Alexander v. State

• Citation: 740 S.W.2d 749
• Decision Date: 07 October 1987
• Docket Number: No. 68941,68941
• Parties: Caruthers ALEXANDER, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 749

740 S.W.2d 749

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

No. 68941.

Court of Criminal Appeals of Texas En Banc.

Oct. 7, 1987.

Yale G. Phillips, David R. Weiner, San Antonio, for appellant.

Sam D. Millsap, Jr., Dist. Atty., and Sharon MacRae, Raymond Anglini, Julie B. Pollock and Barbara Hervey, Asst. Dist. Attys., San Antonio, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

ONION, Presiding Judge.

This appeal is taken from a conviction for capital murder. V.T.C.A., Penal Code, § 19.03(a)(2). The death penalty was assessed by the court after the jury returned affirmative findings to both special issues submitted pursuant to Article 37.071(b)(1) and (2), V.A.C.C.P.

Appellant raises sixteen points of error, one of which alleges there was insufficient evidence to support the jury's verdict of guilty. Two separate points of error particularly allege the evidence was insufficient to show that murder was committed in the course of committing or attempting to commit aggravated rape and that a probability exists that appellant would commit criminal acts of violence in the future. We overrule appellant's points of error as to the sufficiency of the evidence but must reverse the conviction because the trial court permitted the State over objection to improperly impeach the appellant as a witness in his own behalf.

The indictment alleged that appellant on or about April 23, 1981, "did then and there intentionally and knowingly cause the death of an individual, namely: LORI BRUCH, hereinafter called complainant, by STRANGLING THE SAID LORI BRUCH WITH A LIGATURE, and the said defendant did then and there intentionally cause the death of the said complainant while in the course of committing and attempting to commit the offense of AGGRAVATED RAPE ON THE SAID COMPLAINANT; against the peace and dignity of the State."

The testimony at trial showed that Lori Bruch left her house around 6:15 p.m. on April 22, 1981, to drive to the Wrangler Club where she worked as a waitress. Lori's husband, Marvin, testified that she usually worked from 6:30 p.m. to 3:00 a.m. When Marvin awoke around 5:15 a.m. on April 23, he discovered that Lori had not returned home. Consequently, he called various co-workers, hospitals, and the police to determine Lori's whereabouts. Marvin woke his son and drove the route Lori normally took to work, stopping at Jojo's Restaurant to ask whether Lori had gone there after work. After inquiring at Northeast Hospital, Marvin returned home after 7:00 a.m. and called the police just before 8:00 a.m. to report Lori as missing. Fifteen or twenty minutes later Marvin received a call from the police asking him to come to the morgue to identify a body. Marvin identified the body as that of his wife, Lori.

Ricardo Solis, one of Lori's co-workers, testified that the Wrangler Club closed at 2:00 a.m. on April 23 and that it took the employees about an hour to clean up. Solis and Lori then drove separately to Jim's Coffee Shop and ate breakfast until about 4:00 a.m. Solis testified that it was common for Wrangler Club employees to get together after work for breakfast or for a party at someone's house. After breakfast, Solis walked Lori to her car, a 1980 brown Honda Accord, and then spoke with another employee from the Wrangler. Solis stated that by the time he turned around Lori had driven off. Solis received a call from Lori's husband around 5:30 a.m. asking whether he knew of Lori's whereabouts. Solis told Marvin that he and Lori had eaten breakfast together and that Lori had left the restaurant around 4:00 a.m.

Lori's Honda Accord was discovered by Alfred Lomas, an employee at Kelly Air Force Base, on Culebra Road around 4:30 a.m. on April 23, as Lomas was driving to work. Lomas testified that it was raining very hard that morning and that he saw a brown Honda automobile blocking the road at a low water crossing. Lomas did not see anyone inside the car and decided to drive back to a Seven-Eleven convenience store to report the matter. Lomas also stated that he did not notice any damage to the vehicle and that the lights were turned off.

Patrolman Raymond Sanchez responded to a call about an abandoned vehicle on Culebra Road. According to Sanchez the call was broadcast around 4:30 a.m. and he arrived at the scene approximately seventeen minutes later. At this time it was still raining very heavily. Upon arriving, Sanchez found a brown 1980 Honda two door vehicle parked on the wrong side of the road facing north. The car was unlocked and unoccupied, with no keys in the ignition, and the windows were rolled down. Inside the car, Sanchez found a ladies handbag, a couple of ladies accessories on the front seat and a lady's cowboy hat. Sanchez also noticed that the right rear bumper had been damaged and that the right rear tail light was broken. A wrecker arrived at approximately 5:30 a.m. to remove the vehicle.

Gilbert Tovares, a Brother in the Catholic Church, left the monastery of the Carmelite Fathers on Kentucky Street around 6:20 a.m. on April 23 to pick up Alberta Simmons, who worked as a cook for the monastery. After picking her up, Tovares drove back to the monastery and noticed a large white van parked on Kentucky Street facing east. Tovares recalled seeing blue writing on the side of the van, and testified that the first word started with the letter "A" and that the second word was "medical." The van also had a slanted windshield. Tovares identified three photographs of an "Abbey Medical" white Chevrolet van as being similar to the one he had seen on April 23.

As Tovares drove past the van to pull into the driveway of the monastery, he noticed the silhouette of a person behind the seats in the carrier portion of the van "from the light coming in through the back windows of the van." Brother Tovares could not tell whether the figure was a man or a woman. He later gave a statement to the police about the incident.

Alberta Simmons corroborated Brother Tovares' testimony and added that the top line of blue lettering started with "A-B" and that the "bottom line said medical." State's Exhibits 15, 16, and 17 depicted a white Chevrolet van with "Abbey Medical" printed on the side in blue capital letters. Alberta identified the three photographs as being similar to the van she had seen parked in front of the monastery. Five minutes after Alberta had entered the kitchen she noticed "a lot of police cars" around the same area where she had seen the van, and notified Brother Tovares. Alberta stated that she had not seen anyone in the van, and that she also gave a statement to the police.

Lori Bruch's body was discovered by Roy Garcia, a head custodian at Paul Nelson Elementary School, located near the monastery. Garcia, who opened the school every morning, testified that two children came up to him on the school grounds and said they had seen a lady lying in the street. Garcia discovered the body on Kentucky Street around 6:45 a.m. on April 23 and testified, "she was lying on her left side on the street, close to the curb. The water was flowing around her. She was naked. She had a rag gagged in her mouth." The deceased also had a rope around her neck, ankles and wrists. Garcia went back to the school to call the police and brought two rain coats to cover the body. He then went to a fire station around the corner to call the EMS.

Mike Ritchey, a detective with the San Antonio Police Department, arrived at the location around 7:15 a.m. and started processing the scene by taking pictures and making a diagram. Ritchey testified that EMS had tried to revive the victim but failed. He stated that the body had a rope around the neck, the hands were tied in front and the feet were tied. A further search of the area for evidence proved unsuccessful. At the medical examiner's office Ritchey received an envelope containing various personal property of the victim, including a plain wedding band, an engagement ring, a gold earring with a bluish colored heart on it, and another gold ring with a heart shaped diagram on the front. These items were taken to the police department property room. Ritchey further testified that due to the wet conditions that morning no fingerprints could be lifted from the scene.

Dr. Vincent DiMaio, Chief Medical Examiner for Bexar County, performed an autopsy on Lori Bruch at 9:00 a.m. on April 23. Dr. DiMaio's external examination of the body revealed a gag stuffed into the victim's mouth and tied around the lower half of the mouth. The deceased's wrists and ankles were bound, and there were marks on the skin indicating the victim was alive at the time she had been tied up. A piece of rope approximately 25 inches in length encircled the neck and there were marks on the neck due to the tightening of the rope. In addition to the ligature marks on the neck, there was a small slit-like stab wound on the right side of the neck, causing a small amount of hemorrhaging in the underlying soft tissue. The only other injury to the body was a scratch one-half inch in length running back from the outer corner of the victim's right eye. Dr. DiMaio testified the ligature or cord was tightened on the back of the neck rather than the front or the sides, and that the small hemorrhages all over the face were characteristic of a strangulation death.

Dr. DiMaio also took cotton swabs of the rectum, mouth and vagina, revealing large numbers of sperm in the vagina. The victim's pubic hair was combed, and the combings were placed into an envelope which was sealed and turned over to the city crime lab. As a result of the autopsy, the doctor's opinion was that death was caused by ligature strangulation, with the assailant positioned behind the victim. Such strangulation cuts off the blood flow to the brain, causing the victim to pass out in ten to fifteen seconds. If the pressure is maintained, death occurs about a minute and a half later....