Alexander v. State

• Decision Date: 28 April 1993
• Docket Number: No. 70882,70882
• Citation: 866 S.W.2d 1
• Parties: Caruthers ALEXANDER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 1

866 S.W.2d 1

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

No. 70882.

Court of Criminal Appeals of Texas,

En Banc.

April 28, 1993.

Rehearing Denied Sept. 29, 1993.

George Scharmen (court appointed), San Antonio, for appellant.

Fred G. Rodriguez, Former Dist. Atty., and Lyndee Bordini, Mark Luitjen & Laurie A. Booras, Asst. Dist. Attys., San Antonio, Robert Huttash, State's Atty., Austin, for State.

Before the court en banc.

OPINION

BAIRD, Judge.

Appellant was convicted of capital murder pursuant to Tex.Penal Code Ann. § 19.03(a)(2). ¹ The jury affirmatively answered the punishment issues submitted pursuant to Tex.Code Crim.Proc.Ann. art. 37.071(b)(1) and (2). ² Punishment was assessed at death. Id. at (e). Appeal to this Court is automatic. Id. at (h). We will affirm.

In his fifth point of error, appellant challenges the sufficiency of the evidence to support his conviction. Specifically, appellant contends the evidence was insufficient to prove the murder was committed in the course of committing or attempting to commit aggravated rape.

This is the second time that appellant has appeared before this Court for a conviction in this cause. The State, citing the law of the case doctrine, attempts to rely on our analysis of the evidence in appellant's first appeal to support the State's contention that the evidence is sufficient to support appellant's conviction. ³ Although appellant's first conviction was reversed, we held the evidence was sufficient to support his capital murder conviction. Alexander v. State, 740 S.W.2d 749 (Tex.Cr.App.1987). However, for the following reasons, we find the law of the case doctrine is inapplicable to a sufficiency point of error.

In Granger v. State, (Tex.Cr.App. No. 1109-91, delivered February 10, 1993), slip op. pgs. 3-4, [613 So.2d 15 (table) ] we held:

We have previously recognized that "[u]nder the doctrine of 'the law of the case,' where determinations as to questions of law have already been made on a prior appeal to a court of last resort, those determinations will be held to govern the case throughout all its subsequent stages, including a retrial and a subsequent appeal." Granviel v. State, 723 S.W.2d 141, 147 (Tex.Cr.App.1986), cert. denied, 484 U.S. 872 [108 S.Ct. 205, 98 L.Ed.2d 156] (1987). The doctrine is required by neither constitution nor statute, however; it is merely a court-made prudential doctrine designed to promote judicial consistency and efficiency. See Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex.1986). As such, it should be disregarded when compelling circumstances require a redetermination of the point of law decided on the prior appeal. As our sister court explained a century ago, "[t]he question as to whether [a] court will reconsider, upon a second appeal, what [was] formerly decided in the same case, must always be addressed to the discretion of the court, and according to the particular circumstances of that case." Kempner v. Huddleston, 90 Tex. 182, 37 S.W. 1066, 1067 (1896).

Therefore, while the law of the case doctrine is designed to apply to the retrial of a case, we have recognized situations where the doctrine may not be appropriate.

Application of the law of the case doctrine is never appropriate when sufficiency of the evidence is challenged after a retrial. Application of the law of the case doctrine in the face of a sufficiency challenge would create an impermissible presumption of guilt. To hold otherwise would render the presumption of innocence at a second trial a mere pretense, in violation of Tex.R.App.P. 32, which states:

Granting a new trial restores the case to its position before the former trial including, at the option of either party, arraignment or pretrial proceedings initiated by that party. The prior trial shall not be regarded as a presumption of guilt, nor shall it be alluded to in argument or in the presence of jury.

(Emphasis added.)

A second reason not to apply the law of the case doctrine is that a defendant may be retried under a theory of prosecution different than the one applied in the original trial. When the retrial is under a theory of prosecution different than that in the original prosecution, the State is necessarily required to prove elements different from those in the original prosecution. Therefore, a challenge to the sufficiency of the evidence will require an analysis different than that in the original appeal.

A third reason not to apply the law of the case doctrine is that a previous conviction may have been found sufficient on the basis of inadmissible evidence. We said in Bobo v. State, 843 S.W.2d 572 (Tex.Cr.App.1992):

... While the Court of Appeals correctly found the State's evidence to prove the prior conviction was legally inadmissible, that does not effect the sufficiency of the evidence. When evaluating the sufficiency of the evidence the appellate court must look at all the evidence, whether properly or improperly admitted.

Id., at 575-6.

Therefore, it is possible for an appellate court to reverse a case on the basis of inadmissible evidence, but prior to reversal to find that the evidence, including the inadmissible evidence, was sufficient to establish guilt. On retrial, the inadmissible evidence will be excluded and, therefore, the evidence will not be the same in a subsequent appeal. For example, appellant's first conviction was reversed because appellant was improperly impeached at the guilt/innocence phase of the trial with evidence that he falsified "a statement about his prior convictions when purchasing a firearm (revolver) several months before the offense in 1981." Alexander, 740 S.W.2d at 764. However, evidence of appellant's falsified statement did not come in at the guilt/innocence phase of the second trial; nor did appellant and his common-law wife testify as they had in the first trial. Therefore, in addition to the inadmissible evidence that was not introduced in the second trial, there was a substantial amount of admissible evidence that was not offered at the second trial.

For these reasons, we hold the law of the case doctrine may never be applied to a point of error challenging the sufficiency of the evidence.

We now address the merits of appellant's point of error. When sufficiency of the evidence is challenged, "[t]his Court must review all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt." Jones v. State, 833 S.W.2d 118, 122 (Tex.Cr.App.1992) (emphasis in original). Additionally, because the evidence in this case was circumstantial, and because this case was tried before our decision in Geesa v. State, 820 S.W.2d 154 (Tex.Cr.App.1991), its disposition is governed by the rule in Carlsen v. State, 654 S.W.2d 444, 447 (Tex.Cr.App.1983), which states:

[A] conviction based on circumstantial evidence must exclude every other reasonable hypothesis except the guilt of the accused. (Citations omitted.) It is not required that the circumstances should, to a moral certainty, actually exclude every hypothesis that the act may have been committed by another person, but that the hypothesis is a reasonable one consistent with the circumstances and the facts proved. (Citations omitted.) Each fact need not point directly and independently to the guilt of the accused, as the cumulative effect of all the incriminating facts may be sufficient to support the evidence. (Citations omitted.) However, proof which amounts only to a strong suspicion or mere probability is insufficient. (Citations omitted.)

In order to resolve appellant's fifth point of error, a recitation of the facts, as adduced in appellant's second trial, is necessary. The deceased left for work at the Wrangler, a country-western club, between 6:00 and 6:30 the night of April 22, 1981. She drove a brown 1980 Honda that had "[n]o damage of any kind." The deceased remained at work until about 3:00 a.m. the morning of April 23rd. Afterward, the deceased had breakfast at Jim's restaurant with co-worker Ricardo Solis. After breakfast, Solis walked the deceased to her car. The deceased drove away at around 4:00 a.m., while Solis was speaking to a friend. The deceased's abandoned car was discovered at around 4:20 a.m. The car had suffered damage to the right rear bumper and tail light. There was white paint on the damaged portion of the Honda.

At 6:30 a.m., two witnesses saw a large white van with blue lettering at the location where the deceased's body was later discovered. From these witnesses' descriptions, police were able to locate a white van with "ABBEY MEDICAL" stenciled on the side. The two witnesses identified the van as looking like the van they saw that morning. One of the witnesses had also seen someone moving inside the van. At 6:45 a.m., the deceased's nude body was discovered lying on the street where the van had been parked.

The exterior of the van was white except for brown paint and new scratches which appeared on the bumper. Scientific analysis demonstrated that the brown paint on the bumper of the van was identical to the Honda's. The damage to the Honda started eighteen and one-half inches from the ground, which was also the height of the van's bumper. Appellant told police officers that he had the van the night of the murder. Police officers testified that the van had not been hot-wired and that there was no evidence of tampering to indicate someone had driven the van without the keys. Moreover, appellant never reported the van missing or stolen. Finally, there were only two sets of keys to the van. Appellant had one set, as he had been assigned the white van. The other set was in the desk of Abbey Medical's dispatcher, who testified that he was the only other person who drove the white van and that the keys in his desk were not marked in any way to show to which of two vans they went.

An earring found in the...