Larue v. State

• Decision Date: 17 May 2017
• Docket Number: NO. PD-1544-15,PD-1544-15
• Citation: 518 S.W.3d 439
• Parties: Joe Edward LARUE, Appellant v. The STATE of Texas
• Court: Texas Court of Criminal Appeals

518 S.W.3d 439

Joe Edward LARUE, Appellant

v.The STATE of Texas

NO. PD-1544-15

Court of Criminal Appeals of Texas.

Delivered: May 17, 2017

Walter M. Reaves Jr., Attorney at Law, Waco, TX, for appellant.

Wayln G. Thompson, Assistant District Attorney, Beaumont, TX, Stacey Soule, Austin, TX, for the State.

OPINION

Newell, J., delivered the opinion of the unanimous Court.

Appellant, Joe Edward LaRue, was convicted in a bench trial of the capital murder of Donna Pentecost and sentenced to life imprisonment.His conviction was based in part on DNA evidence and in part on the very detailed testimony of a jailhouse informant.The conviction was affirmed on direct appeal.Appellant filed a motion for forensic DNA testing, seeking re-testing of several things—including the oral swabs from Pentecost, and blood samples from a t-shirt worn by one-time suspect Jackie Ray Augustine.The motion was denied by the trial court.The Beaumont Court of Appeals, holding Appellant could not show that he would not have been convicted if exculpatory results had been obtained through DNA testing, affirmed.LaRue v. State , 09-14-00441-CR, 2015 WL 6522816, at *6(Tex. App.—BeaumontOct. 28, 2015)(LaRue III ).

Although Appellant raises a potpourri of complaints about the trial court's ruling and the court of appeals' affirmation of that ruling, we granted review to take a closer look at the trial court's decision to deny testing of the blood on Augustine's t-shirt.After examining the record, we affirm the court of appeals: exculpatory test results here would "merely muddy the waters."

Facts and Prior Proceedings

Appellant, Darrell Fuselier, Gary Byrd, and Pentecost all worked at Jordan Industries.Jordan Industries provided contract labor to refineries.Many of its workers, including Appellant, Fuselier, and Byrd, lived in barracks on-site at Jordan Industries; Pentecost lived in a house off-site about five blocks from Jordan Industries.Pentecost was known to sell drugs, including heroin and cocaine, to workers at Jordan Industries.Byrd was a narcotics informant.

On the morning of October 15, 1989, police received a call from Byrd about a possible suicide.An officer picked up Byrd at Jordan Industries, and Byrd directed the officer to Pentecost's house.Pentecost's naked body lay in the backyard, on the side of the house opposite from the driveway.The body was face down; the head was covered.A blood soaked shirt was tied into a knot around her neck.Pentecost's skull had been crushed.

One officer noticed two concrete blocks on the edge of the patio and three impressions where concrete blocks had been.Two impressions were dry; one was moist.Two blocks were being used to jack up a car that was in the driveway.Officers later found the third cement block, stained with human blood, in the lot across the street; the block had grass under it, as if it had not been there very long.Officers collected various items at the scene, including cigarette butts, hair samples, and clothing.They also lifted fingerprints from the door of the house.A rape kit was collected during the autopsy.In 1989, DNA testing was unsuccessful in efforts to determine the assailant.

Appellant was one of six initial suspects from whom the police would eventually obtain blood samples.Fuselier, Byrd, David Ronald Lundy(Pentecost's housemate), Douglas Gurthrie(who was known to have a crush on Pentecost) and James Droddy(who was known to come by the Pentecost house) were the other initial suspects.Augustine was at some point treated as a suspect, but was never asked to give a blood sample.

Greg Slim, Pentecost's common-law husband who had been off-shore working, later identified Pentecost's body.Besides Lundy, Lundy's ex-girlfriend, Dorethea "Dee" Morman, was staying with Pentecost.Lundy and Morman both allegedly slept through the attack; Lundy was still in bed when police arrived; Morman had gone to work that morning without noticing Pentecost's body.

On October 10, 1990, police received a phone call from an anonymous source who claimed to work at Jordan Industries.A woman named "Jewel" had told the informant that Pentecost's murderer was "a large black male" who was a drug dealer in Port Arthur.The informant also said that Fuselier had told him that he and a large black male were with Pentecost shortly before the murder.The three had gone to Port Arthur together to make a drug deal, but the deal "went bad."As they were driving around afterwards, the black male threatened the lives of Fuselier and Pentecost.Fuselier got out of the car and the black male said he would take Pentecost home.Pentecost was murdered 30-40 minutes later.The black male later contacted Fuselier and threatened to kill him if he told anyone.The informant said Fuselier had not cooperated with the police because he feared for his life.A second anonymous 911 caller identified the assailants as Fuselier and a black male from Port Arthur.A police detective identified this caller as Byrd.

1991 DNA typing of the blood of the suspects eliminated all but Appellant from the potential pool of contributors to the oral swabs taken from the body of Pentecost.Clois Eugene Marsh, then a Lieutenant Detective with the Port Neches Police Department, testified that after receiving the reports, "We began to concentrate more heavily on Joe Larue."Although Augustine had dealt heroin to Pentecost, he had gotten high with her, and his shirt had tested positive for blood, Marsh testified that by the time of the typing, Augustine was no longer a suspect.

Well, we submitted the samples for testing, again, in January of 1990.By that particular time, I think Ranger Taylor and I had pretty well satisfied ourselves that Jackie Ray Augustine had not participated in that murder.And, again, it's just a number of small things that had brought us to that conclusion....Well, the vehicle that Mr. Augustine had access to was not the vehicle that was initially described to us as having been driven by a black heroin dealer....Ranger Taylor and I had an opportunity to physically inspect that car really on three different occasions ... and noted nothing.

In 2001, the State again submitted items for DNA testing, including oral swabs, oral slides, fingernail samples, hair and blood cards from Pentecost, a blood vial and bloodstain from Appellant, the shirt from Pentecost's body, and a cigarette butt.The testing revealed that Appellant was the source of the semen on an oral swab from Pentecost, and that Appellant could not be excluded as a contributor of two stains on Pentecost's fingernail samples.The testing results from the other evidence collected did not implicate any other suspects.

Appellant's capital murder trial, before a death-qualified jury, started in 2003, but proceedings were stayed after the trial court granted Appellant's motion to suppress the results of DNA testing as a sanction for the State's failure to give timely discovery.¹The State appealed the ruling.The Ninth Court of Appeals reversed the order of the trial court on May 15, 2003, finding that the State's failure to produce the evidence was not willful.State v. LaRue , 108 S.W.3d 431, 437(Tex. App.—Beaumont2003)(LaRue I ).This Court granted review of that decision and affirmed it, in late 2004.State v. LaRue , 152 S.W.3d 95(Tex. Crim. App.2004).

The case went back to the jury in 2005.Three days in, Appellant waived his right to a jury in exchange for the State's waiver of the death penalty.He also entered into certain stipulations concerning several of the exhibits that contained the DNA evidence.The trial court took judicial notice of all the evidence prior to releasing the jury and then continued the trial.

At trial, Raymond Gross testified that while incarcerated in the county jail, Appellant told him specific details about how he murdered Pentecost.Appellant told Gross that he went to Pentecost's house between 1 and 2 a.m.He said they got into an argument outside.Appellant then told her to take her clothes off, choked her with a shirt, and forced her to have oral sex.Pentecost said she would send him to prison for the rest of his life.Appellant responded by smashing Pentecost's head in with a cement block.He then washed the block off with the remaining liquor he had in a bottle that he was drinking and hauled the block across the street to a brush pile.Appellant bragged about the killing and said the only evidence against him was his semen.

Another inmate, Jermaine Norman, testified that he overheard Appellant tell yet another inmate that he hit Pentecost in the head with a brick after having sex with her.The cement block—as mentioned above—was found across the street in a brush pile and it had been washed off with some unknown substance.According to testimony at trial, the location of the cement block had never been released to the public and only the killer would know that information.

Byrd testified that drugs were common at Jordan Industries, and that Pentecost brought drug dealers to Jordan Industries to sell drugs.Byrd said he saw Appellant the day before Pentecost's body was found.Appellant told him that he and Fuselier were going to Port Arthur.Byrd did not see Appellant again until 2 or 3 a.m., when he saw Appellant sitting in a car and talking to another man outside at Jordan Industries.Later, Byrd heard Appellant come in, shower, and go to bed.

The next morning Byrd went with Appellant to Pentecost's house to tell her about some potential work.They found Pentecost's body.Byrd said that after the murder, rumors circulated at Jordan Industries.Byrd said that Fuselier told him that there was a heroin dealer who "messed around" with Pentecost and had a fight with her and said something about getting a brick; Fuselier claimed that Pentecost was killed by someone named "Reggie."Byrd also testified that Appellant told him that Pentecost was dead because she owed a heroin dealer a thousand dollars.

Among Appellant's...