Banda v. State

• Decision Date: 14 December 1994
• Docket Number: No. 69827,69827
• Citation: Banda v. State, 890 S.W.2d 42 (Tex. Crim. App. 1994)
• Parties: Esequel BANDA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 42

890 S.W.2d 42

Esequel BANDA, Appellant, v. The STATE of Texas, Appellee.

No. 69827.

Court of Criminal Appeals of Texas En Banc.

Dec. 14, 1994.

Coyt Randal Johnston, Dallas, for appellant.

Andy J. McMullen, Dist. Atty., Hamilton, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

McCORMICK, Presiding Judge.

Appellant was convicted of the offense of capital murder under V.T.C.A., Penal Code, Section 19.03(a)(2). ¹ The jury answered the special issues affirmatively and punishment was assessed accordingly at death. Article 37.071(b), V.A.C.C.P. ² Appellant's conviction was affirmed on direct appeal. Banda v. State, 768 S.W.2d 294 (Tex.Cr.App.), cert. denied, 493 U.S. 923, 110 S.Ct. 291, 107 L.Ed.2d 270 (1989). We granted appellant's writ of habeas corpus and this judgment was vacated due to ineffective assistance of counsel on appeal. Ex parte Banda, No. 21,327-02 (Tex.Cr.App., October 21, 1992) (not designated for publication). Appellant was granted this out-of-time appeal and he raises twenty-six points of error. We will affirm.

Sufficiency of the Evidence

In his twenty-fifth point of error, appellant contends that the evidence is insufficient to establish his guilt. Viewed in the light most favorable to the verdict, the evidence at trial established the following: On the evening of August 2, 1986, appellant and his brother, Juan "Johnny" Banda, had been playing poker and drinking beer at the home of a friend in Hamilton. After about four hours, appellant and Johnny returned home, where they continued to drink beer with some other friends, including Brenda Hunter and another of appellant's brothers, David. After everyone except he and Johnny had left, appellant talked about needing some money. Johnny mentioned an old lady who owned some rent houses who he thought might have some money. The brothers went over to the victim's home, knocked on the door, and when the woman opened it, appellant hit her, knocking her to the floor, while Johnny looked for something to steal.

Sometime after midnight, appellant arrived at the home of his sister, Amelia Sabedra, who lived approximately one and a half blocks from Laird's home. Amelia's husband, Jesse, answered appellant's knocking and let him into the house. Appellant went into his sister's bedroom and told her that she needed to take him to Comanche because he had just killed an old lady and a man who tried to defend her. Appellant then told Amelia that if she did not believe him then she should look at the scratches on his face and neck. She also noticed that his shirt had smeared blood on it. The Sabedras agreed to take appellant to Comanche.

Before getting into the Sabedra's truck, appellant said that he had sold his soul to the devil, that the devil had told him to kill six people, and that he had to kill four more. While en route to Comanche, appellant further stated that he had stabbed "the old lady" twenty or thirty times, that blood was coming out of her mouth, and that he had sucked the blood out of her mouth into his own. Amelia stated that appellant was acting strange, "doing like witchcraft." Appellant then took a bunch of bills from his pocket and asked Amelia if she wanted fifty dollars. He told her that the money was Satan's and if he did not spend the money it would go away. He tossed a bill at Amelia, but she would not take it. She was unable to see the denomination of the bill in the dark truck.

The Sabedras took appellant to their cousin, Elvira Liendo's, home in Comanche. It was between 4:00 and 4:30 a.m. Amelia asked Liendo if appellant could stay at her home while she and Jessie went to call her parents in Lubbock. When appellant went to the restroom, the Sabedras left. When appellant realized they had left without him, he became angry and told Liendo that he would put a spell on them. He told Liendo that he killed an old lady. He further told his cousin Johnny, Liendo's brother, that he had sold his soul to the devil. Appellant eventually decided he wished to change shirts and threw his shirt by the door. When Liendo and Johnny gave him a white shirt to wear, appellant said he did not want a white shirt because the cops would catch him quicker. However, appellant put the shirt on anyway.

In the meantime, after calling appellant's mother in Lubbock, the Sabedras went to the Comanche Sheriff's Office and relayed their story to Comanche Police Officer Mark McDonald. Officer McDonald arrived at the Liendo residence at 4:52 a.m. to check out the situation. Upon his arrival, appellant, still wearing the white shirt, ran out the back door. McDonald pursued him, but lost him in the next yard. McDonald returned to the Liendo home and Liendo gave him appellant's bloodied shirt. Back-up units were called and a search for appellant ensued. Following an extensive search, McDonald went back to the Liendo home again to see if appellant had returned. McDonald found appellant lying down on the back porch without his shirt. The white shirt was later found behind a trash can. McDonald arrested appellant and transported him to the Comanche jail where he was booked for public intoxication. When Jailer Beth White was attempting to put appellant into the "drunk tank" to sober up, appellant stated, "Don't put me in the cell with anybody. I'll kill them. It won't bother me to kill them, I have already killed somebody." He then told her that he had stabbed someone to death in Hamilton.

The body of the seventy-four-year-old decedent was discovered at approximately 9:40 a.m. that morning. The home was in disarray and drawers had been dumped out. Dr. M.G.F. Gilliland, Medical Examiner for Dallas County, performed the autopsy. Gilliland testified that the decedent had been sexually assaulted, had various lacerations and abrasions all over her body, and died as a result of strangulation. She further testified that it was her opinion that the decedent's death was intentional and deliberate.

The blood removed from appellant's shirt, jeans, and underwear by a forensic serologist was determined to be type B blood, which was the same type as the decedent's. Appellant had type A blood. Seminal fluid found on the decedent's pubic hair and saliva found on her breasts were consistent with appellant's blood type. Further, a towel found at the scene also contained blood consistent with appellant's. The trace evidence analyst testified that a loose pubic hair removed from the deceased's hip had the same characteristics as appellant's pubic hair.

In reviewing a sufficiency question, we must view the evidence in the light most favorable to the verdict 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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Butler v. State, 769 S.W.2d 234, 238 (Tex.Cr.App.1989). Because the State's case is based on circumstantial evidence and was tried prior to this Court's decision in Geesa, ³ we will use the "exclusion of reasonable hypothesis" approach as the method for analyzing the sufficiency. Garrett v. State, 682 S.W.2d 301, 304 (Tex.Cr.App.1984), cert. denied, 471 U.S. 1009, 105 S.Ct. 1876, 85 L.Ed.2d 168 (1985). It is not necessary that every fact point directly and independently to the defendant's guilt. Russell v. State, 665 S.W.2d 771, 776 (Tex.Cr.App.1983), cert. denied, 465 U.S. 1073, 104 S.Ct. 1428, 79 L.Ed.2d 752 (1984). It is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances. Id.

Appellant contends that the evidence was not sufficient to establish beyond a reasonable doubt either that appellant was responsible for the murder of Laird, or that he committed either of the underlying felonies. He argues that the evidence shows appellant's brother, Juan "Johnny" Banda, was the perpetrator of the crime. Appellant supports this hypothesis with the following evidence at trial: Appellant and Johnny have the same blood type. Johnny knew where Laird lived, used to rent from her, and knew when tenants paid their rent. Johnny also had scratches and bruises on his body and stated at one time that he had gone to Laird's home with appellant, although he later denied the event. Johnny was unemployed at the time of the murder. Appellant confessed he killed two people, but only one body was found.

The jury is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony. Lafoon v. State, 543 S.W.2d 617, 620 (Tex.Cr.App.1976). Appellant's argument that Johnny was the real perpetrator of the crime was apparently rejected by the jury. The test for circumstantial evidence does not permit our alteration of the evidence to fit the hypothesis; obviously there will always be a hypothesis of innocence if inculpatory evidence may be rejected. Girard v. State, 631 S.W.2d 162, 164 (Tex.Cr.App.1982). We must hold the evidence sufficient if the exculpatory aspects of appellant's version of events necessarily contradict or conflict with inculpatory inferences drawn from other circumstantial evidence presented by the State, and when all the evidence viewed in the light most favorable to the verdict would rationally support a jury verdict of guilt to a degree of confidence beyond a reasonable doubt. Gunter v. State, 858 S.W.2d 430, 439 (Tex.Cr.App.), cert. denied, 510 U.S. 921, 114 S.Ct. 318, 126 L.Ed.2d 265 (1993).

The combined and cumulative force of all the incriminating circumstances leads us to conclude that there was sufficient evidence for a rational trier of fact to conclude beyond a reasonable doubt that appellant was guilty of capital murder, and to exclude every other reasonable hypothesis except for that of guilt. Russell, 665 S.W.2d at 776; Johnson v. State, 803 S.W.2d 272, 280 (Tex.Cr.App.1990), cert. denied, 501 U.S. 1259, 111 S.Ct. 2914, 115 L.Ed.2d 1078 (1991), overruled on other grounds, Heitman v....