Means v. State

• Citation: 429 S.W.2d 490
• Decision Date: 22 May 1968
• Docket Number: No. 41181,41181
• Parties: Stanley Eugene MEANS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 490

429 S.W.2d 490

Stanley Eugene MEANS, Appellant, v. The STATE of Texas, Appellee.

No. 41181.

Court of Criminal Appeals of Texas.

May 22, 1968.

Rehearing Denied July 24, 1968.

Jerald D. Mize, Houston, for appellant.

Carol S. Vance, Dist. Atty., Phyllis Bell and Erwin G. Ernst, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

The offense is Murder with Malice; the punishment, assessed by the jury, ninety-nine (99) years confinement in the Texas Department of Corrections.

Appellant raises three grounds of error: (1) Insufficiency of the evidence to sustain the conviction; (2) Nondisclosure by the State of favorable evidence to the defense; and (3) Improper jury argument.

The State's case rested solely upon circumstantial evidence as there was no eye witness to the brutal crime which appellant was charged with perpetrating.

The record reflects that appellant, twenty-three, met the deceased Sylvia Daniel, apparently a local prostitute, in Albert's Bar, Houston, Texas, which she frequented, on the afternoon of August 26, 1966, where he talked with her and bought her beer. Appellant and the deceased left Albert's Bar at approximately 6:30 p.m. and went to the coffee shop in the DeGeorge Hotel where the deceased created a disturbance when the waitress refused to serve her beer because of her intoxicated condition. As a result of the disturbance they were refused service altogether. The manager-waitress of the coffee shop testified that appellant and the deceased left at approximately 7:40 or 7:50 p.m. and entered the lobby of the DeGeorge Hotel; that shortly thereafter she received from room service the same order appellant and deceased had placed with her earlier.

State's Exhibit #14, a completed registration form for the DeGeorge Hotel, showed that appellant and the deceased registered as Mr. & Mrs. A. W. Means ¹ at 7 p.m. and paid in advance for their room. The desk clerk testified that in recording the check-in time that he and the other clerks were not always accurate to the minute.

Wesley Marshall, the 59-year-old DeGeorge Hotel bellhop, testified that he took appellant and the deceased to Room 512 of the hotel between 7:30 and 8:30 p.m., during which time the deceased repeatedly requested shrimp; that at Room 512 he received their order for shrimp and beer and he returned to the room with the order about 10 or 15 minutes later. He related that a man's voice asked him several times to wait 'just a minute,' and that after about 20 or 25 minutes of knocking and waiting appellant opened the door wearing only his trousers and permitting only sufficient space for the food tray to be passed through.

Garland Brock, the elevator operator for the DeGeorge Hotel, testified that he carried appellant, the deceased, and Wesley Marshall, the bellhop, to the fifth floor of the hotel between 7:30 and 8 p.m.; that shortly thereafter he saw the bellhop waiting outside of Room 512 with the tray; that for five times over a period of thirty minutes as he periodically stopped on the fifth floor he observed Wesley Marshall still waiting; and he corroborated Marshall's testimony as to the appellant's dress at the time he opened the door. He further related that approximately one to two hours after appellant's arrival at the hotel he carried appellant to the lobby of the hotel.

The nude body of the deceased was discovered in Room 512 at 3 p.m. the following day by the hotel maid after having the door unlocked. She had been strangled with a lamp cord and a wire clothes hanger and severely beaten around the face. Evidence further showed that the beer and shrimp were left untouched on the tray and appellant's fingerprint was discovered in the room. The Harris County medical examiner placed the time of her death at approximately 8:30 p.m. on August 26, 1966. He described the deceased as a 41-year-old woman with graying reddish brown hair and only two teeth in her head, who was at the time of her death suffering from pulmonary tuberculosis and cirrhosis of the liver. The autopsy conducted further revealed that the deceased had an empty stomach and that she had had sexual intercourse sometime during the day of her death. He further revealed that the alcohol content of her blood at the time of her death was 0.302 per cent which in his opinion was equivalent to having had within an hour or two of death 18 to 24 12-ounce bottles of beer or 18 to 24 1-ounce 'shots' of 80 proof whiskey.

The appellant did not testify in his own behalf. The only testimony he offered was that of a former investigator with the Houston Police Department who testified that as a result of a test that he conducted with State's Exhibit #19 (a ring bearing the initial 'M,' which was discovered in Room 512), he found it would not fit any of the appellant's fingers except his smallest two.

To meet the State's circumstantial evidence case the appellant sought to show that there were other men registered in the DeGeorge Hotel, and other available entrances and exists than by the lobby and elevator, reflecting ample opportunity for another person or persons to have committed the murder without detection, particularly given the proclivities of the deceased.

The court charged the jury upon the law of circumstantial evidence. In viewing the evidence presented in the light most favorable to the jury's verdict, we are convinced that the evidence is sufficient to sustain that verdict, and further that the trial court did not err in refusing appellant's motion for instructed verdict.

As has been said, '(s)ome circumstantial evidence is very strong, as when you find a trout in the milk.' Henry D. Thoreau, Journal, November 11, 1850. Ground of error #1 is overruled.

The facts surrounding the nondisclosure or alleged suppression of facts by the State were elicited at the motion for new trial. As will be observed, the case here presented does not fit the normal pattern of cases of alleged suppression of evidence.

It appears that prior to trial the entire State's file was handed physically to both of appellant's court appointed counsel. Such action obviated any necessity for pretrial motions for discovery. In fact, some of the material therein could not have been reached by means of discovery. See Article 39.14, Vernon's Ann.C.C.P. During the trial each request of appellant's counsel to inspect various items in the State's file was granted and the State voluntarily displayed or offered for inspection such items. In said State's file was a police report showing that at the time of the discovery of the deceased's body some loose hairs had been found on her nude body. Some two or three weeks prior to trial the State attempted to secure from the appellant while he was confined in jail head and pubic hair samples in order that they might be compared with hairs found at the scene of the crime. The appellant refused to give such samples. On the fourth day of the trial the court, at the request of the State and over the vigorous objection of appellant's counsel, ordered that the appellant submit samples of his public and chest hairs for comparisons with like hairs found at the scene of the crime. Said samples were taken from the appellant at approximately 5:30 p.m. on that day. On the following day, Friday, January 27, 1967, at the noon recess appellant's counsel conferred with the assistant district attorney prosecuting in order to determine how many more witnesses the State expected to call before resting in order that he might have his lone witness available when necessary. During such conversation appellant's counsel inquired if the State's attorney had heard from the chemist with regards to the result of the test of the comparison of the hairs. The prosecutor replied in the negative but indicated that he would check since he could not recall whether he was to call the chemist or the chemist was to call him.

The State's chemist, Peter Christian, testified that on the afternoon of Friday, January 27, he informed the State's attorney who was prosecuting the case that the results of his test showed that the three unidentified hairs found on the body of the deceased did not match the hairs of either the deceased or of the appellant.

The prosecutor testified that he had, in fact, received the results of said test from the chemist sometime during the noon recess and thereafter he discussed with his co-counsel whether the State was obligated to bring such testimony before the jury. Concluding that it was not, he returned to the courtroom and recalled one witness ² and then rested. He explained that he did not call the results to appellant's counsel's attention possibly because of the stress and strain of trial. The court's docket sheet reflects that the trial resumed at 1:25 p.m., that both sides closed at 2:30 p.m. and that jury arguments began at 2:45 p.m.

Robert Tutt, a newsreporter for the Houston Chronicle, testified that when the State rested its case on Friday, January 27, without having called the chemist or indicating the results of the test ordered the day before he approached the prosecutor at the water cooler in the courtroom and inquired of him if the test had been completed and if he had learned the results thereof. He stated that the prosecutor related to him that the test showed that the hairs found on the deceased's body did not belong to her or to the appellant. He testified that his story to this effect appeared in the last edition of the Houston Chronicle on January 27.

Appellant's counsel testified that after his inquiry during the noon hour with the prosecutor, he assumed in view of the complete cooperation he had had from the State up to that point that he would be informed if the results of the test became known and concluded that when the State rested without offering such evidence or informing him of the results of the test that the chemist had not had sufficient time to...