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Danny Paul BIBLE
Classification: Murderer
Characteristics: Serial
rapist
Number of victims: 4
Date of murders: May 27, 1979 / May 1983
Date
of arrest: January
1984
Date of birth:
August 28,
1951
Victim profile: Inez Denton /
His sister-in-law, Tracy Powers, her 4-month-old son, Justin, and her
roommate, Pamela Hudgins
Method of murder: Stabbing
with an ice pick
/ Stabbing
with knife
Location: Texas, USA
Status: Sentenced to death on July 17, 2003
Name
TDCJ
Number
Date
of Birth
Bible, Danny Paul
999455
08/28/1951
Date
Received
Age (when Received)
Education Level
07/17/2003
51
12
Date
of Offense
Age (at the Offense)
County
05/27/1979
27
Harris
Race
Gender
Hair
Color
White
Male
Gray
Height
Weight
Eye
Color
05'07"
194
Blue
Native
County
Native
State
Prior
Occupation
Brazoria
Texas
Warehouseman, Electrician, Laborer
Prior
Prison Record
#381513 on a 25 year sentence from
Palo Pinto County 1 count of murder.
Summary of incident
On 05/27/1979, in Harris County,
Bible attacked and sexually assaulted a white female that came
to his residence to use the phone. Bible then stabbed the
victim multiple times, resulting in her death.
Co-defendants
None
Race
and Gender of Victim
White/Female
Man admits to killing 4 in Texas, officials say
Suspect in Louisiana rape already served time for 1983 slaying in
Mineral Wells
December
30, 1998
HOUSTON - A man being held in Louisiana on rape charges has signed a
statement concerning four Texas slayings dating to 1979, including the
icepick killing of a Harris County woman, authorities say.
Danny Paul Bible, 47, confessed to the slayings after being jailed in
Louisiana in the Nov. 8 rape of a woman there, West Baton Rouge Parish
sheriff's detective Randall Walker told the Houston Chronicle for
Tuesday editions.
He reportedly also confessed to killing a woman, her baby and her
roommate 15 years ago in Mineral Wells. Mr. Bible has already served a
prison term for one of those deaths, following a guilty plea in 1984.
"Danny's telling us all about things that happened in Texas,"
Mr. Walker said. "We can put him in 20-something states since he
was paroled [about 1993], so there's no telling what we've got here.
"A serial killer can't kill three or four people and then just quit."
The killings to which Mr. Bible allegedly admits include the May 1979
slaying of Inez Denton, a north Harris County woman who was stabbed
repeatedly in the chest and back with an ice pick and raped.
Harris County sheriff's detectives traveled to Port Allen, La., Tuesday
to discuss the case, Capt. Don McWilliams said.
"They're going to meet with the local law enforcement people and
see if Bible will talk to them," Capt. McWilliams said, adding,
"It's just speculation at this point, and we wouldn't want to
create false hope. This guy is basically an unknown to us at this point."
Mr. Walker said that Mr. Bible also confessed to the May 1983 slayings
of his sister-in-law, Tracy Powers, her 4-month-old son, Justin, and her
roommate, Pamela Hudgins.
The skeletal remains of Ms. Powers and her baby were found the following
month, hidden beneath a cattle guard about halfway between Mineral Wells
and Weatherford. Their cause of death was not determined.
Ms. Hudgins' body was found in a wooded area in Mineral Wells that
November. She had suffered trauma to the head.
Mr. Bible was arrested in January 1984 in Fort Myers, Fla. He later
pleaded guilty to the Hudgins murder and was sentenced to 25 years in
prison. He also pleaded guilty to aggravated kidnapping in a Montana
case and got 20 years. The sentences were served concurrently, and Mr.
Bible was paroled after serving nine years.
Palo Pinto County Sheriff Larry Watson, who investigated the North Texas
murders, told KXAS-TV (Channel 5) that Mr. Bible "is your typical
serial killer."
But Mr. Bible's sister, Cathy Maples, told Houston television station
KPRC she thinks her brother is innocent.
"I feel like my brother did not do any crime, that he didn't do
anything wrong," she said. "I know it in my heart that he
didn't."
Mr. Bible's cousin feels differently.
Wynona Bible, who was friends with Ms. Denton, said her friend was last
reported seen alive after going to her grandmother's house to use the
phone. Mr. Bible was there, and she says she has always suspected him.
"I remember that day like it was yesterday," she said.
Mr. Walker, the Louisiana detective, says Mr. Bible has gone over each
of the four killings thoroughly and confessed to each one, including the
one he'd served time for.
"I think we'll get more in the long run," he said.
In the Court of Criminal Appeals of Texas
No. AP-74,713
Danny Paul Bible, Appellant v.
The State of Texas
On Direct Appeal from Harris County
Keller, P.J.,
delivered the opinion of the Court in which MEYERS, WOMACK, JOHNSON,
KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., joined. PRICE, J., concurred
in the result.
O P I N I O N
Appellant was convicted in June 2003 of a capital murder
(1)
committed in May 1979. Pursuant to the jury's answers to the special
issues set forth in Texas Code of Criminal Procedure, Articles 37.0711
§§3(b) and 3(e), the trial judge sentenced appellant to death.
(2) Direct appeal to
this Court is automatic.
(3)
Appellant raises fourteen points of error and two supplemental points of
error. We shall affirm.
I. CONFESSION
A. Admissibility
1. The parties' contentions
In points of error one through four, argued together, appellant contends
that four tape-recorded statements obtained in Louisiana were admitted
into evidence in violation of Article 38.22.
(4) Specifically, he
contends that Louisiana law enforcement officers failed to give some of
the warnings required by the statute. Appellant contends that the
warnings were deficient because they specified that his statements could
be used against him in "court" but did not specify that the statements
could be used against him at "trial."
(5) During oral
argument, defense counsel also contended that, while the Louisiana
warnings explained the accused's right to have counsel present during
questioning, they did not explain that the defendant also had a right to
consult an attorney "prior to" questioning.
(6) Appellant further
argues that the set of warnings given in connection with one of the
recorded statements (State's Exhibit 4) was even more deficient,
omitting several other warnings required by the statute.
Relying upon Davidson v.
State,
(7) appellant argues
that Texas law applies to these statements taken in Louisiana and,
therefore, they should have been excluded. Appellant points out that,
although the Legislature amended the law to supercede Davidson,
(8) the amendment
applied only to statements taken after September 1, 2001, and therefore,
does not apply to the present case.
(9)
In two supplemental points of error, appellant contends that State's
Exhibit 4 was also inadmissible under Louisiana law because the
recording for that statement did not contain all the warnings required
by Miranda v. Arizona.
(10)
Although appellant states
early in his discussion that "[t]hese tape recorded statements
constituted the most incriminating evidence at the guilt phase of trial
and at the punishment phase," he presents a harm analysis with regard to
only three of the four statements, omitting any discussion of harm as to
the recorded confession to the primary offense. Appellant concludes the
discussion of both his original and his supplemental points with a
request to remand the case for a new punishment hearing.
(11)
The State argues that the
warnings given in Louisiana were the "fully effective equivalent"
(12)
of the warnings required by Article 38.22. The State contends in the
alternative that the admissibility of the recorded statements should be
governed by Louisiana law and that Davidson should not be
applied to circumstances of the present case.
2. Background
On May 27, 1979, the partially clad body of Inez Deaton was
discovered in a field in Houston. She had been sexually assaulted and
murdered. The case remained unsolved until December 18, 1998, when
appellant confessed to a detective in Louisiana that he had committed
this offense. The circumstance that led to appellant's confession was
his arrest in West Baton Rouge Parish in Louisiana for an aggravated
rape.
(13) On December 16,
1998, Detective Randall Walker, of the West Baton Rouge Parish Sheriff's
Office, questioned appellant about the Louisiana offense. Appellant gave
a tape-recorded statement confessing to that offense (State's Exhibit
2).
(14)
The next two tape-recorded
statements were obtained on December 18, pursuant to questioning by
Detective Walker and Louisiana Trooper Joe Whitmore. Both officers were
present during interrogation throughout the day, but Detective Walker
conducted the questioning in the morning and during the first tape-recorded
session while Trooper Whitmore asked questions during the second tape-recorded
session. The morning (unrecorded) session of the interview began at 9:50
a.m. The first tape-recorded session began at 1:40 p.m. and resulted in
a tape-recorded confession to the present offense, the aggravated rape
and murder of Deaton (State's Exhibit 3A).
(15)
The second tape-recorded session began sometime in the afternoon,
probably no later than 4:10 p.m. and perhaps earlier,
(16) and resulted in a
tape-recorded confession to the murders of three people in Palo Pinto
County (State's Exhibit 4). The last tape-recorded statement that is the
subject of appellant's complaints was made on January 6, 1999, and
contained confessions to numerous aggravated sexual assault offenses
against appellant's five young nieces in San Jacinto County (State's
Exhibit 5).
Before each of the
interviews during which the tape-recorded statements were obtained,
the following form from the West Baton Rouge County Sheriff's office
was read to appellant:
(17)
Warning:
Before you can be questioned
concerning the alleged offense(s), you must understand and waive your
constitutional rights. If you do not understand them, or do not waive
them, you cannot be asked any questions concerning the offense(s).
1. You have the right to
remain silent.
2. If you give up the right
to remain silent:
A) Anything you say can and
will be used against you in court.
B) You have the right to get
advice from a lawyer and to have a lawyer with
you during your interview.
C) If you want a lawyer and
cannot afford one, the court will appoint one to
assist you without charge.
D) If you decide to answer
questions now, without consulting with a lawyer
and without having one
present, you may stop the interview at any time.
3. You have the right to
face your accuser(s) in court.
Consent to speak:
I have read this statement
of my rights, or had it read to me, and I understand what it says. I am
willing to answer questions now without talking to a lawyer first, and
without having one present. No promises have been made to me, and no
threats have been made against me.
Each day that appellant
participated in an interview, he signed a copy of this form after it was
read to him for the first time that day.
(18) Some days, he
signed a separate copy for multiple interviews, but only one copy was
signed on December 18.
The warnings on the form
also appear verbatim on the recordings in State's Exhibits 2, 3A, and 5.
(19) On the recordings,
after each individual warning (right to remain silent, used against you,
right to a lawyer, etc.), appellant was asked if he understood the
particular warning, and he replied affirmatively.
(20) Appellant also was
asked during each recording whether the waiver (consent to speak)
paragraph was accurate, and appellant replied that it was.
State's Exhibit 4 does not
contain these warnings verbatim. Instead, the recording contains
a reminder from Trooper
Whitmore that appellant had been given the West Baton Rouge County
Sheriff's form and that this form basically advised appellant of his
constitutional rights. Trooper Whitmore then reminded appellant that he
had read the form, had said that he understood it and had signed it,
that Whitmore and Walker had witnessed those actions, and that "basically,
what it [the form] says is that you're voluntarily talking to us, is
that correct?" Appellant replied affirmatively. Trooper Whitmore then
stated that he was "not going to go through the entire form." Instead he
asked, "Do you still agree to voluntarily talk to us?" Again, appellant
replied affirmatively. Trooper Whitmore then gave the following warnings
in question format, to each of which appellant replied affirmatively:
And you do understand that you don't have to talk to us?
And you do understand that
in the course of talking to us if you decide to stop talking to us at
any time that you have the right to do that?
You also understand that you
have the right to have an attorney present here while we're talking to
you?
At the conclusion of those
warning questions and appellant's responses, Trooper Whitmore asked, "And
you've agreed to continue to talk to us, voluntarily, of your own free
will?" Again, appellant answered in the affirmative.
In its findings of fact and
conclusions of law, the trial court found that appellant was in custody,
that he was read Miranda warnings each and every time officers
took a taped statement from him, that appellant freely and voluntarily
waived his constitutional rights on each of those occasions, and that no
threats or promises were made to appellant in exchange for his
statements.
3. Analysis
We need not address the parties' arguments regarding the choice-of-law
issue because we find that the recorded statements are admissible under
Article 38.22. Davidson itself recognized that Article 38.22
contained exceptions to its requirement of strict compliance for oral
statements but simply noted that the exceptions were not applicable in
that case.
(21) Under Section
3(e)(2) of the statute, it is sufficient that "the accused was given the
warning in Subsection (a) of Section 2 above or its fully effective
equivalent."
(22) Therefore, if the
warnings given by the Louisiana officers are the "fully effective
equivalent" of the warnings outlined in Article 38.22, §2, then Article
38.22 does not bar admission of the statements.
We addressed the "court" versus "trial" complaint under a previous
version of the statute in Bennett v. State.
(23) That case
involved a Louisiana "used against you" warning almost identical to
the one at issue here.
(24) Concluding
that use of the term "court" instead of "trial" "does not dilute the
meaning or import of the warning," we upheld the admission of the
evidence.
(25) The version of
the statute in effect at the time did not contain subsection (e)'s
strict compliance language or subsection (e)(2)'s "fully effective
equivalent" exception.
(26) Nevertheless,
by saying that the use of "court" instead of "trial" did not "dilute
the meaning or import of the warning," we clearly expressed the view
that the Louisiana warning was in fact the fully effective
equivalent of the one contained in the statute. Although appellant
contends that the equivalence of the warnings is negated by the fact
that Article 38.22 contains two "used against" warnings,
one specifying "court" and the other specifying "trial," that
language was also present in the statute at the time Bennett
was decided.
(27) The two
warnings here appear to largely overlap and, in fact, "court" is the
broader term, and is reasonably understood to include the term "trial."
Moreover, we find that the
warnings contained in State's Exhibits 2, 3A, and 5 also fairly convey
the concept that the accused is entitled to consult counsel "prior to"
interrogation. The warning says, "You have the right to get advice from
a lawyer and to have a lawyer with you during your interview." The
wording of the warning suggests that the accused is entitled to a
lawyer's advice outside of the time during the interview. And the waiver
of rights admonition that follows, by specifying that the accused is "willing
to answer questions now without talking to a lawyer first, and
without having one present," makes clear that this right to an attorney
can be exercised before interrogation.
That leaves State's Exhibit 4, which, if looked at in isolation,
would appear to lack some of the warnings required, not only by
Article 38.22, but also by Miranda itself. State's Exhibit
4 does not contain a "used against" warning, does not contain the
language making clear that counsel can be consulted before
interrogation, and does not contain the admonition that an attorney
can be appointed if the accused cannot afford one. But we disagree
with the proposition that State's Exhibit 4 should be looked at in
isolation.
The First Court of Appeals
faced a similar situation in Franks v. State.
(28) In that case, a
tape-recorded interrogation first commenced at 11:53 a.m. and continued
until 12:30 p.m.
(29) Warnings were
given at the beginning of this interrogation.
(30) The police
officers then interrupted their interrogation and talked to other
witnesses.
(31) Interrogation
resumed that same day at 4:02 p.m. and continued until 4:23 p.m.
(32) This latter
interrogation was also tape-recorded, but the warnings were not given.
(33) However, the
defendant was reminded that he had been advised earlier of his
constitutional rights, and the defendant acknowledged that he had been
so warned.
(34) The court of
appeals held that "the second phase of the interrogation was merely a
continuation of the interrogation process, and that under the
circumstances presented, there was not such a 'break' in the
interrogation proceeding as to require the giving of new warnings."
(35)
Although this Court has not addressed a similar situation with regard to
an Article 38.22 claim, we have addressed a somewhat similar fact
situation in the Miranda context. In Bagley v. State,
(36)
the defendant was given all the required Miranda warnings
before signing a written confession.
(37)
The officer then returned the defendant to his jail cell and
separately questioned the co-defendant.
(38)
Six to eight hours later, interrogation of the defendant resumed,
resulting in another confession.
(39)
Although appellant was given oral warnings before this second
confession, he contended on appeal that the oral warnings did not
sufficiently comply with Miranda.
(40)
Although we held that the oral warnings did in fact comply with
Miranda, we also found that the warning given six to eight hours
earlier was sufficient to satisfy Miranda's requirements.
(41)
More recently, in Jones v. State,
(42) we addressed
whether warnings given two days before the complained-of statement
were sufficient to satisfy Miranda.
(43) Finding that
the earlier warnings were not effective, we distinguished Bagley
and some out-of-state cases on several grounds: (1) the passage of
time, (2) the interrogation was conducted by a different person, (3)
the interrogation related to a different offense, and (4) the
officer never asked the defendant if he had received any earlier
warnings, whether he remembered those warnings, and whether he
wished to waive or invoke them.
(44)
In the present case, the
session that produced State's Exhibit 4 began less than three hours
after the beginning of the session that produced State's Exhibit 3A.
Although different officers conducted questioning during each session
and each session focused on a different set of crimes, the same officers
were present during both sessions. Trooper Whitmore reminded appellant
of his earlier waiver of rights; secured his acknowledgment that he had
been
previously been given warnings; briefly reminded him of his
right to silence, to terminate the interview, and to counsel; and
secured his assent to continue the interview. Under these circumstances,
we find that the two sessions were part of a single interview for the
purpose of Article 38.22 and Miranda. But even if they were not
considered part of the same interview, we would find that Trooper
Whitmore's conduct under the circumstances was sufficient to constitute
the administration of a "fully effective equivalent" to the required
warnings and was sufficient to satisfy Miranda. Points of error
one through four and appellant's supplemental points of error are
overruled.
B. Jury Instruction
In point of error five, appellant complains about the trial court's
refusal to submit a jury instruction concerning the voluntariness of
appellant's tape-recorded confession to the primary offense given to
Texas law enforcement officers (State's Exhibit 1). Appellant contends
that the following testimony from Harris County Detective Roger
Wedgeworth raised the issue of whether there was an "implied promise and/or
expectation" that appellant would receive only a life sentence rather
than the death penalty:
[Direct Examination]
Q. At this point right now
tell the jury what it was you said to Danny Bible in regards to this
conversation.
A. Well, I told him that I
understood what he what [sic] was trying to do. By confessing to us I
understood that he was agreeing to come to Texas to confess to this
murder, to plea out for a life sentence. He wanted to do his time here
in Texas because that's where his family is. His mother and dad I think
is the reason that he gave, as to wanting to come back to Texas.
Q. So, you gave that
explanation in the beginning to the defendant?
A. Yes, I did.
Q. Did you make any
explanations or try to clear that up with the defendant before you began
your interviewing, the details of this murder?
A. Yes, I did.
Q. Tell the jury what you
told him?
A. Well, he was 47 years old
at the time we talked and I understood that any lengthy prison sentence
would be a life sentence for him. He'd spend the rest of his life in
jail.
Q. Did you tell him that?
A. I did tell him that, yes.
Q. What else did you tell him?
A. Well, that I understood,
you know, what he wanted to do.
Q. And as far as
understanding of what it was he wanted, what did you say to him by way
of explanation as to whether or not you could make that happen?
A. Oh, I see. We - I
explained to him that I couldn't make any kind of deal for him at all.
That any deal that was made would have to go through the district
attorney's office.
* * *
[Cross-Examination]
Q. And what you concluded
after talking to Detective Walker, and even before you talked to the
defendant, was he was trying to get out of Louisiana and go to Texas to
serve time and he would serve it on this case; right?
A. That's - that's what his
goal was, yes, sir.
Q. He would plead for a life
sentence on this case?
A. Yes, sir.
Q. And what you told him was,
that based on his age any sentence he got would be a life sentence?
A. Yes, sir, that is correct.
Q. Now, you didn't mean for
that to sound like that you were promising him that any sentence he got
would be a life sentence, you were referring to his age; right?
A. That's correct.
Q. But what you told him was,
any sentence you get will be a life sentence for you?
A. Well, that - I mean,
that's - I told him that, that is true.
Q. Did any discussion about
the death penalty come up while you were questioning him?
A. No.
[Discussion with judge
omitted].
Q. Did you tell him, tell
the defendant, that in order for him to get to Texas and serve a
sentence, he was going to have to confess for the DA to be able to take
the charges in the case?
A. Well, I told him that I wasn't the one that could make any kind
of decision, period. And that it was entirely up to the DA. That's
what I told him.
Q. You didn't tell him
anything about he had to confess?
A. I never told him that
he had to confess.
Q. Or give a statement? I
thought you testified previously that what you told him was that he was
going to have to tell you-all first whatever it was he had to tell you?
A. Well, I know exactly what
I said back then and that is what I said. But the fact is, whenever we
first met with him, we asked him if he would talk with us and he said he
would and all that. And I told him that everything would have to go
to the district attorney's office; but, in order for us to show them
anything we had to have something from him. That's basically what I said
back then.
Q. Okay. So, you knew he
wanted a life sentence. You told him that whatever he got was going to
amount to a life sentence for him and for him to get that he was going
to have to tell you, he was going to have to talk to you.
A. Well, I told him I knew
what he wanted to do. I knew he wanted to go to Texas to be with family,
because it is a lot easier to do time with family around. But yes, I
told him that.
Q. And the reason I am
asking that is none of us can read the defendant's mind. We don't know
how he actually interpreted what you said. We understand what you meant
by what you said, but at issue is what he understood. And you admit that
he was making it really clear to you that he wanted to confess because
he wanted to go serve his time in Texas?
A. I understood that that's,
in fact, what he wanted to do.
(Emphasis added).
Appellant does not say
whether he is relying upon federal or state law, but he cites a
discussion in Mendoza v. State
(45) that refers to
Article 38.21. When evidence from any source raises an issue regarding
involuntariness under Article 38.21 and the defendant requests an
instruction, Article 38.23 requires that an appropriately worded
instruction on the issue be submitted to the jury.
(46) This Court has
held that a promise can render a confession invalid under Article 38.21
if it is "positive, made or sanctioned by someone in authority, and of
such an influential nature that it would cause a defendant to speak
untruthfully."
(47) But when the
accused acts as an entrepreneur in attempting to negotiate a deal, we
will not find implied promises "in official responses [to the accused's
overtures] that are ambiguous at best."
(48) And we will not
find that a promise was "made or sanctioned by someone in authority"
when the officer conducting the interview makes clear that he has no
authority to make deals.
(49)
Here, appellant acted as an
entrepreneur in attempting to secure a deal for a life sentence in
Texas. Although the evidence shows that Detective Wedgeworth did
indicate that, because of appellant's age, any prison sentence would
result in incarceration for the rest of appellant's life, there is no
evidence of any promise from Wedgeworth that appellant would receive a
life sentence instead of the death penalty. And it is undisputed that
Detective Wedgeworth clearly explained that he had no authority to make
any deals. Point of error five is overruled.
II. PUNISHMENT COMPLAINTS
A. Legal Sufficiency - Future Dangerousness
In point of error fourteen, appellant contends that the evidence is
legally insufficient to support the jury's answer to the "future
dangerousness" special issue.
(50) Specifically,
appellant contends that, because he had previously been given a life
without parole sentence in Louisiana, the only society he would ever
interact with would be prison society. He further argues that the
evidence shows he is not a threat to prison society because he had only
two minor, nonviolent disciplinary infractions during the twelve years
he was incarcerated in Texas on another conviction and the State
presented no evidence of any disciplinary infractions during his
incarceration in Louisiana.
Good behavior in prison does
not preclude a finding of future dangerousness.
(51) All that is
required is that the evidence be sufficient for a rational trier of fact
to conclude beyond a reasonable doubt that there is a probability that
the defendant would commit criminal acts of violence that would
constitute a continuing threat to society.
(52) The record of this
case is littered with such evidence, specifically, evidence of
appellant's numerous violent offenses. After raping and killing Deaton,
appellant fled to Montana and Wyoming, where he developed an abusive
relationship with a woman, who finally left appellant because of the
constant violence directed toward her. Appellant ground his knee into
her ear, punched her in the face so hard that she was required to get
stitches, poured gasoline onto her vehicle and set it on fire, and
attacked her vehicle with an axe while a three-year-old child was inside.
After that relationship
ended, appellant went to Weatherford, where he murdered his sister-in-law
Tracy Powers, her infant son Justin Powers, and Tracy's roommate Pam
Hudgins. He then fled back to Montana, where he kidnapped a young woman
and an eleven-year-old girl, and he raped the girl. On August 3, 1984,
appellant pled guilty to the Pam Hudgins's murder and was sentenced to
twenty-five years in prison. He also pled guilty to two aggravated
kidnappings he committed in Montana. He was later placed on parole, and
he moved to Texas, where he sexually assaulted his five nieces (children
of various ages) numerous times.
Finally, on November 7,
1998, while in Louisiana, appellant compelled Tera Robinson to submit to
a sexual assault under threat of death. After the sexual assault,
appellant tied Robinson up. She told appellant that her boyfriend was
coming home soon and that appellant needed to leave. Before leaving the
scene, he tried without success to stuff Robinson into a duffel bag.
Appellant has killed four people, including an infant. He has sexually
assaulted numerous others and might have killed his latest victim if he
had succeeded in stuffing her into a duffel bag. There was ample
evidence from which a rational jury could conclude that appellant posed
a future danger to society, whether inside or outside prison. Point of
error fourteen is overruled.
B. Extraneous offenses
In points of error six and seven, appellant contends that the
portions of his January 6th confession relating to the sexual
assault of two of his nieces were improperly admitted because the State
failed to present any corroborating evidence that those offenses
occurred. He argues that the corpus delicti doctrine requires
some evidence independent of the defendant's confession that these two
nieces were in fact sexually assaulted. To put appellant's claim in
perspective, we observe that appellant confessed to sexually molesting
and assaulting five nieces. The oldest was K.B., three of the others
were her sisters, and one was a cousin. K.B. testified at trial to
numerous instances of appellant sexually assaulting her, one of her
sisters (S.B., the next oldest), and a cousin, but she had not observed
appellant sexually assaulting her two youngest sisters. The only
evidence of sexual misconduct with the two youngest sisters came from
appellant's confession.
The corpus delicti
doctrine requires that evidence independent of a defendant's
extrajudicial confession show that the "essential nature" of the charged
crime was committed by someone.
(53) The doctrine was
designed to prevent "errors in convictions based upon untrue confessions
alone" and "guarded against the shocking spectacle and deleterious
effect upon the criminal justice system when a murder victim suddenly
reappeared, hale and hearty, after his self-confessed murderer had been
tried and executed."
(54) Appellant argues
that the corpus delicti doctrine should be expanded beyond the
charged offense to extraneous offenses offered at the punishment phase
of trial. He acknowledges that there are courts of appeals decisions
contrary to his position
(55) but contends that
their pronouncements conflict with the history and purpose of the
corpus delicti rule.
We have declined to apply corroboration requirements to extraneous
offenses offered at the punishment stage of a capital case in a
similar context - the accomplice witness rule.
(56) We reasoned
that the accomplice witness rule is concerned with the sufficiency
of the evidence to support the conviction rather than the
admissibility of evidence at the punishment stage of trial.
(57) We explained
that even uncorroborated accomplice testimony about the defendant's
extraneous bad acts constitutes "relevant information about a
defendant" within the scope of Article 37.071.
(58)
We agree with the Waco Court
of Appeals that the corpus delicti rule is similar in purpose
to the accomplice witness rule.
(59) As we have already
observed, the corpus delicti doctrine is concerned with
preventing a conviction from being based solely upon a false
confession. When the offense at issue is extraneous, offered at the
punishment stage, no concern about the defendant's conviction arises. We
are not faced with the specter of a totally innocent defendant being
convicted for a crime that never occurred solely on the basis of a
confession resulting from official coercion or the defendant's own
delusions. Consequently, we hold that the corpus delicti
doctrine does not apply to extraneous offenses offered at the punishment
phase of a capital murder trial. Points of error six and seven are
overruled.
C. Jury Charge
In point of error ten, appellant complains about the trial court's
refusal to submit in the jury charge a definition of the word "deliberately."
We have previously resolved this issue adversely to appellant's position.
(60) Point of error ten
is overruled.
D. Argument
1. "Intentionally"
In point of error eleven, appellant contends that the prosecutor
gave an erroneous definition of "intentionally" in closing argument at
the punishment stage of trial. Appellant quotes the following portion of
the record in his brief:
[PROSECUTOR]: And so, we
have these issues up here for you to have to deal with. And what's the
first one? Do you find from the evidence beyond a reasonable doubt that
the conduct of the defendant that caused the death of the deceased was
committed deliberately and with a reasonable expectation that the death
of the deceased or another would result? Deliberately, you have heard it
defined for you somewhat. You know that it doesn't mean what you found
him guilty of when you said he acted intentionally, because
intentionally means (snaps finger) it happened that fast. He decided in
that split second to commit that capital murder.
[DEFENSE COUNSEL]: Your
Honor, I object. That is a misstatement. Intentionally doesn't mean that
it happened that fast. It means conscious objective or desire.
[THE COURT]: Overruled.
[PROSECUTOR]: So, it doesn't
mean intentionally. That's true. It also does not mean premeditated,
planning, long, drawn-out process like [defense counsel] would have you
think it means. Whatever you want it to mean is completely up to you.
It is difficult to see how
the prosecutor's misdefining the term "intentionally" in the
punishment phase could have any adverse effect on the defendant
since that term was used only at guilt, and the jury had already found
him guilty. Appellant's real argument appears to be that the prosecutor
misdefined the term "deliberately," as revealed by the following
sentence in his brief: "In the instant case, the prosecutor urged the
jury to define deliberately in a way that makes a deliberate act
substantially less than an intentional act." But appellant did not
object to the prosecutor's comments regarding the term "deliberately,"
nor did he complain to the trial court that the prosecutor's comments
regarding the term "intentionally" had in any manner diluted the meaning
of "deliberately." Consequently, appellant failed to preserve error.
(61) Moreover, even if
error had been preserved, the comment appears to suggest that "deliberately"
means more, not less, than "intentionally." Point of error eleven is
overruled.
2. "Deserved to die"
In point of error twelve, appellant contends that the prosecutor
engaged in improper argument when she said that appellant "deserved to
die." He asserts that the prosecutor's argument was a blatant appeal to
emotions rather than an argument based on the special issues and
violated the law that prohibits the jury from answering the special
issues based upon "mere sentiment, conjecture, sympathy, passion,
prejudice, public opinion, or public feeling."
(62) The following
passage in the record is relevant to appellant's claim:
[PROSECUTOR]: Finally, you
are on this jury because you believe that there are crimes that have
been committed and defendants who exist that deserve the death penalty.
Because you appreciate the fact that there is [sic] some people born you
just can't do anything else with. And God only knows why they turn out
the way they do or what made them the way they are. None of us are ever
going to understand that. But because there are people like that, that's
why we had [sic] the death penalty. And for those kinds of people to
deal with those sorts of people our law has crafted these issues to
address when it is appropriate and when it is not. The questions are
designed to try and make it all a process that we can all deal with. And
when you answer these questions you answer them because you know in your
heart that some people deserve the death penalty.
[DEFENSE COUNSEL]: Your
Honor, she is appealing to them to answer the questions based on what
they think is deserved, not on the basis of those questions.
[THE COURT]: Overruled.
[PROSECUTOR]: No, I am not.
I am telling you to keep in mind that we have the death penalty for
reasons that you-all understand. And if you ask yourself the question.
Why do we have the death penalty? And you ask yourself which deserve it
and which don't, do you think anybody deserves it less -
[DEFENSE COUNSEL]: Objection,
again, to the argument. They are trying to decide what he deserves
rather than answering these three questions.
[THE COURT]: Overruled.
[PROSECUTOR]: - than Danny
Bible? How many people do you have to murder to be a future threat to
deserve the death penalty? One, two, three, four? How many children do
you have to rape to deserve the death penalty, to be a threat? How many
women do you have to rape to deserve the death penalty, to be a future
threat? How many babies do you have to kill? Danny Bible's done all
those things. There can be no doubt in your mind that the answers to
those questions are yes and yes and no, because there is only one place
where he belongs. He has left you with no other choice. Sentence him to
death.
Article 37.0711 expressly
permits the parties to argue "for or against sentence of death."
(63)
The prosecutor here did not make an argument based solely on emotion;
she related her comments specifically to the special issues. Point of
error twelve is overruled.
3. Burden of proof
In point of error thirteen, appellant contends that the prosecutor
made a comment in opening
(64) argument that
improperly shifted the burden of proof on the future dangerousness
special issue. The record shows the following:
[PROSECUTOR]: You may hear
from the Defense, He was good when he was in the penitentiary. Well, let
me tell you something. You don't find anything but one year's worth of
information that he didn't do anything wrong, that year from '83 to '84,
when he was in the penitentiary. I defy you to find a shred of documents
anywhere in evidence that says he is a model prisoner. You won't find it.
[DEFENSE COUNSEL]: Objection.
Your Honor, that argument shifts the burden on the Defense. It is not up
to us to prove that he was a good, model prisoner and I object to it.
[THE COURT]: Overruled.
In O'Bryan v. State,
we observed, "It is well-settled that the prosecutor, in argument, may
comment on the defendant's failure to call certain witnesses."
(65) We held that this
practice did not constitute a shifting of the burden of proof on the
special issues.
(66) The failure to
produce documentary evidence is analytically similar. And in fact, later
cases addressing constitutional self-incrimination claims have held that
prosecutorial comment on the absence of evidence is proper so long as "the
language can reasonably be construed to refer to appellant's failure to
produce evidence other than his own testimony."
(67) We conclude that
the prosecutor's reference to the absence of documentary evidence did
not constitute a shifting of the burden of proof on the special issues.
Point of error thirteen is overruled.
E. Constitutionality of Death Penalty Scheme
1. Absence of meaningful appellate review
In point of error nine, appellant contends that the current death
penalty scheme is unconstitutional because there is no meaningful
appellate review of the special issues. He points out that this Court
refuses to conduct a factual sufficiency review of the future
dangerousness special issue and refuses to conduct a legal or factual
sufficiency review of the mitigation special issue. Appellant concedes
that we have previously decided these claims adversely to his position.
(68) Nothing in his
argument persuades us to retreat from our prior holdings. Point of error
nine is overruled.
2. Substance used in executions
In point of error eight, appellant contends that pancuronium bromide,
one of the substances used in Texas executions, inflicts cruel and
unusual punishment in violation of the Eighth Amendment to the United
States Constitution. The State argues that appellant failed to preserve
error because he did not object at trial.
Assuming, arguendo,
that appellant was not required to object at trial to preserve error on
this type of claim, we nevertheless conclude that we cannot address this
claim in its current posture in this appeal. This claim involves the
same concerns that are involved in determining the reliability of a
scientific theory or technique.
(69) This is the type
of claim the resolution of which should provide a rule of law for all
cases, but a reliable resolution of the merits requires a fact-intensive
inquiry.
(70) Because of the
absence of litigation during the trial, the record is not sufficiently
developed to resolve this claim, and the novel nature of the claim
counsels against resolution through judicial notice without the benefit
of litigation before a fact-finder.
(71)
Point of error eight is
overruled.
4. Appellant advanced these
complaints to the trial court in a motion to suppress. A pretrial
hearing was held, after which the trial court denied the motion.
5. See Art. 38.22,
§2(a)(1)("trial") and (2)("court").
13. Appellant was arrested in
Florida but was subsequently extradited to Louisiana and transported to
the West Baton Rouge Parish Sheriff's office.
14. Appellant pleaded guilty to
this offense on February 2, 1999.
15. Appellant later made another
tape-recorded confession to this offense to Texas police detectives -
introduced at trial as State's Exhibit 1. Appellant does not contest the
admissibility of this subsequently recorded confession.
16. The record does not establish
the exact time in the afternoon that the second tape-recorded session
began, but the record does establish that the session began before
appellant was taken to a magistrate, that the session lasted for
approximately fifty minutes, and that appellant was taken before a
magistrate at approximately 5:00 p.m.
17. In each instance, unrecorded
oral conversations between appellant and the officers took place after
the warnings were given but before the tape-recorded statements.
Appellant makes no complaint regarding the unrecorded portions of the
interviews.
18. Appellant talked to law
enforcement officials numerous other times and with the media a couple
of times while he was held in Louisiana. In connection with all the
interviews in which appellant participated, copies of this form were
signed on December 16 (twice), 17, 18, 21, 23, 29, and 31; on January 3,
5 (twice), 6, 8, 11, 14, 16, 25, 28, and 29; on February 1, 3, 5, 9, 11,
18, 22, 23, and 26; March 1, 2, 3, 4, 10, 11, and 22; April 9, 19, and
22.
19. The entire form was read to
appellant during the recording in State's Exhibits 2 and 5. State's
Exhibit 3 included everything but the introductory paragraph.
20. During the recording in
State's Exhibit 5, appellant twice stated in his own words that he
waived his right to a lawyer - the first time after acknowledging his
understanding of warning 2B, and the second time after acknowledging his
understanding of warning 2D.
50. The issue asks: "whether
there is a probability that the defendant would commit criminal acts of
violence that would constitute a continuing threat to society." Art.
37.0711, §3(b)(2).
51. Williams v. State,
937 S.W.2d 479, 483 (Tex. Crim. App. 1996);
52. Blue v. State, 125
S.W.3d 491, 493 (Tex. Crim. App. 2003), cert. denied, 125 S. Ct.
297 (2004)(citing Jackson v. Virginia, 443 U.S. 307 (1979)).
55. Padron v. State, 988
S.W.2d 344, 346 (Tex. App.-Houston [1st Dist.] 1999, no pet.);
Malpica v. State, 108 S.W.3d 374, 378 (Tex. App.-Tyler 2003, no
pet.). To appellant's list we add Jackson v. State, 65 S.W.3d
317, 321 (Tex. App.-Waco 2001, no pet.)("Arguably, the corpus
delicti rule has no application in the punishment phase for the
same reasons the accomplice witness rule does not apply," but concluding
that, even if the rule did apply, there was sufficient independent
evidence in that case).
56. Jones v. State, 982
S.W.2d 386, 395 (Tex. Crim. App. 1998), cert. denied, 528 U.S.
985 (1999); May v. State, 618 S.W.2d 333, 342-343 (Tex. Crim.
App.), vacated on other grounds, 454 U.S. 959 (1981) andoverruled on other grounds, Ex parte Elizondo, 947 S.W.2d
202, 205 (1996).
64. We refer to the prosecution
argument preceding appellant's closing argument. Opening and closing
arguments were delivered by different prosecutors in this case.
67. Patrick v. State,
906 S.W.2d 481, 491 (Tex. Crim. App. 1995); see also Fuentes v.
State, 991 S.W.2d 267, (Tex. Crim. App.), cert. denied,
528 U.S. 1026 (1999).
68. Allen v. State, 108
S.W.3d 281, 285 (Tex. Crim. App. 2003), cert. denied, 540 U.S.
1185 (2004)
69. See Hernandez v. State,
116 S.W.3d 26 (Tex. Crim. App. 2003).
