Von Byrd v. State

• Decision Date: 12 July 1978
• Docket Number: No. 58385,58385
• Citation: 569 S.W.2d 883
• Parties: Alton VON BYRD, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 883

569 S.W.2d 883

Alton VON BYRD, Appellant, v. The STATE of Texas, Appellee.

No. 58385.

Court of Criminal Appeals of Texas, En Banc.

July 12, 1978.

Rehearing En Banc Denied Sept. 20, 1978.

John W. Mitchell, San Augustine, for appellant.

Bill A. Martin, Dist. Atty., Newton, for the State.

Before the court en banc.

OPINION

ROBERTS, Judge.

This is an appeal from a conviction for capital murder. ¹ The jury answered the special answers prescribed by Article 37.071(b), Vernon's Ann.C.C.P., ² in the affirmative- ; accordingly, punishment was imposed at death.

The appellant contends that: (1) the trial judge abused his discretion by refusing to grant the appellant's motion for change of venue; (2) forty-four prospective jurors were excluded in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); (3) the trial judge erred by refusing to grant the appellant's challenge for cause of prospective juror Harold Brantley; (4) the trial judge erred by granting the State's challenge for cause of prospective juror Winford Bailey; (5) the trial judge erred by refusing the appellant's motion for additional peremptory challenges; (6) the trial judge erred by failing to suppress the appellant's written confession; (7) the evidence was insufficient to support the conviction; (8) the evidence pertaining to special issue No. 2 Article 37.071(b)(2), Vernon's Ann.C.C.P. was insufficient to support the jury's affirmative response thereto; (9) the trial judge erred by refusing to grant the appellant's motion to appoint a psychiatrist, not in the employ of the State of Texas, to examine the appellant; (10) the trial judge failed to sustain the appellant's objection to the testimony of a court-appointed psychiatrist at the punishment stage of the trial; and (11) the trial judge erred by allowing June Yeates to testify at the punishment stage of the trial. We affirm.

The evidence reflects ³ that on the evening of June 5, 1976, the appellant had been drinking and playing pool. Sometime after 2:00 a. m., on June 6, 1976, the appellant stopped by Linda Price's house. The appellant knocked on the front door, and when Price did not answer, the appellant went to a window and knocked and yelled for Price. The appellant went back to the front door and Price, who was dressed in a nightgown and house robe, was standing in the doorway behind the screen door. Price and the appellant talked awhile and then the appellant asked Price for a glass of water and some matches. The appellant sat on Price's front porch and smoked a number of cigarettes while the conversation continued. The conversation eventually focused upon a trip that Price and the appellant's wife had taken to Wichita Falls. ⁴ The appellant was attempting to ascertain whether his wife had gotten pregnant during the trip. Price told the appellant that nothing had happened during the trip. The appellant grabbed Price by the shoulders and "threw her down on the floor" so that she was lying on her back. The appellant again told her that he wanted to know "what happened at Dallas." Price said, "Nothing." The appellant responded, "I ought to f__k you." Price told the appellant, "You do and I'll see you in court." The appellant again told Price that he just wanted to know what happened in Dallas. Price told the appellant it was, "None of your damn business." The appellant then hit Price in the nose or mouth. Price, who was bleeding from the appellant's blow, started crying. The appellant tried to calm Price.

Price then proceeded into the bedroom to get dressed. She went into the bedroom and the appellant stood in the doorway of the bedroom looking towards the front door. Price then pulled a .22 caliber pistol out of a drawer, pointed it at the appellant, and told him to "get the hell out of here." The appellant turned around and Price fired the pistol at him. The appellant lunged for the gun and pushed it away from himself as Price fired a second shot. ⁵ The appellant took the gun away from Price, and he and Price subsequently left the house in the appellant's car.

During the remaining hours of darkness, the appellant and Price drove around the San Augustine area. The appellant stopped his vehicle several times and several acts of sexual intercourse and deviate sexual intercourse occurred. ⁶ The appellant finally stopped in a highly wooded area. The appellant and Price went into the woods. At that point, the appellant told Price that he was going to kill his wife. Price pleaded with him not to kill his wife and the appellant told her that he "was going to tie her up." Price asked how the appellant was going to tie her up since he did not have any rope, and the appellant told her that he had learned a "trick" while he was a Marine. The appellant subsequently had Price lie on the ground with her legs around the base of a tree. He then shot her through the eye with Price's .22 caliber pistol. Price died from the bullet wound. The appellant then fled the scene of the crime.

On Sunday, June 6, 1976, the deceased's mother, Mrs. Lovine Price, attempted to call the deceased. When she was unable to contact the deceased, the deceased's sister, Debbie Price, went to the deceased's house. She knocked on the door, but there was no answer. Debbie Price tried the door and discovered that is was unlocked. She went inside the deceased's house, saw blood on the living room rug and saw the deceased's bed clothes, which also had blood stains on them, lying on the deceased's bed. Debbie Price called her parents, who then proceeded to the deceased's house. Mrs. Price called Officer Tindall of the San Augustine Police Department.

A massive investigation ensued. On June 10, 1976, the appellant gave Officer Tindall consent to search his car. Hair follicles were removed from the vehicle. At trial there was expert testimony that there was a strong probability that some of the hair follicles removed from the appellant's car were from the deceased.

On Friday, June 18, 1976, the appellant was arrested, in connection with an aggravated assault, ⁷ by Officer Cook of the Department of Public Safety. At that time, Officer Cook took the appellant before a magistrate who read the appellant his rights pursuant to Article 15.17, Vernon's Ann.C.C.P., and set the appellant's bail at $15,000. Immediately thereafter, Cook transported the appellant to Nacogdoches for interrogation and a polygraph examination. When they arrived in Nacogdoches, Cook read the appellant his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Approximately five hours after Cook and the appellant had arrived in Nacogdoches, Cook took the appellant to Groveton in connection with a felony theft. When they arrived in Groveton, Cook again informed the appellant of his Miranda rights, and the appellant's bail in connection with the felony theft was set at $5,000. Cook left the appellant in the Trinity County jail in Groveton until Tuesday, June 21, 1976. ⁸

On June 21, 1976, Officer Cook transported the appellant back to San Augustine. On Friday, June 25, 1976, the appellant was interrogated by Officer Tindall. Tindall warned the appellant of his rights under Miranda before any interrogation began. The appellant told Tindall that he wanted to make a statement. Before Tindall would permit the appellant to make a statement, he called Officer Cook. Cook proceeded to the San Augustine jail and read the appellant his Miranda Rights. The appellant then made an oral statement.

Immediately after the appellant made the oral statement, Cook and Tindall had the appellant lead them over the roads which he took during the night of the murder. Before the appellant could lead the officers to the location where he had killed Price, however, darkness set in and the search was discontinued.

The officers arrived back at the San Augustine jail at approximately 10:00 p. m. At that time, Judge Reynolds was summoned to read the appellant his rights pursuant to Article 15.17, Vernon's Ann.C.C.P. At that time, the appellant was informed that he was accused with the offense of murder. Immediately thereafter, the appellant began to make a written confession which set forth the details of the offense. On the following day, June 26, 1976, the appellant led the officers to the body of the deceased. On June 28, 1976, the appellant was officially charged by complaint with the capital murder of the deceased, and at that time the appellant was taken before Judge Seale who read the appellant his rights pursuant to Article 15.17, Vernon's Ann.C.C.P.

The defensive testimony revealed that the appellant and the deceased, who was the appellant's sister-in-law, had, on four prior occasions, engaged in sexual intercourse. The appellant admitted that he killed the deceased, but denied that he kidnapped the deceased from her house on the night in question. Rather, Price allegedly went for a ride with the appellant so that they could continue their discussion. The appellant also sought to demonstrate that his confession was obtained illegally because his arrest on the aggravated assault charge and Officer Cook's actions in transporting him to Nacogdoches and the Trinity County jail in Groveton were a pretext to interrogate him about the murder of the deceased.

The jury returned a verdict finding the appellant guilty of capital murder. At the punishment stage of the trial, the State called three witnesses: June Yeates, Dr. J. A. Hunter and Officer Tindall.

June Yeates testified that in January or February of 1973 the appellant knocked on her door at approximately 1:00 a. m. A discussion ensued and it turned out that the appellant was trying to get away from some people who were looking for him. Yeates eventually allowed the appellant, who was carrying a .22 caliber rifle with him, into her kitchen while she got him a glass of water. While she was getting him the water, Yeates felt the appellant put the...