Lackey v. State, 69144

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Citation819 S.W.2d 111
Docket NumberNo. 69144,69144
PartiesClarence Allen LACKEY, Appellant, v. The STATE of Texas, Appellee.
Decision Date14 June 1989

June 14, 1989

WHITE, Judge.

Appellant was convicted of capital murder. See V.T.C.A., Penal Code Sec. 19.03(a)(2). This offense originated in Lubbock County. Venue was changed to Tom Green County where appellant's first trial took place. The conviction was reversed on appeal. Lackey v. State, 638 S.W.2d 439 (Tex.Cr.App.1982). On remand the instant cause was tried on a change of venue in Midland County. After the jury made an affirmative finding on both of the two special issues submitted under Art. 37.071(b)(1) and (2), V.A.C.C.P., the trial court imposed the penalty of death. This case is before us on direct appeal.

Appellant presents eight points of error in this appeal. Through them, he challenges the sufficiency of the evidence to prove that he committed the burglary with the intent to commit aggravated rape, and the sufficiency of the evidence to support an affirmative answer to special issue number two. Article 37.071(b)(2), supra. A review of the facts is necessary.

The instant cause is the second trial of appellant for this offense. The appellant's first conviction was reversed and remanded by this Court. Lackey v. State, supra. The factual summary in that opinion accurately reflects the facts proven at appellant's second trial. We will rely on that review of the facts.

Diane Kumph was abducted from her Lubbock apartment shortly before dawn on July 31, 1977. Later that day, her partially nude body was discovered beside a dirt road outside of Lubbock, near appellant's house. It appeared Kumph had been raped. She had been severely beaten. Her neck, face, arms, chest, back and legs were covered with bruises. Her throat had been slashed. This caused her death.

A policeman who responded to a neighbor's report testified that it appeared that the front door of Kumph's apartment had been kicked open. There were indications that a violent struggle had occurred in her apartment.

A fingerprint expert testified that a latent fingerprint discovered on a cigarette package found in the victim's bed belonged to appellant. The brand was the same brand as a pack found on appellant at the time of the arrest. Blood found on appellant's boots matched Kumph's blood type. Secretor analysis showed that the individual whose semen was found in Kumph was a secretor and had the same type O blood as did appellant. An expert testified that hairs found on Kumph's body were similar to appellant's and marks found on the door of Kumph's apartment were very similar to the heel print of appellant's boot.

A person living in the adjoining apartment testified that he was awakened in the early morning, went outside, and saw a man matching appellant's physical description driving away in a white pickup. A woman was slumped over in the seat. The truck was missing a hubcap from the right rear wheel. Appellant, at the time of the murder, had use of a white pickup that was missing a hubcap from the right rear wheel. Appellant was identified by an acquaintance as having been in this truck, driving in Lubbock at approximately 5:00 a.m. on the morning of Kumph's abduction.

Another resident of the adjoining apartment testified that she was awakened that morning by loud banging, and screams of 'help me' and 'get off me' coming from Kumph's apartment.

Appellant's roommate, Carrol Johnson, testified that she had been at work all night the night of the murder. When she returned home that morning, about 7:30 a.m., appellant was not home, but there was fresh blood all about the house. Shortly after her return, appellant phoned Johnson and said he was doing some laundry at a laundromat. He arrived at the house a half hour later with a bedspread and sheets he had washed. He burned a throw rug. Later that day, as Johnson and appellant were discussing radio reports of the murder of Kumph and the search for a suspect, appellant admitted to Johnson: 'Baby, I've got to tell you something--I'm the one they're looking for.'

More incriminating evidence was seized in a search of appellant's house and the white truck. Leaves found on Kumph's face were very similar to leaves found in the truck, according to expert testimony. Hair taken from the truck was very similar to Kumph's, according to the expert. Sweepings from appellant's apartment revealed hair that was very similar to Kumph's, according to more expert testimony. Blood found throughout appellant's home matched Kumph's blood type, including that found on a blood soaked mattress. Blood was also found on the porch and on the exterior of appellant's house. That blood matched Kumph's type. Blood was found on a knife located in the house. Blood found on the pickup matched the deceased's type. Lackey, supra, 638 S.W.2d at 439-440.

In his first and second points of error, the appellant disputes whether the evidence at trial proved that he committed the burglary of Kumph's apartment with the specific intent to commit aggravated rape. In the first point appellant states that it was error for the trial court to overrule his motion for instructed verdict, which was based on the State's alleged failure to prove his intent to commit aggravated rape. The second point of error states the evidence was insufficient to prove he committed burglary with the intent to commit aggravated rape. We will group the two points together. If the evidence was sufficient, the trial court was correct in overruling the appellant's motion for an instructed verdict.

The attorney for the State argued against the motion, relying upon the evidence introduced during the State's case in chief. He recounted for the trial court that the victim's apartment door had been kicked open and left ajar, and that the bootprint on the door came from the appellant's boot. The State's attorney discussed how the apartment had not been ransacked and the victim's purse had not been disturbed, implying that the motive for the entry was not to steal or rob. He stated that the victim's bedroom was in disarray, as if there had been a struggle, and that the appellant's fingerprints were found on a cigarette package left behind in the victim's bed. He then talked about the presence of spermatozoa in the acid phosphate test run on the victim, and that it was of the appellant's type. He also mentioned the discovery of foreign hairs found on the body of the victim, one on her mouth and the other in her pubic area; and that the hairs had been identified by experts as similar to the appellant's hair.

The attorney for the appellant countered the arguments of the State by stating that the evidence showed the rape did not occur in the victim's apartment, if there had been a rape. He made the suggestion that a rape did not occur by relying on the absence of trauma in the region of the victim's vagina. The State responded to this last statement by telling the trial court that there did not have to be vaginal trauma for there to have been a rape. The trial court overruled appellant's motion.

There was other evidence at trial, not recounted by the district attorney in his argument on the motion, which reflected on the intent of the appellant when he committed the burglary. One of the residents of the apartment adjoining the victim's apartment recalled the screams from the victim's apartment at the time of the break-in ("Help me" and "Get off me"). Aside from the disarray in the victim's bedroom, there was evidence that there appeared to have been a violent struggle in the apartment, even though nothing was stolen.

The proper standard of review on this question of the sufficiency of the evidence was set out in Jackson v. Virginia: that the evidence must be viewed in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); In re Winship, 397 U.S. 358, 365, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970); Moreno v. State, 755 S.W.2d 866 (Tex.Cr.App.1988). In the instant case, we must, after reviewing the evidence as it was already weighted by the jury's verdict, resolve whether any rational trier of fact could have found beyond a reasonable doubt that appellant broke into the victim's apartment with the intent to commit aggravated rape.

The intent to commit rape in a case of burglary may be inferred from the facts of the offense which were adduced and presented at trial. Prescott v. State, 610 S.W.2d 760 (Tex.Cr.App.1981); Ford v. State, 632 S.W.2d 151 (Tex.Cr.App.1982); Williams v. State, 699 S.W.2d 368 (Tex.App. [1st] 1985); and McGee v. State, 725 S.W.2d 362 (Tex.App. [14th] 1987). It is especially reasonable to make this inference when there is no evidence adduced at trial which rebuts the inference. Ortega v. State, 626 S.W.2d 746 (Tex.Cr.App.1982) and Prescott, supra.

The facts of the instant case which were proven by the State at trial showed that appellant savagely broke into the victim's apartment, declined to steal anything there, seized the victim in spite of her screams of protest, beat the victim up and removed her to his own residence, and killed her there with a large blade knife. The physical evidence showed the presence in the victim's vagina of spermatozoa which was tied to the blood type and secretor status of the appellant. Hairs from the appellant were found in the victim's mouth and vaginal region. This physical evidence implied that appellant forced the victim to submit to sexual intercourse with him during this criminal episode. The appellant, during the guilt stage...

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