Marras v. State

• Decision Date: 28 October 1987
• Docket Number: No. 69141,69141
• Citation: 741 S.W.2d 395
• Parties: Marlyn Edward MARRAS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 395

741 S.W.2d 395

Marlyn Edward MARRAS, Appellant, v. The STATE of Texas, Appellee.

No. 69141.

Court of Criminal Appeals of Texas,

En Banc.

Oct. 28, 1987.

Janet Seymour Morrow, (Court-appointed on appeal only), Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., and J. Harvey Hudson, Asst. Dist. Atty., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

CAMPBELL, Judge.

Appeal is taken from a conviction for capital murder. V.T.C.A., Penal Code § 19.03(a)(2). The appellant was convicted of intentionally causing the death of David L. Reed in the course of committing and attempting to commit the offense of aggravated robbery. After finding the appellant guilty, the jury returned affirmative findings to the special issues under Article 37.071, V.A.C.C.P. Punishment was assessed at death. We will reform the punishment to life and affirm.

The appellant raises twelve points of error. He challenges: the sufficiency of the evidence to support the finding that the offense took place during the commission of an aggravated robbery; the trial court's denial of his motion to quash the indictment; the exclusion of one prospective juror; the trial court's refusal to exclude another potential juror; the admission into evidence of a videotaped re-enactment of the events testified to by a prosecution witness; the trial court's refusal to charge the jury on voluntary manslaughter; the trial court's refusal to permit the appellant to submit additional testimony from cross-examination in response to a jury note; the trial court's failure to answer a jury note; the sufficiency of the evidence to support the jury's affirmative finding to special issue number two; and, finally, the effectiveness of the appellant's counsel at the punishment phase of the trial. Since the appellant argues that the evidence is insufficient to support both findings of guilt and future dangerousness, a detailed review of the facts is necessary.

During the guilt/innocence phase of the trial, Larry Flading testified that at about 10:00 p.m. on September 4, 1982, he and his brother met the appellant and another man in the parking lot outside the Blueberry Hill nightclub, located at the corner of Westpark and Gessner. The four men left the parking lot in a car, with the Flading brothers riding in the back seat, the appellant in the passenger seat, and the other man driving. Soon after they left the parking lot, the appellant told his companion that he wanted to return later to rob someone. The brothers parted company with the appellant and his companion at 10:30 p.m., about five miles from the parking lot.

About 11:30 p.m., the victim, Reed, and his companion, Joseph Weaster, left the Blueberry Hill nightclub. Both men were extremely intoxicated. The doorman at the club observed a fight between Weaster and the appellant on the sidewalk outside the club. The appellant yelled at Weaster that he did not like to be called names, hit Weaster twice in the face, and knocked him to the ground. As Weaster lay on the ground, the appellant kicked him in the head with his western boots. At that point, Reed, apparently coming to the aid of his friend, "jumped in the air and kicked and made an adrenaline-type yell." Reed then helped Weaster stand up and appeared to be trying to break up the fight.

Shortly thereafter, Barbara Baum, who was walking along a sidewalk nearby, saw Reed and Weaster approach their car in the parking lot. The appellant stepped off the sidewalk and hurried toward Reed, who was standing on the driver's side of the car. The two exchanged words; Reed raised his hands; then the appellant pointed a gun at Reed's chest and fired one shot.

Reed jumped back, ran around the front of the car to the passenger side, and yelled, "I have had enough." Baum also heard someone say, "That is all I have got." After a few moments, Reed fell to the pavement. Weaster, who was then on the passenger side of the car, turned his pockets inside out. A passing cab driver, John Bernardoni, whose attention was drawn to the scene when he saw a flash and heard the gunfire, saw Weaster fall to his knees. Weaster appeared to give items from his pockets to the appellant and begged the appellant not to hurt him.

The appellant turned and walked toward the corner of a nearby apartment building. There he met briefly with another man before they turned together and walked into the apartment complex. Baum began following the two men through the corridors of the apartment building. She was joined by a Harris County Sheriff's Deputy who had been working at another nightclub nearby when the shooting occurred. Baum informed the deputy that a man had been shot, and she pointed out the appellant as the perpetrator. At the same time, the appellant saw Baum and the deputy, and he and his companion began to run. Baum and the deputy chased the two men, but during the pursuit the appellant and his companion split up. Baum and the deputy then split up, and Baum continued to chase the appellant. When the appellant ran inside a darkened building enclosure, Baum chose not to enter, and she returned to the scene of the shooting.

When Houston police officers arrived at the scene, Baum informed them that she had chased the appellant into the nearby apartment complex. Two officers, accompanied by Baum, retraced the appellant's path, searching the pavement and walkways. Baum saw the appellant lying behind some shrubs in a flower bed and identified him to the officers. The appellant was arrested there with the gun still in his hand.

At the punishment phase of the trial, Larry Flading testified that his "meeting" with the appellant, which he had described in veiled terms at the guilt/innocence phase of the trial, had in fact occurred in the course of the aggravated robbery of Flading and his brother, John, by the appellant and another man, Clifford Zataraus.

At approximately 10:00 p.m. on September 4, 1982, the Flading brothers drove to the parking lot at Westpark and Gessner, intending to go to Rockers, another nightclub in the same area as the Blueberry Hill club. As Larry parked his car, Clifford Zataraus and the appellant began walking across the parking lot toward them. The appellant headed toward the driver's side of the car while Zataraus went toward the passenger side. As John Flading got out of the car, Zataraus said, "This is a robbery. Get in the back seat of the car." At the same time, the appellant put a small pistol to Larry's head and warned, "You heard him." He instructed Larry to get in the back seat and to give him the car keys. The brothers moved into the back seat and handed the appellant the keys to the automobile.

The appellant then walked around to the passenger side of the car while Zataraus moved into the driver's seat. After entering the car on the passenger's side, the appellant pointed the gun at the Flading brothers and said, "This is going to be a robbery. We don't want to make it a murder." Once they were safely out of the parking lot, the appellant turned to Zataraus and said, "That worked out pretty good. We'll have to go back and do it again." As they drove down Gessner, the appellant ordered John and Larry Flading to take out all of their money. As the two men began emptying their pockets, John slipped several credit cards out of his wallet. As he attempted to conceal them in his boot, John watched the two men in front of him, hoping that they would not notice that he was keeping the credit cards from them. Zataraus looked into the rear view mirror and shouted to the appellant, "He's looking at me. Man, he's looking at me. He's trying to identify me." The appellant immediately turned and hit both of the Flading brothers in the face. While Larry sat bleeding from the mouth, Zataraus urged the appellant to go ahead and kill both of the men.

As the two brothers handed over their money, the appellant became angry that they did not have more than about twenty dollars each. Larry told them, "That's all we've got. That's all we've got." Zataraus then said to the appellant, "I bet you he will come up with more money if you blow his friend's head off." The appellant then turned to Zataraus and shouted, "Don't tell me what to do. I'll do what I want." The appellant became so angry that it appeared for a moment that he might shoot Zataraus.

Apparently satisfied that they had taken all the money they could from the brothers, the appellant and Zataraus stopped the car in a dark corner of an apartment complex. The appellant jumped out of the car, and, motioning with the gun, ordered the Flading brothers to get out. John and Larry got out of the car with their hands raised and began to slowly back away. When they drew close to a parked van, John grabbed Larry and pulled him behind the van. They ran into the apartment complex, and eventually found a resident who summoned the police.

In addition to the unadjudicated robbery and aggravated kidnapping of the Flading brothers, the State established that the appellant had been previously convicted of nine felony offenses, including three cases of forgery, two cases of possession of marijuana, two cases of robbery by assault, escape, and burglary of a building with intent to commit aggravated robbery and kidnapping. For these offenses, the appellant was sent to the Texas Department of Corrections four times.

Apart from the evidence of extraneous offenses and prior convictions, the following evidence was adduced at the punishment phase. Two Houston police officers testified that the appellant had a bad reputation for being a peaceable, law-abiding citizen. A third Houston police officer, Sergeant Runnels, testified that he had known the appellant for nine years, off and on, when the appellant was in jail custody. He said the appellant was given a pass to work in the jail during the time he was awaiting trial in this case. Although the jail's policy generally excluded...