Spence v. State

• Citation: 795 S.W.2d 743
• Decision Date: 13 June 1990
• Docket Number: No. 69341,69341
• Parties: David Wayne SPENCE, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 743

795 S.W.2d 743

David Wayne SPENCE, Appellant, v. The STATE of Texas, Appellee.

No. 69341.

Court of Criminal Appeals of Texas En Banc.

June 13, 1990.

L. Hayes Fuller, III, Russell D. Hunt, Waco, (Court Appointed), for appellant.

Vic Feazell, Dist.Atty., R.D. Rucker, Asst.Dist.Atty., Waco, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

PER CURIAM.

David Wayne Spence, appellant herein, was convicted of the offense of capital murder, namely, the capital murder of Jill Montgomery, henceforth Montgomery, one of the victims of the "Lake Waco" murders, while in the course of committing the offense of aggravated kidnapping of Montgomery. See V.T.C.A.Tex.Penal Code, Sec. 19.03(a)(2). After convicting appellant of capital murder, the jury answered the submitted special issues in the affirmative. See Art. 37.071(b)(1) and (2), V.A.C.C.P. Therefore, appellant's punishment was assessed by the trial judge at death. Appeal from the trial court to this Court is automatic. See Art. 37.071(h), V.A.C.C.P. We affirm. ¹

Appellant does not challenge the sufficiency of the evidence at either the guilt or the punishment phase of the trial; therefore, we will dispense with all but the most cursory recitation of the facts and directly address appellant's points of error.

On July 13, 1982, around 8:00 p.m., near dusk, Montgomery and her friends Rice and Kenneth disappeared after going to Koehne Park, which is located on Lake Waco. Their bound and tortured bodies were discovered in the woods of nearby Speegleville Park the next day. All of the bodies had numerous knife wounds which were described by Dr. M.G.F. Gilliland, the pathologist, as "torture wounds." Both females had several human bite marks on their chests and shoulders. Both had been raped. Gilliland testified that all three of the victims died as a result of multiple stab wounds.

Appellant presents thirteen points of error in this appeal: Appellant complains in one point of error that he was not allowed to make an adequate offer of proof at trial for this Court to assess the validity of his pretrial motion to dismiss the indictment. He attacks, in three points of error, the admission of evidence linking him to the crime by a comparison of his dental arrangement with the bite marks left on the female victims. He contends, in two points of error, that he should have been allowed to explain the law of circumstantial evidence to the prospective jurors during voir dire examination. In one point of error, he asserts that he should have been allowed to bring evidence before the jury that tended to show that someone else may have committed the capital murder of Montgomery for which he was charged in this cause. Appellant's remaining seven points of error attack the trial judge's decision to admit several types of testimony, namely: testimony from Daryl Beckham, henceforth Beckham, a witness who had been previously hypnotized; testimony from Jerry Jennings, henceforth Jennings, a witness who allegedly was compensated by the State for his testimony; testimony at the punishment phase of the trial by Lisa Kader, henceforth Kader, a woman who was raped by appellant; and testimony by Dr. James W. Jolliff, henceforth Jolliff, a psychiatrist who testified that appellant was a menace to society. We overrule all of appellant's points of error and affirm his conviction and sentence of death.

In appellant's first point of error ², he maintains that he was not allowed to make a complete offer of proof on his contention that the State improperly delayed his indictment, causing substantial prejudice to his defense.

Appellant's pretrial motion to dismiss the indictment averred that his right to due process of law under the Fifth and Fourteenth Amendments to the United States Constitution was violated by the State's deliberate action of delaying the return of appellant's indictment. The record reflects that at the pretrial hearing to dismiss the indictment, appellant's counsel was not allowed to present testimony or make an offer of proof in order to support his claim. Thus, appellant claims that there was no evidence in the record upon which this Court can review his claim.

The record, however, is now complete. On October 12, 1988, this Court ordered that appellant's appeal be abated and remanded the case to the trial court for a hearing so that appellant could properly, although belatedly, perfect the record on his motion to dismiss the indictment. This Court ordered the trial judge to conduct a hearing on "only that testimony and evidence excluded by the Court at the pretrial hearing to which counsel objected and made a thwarted offer of proof." (Emphasis supplied.) Spence v. State, 758 S.W.2d 597, 600 (Tex.Cr.App.1988). At the hearing on remand appellant asked the questions which he had originally asked at the pretrial hearing, but which he did not receive answers to at that time. Appellant also asked additional questions which were in response to the testimony given at the hearing on remand. At the hearing on remand, however, the trial judge allowed appellant to go into not only those matters which were originally raised at the pretrial hearing but also those reasonably related to them. We find that appellant was given extremely wide latitude by the trial judge in presenting evidence on several issues. The State objected to most of this evidence on the ground of irrelevance, but the trial judge allowed appellant to introduce it as a "bill on the bill."

Appellant now complains, in his first point of error, that he was not even allowed a "bill on the bill" regarding the following: (1) the evidence that was presented to the Grand Jury to obtain the indictment; (2) the dates upon which the District Attorney first obtained such evidence; and (3) the action that was taken against appellant by the District Attorney between the time the evidence was obtained and the time it was presented to the Grand Jury. Appellant also contends that he should have been granted discovery of the Grand Jury testimony and relevant parts of the District Attorney's files. Thus, appellant contends that his attempt to perfect the record to show deliberate, prejudicial, pre-indictment delay was again thwarted. ³

Appellant's complaint before us now is that he was not allowed to make an offer of proof as to the dates that the District Attorney's office obtained the evidence used against him and as to what action was taken between those dates and the date of his indictment, November 21, 1983. We infer from the record that appellant became a suspect around September 9, 1982, or near the time when he was arrested and incarcerated in the McLennan County Jail on an unrelated aggravated sexual assault charge, for which he was convicted and sentenced to serve 90 years in the penitentiary. ⁴ We find that appellant's questions were sufficiently answered at the hearing on remand.

The record reflects that Vic Feazell, henceforth Feazell, who was then the District Attorney for McLennan County, and who was also one of the prosecutors at appellant's trial, testified at the remand hearing. In regard to the investigation and evidence against appellant, Feazell testified that "nobody came with a suitcase and laid it on the library table with the evidence in it. This evidence was gathered bit by bit, piece by piece. There is not a cut off time when evidence was obtained." In response to the question of how long prior to the indictment the evidence which was presented to the Grand Jury was obtained, Feazell replied that he could not specifically recall.

When asked why appellant was not indicted sooner than he was, Feazell said that he waited to present the case to the Grand Jury until he was "ready" and "confident." He also testified that the District Attorney's office worked on the case right up to November 21, 1983, the date the indictment was returned. Feazell was asked: "Once you had obtained all of the evidence which you ultimately presented to the Grand Jury, was there any reason for you not to have the case indicted at that time?", and he responded: "We did have it indicted at that time." Feazell further testified that evidence was being obtained "[u]p to and through trial."

It is clear from the record that the factual circumstances of this case are unique. Appellant, Anthony Melendez, henceforth Anthony, Gilbert Melendez, henceforth Gilbert, who were brothers, and Muneer Deeb, henceforth Deeb, were all indicted in the same Grand Jury proceeding for the capital murders of Montgomery, Rice, and Kenneth. When asked if he had enough evidence to indict one of the defendants before the others, Feazell responded that he believed that he had enough evidence to indict appellant and the Melendez brothers, and, while he was waiting for the Grand Jury to assemble, he gathered enough evidence to seek an indictment against Deeb. Feazell also testified that he could not recall any evidence being obtained in the time period from August 30, 1983, when appellant was transferred from the McLennan County Jail to the penitentiary to commence serving his 90 year sentence on the unrelated aggravated sexual assault case, until November 21, 1983, the date the indictment against appellant was returned by the Grand Jury.

In response to appellant's complaint that he should have been granted discovery of the Grand Jury testimony, raised on remand by a post-trial motion for discovery, the trial judge ruled that he did not believe that he had jurisdiction to rule on the motion, given the wording of this Court's order of remand. The trial judge stated that the testimony "has already been transcribed, and went (sic) up as part of the record in this case, sealed, and it is in the Court of Criminal Appeals in Austin, so I assume that if there was any discovery to be made, it would have to be from the Court of Criminal Appeals."

Appellant also asserts that Feazell should have been instructed to...