Tiede v. State

BERNHARDT TIEDE, II, Appellant v. THE STATE OF TEXAS, Appellee

No. 06-16-00083-CR

Court of Appeals Sixth Appellate District of Texas at Texarkana

Date Submitted: July 19, 2017

August 9, 2017

On Appeal from the 123rd District Court Panola County, Texas

Trial Court No. 1997-C-103

Before Morriss, C.J., Moseley and Burgess, JJ.

Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION

In a second punishment trial, ordered by the Texas Court of Criminal Appeals years after the first punishment trial, a jury again rejected Bernhardt Tiede, II's, claim to have killed Marjorie M. Nugent in sudden passion arising from an adequate cause and assessed Tiede's punishment of ninety-nine-years or life imprisonment. We affirm the judgment of the trial court for reasons set out below.

This case has a significant backstory. A 1997 missing-person investigation conducted by the Panola County Sheriff's Department led to the discovery of Nugent's body. The eighty-year-old woman had been shot in the back four times and stuffed into her own deep freezer, where she had remained for quite some time. A 1999 jury trial resulted in a finding that Nugent's murder was committed by her full-time caretaker and companion, Tiede. During the punishment phase of this first trial, the jury rejected Tiede's claim of sudden passion arising from an adequate cause, which would have reduced the punishment range to that of a second-degree-felony offense, and assessed a sentence of life imprisonment, as well as a $10,000.00 fine.

Tiede appealed his conviction and sentence to the Twelfth Court of Appeals in Tyler, Texas, on the grounds that the trial court erred in overruling his Batson¹ challenges, the trial court erred in admitting his confession to the offense after he allegedly invoked the right to counsel, and the trial court erred in refusing to admit certain testimony by his psychologist during the punishment phase of his trial. Tiede v. State, 104 S.W.3d 552, 556 (Tex. App.—Tyler 2000), judgm't vacated, 76 S.W.3d 13 (Tex. Crim. App. 2002). Sustaining only Tiede's third point oferror, which it labeled as constitutional error, the Tyler Court of Appeals affirmed the judgment of guilt, but reversed the trial court's judgment on punishment and remanded the matter to the trial court for a new trial on punishment only. Id. at 565.

In 2002, the Texas Court of Criminal Appeals vacated the judgment of the Tyler Court of Appeals and directed it to consider Potier v. State, 68 S.W.3d 657 (Tex. Crim. App. 2002), which discussed several factors courts are to analyze when considering whether the erroneous exclusion of evidence could rise to the level of constitutional error. Tiede, 76 S.W.3d at 14. Following the remand, the Tyler Court of Appeals found the exclusion of Tiede's psychologist's testimony harmless under Potier and affirmed the trial court's judgment in its entirety. Tiede v. State, No. 12-99-00182-CR, 2002 WL 31618281, at *1 (Tex. App.—Tyler Nov. 20, 2002, pet. ref'd) (not designated for publication).²

Eleven years later, Tiede filed a petition for a writ of habeas corpus with the Texas Court of Criminal Appeals, arguing that newly available scientific evidence contradicted the scientific evidence relied on by the State during the punishment phase of his trial. Ex Parte Tiede, 448 S.W.3d 456, 456 (Tex. Crim. App. 2014) (per curiam). Specifically, Tiede's habeas record demonstrated that the State's psychiatrist presented false testimony when he stated that Tiede had an unremarkable mental health history. Id. at 457 (Alcala, J., concurring). In fact, when before the Texas Court of Criminal Appeals on this issue, "the State agree[d] that [Tiede] caused thedecedent's death out of sudden passion arising from adequate cause"³ and made "the factual representation that, had [the State] known [earlier] what it [later discovered], it would have sought to punish [Tiede] under a second-degree punishment range." Id. In her concurring opinion, which was joined by Judges Price, Johnson, and Cochran, Judge Alcala opined that,

regardless of the merits of applicant's claim of sudden passion, the habeas evidence supports the conclusion that the jury likely would have sentenced applicant to a period of confinement for less than life in prison in light of the conclusive evidence that now explains his state of mind as experiencing dissociation when he killed the decedent.

Id. The Texas Court of Criminal Appeals granted Tiede's application for a writ of habeas corpus, set aside his sentence, and ordered a new trial on punishment only.⁴ Id.

From the trial court's judgment imposing ninety-nine years' imprisonment, Tiede appeals, asserting (1) that the trial court erred in denying his motion to quash the indictment, which was based on the discovery that a member of the grand jury was biased against Tiede before the indictment was returned, (2) that the trial court erred in failing to enforce a sentencing agreement, (3) that the trial court erred in failing to grant his motion to suppress his confession to the crime, (4) that he was denied his "due process right to a fair trial and Sixth Amendment right to an impartial jury . . . by the atmosphere surrounding the trial and improper comments directed at thejury by spectators," and (5) that the verdict containing two distinct and conflicting punishments is void.

We affirm the judgment of the trial court because, (1) based on its limited jurisdiction on remand, the trial court correctly denied the motion to quash the indictment, (2) a sentencing agreement was not established, (3) the law of the case governed the issue involving suppression of Tiede's confession, (4) the issues preserved by Tiede relating to the atmosphere of the trial and improper comments by spectators do not warrant reversal, and (5) the trial court properly modified Tiede's sentence to ninety-nine years' imprisonment.

(1) Based on its Limited Jurisdiction on Remand, the Trial Court Correctly Denied the Motion to Quash the Indictment

At Tiede's 1999 trial, the State called R.D. Green to testify against Tiede during punishment. Green testified that he went to church with Tiede, had known him for at least twelve years, and had personal knowledge of Tiede's character before the murder. Based on his personal knowledge, Green informed the jury that Tiede had a bad character.

After the Texas Court of Criminal Appeals' remand for a new trial on punishment, Panola County District Attorney Danny Buck Davidson recused from the case, and two assistant attorney generals were appointed as district attorneys pro tem. The Texas Attorney General's (AG's) Office conducted interviews with potential witnesses, including Green. Jeanette Whitehead, a legal assistant with the AG's Office, filed an affidavit which stated that, on February 2, 2016, she came across a report drafted by Lieutenant Missy Wolfe of the AG's office "which summarized an interview she conducted with [Green,] a prosecution witness from the original trial who wasdetermined, on Lt. Wolfe's interview, to have been a grand juror on Tiede's case." Wolfe confirmed this information in her own affidavit.

The interoffice memorandum, created by Wolfe on November 27, 2015, specifically stated that Green was a member of the grand jury that indicted Tiede, as well as a witness for the State. The memo further stated,

Green "never really cared for" the defendant, and always thought of him as a "phony." . . . Green avoided him as much as possible. Green knew that Tiede was a "bad person," and this had nothing to do with "him being gay." Green always knew that Tiede was a "shyster." . . . Green heard that his church had to return the $100,000.00 that Tiede originally donated for renovations. . . . Recently, Green was interviewed by a Houston reporter, and he relayed his strong feelings about the defendant. Green believes that people who murder others should only be kept alive so that their organs can be harvested when necessary."

The memorandum was produced to Tiede's attorneys. On April 5, 2016, Tiede filed a motion to set aside the indictment on the ground that newly discovered evidence revealed that one of the grand jurors who indicted Tiede possessed a bias and prejudice against him. Although the mandate by the Texas Court of Criminal Appeals allowed for a new trial only on punishment, Tiede argued that the issue could be reached since "no one knew back then that the person on the grand jury was this person that did not like Mr. Tiede." Concluding that Tiede could not raise issues affecting guilt/innocence, the trial court denied Tiede's motion to quash the indictment.

On appeal, Tiede argues the merits of his motion to quash the indictment and the timeliness of his motion.⁵ He does not, however, address the trial court's jurisdiction to handle this matter. Article 44.29(b) of the Texas Code of Criminal Procedure provides, in pertinent part, as follows:

If the court of appeals or the Court of Criminal Appeals awards a new trial to a defendant . . . only on the basis of an error or errors made in the punishment stage of the trial, the cause shall stand as it would have stood in case the new trial had been granted by the court below, except that the court shall commence the new trial as if a finding of guilt had been returned and proceed to the punishment stage of the trial.

TEX. CODE CRIM. PROC. ANN. art. 44.29(b) (West Supp. 2016). Therefore, "the trial court's jurisdiction on remand is limited to issues concerning the punishment phase." Lopez v. State, 18 S.W.3d 637, 639 (Tex. Crim. App. 2000); see Russeau v. State, 291 S.W.3d 426, 432 (Tex. Crim. App. 2009).

Tiede's guilt was decided by a jury in 1999 and affirmed by the Tyler Court of Appeals in 2002. Because quashing the indictment would have impacted the issue of guilt, such an action would have exceeded the authority on remand granted to the trial court by the Texas Court of Criminal Appeals. Accordingly, based on its limited jurisdiction on remand, the trial court...