Foster v. State
| Decision Date | 17 March 1982 |
| Docket Number | No. 58654,58654 |
| Parties | Clifton Gregory FOSTER, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Russell T. Van Keuren, Houston, for appellant.
Carroll E. Wilborn, Jr., Dist. Atty., & Elliott Knott, Asst. Dist. Atty., Liberty, Robert Huttash, State's Atty., Austin, for the State.
Before ONION, P.J., and W.C. DAVIS, J.
This is an appeal from a conviction for murder. Punishment was assessed by a jury at 12 years confinement.
The appellant contends that there is no evidence that he intentionally or knowingly caused the death of the deceased, Princess Ann Smith. We agree and reverse.
The State's first witness was Michael Garofalo. Garofalo, who was a police officer at the time of the alleged offense, testified that on December 13, 1976, he investigated the shooting of Princess Ann Smith. Garofalo was dispatched to the East Memorial Mortuary at 2:12 a.m. He and his partner Roy Rogers entered the building with their weapons drawn. There they saw the body of the deceased on the floor; the appellant was standing at the bottom of the stairs, crying The officers holstered their weapons. Garofalo stated that he checked the body for life signs, but found none. Garofalo then walked over to the appellant; the appellant put his arms around Garofalo and Garofalo took him outside and left him with the wrecker truck driver, E.C. Clankie.
The State introduced into evidence several photographs which depicted the scene of the shooting. One picture showed that there were two twin beds in the upstairs bedroom. One bed was made up, the other was not. On one bed there was a purse, a bra, keys, a pistol and some bedding. There was blood on the corner of the unmade bed. Next, several photos followed the trail of blood from the bed to the top of the stairs where there was a large pool of blood and one of the deceased's slippers. Blood was smeared on the wall at the top of the stairs, there were spots of blood going down the stairs. Finally, there were a couple of pictures of the deceased as she was found, downstairs on the floor.
Garofalo testified that after he had taken the appellant outside, he went upstairs and found a .38 caliber pistol on the bed. He noted that the safety was on the gun. There were four live shells in the gun, one shell was spent, and there was one empty chamber. Three of the live rounds had indentations or scratches on the primer. Garofalo explained that these indentations were caused because on this particular gun, the chamber could not be rotated when shells were in the gun because the firing pin sticks out too far and rests on the shells.
On cross-examination, Garofalo testified that the weapon was unsafe. He also stated that finding the empty chamber was significant because "[u]sually a person with that type of pistol will carry the firing pin on an empty chamber to keep the rounds from discharging" for safety reasons. Garofalo stated that there was a possibility that the gun would discharge with the safety on. Finally, he stated that there were no other signs of violence, such as evidence of a struggle, aside from evidence of the shooting.
John Beene, a chemist and firearms examiner, testified that the pistol, State's Exhibit 16, was a "quite old" cowboy ranger model. The gun was unusual because it had a "thumb-type safety" on it. This meant that the trigger and hammer would move to a "limited extent" even with the safety on. However, it was Beene's opinion that the gun would not discharge while the safety was engaged.
On cross-examination, Beene agreed that in order to find the empty chamber on the gun, it was necessary to pull the hammer back, and if someone's finger slipped off the hammer while doing this, the gun would discharge. The gun was defective for this reason, Beene stated.
Beene also conducted tests on fabric samples from the shirt the deceased was wearing at the time of her death. From the results of the tests, Beene concluded that the muzzle of the gun was approximately two inches from the shirt at the time the shot was fired. On cross-examination, Beene agreed that his findings were consistent with two people sitting side-by-side on a bed when the weapon was discharged.
Roy Rogers assisted Garofalo in the investigation of the deceased's death. Rogers stated that after they arrived at the scene, the appellant grabbed Garofalo and cried on his shoulder. Rogers also testified regarding the trail of blood from the bedroom to the large pool of blood at the top of the stairs. "There was blood splattered on the wall, and the blood was smeared as if the victim had ran into the wall at the end of the hallway" he said. On cross-examination by defense counsel, Rogers stated that he believed the appellant had called the ambulance before he called the police; the ambulance was there when he and Garofalo arrived. The appellant was "highly excited" at the scene, stated Rogers. Rogers agreed that he and Garofalo had holstered their weapons because they realized that the appellant was not a threat to them.
A. At any time during the night?
Q. Yes.
A. Yes, sir.
Q. You did hear that. No question in your mind about that?
A. Yes, sir.
Q. All right. Where was he when he told you how this accident happened?
Dr. Joseph Jachimczyk testified that he performed the autopsy on the deceased. Jachimczyk said the external examination of the deceased revealed an oval blunt laceration on the tip of her chin. Also there was a scrape mark over the right eye and a "round-type" abrasion measuring one quarter of an inch in diameter over the left eye. The gunshot entrance wound was just to the left of the deceased's left nipple. The bullet went through the fourth left rib, through the heart and one lung, came out at the fourth right rib and entered the deceased's right arm. Jachimczyk determined from the stippling around the entrance wound that the gun was fired from two to four inches away. The doctor testified that the lacerations on deceased's face were caused prior to her death and that the deceased's right arm had to be down alongside her body, "possibly straight down" when she was shot.
On cross-examination, Dr. Jachimczyk testified that the parties could not have been facing each other when the deceased was shot. They "just about" had to be side by side when the shot was fired. Jachimczyk also stated that the lacerations on the deceased's face were very consistent with the deceased running into a wall after being shot. The wound did not appear to have been caused by a strike from a fist or a hand. On re-direct examination, the doctor also agreed with the prosecutor that the chin wound was consistent with being struck with a hard object on the chin.
A. Well, they would break up.
Q. Did they separate...
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