Alexander v. State

• Decision Date: 05 March 1996
• Docket Number: No. 06-95-00113-CR,06-95-00113-CR
• Citation: 919 S.W.2d 756
• Parties: Frank ALEXANDER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 756

919 S.W.2d 756

Frank ALEXANDER, Appellant, v. The STATE of Texas, Appellee.

No. 06-95-00113-CR.

Court of Appeals of Texas Texarkana.

Submitted Dec. 13, 1995.

Decided March 5, 1996.

John D. Nation, Dallas, for appellant.

Carolyn Fitz-Gerald Levin, Assistant District Attorney, Dallas, Sue Korioth, Assistant District Attorney, Dallas, for appellee.

Before CORNELIUS, C.J., and BLEIL and GRANT, JJ.

OPINION

GRANT, Justice.

Frank Alexander appeals from a jury conviction for the murder of Joe Patrick Robbins, for which he was sentenced to sixty years' confinement. He contends on appeal that the evidence was insufficient to sustain his murder conviction; that the trial court erred in permitting impeachment of a witness to the effect that she refused to appear to testify despite reasonable efforts by the State; that the trial court erred in denying his motion for mistrial after a juror communicated a question to the bailiff, which was then communicated to the prosecuting attorney; that the trial court erred in overruling his objections to the punishment argument by the State referring to community expectations of a life sentence; and that the trial court erred in denying his objections to the State's use of peremptory challenges against two minority venire members.

The first trial against the appellant for this offense ended in a mistrial. This is an appeal from the second trial.

Alexander was having a barbecue on the afternoon of February 1, 1992. During the afternoon and early evening, the following persons were present at Alexander's apartment: Frank Alexander; Tatiana Alexander, Alexander's daughter; Ronnie Dean, a friend of Alexander's; Joe Robbins, Alexander's next-door neighbor; Tiffany Robbins, Robbins's daughter; and Kenny Williams, another neighbor. There was some testimony that Alexander's niece and nephew might have been present.

Tiffany Robbins testified that, in the early evening, Robbins broke Alexander's glass-topped coffee table by throwing it to the ground. Alexander then went to the closet and took out a gun. Robbins ran out of the apartment, followed by Alexander. Tiffany later heard two shots, ran out of the apartment, and saw her father lying on the ground, bleeding from his head and knees. A passenger in a car travelling along the street next to the parking lot heard a loud noise and saw a man, facing away from her, with his arm extended as if he were holding a gun. She also saw someone's legs on the ground behind the man. She could only identify the man as dark and broad-chested.

An officer arrived, found the body, and tried to stop the bleeding. No eyewitnesses, weapons, shell casings, or identifiable fingerprints were ever found by the police. Witnesses, however, heard the gunshots.

The medical examiner concluded that Robbins died from a gunshot wound to the head and that the trajectory of the bullet wound was from the left and slightly downward, and that the shot was probably fired from a distance of at least several feet. The firearms examiner concluded that the shots were probably fired from a revolver and were consistent with a .38 or .357 caliber bullet. A detective with the Dallas Police Department testified that Robbins's apartment showed no signs of burglary.

Alexander, Linda Alexander (Alexander's wife), Tatiana Alexander, and Tiffany Robbins spent the night at Alexander's mother's home. Tiffany Robbins was crying and asking for her daddy. Later, Tiffany told her mother that the neighbor shot her daddy. She picked Alexander out of a group of photographs as the man who "shot [her] dad."

Alexander contends that the evidence was insufficient to sustain his murder conviction. ¹ This contention might be fairly said to question both the legal and factual sufficiency of the evidence. In determining whether evidence is legally sufficient to support a verdict, we view the evidence in the light most favorable to the prosecution 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, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Nelson v. State, 848 S.W.2d 126, 131 (Tex.Crim.App.1992), cert. denied, 510 U.S. 830, 114 S.Ct. 100, 126 L.Ed.2d 66 (1993). In reviewing the factual sufficiency of the evidence, we look at all of the evidence and determine whether the conviction is so against the great weight of the evidence as to be manifestly unjust. Bigby v. State, 892 S.W.2d 864, 875 (Tex.Crim.App.1994); Lisai v. State, 875 S.W.2d 35, 37 (Tex.App.--Texarkana 1994, pet. ref'd). The trier of fact is free to accept or reject any or all of any witness's testimony. Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App.1992); Green v. State, 892 S.W.2d 220, 222 (Tex.App.--Texarkana 1995, pet. ref'd). In the light most favorable to the verdict, we will examine the evidence adduced at trial.

Elroy Carrillo, a detective with the Dallas Police Department, testified that on February 1, 1992, at approximately 8:19 p.m., he was called to investigate a shooting at an apartment complex located at 11,100 Kingsley Road in Dallas, Texas. Upon arrival at that location, Detective Carrillo saw the victim, Joe Patrick Robbins, lying on the ground in the parking lot. Detective Carrillo testified that Robbins was choking, trying to pull himself up on a parked car, was bleeding from his head, and smelled of alcohol. Detective Carrillo then tried to apply pressure to the wounds to stop the bleeding until the ambulance arrived. Detective Carrillo also testified that, at the time he arrived at the scene, there were no other persons in the parking lot and he observed a taxicab trying either to park or to leave the complex.

Sheila Spotswood, a Dallas County Medical Examiner, testified that she performed an autopsy on Robbins on February 2, 1992. Spotswood testified that Robbins died from a gunshot wound to the head and that the trajectory of the bullet wound was from the left and slightly downward. Spotswood was unable to determine the range of fire, but believed the shot to be from a distance of at least several feet. She further testified that there were no indications that Robbins had recently fired a firearm and that Robbins had a blood alcohol level of .26 percent.

Joanne Andreotta, the evidence registrar for the Dallas County Medical Examiner's Office, testified she received a pair of blue jeans that had been removed from Robbins by the medical examiner and then submitted the jeans to the serology department of the crime laboratory. Michelle Skidmore, a former forensic serologist for the Dallas County Crime Laboratory, testified she received the jeans and conducted tests in an attempt to determine the source of some blood found on the jeans. She was unable, however, to determine the source of the blood.

Lannie Emanuel, a firearms examiner with the Dallas County Institute of Forensic Sciences, examined the bullet fragments retrieved from Robbins's body and determined they were probably fired from a revolver and were consistent with a .38 or .357 caliber bullet.

Officer Karl David Kemper, a police officer employed by the City of Dallas, also responded to the shooting call. Officer Kemper testified that he questioned members of the crowd gathered at the scene, but none had seen the shooting. Officer Kemper talked with Rhonda Clinton by mobile telephone. She gave Officer Kemper a description of a person she saw standing over Robbins's body.

Rhonda Clinton testified that, as she was travelling with her family along Kingsley Road on the evening of February 1, 1992, she heard a loud noise. As she turned toward the direction from which the noise came, she saw a man standing in an apartment parking lot, facing away from her, with his arm extended and pointing toward the ground. Clinton testified that it appeared that the man was holding a gun, and she saw someone's legs on the ground behind the man. The second time she looked, she could see the man's profile. The third time she looked, she saw a taxicab parked in the apartment parking lot.

After she reached home, she called the police, ² and her husband went back to the scene and spoke with Officer Kemper. She later gave a description by telephone of the man she saw standing over Robbins. She described the man as dark and "thick through the ... upper body." In March of 1993, Clinton was shown some pictures by the police and selected a photograph that was not Alexander. She admitted she never saw the man's face.

James Odom, a paramedic who accompanied Robbins to the hospital, testified that Robbins did not make any statements on the way to the hospital.

Patrick Genovese, a physical evidence officer with the Dallas Police Department, was called to the scene to search for evidence. Genovese testified he found no weapons, shell casings, or identifiable fingerprints at the scene.

Sherry Raley, the former manager of the Kingsley Court Apartments, testified that Robbins lived in apartment 146 with his daughter, Tiffany Robbins. Raley further testified that Alexander lived in the adjacent apartment, number 147, with his wife, Linda Alexander, his daughter, Tatiana Alexander, and his son, Rothel Mathis.

Patrice Olootu testified that she was visiting a resident at the Kingsley Court Apartments, Ezekiel Fiesheton, on the evening of February 1, 1992, when she heard two gunshots. She then looked out the apartment window toward the parking lot and saw a taxicab driver get out and run across the street to a convenience store. She did not see anyone with a gun in the parking lot.

Anthony Osuchukwu, a cab driver and a resident at the Kingsley Court Apartments, testified that as he was pulling into the apartment parking lot on the evening of February 1, 1992, he heard a gunshot. He then got out of his cab, ran across the street to a convenience store, and asked the clerk to call the police. He did not see the victim or an assailant.

David Silmon, a...