Johnson v. State, 70177

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Writing for the Court: CAMPBELL; CLINTON; TEAGUE
• Citation: 803 S.W.2d 272
• Parties: Eddie James JOHNSON, Appellant, v. The STATE of Texas, Appellee.
• Docket Number: No. 70177,70177
• Decision Date: 21 November 1990

Page 272

803 S.W.2d 272 Eddie James JOHNSON, Appellant,
v.
The STATE of Texas, Appellee. No. 70177. Court of Criminal Appeals of Texas,
En Banc. Nov. 21, 1990.
Rehearing Overruled Feb. 13, 1991.

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William G. Walston, Jr., Rockport, Carl E. Lewis, Corpus Christi, for appellant.

Thomas L. Bridges, Dist. Atty. and Michael E. Welborn and John S. Gilmore, Asst. Dist. Attys., Sinton, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

CAMPBELL, Judge.

Appeal is taken from a conviction for capital murder. TEX. PENAL CODE ANN. § 19.03(a)(6)(A) ¹. After finding the appellant guilty, the jury returned affirmative findings to the special issues under Article 37.071, TEX.CODE CRIM.PROC. Punishment was assessed at death.

Appellant raises twelve points of error. He challenges: the trial court's denial of appellant's pre-trial motion to suppress evidence seized during a search of his trailer house; the trial court's permitting the State to call his wife to the stand as a witness, and in the presence of the jury forcing her to claim her privilege to not testify against her husband; the introduction of his wife's testimony taken during a pre-trial hearing; the admission into evidence of cocaine seized during the search of appellant's trailer; the admission of evidence (appellant's blood and analysis of his blood) seized pursuant to a search warrant; the admission of hearsay testimony from a witness regarding statements made by a victim; the admission of prior grand jury testimony to impeach a witness; the admission, during the punishment phase, of photographs depicting the appellant's murdered brother; and finally, the sufficiency of the evidence to sustain his conviction for capital murder. We will affirm.

On the morning of September 29, 1987, Deputy Sheriff Jerry Hutson discovered the body of an Hispanic female near Johnson Road in Aransas County. The victim appeared to have been dragged down the road and had also suffered two gunshot wounds to the head. Responding to Officer Hutson's call for assistance, Deputy Sheriff William Spaulding arrived at the scene and promptly discovered the bodies of a white male and a young Hispanic girl a

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short distance from the first body. The bodies were later identified as Virginia Cadena, her ten year old daughter Elizabeth Galvan, and David Magee, who had lived with Cadena and Galvan for several years. Magee's feet were bound together with a double strand of wire looped twice around the ankles. Magee's hands were tied behind his back with a long telephone cord. Cadena and Galvan had not been bound.

Dr. Joseph Rupp, Medical Examiner for Nueces County, performed autopsies on the three bodies. According to Rupp's testimony, Cadena died as a result of two gunshot wounds to the head, Galvan died as a result of four gunshot wounds to the abdomen, and Magee died as a result of a gunshot wound to the head. The victims, however, had suffered other gunshot wounds. Rupp was of the opinion that Cadena and Magee had been shot with a .38 caliber weapon, and that Galvan had been shot with a .25 caliber weapon. A drug screen test on Magee's body showed that Magee had cocaine and heroin in his system. Rupp also observed a faint needle mark on Magee's right forearm.

Captain Dean Smith of the Aransas County Sheriff's Department was in charge of the investigation into the deaths of Cadena, Galvan and Magee. After completing work at the Johnson Road site, Smith and other officers continued their investigation at 118 Jackson Square Apartments, the residence of the victims. The victims' apartment had been ransacked. A bloody struggle appeared to have occurred in the apartment. Inside the apartment officers found: wire and cord from a telephone similar to that used to bind Magee's hands and feet; a spent .38 caliber bullet; a Budweiser beer can with appellant's fingerprints on it; and a telephone with the cord removed and with appellant's fingerprints on it. The blood found in the apartment was determined to be that of David Magee.

Cadena's car was discovered by employees of the Aransas Pass Nursing Home in the parking lot of the nursing home, approximately two blocks from appellant's trailer home in the Portobello Village trailer park. Investigating officers found blood in the interior of the car, which was determined to be that of the victims. Cadena's blood, hair and tissue were found on the undercarriage of the car, indicating that Cadena had been struck and dragged underneath the car. Officers also found a crushed Coke can between the driver's seat and the console. A palm print on the can had been made by a person holding the can with blood on their hand. Analysis revealed that the palm print was appellant's. Officers also found six .25 caliber semi-automatic casings inside the car. In addition, blood drippings were discovered on the ground leading from the car in the direction of appellant's trailer park.

On the roof of the nursing home, officers found a blood soaked towel and the warm-up top that Cadena had been wearing before she was murdered. In a dumpster behind the nursing home, officers found a bloody Budweiser beer can, bloody socks and some blood-soaked rags. In a dumpster at the trailer park, officers found a pair of size 38-34 Wrangler blue jeans and a pair of Fruit of the Loom Golden Blend underwear. On the jeans, officers found Negroid hairs, similar to appellant's hair. The jeans and the underwear had been soaked in blood but had been later washed and were soaking wet when found.

Pam Meistobach, a co-worker of Cadena, learned that Cadena, Galvan and Magee had been murdered. Meistobach supplied officers with information concerning appellant's relationship with Cadena and Magee. She further told officers that she suspected that appellant had committed the murders. Upon hearing this, officers made appellant their primary suspect. At trial, Meistobach testified that both appellant and Magee had told her that they did not get along with each other. Meistobach had observed hostile confrontations between appellant and Cadena, where appellant told Cadena "Tell your old man to shut up and you're causing me problems" and "Well, you don't think I will do anything, but I will."

On September 29, officers obtained a warrant for appellant's arrest. Officers

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surrounded appellant's trailer home. Inside the trailer were appellant and his stepson Michael. Appellant's wife, Elaine Johnson, was not living in the trailer at that time, due to marital difficulties. Officers ordered appellant out of his trailer. Appellant complied and was arrested. Appellant and Michael were transported to the police station. Appellant refused to consent to a search of the trailer. At the time of his arrest, appellant had a cut between the thumb and index finger of his right hand. This cut was later shown to be consistent with the type of cut that can be caused by the slide recoil when a .25 caliber semi-automatic pistol is fired.

On October 1, Elaine Johnson gave consent to search her and appellant's trailer to Linda Thompson of the Aransas Pass Police Department. Officers searched the trailer on October 1 and found a pair of appellant's work boots which were splattered with human blood. Later analysis revealed that the blood splatter pattern on the work boots matched the pattern on the Wrangler jeans found in the dumpster. Officers also found, in appellant's bedroom, a pair of Fruit of the Loom Golden Blend underwear of the same size as the pair found in the nearby dumpster. A holster with the initials "J.R." was found underneath the vacant trailer next to appellant's trailer. The holster was later identified by Jerry Ramsey as the holster to his .38 caliber revolver. The revolver and holster had been stolen from his vehicle several weeks before the murders. Taped with duct tape to bottom of the electric meter box for appellant's trailer, officers found a packet containing cocaine. Officers also seized the following items from appellant's trailer: a gun cleaning kit suitable for a .38 caliber pistol; a gun cleaning kit suitable for a .25 caliber pistol; a roll of silver duct tape; and a photograph of appellant sitting on a horse holding a can of Budweiser beer in his left hand.

At trial, Arturo Riojas testified that he had owned a .25 caliber semi-automatic pistol and that the .25 caliber pistol had been stolen during a burglary of his residence approximately one year before the trial. Riojas' stepson, Gilbert Davilla, testified that he had taken the .25 caliber pistol during a burglary of Riojas' residence and had given the pistol to Dionicio Pena to sell. Pena testified that he sold the pistol to appellant. Theresa Holmes testified that appellant had offered to sell her a .22 or .25 caliber pistol approximately one week before the murders were committed. Before the grand jury, Holmes testified that appellant had offered to sell her a .38 caliber pistol. At trial, Holmes repudiated her grand jury testimony regarding the .38 caliber pistol. No .38 caliber pistol was ever found.

The .25 caliber pistol was found approximately one week after the murders were committed, near a roadway close to the spot where the victims' bodies were discovered. Charles Parker, a civilian ballistics expert with the Corpus Christi Police Department, tested two bullets removed from Galvan's body and determined that they had been fired from the .25 caliber pistol that appellant had bought from Pena.

At trial, Patricia Hulen and Roxanna Payne, Department of Public Safety forensic serologists, testified as to several aspects of the physical evidence. In summary, their testimony indicated that: the wires used to bind the hands and feet of Magee had been ripped from the telephone in the victims' residence; the underwear and jeans found in the dumpster and the boots found in appellant's trailer had been washed; the jeans contained blood consistent with that of Cadena...