Edward Wayne Bryant v. State ( 2007 )

Opinion filed February 8, 2007

Opinion filed February 8, 2007

                                                                        In The

    Eleventh Court of Appeals

                                                                 ____________

                                                          No. 11-05-00238-CR

                                                     __________

                               EDWARD WAYNE BRYANT, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                         On Appeal from the 266th District Court

                                                           Erath County, Texas

                                                Trial Court Cause No. CR 12033

                                                                   O P I N I O N

Edward Wayne Bryant was indicted in Cause No. CR 12033 for the capital murder of Henry Lee Bryant III and in Cause No. CR 12034 for the capital murder of Anita Bryant. The State elected to try Cause No. CR 12033 first and waived the death penalty in that cause.  The jury found appellant guilty of the capital murder of Henry Lee Bryant III, and the trial court sentenced appellant to confinement for life in the Institutional Division of the Texas Department of Criminal Justice.

In appellant=s first four points of error, he argues that his oral statements to the Texas Rangers should have been suppressed because they questioned him prior to advising him of his Miranda rights.^[1]  In appellant=s fifth and sixth points of error, he argues that the evidence was legally and factually insufficient to sustain his conviction.  And in appellant=s seventh and final point of error, he argues that the trial court erred in admitting hearsay testimony from a witness who heard Anita Bryant say she did not want appellant and his friend coming back to her house.  We affirm.

The Motion to Suppress

Texas Ranger Freeman Martin was the only witness at the pretrial hearing on appellant=s motion to suppress.  Ranger Martin and Ranger David Rainwater were stationed in Houston.  Ranger Martin received a telephone call from Ranger Joe Hutson around 4:00 p.m. on August 9, 2004.  Ranger Hutson, who was stationed in Stephenville, was at the Dublin residence of Henry and Anita Bryant. There was a large amount of blood inside the residence, and Ranger Hutson was trying to locate the couple.

Ranger Hutson told Ranger Martin that Henry Bryant had a brother named Wayne who lived in the Houston area and that the brother was the only family member who might be contacted. Ranger Hutson told Ranger Martin that neighbors of the Bryants had seen a dark-colored, four-door vehicle parked in front of their residence on August 7 and that there were some Abloody shoe impressions@ at the residence.  Ranger Hutson asked Ranger Martin to interview the brother to see if he could provide information concerning Henry and Anita Bryant.

A research specialist for the Texas Rangers located the address of a person named Edward Wayne Bryant who at one time had lived at the same address as Henry Bryant. The current address was an apartment in Houston. Ranger Martin spoke with the apartment manager at approximately 6:30 p.m. on August 9, but the manager said that he had not seen Edward Wayne Bryant in a week.  The manager then gave the Rangers a copy of the lease agreement which listed Henry Bryant as the emergency contact. 

The apartment manager called Ranger Martin at 1:00 a.m. on August 10, stating that appellant had returned and was Acarrying boxes of merchandise and shopping bags@ into the apartment.  The Rangers went back to the apartment building, arriving there at 2:15 a.m.; noticed a dark four-door Kia passenger car; and went directly to appellant=s apartment.  When appellant answered their knock, Ranger Martin told him that his brother and sister-in-law were missing and that they wanted to know if appellant knew of any enemies of the Bryants or where they might be located.  Appellant agreed to assist in any way that he could. Because of the apartment=s location in a bad area of Houston and the sensitive nature of their visit, Ranger Martin asked if they could step inside the apartment to visit privately. Appellant commented that his apartment was messy but let the Rangers in.

Entering the small apartment, Ranger Martin noticed that there were shopping bags from several businesses and new VCRs still in their boxes.  When Ranger Martin asked appellant if he had been shopping, appellant said that he had saved some money and had gone shopping.  Ranger Martin next noticed a piece of spiral notebook paper lying on the bed just inside the front door of the apartment. The paper had three handwritten signatures AAnita H. Bryant@ and one AAnita H.@  When asked about the paper, appellant said that he did not know where the paper came from.

Ranger Martin then asked appellant if he had been to visit Henry and Anita in Dublin.  Appellant replied that he had been to visit them three weeks ago, that he went alone, and that he had been surprised that the visit went well.  Ranger Rainwater asked why, but appellant ignored the question. Ranger Martin then asked appellant where he had been the past few days, and appellant said that he had been in Galveston camping out with a friend named David Mack. Because Ranger Martin had not heard of David Mack, he asked how to contact Mack.  Appellant said that Mack lived in Edna.  Appellant also told Rangers Martin and Rainwater that he had rented a car from Avis for the trip to Galveston and described the Kia that they had seen outside the apartment building.

Ranger Martin then noticed Awhat appeared to be dried blood on the black tennis shoes [appellant] was wearing.@ Ranger Martin asked appellant to show him the bottom of appellant=s tennis shoes, and appellant complied.  Ranger Martin noted that the sole pattern appeared to be very similar to the footprint impressions that Ranger Hutson had described seeing at the Bryants= residence.  Ranger Martin testified that at that point the Rangers did not believe that they had probable cause to arrest appellant, that appellant was not under arrest, and that they would have had to leave if appellant had asked them to leave.  Ranger Martin said that he simply asked appellant for written consent to search the apartment and that appellant agreed.  Appellant also gave written permission for the Rangers to search the car. Ranger Martin testified that appellant freely and voluntarily signed the consent to search.

Ranger Martin did a pat-down search of appellant and removed from his pockets Texas drivers= licenses and credit cards that were in the names of Henry and Anita Bryant.  The Rangers seized appellant=s tennis shoes, a black spiral notebook containing police scanner frequencies, a Wal-Mart sack containing miscellaneous papers and documents bearing the names of Henry and Anita Bryant, two Uniden walkie-talkie radios, a Radio Shack police scanner, a Texas map that was opened and folded to the Dublin area, a new Emerson 4-head VCR, a new Sanyo 4-head VCR, a new Cyber Home DVD player, a Dual Trunking 1000 channel scanner, and a Symphonic 9-inch TV/VCR combination unit. Noting that appellant became more and more nervous as they searched, the Rangers told him that he was not under arrest but that for their safety and his safety they were placing him in handcuffs. Ranger Martin did not ask appellant any more questions.  After searching the car, the Rangers took appellant to the Harris County District Attorney=s office where they detained him until Ranger Hutson could secure an arrest warrant in Erath County. They served the arrest warrant on appellant at approximately 6:00 a.m. on August 10.  At that point, the Rangers read appellant his Miranda and statutory rights, and appellant refused to answer any further questions.

Ranger Martin stated that he and Ranger Rainwater then went to Edna and located David Mack who lived at his brother=s residence.  Mack gave them a statement implicating himself and appellant in the murders of Henry and Anita Bryant.  Ranger Martin testified that, prior to that time, he did not know the Bryants were dead. Mack agreed to take the Rangers to the location in Oklahoma where he and appellant had taken the bodies, and he subsequently took Rangers Hutson and Drew Carter to the location.

During cross-examination, Ranger Martin stated that he had not gone to appellant=s apartment Awith the intent to arrest anybody,@ that when they asked appellant if they could speak with him inside appellant=s apartment it was not for the purpose of looking around, and that appellant had opened the apartment door and invited them in.  Ranger Martin acknowledged that, when he saw the AAnita Bryant@ signatures, he believed that he had authority for an investigative detention but not enough for a formal arrest. Ranger Martin also confirmed that he did not discover the drivers= licenses and credit cards until after appellant had given his written consent to search. Ranger Martin stated that he placed the handcuffs on appellant while they were conducting the search because it appeared that appellant was looking around the apartment for a weapon.

The court made the following findings:  appellant=s oral statements made prior to his being handcuffed were voluntarily given and made without coercion, threats, or promises; those oral statements were not the result of custodial interrogation because appellant was not under arrest or in custody at the time of the oral statements; and appellant was free to leave or ask the officers to leave until the time that he was handcuffed.  The court then held that appellant=s oral statements made before he was handcuffed were admissible as evidence and overruled appellant=s motion to suppress.

A trial court=s ruling on a motion to suppress is reviewed for an abuse of discretion.  Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002).  In reviewing a trial court=s ruling on a motion to suppress, appellate courts must give great deference to the trial court=s findings of historical facts as long as the record supports the findings.  Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).  Because the trial court is the exclusive fact-finder, the appellate court reviews evidence adduced at the suppression hearing in the light most favorable to the trial court=s ruling.  Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000).  We also give deference to the trial court=s rulings on mixed questions of law and fact when those rulings turn on an evaluation of credibility and demeanor.  Guzman, 955 S.W.2d at 89.  Where such rulings do not turn on an evaluation of credibility and demeanor, we review the trial court=s actions de novo.  Id.; Myers v. State, 203 S.W.3d 873 (Tex. App.CEastland 2006, pet. ref=d).

  In appellant=s first three points of error, he asserts that his rights guaranteed under the Fifth and Fourteenth Amendments to the U.S. Constitution; Article 1, section 10 of the Texas Constitution; and Article 38.22 of the Texas Code of Criminal Procedure^[2] were violated when the Rangers questioned him prior to advising him of his Miranda rights.  Appellant=s fourth point of error asserts that the trial court erred in overruling his motion to suppress the oral statements for the same reasons. 

Appellant=s arguments are based on a contention that he was Ain custody@ from the time the Rangers first contacted him and, therefore, the Rangers were required to give him the Miranda warnings and to comply with the requirements of Article 38.22.  We disagree.  There are three distinct types of encounters between law enforcement officers and citizens: the voluntary encounter, the investigative detention, and the arrest (custody).  See State v. Perez, 85 S.W.3d 817, 819 (Tex. Crim. App. 2002).  The procedural safeguards referred to by appellant in his first four points of error only apply when the citizen is in custody or under arrest.  Miranda, 384 U.S. at 444; Dowthitt v. State, 931 S.W.2d 244, 254-55 (Tex. Crim. App. 1996).  The trial court correctly held that appellant was not in custody when he made the following oral statements to Ranger Martin:  that he had visited his brother three weeks earlier, that he had spent the last few days camping with David Mack in Galveston, and that he did not know where the page with the signatures of AAnita Bryant@ had come from.

 A person is Ain custody@ only if, under the circumstances, a reasonable person would believe that his freedom of movement was restrained to the degree associated with a formal arrest.  Stansbury v. California, 511 U.S. 318, 322 (1994); Dowthitt, 931 S.W.2d at 254.  The Areasonable person@ standard presupposes an innocent person.  Florida v. Bostick, 501 U.S. 429, 438 (1991); Dowthitt, 931 S.W.2d at 254.  A subjective intent of law enforcement officials to arrest is irrelevant unless that intent is somehow communicated or otherwise manifested to the suspect.  Stansbury, 511 U.S. at 322-26; Dowthitt, 931 S.W.2d at 254. Ranger Martin maintained that he did not have probable cause to arrest appellant until after he had seized the items during the search and had handcuffed appellant.  The only action that could arguably be considered a signal to appellant that he was being arrested was when he was handcuffed, and that was well after appellant had made the oral statements.  Appellant=s first four points of error are overruled.

Legal and Factual Sufficiency of the Evidence

In his fifth and sixth points of error, appellant contends that the evidence is legally and factually insufficient to support his conviction.  In order to determine if the evidence is legally sufficient, we must review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex. Crim. App. 2000).  To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light.  Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996).  Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence.  Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11.  The jury, as the finder of fact, is the sole judge of the weight and credibility of the witnesses= testimony.  Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 1981), art. 38.04 (Vernon 1979).

Appellant=s first argument is that the prosecution failed to prove every element of the offense of capital murder.  The grand jury indicted appellant under Tex. Pen. Code Ann. ' 19.03(a)(7) Vernon Supp. 2006) for the murder of more than one person during the same criminal transaction:

[Appellant] on or about the 7th day of August, A.D., 2004, . . . did then and there intentionally or knowingly cause the death of an individual, namely, Henry Lee Bryant, III, by hitting or striking him with a hammer or mallet, and did then and there intentionally or knowingly cause the death of another individual, namely, Anita Bryant by hitting or striking her with a hammer or mallet, and both murders were committed during the same criminal transaction.

Appellant asserts that there is little or no evidence that appellant caused their deaths by hitting or striking them with a hammer or mallet.  Appellant=s alternative argument is that he was compelled to participate in this crime by Mack=s threat of imminent death or serious bodily injury if he did not participate.

Appellant=s first argument ignores the inclusion in the court=s charge of a charge on the law of parties. A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both. Tex. Pen. Code Ann. ' 7.01(a) (Vernon 2003).  A person is criminally responsible for an offense committed by the conduct of another if, acting with the intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.  Tex. Pen. Code Ann. ' 7.02(a)(2) (Vernon 2003).

The State presented eighteen witnesses who testified concerning DNA and other physical evidence that demonstrated that appellant had been directly involved in the two murders.  The State=s first witness was the biological son of the Bryants.  Henry Lee Bryant IV identified a watch recovered on the male body in Oklahoma as belonging to his father.  He testified that his parents owned a Chevrolet pickup and a gray Toyota Camry.  Bryant also stated that he had provided some of his DNA to Brent Watson at the Texas Department of Public Safety Laboratory in Waco, and he identified appellant as his uncle.

Karen Wright testified that Henry Bryant had worked in maintenance at the Dr. Pepper Bottling Plant and that Anita Bryant had worked in the museum there.  She testified that the Bryants had collected Dr. Pepper memorabilia prior to their moving to Dublin and that their collection was valuable. Wright stated that she knew that appellant had visited the Bryants because she overheard a conversation in the Dr. Pepper soda shop in which Anita stated that she did not want appellant and his friend coming back to their house or staying at their house.  In response to appellant=s hearsay objection, the court allowed the testimony as an exception to the hearsay rule under Tex. R. Evid. 803(3) as a statement of Anita Bryant=s then-existing mental or emotional state. Wright also testified that Anita Bryant had been at work on August 6.  When Anita Bryant failed to show up for work on August 9, Wright and another employee went to the Bryants= home, opened the back door, saw the Bryants= dog barking frantically, and called Chief of Police Lannie Lee of the Dublin Police Department.  Wright related the efforts to locate the Bryants.  Wright related that, when the police entered the Bryants= garage, they called the Texas Rangers and started putting up yellow police tape.

The next witness was the Bryants= next-door neighbor, Debra Carol Franklin.  On Saturday, August 7, she saw Henry Bryant starting to mow his lawn. Around dark on August 7, she noticed a car parked close to the Bryants= garage as if the Bryants had company.  Around 1:00 a.m. on August 8, when her daughter arrived home, Franklin noticed that the outside lights on the Bryants= garage were on which was unusual.

Chief of Police Lannie Lee, the fourth witness, testified about the discovery of what appeared to be dried blood in the garage and a significant quantity of blood on the second floor of the garage with a tooth lying in the middle of the blood. Chief Lee and Officer Tommy Gene Williford of the Dublin Police had responded to Wright=s telephone call on August 9.  Lieutenant Benny Payne of the Dublin Police also was with Chief Lee when they discovered the blood.  After their discovery, they notified Texas Ranger Joe Hutson and turned the investigation of the crime scene over to him.

Lieutenant Payne, the fifth witness, described the crime scene and how they tried to find personal effects (drivers= licenses, billfolds, credit cards, or checkbooks) of the Bryants.  The officers believed that the Bryants might have been robbed.  In checking on the Bryants= bank accounts, Lieutenant Payne saw checks purporting to be signed by Anita Bryant and payable to appellant.  State=s Exhibit 52 was identified as a check for $9,500, from the Guaranty Bank in Pearland, payable to appellant and drawn on the account of H.L. Bryant III and Anita Bryant.  State=s Exhibit 53 was identified as a check for $3,700, from the First National Bank of Dublin-DeLeon-Gustine, payable to appellant and drawn on the account of H.L. Bryant III and Anita Bryant.  Both checks were dated August 6, 2004, contained the statement Apayment on settlement,@and had been endorsed by appellant.  Lieutenant Payne testified that he located twenty-two letters from appellant to Henry Bryant.  He also identified evidence that he had received from the medical examiners in Oklahoma City.

Officer Williford, an investigator with the Dublin Police, was the sixth witness.  Officer Williford testified that he helped the lab technicians from the Waco crime lab in their investigation of the garage crime scene. Officer Williford stated that he had not been able to locate any type of billfold for either of the Bryants but that he did find credit cards, credit card statements, and bank statements. Officer Williford identified State=s Exhibit 54 which was a credit card statement showing that Anita Bryant=s Bank One credit card had been used on August 8, 2004, at Brookshire=s in Clifton, Best Buy in Waco, Golden Corral in Waco, and Wal-Mart in Bellmead.  The statement reflected that her credit card was used on August 9, 2004, at a Shell station in Houston, at a Wal-Mart in Houston, at a McDonald=s in Houston, at a Radio Shack in Victoria, at a Wal-Mart in Victoria, at a Mexican restaurant in Victoria, and at a Chevron station in Rosenberg.

Texas Ranger Joseph Benjamin Hutson was the next witness.  Ranger Hutson was called by Lieutenant Payne on August 9 to the Bryants= residence.  When he entered the garage, Ranger Hutson observed an unfinished staircase with drag marks down the staircase that appeared to be dried blood. He then observed further bloody drag marks in a room at the top of the staircase.  There was blood on the ceiling, on the walls, and on the rafters and a human tooth lying in one of the pools of blood.  Near the bottom of the stairs, Ranger Hutson saw partial bloody footprints with a distinctive pattern, a lot of blood (one-half inch deep) in the bathroom, and blood in the main area of the garage.  It appeared that someone had tried to clean up the blood, but there was too much to clean up.  There was blood dripping through the garage ceiling.  Pictures of the crime scene were introduced through Ranger Hutson. Ranger Hutson testified that the hitting of someone with a hammer or mallet could account for the amount and splattering of blood in the garage.

Ranger Hutson called the Department of Public Safety Crime Laboratory personnel in Waco and Austin to investigate the crime scene.  The Waco lab provided trace evidence and DNA experts, and the Austin lab provided fingerprint experts and crime scene photographers.  Ranger Hutson testified that, in his opinion, the blood evidence at the scene indicated that the injuries to the victims occurred in the same criminal transaction.

Ranger Hutson stated that, when people are missing, the Rangers try to contact relatives. He knew that the son was in California and that the only other relative was appellant. Ranger Hutson called the Ranger Headquarters in Houston and was put in contact with Ranger Martin.  He explained to Ranger Martin that he was working a missing persons case, that the Bryants probably had been killed, that he had some distinctive bloody sole prints, but that he had no suspects.  Ranger Hutson asked Ranger Martin to see if he could locate appellant. Their conversation was at approximately 4:00 p.m. on Monday, August 9, 2004.  Ranger Martin called Ranger Hutson back at around 7:00 p.m., telling him that he had gone to appellant=s apartment but that no one was home.  Ranger Hutson told Ranger Martin not to spend a lot of time running a surveillance on an apartment appellant might not live in and to just check by the next morning to see if he could interview appellant.  Ranger Hutson said that he then received a call at 2:15 a.m. the next morning from Ranger Martin who stated that he and Ranger Rainwater had heard from the apartment manager and that the two Rangers were on their way to interview appellant.  Based on his receiving another call from Ranger Martin an hour or so later, Ranger Hutson obtained an arrest warrant for appellant and faxed it to Rangers Martin and Rainwater at the district attorney=s office in Houston.

Ranger Hutson also worked on collecting video evidence of who might have used Anita Bryant=s credit card.  Ranger Hutson identified State=s Exhibit 61, which is a video of appellant and Mack using Anita Bryant=s credit card at the Wal-Mart in Houston on the morning of August 9.  By 10:00 a.m. on August 10, Ranger Hutson and another Ranger looked at the video at the Wal-Mart store in Houston.  On August 11, Ranger Hutson took possession of appellant=s tennis shoes from Ranger Martin and delivered them to the Waco crime lab.  Ranger Hutson also identified State=s Exhibit 5, Mack=s shoes, and acknowledged that both pairs of shoes appeared to have the same sole pattern.  Ranger Hutson also described how Mack had taken the Rangers to where the bodies of the Bryants were located in Oklahoma.  The bodies were wrapped in U-Haul blankets with plastic trash bags over the blankets held with duct tape.

Finally, Ranger Hutson identified records from the Wells Fargo Bank of appellant=s account that showed appellant had received $200 in cash when he deposited the $3,700 and $9,500 checks drawn on the Bryants= accounts.  Ranger Hutson also identified a letter from Henry Bryant to appellant that was found in appellant=s apartment.  In the letter, Henry Bryant advised appellant that he could not give appellant any more money.  During cross-examination, appellant=s attorney asked Ranger Hutson if Mack had taken them to where the hammers were. Ranger Hutson replied that Mack had told them that the hammers were just a few miles away from where the Bryants= bodies were discovered but that Mack could not recall that location.  On redirect, Ranger Hutson said that Mack had said that they used more than one hammer. On recross, appellant asked if the hammers that were used to kill the Bryants came from the workbench in the garage. Ranger Hutson replied, ANo, sir, according to the information we had, they brought the hammers with them.@

  Ranger Martin was the eighth witness.  Ranger Martin repeated the testimony that he gave at the motion to suppress hearing concerning the interview of appellant, his observation of all the new merchandise in appellant=s apartment, the search and seizure of items in appellant=s apartment, and the fact that appellant had quit his job at Luther=s Barbecue two weeks prior to August 9, 2004.  Ranger Martin admitted that he did not know who signed the three signatures of AAnita H. Bryant@ and the one signature of AAnita H.@ that he found in appellant=s apartment but that it appeared that someone was practicing forging her signature. Ranger Martin identified the bundle of the Bryants= credit cards and their drivers= licenses that he found in appellant=s pockets after appellant had signed the written consent to search.  Numerous exhibits for the State relating to the use of the Bryants= credit cards and checks were introduced through Ranger Martin.  He also identified the police scanner and the black spiral notebook found in appellant=s apartment that had the law enforcement frequencies that could be monitored with a police scanner.

After placing appellant under arrest, Rangers Martin, Rainwater, and Aldophus Pressley drove to Edna and contacted Mack.  They obtained a written consent to search his residence.  They noticed blood on Mack=s tennis shoes and his T-shirt and seized them.  A photograph of Mack=s hands showed small cuts.  Ranger Martin testified that Mack agreed to take them to Oklahoma to find the bodies.  Mack told him that three hammers were used.  Ranger Martin testified that Mack=s residence was much larger than appellant=s apartment.  Mack also had a 7-Up bottle that came from the Bryants= home.  Mack told Ranger Martin that he and appellant had been planning for months to kill and rob the Bryants.

The next witness was Dr. Inas Z. Yacoub with the Oklahoma Medical Examiner=s Office.  Dr. Yacoub, who is Board Certified in Forensic Pathology, reported her results from the autopsies of the bodies of Henry and Anita Bryant.  Henry Bryant had at least ten blunt force injuries to his head that were associated with fractures to his skull.  Brain matter could be seen coming out of one of the wounds.  There were two rib fractures on his right side.  Dr. Yacoub characterized the fractures of Henry Bryant=s middle and ring fingers as indicative of a person trying to ward off a blow.  Dr. Yacoub testified that the blunt force traumas were consistent with blows from a hammer or mallet.  Dr. Yacoub=s autopsy of Anita Bryant revealed similar blunt force traumas to her head with one skull fracture showing brain matter. Anita Bryant was missing a tooth. Dr. Yacoub=s opinion was that the cause of Anita Bryant=s death was blunt force trauma to the head and neck, injuries that could be caused by a hammer or mallet.

The next witness was Erin Casmus with the Texas Department of Public Safety Crime Lab in Waco.  Casmus worked with the DNA Serology Section.  Casmus=s job was to prepare items of evidence so they could be analyzed by the DNA expert, Brent Watson.  There were over fifty items that were received by her laboratory, including swabs of stains from the second floor of the garage, the bathroom floor, the trunk liner of the Toyota Camry, appellant=s tennis shoes and belt, and Mack=s tennis shoes.

Brent Wayne Watson, a criminalist in the DNA Serology Section of the Waco lab, was the next witness.  Watson described his participation in the investigation of the crime scene in Dublin on August 9, the collection of samples from there, and his subsequent DNA analysis.  Watson testified that the stain from appellant=s right shoe was consistent with a male DNA profile and the stain on his left shoe was consistent with a mixture of a male DNA profile and a female DNA profile.  The stain on appellant=s belt was the same profile as was found on appellant=s right shoe and in the bathroom of the garage. The muscle samples from the Bryants= bodies were too degraded for Watson to extract DNA samples.  Instead, he collected a sample from their son and sent the various items to the University of North Texas Health Science Center, DNA Identity Laboratory, in Fort Worth.

George William Adams, the evidence custodian for the DNA Identity Laboratory in Fort Worth, testified as to the chain of custody for the items of evidence sent to them by the Waco lab.  Christina Capt, a forensic DNA analyst at the DNA Identity Laboratory in Fort Worth, was the next witness.  Capt was able to obtain partial DNA profiles from the Bryants= muscle tissue.  She was also able to determine that Henry Bryant IV was the biological son of the Bryants.  Capt=s DNA analysis proved that the blood of Henry and Anita Bryant was on appellant=s shoes and belt.

Darbi Rierson with the Oklahoma State Bureau of Investigation identified fingerprints that she had extracted from the body of Anita Bryant, but she was unable to extract fingerprints from the body of Henry Bryant.  Walter Henson, a latent print examiner with the Texas Department of Public Safety, testified that he was involved in examining the crime scene on August 9, 2004.  Henson confirmed that the fingerprint he received from Rierson was Anita Bryant=s by comparing it with the print from her driver=s license.  Henson also identified fingerprints of appellant and Mack that were left at the Bryants= residence and the palm print of appellant that was left on Anita Bryant=s car.

Texas Ranger Andrew Carter Jr. from Houston was the next witness.  Ranger Carter testified about the videotapes from Wal-Mart on Dunvale Street in Houston and documents and digital images that he obtained from Ann Westphal with Wells Fargo Bank in Houston.  Westphal, a bank investigator with Wells Fargo Bank, testified that she investigates potentially fraudulent or criminal activities in the banking system.  She identified the digital images of appellant making the $13,000 deposit on Monday, August 9, 2004, at the Wells Fargo Bank branch on Louisiana.

George Adam Sanchez, a loss prevention officer for Wal-Mart in Houston, was the eighteenth witness.  Sanchez identified the video of appellant and Mack using Anita Bryant=s credit card at Wal-Mart on August 9, 2004.

 Ranger Hutson was recalled, and he testified as to a number of exhibits relating to the credit card transactions and banking transactions engaged in by appellant and Mack shortly after the Bryants were murdered.  The State then rested.

Appellant=s Affirmative Defense of Duress

Appellant=s trial strategy was to show that he had been compelled to participate in the crime by Mack=s threat of imminent death or serious injury.  Tex. Pen. Code Ann. ' 8.05 (Vernon 2003) provides as follows:

(a) It is an affirmative defense to prosecution that the actor engaged in the proscribed conduct because he was compelled to do so by threat of imminent death or serious bodily injury to himself or another.

. . . .

(c) Compulsion within the meaning of this section exists only if the force or threat of force would render a person of reasonable firmness incapable of resisting the pressure.

(d) The defense provided by this section is unavailable if the actor intentionally, knowingly, or recklessly placed himself in a situation in which it was probable that he would be subjected to compulsion.

Appellant was the only defense witness.  Appellant testified that he met Mack at the Ben Reid Center, a halfway house in Houston, while they lived there for two years as part of their parole. Both were convicted sex offenders.  Appellant was released from the Ben Reid Center on July 2, 2004.  The Bryants had lived in Pearland when appellant moved to the Ben Reid Center, but they subsequently moved to Dublin.  Appellant made his first trip to Dublin in July; he caught a bus to Waco where Henry Bryant picked him up and took him to the Bryants= new home in Dublin. Appellant stayed there from July 9-11. Appellant told Mack about his record collection and the other items of his that were stored at the Bryants= home, and Mack said he might be interested in buying some of the records.  Appellant said that he and Mack drove to Dublin on July 24 for Mack to look at the record albums.  They loaded some of the albums that Mack selected into the car appellant had rented and Abrought them back to Edna with [Mack].@^[3]

Appellant stated that his and Henry Bryant=s mother had died in 2001, leaving $160,000 in certificates of deposit that Henry put in his name when their mother moved into a nursing home. Appellant testified that he never received any financial benefit from the CDs.  Appellant said that part of that money belonged to him, that his brother had used the money to build his house, and that his brother had agreed to pay appellant his $80,000 over time.  Mack knew that Henry Bryant owed appellant the money.

Appellant said that he made another trip with Mack to Dublin on August 7, 2004, in a dark blue Kia that appellant had rented.  Mack selected some more records, and appellant put them in the Kia.  Those were record albums the Rangers found in appellant=s apartment. Appellant also explained that he had a hobby of listening to police scanners.

Appellant claimed that he was putting boxes back in the garage storage room when he heard a Apop,@ turned around, and saw Mack attacking Henry Bryant with a mallet.  He said that he tried to stop Mack and that that was why one of the State=s exhibits showed a picture of an injury to his elbow and scratches to his hand. Appellant saw Mack hit his brother with five blows to the head and then smash his brother=s head in with a sledgehammer.  Appellant claimed that the mallet and the sledgehammer belonged to his brother.  Appellant did nothing further to stop Mack because he was Ascared of Mack.@  When asked by his counsel if Mack threatened to kill him, appellant said, ANot at that time.@  Mack noticed that appellant had blood on him and made appellant change into some clothes appellant had brought with them.  Appellant put on his same belt and shoes and Ajust happened to notice@ that Mack had the same kind of shoes that he did. Later, they dumped appellant=s bloody clothes in a dumpster.

Mack told appellant to tell Anita that Henry was working upstairs in the garage. Appellant told Anita, and as she went upstairs, Mack followed her with a hammer and a piece of weedeater line. Appellant claimed that he followed Mack=s directions because Mack had threatened him several times.  Appellant heard three Apops,@ saw Mack strangling Anita with the line, and then saw him hit her several times with the hammer.

Appellant described how they loaded the bodies into the trunk of the Bryants= Camry and how he looked for credit cards and checkbooks at Mack=s direction.  Appellant said that Mack killed his brother around 7:00 p.m. and that they stayed at the house until midnight.  Appellant drove the Camry to Oklahoma.  He explained that he had the Oklahoma police radio frequencies in his notebook because, on a previous trip to Dublin, his brother had asked him to see if he could pick up any police activity in Oklahoma from Dublin.

Appellant repeated several times that, although Mack was the same height as appellant, Mack was much stronger than appellant and that appellant had a back problem. After they dumped the bodies in Oklahoma, they drove back to Dublin, arriving there about noon, and put the Toyota Camry in the garage.  They stayed at the Bryants= house for about three hours and then drove back to Edna and Houston. Appellant admitted that they used the credit cards at the various stores, restaurants, and the Shell station. He claimed that Mack included the batteries for appellant=s hearing aid in one of their purchases and that the purchases were made at Mack=s direction.  Appellant said that Mack wanted him to keep all the merchandise in appellant=s apartment.

Although Mack and appellant used the credit cards at a Radio Shack and a Mexican restaurant in Victoria (Edna is located between Victoria and Houston), appellant said that Mack practiced writing the signature AAnita H. Bryant@ after they got to appellant=s apartment in Houston.  Appellant said that he prepared the $3,700 and $9,500 checks to himself but that Mack signed Anita Bryant=s signature.  Even when the Rangers contacted him, appellant claimed that he was still too frightened of Mack to tell them what Mack had done.

During cross-examination by the State, appellant again admitted his participation in taking the bodies of Henry and Anita Bryant to Oklahoma.  He again admitted that he told Anita that Henry was working upstairs in the garage. Appellant identified a letter dated October 17, 2003, from his brother in which Henry Bryant stated that he would not give appellant any more money.  Appellant said that, when he visited with his brother on July 9 or 10, his brother changed his mind and agreed to pay appellant the $80,000. Appellant said that his deposit of the two checks (each stating Apayment on settlement@) into his account was not stealing because he was owed the money.  Appellant said that Mack had appellant call the banks to make certain there was enough money in the Bryants= accounts to cover the checks.  Appellant said that Mack was driving the Kia around the block while he deposited the checks.  It also was Mack=s idea for appellant to keep the drivers= licenses and credit cards that the Rangers found in his pocket.

The prosecutor pointed out to appellant that the only thing from the Bryants= home found at Mack=s residence was a 7-Up bottle.  Appellant said that Mack had wanted to take the 7-Up bottle, that there had been some change in the bottle, but that Mack wanted appellant to keep the change.  The prosecutor asked appellant how, if Mack killed appellant, would Mack retrieve the money in appellant=s bank account.  Appellant did not know, but he knew Mack would not hurt him until Mack got the money. When asked why the Bryants had been beaten so badly, indicating that whoever did it was extremely angry, appellant only said that Mack just Aexploded on them.@ Appellant admitted that he was unemployed at the time of the murders. Appellant also testified that his brother had all the items that were used to wrap the bodies in the garage:  the U-Haul blankets, the plastic bags, and duct tape.

The evidence was both legally and factually sufficient to establish appellant=s guilt.  Appellant was the one with the motive B he believed his brother owed him $80,000 B to kill and rob the Bryants.  Aside from appellant=s testimony, there was no evidence to indicate that Mack benefitted from the crime.  On the other hand, appellant is the one who rented the Kia, kept the list of police scanner frequencies, had the map showing Dublin, had all the merchandise in his apartment, and wrote two checks to himself purporting to be from Anita Bryant and deposited them in his account.  Ranger Martin found the forged signatures of Anita Bryant at appellant=s apartment. The digital images of appellant depositing the two checks showed appellant acting alone and even smiling at the bank teller.  The jury may have believed that appellant left Mack in Edna after they were in Victoria, and that it was appellant who forged the Anita Bryant signatures.  Appellant admitted filling out the checks except for the signatures.  Except for appellant=s testimony, there is no evidence that Mack was in Houston when the checks were prepared and deposited.  The photographs taken by Ranger Martin on August 10 showing the fresh injuries to appellant=s hands and elbow indicated that appellant was an active participant in the murders.  Appellant=s fingerprints and palm print were recovered from the crime scene.  DNA evidence demonstrated that the Bryants= blood was on appellant=s shoes and belt.

Other than appellant=s testimony, there was no evidence that appellant was under duress.  All of the fruits of the crime were in appellant=s possession when the Rangers contacted him three days after the murder, yet Mack did not have anything of value when the Rangers met him on that same day in Edna.  The video of appellant and Mack at the Houston Wal-Mart indicated a friendly relationship between the two men, not one showing duress.  There were hearsay statements of Mack to the Rangers that the two men had planned the murders in advance and that appellant was an active participant in the crime.

The jury, as the finder of fact, was the sole judge of the weight and credibility of the witnesses= testimony.  Articles 36.13, 38.04.  As the exclusive judge of the facts, the jury could believe or disbelieve all or any part of appellant=s testimony.  Evans v. State, 202 S.W.3d 158 (Tex. Crim. App. 2006); Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981).  It is obvious that the jury did not believe appellant=s testimony concerning duress.  The jury reached its verdict in one hour and twenty minutes.  The evidence was legally and factually sufficient to convict appellant on the basis that he was a primary actor in the homicides and on the basis that he was criminally responsible for Mack=s conduct.  Appellant=s fifth and sixth points of error are overruled.

Hearsay Testimony

In appellant=s last point of error, he argues that the trial court erred in allowing Wright to testify that she overheard a conversation in the Dr. Pepper soda shop in which Anita Bryant stated that she did not want appellant and his friend coming back to their house or staying at their house. Wright stated that Anita Bryant=s emotion at the time was fear and anger.  A trial court=s decision to admit or exclude evidence is reviewed under an abuse of discretion standard.  Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001).  We will not reverse the trial court=s ruling on the admission of evidence as long as the ruling is within the zone of reasonable disagreement.  Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991).  We hold that the trial court did not err in admitting the testimony as an exception to the hearsay exclusion under Rule 803(3).  The statements expressed Anita Bryant=s then-existing state of mind or emotion.

Appellant cites three cases which are distinguishable.  Vann v. State, 853 S.W.2d 243, 249-50 (Tex. App.CWaco 1993, pet. ref=d), involved a statement of what the declarant believed the defendant would do in the future; the statement was not restricted to an expression of the declarant=s state of mind toward the defendant.  The statements in Buhl v. State, 960 S.W.2d 927, 932-33 (Tex. App.C Waco 1998, pet. ref=d), included the reasons behind the declarant=s state of mind (previous threats of violence). The statement in Navarro v. State, 863 S.W.2d 191, 197 (Tex. App.CAustin 1993), pet. ref=d, 891 S.W.2d 648 (1995), was a statement by the deceased=s mother that the deceased said appellant had Aput a gun to her head and threatened to kill her.@  In this case, Wright did not testify why Anita Bryant did not want appellant and his friend to visit, what they had done in the past, or what she feared they would do in the future.

Even if the trial court erred, which we do not believe that it did, the error was harmless. There was overwhelming evidence of appellant=s guilt.  Appellant admitted his participation in the crime except for stating that he was not the one who killed the Bryants with a mallet or hammer. The alleged error in admitting Wright=s testimony, if any, was nonconstitutional and subject to harmless error analysis under Tex. R. App. P. 44.2(b).  If there was error, we hold that it was harmless.  Appellant=s seventh point of error is overruled.

This Court=s Ruling

The judgment of the trial court is affirmed.

TERRY McCALL

JUSTICE

February 8, 2007

Do not publish.  See Tex. R. App. P. 47.2(b).

Panel consists of:  Wright, C.J.,

McCall, J., and Strange, J.

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^[1]Miranda v. Arizona, 384 U.S. 436 (1966).

^[2]Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon 2005).

^[3]There was no evidence that the Rangers saw any of the albums at Mack=s residence when they searched his place.