; one at the scene where the victim's body was discovered and one at the Williamson County Sheriff's Offices. Appellant was given Miranda warnings at the start of each interview and his attorney was present at both interviews. In addition to the standard warnings given a criminal defendant at such times, appellant was also warned that his statement could lead to more serious charges being filed against him.

In the first, or road-side video, a handcuffed appellant is seen standing off the road near a guard-rail, behind which the ground slopes downward to a culvert running underneath Interstate 35. Appellant was warned by both the sheriff and his own defense attorney of the possible consequences of making a statement. His attorney uncategorically expressed his professional displeasure at appellant's cooperative conduct and warned appellant that any statement could lead to more serious charges being filed against him. ³ Appellant identified a picture of the victim and gave a descriptive statement regarding the events leading up to the killing. Following the pattern of his earlier written statement regarding the matter, appellant supplied more details of the incident. After having sex with the woman but not being "satisfied", appellant said he told the victim he wanted more sex but was refused. The woman then attempted to jump out of the car but her efforts were thwarted when appellant grabbed her. The two fought, almost causing an accident. Appellant then pulled the car over to the side of the road, strangled the woman, put her body in the back seat and drove further south on I35. Later, he again pulled over to the side of the road and copulated with the victim's corpse. When asked about his conduct after the victim resisted his advances appellant stated that he had already made up his mind to kill the young woman, and that he "preferred sex after death anyway."

A short while later, a second video-taped statement was taken at Boutwell's office in Georgetown. As with the road-side video, appellant was given his Miranda rights by the sheriff and warned against making any statement by his defense counsel. In response to counsel's warning, appellant merely stated, "It's the only way I'll get peace of mind. If they kill me they kill me."

As in the earlier video statement, Boutwell questioned appellant regarding the circumstances leading up to the murder. Appellant's story was consistent with his earlier statements. He told how he struggled with the victim after she refused to have sex with him, how he had to stop the car because of the struggle, how he then killed her, put her in the rear seat of the automobile and had sex with her corpse, and how he then drove south on the highway to the area north of Georgetown where he dumped the woman's body into the culvert.

Sheriff Boutwell testified he took yet another statement from appellant on November 10, 1983, as he drove appellant from the county jail facility in Denton to the Williamson County lockup. ⁴ In this audio recording appellant said he had been in the habit of paying a foreman on a Florida roofing job to mark him present on the job site when he was, in fact, absent.

The last statement taken from appellant and played in severely edited form before the jury was a videotaped interview conducted on February 16, 1984, in Williamson County Jail. The particular statements allowed before the jury related to appellant's...