Walbey v. State

• Decision Date: 26 June 1996
• Docket Number: No. 71963,71963
• Citation: 926 S.W.2d 307
• Parties: Gaylon George WALBEY, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 307

926 S.W.2d 307

Gaylon George WALBEY, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 71963.

Court of Criminal Appeals of Texas.

June 26, 1996.

Stephen C. Taylor, Galveston, for appellant.

Denise V. Wilkerson, Asst. Dist. Atty., Galveston, Matthew Paul, State's Atty., Austin, for State.

OPINION

MALONEY, Judge.

Appellant, Gaylon George Walbey, Jr., was convicted in July of 1994, of a capital murder committed in May of 1993. TEX. PENAL C ODE A NN. § 19.03(a)(2). Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure art. 37.071 §§ 2(b) and 2(e), the trial judge sentenced appellant to death. Tex.Code Crim. Proc. Ann. art. 37.071 § 2(g). Direct appeal is automatic. Tex.Code Crim. Proc. Ann. art. 37.071 § 2(h).

Appellant raises five points of error, including challenges to the sufficiency of the evidence at both stages of trial. A recitation of the facts is necessary. Looking at the evidence in the light most favorable to the jury's verdict, the record reveals the following facts: On May 4, 1993, the victim and Maria Eliaz, both instructors at Galveston College, spent the day together preparing for the end of the semester. At about 4:50 p.m., the victim left the campus to drive to her home three blocks away, intending to return before 6:00 p.m. for a class. When she arrived at home, she parked her vehicle in front of her house and waved to a neighbor. She entered her home through the back door. A neighbor boy heard the door slam shut, a man yell "shut up" many times, and muffled screaming and banging. Another witness saw a young black male driving away from the victim's house in the victim's car about 7:10 that evening. The victim never returned to campus. At 6:45 p.m., Eliaz left campus and drove to the victim's residence. Not seeing the victim's "turquoise green" Ford Explorer, Eliaz assumed they had missed each other and she went home. When the victim did not appear at work the next morning to administer a final exam, a neighbor was called and asked to check on her. After the back door "just came open" to his touch, the neighbor entered the residence and discovered the victim's body. He summoned the police.

Officer J. Jennings arrived on the scene. He observed blood everywhere and evidence of a struggle. A barbecue fork and a butcher or carving knife protruded from the victim's back. Another knife handle, without the blade, lay by the victim's head. The victim was also noted to have an extension cord wrapped around her neck and little red flecks of what appeared to be paint were observed around her body. In the kitchen, Jennings found two large knives with bloody hand prints on the grip and what appeared to be blood and flesh on the blades. Jennings also found a red fire extinguisher that was missing paint and dented up, and appeared to have blood and hair on it. Shoe prints, palm prints, and fingerprints were embedded in the dust on top of the refrigerator. Jennings further noticed that the hallway overhead light upstairs did not have a light bulb in it. The missing bulb was found in a potted plant on the floor nearby. Next to the plant, the officer discovered a balled-up bloody shirt. Jennings found blood smears on the bathroom door and a pinkish stain in the sink as if blood had been washed down it. In the victim's bedroom, one of the windows had been broken and pieces of the broken glass were stacked in a neat pile against the house on the roof outside. Finally, Jennings noted that the air conditioner was off with no extension cord attached with which to run it. An extension cord capable of running an air conditioner was found downstairs.

Fingerprints on at least one of the knives, the barbecue fork, and the fire extinguisher were later identified as appellant's, as were fingerprints recovered from the broken window in the bedroom, the air conditioner shroud, the top of a CD storage box, a piggy bank, the hall telephone, and the refrigerator. Also, Jennings found evidence that a mask had been cut from a sheet. Further investigation revealed that appellant either waited some time for the victim to return home or lingered a while after the murder, as evidenced by the fact that he smoked at least three cigarettes down to the butt during the time he was in the residence. Appellant was apprehended driving the victim's vehicle. Appellant eventually confessed to the crime.

Additional investigation revealed that appellant bonded one Robert Schreiber out of jail at approximately 10:00 p.m. on May 4, 1993. Schreiber and appellant drove away from the jail in a Ford Explorer. Schreiber testified that the two of them drove around until daylight. Among places they visited, according to Schreiber, was appellant's "mother's" house in Galveston. ¹ Schreiber told the jury that appellant entered the residence through the back door and returned to the vehicle with a stereo, VCR, cable box, and a radio/CD player. After pawning one of the items, appellant and Schreiber returned to the house and appellant retrieved a television and another VCR.

Testimony from a neighbor indicated that appellant had been "lurking" around the victim's backyard within weeks before the offense.

The medical examiner testified that the victim died as a result of massive trauma to the head--probably a combination of a concussion and contusions to the brain and bleeding from massive scalp lacerations. He also observed small flecks of red paint in and under the victim's skin and in her hair. The examiner further noted that the victim had a large cut to the back of the neck, stab wounds to the ears, numerous stab wounds to her back, and bruises and abrasions to her upper back, neck, and hands. One stab wound to the victim's back penetrated the bone to the extent that the knife blade could not be pulled out. A second stab wound to the back went through to the lung. Because of the lack of bleeding around the stab wounds, the medical examiner concluded that the victim was probably dead when she received the stab wounds to her back. He further testified that the victim suffered for at least ten to fifteen minutes as she was beaten about the head and shoulders with the fire extinguisher.

At the punishment phase of trial, the State presented evidence that appellant had acquired a bad reputation by the time he was ten years old. At fourteen, appellant was arrested after fleeing from police at 4:00 a.m., and was found in possession of an illegal butterfly knife and an ice pick. Appellant was a runaway from a Galveston youth center at the time. On April 2, 1993, appellant was arrested in the middle of the night after fleeing from officers in an area that had suffered a recent rash of burglaries. At the time of that arrest, appellant was carrying large bolt cutters and lied to the arresting officer about where he lived. On April 25, 1993, less than two weeks before the instant offense, appellant was caught in a stolen car which contained several items not belonging to the owner, including a pellet gun and burglary tools. The State put on further evidence that appellant would not conform to rules and was not helped by counseling efforts. Evidence was also presented that appellant left his placement at a Houston foster home because he did not like the rules.

One psychologist who testified for appellant admitted that appellant had a possible anti-social personality disorder diagnosis. He noted that appellant's records revealed a history of truancy, lying, stealing, burglary, and vandalism. The expert further testified that a person diagnosed with antisocial personality disorder is more likely to commit future crimes, ² including burglaries, and if surprised during such a burglary would probably again commit the same sort of brutal murder.

Appellant's third point of error states:

The evidence adduced at trial was legally insufficient to sustain appellant's conviction for capital murder, in that the indictment alleged that appellant intentionally caused the death of [the victim] by striking and hitting [the victim] with a deadly weapon, to-wit: a fire extinguisher, when a fire extinguisher is not a deadly weapon per se, and the jury was precluded from answering the special issue as to whether a fire extinguisher was a deadly weapon.

Appellant contends the evidence is insufficient because the jury did not make a stated finding as to the use of a deadly weapon and a fire extinguisher is not a deadly weapon per se.

An "affirmative finding" of the use or exhibition of a deadly weapon is only required under Tex.Code Crim. Proc. Ann. art. 42.12 § 3(g), concerning probation, and Tex.Code Crim. Proc. Ann. art. 42.18 § 8(b)(3), concerning parole. These provisions expressly do not apply to capital cases. Appellant attempts to apply non-capital caselaw to a capital case. ³ Point of error number three is overruled.

In his fifth point of error, appellant posits that the evidence was insufficient to support the jury's affirmative answer to the issue on whether appellant would be a continuing danger. Tex.Code Crim. Proc. Ann. art. 37.071 § 2(b)(1). In reviewing whether the evidence is sufficient to support the jury's affirmative finding on the issue of future dangerousness, this Court looks at the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found beyond a reasonable doubt that appellant would probably commit criminal acts of violence that would constitute a continuing threat to society. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Allridge v. State, 850 S.W.2d 471 (Tex.Crim.App.1991), cert. denied, 510 U.S. 831, 114 S.Ct. 101, 126 L.Ed.2d 68 (1993). The facts of the crime alone can be sufficient to support the affirmative finding to the special issue. Allridge, supra. The circumstances of the crime may provide greater probative evidence of a defendant's probability for committing future acts of violence than any...