Sterling v. State

• Decision Date: 09 May 1990
• Docket Number: No. 69484,69484
• Citation: 800 S.W.2d 513
• Parties: Terry N. STERLING, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 513

800 S.W.2d 513

Terry N. STERLING, Appellant, v. The STATE of Texas, Appellee.

No. 69484.

Court of Criminal Appeals of Texas En Banc.

May 9, 1990.

Rehearing Overruled Dec. 19, 1990.

Nevill Manning (court appointed), Lubbock, Thomas E. Tollett (court appointed), Littlefield, Charles E. Benson, on appeal only, Lubbock, for appellant.

Curtis R. Wilkinson, County Atty., & Margaret R. Ingle, Asst. County Atty., Littlefield, Robert Huttash, State's Atty., Austin, for State.

Before the court en banc.

OPINION

WHITE, Judge.

This is an appeal from a conviction for capital murder, specifically murder in the course of committing or attempting to commit aggravated sexual assault. See V.T.C.A., Penal Code Sec. 19.03(a)(2). Appellant was sentenced to death. He brings four points of error on appeal. After due consideration of appellant's claims, we affirm the judgment of the trial court.

Although appellant has not raised a sufficiency of the evidence claim, a brief review of the facts is in order. Della M. Thomas was an eighty year old widow who lived alone in Amherst, Texas. On July 30, 1984, she and her sister Annie M. Brown made plans to go to Lubbock the next day to visit sick relatives. On the morning of July 31, Thomas failed to show up at Brown's house as planned and Brown was unable to reach Thomas by phone. Brown proceeded to her sister's house to see what had gone wrong.

When Brown arrived, Thomas' garage door was up, as it usually was during the day. However, the door from the garage into the kitchen was unlatched, which was highly unusual. Brown stepped into the kitchen and called for her sister. Receiving no reply, she began to search the house. When she reached Thomas' bedroom, she found Thomas' body unclothed from the waist down, sprawled across the bed. Thomas's dentures, which she always wore when she slept, were strewn on the nearby floor. An apparent struggle between Thomas and her assailant had bloodied the area. Wounds had been inflicted on Thomas' face, the middle of her back, her neck, her hands, and her arms; there were approximately twenty-three stab wounds to her chest alone. The immediate cause of death was later determined to have been a knife blow through the heart. Physical evidence also indicated that Thomas had been raped during the attack.

After discovering her sister's body, Brown immediately called Dr. J.W. Chatwell, Thomas' physician and nearby neighbor. He quickly summoned an ambulance, and left the local hospital to assist at the scene. Law enforcement personnel and a Justice of the Peace also were summoned. All witnesses including Brown testified that nothing appeared to be out of place or missing from the house. A slash was discovered in the screen door leading from the garage to the kitchen, and a fingerprint, later identified as appellant's, was found on the door.

Law enforcement officials traced a knife found underneath Thomas' body to Roberta Cantu, appellant's great-grandmother, with whom he lived. The only other members of the household were Cantu's aged husband and appellant's younger brother Michael, who was eleven at that time. Cantu identified the knife as hers, stating that she had been using it the night before in the kitchen and that it had been missing all day. She testified that appellant had not been home the night before when she went to bed, but that he had been there when she had arisen that morning.

A warrant was then issued for appellant's arrest. Late on the afternoon of July 31, DPS Trooper Larry Northcutt spotted appellant in a field northeast of Amherst. Northcutt arrested appellant and took him to a nearby abandoned house in order to release him into the custody of Lamb County Sheriff's Deputy Livingston and Texas Ranger Jackie Peoples, who had also been engaged in the search for appellant. When Ranger Peoples assumed custody at the house, he read appellant his Miranda rights. Appellant indicated that he understood his rights. He was then taken to the Lamb County Jail in Littlefield.

At the jail, Officer Peoples interviewed appellant and obtained a signed, written confession which will hereinafter be referred to as the "Peoples confession" or the "first confession." Other officers were present at the beginning of the interview, including Deputy Livingston, who once again informed appellant of his rights pursuant to Miranda and Art. 38.22, V.A.C.C.P. However, these officers soon left Ranger Peoples alone with appellant. Ranger Peoples testified that he then told appellant that "they might go easy" on him if he made a statement and that a statement could be used "for or against" him. The ranger also told appellant that he faced a possible penalty of five to ninety-nine years in prison, life imprisonment, or the death penalty. At the time, appellant had been charged with murder, but the possibility of capital murder was still being investigated. Appellant said that he understood everything the ranger was telling him. At no time did he ask to speak to a lawyer or to have a lawyer appointed for him. The substance of appellant's confession resulting from this interview was as follows:

"State of Texas, County of Lamb, I, Terry Nash Sterling, have been first duly warned by Jackie Peoples, Texas Ranger, at 7:10 p.m. on the 31st day of July, 1984, at Sheriff's Department in Littlefield", Texas, of the following rights. Number one, I have the right to remain silent and not make any statement at all and that any statement I make may be used against me at my trial; Number two, Any statement I make may be used as evidence against me in court; Number three, I have the right to have a lawyer present to advise me prior to and during any questioning; Number four, If I am unable to employ a lawyer, I have the right to have a lawyer appointed to advise me prior to and during any questioning; and, Number five, I have the right to terminate the interview at any time.

I have read the above rights and have had the same explained to me and do knowingly, intelligently, and voluntarily waive the rights as set out above. I do hereby freely and voluntarily, without being induced by any compulsion, threats, promises or persuasion, make the following statement in writing:

My name is Terry Nash Sterling, and I am twenty-five years of age. I was born in Amherst, Texas, and at present, I consider the following address my home, 109 Washington Street, Amherst, Texas;

T.S. Henry Miles and I were together in Amherst and then went to the Stan Simmons farm and cut some posts. We left the farm and mixed some Seagram Seven and coke and drove to Sudan. We went to Dale Ray Jefferson's house in Sudan. We then rode around for a long time in Sudan and Dale Ray was with us. We were still drinking. We then decided to go home and stopped at Allsups in Sudan and bought something to eat. We then went to Amherst and Henry took me home and he drove away. This was about 2:30 a.m.

I went to bed and tried to go to sleep but the bed got to spinning. I got up and went o-t (sic) bathroom and to the kitchen and got a drink of water. I tried to go back to sleep and couldn't, so I got back up and went outside. I went back into the house and got the kitchen knife. I believe it was white. I went back outside and started walking.

I walked on Washington Street and started back home. Something told me to go home but I went to the next street. As I was walking back, I looked at this house and the garage door was open. I walked into the garage and cut the screen door and unlocked it. The inner door was unlocked and I walked in. I walked into the living area and down the hall. There were no lights on in the house.

I walked into the bedroom. Down beside the bed next to the windows, the lady was in the bed and I cut her. She fought me a little bit. I don't remember how many times I cut her. She was on the floor and I put her back in the bed. I had sex with her and then left and went home.

I burned my shirt and pants, washed my socks and shoes, and left my underwear on. T.S.

I have read this statement consisting of one page, each of which bears my signature, and I affirm that all the facts and statements contained herein are true and correct. I further affirm that I knowingly, intelligently, and voluntarily waived the above rights prior to and during the making of this statement.

Witness my hand this 31st day of July, A.D. 1984, at 7:10 p.m. Signed Terry M. (sic) Sterling.

Witnesses: Peggy B. Hayes, signed, Jackie Peoples signed.

After he made this statement, appellant was returned to his jail cell.

Early in the morning of the next day, August 1, 1984, appellant was taken before Justice of the Peace Cox for the standard magisterial appearance. Again, he was warned of his Miranda and 38.22 rights (this was at least the third time he was correctly warned of his rights). Appellant initialed the Judge's form indicating that he understood his rights; again, he made no request of any kind for counsel.

After appellant had eaten breakfast and lunch, he was taken before Lamb County Sheriff McNeese for questioning. Before this interview, appellant was again correctly warned of his rights (a fourth time) by Deputy Livingston. Sheriff McNeese then obtained a written waiver of rights from appellant, and a second written confession, (the "McNeese Confession" or the "second confession.") The Sheriff testified that he made appellant no promises of any kind in exchange for this confession, that he did not discuss the first confession with appellant, and that his motive for seeking a second confession was to get a more detailed story. The Sheriff's testimony indicated that he knew nothing about Ranger Peoples' earlier statements to the effect that "they might go easy" on appellant if he talked or that a statement could be used "for or against" appellant. Before appellant signed his second confession, he initialed each of the written Miranda warnings, indicating that he understood them. The substance of appel...