Garrett v. State

• Decision Date: 19 September 1984
• Docket Number: No. 69088,69088
• Citation: 682 S.W.2d 301
• Parties: Johnny Frank GARRETT, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 301

682 S.W.2d 301

Johnny Frank GARRETT, Appellant, v. The STATE of Texas, Appellee.

No. 69088.

Court of Criminal Appeals of Texas,

En Banc.

Sept. 19, 1984.

Rehearing Denied Nov. 7, 1984.

Bruce Sadler, Amarillo, for appellant.

Danny E. Hill, Dist. Atty. and Vicki Howard, Asst. Dist. Atty., Amarillo, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for capital murder. After finding appellant guilty, the jury returned affirmative findings to the two special issues submitted under Art. 37.071(b), V.A.C.C.P. Punishment was assessed at death.

Appellant was convicted of murdering T____ B____, an elderly nun at the St. Francis Convent in Amarillo, "in the course of committing or attempting to commit the offense of aggravated rape" of the said victim.

In his first ground of error, appellant challenges the sufficiency of the evidence to sustain the conviction. Specifically, appellant contends that the circumstantial evidence relied upon for conviction does not "exclude every other reasonable hypothesis except that of the guilt of the accused."

At approximately 7:00 o'clock a.m. on October 31, 1981, the nude body of the victim was found on the floor of her room in the St. Francis Convent by a nun who had noticed the deceased missing at chapel earlier that morning. Another nun testified that she passed by the deceased's open bedroom door at midnight the night before and heard her breathing. She further testified that although there was blood on the deceased's face when the body was found that morning, the nuns did not suspect foul play and had the body removed by a funeral home. The police were summoned after the nuns discovered a broken window in the ground level recreation room. The screen to the window had been cut, and was on the pavement outside.

The police found a bent "serrated edge" table knife under the deceased's bed, along with a set of lower dentures. What appeared to be blood was found on the wall next to the bed, the bed sheet, the deceased's nightgown, and pillowcase. A different knife, a "Forgecraft" steak knife, was found outside of the convent in the driveway.

Dr. Ralph Erdmann, a pathologist, performed the autopsy on the body. He testified that the deceased "had sustained multiple blunt force trauma about the face, chest, and arms," as well as stabbing wounds to the chest. He further stated that the body had injuries to the front and back of the neck, and that death was caused by manual strangulation which resulted in "cardiac arrest due to cerebral anoxia." Injuries to the front of the neck appeared to be caused by a hard and thin object, "consistent with" the shape of the knife found under the bed.

Dr. Erdmann took vaginal washings of the deceased and found the presence of sperm and male prostate secretions. Hemorrhaging indicated that the hymen had been recently torn.

Latent fingerprints identified as appellant's were found on the headboard of the deceased's bed, and on the knife found under the bed. Officer Stephens testified that one print taken from the knife matched appellant's left middle fingerprint, and that another print on the knife matched appellant's left palm print. A print taken from the upper part of the back of the headboard matched appellant's left ring finger. Although no blood was found on the knife found under the bed, the bedsheet had a striated blood smear on it which, according to Agent Goldsberry of the FBI, was either made by that knife "or by another knife having the same type of striations."

Agent Burwitz of the FBI testified that several pubic hairs found on the floor in the deceased's room matched samples taken from appellant, and that the hairs either came from appellant "or another individual who had precisely the same characteristics, racial characteristics."

Agent Goldsberry testified that the impressions on the screen to the broken window were made by a knife similar to the steak knife found in the driveway of the convent, but he could not positively state that the same knife made the marks. Goldsberry further testified that the steak knife found in the driveway of the convent was the same brand as a steak knife recovered from the kitchen in appellant's residence, and that both knives had "the same degree of use and abuse and very possibly could have originated from the same source."

Lonnie Watley, an inmate and trusty in the Potter County jail during appellant's incarceration there, testified he talked to appellant in jail about the murder. He stated that although appellant was at first reluctant to discuss the matter, appellant eventually admitted breaking into the convent and killing the deceased.

Appellant testified at the guilt stage of the trial, and admitted entering the convent and being in the deceased's room with the knife later found under the bed. However, appellant testified he was in the convent shortly after noon, two days before the murder took place. He stated he entered the convent through the front door, took a knife from the convent cafeteria, and went upstairs to the rooms where the nuns resided searching for a chain with a cross on it, to steal. In one room, a drawer in a chest of drawers would not open and appellant bent the knife trying to open it. He stated that he grabbed the headboard on a bed in one of the rooms so that he could lean over and reach a cross hanging on the wall. At one point appellant heard footsteps approaching and got rid of the knife and fled from the convent.

Appellant now contends that his testimony at trial raises a reasonable alternative hypothesis on appeal, and therefore, the evidence is insufficient to sustain the conviction.

The standard for reviewing the sufficiency of the evidence on appeal is the same for direct and circumstantial evidence cases; and that is to view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Carlsen v. State, 654 S.W.2d 444 (Tex.Cr.App.1983); Freeman v. State, 654 S.W.2d 450 (Tex.Cr.App.1983); Denby v. State, 654 S.W.2d 457 (Tex.Cr.App.1983); Wilson v. State, 654 S.W.2d 465 (Tex.Cr.App.1983); see also Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

In applying the above standard of review, the "exclusion of reasonable hypotheses" test may be used as one means of analyzing the sufficiency of circumstantial evidence cases. As the opinion on rehearing in Denby, supra, noted, "if the evidence supports an inference other than the guilt of the appellant, a finding of guilt beyond a reasonable doubt is not a rational finding." 654 S.W.2d at 456.

Appellant's trial testimony explaining why his fingerprints were found in the deceased's room does not constitute an outstanding reasonable hypothesis on appeal. The jury, as the trier of fact, was authorized to accept or reject any or all of this testimony. See Ables v. State, 519 S.W.2d 464 (Tex.Cr.App.1975). Furthermore, the State presented rebuttal testimony which challenged the reasonableness of appellant's testimony. One of the nuns testified that the front door was normally locked, or if not, a nun would have been in the office by the front door. In addition, the nuns ate lunch in the cafeteria between noon and 1:00 p.m., and would in all likelihood have seen appellant enter the dining room during the lunch hour to remove a knife. Finally, none of the chests of drawers in the convent had a lock, and there had been no report of a stuck drawer.

Appellant's contention is overruled. The evidence summarized above is sufficient to sustain the conviction.

In three grounds of error, appellant complains of the State's use of an oral confession for impeachment purposes. Appellant confessed to detectives Walter Yerger and A.L. Morris while in custody. After his confession had been reduced to writing, appellant refused to sign it. When appellant testified at trial denying his guilt in the murder, his oral confession was used for impeachment by the State.

Appellant's first complaint is that the trial court erred in failing to enter an order stating its conclusion that the statement used for impeachment was voluntarily made, as required by Art. 38.22, Sec. 6, V.A.C.C.P., in all cases where a question is raised as to the voluntariness of a statement of the accused. At appellant's trial, outside the presence of the jury, a hearing was held concerning the voluntariness of the oral statement given to Yerger and Morris and the court ruled that the statement was voluntarily given. Although not initially in the record on appeal, the trial court's written order that the statement was voluntarily made, along with the court's findings of fact, has been supplemented to the record before us, and therefore, any error has been cured. See Bass v. State, 626 S.W.2d 769 (Tex.Cr.App.1982).

In his next ground of error, appellant contends the court erred in allowing the State to impeach appellant with his oral statement because prior to making the statement, appellant was given an incorrect warning of his constitutional rights as required by Art. 38.22, V.A.C.C.P., and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Appellant points to the following excerpt from the warnings given to him:

"I have the right to remain silent and not make any statement at all and that any statement I make can and will be used in evidence against me at my trial." (emphasis added)

Appellant contends the warning given is insufficient because Art. 38.22, Sec. 2(a)(1) provides that an accused must be warned that "any statement he makes may be used against him at his trial" (emphasis added).

Appellant's contention is overruled. First, we fail to see how substituting "can and will" for "may" in any way lessens the effectiveness of the Miranda warnings. Furthermore, Art. 38.22, Sec. 2(a)(1)...