McGregor v. State

• Decision Date: 17 April 2013
• Docket Number: No. 01–10–01085–CR.,01–10–01085–CR.
• Parties: Edward George McGREGOR, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

394 S.W.3d 90

Edward George McGREGOR, Appellant

v.The STATE of Texas, Appellee.

No. 01–10–01085–CR.

Court of Appeals of Texas,

Houston (1st Dist.).

Aug. 9, 2012.

Rehearing Overruled Oct. 30, 2012.

Rehearing En Banc Overruled Jan. 8, 2013.

Discretionary Review Refused April 17, 2013.

Donald W. Bankston, Richmond, TX, for Appellant.

John J. Harrity III, Gail Kikawa McConnell, Assistant District Attorneys, Richmond, TX, for Appellee.

Panel consists of Chief Justice RADACK and Justices JENNINGS and KEYES.

OPINION

EVELYN V. KEYES, Justice.

In this cold-case murder prosecution, a jury convicted appellant, Edward George McGregor, of capital murder, and, because the State did not seek the death penalty, the trial court automatically assessed punishment at confinement for life.¹ In nine issues, appellant contends that (1) and (2) the trial court erroneously admitted evidence of an extraneous murder offense in violation of Texas Rules of Evidence 404(b) and 403; (3) and (4) the trial court erroneously admitted evidence of an extraneous terroristic threat that referenced both the charged offense and the extraneous murder in violation of Rules 404(b) and 403; (5) the trial court erroneously denied his motion to dismiss the indictment for lack of a speedy trial; (6) the trial court erroneously denied his requested jury instruction on third-party culpability; (7) the State failed to present sufficient evidence that he killed the complainant during the course of committing either aggravated sexual assault or burglary; (8) the trial court erroneously admitted physical evidence and DNA test results derived from that evidence because the State failed to establish the chain of custody; and (9) the trial court erroneously denied his motion for mistrial made when a juror indicated during deliberations that she was feeling coerced by the other jurors to change her opinion.

We affirm.

Background

A. The Charged Offense

Former Missouri City Police Department (“MCPD”) Officer L. Weathers was dispatched to a house on Whispering Pines in the Hunters Glen subdivision of Missouri City around 11:45 p.m. on April 17, 1990. When Officer Weathers arrived at the house, he noticed that the front door was open, and he saw a white object lying on the walkway to the front door. As he approached the house, he discovered that this object was a blood-stained pillow, and he also saw blood on the walkway and the nearby grass. When he entered the house, he did not see any signs of a struggle in the living room, but he did see blood stains on the front door. Officer Weathers heard a moan, and he discovered the complainant, Kim Wildman, a Caucasian woman in her late thirties, lying on the kitchen floor with the telephone next to her. She was very pale and was moving slightly in pain. Officer Weathers testified that “[t]here was quite a bit of blood in the kitchen,” and, because Wildman was not wearing any clothing, he could see numerous stab wounds on her arm, one stab wound near her rib cage, one stab wound near her hip, and deep defensive wounds on her hand.

Wildman was still conscious at the time, and Officer Weathers asked who had attacked her. She stated that “a black man” had attacked her, and she indicated that she did not know her attacker.² Officer Weathers tried to obtain a physical description, but Wildman started drifting in and out of consciousness. He testified that she was not in a physical or mental state where she could give him “a lot of information about what happened.” Wildman died later that evening.

After backup arrived, Officer Weathers and another officer went upstairs where they discovered a “very brutal scene.” Officer Weathers testified that there was blood all over the bed and floor of the bedroom and that the bed had broken at the headboard. He believed that “[t]here had been a heck of a struggle on the bed and in that room.” Officer Weathers did not see any weapons in the bedroom, but he testified that there was a chain connected to the headboard of the bed, and this chain had blood on it, as well as a clump of hair consistent with Wildman's. He believed that she had been restrained with the chain at some point.

Officer Weathers further testified that, although he did not see any signs of forced entry by the front door, he saw a dining-room window that had “two holes punched by the lock” and broken glass. He stated that this method of entry is “a fairly common way for burglars to get into houses without shattering the whole window.”

On cross-examination, Officer Weathers agreed that Wildman told him that “a black man” attacked her, and she did not further qualify this statement by saying that her attacker was a “young” black man. He did not recall whether he saw any torn clothes in either the bedroom or the kitchen that may “have been ripped off of her as she struggled.” He also agreed that the holes in the dining-room window could have been made by the tip of a screwdriver.

Former MCPD Detective R. Echols testified that he arrived at the scene around 12:30 a.m. and that Life–Flight had already taken Wildman to the hospital by this point. He agreed with Officer Weathers that there was a “considerable” amount of blood in Wildman's bedroom, with the majority of the blood located on the mattress and some blood spatters located on the head and footboards of the bed. Because papers were “strewn about” the floor, a table was overturned, and the headboard was broken, Detective Echols believed that a struggle had occurred in the bedroom and that this location was where Wildman was initially attacked. He agreed that making small holes near the locking mechanism of a window was a “fairly common” method of gaining entry into a house. He testified that the dining-room window screen “looked to be intact,” but it “was not properly affixed.” He stated that there was no indication that theft was the motive for breaking into Wildman's house.

Detective Echols testified that, during the investigation, officers inquired at nightclubs that Wildman was known to frequent, but they did not receive any useful information. He also stated that the officers discovered that Wildman had an interest in topless dancing, but they did not locate any clubs at which she worked as a dancer at the time of her murder.

Detective Echols also testified that, several nights after Wildman's murder, MCPD officers arrested a young man named Corey Henry for attempted burglary in the same neighborhood. Henry was carrying one blade of a pair of scissors and a screwdriver when he was arrested. Detective Echols stated that he later learned that Henry was arrested in Harris County several months after the burglary arrest and charged with aggravated sexual assault. Henry remained the prime suspect in the Wildman murder for several years, but, eventually, he was eliminated as a suspect through DNA testing.

Dr. Aurelio Espinola, who formerly worked as a medical examiner for the Harris County Medical Examiner's office, conducted Wildman's autopsy. Dr. Espinola testified that Wildman had stab wounds on the left side of her chest and her hip, two stab wounds on her left arm, four stab wounds on her back, and defensive wounds on her left hand. Dr. Espinola opined, based on the nature of her injuries, that Wildman resisted her attacker and was moving around while being attacked. He also testified that he believed Wildman's wounds were caused by a knife that had a blade with two sharp edges as opposed to one sharp edge and one blunt edge. When shown the one-bladed scissor that the MCPD officers recovered from Corey Henry, he testified that it was “very unlikely” that this type of weapon caused Wildman's injuries because part of the scissor was thick and blunt, and, thus, this weapon would have created a stab wound with one sharp edge and one blunt edge.

Dr. Espinola also testified that Wildman had a small laceration on the opening of her vagina. He stated that this was not the type of injury that he would expect to result from sexual intercourse. He further testified that, “in forceful sexual intercourse, there will be abrasion[s] and contusion[s],” and Wildman did not have such injuries. Dr. Espinola also collected oral, vaginal, and rectal swabs during the autopsy. He testified that the vaginal swab revealed spermatozoa with complete heads and tails, which indicated that Wildman had recently had intercourse prior to her death, and the rectal swab revealed spermatozoa with only the heads present.

On cross-examination, Dr. Espinola testified that there was no evidence that Wildman had been strangled by her attacker. He agreed that the vaginal laceration was “pretty small,” that he could not tell when that injury occurred, and that he observed no physical trauma indicative of forcible, nonconsensual intercourse close to the time of death. He also agreed that spermatozoa could reside in the vagina for over a day and that he could not say that the sperm he discovered in Wildman's vagina was placed there contemporaneous with her murder.

Houston Police Department (“HPD”) Investigator R. Swainson testified that, during the course of investigating a Harris County case in 2005–2006, he met appellant, who voluntarily provided a DNA sample via a buccal swab. Investigator Swainson interviewed appellant at both his apartment and HPD headquarters concerning the Harris County case and released him after the interview. Investigator Swainson testified that at the time he interviewed appellant and obtained appellant's DNA sample he did not know anything about the Wildman murder. Investigator Swainson subsequently learned about the Wildman murder and the fact that appellant's family had lived two doors down from Wildman in 1990 from his partner, Officer J. Binford, and he then shared the results of appellant's buccal swab with the MCPD.

Robin Guidry, a criminal specialist for the HPD Crime Lab, testified that, in 2006, she was an analyst for IdentiGene, a private DNA laboratory that had a...