Armstrong v. State

• Decision Date: 26 November 1997
• Docket Number: No. 07-96-0441-CR,07-96-0441-CR
• Citation: 958 S.W.2d 278
• Parties: Troy A. ARMSTRONG, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 278

958 S.W.2d 278

Troy A. ARMSTRONG, Appellant, v. The STATE of Texas, Appellee.

No. 07-96-0441-CR.

Court of Appeals of Texas,

Amarillo.

Nov. 26, 1997.

David T. Duncan, Jr., Lubbock, for appellant.

William C. Sowder, Crim. Dist. Atty., Chad Meacham, Appellate Chief, Lubbock, for appellee.

Before BOYD, C.J., and QUINN and REAVIS, JJ.

BOYD, Chief Justice.

In four points of error, appellant Troy A. Armstrong argues that his murder conviction and life sentence must be reversed. In his first two points, appellant argues that his conviction violates the Fourteenth Amendment of the United States Constitution, article 38.03 of the Texas Code of Criminal Procedure and section 2.01 of the Texas Penal Code because the evidence is legally insufficient to prove each element of the offense beyond a reasonable doubt. In his third point, he asserts that the evidence is factually insufficient to prove each element of the offense in violation of article 38.03 of the Texas Code of Criminal Procedure and section 2.01 of the Texas Penal Code. Finally, in his fourth point, he posits that the State failed to disclose evidence favorable to appellant in violation of the Fourteenth Amendment of the United States Constitution. Overruling his challenges, we affirm his conviction.

In his first two points, appellant argues that the State did not prove beyond a reasonable doubt that first, the murder weapon, as described in the indictment and in the charge, was unknown to the grand jury, and second, that the victim's death was caused by a stabbing. In relevant part, the trial jury was charged:

Now bearing in mind the foregoing instructions, if you find from the evidence beyond a reasonable doubt that on or about the 24th day of July, 1992, in Lubbock County, Texas, as alleged in the indictment, the defendant, TROY A. ARMSTRONG, did then and there intentionally or knowingly cause the death of an individual, Belynda Tillery, by stabbing the said Belynda Tillery with a deadly weapon, to-wit: an object unknown to the grand jury, that in the manner of its use or intended use was capable of causing death or serious bodily injury; or did then and there commit an act clearly dangerous to human life, to-wit: stabbing the said Belynda Tillery with a deadly weapon, to-wit: an object unknown to the grand jury, that in the manner of its use or intended use was capable of causing death or serious bodily injury, thereby causing the death of the said Belynda Tillery, then you will find the defendant guilty of the offense of murder and so say by your verdict.

In his first legal sufficiency challenge, appellant, showing that the State did not meet its burden, points to the rule that if an indictment alleges that the deceased was killed by some means, instrument or weapon unknown to the grand jury, and the evidence at trial shows that such means, instrument, or weapon was known, then it is incumbent upon the State to prove at trial that the unknown fact was indeed unknown to the grand jury and that the grand jury used a reasonably diligent attempt to ascertain that unknown fact. See Polk v. State, 749 S.W.2d 813, 816-17 (Tex.Crim.App.1988). According to appellant, the evidence at trial, contrary to the indictment and the charge, clearly established that the murder weapon was a knife. Despite this evidence, appellant argues, the State did not present testimony or other evidence that the grand jury did not have knowledge of the type of weapon used in this murder, nor did the State show that the grand jury, after a reasonably diligent inquiry, could not have discovered the type of weapon used in the murder. See Polk, 749 S.W.2d at 817; Matson v. State, 819 S.W.2d 839, 847 (Tex.Crim.App.1991) (citing Payne v. State, 487 S.W.2d 71, 72 (Tex.Crim.App.1972)). Thus, appellant asserts, the State failed to prove beyond a reasonable doubt that the defendant killed the deceased with an unknown weapon, and as such, his conviction cannot stand.

It is a fundamental rule of criminal law that one cannot be convicted of a crime unless it is shown beyond a reasonable doubt that the defendant committed each element of the alleged offense. U.S. Const. amend. XIV, Tex.Code Crim. Proc. Ann. art. 38.03 (Vernon Supp.1997); Tex. Pen.Code Ann. § 2.01 (Vernon 1994); In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072-73, 25 L.Ed.2d 368, 375 (1970); Alvarado v. State, 912 S.W.2d 199, 206-07 (Tex.Crim.App.1995). To determine whether the State proved each element of the alleged crime, we examine the verdict, "after viewing the evidence in the light most favorable to the verdict," to determine whether "any rational trier of fact could find 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, 573 (1979) (emphasis in original); Ex parte Elizondo, 947 S.W.2d 202, 205-06 (Tex.Crim.App., 1996); Griffin v. State, 614 S.W.2d 155, 158-59 (Tex.Crim.App.1981). ¹ "If a reviewing court determines that the evidence is insufficient under the Jackson standard, it must render a judgment of acquittal." Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App.1996) (citing Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 2218, 72 L.Ed.2d 652 (1982)).

Under a legal sufficiency standard of review, the court in Matson v. State had occasion to restate the rule applicable in a case in which the indictment contained allegations similar to this one. In such instances, it instructed:

When an indictment alleges that the manner or means utilized to inflict an injury is unknown and the evidence at trial does not show what type of object was used, a prima facie showing exists that the object was unknown to the grand jury. (citations omitted). If, however, evidence at trial shows what object was used to inflict the injury, an issue is raised with respect to whether the grand jury had information, when it handed down the indictment, as to the object used. (citation omitted). Only in such a case, must the State prove that the grand jury did not know the manner or means of inflicting injury and that the grand jury used due diligence in its attempts to ascertain the manner or means.

819 S.W.2d at 847 (citing Payne, 487 S.W.2d at 72).

As support for his argument that an issue was raised as to whether the weapon was unknown, appellant cites to the Penal Code definition of a knife: "any bladed hand instrument that is capable of inflicting serious bodily injury or death by cutting or stabbing a person with the instrument." Tex. Penal Code Ann. § 46.01(7). He points out that this definition, unlike any other Chapter 46 definition, does not require that a weapon be designed or made for a purpose. Thus, he reasons, the definition is so broad that it "includes any such instrument capable of being used in the described manner," i.e., stabbing and therefore, "virtually any bladed instrument that one person actually uses to stab another" falls within the definition of a knife. He asserts that "it is nearly axiomatic that if one person is stabbed by another," then they must have been stabbed "with a knife." He concludes, that because the grand jury knew, as shown by the evidence at trial, that the deceased was stabbed, and because § 46.01(7) of the Texas Penal Code broadly defines knife, an issue was raised as to whether the grand jury knew or could have known that the weapon was a knife, and thus rebutting the prima facie showing that it was unknown. Therefore, the State was required to, and failed, to put forth evidence that the weapon was unknown.

In addition, appellant cites portions of the testimony of the three expert witnesses and argues that they testified that the murder weapon was a knife, which also rebutted the prima facie showing that the weapon was unknown. Two of these witnesses, Drs. Harold Gill-King and Randall Frost, testified for the State. The other, Dr. Steven A. Symes, testified for the defense. Doctor Gill-King is an expert in anthropology and forensic pathology and director of the Laboratory for Human Identification and Forensic Anthropology at the University of North Texas Health Science Center. Doctor Frost is a forensic pathologist with the Lubbock County Medical Examiner's Office. Doctor Symes is a forensic anthropologist and is an instructor at the University of Tennessee Medical School and is an Assistant Director of the Regional Forensic Center in Memphis, Tennessee.

With regard to Dr. Gill-King's testimony, appellant specifically refers to the doctor's statements about the marks left on the skeletal remains of the victim. In advancing his position, he relies upon two of the doctor's responses. The first of these responses occurred during the doctor's direct examination, when he was queried if anyone would ever be able to tell the exact object that was used to stab the deceased. The doctor replied that he could not tell from the marks shown on the remains, and observed "that there are individual instances in which a particular knife or sharp object can be related to a hard tissue injury." "However," he continued, "you must bear in mind that knives, because of the way they're manufactured, do not transfer material." His second response was made during cross-examination when he was asked if an exemplar knife (State's Exhibit 19) was the knife used to cause the marks found on the skeletal remains. He replied that although that knife belonged to a class which could have produced the injuries, it was not possible to determine whether or not "the specific knife in question" produced the injury marks on the bones. Reasoning from those responses and from the doctor's oft-repeated observation during his testimony that the instrument that caused the bone marks was a pointed, single edged blade, appellant concludes that the "overwhelmingly clear opinion of Doctor Gill-King was that the weapon which left its mark was a knife."

We disagree with appellant's characterization of Dr. Gill-King's opinion....