McFarland v. State, 71016

• Decision Date: 23 September 1992
• Docket Number: No. 71016,71016
• Parties: Frank Basil McFARLAND, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 824

845 S.W.2d 824

Frank Basil McFARLAND, Appellant, v. The STATE of Texas, Appellee.

No. 71016.

Court of Criminal Appeals of Texas,

En Banc.

Sept. 23, 1992.

Jack V. Strickland, Fort Worth, for appellant.

Tim Curry, Dist. Atty., and C. Chris Marshall and Edward L. Wilkinson, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

CAMPBELL, Justice.

Appellant, Frank Basil McFarland, was convicted of capital murder. Tex.Penal Code § 19.03(a)(2). At the punishment phase of appellant's trial, the jury answered affirmatively the special issues set forth in Article 37.071(b) of the Texas Code of Criminal Procedure. The trial judge then sentenced appellant to death as required by Article 37.071(e). Direct appeal to this Court was then automatic. Tex.Code Crim.Proc. art. 37.071(h). We will affirm appellant's conviction and sentence of death.

Appellant raises eighteen points of error. Point of error number three is a challenge to the sufficiency of the evidence at the guilt/innocence stage of trial and will be addressed first. The remaining points will be addressed in the order that follows: points of error numbers five, six, and seven address errors that allegedly occurred during voir dire; specifically, points five and six address the trial court's granting of a State's challenge for cause and subsequent sua sponte excusing of a single veniremember and point seven challenges the trial court's granting of a second State's challenge for cause; points of error one, two, four, eight, thirteen, fourteen, fifteen, and sixteen address errors which allegedly were committed or occurred in the guilt/innocence phase of trial; specifically, points of error numbers one and two address the admission into evidence of statements appellant alleges were inadmissible hearsay; point four takes issue with the trial court's admission of evidence relating to appellant's "alleged extraneous illegal activities[;]" point of error number eight alleges improper jury argument; points thirteen and fourteen concern the admission into evidence of allegedly inflammatory photographs; point fifteen takes issue with the admission of evidence regarding DNA testing; and point sixteen alleges error by the trial court in admitting the hypnotically enhanced or induced testimony of a witness; finally, points nine through twelve and seventeen all allege ineffective assistance of counsel at various stages of trial and point eighteen alleges repeated incidences of prosecutorial misconduct.

Viewed in the light most favorable to the verdict, the evidence at trial established the following facts. On the afternoon of February 1, 1988, the victim went to work at a bar in Arlington. Appellant and a friend of his, Michael Ryan Wilson, were also at the club on this day. At some point in the afternoon, the two men had a drink sent over to the victim. Later, a waitress introduced the victim to the two men. Appellant, Wilson, the victim, and a waitress made plans to go to another bar together later that evening, although the waitress canceled her part of the arrangement.

Around 7:00 p.m. or 8:00 p.m. that evening, the victim went home to change and eat dinner before going out. Several employees of the second bar remember seeing a woman, who fit the description of the victim, arrive alone between 8:00 p.m. and 9:00 p.m. They also recalled her leaving shortly thereafter with two men. Her car was found in the parking lot the next morning.

Approximately 10:00 p.m. or 11:00 p.m. that evening, three teenage boys were walking by a public park when they heard a scream. One stood on a nearby bench to look for the police and saw a car driving away. As the boys continued walking, they noticed someone stumbling in a "kind of drunk manner." As they got closer to the figure, they realized the figure was a woman. When they reached her, they noticed that she had blood on her face. One of the boys asked if she needed help, to which she replied that she did. The other boy immediately ran to the nearest house to call for help. The victim told the boys that she had been sexually assaulted and stabbed.

While the one boy was away, a police officer happened upon the scene. The boys told the officer that the victim said that she had been sexually assaulted and stabbed. As the officer approached the victim, he could see that she had blood on her face, jacket, and shirt, and her hand was cut to the bone. The officer tried to question the victim as much as possible. The victim told him that "[t]hey raped and stabbed me." The officer elicited further information that the two assailants were white men and that the victim had met them at the club where she worked. The officer could not later remember the name of the club, but he was subsequently placed under hypnosis, at which time that information was elicited. When the paramedics arrived, the victim also told them that she had been sexually assaulted and stabbed. The victim died about 3:00 a.m.

A search of the area where the victim was found turned up her purse, shoes, watch, and one earring in a pool of blood at the top of the hill. Additionally, a five hundred foot trail of blood led from where the victim's belongings were found to where she had been discovered. An autopsy revealed that the victim had been stabbed by at least two different types of knives or knife-like weapons. The examination also revealed evidence of sexual intercourse, but was inconclusive as to whether the victim had been sexually assaulted.

At trial, Wilson's girlfriend, Rachael Revill, testified that on the night in question, appellant and Wilson arrived at her apartment. They had left the apartment together in appellant's car earlier that evening and were now returning together. Revill noticed that Wilson's pants appeared to be stained with blood and appellant appeared to have a gash on his hand. After Wilson showered, changed, and gathered his blood-stained clothing, the two men again left. Wilson returned about fifteen minutes later without appellant. Revill said Wilson was surrounded by a "burning odor." Wilson later told his girlfriend that he had burned his clothes because they had blood on them. He also explained that he and appellant had "had to get rid of a girl" because she knew too much about their drug business. Wilson insisted that appellant had actually killed the victim.

At a later time, appellant again picked Wilson up from Revill's apartment and they went to the club where the victim had worked on the day she was killed. Appellant asked a waitress if any detectives had asked anything about him or Wilson. The waitress observed scratch marks down appellant's cheek. Subsequently, Wilson contacted an acquaintance of his and appellant's, Mark Noblett. He told Noblett that he and appellant had been to a club with the victim and that later, appellant sexually assaulted and stabbed the victim. Wilson also told Noblett that he was afraid of appellant and wanted Noblett to approach the police on his behalf. The two men agreed to meet to next day, but Wilson never showed.

On March 11, 1988, Wilson was found dead in Weatherford. Four days later, Revill contacted the police and told them of Wilson's confession to her on the night of the victim's murder. Warrants were then issued to obtain blood, saliva, and hair samples from appellant and to impound and search his automobile. The search of appellant's vehicle uncovered hairs which proved to be microscopically similar to those found in a Rabbit coat of the type that the victim was wearing the night she was killed. A scarf was also discovered on which was found a pubic hair microscopically similar to the victim's. Finally, the police recovered an earring which was not distinguishable from the earring found at the scene of the murder. A DNA analysis of the semen recovered from the victim's body and found on her clothes did not eliminate appellant as a donor, although it did conclusively establish that, if Wilson was a donor, he was not the sole donor.

In point of error number three, appellant challenges the sufficiency of the evidence to support the jury's verdict of guilt on paragraph two of the indictment. Appellant was charged by an indictment alleging capital murder in two separate paragraphs. The only difference between the two paragraphs was the allegation of the weapon used in the offense; the first paragraph alleged the weapon was a "knife," whereas the second paragraph alleged the weapon was a "single edge blade knifelike object unknown to the grand jury." The charge to the jury on guilt/innocence was then set out in the alternative, thereby forcing the jury to elect between one of these two paragraphs or a third choice of "not guilty". The foreman signed below the second paragraph, which read as follows:

PARAGRAPH TWO: AND, IT IS FURTHER PRESENTED IN AND TO SAID COURT, THAT THE SAID FRANK BASIL MCFARLAND, IN THE COUNTY OF TARRANT AND STATE AFORESAID, ON OR ABOUT THE 1ST DAY OF FEBRUARY, 1988, DID THEN AND THERE INTENTIONALLY CAUSE THE DEATH OF AN INDIVIDUAL, TERRY HOKANSON, BY STABBING AND CUTTING HER WITH A DEADLY WEAPON, TO-WIT: A SINGLE EDGE BLADE KNIFELIKE OBJECT UNKNOWN TO THE GRAND JURY, THAT IN THE MANNER OF ITS USE AND INTENDED USE WAS CAPABLE OF CAUSING DEATH AND SERIOUS BODILY INJURY, AND THE SAID FRANK BASIL MCFARLAND WAS THEN AND THERE IN THE COURSE OF COMMITTING AND ATTEMPTING TO COMMIT THE OFFENSE OF AGGRAVATED SEXUAL ASSAULT, OF TERRY HOKANSON, ...

Appellant now alleges that the evidence is insufficient in this cause because the State failed to prove: 1) that the object which caused the death of the victim was, in fact, an unknown object, and 2) that the Grand Jury exercised reasonable diligence in its efforts to ascertain the identity of the instrument used to cause death.

This Court stated in Matson v. State, 819 S.W.2d 839, 847 (Tex.Cr.App.1991) that:

When an indictment alleges that the manner or means...