Powell v. State

• Decision Date: 08 July 1987
• Docket Number: No. 67630,67630
• Citation: 742 S.W.2d 353
• Parties: David Lee POWELL, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 353

742 S.W.2d 353

David Lee POWELL, Appellant, v. The STATE of Texas, Appellee.

No. 67630.

Court of Criminal Appeals of Texas,

En Banc.

July 8, 1987.

Will Gray, Houston, for appellant.

Ronald Earle, Dist. Atty., Philip A. Nelson, Jr., Asst. Dist. Atty., Austin, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

McCORMICK, Judge.

Appellant was convicted of the capital murder. The jury assessed his punishment at death.

Shortly after midnight on May 18, 1978, Austin police officer Ralph Ablanedo, was on duty. At 12:41 a.m. Polly Bittick, the police radio dispatcher on duty, received a call from Ablanedo requesting a check through the National Criminal Information center (NCIC) on a person named Sheila Margaret Meinert, to determine if she was wanted for any offense. Ablanedo stated that he was in the 900 block of Live Oak Street. He also gave a vehicle identification number (VIN), and asked for a computer check to determine if the vehicle bearing that number was stolen. Bittick called back to advise that the vehicle inquiry was still pending, and that Meinert was not wanted by local authorities. At 12:46 a.m., Ablanedo radioed a request for a check on David Lee Powell, the appellant. Bittick's computer check showed a "possible wanted" on Powell, and she dispatched officer Bruce Mills to assist Ablanedo. This she stated was normal procedure when a computer check determined that a person was a "possible wanted." Ablanedo called back to ask what Bittick had on appellant, and she told him, "... a possible misdemeanor theft." Shortly thereafter, Bittick heard something like a scream over the radio, and then the voice of Mills calling for more patrol units. Mills then advised that he needed an ambulance, and stated there was an officer "down." Mills stated that there was a red Mustang involved, going eastbound, and that the occupants were armed.

Other witnesses who resided in the 900 block of Live Oak Street described seeing a red Mustang automobile stopped in that block, with a police car behind it. The police car had its flashing lights on. A police officer and a female were seen standing between the two cars. Then there was the sound of gunshots, and the Mustang drove rapidly away. Appellant was identified as having been sitting in the back seat of the Mustang as the shots were fired, with another person sitting in the driver's seat. The Mustang stopped further up the street, and appellant moved to the front passenger side.

Officer Joe Villegas heard the radio description of the red Mustang, and concluded that a particular apartment complex nearby on Oltorf Street would be a likely hiding place. Checking the parking lot of the complex with his spotlight, Villegas saw a red Mustang with two occupants. As he pulled into the parking lot, he was met with a hail of automatic weapon fire coming from the right rear of the Mustang. He stopped, jumped out of his car, and returned the fire. Shortly thereafter, he saw a man running in a crouched position from the Mustang, south toward Travis High School. The man turned back and looked at Villegas from a distance of 15 or 20 yards, and Villegas later identified the man as appellant. Appellant disappeared around the corner of the high school.

Sergeant Darrell Gambrell joined Villegas during the firing at the apartment complex and saw a person get out of the Mustang and lie down next to it as the other person was running toward the high school. Gambrell and Officer Tommy Foree reached the person lying down, handcuffed her and searched her for weapons. The person was Sheila Meinert, appellant's companion. Inside the Mustang, the officers found an AK-47 automatic rifle, which was still hot to the touch from recently having been fired. It was later shown that Ablanedo had been shot with a Chinese version of a Russian AK-47 automatic rifle.

Officer Bruce Boardman came upon the apartment complex as the firing was going on. He saw a person with long hair come up and make a throwing motion toward Officer Villegas and those with him. An unexploded hand grenade was later found about ten feet from Villegas' patrol car. The safety pin had been removed. An officer found a pin similar to the type used in such grenades lying on the ground approximately three feet from the passenger door of the Mustang. At dawn appellant was found under a bush at Travis High School by a school patrolman. He offered no resistance.

After the State rested, appellant raised the defense of insanity at the time of the offense. See V.T.C.A., Penal Code, Section 8.01. His evidence on this issue came chiefly from Dr. Emanuel Tenay, a psychiatrist. Dr. Tenay testified that he had conducted lengthy interviews with appellant, members of his family, and his friends and acquaintances, and had reviewed a sizeable amount of appellant's personal writings. In Tenay's opinion, appellant had been insane on May 18, 1978, at the time officer Ablanedo was shot and killed. He believed that on that occasion appellant was suffering from paranoid schizophrenia, a form of psychosis. Dr. Tenay believed that this condition was largely the result of prolonged use of psychoactive drugs such as amphetamine and methamphetamine. There was other evidence that appellant had been heavily involved in the sale and perhaps manufacture of amphetamines, or "speed."

The State sought to rebut this defensive theory through the testimony of Dr. Richard Coons, a psychiatrist, and Dr. George Parker, a psychologist. Dr. Coons met with and examined appellant on four occasions: on May 18, 1978, some 12 hours after the shooting, and again on May 23, May 29 and June 4, 1978. The first meeting occurred pursuant to an order signed by the trial court on the morning of the shooting. This order provided that appellant undergo examination and testing by Dr. Coons and a practicing psychologist of his choice to determine appellant's competency to stand trial and sanity at the time of the alleged offense. This order was made upon the motion of the State. Dr. Coons testified that based on his several examinations of appellant, there was no indication that appellant had been insane on May 18, 1978. He specifically disclaimed having observed any evidence that appellant was suffering from paranoid schizophrenia.

Dr. George Parker, a clinical psychologist practicing in Austin, testified that he had met with appellant on June 25 and July 2, 1978, at the Travis County jail. Each meeting lasted two to two and a half hours. He administered several standardized psychological tests to appellant, to determine intelligence, to detect the presence of any organic neurological disorders, and to examine personality functions. He was able to detect no organic difficulties. He found appellant to be very intelligent and articulate, with an IQ of 128. He characterized appellant's personality as impulsive, high-energy, rebellious, non-conforming, immature and somewhat egocentric. He stated the opinion that on May 18, 1978, appellant had been sane under Texas law, and that the testing showed no indication of paranoid schizophrenia. The jury's verdict at the guilt stage of the trial obviously indicates that it found the State's evidence more persuasive on the insanity issue.

At the penalty stage of the trial the State put on evidence that in January 1978, after having been evicted from an apartment for nonpayment of rent and having had the personal property therein impounded in December of 1977 by the landlord, George Sandlin, appellant had broken into Sandlin's storage facility to remove his belongings. Lee Ramos, a maintenance employee who was driving a Sandlin truck, happened upon this apparent burglary and stopped his truck. Appellant advanced upon him with a knife, and when Ramos fled in his truck, appellant chased him all the way home and then tried to get him to come outside. Ramos declined.

Also admitted as punishment evidence was testimony that a search of appellant's house the day after the shooting revealed a hand grenade, two cannisters of ether, a box of .45 caliber ammunition, a box of 7.62 mm Russian ammunition, and a set of die used in processing ammunition for an AK-47 Russian automatic rifle. Also found in the kitchen and seized were various beakers, chemicals and paraphernalia. A photograph of these items as they appeared in the kitchen was admitted into evidence. The police conducting the search also seized three small vials containing methamphetamine, with a total weight of approximately one gram.

Drs. Coon and Parker were called by the State and permitted, over objection, to testify on the issue of future dangerousness based on their examinations, interviews and testings of appellant. Both testified that in their opinion there was a "high" probability appellant would commit future acts of violence that would constitute a continuing threat to society.

Appellant called Ronnie Earle, the Travis County district attorney, who testified that appellant through his counsel had volunteered the information that there was a hand grenade in his house. Edith Roberts, one of appellant's counsel, also testified to the voluntary surrender of the grenade.

In his first point of error appellant complains that prospective juror Catherine Simmons was improperly excused for cause in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980). Since appellant failed to object to the exclusion for cause of prospective juror Simmons, error, if any, has been waived. Modden v. State, 721 S.W.2d 859 (Tex.Cr.App.1986); Mann v. State, 718 S.W.2d 741 (Tex.Cr.App.1986); Stewart v. State, 686 S.W.2d 118 (Tex.Cr.App.1984).

In his second point of error appellant contends that Dr. Coons and Dr. Parker were improperly permitted by the court, over objection, to testify for the State at the penalty stage of the trial and to express their...