Stephen Barbee

Case details

Stephen Dale Barbee received a death sentence for the capital murder of Lisa Underwood and her seven-year-old son, Jayden Underwood, during the same criminal transaction.

Personal details

• Name: Stephen Barbee
• Full name: Stephen Dale Barbee
• TDCJ number: 999507
• Date of birth: 03/30/1967
• Gender: Male
• Race: White
• Hair color: Brown
• Height: 5' 08''
• Weight: 181
• Eye color: Brown
• Native county/state: Tarrant County, Texas
• Prior occupation: Laborer in Tarrant County
• Prior prison record: None
• Age at offense: 37
• Age at receipt: 38
• Education level at receipt: 11

Timeline

• February 18, 2005 — Lisa Underwood stayed home from work because she had a cold.
• February 19, 2005 — Lisa Underwood planned to arrive at the bagel shop shortly before 4:00 p.m.; at about 3:00 a.m., Denton County Deputy Sheriff David Brawner saw a muddy man walking along the service road of Interstate Highway 35; the police were contacted after Lisa failed to show up for her baby shower.
• February 21, 2005 — Lisa's Dodge Durango was found in a creek about 300 yards from where Officer Brawner had encountered the man two days earlier.
• February 22, 2005 — Detectives traveled to Tyler to speak with Barbee, his wife Trish Barbee, and co-worker Ron Dodd; Barbee was interviewed and made statements.
• February 27, 2006 — In February 2006, the appellant was convicted of capital murder; the trial judge sentenced the appellant to death based on the jury’s answers to the special issues.

Background

Lisa Underwood owned a bagel shop in Fort Worth with her friend Holly Pils. Pils testified that Stephen Dale Barbee, who was married, had been a customer at the bagel shop and that he and Lisa began a personal relationship in Fall 2003. Pils testified that they stopped seeing each other at the end of 2003, and that Lisa began dating another man at the beginning of 2004.

Pils testified that Lisa resumed her relationship with Barbee in July 2004, that she became pregnant around that time, and that she informed both men that she was pregnant while telling Pils and the other man that she believed Barbee was the father of the unborn child.

Pils testified that Lisa wanted her baby to have health insurance and that she discussed the matter with Barbee. Pils testified that Lisa stayed home on Friday, February 18, 2005, because she had a cold, and that she planned to arrive at the bagel shop shortly before 4:00 p.m. on Saturday, February 19.

Debbie Lindley said Underwood and Barbee met about two years earlier at the bagel store and split up last fall because Barbee had another girlfriend. Leah Huff said that when she ate breakfast at the shop about a week before Barbee’s arrest, Underwood talked excitedly about the baby and that she would not pick out a name until she saw her infant’s face for the first time.

Huff described Underwood as “warm and loving” and said that Underwood was “very independent,” raised Jayden by herself, and that being a single mother was no big deal to her.

Jayden was described as a bright child with big brown eyes and glasses who had recently started playing soccer and was involved with Cub Scouts. Friends described Jayden as “extremely caring and helpful,” and as having a wonderful sense of humor. His first-grade teacher, Janice Freeman, described Jayden as “basically one of those kids who was loved by everybody.”

The offence

Barbee was charged with murdering Lisa Underwood and her seven-year-old son, Jayden Underwood, during the same criminal transaction.

Victims

• Lisa Underwood, age 34, white female, seven months pregnant
• Jayden Underwood, age seven, white male

Charging framework described in the record

The indictment alleged that Barbee, during the same criminal transaction, intentionally or knowingly caused the death of Jayden Underwood by smothering him with his hand or by a means unknown to the grand jury or by a combination of the two.

Investigation

Missing persons and initial observations

The police were contacted after Lisa Underwood failed to show up for her baby shower. There were no signs of forced entry at Lisa’s house. Jayden’s shoes were on top of the fireplace hearth, and his glasses had been left next to his bed.

The record described blood in the living room on the entertainment center, the walls, and a fitted couch cover. It also described that it appeared someone had attempted to clean and conceal a saturation blood stain on the living room floor. Lisa’s car was gone, and there was blood on the floor in the garage.

Lisa’s DNA profile matched the blood stains in the house and the garage. Her personal home computer showed that she logged on to the internet at 11:22 p.m. on February 18 and logged off at 12:02 a.m. on February 19. The last website she visited was “birthplan.com.”

Discovery of vehicles and bodies

On February 21, Lisa’s Dodge Durango was found in a creek about 300 yards from where Officer Brawner had encountered Barbee two days earlier. The front end of the vehicle was submerged. The windows were down and the hatchback was up. A bottle of cleaning solution was located in the cargo area, and Lisa’s car keys and purse were located nearby.

The bodies matching Lisa Underwood and her son were found in a shallow grave in a wooded area south of Denton, about 30 miles north of Fort Worth. The bodies were located in a shallow grave with tree limbs placed on top of it. The record also described that the bodies were found about 10 miles from where Lisa’s vehicle was discovered in a creek.

Evidence from autopsies

The medical examiner testified at trial regarding Lisa’s injuries and death. Lisa suffered facial abrasions and contusions and a broken arm. The examiner testified to bruises on both sides of her back that could have been caused by being hit or by having “external force applied over a longer period of time.” The cause of Lisa’s death was “traumatic asphyxiation,” and the manner of death was homicide.

Lisa was pregnant with a healthy female fetus that appeared to be around seven months gestational age. The cause of the fetus’ death was “fetal asphyxiation” resulting from “maternal asphyxiation.”

For Jayden, the medical examiner testified that Jayden had a large bruise above his right temple due to an impact to the head, and bruises on his back and abrasions on his back, arm, hip, and leg. The examiner testified to bruises on Jayden’s lips and gums that appeared to be caused by compression of the mouth against underlying teeth.

The medical examiner testified that Jayden’s injuries were consistent with someone placing a hand over Jayden’s mouth and nose; someone pressing Jayden’s face against a flat surface; or someone pressing Jayden’s face against a surface that “gives if you push against it,” like a couch or a carpeted floor. The cause of Jayden’s death was “asphyxia by smothering,” and the manner of death was homicide.

Witnesses and other people involved in the narrative

Co-defendants were identified in the record:

• Ronald Royce Dodd (referred to as “Dodd” in the case narrative)

Detective R.A. Gallaway testified in the affidavit context that Barbee was the “alleged father” of Lisa Underwood’s unborn child.

Arrest

Barbee was arrested early Tuesday in Tyler. The record described that police said he had been working clearing trees.

The record described an attempted stop at around 3:00 a.m. on Saturday in Denton County, when a man wearing muddy jeans escaped into a wooded area after Denton County Deputy Sheriff David Brawner tried to stop him. Brawner testified that the man had left his wallet at a friend’s residence, gave a false name and date of birth, and took off running on foot.

Barbee later was identified by Brawner in a photo spread.

The record described that when Barbee was arrested and taken into custody, an Amber Alert was canceled Tuesday morning after Barbee’s arrest.

Statements and interrogation

Recorded and unrecorded statements described in the record

The record described three oral inculpatory statements challenged as admissible or inadmissible under Article 38.22, Section 3(a), including:

1. An oral statement to Detective Carroll in the bathroom of the Tyler Police Department, admitting killing Lisa and Jayden.
2. An oral statement to Detective Carroll at Detective Cashell’s desk describing where the victims’ bodies were buried and helping produce a map of that location.
3. An oral statement to Detective Carroll on the way to the burial site the next morning pointing out the specific location of the bodies and expressing concerns about viewing the bodies and being seen by the media.

The record described that detectives interviewed Barbee separately from Dodd at the Tyler Police Department. Detective Carroll observed a portion of the Dodd interview.

Barbee received Miranda warnings, and his interview began at about 7:45 p.m.

Bathroom conversation with Detective Carroll

The record described that Carroll walked out of the room and later accompanied Barbee to the bathroom for an unrecorded conversation lasting about forty-five minutes to one hour.

Carroll testified that during the unrecorded bathroom conversation he told Barbee that Dodd was “going to lay this whole thing in [appellant’s] lap” and that “Lisa’s family needed closure.” During that discussion, Barbee made comments about being locked up “for the rest of his life” and said he understood the need for closure because he had lost a family member.

Barbee told Carroll that:

“he and Dodd actually created a plan to go kill Lisa” because “Lisa wanted to use his name on a birth certificate or she was trying to take money from him, she was going to ruin his family, his relationship with his wife, Trish, and he did not want that to happen.”

Carroll testified that Barbee said he dropped his car off at Dodd’s house and that Dodd drove him to Lisa’s house, left, and that Barbee went inside and tried to pick a fight. The record described that Barbee was unable to provoke a fight and called Dodd to pick him up, and later had Dodd take him back to Lisa’s house where he could start a fight.

The record described Barbee’s account that he wrestled Lisa to the ground and held her face into the carpet until she stopped breathing.

The record described Barbee’s account about Jayden:

When Jayden came into the room “crying” and “emotional,” “Appellant said he walked up to Jayden, placed his hand over his mouth and nose, and ‘held it there until he stopped breathing.’”

The record described that Barbee tried to clean up the house and tried to cover a blood spot with a piece of furniture. He then placed the bodies in the back of Lisa’s SUV and drove to a road off of FM 407 where he buried both their bodies. Barbee said he used a shovel Dodd had given him, buried the bodies in a shallow grave, and placed debris on top of it.

Carroll testified that Barbee described driving Lisa’s car to another location and stopping it just short of the creek.

Digital recorded video interviews and mapping

After relating the story, Barbee agreed to another digitally recorded video interview with Carroll. Carroll testified that they left the bathroom, went to Detective Richard Cashell’s desk, and used “MapQuest” to get a map of the area. The record described that Barbee showed the roads he traveled and where he put the victims’ bodies.

Carroll and Barbee returned to the interview room where appellant gave a second digitally recorded video statement shortly after 11:00 p.m.

Trial

Issues addressed on direct appeal

Barbee’s direct appeal was handled in the Court of Criminal Appeals of Texas. The court described nine points of error and affirmed the trial court’s judgment.

The record described that Barbee was convicted of capital murder in February 2006 and, based on the jury’s answers to special issues under Texas Code of Criminal Procedure Article 37.071, sections 2(b) and 2(e), the trial judge sentenced him to death under Article 37.071, § 2(g). Direct appeal was automatic under Article 37.071, § 2(h). The court affirmed after reviewing nine points of error.

Points of error described in the record

• Point of error one: Barbee argued legal insufficiency regarding grand jury due diligence in determining the manner and means used to cause Jayden’s death; the appellate court overruled the point.
• Point of error two: Barbee argued factual insufficiency of the evidence supporting the capital murder conviction; the appellate court overruled the point.
• Point of error eight: Barbee argued the evidence was legally insufficient to support the future-dangerousness special issue; the appellate court overruled the point.
• Point of error three: Barbee argued the trial court erroneously denied his challenge for cause to veniremember Denise Anderson; the appellate court overruled the point.
• Points of error four, five, and six: Barbee asserted the trial court abused its discretion in denying a motion to suppress three separate inculpatory statements; the appellate court overruled the points.
• Point of error seven: Barbee asserted the trial court violated his confidential communication privilege by admitting a digitally recorded video conversation between him and his wife Trish; the appellate court overruled the point.
• Point of error nine: Barbee claimed the Texas death penalty statute violated constitutional provisions; the appellate court overruled the point.

Future-dangerousness evidence described at punishment

The record described that the State presented punishment testimony including:

• Barbee’s ex-wife, Theresa Sue Barbee, testifying that she was married to Barbee from 1996 to 2003 and that he physically assaulted her and caused her to suffer a “bad concussion” during a fight. She described Barbee sitting in another room eating ice cream while she was bleeding and unconscious and made her drive herself to the hospital when she awoke.
• Theresa testified Barbee told her and others that he was going to put her “through a [wood] chipper.”
• Theresa testified that at the time of the instant offense she was dating Ron Dodd.
• Theresa testified that Dodd and Barbee were at her house on Friday, February 18, 2005, that Dodd and Barbee left in Dodd’s truck sometime after 10:00 p.m., and that Dodd returned alone shortly thereafter; it described that Dodd returned with Barbee about fifteen minutes later. It then described that at around 3:00 a.m., Barbee called Dodd and Theresa heard Barbee say “come and help him” and “[h]e ran out of gas.”
• Theresa testified she next saw Barbee on Sunday morning and he cried saying his “life was over with,” and when she asked “What have you done?” he said “Help me,” and that he “was guilty until proven innocent.”
• Theresa testified Barbee later called her and said he had confessed to police, that he cried, said he “didn’t mean to,” and described that he “went over there to talk to her . . . and do the right thing . . . [and] they got into a fight . . . she hit him, and they just got into it.”
• Theresa asked about the boy; Barbee replied “he didn’t mean to” and that “he was just trying to keep him quiet.”
• Theresa testified that Barbee later kept changing his story and said that he did not do it.
• Theresa testified that when she visited appellant in jail, he held up a piece of paper asking her to say that Dodd did it and set him up; she started crying and left, and appellant had her removed from his visitors list.

The State also presented punishment testimony of Marie Mendoza, who worked briefly with appellant at the United Parcel Service in 2000 or 2001. Mendoza testified Barbee called often and claimed he was not married and that he had a tree-trimming business. Mendoza testified she asked him to come to her house and give an estimate, but when she came home she found that he already trimmed her trees without giving an estimate. She testified that when she spoke to him by telephone a few days later offering to pay him for his work and stating she was not interested in a relationship, he responded with a “big outburst” and yelled and cursed at her. Mendoza testified Barbee called her a “fucking bitch” and said, “I go out there and trim your trees and this is what I get in return?” Mendoza testified that after that incident she had no further contact with Barbee and never saw him at work again.

Quotations attributed to witnesses and speakers

• Leah Huff said: “She was warm and loving, but she was also very independent.”
• Leah Huff said: “She raised Jayden by herself, and Jayden was awesome. Being a single mother was no big deal to her.”
• Janice Freeman said of Jayden: “extremely caring and helpful. He had a wonderful sense of humor. He was basically one of those kids who was loved by everybody.”
• Debbie Lindley said Underwood and Barbee split because Barbee had another girlfriend.
• Detective R.A. Gallaway said in the affidavit context that Barbee was the “alleged father” of Lisa Underwood’s unborn child.
• Detective Carroll testified Barbee said: “he and Dodd actually created a plan to go kill Lisa.”
• Detective Carroll testified Barbee said he “held it there until he stopped breathing.”
• Detective Carroll testified Barbee said Lisa stopped breathing after he “held her face into the carpet until she stopped breathing.”
• Theresa Sue Barbee testified Barbee told her he was going to put her “through a [wood] chipper.”
• Theresa Sue Barbee testified she heard Barbee say “come and help him” and “[h]e ran out of gas.”
• Theresa Sue Barbee testified Barbee told her he “was guilty until proven innocent.”
• Theresa Sue Barbee testified Barbee said: “Help me,” and later said he “didn’t mean to,” and described “went over there to talk to her . . . and do the right thing . . . [and] they got into a fight . . .
• Theresa Sue Barbee testified Barbee replied about the boy: “he didn’t mean to” and “he was just trying to keep him quiet.”
• Marie Mendoza testified Barbee called her a “fucking bitch” and said, “I go out there and trim your trees and this is what I get in return.”

Sentencing

In February 2006, Barbee was convicted of capital murder. Tex. Pen. Code § 19.03(a). Based on the jury’s answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, sections 2(b) and 2(e), the trial judge sentenced Barbee to death. Art. 37.071, § 2(g).

Appeals

The case reached the Court of Criminal Appeals of Texas on direct appeal from Tarrant County.

The appellate court delivered a unanimous opinion by HOLCOMB, J. The court stated that it had reviewed Barbee’s nine points of error and found them to be without merit. Consequently, the court affirmed the trial court’s judgment.

A list of references in the opinion included “Delivered December 10, 2008” and “DO NOT PUBLISH.”

Outcome

The appellate court affirmed the trial court’s judgment, and Barbee’s sentence remained a death sentence.

Other details

Relationships and alleged motive framed as love triangle

The record described that a “love triangle” was blamed for the slayings and referenced that Barbee had another girlfriend. The record also described that Barbee was romantically involved with Lisa Underwood and that she was dating another man when she resumed her relationship with Barbee and became pregnant.

The record described that Barbee allegedly argued with Underwood over leaving his wife, and Barbee claimed the plan involved Lisa’s pregnancy and his concern about being named as the father of the unborn child. The appellate record described Barbee admitted planning Lisa’s murder in order to avoid being named as the father of the unborn child.

Denial of challenge for cause described during voir dire

During voir dire, veniremember Denise Anderson said she had seen news reports about the case at least a year prior and initially said it seemed like a great possibility that appellant was guilty. She later stated she could set aside what she heard in the news and base her verdict solely on evidence presented at trial. The trial court overruled Barbee’s challenge for cause and found Anderson would be juror number 42.

The appellate court held there was no clear abuse of discretion in denying the challenge for cause.

Spousal privilege and admissibility of conversation

Rule 504 of the Texas Rules of Evidence provided spousal privilege for confidential communications, with an exception for proceedings in which the accused was charged with conduct that, if proved, constituted a crime against the person of the spouse’s minor child or a member of the household of either spouse.

The trial court found that the digitally recorded conversation between Barbee and his wife Trish, recorded in a police station interview room while the digital video recorder was running, was not a privileged confidential communication. The trial court also found that an exception applied because Barbee was accused of conduct constituting a crime against Jayden, a seven-year-old minor child. The appellate court overruled Barbee’s point of error regarding spousal privilege.