Fisher v. State

• Decision Date: 31 March 1993
• Docket Number: No. 790-92,790-92
• Citation: 851 S.W.2d 298
• Parties: Thomas James FISHER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 298

851 S.W.2d 298

Thomas James FISHER, Appellant, v.The STATE of Texas, Appellee.

No. 790-92.

Court of Criminal Appeals of Texas En Banc.

March 31, 1993.

Jose M. Guerrero, Warren A. Wolf, San Antonio, for appellant.

Steven C. Hilbig, Dist. Atty., and Edward F. Shaughnessy, III, Asst. Dist. Atty., San Antonio, Robert Huttash, State's Atty., Austin, for State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

In November 1989, a Bexar County jury found appellant, Thomas James Fisher, guilty of murder, although neither the victim's body nor remains were ever found and identified.¹The trial court assessed appellant's punishment at imprisonment for 30 years.The Fourth Court of Appeals later affirmed the trial court's judgment of conviction.Fisher v. State, 827 S.W.2d 597(Tex.App.--San Antonio1992).After appellant filed a petition for discretionary review, the court of appeals issued a second opinion, as authorized by Texas Rule of Appellate Procedure 101, but the court of appeals' judgment affirming the trial court remained unchanged.Fisher v. State, 830 S.W.2d 831(Tex.App.--San Antonio1992).We granted appellant's petition for discretionary review to determine whether, in a homicide prosecution, the State must prove that the victim's body or remains were found and identified.SeeTex.R.App.Proc. 200(c)(2).We will affirm.

The Evidence

Because the parties' arguments and the court of appeals' disposition of those arguments are best understood in light of the evidence presented at the guilt/innocence phase of appellant's trial, we turn first to a discussion of that evidence and what it established.The State's evidence consisted of numerous exhibits and the testimony of 23 witnesses, including several San Antonio police officials, a Bexar County medical examiner, a physical anthropologist, several friends of appellant and the victim, a neighbor of appellant, appellant's ex-wife, the victim's mother, her banker, her real estate agent, and her mailman.Appellant presented no evidence at the guilt/innocence phase of his trial.

Viewed in the light most favorable to the jury's verdict, the evidence in question established the following: On the evening of Saturday, November 5, 1988, appellant, a San Antonio resident, visited his ex-wife and daughter, who were also San Antonio residents, at their home.While appellant was there, his 32-year-old live-in girlfriend, B__ B__, telephoned at least twice, sounding "a little irritated" and "a little upset with him."Appellant left his ex-wife's home at around 10:00 p.m.

At around 6:00 p.m. on either Sunday, November 6, or Monday, November 7, one of appellant's neighbors saw "a carpet cleaning truck" parked in the driveway of appellant's home.The neighbor also saw "hoses coming out of the side" of the vehicle and going "into the garage."

At around 9:00 a.m. on Monday, November 7, appellant telephoned a friend, Caesar Marquez, at Marquez' home in San Antonio and expressed a need to speak with him in person.Marquez invited appellant over, and appellant arrived alone in his car about an hour later.When appellant arrived, Marquez and his brother were on the second floor of a house they were building next door to Marquez' home.Through a window, Marquez and his brother both saw appellant exit his car, walk to an alley behind Marquez' two lots, and "spread some sort of dust or ashes" from one or two small plastic bags that appellant had carried from the car.When appellant had finished dumping the material onto the ground, he walked the short distance to the Marquez residence, where Marquez' wife directed him to the two-story house being built next door.Marquez and his brother met appellant at the doorstep of the house they were building and followed him back to his car.Marquez noticed that appellant had "some scratches" across his forehead and his cheeks and that he"had a small bruise beneath his left eye."

Appellant took two half-full trash bags out of his car and handed one to Marquez, instructing him to place it next to his own trash for pick up.Appellant placed the other bag beside Marquez' trash himself.Appellant then took out of his car a bright yellow suitcase, which was missing its handle, and also handed it to Marquez for placement with the other trash.

Appellant told Marquez he needed to make two telephone calls and that he preferred to use a telephone at a nearby convenience store.He also told Marquez that he needed to speak with him privately.Marquez agreed to accompany appellant to the store, and they left together in appellant's car.Upon arriving at the convenience store, appellant asked Marquez whether he had ever done anything illegal, and Marquez replied that he had not.Appellant then made one or two telephone calls, returned to the car, and told Marquez that he had done something he was "not very proud of."He then confessed to Marquez that he had killed his girlfriend, B__ B__.

Over the next hour and a half, appellant and Marquez "drove and drove" on the west side of San Antonio, while appellant"look[ed] for a place to dump some more things," including a bright yellow suitcase handle with B__ B__'s name on it.During this time, appellant explained to Marquez that B__ B__ had become upset with him at their residence the previous Saturday night and had pulled a gun on him, threatening to kill him; that he had grabbed her and strangled her with an electrical cord, letting her go before she died; that he had then drowned her in a bathtub that was already filled with water; that he later cut off her head, fingers, and one arm and had tried putting the arm down the garbage disposal but that "it just wouldn't go"; and that he had burned her fingers on his stove so that her body, if found, could not be identified.

Later that day, after appellant had returned Marquez to his home, Marquez went to the alley where appellant had emptied the small plastic bag(s).Marquez found charred bones and ashes scattered "right where [appellant had] walked," although the alley itself had not been burned.

On Tuesday, November 8, Marquez notified the San Antonio police of what he had learned, and police officials went to Marquez' residence and seized the bones as evidence.Subsequent expert examination of the bones revealed them to be a complete set of finger and thumb bones deliberately cut from the body of an individual fourteen years of age or older.

On Wednesday, November 9, appellant was arrested.Shortly after the arrest, San Antonio police searched appellant's home and seized a man's shirt, a kitchen garbage disposal, and a plastic, J-shaped plumbing trap.Subsequent expert chemical analysis of the three items revealed they all contained significant traces of blood, probably of recent origin.

The evidence at appellant's trial also established that B__ B__ had had a strained relationship with appellant in the months preceding her disappearance; that she had had very little money and no operating motor vehicle of her own during that time; that two close friends who had been in regular contact with her had neither seen nor heard from her since early November 1988; that she had not picked up her mail since September or October 1988 and had not left a change of address with the United States Postal Service; that there had been no activity in her two bank accounts since October 1988; and that since October 1988, she had made no mortgage payments on a parcel of land she owned, although she had previously made virtually all such payments in a timely fashion.

The Arguments

Appellant argues that the evidence presented at his trial was insufficient, under both Texas common law and the Fourteenth Amendment to the United States Constitution, to support his conviction for murder.With respect to the common law, appellant argues the State failed to prove a critical aspect of the corpus delicti of the crime charged in that the State failed to produce and identify B__ B__'s body or remains.Appellant contends that both Article 1204 of the 1925Penal Code and this Court's case law require that the State produce and identify the body or remains of the deceased in all murder prosecutions.²Appellant contends further that the Legislature never expressly repealed Article 1204 and that "[a]bsent an express repeal, [this] Court must presume the Legislature intended the old statute to remain in operation."See alsoGibbs v. State, 819 S.W.2d 821, 833(Tex.Cr.App.1991)(stating that aspect of corpus delicti of murder is production and identification of body or remains of deceased), cert. denied, 502 U.S. 1107, 112 S.Ct. 1205, 117 L.Ed.2d 444(1992);Baldree v. State, 784 S.W.2d 676, 687(Tex.Cr.App.1989)(same), cert. denied, 495 U.S. 940, 110 S.Ct. 2193, 109 L.Ed.2d 521(1990);Soffar v. State, 742 S.W.2d 371, 375(Tex.Cr.App.1987)(same), cert. denied, 493 U.S. 900, 110 S.Ct. 257, 107 L.Ed.2d 206(1989).

The State argues in response, first, that Article 1204 was in fact expressly repealed by the Legislature in 1974 and that "the law of this state no longer mandates that the body of the deceased be found and identified in order to obtain a murder conviction;" second, that this Court's recent comments regarding the necessity of producing and identifying the victim's body or remains in all murder prosecutions were simply erroneous dicta; and third, that the evidence at appellant's trial was certainly sufficient to support appellant's conviction under both state and federal law.

The court of appeals, in its first opinion in this cause, disposed of appellant's contentions thusly:

[Article 1204] did not survive the implementation of the revised Texas Penal Code, which took effect on January 1, 1974.We find that by repealing article 1204, the legislature effectively rejected the requirement that the body of the deceased be found and identified.With the repeal of article 1204, the corpus delicti requirements...