Fiedler v. State

• Decision Date: 21 October 1998
• Docket Number: No. 04-96-00864-CR,04-96-00864-CR
• Citation: 991 S.W.2d 70
• Parties: Marc FIEDLER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 70

991 S.W.2d 70

Marc FIEDLER, Appellant, v. The STATE of Texas, Appellee.

No. 04-96-00864-CR.

Court of Appeals of Texas,

San Antonio.

Oct. 21, 1998.

Rehearing Overruled Nov. 23, 1999.

Mark J. McKay, Law Office of Mark J. McKay, San Antonio, for Appellant.

Barbara Hervey, Assistant Criminal District Attorney, San Antonio, for Appellee.

Before PHIL HARDBERGER, Chief Justice, ALMA L. LOPEZ, Justice, FRANK MALONEY, ¹ Justice.

OPINION

MALONEY, Justice.

Appellant was charged by indictment with having, on the 12th day of July, 1994, murdered Ilona Albino-Pagan. The jury having found appellant guilty, assessed his punishment at confinement for a period of thirty years in the Institutional Division of the Texas Department of Criminal Justice. Appellant appeals from this judgment asserting two points:

Point One: The trial court erred in failing to suppress his written statement obtained in violation of the Fifth, Sixth, and Fourteenth Amendments to the Constitution of the United States and in violation of Article I, § 10 of the TEXAS CONSTITUTION;

Point Two: The evidence is both legally and factually insufficient.

POINT II

Conviction in this case was based upon section 19.02 of the Texas Penal Code. That section provides in pertinent part as follows:

(b) A person commits an offense if he:

(1) intentionally or knowingly causes the death of an individual;

(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; ....

TEX. PEN. CODE § 19.02 (Vernon 1994).

When considering a challenge to the legal sufficiency of the evidence, the appellate court considers all of the evidence in the light most favorable to the jury's verdict and determines whether, based on that evidence, any rational jury could find all of the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim.App.1997), cert. denied, --- U.S. ----, 118 S.Ct. 125, 139 L.Ed.2d 75 (1997); Sonnier v. State, 913 S.W.2d 511, 514 (Tex.Crim.App.1995); Rodriguez v. State, 819 S.W.2d 871, 872 (Tex.Crim.App.1991). The appellate court considers all of the evidence, whether properly or improperly admitted for the jury's consideration. Rodriguez, 819 S.W.2d at 873. Although the appellant contends that this case should be considered a circumstantial evidence case and we should utilize the "analytical construct", that principle is no longer utilized in considering challenges to the sufficiency of the evidence. See Geesa v. State, 820 S.W.2d 154, 160-161 (Tex.Crim.App.1991).

The evidence in this case established that the victim was reported as missing on July 8, 1994 by her family on July 9, 1994. Her body was found on July 12, 1994 in a remote area of Live Oak, Texas. The autopsy established that the victim, a fourteen year old child, had been strangled; there being two knotted ligatures around her neck. Due to the deteriorated state of the remains, the medical examiner's office was unable to detect any sign of sexual abuse. The evidence further showed that the appellant had been the last person to have been with the deceased. Her father testified that he had a phone conversation with his daughter on the 8th of July at about 8:30 p.m., and that the appellant was in the house with her at that time. The confession of the appellant admitted in evidence stating in effect that the appellant utilized a cloth, shirt, or scarf and just held her "away from me" and

pressed the cloth again away from me ... and somehow before I knew it, she passed out. I tried to see if she was breathing and checked her pulse on her arm and neck. I couldn't feel anything ... I took a blanket--don't remember from where--but I put her on it and pulled her through the garage and turned the jeep around. I put her in the trunk and left ...

I drove towards Randolph Boulevard ... I went up there and pulled her out of the car and placed her on her side--I heard a car or people or something so I tried to hide her, covering her with the first thing I saw ....

The deceased died of unnatural causes, the result of a homicide. The statement of the appellant is sufficient evidence of appellant's identity as the person who caused the death of the deceased. See Emery v. State, 881 S.W.2d 702, 706 (Tex.Crim.App.1994). In Fisher v. State, the Court of Criminal Appeals stated that although a person may not be convicted upon his confession alone, evidence of the corpus delicti of the crime and the confession is sufficient. See Fisher v. State, 851 S.W.2d 298, 302-03 (Tex.Crim.App.1993). Evidence in this case independent of the confession establishes that the crime of murder was committed. See Fisher, 851 S.W.2d at 303, relying on Gribble v. State, 808 S.W.2d 65, 70 (Tex.Crim.App.1990) (plurality opinion); Bridges v. State, 172 Tex.Crim. 655, 362 S.W.2d 336, 337 (App.1962); Watson v. State, 154 Tex.Crim. 438, 227 S.W.2d 559, 562 (App.1950)). In addition to the evidence of the unnatural death of the deceased, the ligatures around her neck causing strangulation, ² there is sufficient evidence corroborating the confession, establishing the agency aspect of the crime. The record shows that the deceased's father talked to the deceased on the evening of July 8 and then also talked to the appellant, who was with the deceased at that time, on the telephone.

In addition to the confession made by the appellant to the officers, the appellant also stated to an airman assigned to his squadron that he and the deceased were talking and that she grabbed him around the throat. He said that he blacked out, and when he saw her lying there, checked for a pulse and realized she was dead, and left.

We find that the evidence is legally sufficient to support the verdict. See c.f. Delgado v. State, 840 S.W.2d 594, 600 (Tex.App.--Corpus Christi 1992, no pet.); Jackson v. State, 652 S.W.2d 415, 419 (Tex.Crim.App.1983).

The appellant also maintains that the conviction is factually insufficient to support the verdict. The standard of review for factual sufficiency is for the appellate court to view all the evidence without the prism of "in the light most favorable to the prosecution" and to set aside the verdict only if it is so contrary to the overwhelming weight of the evidence to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996); see De Los Santos v. State, 918 S.W.2d 565, 569 (Tex.App.--San Antonio 1996, no pet.).

Recently, the Court of Criminal Appeals emphasized that the review process begins with the assumption that the evidence is legally sufficient under the Jackson test. See Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App.1997) The appellate court considers all of the evidence in the record related to appellant's sufficiency charge--not just the evidence which supports the verdict, reviews the evidence weighed by the jury which tends to prove the existence of the elemental facts in dispute and compares it to the evidence which tends to disprove those facts.

However, factual sufficiency review must be appropriately differential so as to avoid the appellate court substituting its own judgement for that of the factfinder. The court's evaluation should not substantially intrude upon the jury's role as the sole judge of the weight and credibility of the witnesses' testimony. The appellate court maintains this deference to the jury's findings, by finding fault only when "the verdict is against the great weight of the evidence presented at trial so as to be clearly wrong and unjust."

Santellan, 939 S.W.2d at 164-65 (citations omitted). Examples of such a wrong and unjust verdict include instances in which the jury's finding is "manifestly unjust", "shocks the conscience", or "clearly demonstrates bias". Clewis, 922 S.W.2d at 135 (citing Meraz v. State, 785 S.W.2d 146, 149 (Tex.Crim.App.1990)).

Continuing in Santellan, the Court of Criminal Appeals stated that even if the reviewing court discovers that the verdict is against the great weight of the evidence and manifested an unjust result, the court may not render or substitute its judgement for that of the jury. See Santellan, 939 S.W.2d at 165. Its only option is to vacate the conviction and remand the case for a new trial. See Clewis, 922 S.W.2d at 133-135; Santellan, 939 S.W.2d at 165.

The evidence in this case established that the body of the child, when it was found, had two ligatures around her neck, the body was clothed in a red blouse, a bra and red socks. There was no clothing covering the buttocks or genitalia of the body. Because of the decomposition of the body, the medical examiner's office was unable to detect any sign of sexual abuse. The cause of death was strangulation. Two knotted ligatures were removed from the child's body by the medical examiner and released to the Live Oak Police Department. There is no question factually or otherwise that the child's cause of death was due to criminal homicide.

The father's testimony established that the appellant was at their home with the deceased shortly before her disappearance.

In his confession, although he attempts to excuse or justify his conduct on the basis that at the time he was struggling with the deceased he was in a claustrophobic condition, appellant stated that he was terrified and attempted to hold the victim back with a piece of cloth. The appellant stated:

... somehow I freaked, and somehow before I knew it, she passed out. I tried to see if she was breathing and checked her pulse on her arm and neck. I couldn't feel anything.... I got scared and didn't know what to do. I took a blanket--don't remember from where--but I put her on it and pulled her through the garage and turned the jeep around. I put her in the trunk and left--I got over the bridge to the other side of IH-35 and I stopped at the stop sign. I was scared and didn't know what to do.

I...