Carlisle v. State, 52046

Decision Date09 March 1977
Docket NumberNo. 52046,52046
PartiesDavid CARLISLE, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals
OPINION

BROWN, Commissioner.

This is an appeal from a conviction for murder. Appellant was tried before a jury which assessed his punishment at twenty-five (25) years in the Texas Department of Corrections.

Appellant challenges the sufficiency of the evidence in his first ground of error. The deceased, Betty Ann Carlisle, was the appellant's former wife. It appears from the record that the couple was attempting a reconciliation at the time of this murder.

The body of the deceased was discovered at approximately noon on August 1, 1974. Ronnie Anson testified that he found the body sitting in the front seat of a 1974 Pontiac Grand Prix, later shown to belong to appellant. The car was parked in a vacant lot near a store known as Bob's TV Shop. Anson said that after he discovered the body he called his brother Bob, owner of the shop. The sheriff was summoned and both Anson and his brother testified that they were present when the sheriff began his investigation. They discovered several empty beer cans and an unopened bottle of whiskey on the floor of the car. They also found the deceased's purse and stated that there was a considerable amount of money stuck in the compartments of the purse. Also found in the purse and in the glove compartment of the car were several bottles containing various types of pills. Both men also described an area which they said the sheriff referred to as a "struggle area" some twenty or thirty feet from the car. It appears that the ground surrounding the car was muddy from rain at an undetermined time and many footprints appeared in the damp caliche soil. The so called "Struggle area" appeared to have a number of footprints in an irregular pattern as if someone had struggled or staggered around. Also scattered around the struggle area was about fifty dollars in bills of various denominations.

Two witnesses stated that they saw a car parked near Bob's TV in the early morning hours of August 1. G. T. Watkins stated that he passed the shop at 7:00 a. m. and saw the Grand Prix and another car which was parked in front of the shop. He said that he circled the area and drove near the Grand Prix and saw someone who appeared to be asleep in the driver's seat of the car. He learned of the killing later that day. Mrs. Verna Richardson testified that she passed the shop between 5:30 and 6:00 a. m. on August 1 and saw the Grand Prix parked in a slightly different position than that described by the other witnesses. She also stated that both doors of the car were open and the dome light was on. She further stated that she saw another car parked in front of the shop. She said that this car was a Mustang, but could not describe the color. Bob Anson testified that he also saw the Mustang and that its owner came into his shop during the morning before the discovery of the deceased and apologized for blocking his parking area. He stated that the man was of Mexican descent and that he "jump-started" the Mustang and left. Mrs. Richardson's son and daughter-in-law both testified that they lived within a block of the shop and that they were awakened at approximately 5:30 or 6:00 a. m. by a loud noise which was described as similar to an aerosol spray can popping.

Leon Gorrell, deputy sheriff of Deaf Smith County, stated that he saw the deceased in the company of appellant and another woman at Big Daddy's Cafe near Hereford on the night of July 31-August 1. He said that he spoke with the deceased and that she left with appellant at about 2:00 a. m., August 1. Peggy Adams, a waitress at Big Daddy's, testified that she also saw appellant and the deceased together in the cafe on the night in question. She said that she spoke with the couple and that everything seemed to be all right. There was no evidence of disagreement between them. She said that they left in appellant's car at about 3:00 a. m. She further stated that she had heard that appellant and the deceased were getting married again and that she had seen the deceased getting pills from truck drivers on several occasions and had seen her take "white glossies" or "uppers" on several occasions.

Dr. Jose Dias-Esquivel, the physician who performed the autopsy on the deceased, testified that he discovered a bullet wound through the right arm passing into the chest under the right breast, penetrating the right lung, the pericardium and left lung and lodging in tissue under the left breast. He stated that a second bullet entered just under the first wound, followed a similar path through both lungs and also lodged in tissue under the left breast. A third bullet entered through the right shoulder, passed through the right lung and lodged in the second thoracic vertebra. Dr. Dias also stated that there were four more wounds on the body which he believed were caused by two more bullets passing completely through the body from front to back. On cross-examination it was developed that the chemist who examined the clothing of the deceased was of the opinion that these last two bullets entered from the back and exited through the front of the body. Dr. Dias stated that his tests were not positively conclusive about the path of those bullets. He also testified that he found no evidence of drugs or alcohol in the body of the deceased. Time of death was not positively shown. Dr. Dias estimated time of death at six to eight hours prior to his examination, which took place on the morning of August 2. However, he qualified this opinion by stating that if the body had been embalmed (he did not remember if it had) then death would have taken place six to eight hours prior to embalming. It was later shown that the body had been embalmed on the afternoon after it was discovered.

An attendant at a Phillips 66 service station located within a block of Bob's TV shop testified that he saw a man in the telephone booth on the corner near the station sometime between 7:30 and 9:00 a. m. on the day the deceased was discovered. He stated that the man stood in the booth for over an hour and possibly as long as two hours.

The manager of the sporting goods department of a Gibson's Discount Center in Plainview testified that he sold appellant a .38 caliber pistol on July 23, 1976. The pistol was found by Deputy Sheriff Henry Minter in a ditch near Bob's TV on the afternoon of August 1.

Minter testified that he participated in the investigation and observed caliche mud on the inside of the car on the front seat, on the console and on the back seat. He said that the deceased had no mud on her clothes or boots. He also observed the boot tracks and the "struggle area." He further stated that he observed another area just outside the passenger door of the car where it appeared that someone had fallen down in a mud puddle. He stated that there was the imprint of a shirt and buttons in the caliche in this area. He stated that the boot tracks appeared to go around the car to the driver's door and that there was a muddy hand print on the driver's door. He stated that he followed the boot tracks to the "struggle area" and away from the scene to the Phillips 66 station and that the attendant told him about the man in the telephone booth. He examined the booth and found several pills scattered on the floor of the booth. He later returned to the scene and followed the boot tracks in another direction toward an old wrecked car nearby and found another muddy hand print on that car. He stated that he followed these tracks into a ditch where he found a billfold containing appellant's identification cards and a $100 bill and a $1 bill. A few feet further he found the pistol. Minter testified that in his opinion all of the boot tracks were made by the same pair of boots.

Deputy Sheriff Tom Atkins testified that he went to the scene of the investigation with Minter and that he was ordered to return to the sheriff's office to retrieve a camera. When he arrived at the office he was met by appellant's father. Atkins said that he went outside to a car where appellant was sitting with his brother. Appellant got out of the car and went inside with his father and Atkins. Atkins stated that appellant appeared to be unsteady and that he seemed very woozy as though he were drunk or on pills. He said that appellant had mud on his clothes and boots. Atkins said that he summoned a doctor at the request of appellant's father and that the doctor arrived within a few minutes and examined appellant. Atkins said that appellant's father told him that appellant had picked up a hitchhiker and had been hijacked. He said that the sheriff arrived shortly thereafter and following a brief discussion with appellant and his father, he placed appellant under arrest. Atkins said that appellant had two $100 bills and one $1 bill in his possession at the time of his arrest. Atkins also said that he later participated in a thorough examination of the car and that no bullet holes were found in the car.

Sheriff Charles Lovelace testified that he found five empty Coors beer cans and one full can on the floor of the car as well as an unopened pint of liquor. He also stated that there was a considerable amount of caliche mud on the front seat and floor and on the console and back seat of the car. He also expressed the opinion that all of the boot tracks around the car were made by one person. Furthermore, since the deceased had no mud on her boots, he concluded that she was shot while sitting in the car. He further stated that in addition to the beer cans, liquor and pills in the car, he recovered a zippered bank bag containing ten live .38 caliber shells. He also found a suitcase full...

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    ...print comparison less than positive may still be sufficient to prove identity when combined with other evidence. See Carlisle v. State, 549 S.W.2d 698 (Tex.Cr.App.1977). In addition, the State presented evidence showing the appellant's presence near the scene at least two hours before and w......
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