Drew v. State

• Decision Date: 14 February 2002
• Docket Number: No. 14-99-01323-CR.,14-99-01323-CR.
• Parties: Jonathan David DREW, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

76 S.W.3d 436

Jonathan David DREW, Appellant, v. The STATE of Texas, Appellee.

No. 14-99-01323-CR.

Court of Appeals of Texas, Houston (14th Dist.).

February 14, 2002.

Discretionary Review Refused June 26, 2002.

Terri R.Z. Jacobs, Jack B. Zimmerman, Houston, for appellant.

Rikke Burke Graber, Houston, for appellee.

Panel consists of Justices YATES, ANDERSON, and SEYMORE.

OPINION

CHARLES W. SEYMORE, Justice.

Appellant Jonathan David Drew appeals his conviction and life sentence for felony murder. We affirm.

I. BACKGROUND

On November 29, 1998, complainant Tina Flood and her friend Justin Chapman attended a birthday party at a bar in Seabrook, Texas. Appellant was introduced to Tina at the party. He bought her drinks, and they were seen kissing. When the bar closed and the party ended at 2:00 a.m., several people went to a Holiday Inn hotel. Because Tina was too intoxicated to drive to the hotel, she and Chapman rode there with other people. Her car was left in parking lot next to the bar. When they attempted to check into their room, Chapman, who was a Holiday Inn employee, realized he had left his employee discount card in Tina's car. They saw appellant sitting in his pickup truck in the hotel parking lot and accepted his offer to take them back to the bar. Tina sat in the middle next to appellant, and Chapman sat in the passenger's side of the front seat.

When they arrived at the parking lot next to the bar, Chapman exited appellant's truck and held Tina's purse while she exited the truck. According to Chapman's testimony, Tina was attempting to scoot across the seat to the passenger-side door when appellant drove away. Chapman was between the open door and the body of the truck and held onto the door as appellant drove away. Chapman testified that Tina screamed for appellant to stop. As the truck pulled out of the parking lot, the door slammed shut and knocked Chapman into a ditch. Chapman ran to the bar and began beating on the front door.

At 2:52 a.m., Seabrook Police Officer Marc Hatton was on patrol when he saw Chapman beating on the bar's door. Chapman told Officer Hatton that his friend had just been kidnapped. Chapman described a maroon, full-sized, single-cab Chevrolet truck. The description of appellant's truck was broadcast to other officers in the area. At 3:49 a.m., Harris County Deputy Constable Sean Kitchens spotted appellant's truck, and he was stopped for failing to maintain a single lane of traffic. Deputy Kitchens asked appellant for his license. When appellant leaned over to retrieve his license from the console, Kitchens noticed a bloody foot lying on the seat. When asked who that was, appellant responded, "That's my friend Tina. She's knocked out over there." Tina was lying in a fetal position against the passenger's door, naked except for her skirt, which was bunched around her waist. She had abrasions on her leg, buttocks, and arm. Deputy Kitchens called for backup assistance. After the backup arrived, appellant was asked to step out of the truck. Deputy Kitchens noticed a scratch on appellant's right arm, three scratches on the back and side of his neck, and what looked like blood on his shirt collar.

Tina was taken to the Clear Lake Regional Medical Center. Emergency Room Nurse Christine McFall conducted a sexual assault examination. According to McFall, Tina repeatedly stated, "Please help me. Please help me. Don't hurt me." Emergency Room Nurse Mary Jane Heady heard Tina state, "Please don't rape me." A CAT scan showed that Tina had sustained a skull fracture, which caused her brain to swell and hemorrhage. Surgery was performed, but Tina died a day and a half later because swelling in her brain. The State tried appellant for capital murder, however, the jury found him guilty of felony murder, and he was sentenced to life in prison.

II. ISSUES ON APPEAL

Appellant brings nineteen issues in this appeal, asserting (1) the evidence supporting his conviction is legally and factually insufficient; (2) the trial court erred in denying him the right to confront two witnesses; (3) he was denied due process and due course of law by the State's failure to disclose the probation status of two witnesses; (4) the trial court erred in admitting gruesome and unnecessary autopsy photographs; (5) the trial court erred in failing to instruct the jury about the required culpable mental state for felony murder; (6) the trial court erred in failing to require a unanimous jury verdict on the underlying felony in order to convict him of felony murder; (7) the trial court erred in admitting Tina's hearsay statements; (8) the trial court erred in denying his motion to reopen voir dire; (9) the trial court erred in overruling his objection to the prosecutor's argument, which injected new and harmful facts into the case; and (10) the trial court erred in overruling his objection when the prosecutor, during final argument, injected his personal opinion that appellant committed an extraneous offense.

III. LEGAL & FACTUAL SUFFICIENCY

In his first two issues, appellant claims the evidence is legally and factually insufficient to establish either the underlying offense of kidnapping or aggravated sexual assault or the commission of an act clearly dangerous to human life. When reviewing the legal sufficiency of the evidence, we must view the evidence in a light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999). In conducting this review, we do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex.Crim.App.1993).

In reviewing the factual sufficiency of the evidence, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict only if "proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim. App.2000). We review the fact-finder's weighing of the evidence and are authorized to disagree with the fact finder's determination. Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App.1996). Our review, however, must be appropriately deferential so as to avoid substituting our own judgment for that of the fact-finder. Jones v. State, 944 S.W.2d 642, 648 (Tex.Crim.App.1996).

Chapman testified that appellant drove away as Tina was attempting to exit his truck. It appeared to Chapman that appellant was holding onto her. Chapman heard her scream for appellant to stop as he drove away. Although Chapman tried to hold onto the truck door, he was thrown to the ground. Officer Haddon, the police officer who found Chapman beating on the door of the bar for help, testified that Chapman's pants were covered in mud and that he was almost hysterical.

When Officer Kitchens pulled appellant's truck over, he found Tina curled in the front seat naked, unconscious, bloody, bruised, and scraped. Appellant had a long scratch on his arm, scratches on his neck, and what looked like blood on his collar. A search of the car revealed a pair of men's underwear, Tina's underwear, and her blouse.

The forensic evidence shows that Tina's injuries were extensive. Dr. Paul Schrode, the medical examiner who performed the autopsy, testified there were at least two distinct fractures to Tina's skull, the result of one or possibly two separate acts of blunt trauma. He stated that a considerable amount of force was required to cause those fractures. Next, Dr. Schrode testified there was an abrasion on the back of Tina's head and a bruise on the back of her brain immediately below the point of impact. On the opposite side of her head, there was a massive amount of bleeding, but no external bruise on her skin. Such an injury is typically found where a moving head strikes a stationary object. Dr. Schrode stated the injury to Tina's skull was consistent with her moving head striking a stationary object.

Dr. Schrode also testified that Tina's ear was swollen and that there was a bruise behind the ear. He stated that, while this bruise could be related to the skull fracture, swelling of the ear indicated the injury was probably caused by a separate impact. According to Dr. Schrode, the injury to Tina's ear was more consistent with something striking her or her head striking something on that side.

Regarding the abrasions and contusions on Tina's shoulder, shoulder blade, elbow, lower back, and buttocks, Dr. Schrode testified they were consistent with being dragged on a rough surface, such as concrete. He also described a wrinkling or crumpling of the skin on Tina's back, which suggests that something scraped across her back, consistent with the skin having been stepped on. Dr. Schrode further stated Tina's abrasions were not consistent with those that might result from jumping out of a moving vehicle.

Dr. Schrode also found bruising in the soft tissue of both sides of Tina's neck. He testified this was caused by direct external compression, often seen in manual strangulations. Further, there were small oval contusions on Tina's lower legs, ankles, and upper right arm, consistent with finger impressions. Dr. Schrode also observed abrasions on Tina's knuckles and the meaty part of the thumbs of both hands, suggesting defensive injuries. The evidence showed appellant had scratches on his right arm and neck.

The anal swabs taken during the sexual assault examination contained a mixture of DNA from appellant and Tina. While there were no obvious abrasions or tears in the vagina and anal area, Dr. Schrode testified the area was a little darker than normal, which...