Durand v. State

• Decision Date: 11 August 1994
• Docket Number: No. 01-92-01123-CR,01-92-01123-CR
• Parties: Raymond DURAND a/k/a Raymond Durand Holbin, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 569

881 S.W.2d 569

Raymond DURAND a/k/a Raymond Durand Holbin, Appellant, v. The STATE of Texas, Appellee.

No. 01-92-01123-CR.

Court of Appeals of Texas Houston (1st Dist.).

Aug. 11, 1994.

Ken J. McLean, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., J. Harvey Hudson, Ted Wilson, Bill Taylor, Asst. Dist. Attys., for appellee.

Before HEDGES, DUGGAN and ANDELL, JJ.

OPINION

HEDGES, Justice.

A jury convicted appellant of the murder of his wife, Jeannine Paulette Boissoneault Durand, and assessed his punishment at 30 years in prison. In nine points of error, appellant attacks the sufficiency of the evidence supporting his conviction, assigns error to various trial rulings, and contends that the trial court abused its discretion in denying his motion for new trial. We affirm.

On February 11, 1968, a man and his young son discovered a human body in a wooded area near the intersection of Barker-Clodine and Westheimer. When sheriff's deputy Johnny Klevenhagen first saw the body, it was wrapped in a bed cover and bound with a rope. Klevenhagen investigated and took identification photographs, and Dr. Robert Bucklin, of the Harris County medical examiner's office, performed an autopsy on the body. Dr. Bucklin found injuries tending to indicate that the decedent had died neither naturally nor by accident, but had been killed by someone. ¹ The sheriff's office was unable to match the body with any missing person report, and no suspects were identified. Thereafter, the case--known by its file number, 68-500--remained open but inactive.

Anne-Marie Durand Hallberg and Denis Durand are the children of Jeannine Durand and appellant Raymond Durand. At the end of 1967 and beginning of 1968, when they could last recall seeing their mother, they were approximately nine and 12 years old. In 1990, after years of uncertainty about what had happened to their mother, they undertook to establish the truth. While she was a prosecution witness in California, Anne-Marie had become acquainted with Joseph Jean Nadeau, an investigator with the Riverside district attorney's office. Nadeau agreed to help Anne-Marie and Denis, and with his assistance, they ultimately came upon file number 68-500 in Harris County, Texas. Denis contacted Michel Beland, Jeannine's cousin, who arranged to have the Harris County medical examiner's office send him the photographs from that file. Beland identified the body shown in the photographs as that of Jeannine. Appellant was arrested and prosecuted for the murder of Jeannine Durand.

In point of error one, appellant contends that the jury's implicit finding that the body described in file number 68-500 ("the body") was that of Jeannine was against the great weight and preponderance of the evidence. In so contending, he asks this Court to conduct a review of the factual sufficiency of the evidence on a matter that the State must prove. Appellant urges that the factual sufficiency standard of review is appropriate in certain cases in which the physical evidence dramatically contradicts the jury verdict in a way that cannot be resolved by either mere deference to the jury's assessment of credibility or resort to inferences.

On previous considerations in which we have been asked to conduct a factual review of a criminal verdict, we have limited such a review to matters on which the defendant has the burden of proof. See Moody v. State, 830 S.W.2d 698, 704 (Tex.App.--Houston [1st Dist.] 1992, pet. ref'd). At least one Texas appellate court has recently enlarged the scope of the factual sufficiency standard. In Stone v. State, 823 S.W.2d 375, 377 (Tex.App.--Austin 1992, pet. ref'd, untimely filed), the Austin Court of Appeals reviewed the factual sufficiency of the evidence supporting Stone's conviction using the standard of review set forth in Meraz v. State, 785 S.W.2d 146 (Tex.Crim.App.1990), thereby extending factual sufficiency review to matters on which the State had the burden of proof.

We disagree with Stone's application beyond those matters on which the defendant has the burden of proof. The Meraz standard applies only to review of the evidence supporting defensive issues on which the defendant has the burden of proof by a preponderance of the evidence. Jones v. State, 817 S.W.2d 854, 855 (Tex.App.--Houston [1st Dist.] 1991, no pet.). Since the Stone decision, we have declined the same extension of Meraz no fewer than three times. Blackmon v. State, 830 S.W.2d 711, 713 n. 1 (Tex.App.--Houston [1st Dist.] 1992, pet. ref'd); Moody v. State, 830 S.W.2d 698, 704 (Tex.App.--Houston [1st Dist.] 1992, pet. ref'd); Lopez v. State, 824 S.W.2d 298, 303-304 (Tex.App.--Houston [1st Dist.] 1992, no pet.). This Court will continue to apply the traditional standard of review in criminal cases, addressing ourselves exclusively to the legal sufficiency of the evidence on matters which the State has to prove. We see no reason to extend the factual sufficiency standard to even the limited category of findings appellant suggests, because those findings can be adequately reviewed under the legal sufficiency standard.

We overrule point of error one.

In point of error two, appellant argues that no rational trier of fact could have found that the body was Jeannine's. In conducting a legal sufficiency review, we consider the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found all the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 320, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). This standard of review applies to both direct and circumstantial evidence. Green v. State, 840 S.W.2d 394, 401 (Tex.Crim.App.1992), cert. denied, 507 U.S. 1020, 113 S.Ct. 1819, 123 L.Ed.2d 449 (1993); Palmer v. State, 857 S.W.2d 898, 899 (Tex.App.--Houston [1st Dist.] 1993, no writ). We may not act as a thirteenth juror in assessing the evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988). If there is evidence that establishes guilt, beyond a reasonable doubt, and if the trier of fact believes that evidence, we may not reverse the judgment on sufficiency of the evidence grounds. Id.

In the light most favorable to the verdict, the evidence shows the following: The State introduced a black-and-white photograph of the face and upper torso of the body taken shortly after the body was found on February 11, 1968 (State's Exhibit 1) as well as a photograph of Jeannine taken at the family residence. Beland identified the body shown in State's Exhibit 1 as that of Jeannine--as did Denis, Anne-Marie, Jeannine's brother Reginald Boissoneault, and appellant's uncle, Robert Durand.

Appellant argues that the jury's finding that the body in question was that of Jeannine Durand was contrary to "credible and practically undisputed" evidence concerning her physical characteristics. This argument is unavailing. The jury, as the trier of fact, is the sole judge of the credibility of witnesses, and may believe or disbelieve all or any part of any witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App.1986), cert. denied, 488 U.S. 872, 109 S.Ct. 190, 102 L.Ed.2d 159 (1988).

Appellant also argues that the face shown in State's exhibit 1 is

notably distorted, decomposing, and bloated. The identification testimony here should be scrutinized in the same light as that of a witness whose vision was clearly obstructed but who nevertheless claims to have viewed an event. [Here,] [t]he galactic improbability that the body in State's exhibit 1 is that of Jeannine Durand is clear.

We agree with appellant's first premise: the face shown in the photograph is notably distorted. We do not, however, agree that the identification testimony is like that of a witness whose vision was obstructed, because the opportunity for the witnesses to perceive the face shown in State's exhibit 1 clearly existed. The image in the photograph is recognizable as the face of an adult female human, despite the distortion wrought by death and its aftermath. The distortion created by post-mortem deterioration amounted to nothing more than a proper basis for impeaching the witnesses who identified Jeannine. It was not so extreme as to remove the matter from the province of the jury, who could rationally conclude that, upon examining both photographs, the witnesses were honestly able to recognize Jeannine Durand as the person depicted in both photographs.

Appellant further contends that no rational jury could have believed that the body was Jeannine's because of the following conflicts in the evidence:

(1) Whether the body had undergone a tubal ligation;

(2) Whether Jeannine's eyes and the body's eyes were the same color;

(3) Whether Jeannine's hair and the body's hair were the same color;

(4) Whether Jeannine and the body were the same height; and

(5) Whether Jeannine wore contact lenses (no contact lenses were found on the body).

Tubal Ligation

Appellant argues that the evidence shows that Jeannine underwent a tubal ligation but that no such procedure had been performed on the body. Jeannine's medical records reflect that she had a tubal ligation following the birth of her youngest child. The surgeon entered the abdomen through a subumbilical incision and removed a small segment of both the right and left Fallopian tubes.

Dr. Bucklin, the physician who conducted the autopsy on the body, reported a 3"' well-healed incision under the navel. The body's ovaries and oviducts were normal. Dr. Bucklin had never performed a tubal ligation. Dr. Marcontell, a gynecologist with extensive experience in tubal ligation, testified that the effects of a ligation would not be obliterated over time, suggesting that Dr. Bucklin would have been able to see or feel results of the operation. Dr. Jachimczyk, the Harris County Medical Examiner, testified that it is normal procedure to sew the cut ends of a Fallopian tube together to prevent infection. Furthermore,...