McDuff v. State
| Decision Date | 22 January 1997 |
| Docket Number | No. 71872,71872 |
| Parties | Kenneth Allen McDUFF, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
A Travis County grand jury indictment accused appellant of committing capital murder, specifically intentionally causing death in the course of committing and attempting to commit aggravated sexual assault and aggravated kidnapping, alleged to have occurred on or about the 29th day of December, 1991. After a change of venue, resulting in the trial being conducted in Guadalupe County, on February 23, 1994 appellant was convicted in a trial by jury of capital murder. Thereafter on March 1, 1994, based upon the jury's answers to the special issues of Article 37.071, V.A.C.C.P., appellant was sentenced to death. 1 Appellant raises 23 points of error.
In four points of error, appellant attacks the sufficiency of the evidence to support his conviction. Specifically, point of error number one claims error in overruling his motion for directed verdict. Point number two avers that the evidence is legally insufficient to support his conviction, while point three alleges factual insufficiency. Point number four claims the evidence is insufficient to corroborate accomplice testimony. These points revolve around appellant's claims that the State has not demonstrated: the corpus delicti of murder, his connection with such a crime, nor the corpus delicti of aggravated kidnapping or aggravated sexual assault.
At trial, an accomplice witness testified as to appellant in late December of 1991 abducting the complainant from an Austin car wash and forcing her into the car that he and the accomplice were riding around in. The accomplice testified in some detail about appellant sexually assaulting the complainant in the backseat while the car was being driven and again on the hood of the car when they stopped the car. He testified that this even included burning her with a lit cigarette several times. The accomplice even admitted to switching places with appellant and sexually assaulting her himself. The accomplice also testified that after they had stopped and gotten out, with appellant continuing his sexual assault, appellant slapped the complainant real hard and said something about killing her, and that after the slap she fell back and bounced on the ground; whereafter appellant picked her up and put her in the trunk of the car. The accomplice thought that the complainant was moaning, but when she was placed in the trunk and the lid closed she did not make any noise. He indicated that the slap sounded something like a crack, a tree limb or something breaking, but did not think that it broke her neck. The accomplice testified that he was then dropped off at his house and never saw the complainant again. He also testified that on the way to being dropped off appellant asked for a pocketknife and shovel and said that "he was going to use her up."
Four witnesses testified about hearing a woman's scream followed by the sound of a car door or trunk slamming coming from the same Austin car wash mentioned above on the night of December 29, 1991, and that a car then drove out of the car wash onto a one-way street the wrong way. Some of those witnesses had previously seen that same car in that same area with two men inside a few minutes earlier that night driving the wrong way on another nearby one-way street. One of the witnesses identified appellant as the driver of that car leaving the car wash. The complainant's unoccupied soap-sudded car was then found at the otherwise deserted car wash with her keys and purse and some perishable groceries inside.
The complainant's boyfriend testified that on the night of December 29, 1991, he spoke with her on the phone and she said that she wanted to go wash her car that night. Her sister testified that since that night, there had been no activity in the complainant's bank and charge accounts that could be attributed to the complainant. The sister also indicated that there was no indication from the items remaining in her apartment that she was going on a trip. She was unaware of any problems that the complainant might have been going through that would possibly cause her to disappear or just walk off and leave everything.
A Department of Public Safety (DPS) serologist testified that appellant's car, which he had been seen pushing into and leaving in a Waco motel parking lot on March 1, 1992, and some items therein were found to contain small amounts of human blood. There was also testimony from a DPS criminologist that five hairs recovered from appellant's car matched up microscopically to the known hair of the complainant, i.e. each of the five hairs had the same microscopic characteristics as the hair that was known to be the complainant's.
A minister/supervisor for a Kansas City, Missouri rescue mission shelter for homeless men testified that appellant had checked into the shelter on March 17, 1992 using an alias name. There was testimony that appellant was arrested on May 4, 1992 in Kansas City, Missouri as he was working using an alias name with alias identification.
Point of error number four avers that "the evidence is insufficient to corroborate accomplice testimony." Article 38.14, V.A.C.C.P., provides, "A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense." The test for sufficient corroboration is to eliminate from consideration the accomplice testimony and then examine the other inculpatory evidence to ascertain whether the remaining evidence tends to connect the defendant with the offense. Burks v. State, 876 S.W.2d 877, 887 (Tex.Cr.App.1994), cert. denied, 513 U.S. 1114, 115 S.Ct. 909, 130 L.Ed.2d 791 (1995). In order to determine whether the accomplice witness testimony is corroborated, we eliminate all accomplice evidence and determine whether the other inculpatory facts and circumstances in evidence tend to connect appellant to the offense. Munoz v. State, 853 S.W.2d 558, 559 (Tex.Cr.App.1993). We shall accordingly eliminate the accomplice witness testimony from our consideration and then conduct such an examination without considering the accomplice witness testimony.
Appellant points to the lack of non-accomplice eyewitness testimony to the alleged killing, and the absence of a body or definite cause of death. He insists that absent the accomplice testimony, there is no evidence of the complainant's death, "except that she was abducted and has not returned." He also points out that hearsay from an accomplice cannot corroborate the accomplice's trial testimony, i.e. an accomplice cannot corroborate himself by his own statements made to third persons. Reynolds v. State, 489 S.W.2d 866, 872 (Tex.Cr.App.1972); Brown v. State, 167 Tex.Crim. 352, 320 S.W.2d 845 (1959); and see also Beathard v. State, 767 S.W.2d 423, 429 (Tex.Cr.App.1989).
As noted above, there was trial testimony from a nonaccomplice witness that on the evening of December 29, 1991 appellant was seen driving a car out of the car wash shortly after a woman's scream and the sound of a car door or trunk slamming had been heard coming from the car wash. Non-accomplice witnesses also testified that shortly thereafter the complainant's unoccupied soap-sudded car was found abandoned at the otherwise deserted car wash with her keys and purse and some perishable groceries inside. Non-accomplice testimony also indicated that the same car that appellant was identified as driving out of the car wash after the scream and door or trunk slam had been seen, occupied by two men, driving around in the neighborhood shortly before the incident at the car wash.
Motel employees testified about appellant pushing his car into the motel parking lot and that it was left there. A DPS criminologist testified that five hairs recovered from appellant's car matched up microscopically to the known hair of the complainant, i.e. each of the five hairs had the same microscopic characteristics as the hair that was known to be the complainant's. One of those hairs was recovered from the carpet in the trunk, while the others were recovered from the backseat area and a back floorboard mat. Also several items found inside appellant's car, including carpeting on the back floor area, a cowboy hat, bed sheets, and a shirt, were found to contain small amounts of human blood; however, based upon the blood the complainant could not be included nor excluded from having been in the car.
One of the accomplice's sisters, with whom the accomplice had been staying in 1991, testified that on an evening between Christmas and New Year's Eve of 1991, a car that appeared to be appellant's pulled up at her home in Belton and that the accomplice left with the explanation that he and appellant were going to have a couple of drinks. She further testified that the accomplice returned home after midnight that night but she could not describe the vehicle that dropped him off there. An acquaintance of appellant's testified about them riding around Austin on Christmas Day of 1991 looking for a particular prostitute, whereupon appellant suggested just taking a young girl who was outside roller-skating.
The non-accomplice evidence does not have to directly link appellant to the crime, nor does it alone have to establish his guilt beyond a reasonable doubt; but rather, the non-accomplice evidence merely has to tend to connect appellant to the offense. Burks v. State, 876 S.W.2d at 888. Thus there must simply...
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