Heiselbetz v. State

• Decision Date: 28 June 1995
• Docket Number: No. 71396,71396
• Citation: 906 S.W.2d 500
• Parties: Earl Carl HEISELBETZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 500

906 S.W.2d 500

Earl Carl HEISELBETZ, Appellant, v. The STATE of Texas, Appellee.

No. 71396.

Court of Criminal Appeals of Texas En Banc.

June 28, 1995.

Rehearing Overruled Sept. 20, 1995.

John S. Walker, Center, for appellant.

Charles R. Mitchell, Dist. Atty., San Augustine, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

KELLER, Judge.

Appellant was convicted in November 1991 of capital murder under section 19.03(a)(6)(A), Tex.Penal Code, for a double murder committed on May 30, 1991. After the jury returned affirmative findings to the two special issues submitted pursuant to Article 37.071(b), ¹ appellant was sentenced to death under Article 37.071(e). Direct appeal to this Court is mandated by Article 37.071(h). Appellant raises thirty-three points of error. We affirm. ²

I. Sufficiency of the Evidence

Appellant challenges the sufficiency of the evidence in various points. We will address each of these points separately after a brief account of the offense.

Sufficiency reviews require that, while viewing the evidence in the light most favorable to the verdict, we ask whether any rational trier of fact could have found the elements being challenged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Nelson v. State, 848 S.W.2d 126, 131 (Tex.Crim.App.1992), cert. denied, 510 U.S. 830, 114 S.Ct. 100, 126 L.Ed.2d 66 (1993). The jury is the sole judge of the weight of the evidence and may choose to believe all, some, or none of it. Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App.1991). Reconciliation of conflicts in the evidence is within the exclusive province of the jury. Losada v. State, 721 S.W.2d 305, 309 (Tex.Crim.App.1986). And, in answering the special issues raised under Article 37.071(b), the jury may consider evidence admitted at both the guilt-innocence and punishment stages of trial. Keeton v. State, 724 S.W.2d 58, 61 (Tex.Crim.App.1987). Reviewed under the Jackson standard, the record establishes the following facts:

Appellant was the victims', Rena and Jacy Rogers, closest neighbor. His home was about two tenths of a mile away from the Rogers' home, which was secluded and not visible from the road. Evidence was introduced that before the Rogers had moved into the house, appellant had actually broken into the locked house and had acknowledged at that time that he could get into the house whenever he wanted.

On Friday, May 24, 1991, the Rogers family--Rena, Bob, and their daughter Jacy--left their home to spend the long Memorial Day weekend out of town. They left their two watchdogs outside to guard their home. On Tuesday morning, May 28, 1991, the Rogers returned home. But, since Bob wanted to go straight to work, Rena dropped him off at his job in Lufkin before going home. Bob arrived at work sometime between 10:30 and 11:00 a.m. When Bob returned home from work that evening he discovered that the two dogs were missing. On June 2, 1991, Bob Rogers' brother-in-law found the carcass of one of the missing dogs in the vicinity of the Rogers' and appellant's houses. The dog had been shot.

The Rogers' telephone records showed that on May 28, 1991 at 10:01 and at 10:02 a.m., calls were made from the Rogers' home to the Multiquest Sweepstakes at a "900" telephone number. The Rogers were not home at the times the calls were made and no one had permission to be in their home. The evidence also established that on that same day, Tuesday, May 28, 1991, appellant told his wife, Becky, that he had been bitten that morning by a dog. When she saw him later, he had a bite on his finger and scratches on his arms, and he was very upset.

Evidence was introduced that appellant liked to participate in sweepstakes contests and that he had informed his wife of his interest in participating in the "dial 900" telephone sweepstakes, but his wife had discouraged him because of the cost.

From this evidence a rational juror could conclude that on Tuesday, May 28, 1991, appellant entered the victims' home and placed the "900" calls which mysteriously appeared on their telephone records, and that in the course of entering the Rogers' home, appellant killed their two watchdogs.

The evidence also established that on Thursday, May 30, 1991, a neighbor saw Rena and Jacy Rogers at the grocery store at about 9:30 in the morning. Rena had planned to meet her sister-in-law, Natalie Whitton, at 11:30 a.m. to travel together to Nacogdoches; Rena planned to take Jacy. That morning Natalie had confirmed plans over the telephone with Rena but, without explanation, Rena failed to show up at the appointed place and time. Her car keys, purse, and a jar of coins were missing from the Rogers' home, but there was no sign of foul play at the home. Rena's car was parked in her driveway.

Almost a month later, on June 27, 1991, the human skeletal remains of an adult female and child were found in and around a barn in Tyler County. The remains were identified through dental and medical records as those of Rena and Jacy Rogers.

Appellant had been questioned by the Sabine County Sheriff on the day of the offense and had responded questionably when asked about his whereabouts. His dubious answers made him a potential suspect; so, on the day the remains were discovered, he was questioned again. At this interview, conducted in the presence of his wife and at a relative's home, appellant voluntarily confessed to the murders. ³

Appellant subsequently signed a written confession stating that he killed the victims at around 11:00 a.m. on Thursday, May 30, 1991. Appellant confessed to putting the two bodies into Rena's car and driving them some miles away to the barn where they were found. He also stated that when he returned from hiding the bodies in the barn, he parked Rena's car back at her house, then went into the Rogers' home and got a package of frozen hamburger meat and some canned tomato sauce, which he took home. When asked how he had killed the victims appellant answered that he did not know, that he had blacked out, but he noted that he remembered marks on the victims' necks. The interviewer asked if he had strangled the victims, and appellant answered that he did not think so. A few days following his confession, appellant guided the police investigators on the route that he had taken after killing Rena and Jacy and showed them where he had thrown Rena's purse in a pond. The purse, containing Rena's identification, was recovered from the pond. It appeared that an attempt had been made to burn the purse and the items in it.

The incomplete skeletal remains of the infant evidenced no trauma which could in turn suggest a cause of death. The skeletal remains of Rena, however, evidenced a condition known to forensic anthropologists as "pink tooth." This condition appears in the teeth of those who have died of asphyxiation. A forensic anthropologist testified that strangulation was a possible cause of death of Rena Rogers. ⁴

A court appointed psychiatrist testified that he had examined appellant and that there was nothing in the examination that would explain or excuse appellant's actions. The psychiatrist also opined that the head injuries sustained by appellant in a traffic accident in 1975 could not have caused the amnesia which appellant claimed in his confession.

Mindful that appellant confessed that he killed the victims, and reviewing the evidence in the light most favorable to the verdict, the record supports the following version of the offense: ⁵ The appellant knew how to and actually had entered the Rogers' home on the morning of Tuesday, May 28, 1991, to make "900" sweepstakes calls from their telephone. He had been attacked by the watchdogs, and he had killed the animals. On the morning of Thursday, May 30, 1991, appellant re-entered the Rogers' home. Apparently he believed that Rena Rogers had gone for the day, and he decided to again make "900" telephone calls. Unfortunately, appellant was surprised by Rena, returning from the grocery store. Appellant strangled Rena and then strangled her two year old daughter, Jacy, in their home. He then, in the relative seclusion of the Rogers' home, loaded the victims' bodies into Rena's car and transported them to the barn where they were found a month later. When he returned Rena's car to the Rogers' driveway, he re-entered the victims' home to remove any evidence of foul play and took the tomato sauce and frozen hamburger meat. He later disposed of Rena's purse and keys. ⁶

In point of error twenty-nine, appellant challenges the sufficiency of the evidence to establish that the murders of the two victims occurred in the same criminal transaction. Tex.Penal Code § 19.03(a)(6)(A). He correctly argues that to establish "the same criminal transaction," the evidence must establish that there was a "continuous and uninterrupted chain of conduct occurring over a very short period of time, and that both killings occurred in a rapid sequence of unbroken events...." Vuong v. State, 830 S.W.2d 929 (Tex.Crim.App.1992), cert. denied, 506 U.S. 997, 113 S.Ct. 595, 121 L.Ed.2d 533 (1992). However, if the evidence supports the rational inference that both victims were killed in the same criminal transaction, we will not disturb the jury's verdict. See Narvaiz v. State, 840 S.W.2d 415, 426 (Tex.Crim.App.1992), cert. denied, 507 U.S. 975, 113 S.Ct. 1422, 122 L.Ed.2d 791 (1993).

The victims, mother and child, were seen together and expected at an appointment together on the morning of their murder. They were last seen at 9:30 a.m. and appellant confessed to having killed them together at around 11:00 a.m. Appellant confessed to having transported and disposed of their bodies together and their remains were found together. The evidence supports a finding that the two victims were killed during the same criminal transaction. See Rios v. State, 846 S.W.2d 310, 314-315 (Tex.Crim.App.1...