Fearance v. State, 69024

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Citation: 771 S.W.2d 486
• Docket Number: No. 69024,69024
• Parties: John FEARANCE, Jr., Appellant, v. The STATE of Texas, Appellee.
• Decision Date: 07 December 1988

Page 486

771 S.W.2d 486 John FEARANCE, Jr., Appellant,
v.
The STATE of Texas, Appellee. No. 69024. Court of Criminal Appeals of Texas,
En Banc. Dec. 7, 1988.
Rehearing Denied Feb. 15, 1989.
Certiorari Denied July 3, 1989. See 109 S.Ct. 3266.

Page 489

J. Blake Withrow, Preston DeShazo, Dallas, J. Thomas Sullivan, on appeal only, Santa Fe, N.M., for appellant.

Henry Wade, W.T. Westmoreland, Jr., Jim Burnham and Winfield Scott, former Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

WHITE, Judge.

Appellant was convicted of capital murder. See V.T.C.A., Penal Code Sec. 19.03(a)(2). After the jury made an affirmative finding of the three special issues submitted under Art. 37.071, V.A.C.C.P., the trial court imposed the penalty of death. This case is before us on direct appeal.

Appellant presents us with twenty-four points of error. The instant case is the

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second trial of appellant for this offense. Appellant's first conviction was reversed and remanded by this Court. Fearance v. State, 620 S.W.2d 577 (Tex.Cr.App.1980) (on Motion for Rehearing, 1981). The factual summary in the opinion on rehearing reflects the facts of the offense as they were proven at both appellant's first and second trial. We will rely, where appropriate, on that statement of the facts.

Vicki Benavidez, her ex-husband, Roland and her two small children arrived at Vicki's home at approximately 11:30 p.m. on Thursday, December 22, 1977, having attended a motion picture. They found lights on which had not been on earlier when they left for the movie. They had gone out the back door which, when they returned, was bolted from the inside. Missing from the residence were Christmas presents, food, beverages, jewelry, two steak knives and a butcher knife. In addition, a key to the residence, which had been left on the television was missing. A report of this burglary was made to the Dallas Police Department.

Roland Benavidez agreed to spend the night because of the possibility that the burglar, who now had a key to the residence might return. Vicki and Roland retired sometime after midnight.

Meanwhile, in her nearby, two-story house, Betty Faircloth fell asleep in bed on the evening of December 22, 1977, with the bedroom television on. Her husband, Larry Faircloth, woke her up and told her that someone had broken into the house; the Johnny Carson Tonight Show was on at the time. She got out of bed and saw that the stairway light was on. It had not been on earlier. At this point appellant came into the bedroom and a struggle between appellant, Larry and Betty ensued. Appellant stabbed Betty in the abdomen with a knife. Betty went to the phone to call the police as appellant was stabbing Larry. Larry fell face down on the bed, appellant straddled him and stabbed him a number of times in the back. Appellant then came toward Betty, who turned her back to him to protect the telephone, and stabbed her twice in the back. Larry stood up, only to fall back to the floor; appellant ran from the room.

Betty completed her call to the police, though not without difficulty. The stab wounds had penetrated both her lungs and she was having problems breathing. Betty then went downstairs to await the arrival of the police and let them in. She was unable to get back upstairs.

Fearance, supra, at 581-582.

Betty Faircloth identified the appellant, in court, as the man who broke into their house and stabbed her husband and herself. Betty also testified that she did not give the appellant permission to enter her residence.

Back at Vicki's house, Roland Benavidez heard a key turn in the back door lock. The door could not be opened because it was also bolted. Roland arose and armed himself with a knife. He heard a key being turned in the front door lock; the door was secured with a chain. Roland went to the front door, unfastened the chain and jerked the door open. Appellant was there, his hands bleeding badly; he said that he ... would like to use the telephone. Roland shut the door and called the police. He gave the police a description of appellant and the clothing he was wearing and then went out into the front yard to await the police.

Fearance, supra, at 582.

At the instant trial, Roland Benavidez testified that he saw the handle of a knife sticking out of appellant's right front pocket. Concerning the wounds to appellant's hands, Dr. Linda Norton gave her professional opinion as a medical examiner that appellant could have suffered these injuries as a result of his own use of the knives during the attack.

The police broadcast, transmitting an account given by Betty Faircloth's report, initially characterized the incident as a shooting. Officer Hull and his partner, on patrol when they heard this call, went to the Faircloth residence; they were admitted by Betty Faircloth, who gave them a description of appellant and

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the clothing he was wearing. They observed Larry Faircloth beside the bed in an upstairs bedroom in a large pool of blood. He was breathing heavily. Two ambulances arrived and took Larry and Betty Faircloth to Parkland Hospital where he died.

The autopsy indicated nineteen stab wounds and that Larry had bled to death.

Fearance, supra, at 582.

At the instant trial, Dr. Linda Norton also testified about the nature of the wounds inflicted upon Larry Faircloth. Of the nineteen stab wounds, seven could be described as fatal: four to Larry Faircloth's chest and three in his back. Dr. Norton pointed out that the wounds on Larry Faircloth's hands were defense wounds.

Officer Jarvis of the Dallas Police Department Crime Scene Search Section arrived at the Faircloth residence. He ascertained that the molding which held the glass in French doors in the rear of the Faircloth residence had been removed and broken and that two panes of glass had also been removed. He took photographs of the French door and molding, but was unable to lift any readable latent prints. He also found a steak knife in a pool of blood under the edge of Larry Faircloth's bed.

Fearance, supra, at 582.

At the instant trial, this steak knife was admitted into evidence at the conclusion of Jarvis' testimony. Prior to that, Vicki Benavidez had identified the steak knife as one of the two taken from her apartment earlier on the evening of December 22nd. Dr. Linda Norton said the steak knife was consistent and compatible with the injuries found on Larry Faircloth.

Officer Meek, on patrol alone, heard over the police radio the report of the incident at the Faircloth residence and also of the prowler at the Benavidez residence; he answered the latter. He got a description of the prowler from Benavidez. Meek saw a trail of blood going away from the Benavidez residence. Meek was joined by officer Barber; while Barber radioed the description of the prowler Meek followed the trail of blood. The blood trail led to an apartment which was later determined to be appellant's residence.

Meek radioed a call for assistance from his patrol car and returned to appellant's apartment where he was joined by Officer Barber. Meek was aware that Officer Hull had made a broadcast from the Faircloth residence changing the shooting call to a cutting and stabbing call and giving a description of the suspect as a black male approximately 5'8"' tall wearing a navy blue or black toboggan cap and a blue denim coat and pants which matched the description that Benavidez had given Meek. Meek knocked on the door, called out that he was a police officer and to open the door. A woman's voice responded, 'Wait a minute, wait a minute.' Meek was not sure whether she was talking to him or to someone inside, but she sounded frightened. When she opened the door, the officers rushed in and inquired as to the whereabouts of the man. The woman pointed to the bathroom. Appellant was found in there and was taken into custody. He was nude and was washing clothes in the bathtub full of water and blood. Officer Barber observed bloody clothes and bloody shoes on the bathroom floor and rags and clothes in the tub of bloody water. After appellant was handcuffed, Officer Barber undertook to determine whether anyone else was in the apartment who might attempt to harm the officers.

Fearance, supra, at 582-583.

In the instant trial, Barber testified that he seized various items of property that he observed in plain view in the apartment. In the bathroom, Barber seized several items of clothing which were bloody: A tobaggan, a pair of socks, two T-shirts, a pair of denim trousers and a pair of shoes. On the floor of appellant's bedroom, Barber found a bloody shirt. In the kitchen sink, Barber found a butcher knife with blood on it. Barber also found a denim jacket with blood on it. The pockets of the jacket contained several items: a box of

Page 492

poker chips, a blue aluminum house key, a necklace and some rings, and a piece of wood molding. The jewelry and house key were identified as belonging to Vicki Benavidez. Irving Stone, Chief of the Physical Evidence Section at the Institute of Forensic Sciences in Dallas, testified in the instant trial that the piece of wood molding in the denim jacket matched pieces of wood molding taken from the back door of the Faircloth residence.

Samples were collected of the blood at appellant's residence, both inside and outside, the blood trail, blood at the Benavidez residence, and blood at the Faircloth residence.

Sara Williams, a forensic serologist, testified that she had examined known samples of appellant's blood and of the blood of the deceased. Through application of the ABO and MN systems, she determined that approximately .018 percent of the population had blood of appellant's type, and that .00354 percent of the population had blood of the type of the deceased. Among other things, Williams found that the blood on the steak knife was compatible with blood of the deceased as was the blood on...