Ervin v. State
| Decision Date | 23 August 2017 |
| Docket Number | No. 08-15-00025-CR,08-15-00025-CR |
| Parties | PAUL C. ERVIN, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Appeal from the Criminal District Court No. 2 of Tarrant County, Texas
(TC# 1337034D)
Twenty-six-year-old Linda Hayes Ervin was found murdered in the bedroom of her home by means of manual strangulation on June 19, 1985. Although her husband was originally a suspect, he was not indicted until August 7, 2013 following a "cold case" investigation, after which he was charged with one count of murder. Following trial, a jury found Appellant guilty and sentenced him to forty years in prison. Appellant complains that the trial court erred by admitting evidence of an extraneous sexual assault on his wife four months before her murder, claiming that it was not relevant to the murder charge and that it was more prejudicial than it was probative. He further argues that the trial court violated his Sixth Amendment right to confrontation by admitting Linda's hospital records in which she described the sexual assault to her treating physician. Finally, Appellant challenges the trial court's refusal to dismiss his case due to the State's loss or destruction of potentially useful evidence. For the reasons that follow, we affirm.1
Linda began dating Appellant in the summer of 1984, approximately a year before her death. At the time, she had three sons from prior relationships, G. Hayes, D. Jones, and J. Jackson, who were 12 years old, 9 years old, and 4 years old at the time of her death.2
Unfortunately, Linda's relationship with Appellant soon became tumultuous, and over Appellant's objection on relevancy grounds, the trial court allowed the State to introduce evidence that in February 1985, approximately four months before Linda's murder, Appellant had sexually assaulted her in her apartment. The primary source of this evidence consisted of testimony from Linda's two older sons, both of whom testified that they came home from school on February 27, 1985, and observed several individuals, including police officers and paramedics, gathered at the family's apartment. At that time, Linda informed her sons that Appellant had tied her up, burned her, and sexually assaulted her by "shov[ing]" a cucumber into her vagina and anus. Both boys recalled that their mother had burn marks on various part of her body, including her arm, shoulder, leg and face, and observed that she was crying and appeared to be frightened.
Linda was taken to the emergency room at a local hospital for treatment, and over Appellant's "Crawford" objection, the State was permitted to introduce hospital records into evidence. The records contained a handwritten description of the assault, signed by a hospitalphysician, which Linda had verbally provided to him while in the emergency room. Linda's description to the physician was similar to the one that she provided to her sons, but included additional details, such as her statement that the assault had been precipitated by Appellant's false accusations of infidelity against her.3
At Appellant's request, the trial court provided the jury with a limiting instruction:
You're instructed that if there's any evidence before you in this case regarding the Defendant's having engaged in conduct other than the offense alleged against him in the indictment in this case, you cannot and will not consider said testimony or evidence for any purpose unless you find and believe beyond a reasonable doubt that Defendant engaged in such conduct, if he did, and even then you may only consider the same for the limited purpose of showing all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense.
The judge also provided an additional limiting instruction in the jury charge, without objection from Appellant:
You are instructed if there is any testimony before you in this case regarding the Defendant's having committed offenses other than the offense alleged against him in the indictment in this case, you cannot consider said testimony for any purpose unless you find and believe beyond a reasonable doubt that the Defendant committed such other offenses, if any were committed, and even then you may only consider the same in determining the motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident of the Defendant, if any, in connection with the offense, if any, alleged against him in the indictment in this case, and for no other purpose.
. . .
You are instructed that you may consider all relevant facts and circumstances surrounding the killing, if any, and the previous relationship existing between the accused and the deceased, if any, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense, if any.
At trial, Linda's sons recalled that shortly after the sexual assault, Appellant apologized to them, and told them that he wished to marry their mother. The couple indeed married and moved into a duplex in Fort Worth with Linda's boys. The two older boys testified that the marriage was troubled from the beginning. The couple argued often and their mother appeared to be frightened of Appellant.
In May 1985, a few months after the marriage, Linda left Appellant and moved with her sons to Liberty, Texas to stay with family members. The boys believed the move was prompted by Linda's fear of Appellant. One of Linda's cousins testified that Linda said she was moving to Liberty to "get away from [Appellant]," as she feared for her safety.
Linda and the boys remained in Liberty for a few weeks before Appellant arrived to take them back to Fort Worth. According to one son, Linda appeared anxious about returning, and told him that, "If anything ever happened to me, I want y'all to stay together." Various members of Linda's family recalled that she appeared to be frightened of Appellant. An aunt remembered that three days before her death, Linda told her that she believed she would not live much longer, which the aunt construed as a reference to Linda's fear of Appellant, adding that Linda even began discussing funeral arrangements during their conversation.
On the day of the murder, Linda had been planning to take her sons to meet with other extended family members for a gathering in a nearby park for a Juneteenth Celebration. Two of Linda's cousins who had planned to join them testified that they telephoned Linda at various times that day but neither was able to reach her.
Although their memories were somewhat unclear on the timing, Linda's two sons testified that they left the duplex that morning, unaccompanied by either their mother or Appellant. In particular, Hayes recalled that, at his mother's request, he had taken his youngest brother with him to buy her cigarettes. Jones recalled that sometime that morning, he also left the house to go to a nearby community center. Jones was the first to return and observed that the front door was locked. He knocked on the door for fifteen minutes, initially receiving no response. At some point, Appellant came to the door, said Linda was sleeping, and then shut the door. Jones waited another ten minutes, and again knocked but received no response.
Hayes and the youngest boy returned to find Jones sitting out front by himself. Hayes also knocked on the door but received no response. All three boys left to spend the remainder of the day with friends, and when they returned in the evening, Appellant informed them that he was taking them to the park where the Juneteenth Celebration was occurring, and left without their mother. Jones was not wearing shoes at the time, and asked to go inside to get them, but Appellant would not allow him to do so.
After arriving at the park, Hayes took the youngest on a carnival ride, while Jones walked through the park with Appellant. Jones recalled that Appellant began walking faster, and was "zigzagging" through the crowd, causing Jones to lose track of him. Jones went to the location where he believed Appellant had parked, but could not find his car. Hayes recalled that when he got off the ride, he could not initially find either Appellant or Jones. When the boys found each other, they looked for Appellant's car once again, but could not find it. Sometime later, they encountered Appellant, who claimed that he had been at the park the entire time. He appeared to be defensive when they questioned him about his whereabouts.
Appellant drove the boys home, but made them remain in the car while he walked to the back of the duplex. Upon entering the home, they noted that the kitchen door was open and the house appeared to be in disarray, with furniture overturned, despite the fact that the family had cleaned the house earlier that morning. Jones recalled that he tried to enter his mother's bedroom, but Appellant quickly shut the door as he approached. Appellant ordered the boys outside, and told them to summon a patrol officer who happened to be parked on the street.
At the request of Linda's children, the patrol officer entered the house, found Linda's body in her bed, and called for assistance at approximately 10:30 p.m. The officer and the other officers who arrived several minutes later, observed that the back door was ajar, and that the door showed signs of an apparent forced entry, including "pry marks." The officers also observed that the home appeared to have been "ransacked."
The officers who spoke to Appellant at the scene recalled that Appellant informed them that he had he taken the boys to the Juneteenth Celebration earlier that evening but Linda was too tired to...
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