Manns v. State

• Decision Date: 17 December 2003
• Docket Number: No. 74305.,74305.
• Citation: 122 S.W.3d 171
• Parties: Denard MANNS, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

122 S.W.3d 171

Denard MANNS, Appellant, v. The STATE of Texas.

No. 74305.

Court of Criminal Appeals of Texas.

December 17, 2003.

Bobby Dale Barina, Killeen, for Appellant.

James T. Russell, Assistant District Attorney, Belton, Matthew Paul, State's Attorney, Austin, for State.

OPINION

KELLER, P.J., delivered the opinion of the Court in which MEYERS, PRICE, HOLCOMB and COCHRAN, JJ., joined.

Appellant was convicted in February 2002 of capital murder.¹ Pursuant to the jury's answers to the punishment special issues, the trial judge sentenced appellant to death.² Direct appeal to this Court is automatic.³ Appellant raises six points of error. We shall affirm.

I. FACTUAL SUFFICIENCY—GUILT

In point of error six, appellant contends that the evidence was factually insufficient to support his conviction. Specifically, he contends that the evidence was insufficient to identify him as the perpetrator. He asserts that the evidence consisted of a stain on an item of the victim's clothes, along with an "undated" fingerprint on the barrel of a weapon to which more than one person had access. He also asserts that there was an "original suspect" whose access to the weapon was as much as, or more than, appellant's, and he claims that the jury heard the case in a vacuum— being led by the State to believe appellant was the only possible guilty party. Earlier references in appellant's brief and evidence in the record suggest that appellant's reference to an "original suspect" is to his half-brother, Murray Bamberg.

A. The law

Under the factual sufficiency standard, an appellate court conducts a neutral review of all the evidence, both for and against the jury's verdict, and determines whether "the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof."⁴ The appellate court should reverse only if it determines that a manifest injustice has occurred.⁵

B. The evidence against appellant

The evidence against appellant was much weightier than his brief suggests. There were at least six significant items of evidence tying appellant to the murder: (1) his proximity to the victim, (2) his access to, and fingerprint on, the murder weapon, (3) his DNA on the victim's brassiere, (4) his possession of the victim's jacket, (5) his possession of the victim's ring, and (6) his admission of guilt to a third party.

1. Proximity

Michelle Robson, the victim, was found dead in a bathtub on November 19, 1998. There was no sign of forced entry—indicating that the murderer was likely someone the victim knew. At one time, appellant lived with his half-brother Bamberg and his cousin Eric Williams. Bamberg and Williams lived two doors down from the victim.

2. The murder weapon

The victim suffered five gunshot wounds from a .22 caliber gun. Eric Williams owned a .22. Bamberg and appellant both knew where the gun was kept. Williams often kept the back door to his home unlocked because Bamberg had no key. About 8:30 or 9:00 in the evening on November 18th, Williams found a bullet on the floor in front of his dresser. He called Bamberg, who had no explanation for the bullet's presence. Shortly thereafter, appellant arrived and told Williams that he had been at the residence earlier that day. When Williams learned that the victim had been killed with a .22, he turned his gun over to the police. A firearms expert determined that at least one of the bullets recovered from the victim's body was fired from Williams's gun. The other bullets could not be excluded as having come from the gun. Fingerprint testing of the gun revealed fingerprints from Williams and one fingerprint from appellant. No fingerprints from Bamberg were found on the gun.

3. Appellant's DNA

The victim was found wearing a black brassiere, which had semen stains on it. DNA testing showed that DNA from the semen stains matched appellant's DNA. The probability of another person matching the DNA profile was one in 869,600,000,000 for black persons, and even lower for persons of Caucasian or Hispanic descent.

4. The victim's jacket

On November 19th, appellant went to the residence of friend, Barbara Feazell. He left at the home a jacket, which Feazell later turned over to law enforcement investigators. In one of the pockets was a cigarette butt containing appellant's DNA. Kellie Lynn Meyer, a friend of the victim, identified the jacket as belonging to the victim.

5. The victim's ring

While appellant was at Feazell's, several rings fell out of his pants pocket. One of these rings was turned over to the police. A Von Maur department store receipt showed that the victim purchased a ring with markings consistent with the ring that had been turned over.

6. Confession to a third party

Richard Ray Broome was in the county jail awaiting parole revocation proceedings. He was known by other inmates as a "jail house lawyer," who helped other inmates with legal research and other legal matters. Appellant asked Broome for his opinion about the proceedings connected with this case. Appellant told Broome that the government had a gun with his fingerprint on it. Appellant later clarified that the gun was a .22. He further said the government had the gun that killed a woman but could not prove it because a .22 caliber bullet shatters when it hits the bone. The fact that the murder weapon was a .22 was not published in the media. Later, appellant showed Broome a letter from Bamberg and said, "This is the man that handed me to them on a silver platter after I shot the woman."

C. The evidence in appellant's favor

In his brief, appellant points to no favorable evidence, other than to suggest that Bamberg was the perpetrator. There was some evidence that Bamberg was the original suspect. One could infer that, as appellant's half-brother, Bamberg might have similar DNA. He also had access to the murder weapon and lived near the victim. There was also evidence that Bamberg was a criminal. The letter shown to Broome was apparently written while Bamberg was an inmate in the prison, and Williams referred to Bamberg as a thief.

There is some other evidence, not mentioned in appellant's discussion of this point of error, that might be construed as favorable. Appellant testified at trial that he did not commit the murder. He testified that he obtained the victim's jacket from an acquaintance who committed burglaries in the neighborhood. He testified that he obtained a film canister full of gold jewelry from a drug addict. Though appellant told police that there would be no reason for his fingerprints to be on Williams's gun, he testified that he had taken it away from some of Bamberg's friends who were trying to shoot it. Appellant further testified that he had never been inside the victim's apartment and had never had sex with her.

D. Analysis

Given the above, we cannot find that the evidence supporting conviction was so obviously weak as to render the jury's verdict manifestly unjust. Nor do we find the supporting evidence to be greatly outweighed by contrary proof. The only contrary proof appellant points to is his suggestion that Bamberg committed the crime. But, the evidence linking Bamberg to the crime is rather weak. Although Bamberg also had access to the murder weapon, his fingerprints were not on it. And while Bamberg's DNA might be similar to appellant's (although there was no evidence of that), he is only a half-brother and so half of his DNA would be from a different source. Moreover, Bamberg was not linked to the victim's jacket or ring, and he did not confess to a third party. The evidence was factually sufficient. Point of error six is overruled.

II. BROOME'S TESTIMONY

In point of error one, appellant complains that Broome's testimony violated his Sixth Amendment right to counsel because Broome was a state agent who deliberately elicited appellant's incriminating statements. Because we find that Broome was not an agent of the State when he conversed with appellant about appellant's pending prosecution, we hold that there was no violation of the Sixth Amendment.

A. Factual background

In the 1980's, Broome was on parole for the offense of unauthorized use of a motor vehicle and was arrested for violating that parole. While he was in jail pending revocation proceedings, he obtained information about a murder. In 1992, he testified against the murder defendant, who was sentenced to ninety-nine years in prison. Although Broome had hoped the information he obtained would help him in front of the parole board, his parole was revoked anyway.

Broome was later convicted of possession of methamphetamine and sentenced to twelve years in prison. He was subsequently paroled. On September 2, 1999, Broome was arrested for driving while intoxicated (misdemeanor) and also because of a parole-violation warrant. Broome began negotiating with the District Attorney's office and the Temple Police Department regarding information he claimed to possess regarding drug cases. Billy Curry, an investigator for the District Attorney, helped arrange a meeting between Broome, himself, an assistant district attorney, and members of the Temple Police Organized Crime Unit. Although Broome supplied some information, he was not promised anything.⁶ Nor was he asked to obtain any additional information. The county attorney expressed a willingness to dismiss the DWI case if the parole board would agree not to revoke Broome's parole, but the parole board would not agree.

During February and March of 2000, Broome shared a cell with appellant. In February, Scott Stevens, Broome's attorney, advised the District Attorney's office that Broome had information about appellant's case that might be helpful. Broome was brought to the District Attorney's office on February 24th, and Curry was given the task of taking Broome's statement. Both Curry and Broome testified at trial that Curry made no promises...