Francis v. State

• Decision Date: 14 July 1982
• Docket Number: No. 04-81-00095-CR,04-81-00095-CR
• Citation: 636 S.W.2d 591
• Parties: Michael FRANCIS, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 591

636 S.W.2d 591

Michael FRANCIS, Appellant, v. STATE of Texas, Appellee.

No. 04-81-00095-CR.

Court of Appeals of Texas, San Antonio.

July 14, 1982.

J. Keith Alaniz, San Antonio, for appellant.

Bill White, Dist. Atty., Linda S. McDonald, Asst. Dist. Atty., San Antonio, for appellee.

Before ESQUIVEL, BUTTS and CLARK, JJ.

OPINION

ESQUIVEL, Justice.

This is an appeal from a conviction of murder with malice. After finding appellant guilty, the jury assessed punishment at 90 years' confinement.

Appellant, Jerome La Cour, Eugene Autry, Ron McCaskill, Earl Brown, and Danny Speed were together at various locations on the east and west sides of San Antonio for most of the afternoon and evening of September 25, 1973. During the evening, these six men were riding around on the west side in Autry's car with Autry driving. At approximately 8:30 p. m., Autry pulled into the John Jay High School parking lot which is adjacent to the back side of the Lone Star Ice House. Appellant, Speed and McCaskill went into the ice house while La Cour, Autry and Brown waited in the car. The most critical evidence concerning the events that occurred at the ice house is direct testimony given by Janie La Cour ¹ of appellant's having orally confessed to the crime. ² This testimony, supplemented by other State's evidence provided by Jerome La Cour and Eugene Autry, the police and the medical examiner, presents sufficient evidence upon which the jury could render its verdict.

Police testimony and photographs set the crime scene. As one enters the ice house, the milk cooler is located straight ahead on the far wall though slightly to the left. In order to reach the milk cooler, one has to pass between the attendant's counter, which is on the left, and the racks displaying nonperishable goods, which are to the right. The check-out counter had been knocked forward and the body of the victim, store clerk Mark Erlich, was lying behind it. Goods such as cigarettes and matches had been knocked off the display racks and were scattered in front of the fallen counter. One item particularly significant was a carton of milk found within this disarray on the floor. This carton of milk is important because of testimony given by Janie La Cour about appellant's oral admission to her. Apparently, appellant told her that he had gone to the milk cooler and had taken the carton of milk to the counter as though he were going to pay for it. Not only does Janie's testimony connect appellant with the milk carton, but fingerprints were lifted from the handle of the milk cooler. Appellant's own testimony also places him in the vicinity of the milk cooler. ³ Other incriminating evidence found by the police was Ron McCaskill's palm print found on the left side of the attendant's counter, indicating that McCaskill had stood almost directly in front of Erlich. ⁴ The positioning of the robbers is important because of the medical examiner's testimony concerning the bullet wounds the victim suffered and the caliber pistol that fired the shots. Dr. Ruben Santos testified that at least three .22 caliber slugs were taken from critical locations in the victim's body, and that only one .38 caliber slug was discovered. The direction of travel in the body indicates that the .22 bullets were fired from the right, from the vicinity of the milk cooler, while the .38 bullet came from the door. The evidence presented thus far presents a clear picture of how the crime was perpetrated. The evidence that follows clarifies the identity of the gunmen.

While this crime was taking place, Earl Brown and the two persons who were called by the State to testify, Jerome La Cour and Eugene Autry, were waiting in the car. Both La Cour and Autry claimed at trial that they had no idea that this crime was going to occur, even though they both testified that while they were driving around someone in the car had stated a desire to make some money. This crime took place shortly thereafter. Both La Cour and Autry testified that at various times during the day they had seen Speed in possession of a .38 caliber pistol and that appellant was in possession of a .22 caliber pistol that Speed had given him. There is no evidence to indicate that Ron McCaskill ever had possession of a weapon. Both testified that McCaskill was the first to return to the car from the ice house. He excitedly exclaimed that after Speed fired a shot at Erlich and missed, appellant shot Erlich. While La Cour's testimony does not place these weapons in possession of Speed and appellant at the time of the crime, Autry was able to be more specific. He stated that he saw Speed with the .38 and appellant with the .22, not only when they got out of the car to go into the ice house but also when they returned from the ice house. Autry also testified that upon returning to the car, appellant stated that he had shot Erlich.

Appellant testified that he had been in the store with Speed and McCaskill when the robbery occurred. He denied knowing beforehand that a crime was going to be committed and denied shooting Erlich or otherwise participating in the robbery. He blamed the robbery and killing on Speed and McCaskill. It is with this testimony in mind, as well as that proffered by the State, that we will assess the grounds of error raised by the appellant.

Before assessing the twelve grounds of error, we must dispose of the State's motion to dismiss appeal for noncompliance with Tex.Code Crim.Pro.Ann. art. 40.09 (Vernon 1979). The State asserts that the appellant's brief was filed late, and claims that appellant did not justify the fact that the record was not approved earlier than April 1980.

The record indicates that the appellant made a timely filing of his notice of appeal on June 2, 1977. On August 25, 1977, a motion for extension of time to file court reporter's notes was filed and the extension was granted until September 21, 1977, on which date the record was completed and filed. In accordance with § 7 of art. 40.09, the appellant filed objections to the record on October 6, 1977; however, the record was not approved by the trial court until April 3, 1980. Appellant's brief was filed on April 11, 1980.

Section 7 of art. 40.09 requires that upon objections to the record being filed, the court shall set the matter down for hearing and thereafter enter the appropriate order. The approval of the record by the court triggers the appellant's duty to file his brief with the trial court within 30 days. Tex.Code Crim.Pro.Ann. art. 40.09 § 9. The appellant fully complied with the article. The time lapse between the appellant's objections to the record and the order of the court was the result of the trial court's delay. Since there are no time limits within which the court must approve the record, we find that the State's motion to dismiss is without merit, and is denied. See Reese v. State, 481 S.W.2d 841, 843 n.2 (Tex.Cr.App.1972).

In grounds of error one through four, appellant raises issues of insufficiency of evidence. However, the appellant predicates his appeal upon the determination that this is a circumstantial evidence case. We disagree. The distinction between a direct evidence and a circumstantial evidence case is critical in Texas. See Nathan v. State, 611 S.W.2d 69, 75 (Tex.Cr.App.1981); and Galvan v. State, 598 S.W.2d 624, 627 (Tex.Cr.App.1979). In a circumstantial evidence case, the jury must not only find the defendant guilty beyond a reasonable doubt, as in a direct evidence case, but also must find that the evidence negates every other reasonable hypothesis except defendant's guilt. The appellant would obviously prefer an analysis of the sufficiency question in light of the circumstantial evidence test, since it is a stricter standard by which guilt is determined.

In the instant case, appellant related the details of the crime to Janie La Cour. Janie La Cour, in turn, gave the police a written statement regarding this extrajudicial confession. In her testimony at trial, some of the pertinent details of the confession were elicited from her. The question then is whether this testimony concerning the extrajudicial confession is direct or circumstantial evidence.

Direct evidence is evidence which demonstrates the ultimate fact to be proved, while circumstantial evidence is direct proof of secondary facts which demonstrate the ultimate fact by inference. Acy v. State, 618 S.W.2d 362, 363-64 (Tex.Cr.App.1981). It is well-settled that direct testimony, from any source, that the defendant caused the death of the deceased characterizes the case as a direct evidence case. Pinson v. State, 598 S.W.2d 299, 303 (1980); Sloan v. State, 515 S.W.2d 913, 917 (Tex.Cr.App.1974); Smith v. State, 470 S.W.2d 696, 697 (Tex.Cr.App.1974); Miers v. State, 157 Tex.Cr.R. 572, 251 S.W.2d 404, 407 (1952). The testimony of Janie La Cour established the ultimate fact at issue-the murder of Mark Erlich by appellant. ⁵

Even though there is direct evidence by the extrajudicial confession to Janie La Cour the conviction of appellant cannot be upheld by this confession alone. The confession must be corroborated by evidence establishing the corpus delicti. ⁶ This corroborating evidence need not conclusively establish the corpus delicti nor be completely independent of the confession, but there must be sufficient facts and circumstances in evidence to establish that a crime has been committed. White v. Stae, 591 S.W.2d 851, 863-64 (Tex.Cr.App.1979); Adrian v. State, 587 S.W.2d 733, 734 (Tex.Cr.App.1979). The evidence supplied by the police witnesses and the medical examiner goes beyond mere corroboration and by itself conclusively establishes the corpus delicti. The confession reinforces this independent evidence and, more important, establishes the appellant as one of the gunmen.

Considering the evidence in the light most favorable to the verdict, we find that it supports the jury in its finding of guilt beyond a reasonable doubt. A...