Mann v. State
| Decision Date | 22 October 1986 |
| Docket Number | No. 69008,69008 |
| Citation | 718 S.W.2d 741 |
| Parties | Fletcher Thomas MANN, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Appellant was convicted of the capital murder of Christopher Lee Bates. The jury answered each special punishment issue 1 in the affirmative, whereupon the court assessed punishment at death. Appellant does not contest the sufficiency of the evidence upon which his conviction is based, nor does he contest the sufficiency of the evidence upon which the jury made their findings concerning the special issues submitted to them pursuant to Art. 37.071, V.A.C.C.P. Appellant asserts eight grounds of error, five of which concern voir dire, two of which allege argument error, and one which concerns an alleged extraneous offense.
A brief recitation of the gruesome facts is necessary to appellant's extraneous offense contention to which we now turn.
On Thursday, September 11, 1980, at about 8:30 p.m., Robert Matzig, Christopher Bates, and Barbara Hoppe were watching a football game on television at an apartment shared by Bates and Matzig in Dallas. At about 9:00 p.m., Matzig answered a knock on the apartment door. Appellant and Martin David Verbrugge pointed pistols at Matzig and entered the apartment. Appellant and Verbrugge bound the arms and legs of Bates and Matzig, forced them to lie on the living room floor, and went through their pockets and wallets, taking money. They ordered Hoppe into the bedroom where they bound her arms and hands. Both appellant and Verbrugge raped Hoppe. Mattzig heard four or five loud slaps coming from the bedroom. Appellant walked out of the bedroom and into the kitchen, where he went through the drawers. He carried a long butcher-type knife back into the bedroom. Matzig heard Hoppe plead with them saying over and over, "No, no, don't do that." Hoppe was strangled and stabbed to death.
Appellant walked out of the bedroom, straddled Matzig, sitting on his back, and pointed a gun in his back. Matzig heard a noise as if the hammer was being pulled back on the gun and he rolled over and pleaded with appellant not to shoot him, saying that he had a couple of thousand dollars in the bank and would cash a check and get the money. Appellant and Verbrugge agreed.
Matzig wrote several checks to be cashed. Appellant and Verbrugge took Bates and Matzig in Matzig's vehicle to several grocery stores to cash the checks. Matzig cashed two of the checks and gave the money to appellant and Verbrugge. Appellant directed them to drive to a secluded area where Bates and Matzig were ordered out of the vehicle. Matzig walked slightly behind Bates. When Matzig saw Bates lying on his stomach and appellant standing over him, Matzig turned and ran back the way they had come. He was shot in the neck and fell to the ground, severely wounded but still alive. Bates was killed by a gunshot to the head. Appellant and Verbrugge left in Matzig's vehicle.
Matzig crawled over a fence toward a cliff below which was a Dallas Bulk Mail Center. He managed to attract a worker's attention and was subsequently rescued.
Appellant and Verbrugge returned to the secluded area where they had shot Bates and Matzig because they were afraid Matzig was not dead. However, they left the scene because the police and ambulance were already there.
Appellant contends that the trial court erred in admitting any testimony about the rape and murder of Hoppe. He argues that even if it were admissible as "res gestae" of the offense, it was still inadmissible because it did not meet the balancing test for admission of extraneous offenses. This test requires the extraneous offense to (1) be relevant to a material issue in the case; and (2) the relevancy value must be more probative than prejudicial. Williams v. State, 662 S.W.2d 344 (Tex.Cr.App.1983). Appellant argues that the testimony was not relevant to prove any element of the offense; there were no disputed issues in the case; and the testimony was highly prejudicial.
Appellant was charged with the capital murder of Bates while in the course of committing and attempting to commit the robbery of Matzig. The rape and murder of Hoppe were part of the entire episode or transaction that led to the murder of Bates. As such, the testimony is part of the context of the offense. When the balancing test is applied, evidence of the context of the offense is almost always admissible under the reasoning that events do not occur in a vacuum and the jury has a right to have the offense placed in its proper setting so that all evidence may be realistically evaluated. See Maddox v. State, 682 S.W.2d 563 (Tex.Cr.App.1985) (Clinton, J. concurring); and Taylor v. State, 420 S.W.2d 601 (Tex.Cr.App. 1967). Rarely will the prejudicial value render inadmissible any evidence that is context of the offense.
In the instant case the testimony about Hoppe allowed the jury to view the offense in the proper setting, the way it actually ocurred. In any case, the unfolding of events and the progression of the crime is necessary to a full picture and understanding of what took place. In a prosecution for capital murder where consideration of the behavior of the defendant is critical, the entire context of the offense showing his actions is vital. The subsequent murder of Bates and the shooting of Matzig are further explained when it is shown that appellant and Verbrugge earlier had murdered their other companion. The testimony was properly admitted. See also Bush v. State, 628 S.W.2d 441 (Tex.Cr.App.1982); Lott v. State, 695 S.W.2d 237 (Tex.App.--Corpus Christi 1985).
In any event, appellant's confession, which was introduced into evidence and read to the jury, told of the rape and murder of Hoppe. Appellant did not object to the introduction of this evidence on the grounds that it contained an extraneous offense. 2 Thus, the same evidence to which appellant objected, pertaining to Hoppe, was properly admitted before the jury when the confession was admitted. See Woolls v. State, 665 S.W.2d 455 (Tex.Cr.App.1983). The ground of error is overruled.
Appellant next complains of argument made by the prosecutor at the guilt-innocence stage of trial. The prosecutor stressed the overwhelming evidence and responded to appellant's argument that the murder of Bates was not "in the course of committing theft." He ended his argument by saying:
We can't bring you any more. If ever there was a capital murder case, you have it here today, and we brought you the evidence to prove it beyond any doubt.
And I ask you to go in there and find Fletcher Thomas Mann guilty of capital murder so we can get on with what this trial is all about.
I thank you for your time and your patience.
Appellant relies on Cherry v. State, 507 S.W.2d 549 (Tex.Cr.App.1974) as clear authority for reversal. In Cherry, supra, the prosecutor argued:
I beleve (sic) that y'all know that the real reason we tried this case was not to determine guilt or innocence, but to determine what kind of punishment that is going to be set on this particular kind of crime."
Although not clear from the opinion, the remarks in Cherry, supra, apparently constitute error because they essentially tell the jury to ignore their duties to decide guilt or innocence and get to punishment because that is the only issue in the case. In the instant case, the remarks are directed mainly to the obvious strength of the prosecutor's case. While similar, we do not think the remark in the instant case is nearly as strong as that in Cherry, supra. Assuming, arguendo, that the remark constitutes error under Cherry, supra, we hold that it is harmless error at best in the instant case, in light of the overwhelming evidence of guilt and in light of the fact that the context of the argument in which the remark was said emphasizes the overwhelming evidence and not the notion of the improper remark. The ground of error is overruled.
This next ground of error also concerns jury argument at the guilt-innocence stage. Appellant argued that the murder was not committed in the course of committing theft. In response, the prosecutor argued:
Mr. Poole over here tells you this man over here shot and killed Christopher Lee Bates. Shot him in the back of the head. But, he says, he didn't rob anybody out there, so you all let him go, let him go on down through those swinging doors and down through the elevator.
Well, if that isn't the most moronic thing I've ever heard. Ridiculous, under the evidence in this case. We have proved the case beyond any doubt. And he says the robbery was over. That's ridiculous.
Under his theory, under his theory, (sic) you go in a 7-Eleven Store, and you put your gun on the clerk, and you say, 'Young lady, give me your money.' And she gives you a dollar bill and you put it in your pocket. And you say, 'Come with me, young lady.'
And then you take this young lady out and you leave the North Dallas area where you--where you robbed her, where you went in the store and confronted her, and you take her out to a wooded area and you rape her and then you kill her, he says that's not robbery/murder.
It's one continuous transaction. It is one offense. The offense never stopped. There is only one assault involved, the assault continuing the whole time. That's exactly what the law is.
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