Emery v. State

• Decision Date: 11 May 1994
• Docket Number: No. 71358,71358
• Citation: 881 S.W.2d 702
• Parties: Jeff EMERY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 702

881 S.W.2d 702

Jeff EMERY, Appellant, v. The STATE of Texas, Appellee.

No. 71358.

Court of Criminal Appeals of Texas.

May 11, 1994.

Rehearing Denied June 22, 1994.

John F. Quinn, Bryan, Margaret A. Polansky, Caldwell, for appellant.

Bill Turner, Dist. Atty., and Deena J. McConnell, Asst. Dist. Atty., Bryan, Robert Huttash, State's Atty., Austin, for State.

OPINION

MALONEY, Judge.

Appellant was convicted of capital murder committed in the course of a burglary. The jury answered the special issues submitted to it in the affirmative and the trial court assessed punishment at death. Appeal to this court is automatic. TEX.CODE CRIM.PROC.ANN. art. 37.071(h). We will affirm.

Appellant claims the evidence presented at trial was insufficient to support his conviction and to support the jury's affirmative answer to special issue number two. For purposes of resolving these issues we briefly discuss the facts in a light most favorable to the verdict.

The evidence showed that on the night of October 12, 1979, the deceased felt ill at work and returned early to the apartment she shared with a roommate. Once home, she undressed and went into her roommate's room to return a dress she had borrowed. Appellant was hiding in the roommate's closet, having previously unlawfully entered the empty apartment with a pass key. Appellant attacked the deceased from behind, stabbing her four times in the back. The deceased turned and appellant knocked her to the floor and continued stabbing her until she was dead. Appellant then had sexual intercourse with the deceased's body. Appellant wiped clean any fingerprints he might have left in the apartment and on the front door before fleeing the scene.

At home appellant showered and disposed of his blood-stained clothes and knife. Curiously, appellant then forced his wife, Deborah Emery, to accompany him back to the scene of the crime to watch the police investigation. Appellant confessed to his wife that night that he had committed the murder and subsequently confessed to two other people.

The police investigation revealed no sign of a forced entry or of anything missing from the apartment. The deceased was stabbed twenty-five times, resulting in her death.

In his third point of error appellant claims the evidence is insufficient to establish that the murder was committed in the course of a burglary. Based upon the lack of evidence showing a forced entry and his contention that only the residents and apartment management staff had a key to the apartment, appellant maintains that the entry was consensual, thereby precluding a finding of a burglary. The State points to appellant's three extrajudicial confessions and to evidence that the deceased was surprised by the attack as being sufficient to support a finding that the offense was committed in the course of a burglary.

We review sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict and asking whether any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Dunn v. State, 819 S.W.2d 510, 513 (Tex.Crim.App.1991), cert. denied, 506 U.S. 834, 113 S.Ct. 105, 121 L.Ed.2d 63 (1992). An extrajudicial confession is not alone sufficient to support a conviction; there must be independent evidence of the corpus delicti. ¹ In the capital murder context, an extrajudicial confession must be corroborated as to the murder and the underlying felony which elevated the murder to a capital offense. Gribble v. State, 808 S.W.2d 65, 71 (Tex.Crim.App.1990), (plurality opinion), cert. denied, 501 U.S. 1232, 111 S.Ct. 2856, 115 L.Ed.2d 1023 (1991); see also Chambers v. State, 866 S.W.2D 9, 15-16 (Tex. Crim. App. 1993) (following Gribble). In other words, the corpus delicti of both the murder and the underlying felony must be shown by evidence independent of the confession. We have explained:

Because the essential purpose of the corroboration requirement is to assure that no person be convicted without some independent evidence showing that the very crime to which he confessed was actually committed, we agree that the corpus delicti of capital murder includes more than merely homicide by criminal agency. [footnote deleted] In the present context, [murder committed in the course of kidnapping,] we hold that evidence independent of appellant's confession was required to show that his victim had been kidnapped.

Gribble, 808 S.W.2d at 71. (emphasis in original). The independent evidence need not connect the defendant to the crime; it need only show that a crime was committed. Id. In addition, such evidence need not be sufficient by itself to prove the offense; it need only be "some evidence which renders the corpus delicti more probable than it would be without the evidence". Id. at 71-72.

Appellant confessed to three people that he had stabbed a woman while trying to burglarize her apartment. ² The State offered independent evidence of the corpus delicti of the murder by proving the identity of the body and that death was caused by stabbing. See Dunn v. State, 721 S.W.2d 325, 334 (Tex.Crim.App.1986) (corpus delicti of murder shown in proving the identity of deceased and that death resulted from criminal act). The State also offered independent evidence of the corpus delicti of burglary by showing that the deceased did not consent to the entry. The deceased's roommate testified that neither she nor the deceased were acquainted with appellant prior to the offense. An expert for the State testified that of the twenty-five stab wounds on the deceased's body, four shallow wounds appeared on her back, which the State points to as evidence that the deceased was surprised by her attacker from behind. ³ The State also offered evidence that appellant had access to the deceased's apartment. Appellant's wife and two of appellant's friends testified that appellant was a known pass key burglar. In addition, appellant's employer testified that the company had pass keys to the deceased's apartment complex which were kept in the service truck. Appellant rode to jobs in that truck and had access to the pass keys. We hold that this amounts to "some evidence" which renders the burglary "more probable than it would be without the evidence." Id. Appellant's confessions, together with the independent evidence discussed above supports the jury's finding that the murder was committed in the course of a burglary. ⁴

Appellant also claims the evidence was insufficient to support the jury's finding that appellant was the offender. In support of this contention, appellant points to the lack of scientific evidence linking appellant to the crime scene. Appellant argues that the only evidence connecting appellant with the murder was his ex-wife's testimony. Appellant also points out that although he had previously repaired the air conditioner in the deceased's apartment, the deceased's father testified that she had not owned any valuable possession that would have motivated appellant to return. In fact, nothing was found missing from the apartment. Appellant further contends that witness Paula Bower's testimony that she saw a different person in the deceased's apartment the night of the murder evidences that someone other than appellant committed the murder. Finally, appellant argues that witness Alfred Nash did not identify appellant as the person he saw crawl out of the deceased's window on the night of the murder, even though he knew appellant.

An extrajudicial confession is sufficient to establish the identity of the perpetrator of a crime. Gribble, 808 S.W.2d at 70. Three extrajudicial confessions were admitted into evidence. Details of the offense, such as the length of the deceased's hair, the nude state of her body, the stab wound inflicted to her vagina after her death, and the state of the deceased's apartment are consistent with the witnesses' accounts of appellant's confessions. We hold the evidence is sufficient evidence to support the jury's finding that appellant committed the offense. ⁵ Appellant's third point of error is overruled.

In his ninth point of error, appellant claims the evidence is insufficient to support the jury's affirmative answer to special issue number two. ⁶ The standard for reviewing the sufficiency of the evidence to support the jury's answers to the special issues is whether the evidence presented at the guilt/innocence phase of the trial along with evidence presented at the punishment phase, when viewed in the light most favorable to the verdict, would lead any rational trier of fact to make the finding beyond a reasonable doubt. Livingston v. State, 739 S.W.2d 311, 340 (Tex.Crim.App.1987), cert. denied, 487 U.S. 1210, 108 S.Ct. 2858, 101 L.Ed.2d 895 (1988).

In the instant case, appellant inflicted twenty-five stab wounds on the deceased and sexually assaulted and mutilated her body after her death. Apart from these facts, the State offered evidence of appellant's violent nature. Appellant had physically abused his wife through-out their approximately four year marriage; the State offered evidence that during their marriage appellant had beat his wife, kicked her, hit her with a lead pipe and a pool cue, rammed her head into a bath tub, pulled a knife on her, and dragged her by the hair. Appellant had also been abusive to his children, knocking his eldest son across the room when he tried to aid his mother and beating his infant son when he cried. There was also evidence that appellant had robbed two places of business at knife point, had killed three of his wife's cats, pinning a note to one of them when his wife was late, and had threatened his wife that if she reported his commission of the instant offense, he would kill her and her family.

Appellant argues that because he had lived a relatively nonviolent life for the last ten years and because he presented...