Dunn v. State

Decision Date05 November 1986
Docket NumberNo. 69463,69463
Citation721 S.W.2d 325
PartiesThomas Lennon DUNN, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals
OPINION

TEAGUE, Judge.

Thomas Lennon Dunn, hereinafter referred to as the appellant, was charged by a two count indictment with committing the offense of capital murder of Francis Willingham on June 27, 1984, "by stomping on her body with his foot and hitting her in the head with his hand," which occurred while the appellant was either (1) in the course of attempting to commit or committing the felony offense of burglary or (2) in the course of attempting to commit or committing the felony offense of aggravated sexual assault. See V.T.C.A., Penal Code, Section 19.03. 1 The jury found appellant guilty under the first count, and also answered in the affirmative the three special issues that were submitted to it pursuant to Art. 37.071, V.A.C.C.P. 2 Based upon the answers, the trial judge assessed appellant's punishment at death.

The appellant presents five grounds of error for review. Because we will sustain his fourth ground of error, which asserts that "The trial court committed reversible error in admitting State's Exhibits 2 and 3 into evidence as there is insufficient evidence to rebut appellant's assertions that the statements contained therein were obtained by promises and coercion, and that therefore they were not voluntarily given," we will only review that ground of error and his fifth ground of error, which contends that the evidence is insufficient to sustain the jury verdict finding him guilty of committing capital murder while committing or attempting to commit the felony offense of burglary. 3

We review the latter ground of error because of Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), also see Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), and this Court's past decisions, see, for example, Selman v. State, 663 S.W.2d 838 (Tex.Cr.App.1984), in which it was held that a challenge to the sufficiency of the evidence should be considered before disposing of a case even though reversal may be based on another ground of error.

Therefore, we will first consider the appellant's claim that the evidence adduced was insufficient to sustain the verdict of the jury finding him guilty of the offense of capital murder committed during the course of committing the underlying felony offense of burglary or attempted burglary.

We pause to point out that in deciding the sufficiency of the evidence, all of the evidence, both proper and improper, must be considered in deciding that issue. Furthermore, when reviewing the sufficiency of the evidence, this Court is bound to review the evidence in the light most favorable to the jury's verdict. The Federal Constitutional test, which this Court has adopted, is whether, after viewing all of the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Also see Griffin v. State, 614 S.W.2d 155 (Tex.Cr.App.1981); Porier v. State, 662 S.W.2d 602 (Tex.Cr.App.1984); Gardner v. State, 699 S.W.2d 831 (Tex.Cr.App.1985); Bain v. State, 677 S.W.2d 51, fn. 1 (Tex.Cr.App.1984).

The material facts that were presented to the jury reflect the following:

Kerry Watkins, a fourteen-year-old neighbor of the deceased, testified that while riding his horse and getting the family mail he saw the deceased "between 10:00 and 10:30 o'clock a.m." on the morning of the day when her body was found inside her residence, which occurred around 4:30 o'clock p.m. When Watkins saw the deceased, she was driving her automobile in the direction toward her residence.

Vernon Willingham, the husband of the deceased, testified that on the day in question, around 7:00 o'clock a.m., he left their residence and went to work. His wife was alive and appeared to be in good health at that time. Willingham had no contact with his wife during the day. After work that day, Willingham returned home at approximately 4:30 o'clock p.m. Soon thereafter he observed glass scattered on the back patio of his and his wife's residence. Fearing that a pressure cooker that his wife might have been using had exploded, Willingham ran inside of the house where he soon found his wife in their bedroom. He almost did not recognize her because of the injuries that had been inflicted upon her body during his absence. His wife was then dead. It was later discovered that her purse had been taken, but neither the purse nor its contents were ever located by the police. Thereafter, and notwithstanding the fact that he was then in a state of shock, Willingham managed to obtain assistance in notifying the authorities, who, by Willingham's testimony, responded in approximately 40 minutes.

Willingham also testified over objection that approximately one week before the fatal day in question his wife, who was "scared of black males" and would not have "let a black male into the house when she was by herself," informed him that she had seen a black male person prowling around their residence. There is no evidence, however, that might reflect or indicate that this black male and the appellant, who the record reflects is also a black male person, are one and the same person.

The autopsy report, also see post, reflects that the deceased had sexual intercourse with a male person within 24 to 36 hours of her death. Willingham testified that he did not have sexual intercourse with his wife within that time frame.

No identifiable fingerprints or palmprints were recovered by the police from either the inside or the outside of the residence. Other than the deceased's purse and its contents, nothing else was apparently taken from the residence.

C.B. Roberts, a neighbor of the Willinghams, testified that when he went home for lunch on the day in question, at approximately between 11:15 and 11:30 o'clock a.m., he observed a four door hardtop General Motors type vehicle parked approximately 75 to 100 yards from the Willingham residence. When Roberts left his residence to return to work he noticed that the vehicle was no longer parked where he had earlier seen it, "Not to my knowledge." He identified a photograph of a motor vehicle as being the same vehicle he saw that morning. This vehicle was subsequently identified as one belonging to the appellant.

John Whitham, a Deputy Sheriff for Smith County, testified that when working on this case he recalled that in the early part of October, 1981, the Sheriff's Department made an investigation of a criminal trespass incident that had occurred at the residence where the deceased's body was found by her husband. At that time the deceased and Willingham were not then married and the deceased apparently lived alone in the residence.

Over objection, Phil Megason, who then worked as a patrol officer for the Smith County Sheriff's Department, testified that on October 8, 1981, which was almost three years prior to when the deceased was murdered on June 27, 1984, he responded to a call concerning the residence of the deceased. After arrival at the residence, Megason observed a person later identified as the appellant coming out of a gate next to a fence on the outside of the residence. The appellant told Megason that he was where he was situated because he had just returned from urinating in private and out of the public view. Megason arrested the appellant for criminal trespass and handcuffed him to a tree. The now deceased arrived at her residence and told Megason that she did not recognize the appellant and also told Megason that she had not given him permission to be on her premises. She advised Megason that she would file criminal trespass charges against the appellant. Although appellant was apparently charged with committing the offense of criminal trespass, the record does not reflect or indicate the disposition of the charge. 4 Other than the appellant's extrajudicial handwritten confession, the oral "clarifications" of the confession which were tape recorded, and the above testimony going to the "trespassing" incident, there is no direct testimony or evidence in the record connecting the appellant either to the deceased or to her residence.

Dr. Stanley Lightfoot, a pathologist, testified from records of his office that reflected that a Dr. Gonzales of his office performed an autopsy on the body of the deceased. The autopsy report reflects, inter alia, that the deceased died as a result of multiple traumatic injuries. Dr. Lightfoot testified that the autopsy report reflected that the deceased had had sexual intercourse with a male person "within less than twenty-four to thirty-six hours" of her death. He placed the time of death between 10:00 o'clock a.m. and 3:30 o'clock p.m. on the day in question.

Over objection, Buck Fontenot, a Smith County deputy sheriff, testified that he obtained a handwritten confession [State's exhibit number 2] from appellant and also had a tape recorded interview session with appellant, which was later transcribed [State's exhibit number 3]. 5 For purposes of our discussion, we will treat the exhibits as amounting to only one confession. The exhibits were admitted into evidence over objection.

The appellant presented several witnesses, including himself, at his trial. His defense was alibi. He repudiated the contents of his confession.

Mae Tilley, who was then appellant's girlfriend, testified and also identified the appellant's motor vehicle as the one depicted in State's Exhibit No. 19, which was the vehicle that the witness Roberts had identified. Tilley testified that shortly after...

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