Barnes v. State

• Decision Date: 09 February 1994
• Docket Number: No. 71291,71291
• Citation: 876 S.W.2d 316
• Parties: Odell BARNES, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 316

876 S.W.2d 316

Odell BARNES, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 71291.

Court of Criminal Appeals of Texas,

En Banc.

Feb. 9, 1994.

Rehearing Denied March 23, 1994.

Reginald R. Wilson, Marty Cannedy, Wichita Falls, for appellant.

Barry L. Macha, Dist. Atty., and John W. Brasher, Asst. Dist. Atty., Wichita Falls, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

PER CURIAM.

Appellant was convicted of the offense of capital murder under V.T.C.A. Penal Code, § 19.03(a)(2). The offense originated in Wichita County, where appellant was indicted. Pursuant to defense motion, venue was changed to Lubbock County. The jury answered the special issues affirmatively and punishment was assessed accordingly at death. Article 37.071(b), V.A.C.C.P. ¹ Appeal to this Court is automatic. Article 37.071(h). Appellant raises fifteen points of error. We will affirm.

Sufficiency of the Evidence

In his fourth point of error, appellant contends that the evidence is insufficient to establish his guilt. In his fifth point of error, he asserts that the evidence is insufficient to establish any of the aggravating circumstances required to raise murder to a capital offense, in this case, burglary or robbery. ² He further argues the evidence is insufficient to show appellant intended to cause the death of Helen Bass.

The evidence at trial established the following: Bass returned home from work at approximately 11:30 p.m. on November 29, 1989. The next day, Mary Barnes, appellant's mother and Bass' friend, went to Bass' home to pick her up for work. No one answered the door. After arriving at work Barnes became concerned and phoned Sharon Mergerson, Bass' neighbor and ex-sister-in-law, to check on the situation. Mergerson immediately went to Bass' home. Upon arrival, she noticed a back door had been forcibly kicked in. She found Bass' body at approximately 4:00 p.m. Mergerson went home and phoned the police.

Bass died of a .32-caliber gunshot wound to the head. Time of death was estimated to be in the early morning hours of November 30th. She was found naked and beaten in her bedroom. Aside from the gunshot wound, Bass had been stabbed twice, hit with a .22-caliber rifle, and struck in the head with a blunt object. A knife covered with blood was discovered in Bass' kitchen. A bloody lamp with a dent in the base was found in Bass' bedroom, along with a .22-caliber rifle that had been broken in half. The police discovered the lamp's mate in another bedroom of the home. Mergerson testified that the lamps had been recently purchased. A box for a .32-caliber handgun was also found. However, no gun was recovered at the scene.

Bass did own a .32-caliber handgun. Willie Bass, Jr., her son, bought her the handgun in April, 1988. ³ Malrie Wilson, Bass' friend, saw the gun in her possession on the morning of November 29th. Wilson had shown Bass how to load the weapon and was attempting to familiarize her with it on Monday, November 27th, and Wednesday, November 29th. The gun was fully loaded at that time. Wilson had suggested Bass keep the gun in her bedroom.

Bass' bedroom was found in disarray. Dresser drawers had been moved and some pulled out. The contents of two purses had been dumped out onto the bed. Bass' checkbook was on the floor. A coin purse was found open. A jewelry box was open and appeared to have been gone through. An identification card and personal papers belonging to Bass were found outside near her chain-link fence. Approximately $200 cash was also found in the home.

Johnny Ray Humphrey, appellant's co-worker, had been with appellant at approximately 10:00 p.m. on November 29th, when he dropped appellant off near his home. Appellant was wearing dark-colored coveralls. At approximately 10:30 p.m., Robert Brooks, a neighbor, saw appellant in Bass' yard. Appellant hurdled Bass' wooden fence, fell down, and rolled into the street. Appellant then got up and went back over Bass' chain-link fence. ⁴ Brooks testified appellant was wearing dark green or blue coveralls and a stocking cap. Between 2:00 a.m. and 3:00 a.m. on November 30th, Patrick Williams saw appellant with a gun and wearing coveralls at the Holliday Creek Apartments. The apartments are near Bass' home.

After work on November 30th, Humphrey, appellant, and Joseph Barnes, appellant's brother, stopped by the Barnes' home. Appellant stated he had "confiscated" a gun from his father and wished to sell it. Appellant went to his bedroom, retrieved the gun from under his bed, and gave it to Humphrey. Humphrey later sold the gun to Williams. Humphrey identified the gun at trial as the one he obtained from appellant.

Williams testified that the gun that he bought from Humphrey on the afternoon of November 30th was the same one he had seen appellant with earlier the same day. He further stated that a bullet was missing from the gun when he purchased it. Williams later returned the gun to Humphrey's sister, Deborah Ann, when he learned of the murder. Deborah Ann then turned the gun over to the police. Willie Bass identified the gun as the one he had given his mother.

The police recovered dark green coveralls from Joseph Barnes' car. Joseph told the officers that the coveralls belonged to appellant. ⁵ Humphrey testified that the coveralls were the same coveralls he had seen appellant wearing on the evening of November 29th. Blood later removed from the coveralls by a forensic serologist was determined to be type O blood, which was the same as Bass'. Appellant has type A blood. The forensic serologist testified that fifty percent of all African-Americans have type O blood. ⁶ The blood on the coveralls, however, also had genetic markers consistent with Bass' blood.

Larry Fletcher, a firearms examiner, testified the bullet removed from Bass' head was the same type that would be fired from the .32-caliber revolver in evidence. When comparing the fatal bullet to a test bullet fired from the revolver, Fletcher could not make a positive determination whether or not the fatal bullet was fired from this exact pistol, because it sustained too much damage on impact. However, there were other consistencies between the test bullet and the one removed from Bass.

Dr. Jeffrey Barnard, Chief Medical Examiner of Dallas County, performed the autopsy. Barnard testified that Bass' injuries were consistent with having been caused by the handgun, lamp, broken rifle, and knife recovered by the police. James Cron, a fingerprint and footprint expert, testified that appellant's fingerprint appeared on the lamp. Further, he stated that the shoeprint pattern found on the back of Bass' checkbook matched the shoe pattern on appellant's shoes. Cron admitted that millions of shoes with that pattern have been produced.

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, 319, 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, ⁷ we will use the "exclusion of reasonable hypotheses" approach as the method for analyzing 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 presence of his fingerprint on the lamp does not show he had ever been in decedent's home unlawfully. ⁸ He argues the presence of his fingerprint was not unusual because he had helped do repair work on Bass' home three years before and Bass had allowed appellant to have a party in another building on her property. Appellant's mother testified that appellant had done work for Bass a few weeks before her death. Appellant cut down some limbs and looked for a leak in the back of the house. There is evidence, however, that the lamps were purchased shortly before Bass' death, and were kept in a front bedroom.

Appellant next argues that Humphrey fabricated his testimony and implicated appellant in order "to avoid his own date with the hangman." Appellant supports this hypothesis with the following evidence at trial: Marquita Mackey testified that she saw Humphrey at 5:00 p.m. on November 30, 1989, wearing a pair of blood-stained dark coveralls. Humphrey had the gun with him at the time and he delivered it to Williams in her presence. She also stated that she later saw the coveralls thrown behind a local playhouse. Mary Barnes testified appellant arrived home between 11:45 and 11:50 p.m. on November 29th and did not leave the house until the next morning, although she admits that she was asleep for part of that time. Joseph Barnes testified that appellant did not go into his home on November 30th and retrieve the gun. He testified that Humphrey got a paper sack from his own home and then traded it with someone at the Holliday Creek Apartments.

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 Humphrey was the real perpetrator of the crime was apparently rejected by the jury. 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...