Loserth v. State

• Decision Date: 23 December 1998
• Docket Number: No. 04-94-00268-CR,04-94-00268-CR
• Citation: 985 S.W.2d 536
• Parties: Ralf P. LOSERTH, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 536

985 S.W.2d 536

Ralf P. LOSERTH, Appellant, v. The STATE of Texas, Appellee.

No. 04-94-00268-CR.

Court of Appeals of Texas San Antonio.

Dec. 23, 1998.

Discretionary Review Refused May 12, 1999.

Mark Stevens, Jeffrey J. Pokorak, San Antonio, for Appellant.

Daniel Thornberry, Assistant Criminal District Attorney, San Antonio, for Appellee.

Before PHIL HARDBERGER, Chief Justice, TOM RICKHOFF, Justice and SARAH B. DUNCAN, Justice.

OPINION

PHIL HARDBERGER, Chief Justice.

This murder case, involving an in-court identification, was decided by this court in 1996. We reversed the trial court, after conducting a de novo review, finding that the in-court identification of appellant was wrongly admitted because it was tainted by the impermissibly suggestive pretrial photographic identification in violation of appellant's due process rights. Loserth v. State, 931 S.W.2d 322 (Tex.App.--San Antonio 1996), vacated, 963 S.W.2d 770 (Tex.Crim.App.1998).

After that opinion was issued, the Court of Criminal Appeals set forth the standard for courts of appeals' review of trial courts' rulings on motions to suppress evidence based upon Fourth Amendment claims. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). Guzman holds that the appellate courts, including the Court of Criminal Appeals, "should afford almost total deference to a trial court's determination of the historical facts that the record supports especially when the trial court's fact findings are based on an evaluation of credibility and demeanor." Id. Guzman instructs that we "should afford the same amount of deference to trial courts' rulings on 'application of law to fact questions,' also known as 'mixed questions of law and fact,' if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor." Id. We may review de novo "mixed questions of law and fact" not turning on an evaluation of credibility and demeanor. Id. The Court of Criminal Appeals may exercise its discretion to review de novo these decisions by the intermediate appellate courts. Id.

In harmony with Guzman, the Court of Criminal Appeals held this year that the standard in Guzman is also applicable to review of a trial court's ruling on a motion to suppress evidence based upon a claim that an in-court identification should not have been admitted due to taint by an impermissibly suggestive pretrial identification procedure. Loserth v. State, 963 S.W.2d 770, 771 (Tex.Crim.App.1998). The Court remanded Loserth to this court so that we could apply the standard of review enunciated in Guzman. We do so in this opinion.

I. FACTUAL AND PROCEDURAL HISTORY

A young, popular 24-year-old woman named Brenda Epperson was murdered by an intruder in her apartment on May 17, 1992. She was stabbed 12 times. The motive was, and is, difficult to understand. She was neither sexually molested, nor robbed. She was well-liked and successful in her work as an insurance adjuster. Her friends were many; her enemies, if any, were unknown. Because she screamed, the time of her death can be fairly closely determined to be around 3:40 a.m. on a Sunday morning. She had been out with girlfriends that night, and had neither been drinking nor using drugs. Only a few minutes before, she had been brought home by her girlfriends, who watched her until she was safely in her locked, lighted apartment.

The witness who heard the scream and called the police shortly thereafter was Lewis Devlin, a neighbor who lived in the adjacent apartment building on the second floor. His apartment faced the third-floor apartment of Epperson. It was later determined that it was 87 feet, 10 inches between the apartments. Not being certain as to what he should do about the scream, and seeing nothing, he did nothing. But shortly thereafter, he heard a crashing noise, and he looked across to Epperson's apartment again. The apartment was lit, as was her balcony, which faced him one story above his. This time he saw a tall, thin man come out of the apartment onto the balcony, look around and step over the railing on the outside edge of the balcony. The next thing he saw was a large object shoot toward the ground. Devlin looked back at the balcony, unable to believe that anyone would have voluntarily jumped the 26 feet from the balcony to the ground, but saw the balcony was now empty. Concluding correctly that the object he had seen falling was indeed the man he had seen on the balcony, Devlin called the Universal City police at 3:51 a.m. They arrived within one minute, while he was still talking to the dispatcher, and ran up the stairs to Epperson's front door (the only door except the sliding entrance onto the third floor balcony). There were no signs of a forced entry. After beating on the door, they kicked it off the frame.

Epperson's lifeless body was jammed up against the door, but the police were able to push the door open. There was much blood--on the door, on the floor, on the walls, on the rug, on the vertical venetian blinds that covered the sliding door that went onto the balcony, and on the railing of the balcony. The sliding door was off its rail, bent outwards; the screen behind the sliding door totally knocked off. The police then went downstairs, expecting no doubt that a person having jumped three stories might still be there, or at least somewhere nearby in an injured condition. The only thing they found, however, was an indentation in the gravel surrounding the building. There was a tree and a shrub in the vicinity but no evidence that the killer had fallen into those, or that they had broken his fall. Whatever injuries might have been expected in someone falling such a great distance, it is undisputed that the killer was still mobile enough to leave the scene. No suspects were arrested that night, or for many weeks to come despite the best efforts of the Universal City police, the Texas Rangers and the science laboratories of the Department of Public Safety.

In the latter part of September though, the defendant, Ralf Loserth, was indicted by a San Antonio grand jury. Loserth, who was an Army reserve lieutenant on duty in Indiana, drove back to San Antonio and turned himself in. Eventually, he stood trial, testified in his own behalf that he was not guilty, but was found guilty of murder. The jury imposed a lenient sentence of 25 years, considering the extreme savagery to such an innocent victim with no mitigating circumstances.

II. FACTUAL INSUFFICIENCY

In his first point of error on remand, Loserth urges that the evidence is factually insufficient to support his conviction. This court found in its first opinion that there was sufficient factual evidence to support the conviction. The State did not complain of this court's finding of factual sufficiency, and it was not addressed by the Court of Criminal Appeals. We review a challenge to the factual sufficiency of the evidence by considering all the evidence "without the prism of the light most favorable to the prosecution and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App.1996). On remand, we have again considered the factual sufficiency point, and we again overrule Loserth's first point of error. We include in this opinion our review of the facts found in the first opinion, though, because it is useful in weighing the now more critical issue of the in-court identification.

The principal eyewitness, Devlin, was unable to give much of a description to the police. Both the night of the murder, as well as four days later when he gave a written statement to the police, Devlin could not do better than to say the person was (1) tall, (2) thin, and (3) wearing dark clothes like a jumpsuit. From then on, including several conversations with police officers and even after being hypnotized by a Texas Ranger, Devlin could not, or would not, elaborate further on this description. On July 27, two-and-one-half months after the murder, Devlin was again called in by the Universal City police. Critical to our determination, he was only shown a single color photograph of one suspect--Loserth. The police explained that they did not show Devlin a traditional line-up because they were just trying to find out whether the defendant had been seen around the apartment complex. Whatever the reason for the procedure, Devlin's memory improved dramatically. At that moment, Devlin positively identified the defendant as the man on the balcony the night of the murder. He never again wavered, and identified Loserth as the man on the balcony (the man on the balcony most certainly being the murderer) during his testimony at trial. Devlin's explanation of the late identification was that he had been afraid, and that he felt the defendant had seen him and might come after him. Supporting his contention that he was afraid is the fact that he had moved out of his apartment the day after the murder, though it is less clear why seeing the photograph would make him less afraid. In any case, the jury heard this testimony of an eyewitness making a positive identification of the killer. Cross-examination did not reveal any doubts by Devlin about the identity of the man on the balcony. He was certain.

The jury obviously believed Devlin because there was absolutely no other evidence to place Loserth at the scene of the crime. Loserth, a former acquaintance, or boyfriend of the victim, depending on the viewpoint, was extraordinarily cooperative with the police. He gave statements without an attorney, and he allowed the police to search his apartment, his garage and his car without warrants. He twice gave hair samples from his head, armpit and pubic areas. Loserth voluntarily gave blood samples, saliva samples, fingerprints, and palm prints. He allowed the police to take clothes from his closet to have fabric samples tested, and knives from his...