Bratcher v. State

• Decision Date: 19 April 1989
• Docket Number: No. 04-88-00178-CR,04-88-00178-CR
• Citation: 771 S.W.2d 175
• Parties: Pernell Dale BRATCHER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 175

771 S.W.2d 175

Pernell Dale BRATCHER, Appellant, v. The STATE of Texas, Appellee.

No. 04-88-00178-CR.

Court of Appeals of Texas,

San Antonio.

April 19, 1989.

Douglas S. Daniel, Daniel, Manning & Ralls, San Antonio, for appellant.

Fred G. Rodriguez, Lyndee Bordini, Mary Lou Castillo, Jay Brandon, Criminal Dist. Attys., San Antonio, for appellee.

Before BUTTS, CARR and ONION ^*, JJ.

OPINION

ONION, Justice (Assigned).

This appeal is taken from a conviction for murder where the jury, after finding the appellant guilty, assessed punishment at confinement in the Department of Corrections for life.

The appellant advances six points of error, but does not challenge the sufficiency of the evidence to sustain the conviction. We shall briefly mention the facts to place the points of error in proper perspective.

The State's evidence shows that on the morning of May 7, 1987, the deceased, Debra Sue Cotton, age 19, borrowed a car to run an errand. She did not return. On the evening of May 11, 1987, her decomposing body was found in a box in a field in the Heritage Northwest subdivision near the Ed Cody Elementary School in Bexar County. Around the deceased's neck was an electrical cord and a nylon jump rope with a knot. The cause of death was shown to be strangulation by ligature. The car was recovered in the same general area.

Other evidence showed that the deceased arrived at 10239 Harvest Time on the morning of May 7th where the 21 year old appellant was living alone with 16 year old Elena Moore, a high school student, whose grandmother was visiting in Germany.

Elena testified she met appellant in January, 1987, and they had a girl friend-boy friend relationship, and that he moved in a week or so after her Grandmother left for Germany in April. She saw the deceased, Debra Cotton, when Cotton drove the appellant to the Moore home on one occasion, and on May 6, 1987, she heard the appellant say he was going to kill Debra. On the same date she related that Debra came to her house and talked to the appellant in the living room and garage, but she didn't hear their conversation.

On the morning of May 7, 1987, Debra called and then arrived at the Moore house driving a small gray or silver car. Elena let Debra into the house and talked to her in the living room until appellant came out of her bedroom. At this time, Elena related Debra and appellant went to another bedroom and then migrated to her grandmother's master bedroom. Fifteen minutes later Elena found the bedroom door locked, heard appellant grunting, and looking under the door she saw Debra's feet going up and down. She thought they were having sex and was upset. She was able to pick the lock and then saw appellant astride Debra's thighs choking her with an electrical cord, pulling it "tighter and tighter."

At appellant's request she polished the furniture, got plastic bags and tape to use on the body, and assisted appellant as he placed the body in the attic above the garage. They then left in Debra's car to see if they could cash a check at Debra's bank. Failing in that endeavor, they then visited some of appellant's relatives and stayed away until dark. They parked the car some distance from the Moore house. They repeated this pattern for several days, but one morning they found the car had been moved from where they had parked it the night before.

By this time, the odor of the body had become overwhelming. Appellant called a friend and asked him to bring his truck and help move the body of a Great Dane dog belonging to appellant's girlfriend. The deceased's body was taken from the attic and placed in a Christmas tree box Elena had secured from her grandmother's garage. Appellant and his friend then dumped the box in a field where the deceased's body was later found. After a day or so appellant left Elena's house, and when the Sheriff's investigators arrived Elena gave them a false statement before leaving to live in Dallas with her mother. Appellant was not apprehended for some three weeks.

The State offered other evidence that Debra Cotton, the deceased, had met the appellant in April, 1987, and they began to see each other on occasion. As she was living with her regular boy friend Debra used a girl friend to relay messages to and from the appellant. The girl friend, Jo Ann DeLeon, testified that on May 5th appellant had called her and was angry because Debra had not kept a date with him, and threatened to tell Debra's other boy friend about their relationship. Later that day Debra came to DeLeon's house and told her that she and her regular boy friend were going to get married. DeLeon reported appellant's telephone call to Debra who looked scared, but stated she would talk to the appellant. DeLeon related that Debra had called that night and stated she and appellant had an argument, that she slammed the car door and walked away, but she went after him and they made up and were going to be friends. DeLeon never talked to the deceased again.

Appellant testified he met Elena Moore in January, 1987, that she began to call him, and they met nearly every day after she got out of school; that on occasion when no one else was there he spent the night at her house; that she bought him clothes and gave him money. He related that Elena was possessive and jealous and had caused scenes when other girls were around him. He acknowledged that he moved into Elena's home a week after her grandmother left for Germany, and that a neighbor lady moved out when he moved in.

Appellant told the jury he had known Debra Cotton since 1982, but had renewed his acquaintanceship with her in February, 1987, when he met her on a bus; that she obtained his brother's phone number so she could call him, and explained why he couldn't call where she lived; that they saw each other from time to time, and sometimes they went job hunting together; that he understood why Jo Ann DeLeon was used as a go-between, and that Debra's relationship with her regular boyfriend didn't bother him. He related that Debra knew about Elena, and he had told Elena about Debra, that Debra came by the Moore house on May 5th, 6th and then on the fateful morning of May 7th. On that morning appellant testified that he, Debra and Elena were all smoking marihuana joints and drinking liquor, that a talk show was on television about group sex, two on one sex, etc., that they got to laughing and joking about sex, that he said he could "handle" both of them, and they went to the master bedroom. Appellant testified that after he had sexual intercourse with both women he went to take a shower, that when he returned to the master bedroom he found Elena crying and Debra dead on the bed with a jump rope around her neck, and that he did not see the brown electrical cord on the neck until he moved the body. He reported that Elena said "I told you I was going to get that bitch that you were fucking with." Appellant stated he was leaving, and that Elena threatened to put the blame on him, telling him that he was Black, had no business there, and that no one would believe him; that he took the phone from her when she threatened to call the police because he panicked; that he agreed to help Elena. His testimony about placing the body in the attic, going to the bank, parking the car at different locations, disposing of the body in a field closely parallels that of Elena Moore. Appellant admitted he left the Moore home, and after three weeks he gave himself up to the police.

Initially appellant urges the trial court erred in failing to sustain his objection to the introduction of inflammatory and prejudicial photographs that were cumulative in nature.

The objection was to State's Exhibits 5 through 13, all photographs of the body of the murder victim taken at the location in a field where the body was discovered. They were introduced through the testimony of Sheriff's investigator Sandoval Marin. He testified that a woman's body was found in a box and when opened, it was discovered the body was covered by plastic bags exposing only the mid-section. As the plastic bags were removed photographs were taken of different portions of the clothed body as it was uncovered showing the bound feet, hands, the taped face and ligatures on the neck, etc. Marin testified the photographs accurately reflected what he observed as the body was unwrapped. The objection was that the photographs were cumulative and would serve only to inflame the minds of the jury. It was overruled.

The general rule was stated in Martin v. State, 475 S.W.2d 265, 267-68 (Tex.Crim.App.1972), dism'd w.o.j., 409 U.S. 1021, 93 S.Ct. 469, 34 L.Ed.2d 312 (1972), overruled on other grounds, Jackson v. State, 548 S.W.2d 685, 690 (Tex.Crim.App.1977). If a photograph is competent, material and relevant to an issue on trial, it is not rendered inadmissible merely because it is gruesome or it might tend to arouse the passions of the jury. If a verbal description of a body and scene would be admissible, a photograph depicting the same would be admissible. If, however, the probative value of the photographs is very slight and the inflammatory aspects great, it would be an abuse of discretion to admit the photographs.

Under the circumstances presented including the allegation in the indictment as to the cause of death the photographs were properly admitted under the general rule. See Burdine v. State, 719 S.W.2d 309, 317 (Tex.Crim.App.1976), cert. denied, 480 U.S. 940, 107 S.Ct. 1590, 94 L.Ed.2d 779 (1987). See also Marras v. State, 741 S.W.2d 395, 404 (Tex.Crim.App.1987); Thomas v. State, 701 S.W.2d 653, 660 (Tex.Crim.App.1985); Adams v. State, 685 S.W.2d 661, 668 (Tex.Crim.App.1985); Moreno v. State, 587 S.W.2d 405, 411 (Tex.Crim.App.1979). The photographs were not solely offered to inflame the minds of the jurors. Their probative value exceed their inflammatory potential. The court did not abuse its discretion. Smith v. State, 683 S.W.2d 393, 403 (Tex.Crim.Ap...