Fuller v. State
Fuller v. State
Opinion of the Court
OPINION
delivered the opinion of the Court
In July 2004, the appellant was convicted of the May 14, 2003, capital murder of Nathan and Annette Copeland.
STATEMENT OF FACTS
The appellant, Barney Ronald Fuller, Jr., was fond of firing weapons on his property in rural Houston County, despite repeated complaints from his neighbors. Perhaps the most vocal of his neighbors, Nathan and Annette Copeland, had a dispute with the appellant regarding his alleged shooting of the Copeland’s electric transformer. The dispute escalated with the appellant ultimately being charged with making terroristic threats against Annette after he told her over the telephone, “Happy New Year, I’m going to kill you.”
On May 13, 2003, the appellant received a letter from the court regarding the ter-roristic threat charges against him. The appellant was furious and began drinking heavily. At around 1:30 a.m. on May 14, 2003, the appellant left his home and traveled the short distance on foot to the Copeland home. The appellant fired approximately sixty rounds from an AR-15 rifle into the Copeland home from outside, changing the magazine on his rifle three times. He then broke down the back door and made his way to the master bedroom where he fired several more shots with a pistol, reloading twice. He shot Nathan four times. The first shot was a fatal head wound from a rifle. The other three
Not satisfied with killing Annette and Nathan, the appellant found the room of their fifteen-year-old son, Cody, who heard his father screaming during the shooting. The appellant took aim at Cody and fired at least three times, all the while asking Cody why he was lying about him in court. Although bullets were later pulled from Cody’s pillow, he escaped with only two shoulder wounds. The appellant then made his way to the room of eleven-year-old Courtney, but he could not find her in the dark. Before leaving the house, he turned on the kitchen stove.
Once the appellant left the Copeland home, Courtney waited five minutes before checking on Cody and her parents. She saw that her parents “would not make it.” Cody attempted to call 9-1-1, but the house land line was dead. Courtney turned off the stove in the kitchen while Cody went to their parents’ room to find their mother’s mobile phone to call 9-1-1. After speaking with the 9-1-1 operator, Courtney called her grandparents to tell them what had happened, and then she and Cody waited, pretending to be dead just in case the appellant returned.
Their grandparents arrived before any first responders and took the children to meet an ambulance that was en route for Cody. When law enforcement arrived at the Copeland home and began clearing the scene, they heard six rounds fired from the direction of the appellant’s home. The appellant contacted 9-1-1 himself and told the operator that he would surrender. A SWAT team was assembled, and the appellant was arrested around midmorning.
GUILTY PLEA IN FRONT OF THE JURY
In his first through third points of error, the appellant argues that the trial court lacked authority to impose the death sentence in the absence of a jury verdict form finding him guilty and therefore violated Texas Code of Criminal Procedure Article 1.13, the Due Process Clause of the Fourteenth Amendment, and the Sixth Amendment right to an impartial jury.
On the morning of trial, the appellant pleaded guilty to capital murder in front of the jury. After admonishing the appellant, the trial court accepted his guilty plea and found him guilty of capital murder. The court then instructed the jury that it would no longer be required to determine the appellant’s guilt or innocence but would only be required to determine his punishment. The court conducted a punishment hearing, heard evidence of the offense, and charged the jury to find the appellant guilty and to answer the special issues. The forms given to the jury, however, did not include a verdict form for the jury to physically mark that they found the appellant guilty; the forms included only sentencing forms for the two special issues. The appellant claims that he has been denied a trial by jury because the jury did not sign a verdict form indicating that the appellant is guilty of capital murder. These claims are without merit.
Article 1.13 sets out the requirements for waiver of a jury trial. Specifically, Article 1.13 requires that the defendant execute a written waiver made in person in open court with the consent and approval of the court and the prosecution, if the
In Williams v. State,
[t]he plea must be to a jury so as to comply with the limitations of Artficle] 1.14. Whether such a procedure, where a guilty plea is entered, is to be denominated unitary or bifurcated is moot: Article] 37.071 governs all capital cases and it provides for a trial by jury upon the issues related to punishment.8
This Court noted that the procedure employed had the indicia of a bifurcated trial.
Four years later, citing to Williams, this Court formally declared that “a plea of guilty before a jury in a capital case constitutes trial by jury whether such a proceeding be denominated ‘bifurcated’ or ‘unitary’ in nature.”
Similarly, in the instant case, the appellant pleaded guilty in front of the jury. After hearing evidence of the appellant’s guilt for nine days, the trial judge instructed the jury, through both oral and written directives, to find the appellant guilty, but provided the jury with only the “Special Issues Verdict Forms.” The question here is whether the jury needed to return a verdict form indicating the appellant’s guilt in writing in order to declare that the appellant received a trial by jury.
[S]ince a verdict is ‘a written declaration by a jury of its decision of the issue submitted to it in the case,’ but the issue of guilt is not submitted to a jury when a defendant has pleaded guilty before it, a jury does not return a verdict of guilt in such a situation.19
Though not dealing with a capital case, Brinson supports a finding that a verdict on the guilt of a person who pleads guilty is not necessary, even in a capital case.
The appellant also argues that the trial court’s failure to require that the jury sign a verdict form finding him guilty of capital murder violates the Due Process Clause of the federal constitution. But the United States Supreme Court has long held that a plea of guilty substitutes for a jury verdict of guilt. As the Supreme Court stated in Kercheval v. United States,
Here, the appellant pleaded guilty before the jury and the jury returned the special-issues verdict form. Pursuant to the foregoing cases, it is clear that the jury in this case was not required to return a verdict of guilty, since the guilt or innocence of the appellant was no longer an issue.
In his fourth through sixth points of error, the appellant alleges that the trial court violated the Due Process Clause of the Fourteenth Amendment, the Fifth Amendment, and Article 46B.004 by failing to sua sponte order that the appellant be evaluated to determine whether he was competent to stand trial.
In Pate v. Robinson,
The appellant argues that the evidence presented during trial should have suggested to the trial court that he may be incompetent to stand trial. He points to defense counsel’s opening statement regarding the appellant’s possible mental illness, his refusal to provide the court with a reason for his guilty plea, his refusal to submit to an MRI examination of his brain, his withdrawal to his jail bunk in the days before trial, his long history of drug and alcohol abuse, and his bizarre behavior during the three months before his arrest. None of this evidence, however, was sufficient by itself or taken together to create a bona fide doubt as to the appellant’s ability to consult with his attorneys with a reasonable degree of rational understanding or as to his rational as well as factual understanding of the proceedings against him.
Because the appellant chose to absent himself during trial proceedings, the record does not contain much evidence demonstrating the appellant’s ability to understand the trial proceedings. However, one of the appellant’s attorneys told the trial court that while he and co-counsel had experienced some difficulties working with
VOLUNTARINESS OF THE GUILTY PLEA
In his seventh through ninth points of error, the appellant challenges the volun-tariness of his guilty plea. Specifically, the appellant argues that, given signs that he may be mentally incompetent, the trial court did not properly admonish him in accordance with Article 26.13. The appellant also argues that his plea was in violation of Boykin v. Alabama
It is a due process violation for a trial court to accept a guilty plea without an affirmative showing “spread on the record” that the guilty plea was intelligently and knowingly made.
The appellant was initially indicted on ten felony charges resulting from the events of May 14, 2003, and he was arraigned on those charges on September 12, 2003. At that time, the appellant attempted to plead guilty:
Appellant: Can I plead guilty if I want to? That’s my choice, right?
Counsel: That’s your choice.
Appellant: You’re lying to the man is all you’re doing.
Court: I’m sorry.
Counsel: I would advise you not to at this point. We can discuss that later.
Court: Yeah. I would encourage you not to say anything.
A new indictment was issued on February 25, 2004, alleging capital murder. On July 12, 2004, final pre-trial matters were discussed with both the State and the appellant proceeding with the expectation of a full trial on guilt. The following day, the jury was seated, given instructions, and sworn. The State read the indictment to the appellant in the presence of the jury, and the trial court asked the appellant how he pled. The appellant responded, “Guilty, your Honor.”
The trial court asked the jury to retire and then admonished the appellant as to the effect of his guilty plea, specifically explaining to him the range of punishment for capital murder. The trial court
The record shows that the trial court properly admonished the appellant regarding the range of punishment for the offense. Further, the record shows that the appellant “understandingly and voluntarily” made his plea. Points of error seven, eight, and nine are overruled.
ADMISSION OF VIDEOTAPED STATEMENT
In points of error ten and eleven, the appellant alleges that the videotaped statement he gave to police was admitted in violation of his right to remain silent and his right to counsel during an interrogation. The appellant argues he was represented by counsel, but had not been told by officials that his attorney was en route to meet him at the sheriffs office and that his attorney had told officials to not interview the appellant without counsel present.
At the suppression hearing held regarding the videotaped statement, the appellant testified that, in the early morning hours following the murders of Nathan and Annette Copeland, he spoke with his father several times by phone. The appellant discussed with his father the need to contact the appellant’s brother-in-law, Steven “Rocket” Rosen, a criminal defense attorney from Houston. The appellant’s father eventually contacted Rosen, but the appellant was not aware his father had done so and did not speak with Rosen himself. At approximately the time the appellant was being arrested, Rosen faxed a letter to the Houston County Sheriff notifying him that the appellant was represented by counsel and instructing officials not to interview the appellant without Ro-sen’s presence.
Officials in Houston County interviewed the appellant and obtained a video statement. According to Texas Ranger Sergeant James Huggins, who conducted the interview, the appellant waived his right to remain silent and to consult with an attorney or have one present during the interview. Huggins also testified that he did not learn of Rosen’s fax until after he completed the interview, and the appellant testified that he did not speak with Rosen regarding representation until after the interview.
The appellant now alleges that he was drunk when he was interviewed on the morning of May 14, 2003, and was not able to voluntarily waive his rights. The appellant argues, therefore, that his statement was obtained in violation of the Fifth Amendment. Shane Calloway, the deputy who transported the appellant to the sheriffs office, testified that the appellant showed no signs of being drunk. Sergeant Randy Hargrove, who observed the appellant being booked into the county jail, testified that the appellant did not appear intoxicated. Huggins, who obtained the statement from the appellant, also testified that he saw no signs that the appellant was drunk. On cross-examination during the suppression hearing, the appellant testified that he did not remember receiving or waiving his Miranda warnings, but did remember speaking with his father following the murders.
The appellant also argues that his statement was involuntary because he was not aware of Rosen’s fax directing officials to not interview him. In Moran v. Burbine,
FUTURE DANGEROUSNESS
In his twenty-first point of error, the appellant challenges the factual sufficiency of the evidence supporting the jury’s determination regarding future dangerousness.
In his twentieth point of error, the appellant challenges the legal sufficiency of the evidence supporting the jury’s determination regarding the future dangerousness issue, particularly in light of the appellant’s age of forty-four. In points of error twenty-two and twenty-three, the appellant argues that the trial court violated the Due Process Clause of the Fourteenth Amendment and the Eighth Amendment’s prohibition against cruel and unusual punishment by sentencing the appellant to death without legally or factually sufficient evidence to support the jury’s answer to the future dangerousness special issue, especially given the appellant’s age and the fact that he would be in prison for at least forty years or until he reached age eighty-four.
A jury may consider a variety of factors when determining whether a defendant will pose a continuing threat to society.
Although the appellant pleaded guilty, the jury heard testimony regarding the extraordinary violence of the offenses against the Copeland family. The appellant committed an unprovoked nighttime attack against a family in their home, killing the parents and attempting to kill their two children. The appellant argues that the State was required to offer some further evidence to support the jury’s future dangerousness finding. This Court, however, has previously found that the circumstances of an offense itself, if severe enough, may be sufficient to support an
Nevertheless, the State did present further evidence regarding the appellant’s future dangerousness in the form of testimony from psychologist Dr. Thomas G. Allen. Allen reviewed offense, forensic, and autopsy reports of the offense, witness statements, jail records, and documentation reflecting other incidents. Allen requested, but was denied, an interview with the appellant. Allen testified that he examined information about the offense, as well as the appellant’s history, and then assessed pervasive issues and characteristics to determine whether there would be “energy or motivation to continue that kind of behavior in the future.” Allen determined there would be in the appellant’s case. Allen told the jury that the appellant is “capable of an intense level of very hostile, rage-filled violence” and “maintains a belief system that generates and sustains” violence, which “hasn’t really diminished” since the offense.
A rational jury could determine beyond a reasonable doubt from this evidence that there was a probability that the appellant would commit criminal acts of violence in the future so as to constitute a continuing threat to society. Points of error twenty, twenty-two, and twenty-three are overruled.
EXPERT WITNESS TESTIMONY
In points of error forty-one through forty-four, the appellant challenges the admission of testimony from the State’s expert witness, Dr. Thomas G. Allen. The appellant alleges that Allen lacked the qualifications to testify regarding the appellant’s future dangerousness and that Allen’s testimony lacked scientific reliability.
To preserve error for appellate review, a party must make a timely and specific objection or motion at trial, and there must be an adverse ruling by the trial court.
The appellant argues that a motion in limine filed to exclude psychiatric or psychological testimony regarding future dangerousness preserves these issues for review. A motion in limine, however, is a preliminary matter and normally preserves nothing for appellate review.
The appellant made no objections to Allen’s testimony at trial. As a result, the appellant has waived appellate review of
CONSTITUTIONALITY OF THE TEXAS DEATH PENALTY SCHEME
In points of error twelve, thirteen and fourteen, the appellant challenges the constitutionality of the future dangerousness special issue. In point of error twelve, citing to Ring v. Arizona
In his fifteenth and sixteenth points of error, the appellant alleges that Article 37.071 violates the Eighth Amendment’s prohibition against cruel and unusual punishment and the Due Process Clause of the Fourteenth Amendment because jurors were instructed to find him á future threat to “society” although he would remain incarcerated for a minimum of forty years, until he was at least 84 years old. The appellant argues that the trial court should have instructed the jury that the term “society,” as used in the context of the special issue in this trial, means prison society for the next forty years, after which parole is a possibility. This Court has repeatedly stated that terms such as “society” require no special definition, and the appellant has provided us with no reason to revisit the issue here.
In points of error seventeen through nineteen, the appellant argues that Article 37.071 violates the Eighth Amendment’s prohibition against cruel and unusual punishment and the Equal Protection and Due Process Clauses of the Fourteenth Amendment because the jury did not have the option to sentence the appellant to life without parole. This Court has previously considered and rejected these claims,
In his twenty-fourth point of error, the appellant complains that the mitigation special issue violated his due process rights because the burden of proving
In points of error twenty-five through thirty, the appellant argues that the mitigation special issue is unconstitutional because it did not provide a means for jurors to give effect to the mitigating circumstances warranting a life sentence, shifted the burden of proof to the appellant to prove that sufficient mitigating circumstances existed to warrant a life sentence, and did not require jurors to consider mitigating circumstances alone in determining whether a life sentence was warranted. This Court has previously considered and rejected these and similar claims.
In points of error thirty-one and thirty-two, the appellant argues that the Texas death penalty scheme is unconstitutional because it limits jurors to consideration of “relevant” mitigating circumstances, thereby constricting the jury’s consideration of mitigation that might warrant a life sentence. The jury was instructed in several places in the charge regarding the evidence it should consider. The jury was told, “It is necessary, now, for you to determine from all the evidence in the case, answers to certain questions called ‘Special Issues’ in this charge.” The court’s charge to the jury went on to state that “[i]n determining your answers to the questions, or special issues, submitted to you, you shall consider all the evidence submitted to you in this whole trial. You shall consider all evidence submitted to you....”
The jury was further instructed that it should consider “all relevant mitigating circumstances, if any, supported by the evidence” from the trial. Finally, the jury was asked whether “[t]aking into consideration all of the evidence ... do you find that there is a sufficient mitigating circumstance” warranting a life sentence be imposed rather than a sentence of death. An instruction that prohibits a jury from basing its sentencing decision on factors that are irrelevant to the issues at trial is not unconstitutional.
In points of error thirty-five through thirty-seven, the appellant contends that the Texas death penalty scheme is unconstitutional for failing to provide a mechanism for meaningful appellate review of the jury’s decision regarding mitigating circumstances. This claim has been previously rejected by this Court.
In points of error thirty-three and thirty-four, the appellant complains that
In points of error thirty-seven and thirty-eight, the appellant alleges that the jury instructions unconstitutionally instructed jurors that ten must agree to vote “no” on one of the first two special issues, when in fact only a single “no” vote was required for the appellant to receive a life sentence. Additionally, in point of error thirty-rune, the appellant complains that the trial court violated the Sixth Amendment by failing to instruct the jury that a “no” vote by a single juror would result in a life sentence rather than the death penalty. This Court has already rejected these and similar arguments.
We affirm the judgment of the trial court.
. Tex. Penal Code Ann. § 19.03(a)(7).
. Art. 37.071, § 2(g). Unless otherwise indicated all references to Articles refer to the Code of Criminal Procedure.
. Art. 37.071, § 2(h).
. 674 S.W.2d 315 (Tex.Crim.App. 1984).
. Id. at 318-19
. Id. at 318.
. Id.
. Id. at 319, n. 2.
. Id.
. Id.
. Id.
. Holland v. State, 761 S.W.2d 307, 313 (Tex.Crim.App. 1988).
. Id.
. Id.
. 570 S.W.2d 937 (Tex.Crim.App. 1978).
. Id. at 938 (the verdict simply stated that the jury had "heretofore found the Defendant guilty.”).
. TexCode Crim. Proc. Ann. art. 37.01 (Vernon 2006).
. Brinson, 570 S.W.2d at 939.
. Id.
. In Hamilton v. State, No. 74,523, 2004 WL 3094382 (Tex.Crim.App. Oct. 13, 2004) (Not designated for publication), this Court stated that, “by entering a plea of guilty before a jury and having a jury return a verdict regarding the special issues,” an appellant is deemed to have received a trial by jury.
. 274 U.S. 220, 223, 47 S.Ct. 582, 71 L.Ed. 1009 (1927).
. Id.; see also United States v. Woods, 696 F.2d 566, 570 (8th Cir. 1982) ("once guilt has been established whether by plea or by verdict and nothing remains to be done except pass sentence, the defendant has been convicted within the intendment of Congress").
. See Frame v. State, 615 S.W.2d 766, 768 n. 1 (Tex.Crim.App. 1981) (citing Basaldua v. State, 481 S.W.2d 851 (Tex.Crim.App. 1972)).
. We note that the trial court’s actions did not create the clearest format for the jury to
. 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966).
. Art. 46B.003.
. Alcott v. State, 51 S.W.3d 596, 599, n. 10 (Tex.Crim.App. 2001).
. Id.
. McDaniel v. State, 98 S.W.3d 704, 710 (Tex.Crim.App. 2003).
. Art. 46B.004.
. 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
. 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).
. Boykin, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274.
. Brady, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747.
. Carranza v. State, 980 S.W.2d 653, 656 (1998).
. 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986).
. Id.
. See Art. 37.071 § 2(b)(1).
. Renteria v. State, 206 S.W.3d 689, 707 (Tex.Crim.App. 2006); Russeau v. State, 171 S.W.3d 871, 878 n. 1 (Tex.Crim.App. 2005), cert, denied, 548 U.S. 927, 126 S.Ct. 2982, 165 L.Ed.2d 989 (2006).
. See Wardrip v. State, 56 S.W.3d 588, 594 (Tex.Crim.App. 2001); see also Keeton v. State, 724 S.W.2d 58, 61 (Tex.Crim.App. 1987).
. Ladd v. State, 3 S.W.3d 547, 557-58 (Tex.Crim.App. 1999).
. Conner v. State, 67 S.W.3d 192, 199 (Tex.Crim.App. 2001).
. TexjR.App. P. 33.1(a); Tucker v. State, 990 S.W.2d 261, 262 (Tex.Crim.App. 1999).
. Ibarra v. State, 11 S.W.3d 189, 197 (Tex.Crim.App. 1999).
. Tex.R.App. P. 33.1(a); Aldrich v. State, 104 S.W.3d 890, 894-95 (Tex.Crim.App. 2003).
. Saldano v. State, 70 S.W.3d 873, 889 & nn. 73 & 74 (Tex.Crim.App. 2002).
. Id.
. Gonzales v. State, 685 S.W.2d 47, 50 (Tex.Crim.App. 1985).
. Id.
. 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).
. 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
. See Robison v. State, 888 S.W.2d 473, 481 (Tex.Crim.App. 1994); see also Rayford v. State, 125 S.W.3d 521, 533 (Tex.Crim.App. 2003), and Kemp v. State, 846 S.W.2d 289, 308-09 (Tex.Crim.App. 1992).
. Blue v. State, 125 S.W.3d 491, 504-05 (Tex.Crim.App. 2003); Earhart v. State, 877 S.W.2d 759, 767 (Tex.Crim.App. 1994).
. Arnold v. State, 873 S.W.2d 27, 39-40 (Tex.Crim.App. 1993).
. See Perry v. State, 158 S.W.3d 438, 446-48 (Tex.Crim.App. 2004); Blue, 125 S.W.3d at 500-01.
. McFarland v. State, 928 S.W.2d 482 (Tex.Crim.App. 1996); Morris v. State, 940 S.W.2d 610, 614-15 (1996); Lawton v. State, 913 S.W.2d 542, 555-56 (Tex.Crim.App. 1995); Barnes v. State, 876 S.W.2d 316, 330 (1994).
. California v. Brown, 479 U.S. 538, 543, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987).
. See Prystash v. State, 3 S.W.3d 522, 536 (Tex.Crim.App. 1999).
. Martinez v. State, 924 S.W.2d 693, 698 (Tex.Crim.App. 1996); Garcia v. State, 887 S.W.2d 846, 859 (Tex.Crim.App. 1994).
. Id.
. See Feldman v. State, 71 S.W.3d 738, 757 (Tex.Crim.App. 2002); Lawton, 913 S.W.2d at 555-56.
Concurring Opinion
filed a concurring opinion.
I disagree with the majority’s analysis regarding the admissibility and voluntariness of Appellant’s videotaped statement. Because Appellant pleaded guilty in front of the jury and the trial proceeded to the punishment phase, there is no need for the court to analyze the voluntariness of his statement to police on the morning of the shootings. He claims that he did not voluntarily waive his right to remain silent and his right to counsel because he was drunk when the statement was taken and because he was not aware that his brother-in-law, an attorney, had sent a fax directing officers not to interview him.
The situation would be different if there were a plea bargain agreement. If his guilty plea was a result of a negotiation between Appellant and the State, then it would be appropriate for us to consider the
. We note that the trial court's permission to appeal does not apply in direct appeals such as the case before us.
. Even at the pretrial hearing on the motion to suppress the videotaped statement, Appellant did not contest the veracity of the facts he related in his confession, just his ability to knowingly waive his rights to remain silent and to have an attorney present.
Reference
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- Barney Ronald FULLER, Jr., Appellant v. the STATE of Texas
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