Loserth v. State, 04-94-00268-CR

• Decision Date: 17 April 1996
• Docket Number: No. 04-94-00268-CR,04-94-00268-CR
• Citation: Loserth v. State, 931 S.W.2d 322 (Tex. App. 1996)
• Parties: Ralf LOSERTH, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 322

931 S.W.2d 322

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

No. 04-94-00268-CR.

Court of Appeals of Texas San Antonio.

April 17, 1996.

Rehearing Overruled May 17, 1996.

Mark Stevens, San Antonio, for appellant.

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

Before RICKHOFF, HARDBERGER and DUNCAN, JJ.

OPINION

HARDBERGER, Justice.

This is a murder case. The conviction is largely based on an eye-witness identification. The points of error are three: (1) factually insufficient evidence, (2) in-court identification and (3) excluded evidence of a civil lawsuit. All points are substantive and well-briefed by both sides.

Facts

Brenda Epperson, 24, was killed 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: around 3:40 a.m. at the beginning of a Sunday morning. While the hour was late, and she had been out with girlfriends that night, she 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 to be 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 at 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 (and 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 they were able to push it 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 blood 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 these, 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, then 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 to no avail, and was found guilty of murder. The jury sentenced him to the extraordinarily low sentence of 25 years, considering the extreme savagery of such an innocent victim with no mitigating circumstances.

Factual Insufficiency

Loserth's first point of error is that there is factually insufficient evidence to support the verdict, and that, therefore, there must be a reversal, either with instructions to acquit, or remanded for a new trial.

The Court of Criminal Appeals has only recently decided that courts of appeals have constitutional and statutory authority to conduct factual sufficiency review in criminal cases. See Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App.1996). The court first clarified that the courts of appeals do have constitutional and statutory authority to conduct factual sufficiency review in criminal cases. After having examined the evolution of appellate judicial power, the court concludes: "... from the beginning, 'appellate jurisdiction' included the power to examine 'factual sufficiency,' and further, that every appellate court with criminal jurisdiction recognized, acknowledged and utilized that power ..." Clewis, supra at 131. Further, the court held that our duty to review the facts, when properly raised, is mandatory: "When their jurisdiction to review fact questions is properly invoked, the courts of appeals cannot ignore constitutional and statutory mandates." Id. at 128.

But while the appellate courts have the authority, and the duty, to review fact questions, great deference must be given to the jury's findings:

"In conducting a factual sufficiency review, an appellate court reviews the factfinder's weighing of the evidence and is authorized to disagree with the factfinder's determination. This review, however, must be appropriately deferential so as to avoid an appellate court's [sic] substituting its judgment for that of the jury."

Id. at 133.

As this court has previously ruled:

"But courts of appeals should use considerable restraint in exercising their power to overturn the jury's work. The Magna Charta forced King John to give rights to juries, not appellate courts."

Peterson v. Reyna, 908 S.W.2d 472, 478-79 (Tex.App.--San Antonio 1995).

At the outset, it can be said that the question of insufficient evidence in this case, as presented to the jury, is a close one. Although the subsequent points of error seek to exclude some evidence that went to the jury, and include some evidence that did not, our review of factual insufficiency is done with a view as to what the jury actually heard without consideration of the two other points of error. The following facts were developed:

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 jump suit. 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. Two and a half months after the murder (July 27) Devlin was again called in by the Universal City police. He was shown a single color photograph of the defendant. The police explained that they did not show Devlin a traditional line-up because they were just trying to find out if the defendant had been seen around the apartment complex. Whatever the question, 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 (who was most certainly the murderer) in his trial testimony. 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. In support of his being afraid is the fact that he had moved out of his apartment the day after the murder, though less clear is 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 of the witness: he was certain.

The jury obviously believed Devlin because there was 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, he allowed the police to search his apartment, his garage and his car. He twice gave hair samples from his head, armpit and pubic areas. He gave blood samples, saliva samples, fingerprints, and palmprints. He allowed the police to take clothes from his closet to have fabric samples tested, knives from his kitchen and bedroom to see if they would correlate to the wounds on the victim. When indicted he drove more than a thousand miles back to San Antonio to turn himself in the next day, and at trial, waived his Fifth Amendment rights and took the stand in his own behalf. None of the physical items taken by the police, or tested by them, ever linked Loserth to the crime.

There was one other eyewitness that gave corroborating evidence that Loserth was in the vicinity at the time surrounding the murder. This woman was Eileen McGraff, a district manager for the local San Antonio newspaper, who was on her way to work. Between 4:15 a.m. and 4:30 a.m., while driving 25 miles per hour, she approached a pedestrian who was walking in the...